hamisi nzunda and 2 others vs the republic 1999 tzca 10 10 june 1999

IN THE COURT OF APPEAL OF TANZANIA AT USBYA ( CORAK: RAIUDriAI-n:. J .A ,. 5AKATTA. J .A .. And LUGAKINGIRA. J . A. ) CRILINAL APPEAL NO, 34 OF 1995 BETV02N 1. -Cj- s i NZUNDA | APPELLANTS 2. ANDISON TUYAINE 5 ..................... 3. NEU30N TUYAIKB f AND THE REPUBLIC........................................RESPONDENT (Appeal from the judgement and sentence o f the High Court o f Tanzania a t Mbozi) ( Mwipopo, J . ) dated the 12th day o f May, 1995 in Crimi n a l S ession s Case No,67 o f 1991 JUDGMENT OF THE COURT LUGAKINGIRA, J . A . ; The three a p p e lla n ts , Hemsi Nzunda, Anderson Tuyaine and Nemson Tuyaine, were c o n v ic te d o f murder, i t being a lle g e d i n the in fo rm a tio n th at on 1 5 /1 0 /9 0 , a t I s a l a l o v i l l a g e i n Tibeya d i s t r i c t , they murdered one Stephano Zingwa Msongola, The f a t a l a tta ck upon the deceased was sa id to have taken p la ce around, 2 a.m ., the motive bein g r o b b e r y . In c o n v ic t in g the a p p e lla n ts the High Court r e l i e d on the evidence o f the d ece a se d ’ s widow, PW.3 MitereidL Nampashi, who claim ed to have i d e n t i f i e d crim e, the ba n d its a t the scene o f and on th e <dying d e c l a r a t io n which he made a t the v i l l a g e dispensary around midday on the next day. At the hearing o f the appeal the p r i n c i p a l State Attorney Mr, Sengwaji join ed hands w ith c o u n se l f o r the a p p e lla n ts I£r. Ivibise i n d i s c r e d i t i n g the d e c i s i o n o f the High Court. ..,/2 2 We have given s e r io u s and c a r e f u l c o n s id e r a t io n o f the evid en ce and. we s i m i l a r l y think the d e c i s i o n cannot be supported i n law. We b eg in w ith the a s p e ct o f i d e n t i f i c a t i o n upon which PV7.3 was the o n ly w itn e ss. On the m a te r ia l n ig h t she was s l e e p i n g i n the main house while her husband, the deceased, and a gu est, one Mbosa Mpembela, were s le e p in g i n another house. She claimed th at around 2 a.m. she was awakened by n o ise i n th at oth er house. She g ot out and saw the a p p e lla n t s dragging the deceased out and hacking him w ith a bushicnife. There was m oon ligh t. As she r a is e d alarms she a l s o advised Mbosa Mpembela to e s c a p e . But t h i s eviden ce was c o n tra ry to what the deceased t o l d the v i l l a g e chairman, PW. 1 Mtaulwa Mkundilwa A n su li, at the v i l l a g e d isp e n sa r y . The deceased t o l d him th at the a s s a u lt took p la ce i n s id e the house. Secondly, PW.3 t o l d the d e ce a se d ’ s son, PW.2 Jackson Llsongole, th at she i d e n t i f i e d the a p p e lla n t s by t h e i r v o i c e s when they were demanding money from the deceased. I t i s th e r e fo r e d o u b tfu l whether she a c t u a l l y saw the in v a ders and may very w e ll have l i e d when she claim ed that they a l s o came to a tta c k her. T h ird ly , PW.3, whom th.o- t r i a l judge d e s c r ib e d as an o ld r u r a l woman, named the p erson s she p urported to have i d e n t i f i e d as Ngoni Nzunda, Mhaya Silw ina and Y ila Silw ina, which she claimed were the a p p e l l a n t s ’ ch ild h oo d names. The a p p e lla n ts denied to have been known by those names and, apart from the word o f P'7,3, there was no evidence to c o n t r a d i c t them; i n f a c t the f i r s t a p p e l l a n t 's fa t h e r , DW.4 Samson Nzunda, came to say th at h is son was named Hamisi (a p p a re n tly pronounced ;'Hemsi!’ ) at b i r t h and was never g iv t n another name. F i n a l l y even PW.4 D /S gt, Ephraim who took PW.3’ s .../3 3 statement was unhappy about her claim to have i d e n t i f i e d the in v a d ers and s a id : P ,/* 3 's i d e n t i f i c a t i o n o f the accuscd was not quite c r e d ib le and when she nanod the accused b e fo r e me there was someone who was i n t e r p r e t i n g to me when w r it in g the statement* That f,som2 one:: was not c a l l e d to t e s t i f y . I t seems to us that the on ly person to name the a p p e lla n ts as they are known was the deceased, and i t i s on r e c o r d that PW.4 was g iv en those names b e fo re meeting PW.3 by one Epson Yohana Mhango who r e p o r te d the i n c i d e n t at the p o l i c e s t a t i o n . In a c c e p t in g the eviden ce o f i d e n t i f i c a t i o n the t r i a l judge s a id : The n ight was m oonlight, i t was ou tside the compound, the a tta ck was