19970410 TZCA Arusha

~ •,; AT ARU..,,l.<. (™: KISANGAa J.A., RAMAOHANI·, J.A.. 1 And LUBUVA, J.A.) CRIMINAL APPEAL HO 121 OP 1993 BE'l'WEEi! 'BAKA.RI ··s£.Fu. . • ~ • • APPELL~NT AND THE REPUBLIC.. • ; • ltSSPCNDEN',7 {Appeal from the c, :1i;:, -:ti"n ,-.f the High Cnurt r-,f Tan;·.:\'1s ·,. at Hcshi) dated the 23rd day ,,1· ·<larch, 1993 -in Criminal Sessinns Ca~e N-:• 37 ,-f 1992 REASONS FOR JULGEl~NT KISANGA, J.A.: the sentence "f death passed on ti-.-:~ a; p:.!llant by Mrerr.a, Principal Resident Magistrate, as he thee wa:,, :·ittinq at i'!"shi and exercisi-ng exterrde·d juri_sdicti,...n ·w:-:·J: ·;;.· was ,:luly ·,estcd in him • .., Tbe facts "f the case may be '.' .;--:narized very ... briefly_ as fr-11,,ws: The appellant and the _:_,.-,: •,;ased were b"th empl,-yed b)' the S.ingachini Teachers' TrainiJ.g ·.'·•ll~g~. The appellant was a driver and...,the deceased was 1.•:1 .-,;,:counts.,,.clerk. _They were ,I gNat friends wh", inter alia, use( _;,·. m,-ve t"getber .... n drinking :i spree aod _they were living as neigt,b,..,1:;: s in the c"llege campus. Tbeir h"mes_wete accessible_either :l'.ln,ctly f.c-l'm the main H(lshi -..,Kll),.,sh" r"ad "r t\lr"ugh tbe pr.~vate r"ad. that ran thr~ugh the "n"rthern gate" t" the "s,.,uther,, gr.:te". • •• /2 ,. ' • 2 On the day of the incide•.it ·".:he appellant and the deceased i were seen t,.,getber in the v1ll<1ge·:. s.-.me time in the eveoing, but there is much c,.,ntr,..,versy_whe~~er~they were drin.lcing t.-.gether or:n,.,t •. ·H..wever, .... it is c,..mm,.,n gr,-,•md that the app<!llant and the deceased parted cr,mpany that e-reni_iJg just bef,-re 8 p.m., tbe ·· deceased g,-ing away-first •... The, ¢e,.~eased wh<" 1o1as .... leaving f,-r :,,He did nr,t reach hnme. ,..His dea(. br.ty wa.:; fru.cd in .... the f,-11,-,wing · 11orning lying ,..n that r"ad and w'. tt:.:.n tbe sch,-,,_J. c,..,mp,.,und,. He had suatailled a~fractured neck,~;'.;:;. acc"rting t" the d,..ct.-r daath.,was due t" strangulati"O ":: c.l',o! oeclc and fractured the appellant and the deceased .... he1 p;-,rted that eveoirn,, and as the deceased was beading fr,r hl"me, tL--, appellant f,._ll,.,wed him and murdered him .-n the wayo The appellant vehementl,y de1:.ied toe charge. He admitted meeting tbe deceased at .... a shnp in ·the l"cality that evening, and talking t" bim briefly nn genecal ~att~rs after which each went hio way. _ H...wev«:;r, he denied C"mp1•€''~1:! rtrinl::ing with the ...The Leal:'ned trial magistrate .. ~cc-:ptec1 the pr,.,secuti"O \ "ve:esi,.,n and cr-nvicted and sentenced tr ..; appellant as is ah,..wn ). ,. . ·. Bef,-ro us the appellant Was re;-itt.::ented by Mr. J.J. !'l,i~e, \·· ·· le~ed ¢Yt>eate, while Mrs. Mo .... Lyimr•Q· barned Seni,..r State ••• /3 ,. . • 3· imprope~ly c,-nstituted, in whir.ti r:!lse the trial w3s a nullity, and sec,..ndly that the evidence.'ad(- JCed was iTl"st inadequate t,.. 0 supp,.,rt the appellant' IS c"nvict:.1..-.t!·, . .. -~. After hearing the submis{i,-n:.; by Cnucsel f,-.r b,-.th aides, ·: ;' we all,-.wed the appeal, setting --~si·:·ie thttccr-nvicti"n and sentence ,I .'. .,,.i th .an nrder t,.,. • s!!t the. appell~nt: .• l f ree-unle ~s a~ was "tbe.tw'ise ;;>:;:.j~:iawtully ·held in_cust"dy. We reserved ,.,ur reas"i1S f,-..r d"i.ng Qr,. _In thus all,-.wing the appeal we. were Gatisfied that-~hether ..,r n"t the...,trial was II nullit?'_ .. ~X r..eas,..n of the trial c,-,urt · :·_being imprr-perly cr-nstituted, .. the c.