19981023 TZCA Dar es Salaam 1

IN THE COU~T OF APPEAL OF TANZMIA AT DA~ ES SALAAM (CORAM: I"IAKAME., J. A. t RAMADHANiz J.A.' And MFALILA, J.A.) CRIMINAL APPEAL NO. 204 OF 1994 BETwEEN LUCAS HASSAN MWAMBA • • • • • • 0 • • APPELLANT AND THE REPUBLIC • • • • • • • • • • RESPONDBNT (Appf\!al f..-,,m thft c1~ci'sion of the High coul"t nf Tan1111n1~ ,st Mo,..09,:,ro)- I (KyBn({o, .r.) nated the 29th day of July, 1994 in - -·c:;r;iminal Sessions Case Ng.55 of 1988 JUDGEMENT. ' RAMADHANI, J.A.: The appellant, Lucas Hassan Mwamba, was con~icted of murder c/s 196 and 197 of the Penal Code,.Cap 16, and was condemned to j suffer death. He, has preferred this appeal. :.~,: ;:.~ ---~"' . t. : The appellant was living with his two wives,· Anatoria Mihayo' /•,•) (PW.t) ann Doti~a namas (PW,3), at Msemula Village, Kilosa nistricto ·~\ ,:, The appellant hal1 IJDne awl!ly i,e.aving. _P-W.-1 pNtgraant and on his return :1l ., i... . , ~I ; he found her. with a. bahy. It was the evidence of PW.;·1,· PW. 3 and also Lomjo Hassan Mwamba (PW.2), the younger brother. of the appellant,. who was· also living iJ: the same house, that the appellant was disturbed by the fact that the· baby was black. ~i' 1 • I On the Sabasaba day of that year,· 1987 ;· the appellant,-· PW. 2 J: .-·~···,,. "· .,.- ~ '('\ ... and PW.3 went to the festivals. The appellant was the last to - <u. return home in the late 'hours of the ~ight anc1 was let into the· house by PW.1. After.··some time PW.t went out and upon her .return she found the appellant sitting on the ba1'y•· s bed.·· The appellant reiterated his comm"mts as to the complexion of the bab-y and i" ,,. .... /2 ! ..... .· ♦ I· . . 1' 2 . ·d'etiianded to know ·who if'; fattie.- wa_s. -~--- ---·-· pw. 1 noticed that the baby haci been stra~g-ied and 'that it was · dead.. She star.te·a to cr:y but she was be~tf.,n by the appellant and ord~reii-not_ to cry. When PW.2 and PW.3 tried to ente.r. the room the matter was, of the _appellant and_ PW.1 to find out what they I were scared off by the appellant who :·was brandishing a knife. j PW .. 1 managed to sneak out but she feared going to any neighbour .... as they were some distance away. While still out .and per.plexed, PW.1 saw the appellant emerging from a bush. · She ruslie.d back into the hOUII~ ant1 W~lil rP.c:eiv1;1c1 by an .(mpt:y cot. T't)P. appPllant rti!fused to disclose th~ Whe-reapouts of the cor.pse to anybo~y even. his ten house cell lP.ader, Gauoence Pangulinga (PW.4) ·- 'Innis defence, tn'e-appellant acc:epted that the baby was dead but he alleged that the death was caused by ce~bral malaria, commonly refer.-ed to as degenegP.. But the other three inmates of the .house testified that the baby was very heal thy that fateful day. However, in an extra judicial statement, thP _appellant admitted to have killed the baby. .,., The appellant was represented 'by _Mr. Mselem, learned advocate, who abandoned the fir.st two grounds of app al a~d only argued the 0 thirdt I '!'hat t~ ll!&t"l'.U!d' tt"ia 1 ju11.ga ert"ed in fact·and in law in failing to receive and conside~ the report.on appellant's insanity.____'f_h~ p..-oceedings 11Jp.,.e a mi str.ia1~ Mr, Msele1n1 correctly pointed out th~'t: on 21/4/1989 befor.e BAHATI, the l"?arned defence counse1 Mi-sa Kaaya,. was gt-anted her prayer that ·· the appellant be sent to a mental asylum for the ob~ervatio~ of.his mental state. 6n 6/12/1989 when the case came before MAPIGANO, J.i .• r ••• /3 ·- I .... ·.:':.' '. ~'!':'". . 3 .'i - . '.it was adjourned becausP. th?. cou·,:.,t· observeti that "the. accused ·is still dett,1ned at:_ I Htioa "• HoWf!!.~•1", on 4/~/ti9·~, that is-some...-.29 months later, . th~ case came bef~re KYANOQ, J .. and the .. appP.llant was present but there was no mention of his mental s.tate • .the. casevrcrs-··attj"otn-ned bi?cause croci·al witnesses had not appeared. 