esio myonolelo and 2 others vs the republic 2 1996 tzca 29 28 october 1996

IN E IE COURT OF APPEAL OF TANZANIA AT KB3TA ( CORAKi KHAVAS. J . A . . KFAULA. J . A . . And IjI/SuYAfc J .A « \ CRIMINAL APPEAL NO. 49 OF 1995 BETHEEK 1 , ESIO iriOI.lOLELO 5 2 , F U C Q I iriOLIOLSLC I* • • • • • • ♦ APPELLANTS 3 * FRANCIS irrGlIOLELO J AND TEE RTDHISLIC..................................... . . . , RESPONDENT (Appeal from the Conviction and Sentence of the. High Court of Tg izarxia at irittga^ Qlapigano. J.,\ dated the 14th day of Junej 1995 in Criminal Sessions Case io» 80 of 1993 JUDGSKSaT OF THE CJURT HJHJVA. J . A * i The appellants axe appealing against thg. <Leftiei.<Hi of the Iljgh Court (Mapigano, J*) sitting at Iringa,* ’ They ^uad. eonvioted of the offence of murder contrary to Season V9& ^ Penal Code and sentenced to death* At the trial^ tha tur^ - 1anta stood charged together ■with a third person try the name Francis Nyomolelo, their father who died before t’10 hearing o£ this. app®.l* He was referred to as the third accused ct the trial* At the commencement of the hearing of the apperl the Court was notified q£ the death of Francis Nyomolelo, and sq the appeal in reep4^t of Francis Nyomolelo abated under rule 7t(l)» Tlig. appeal is prooegfled with in respect of the two appellants* The facts are nc>t long but pathetic, ‘ They are that the appellants who are brothers and the deceased were neighbours living at Isa-lavanu Village in JIufindi District, The deceased Michael s/^Kikati had a shamba at a place called N&oleax* From the reoordj it is apparent that this shamba was the source of quarrel and dispute between the families of the appellants on one side and the deceased on the other* Prior to the day of incident) a quarrel had ensued between these two. families over the trees 'which, the appellants had f el led in the shamba and the charcoal made# The quarrel was settled* -3ut s t i l l the fajuiligg remained not in the best of terms* On '27 *9«1992, at about 9 P«®« deceased was speared to death at the 1: uje of Adriano Kikxrtri (P¥*2) h is son* The appellants were arrested and charged with the murder o£ the deceased* Before the t r i a l Court, the f ir-..,t appellant raised the defence o f s e l f defence and the second appellant denied assaulting the deceased* His involvement, he claimed, was to s^ op the fig h t between the f i r s t appellant, the deceased and FH*2* In the process, PWi4 was injured* according to the second appellant. TLa t r i a l judge rejected, the f i r s t ap p ellan t's version o f self-defen ce* le held that i t was a deliberate attack on the part of the f i r s t appellant who vas <u>nvicted. <x£ Jourdex# Invoking the doctrine o f common i n t e n t i a in respect ocf the second appellant, he was also convicted of mur.ler. In th is appeal, Mr* N aali, leam eL Counsel appeared fo r the f i r s t and second appellants* Mr* ISolo' x i , learned State Attorney represented the respondent, Republic* A cix point memorandum o f appeal was f i l e d and argued by Mr. Naali* B r i a i l y , i t was the submission of Mr* Naali that the learned t r ia l judge -;- rod in convicting the appellants because the prosecution had not proved i t s case beyond reasonable doubt. He referred to the evidence of the witnesses P¥* 2 and PW«3 whichj he said ■was con flictin g* Secondly, Mr* Naali staged that as i t was dark, the witnesses could not see and identify properly the assailants o f the deceased* I t was therefore unsafe to rely on the evidence of these A witnesses, Mr# Naali charged* Thirdly, he submitted that as a l l the witnesses fo r the prosecution were related to the deceased, i t was possible that they could frame up the case against the appellant* So, he submitted that they should not hava been re lie d upon* Fourthly, that i t was an error on the t r i a l judge to take in to account the oonfession - 3 - of the f i r s t appellant which had. been repudiated without corroboration* F ifth ly , that there was no common intention "because there was a fig h t and that apart from the appellants, ‘the deceased was also armed» F in a lly , that the Learned t r i a l judge did cot direct the assessors on the contradictions "between the prosecution witnesses* He prayed that the f i r s t and sectud appellants should h '/c been found g u ilty of manslaughter and rssatilt respectively* On "behalf o:; the Republic, Mr* Jtfulolozi, learned, State Attorney argued that the question o f repudiation 01 retraotion of tit© appellant©* confession does not arise* At the t r i a l , ^r* M u l^ozi statedj no objection was raised when the statement