·ppt-111 nught t,.. succ,'!ed ""¥ the gr,.,unda nf insufficiency of the evidence adduced¥in¥supp,..rt nf The learned trial magistra·::.~ ·:i<1htly apprec.iated that · -t~~ case against the appellant r::?stcj solely "I:> circumstancial be applied bef,-.re cnnvicti,-.n can be had on such e'lidence, However, ..we were satisfied that he e:~r~rl ln ardving at the cor.clusi"n that the pieces of ci=cum:1tanciol e-vi--:1ence tending ,. .. Ther~ wa.s .. the eYidence that" tht, appellant and the ,pr,.secuti"n thr,.ugh PW.4 went fur:her and asserted-that tbe appellant, the deceased and "ne Wj l,:;r.1 Nyangasa 'tlh" was J"intly ~ha.rged with the appellant but acq·.ii t ·:ed, were t--gether dr~nking P""lllbe that evening and th.-Jt 'i::-ie deceased seemed . • ;·;: -J:efuted·.any -· f ~ggesti"n •tbat • .he drat:k-.~1th the deceased that ·; ;f_{:~<d~~~ BQt a'Yell if the p.r"secuti"n :;tel".• were t" be accepted, ~ .i . . \·: ,. , • ,·, _·n,..tj)ing _really. tw:nlll ,.n..,it becaus~ the pr,..secuti,..n itself ·tbr,-ugh the same PW.4 gr-es "n ~n say that after such drinking together the deceased went a'tlla/ leaving the appellant and his ': c~accused behind finishing up their drinlc, adding that these two alS" went away ab,..ut ten lll:".m1i'..es later. The trial magistrate fcui,d that the appellant f,..11,..wed .i ··; ·.,· ... '.L 'i•i\;.~e-dece~sed aod murdered him,.;, t:ie...,way, but all this was v ;,,,· ; \ f \ j ·.q _mere,..speC:Ulati"n because there wa,; n,.. evidence wha ts,..ever .... t,.. 1 Pld.2, tl:e w:-.tchman 'tllith the K1b,..sh,.. Girls' . •_'; gate, testified that the decea~t!id.,a'.>p~ared at th~ n"rthern . ·_ <}ate at about 8 p.m. "n his vay_ h_::iT~~ .via the S"1.rthern .... gate. There--is "'"' evidence tba t the a'.1pe llant als,.. wer: t thr.~ugh the n"rthern gate f,..11,-wfnq the dcc~~sed. Indeed tbe appella.nt'a testimony which was n"r. challenged,..~ C"ntradicted ; was that he went h--me thr,..ugh tl:.? rn1in M"'sbi - K!.b,-sh" rnad al1d that he passed by, n"t went thr"u<Jh, the n,..rthero gate at.., .· pin d,..wn the appellant with the ci~.;. lng ,..f the deceased. That 5 .• i had roenti,-,ned_the appelLrnt as hill p--ter,tial l<ill~r- 'das, n,.. •.:· the death.....r-f_the deceased, PW.~ wr~tld have . . discl~sed at the :;.,_~arliest "PP"rtunity. H,..wever, PW.,2 did n,-t· d1scl,....e this in his first statement which h11 made t,.. the P"'lice ,..nly five_ :l·:"daxs after the death r,f the.dc~;~s·•~d-~ He made a discll"SUre ... f i:.: -;· ,' . :; it only in his subs~quent state!!l~r.·-: t,.. the P"lice. One ~.·•.( ~f:: ~ _;. ; ' wonders why? Sec,..ndly, PW.2 was a P"S~Lblr susp~ct 1n the kill1r.g of tbe deceased because the decea.r:::d .•as f"ur.d dead in t!:l~ sch~"'l Cl"'IIIP"'Und ,..f "1hich tne witness ;.·11s 1 watchman "'0 duty ~n the material night. As 91.1ch P\j.2 t,ad :,n interest -:,f his ~wn t" serve in the :natter.,., He W"Uld havr, every reas'"'n t- say tr--uble. His evidence theref,..,:e ..1-t,··n"t c,..,gent ,..r reliable tC\ implicate the appellant sui'f.'ici~ntly with the alleged crime. And-lastly the learned ti:ial magistr;ite r~lied "n the .the"'material night ,..ne Cbami 1 ~ f~ll""4f te~cher and neighb.-.ur, . esc,..rud tl",e appellant t.-. him e,:1,.: ·.nf,;:rmec1 him that thi'! :,: appeU.ant wanted t,- see him. w·t,;1:-:;,up,..n th!! appellant allegedly discl,-.sed t,., him that he fround ·~:;•.: deceased sJ.e~ping near,., the I· · ar-utbern ~te within the canrpue ,:rt· the Kib,..sho Girls' s~;..ndary '· SCh,..,,l. He theref,..re requested ti)(- w_itness tn ~cc,..mp~ny hi~ t'"' the scene and· help hini t,., wa-::e t...? the deceased,. but the witness refused. This evidence, h.