p rolon ged f o r a lon g time, the a tta ck e rs came to b ea t the PW.3 to o thereby e x p o sin g themselves to PW.3 even more c l e a r l y at a c lo s e range than b e f o r e . Both P'7.3 and the deceased knew the a ccu scd b e fo r e the in c id e n t i n c lu d in g t h e i r names. Whereas PW.3 named them i n t h e i r ch ild h ood names PW. 1 heard t h e i r names from the deceased i n t l i e ir p resen t form and ordered f o r t h e i r a r r e s t u sin g t h e i r p resen t names and they turned out to be the same persons named by P'7,3 i n t h e ir ch ild h ood names . . . I b e l i e v e l i k e she (P J .3 ) did th at those y o u th fu l names d id e x i s t and were used to c a l l the 3 accused as e x p la in e d by PW.3. DW.4's testim ony to tiic contrary concsrning the 1st accused comcs from a p a r tis a n fa t h e r . . . .../4 _ 4 We th in k , with, r e s p e c t , the learned judge would have h e s it a t e d to make these a s s e r t io n s had he f u l l y and p r o p e r ly d ir e c t e d h im se lf on the evidence as a whole* He did n ot r c v o r t to the d e c e a s e d 's in fo r m a tio n to PW.l th at the a tta c k took p la ce in s id e the house as opposed to the open compound; he did not r e v e r t to the eviden ce o f PW.2 th at PW.3 t o l d him th at she i d e n t i f i e d the a p p e lla n ts by t h e i r v o i c 3 S o n ly . Perhaps i f he had done so he would have found PW.3 a l i a r . Moreover, i t was not a v a ila b le to the lea rn e d judge to say th at the a p p e lla n ts ::turned out to be the same persons named by PW.3i! i n the absence o f an i d e n t i f i c a t i o n parade. We agree w ith Mr. Sengwaji that a parade should have been conducted i n order f o r PW.3 to i d e n t i f y those persons she knew by t h e ir ch ild h ood names. The lea rn ed judge was a l s o impressed by the f a c t that PW.3’ s d e s c r i p t i o n o f the blows n oted on the deceased t a l l i e d c o n s i s t e n t l y w ith the nature o f the wounds d e te c te d on the d e ce a s e d ’ s body. We see no s i g n i f i c a n c e i n the c o n s is te n c y sin ce PW.3 had had s e v e r a l hours to observe the wounds; she cou ld d e s c r ib e or make up the type o f blows oven without s e e in g the a t ta c k e r s at a l l . There were oth er claims that put PW .3's c r e d i b i l i t y to doubt, such as saying that PTV. 2 ta lk e d to the deceased whereas i n f a c t he found the decease, i a lr e a d y s p e e c h le s s , but we need not l i s t them a l l . We are s a t i s f i e d on the whole th at had the learned judge p r o p e r ly d i r e c t e d h im s e lf on the evidence he would have found i t unsafe to r e l y on PW.3. We come to the dying d e c l a r a t io n . I t was t e s t i f i e d t o by PW.l the v i l l a g e chairman. He s ta te d th at he a r r iv e d at the d isp en sa ry around 11.30 a.m. and t a Heed to the .../5 _ 5 deceased who named the a p p e lla n t s as h is a t t a c k e r s . Soo: a f t e r the deceased c lo s e d M s mouth and d ie d . As a gen^' r u le a c o u r t can a c t upon a dying d e c l a r a t io n i f i t i s s a t i s f i e d th at the d e c l a r a t io n was made, i f the circum st" nces i n which i t was made give assurance to i t s accuracy, and i f i t i s i n f a c t tr u e . In h is judgment the tria l judge did not r e v e r t to any o f these f a c t o r s and did not make any fi n d i n g s i n r e l a t i o n t h e r e t o , but no r o l y re co rd e d th a t the deceased ta lk ed to or was heard by PV/.l and o th e r p erson s make the d e c l a r a t io n . 7e wish to c i t e the ju d g e 's own words to demonstrate the e x te n t o f h is m i s d ir e c t i o n . He s a id ; ... the dying d e c l a r a t io n o f the deceased has been t e s t i f i e d i n cou rt by PY/.l the v i l l a g e chairman one Mtaulwa Mkun&ilwa Hansuli. Ho went to see the deceased at the disp en sary on 15 /1 0 /9 0 and ta lk ed to him. The deceased t o l d him th at h is a t ta c k e r s were Heinsi s / o Nzunda the 1st accused, Anderson s / o Tuyaine the 2nd accused and Nemson s / o Tuyaine the l a t e r ( s i c ) two the deceased said were r e la t e d to the d eceased. He sent f o r the m i l i t i a to go and a r r e s t them. The oth er person who heard the dying d e c l a r a t io n o f the deceased was P^Y.2 Jackson s / o Msongole the son o f the deceased . . . The deceased t o l d him about the ep isod e and named the 3 accused persons as