'The trial commenced. on 4/5/1992 but without.mentioning the.mental s:tate of the. a~pellant, nor. wa~ ~ medical report fro~ tbe Isanga . .., Institution produced. Mr. Msj:llem submittPc, that that c...,nstitute~ lli.Qtrial 1111;•'-. . and prayed . for r-etrial •. -~v. ·-er ·,, On behalf of the Pe.sponrlent/~epublic was Me~· Korosso., · 1e~rned· /~~ ·. • "'r .. :·, State Attorney, who sai~ that the issue of insanity was not raised ' at . ~hP. hearing. In any case, she submitted, if there was a medical rif.•, report as to the· mentl!ll stat:e of thP ac;:cused pe,.son., · it had to be ., eval\:l-a-t:ed J:)_y_ the c:ourt _whieh had to mtte its own decision on the . . :rn addition_, Ms. Korosso contended that s. 388 ( 1) of . ' ' matter. . o· ~:,t the C~iminal Pr.ocedure Code saves the situation. --~ ._,.,_ There a~ two situations in which the issue of insanity could .,<::· --.:.·•. b"? raised: as a,.defence t,o a charge of murder a_rguing that at· the time of committing the offP.~~e th~ accused per~q~ was insane, or ·' as a ba~ td a tt-ial arguing that ~hP accused per.son is incapable i ·-1~ of standing trial. The tenor. of the a~gument of.Mr. Mselem was insanity as a ~efence to the charge of mur~er an~ that was why he complained that dP.f,;,nce witnesses who were going to prove insanity ,, . .r ~f the appellant were not c~lled to testify. f I: r fI ' ' ! ;.'.' I ,~ I . Isanga because his defence counsel was doubtful whether. or not he. '. was fit to stand trial. ~l'.'s. Kaaya had this to say': ••• /4 ' ............ . "."" ~--------- :·:>i ''..., . ·-:-: "• •• ·the accuse~, app_e~rsJ:c::> me. tq bp. ~f unsound mind in that I. cannot communicate ... ~ith him. He does not app·P.ar to-understand . ' anything which' I te.11 ·- him or ask him. He . is in ~y submission incapable of making any ,,,,.fenct.h In that case I __ P,...t1Y that thn 11ac1.1aod hf.• &Brat to-hospitd for observation a•- to )1is• :unsoundness of.•mind"-. (emphasis supplied) 0 ·-In-our opirilon insarii"t:y--was· advanced as a· bar to tr-i~ l' be-caUSP; the appellant could not d~fend himself.· Un:ortuna-tel:.y·~/he ?earned trial judge took it as a· defence of insani'ty and immediately ordered the appellant to be taken. t9 Isanga. What thE! learned Judg~ ought to have done . was to proceed with . the he a ring of the case t'or the prosecution and when he· decided that there was· a ·case to answe; r· '. then he should have ordered the appellant t.o be ,sent to. lsanga .-; [s. 216 (3) of thP. Criminal P~ocedure_ Acy' a~d would only have continued with the trial or start it de novo, as the. case might I .. have been, if there wns a madi(;al -report tha_t ~he eppeilarit wa-s ... I I fit t~ stand trial (S .. 216 (8)) •. That was· not a.one~ .._ NQw...,_tb_¢ question i~ __!'h~~hP.r. that omission has "occasioned failure of justice" and so we should order retri.al un~e-r s. 388 .. of th!!! CPA. The r@corcf-shows that aftP.r the close of ·the casP. for thP. prosecution, the 'appell.ant. was addressed as requirP.d. J;>y .s. 293 of the CPA and he stated "I,will.. testify on oath •. ·I·have·.one witness to call". A person who 1s· insane at th~ time of trial w:,uld not have responded ~o~ .'8ut thaf is r,~t all, tho appellant ' went on to give a lud.o account of hi!i si<ie of thP. story and · \ intP.lligently answered all ttiP quP.stions put to him... His answers also showed thet hn 1Jtlr1f!"4'5toor, eind t'l.&ffiGmboMd ell· .that._the four prosecution witnessP.s -'.had said and- either agreec'I with them ·or contradicted them as he deP.med appr.,:,priate. - ••• /5 1· 1 l .,I ---◄- We are satisfied that there was ~ot an iota of mtscarriag~ ju.Stice· and s_o we sP.P. no r.Pason at all to or.der a re~rial. Having . 1 • I " ·. t ' · I said so, we must say tha~ the guilt-of the appellant ras proved I . l We· cannot fault thf• lea;rned trial bP.yond any reasonable do1bt., .. I I ju~ge_ in any way •. We• therefo~,.. find no merit at al,l in this appeal end we ~1sm111 1t:1n its entir~ty. I I I ' 1998.· DATED at DA"R ES SALAAM this. _23rd day of· October, I ' ______ .,; i .• I i L.M •. MAKAME JUSTICE OF APP.EAL ; ·1 ' 1 I-ee.r:.tif.¥-that this is ~-~:u:- copy of the original. ' i 7(•L· ( A• G. . . A'R.IJA ) I • I ''I I 'DEPUTY 'R.EGIS~AR .. \ . I 1 I 1· I .t