va-3 produced "by PW*1# j ’urt'ier, he submitted th aj even in their defence a t the tr ia lj. the. appellants did not complain about the statements. We agree with Ilr* Mulokozi that the issue of tha retraction or repudiation of the statements was not raised r.t a l l at the t r i a l u n til the close of the prosecution case* We only jlean from the record mention of i t scantly in cross examination of the f i . x t appellant* I t is t r it e principle that such a defence i f availab le, should normally be advanced before the close of the prosecution so that s:he prosecution is given an opportunity to produce evidence in proof of i t or otherwise in a t r i a l within a t r i a l . As i t is in th is case, we are s a tis fie d that i t is nothing but an afterthought* Shis ground has no m erit. In regard to the submission that the prosecution witnesses should not be r e lie d upon because they were related to the deceased, Mr* Kulokoai reacted "try sta tin g that th is was not true because, these being the only people present at the time of the incident, they are the ones vrho could to ll what actually happened* With respect, we think; Mr* Mulolcozi’ s submission is correct* I t is common knowledge that in any t r i a l evidence is forthcoming from witnesses who d irectly or circum stantially witnessed an incident talcing place* This is what happened in th is case* Witnesses •♦**/4 - 4 - PF,2, PT7.3 and PTf.4 saw what took place at the time# Thg fa c t that they are related to the deceased i s , in our view, irrelevant* Ifcey were witnesses of credence and were believed the t r i a l Gourt^ We see no reason fo r casting doubt on their evidence* On the fa ct that the witnesses could not id e n tify the appellants* we think in agreement with Mr. liulokozi that th is was irrelevant in the circumstances cf the case. Id en tification was no$ an issue a t <\11 throughout the proceedings o f th is c a se , !2i© appellants have aot disputed their presence at the scene* Then MXt, Kulokoei addressed on the issu© c f **ontxadiQtions in tixe evidence of the prosecution w itnesses, Ze submitted that there nt> material contradiction in the evidence of tha prosecution witnesses.^. On the contrary, Ilr* ILilokozi stressed, i t was the. defence side which, had serious contradictions which the t r ia l judgsy^gfisadered* From the record, i t is clear that the learned t r ia l judge directed the assessors on the discrepancies in tho^rrideno^ o f the defence* Ha aJ-Sfl addressed th is issue in his judgment* He stated in ter a lia # ”As I pointed out to the assessors* there are material and injurious discrepancies in the accounts of the f i r s t and second accused persons, 'There is a co n flic t in th eir evidence as to whether the deceased was together with ?1I♦2 when the accused passed at the home o f PW.2 the accused have repudiated these cautioned statements* I find however that they have made th^ statements"* I t is therefore clear to us that as righ tly submitted by Mr* Iiilolcozi> there was no material contradictions in the evidence o f the prosecution w itnesses. Rather, as seen from the above extract, there were serious contradictions on the part o f the defence -case which w^re duly considered by the t r i a l judge who also property tiireaied the assessors - 5 - on the issue* Mr. U a a li's complaint that the t r i a l judge did not d irect the assessors- on the discrepancies i s , with r-aspec% withocrtr foundation* Consequently, in the oiroumstanoes of the case, having regard to the background of the matter in which there was. a -dis-put^ ovex a shambaj the manner in which the f i r s t appellant camc to the hcuse of ^ * 2 armed with spears, and a bill-Jiook znd attacked tliG deceased, w© ar<&. ^ a t ls f ied that there was s u ffic ie n t evidence upon which -to. sus^&ia, tViQ. against the f i r s t appellant, lie are also s a tis fie d that there was su ffic ie n t eviclo«.oe to support the cotivictio a, against the. seoond appellant fo r the sane offence by invoking the doctrine, of ^#%imnon intention in terms of Section 23 of the Penal Code* were such that the learned t r i a l judge was e n titled to c*me to the •conclusion that the second appellant knew -as cught to have known that death was no* improbable to happen in the cvurso ~&£ ps^pj^fciae common intention* In tho event, we dismiss the appeal in it * cntixoty* DATED AT KBEYA TIiI& 2&TE BAY OF OCTOBER, 1996m li.S , ilWziAYAS JUSTICE OF .APPEAL L.K. IiFALlLA JUSTICE OF APPEAL D.Z. LUBUVA JUSTICE OF APPEAL I c e r tify that this is a true copy of the original. ( M.S. SliAKGALI ) DEPUTT HEGISEUa