h is a s s a i la n t s . Having f a i l e d to c o n s id e r the th ree f a c t o r s sta te d above, we think the t r i a l judge m a t e r ia lly m is d ir e c te d himse_f i n a c t in g on the evidence p e r t a in in g to the d e c l a r a t io n . Hi.s m i s d ir e c t i o n i s amply demonstrated i n the f i n d i n g that the d e c l a r a t io n was a ls o heard by PW. 2. PW. 2 was not at home or . • -/ 6 6 the n ig h t o f the a tta ck and found the decoased a lrea d y taker to the d isp e n sa ry . And, i n h is own words, :\7hsn I went t o h o s p i t a l ny fa t h e r could not t a l k , ' 1 The judge a ls o s ta te d th at the d e c l a r a t io n was heard and b e l i e v e d by {,the ten c e l l le a d e r Epson Yohana Khango . . . th at the accused are the ones who attack ed the deceased . . , - This Mhango was i n f a c t not c a l l e d to t e s t i f y . The r e c o r d merely states th a t he wassent by PW.l to r e p o r t the i n c id e n t to the p o lice . I f he named the a p p e lla n ts at the p o lic e s t a t i o n , and P17.4 sa id th at he d id , i t may w e ll be that he was g iv e n the nrmes by P.7.1. For our p a r t , we turned to c o n sid e r the three f a c t o r s . 7e have no doubt that the deceased made the d e c l a r a t io n i n view o f the evidence o f PW.l: however, the circum stances a tte n d in g to the d e c l a r a t io n have o c ca sio n ed us c o n sid e ra b le d iffic u lty . F irst o f a l l , the a tta ck took p la c e around 2 a.m. but the deceased i s n ot on r e co r d naming anyone u n t i l about 11.30 a.m ., th at i s more than nine hours l a t e r . There i s no e x p la n a tio n f o r t h i s long s i l e n c e i f i n f a c t the deceased i d e n t i f i e d the a p p e lla n ts at the time o f the a t ta c k . Secondly, the deceased h im se lf t o l d PW.l th at the a tta ck took p la ce in s id e the house. There was no evid en ce o f any l i g h t i n s id e the house. PW.3 s ta te d that the a p p e lla n t s had to r c h e s but we have a lr e a d y h eld that her c r e d i b i l i t y was q u e s t io n a b le . There mi^ht have been m oon ligh t, a l r i g h t , but t h i s cou ld not p o s s i b l y p en etra te i n t o the house. We are l e f t with the on ly c o n c lu s i o n th at the p r e v a i l i n g circum stances were n ot fa v o u ra b le f o r accurate i d e n t i f i c a t i o n . And f o r a l l th a t we have sa id about PW.3, her evidence cannot be taken to co rr o b o r a te .../7 the d e c l a r a t i o n . I t i s th e r e fo r e d i f f i c u l t to say that the d e c l a r a t i o n was tr u e . Some o f these d i f f i c u l t i e s would p r o b a b l 5r not have a r is e n had the p r o s e c u t io n c a l l e d Mbosa Mpeinbela who had s l e p t i n the d e ce a se d ’ s house. Attempts to f i n d him proved f u t i l e and we do n ot wish to draw any adverse in fe r e n c e f o r h is n o n -p ro d u ctio n . However, the p r o s e c u t io n could a ls o have c a l l e d one Fyukila Mpembela who was f i r s t to respond to the alarms th at very n ig h t, but f o r unknown reasons he was not c a l l e d . The p r o s e c u t io n could again have c a l l e d one Andrea Mwilenga, the 10 - c e l l le a d e r who took the deceased to the d isp en sary i n the morning but he, t o o , was not c a l l e d , and ag a in f o r unknown re a so n s. On account o f a l l the u n c e r t a i n t ie s p e r t a in in g to i d e n t i f i c a t i o n and the dying d e c la r a t io n , the a s s e s s o r s who sa t w ith the learned judge d e c la r e d that the evidence was weak and ad v ised him to a c q u it the a p p e lla n t s . We think they were r i £ i i t 3 i n view o f a l l th at we have s a id , we think the judge should have taken th at a d v ice . The burden was upon the p r o s e c u t io n to prove the case a g a in s t the a p p e lla n ts beyond reason ab le doubt but t h i s burden, i n our view, was not d isc h a r g e d , ',/e a llo w the appeal, quash the c o n v ic t io n s and se t a sid e the sentences o f death. The a p p e lla n ts should be set a j^ L i b c r t y ^'jsfchwith u n le ss they are fu r t h e r held on som6 oth er la w fu l se , / ' f t DATED at EBEYA this/ 10th day of June, 1999. 8 A.S.L.RAKADKANI JUSTICE 0? APPEAL B.A. SALATTA JUSTICE OP APPEAL K , S . X . LUGAICE NGIRA JUSTICE OF APPEAL I c e r t i f y that t h is i s a true copy o f the o r i g i n a l , ( A.G'. ’ISVARIJA ) DEPUTY REGI STRAR