-....ever, lacks c,..gency. ~It o••/6 . • 6" Cori.firm.that he esc--rted the app.::ll,-int t" PW. 7 as claimed, and // no reas,..n was given why he was r.,r-i: -~al led. F--r, 1 ~ he were called he might n"t havevsupp,..rt;:d ·.•Wo 7' s assert1,:-n tbat he ese,..,rted the appellant t-- PW.'l t,1at night, and that w~uld render concern. If the.appellant ha1 klll~d the deceased as.alleged, the deceaseri tbat nighti \-J.-uld i:hal·. n--t amount.t" laying c,-.nduct himself that way? What .:.5 n."r", ther-:! was "V'!rwhelming appellant, ... f c,..urse str"ngly ~.t:,•· .-·.1 >1ny suggest1-n that h~ appr,..achcd PW. 7 that night, and c.-:n1··d any !,.:w--lve:n'!nt.in the killing nf the deceased. vThese c-n~iderati~ns serve t- render _-PW. 7 1 s evidence all the m,..re susi:ect. Lo,-king at the case a wh,..le we were firmly-ft~ view tbat such pieees ...... f circumstancial ev.i~ence ... as there were, c,..ul.d n,-t lead t,.. the irresistible c,•nclusi,..n that the appellant ~as guilty "f the "ff'!nce charged, ar.d that the.trialvmagistrate µial magistrate returned a unaniL"U~ verdict ,..f n,..t guilty, ....· ·r:.. ♦ ti 'i and the learned Seni,..r State Att,-r.··1ey appearing before us ., M.r. Nwale' is remaining gr,..und =<i'·-ally had merit._ It was <:l~ru:ly dem-~nst.cat.,;,J ·::13t Mr. Mre;n..:. :::,-tin the High c-urt ;,he,: • i. ~':'ndu~ting ~ appellant• s trial.,. Thi. J was in clear c,..ntraventi,...n ••• /7 . ,. . 7 I I r,f article 109 (1) and (2) ,-f_ti,e c_,--nstltuti"n "f the United ·Republic ,..f Tanzania which prov~.des; in effect that the High. · · C("lu.rt shall be presided "Ver bia Judge duly app,..inted by the · President.~ In this~case Mr. Mr~map alth,..ugh e~ercising extended jurisdicU,..n, was n"t •PP"inted jurl_ge, he was ,..nly a pri~ipal resident magistrateo· Mr. ::!wale: s ·, ri ticism, therefrre, was quite justified that the trial-..C.-urt •:.:i~: :.mpr";:>"'rly C"nstituted. T!1e That W"uld have cendered ':ht!. trial a nullity ant1 hence 'While tr.is ap~eal rerr.z.ir.ed res~!:-Vec for th~ giv1ng -f "Ur reascr..s frr j..idgenient F'arli,ur.er.r:, ~thr-ugh Act N,.... 17 \\'ritten Lai.s u:1scellane-"us Amendments) ~!--. 2 -f 19~6, ~amended the law the.re by saving the situation. ':'he .celevaot ?r~visi,...ns are magistrate duly vested with exte!!d•:s1 jurisrlicti,..n under the ~ct to try in the Resident Hagis::ca :e's C"urt ca::::e.-; •nhich are I ·, nrdin.u-ily triable by the Hioh c.-.ur'-. 7 and which th~ !Hgh C"urt, may transfer to that c .... urt to be .S" trl~d there. The arnr.nd:nent prr-ceed1ngs c~nducted by a r~si('t·~nt 111agistratew~dth extended deemed t~ have been cr.nducted in acc-rctanc~ with the amended pr--vJsi--ns r.f the ,>.ct. A!)plying tb~ cucrl'!nt law t .. tt--, facts of the case, theref~re, the pr.siti"n is that i•,r.. Mrema, Princip11l Resident Magistrate wh.- was duly. v~.sted w::.t.h .!Xtended jurisdicti"n, is deemed t~ have C"nducted the app,,L.<-'lt' s trial in the Resident . -. ,. , .. ••• /0 ,J;. '' ;: .. ,JlATED at DAR 'ES 'sALAAJ,7 th:.s lo~ day nf 1997. 1.,: ' i ! .•.. ·= .. :::: .. ;. '-~i- \ "'. . ·. 1:· ., . OF APPEAL '· .:{. ·; r.. . -=~-: · '· ··. t· ·t·· ·= •..::7),t~if-1L:i!,;. · ·-~Q •,:.:._c·····.,.: :<!.'.~_~)~.:t;t1:~-.:·~.--.. . '/'. ·: '.J -~ :_:}~: :.· ... OF ,APPEAL . ·' . :H ::·. .::· ·.. -:. J_:· :_:- •: \ • :- \ :.• •• I ' •:· ....·. '., .\; ~:h:1·:,;\it( ,:/(:,:_ \ ·· .r