20000904 TZCA Dar es Salaam2

. ;;;1r:.· · ~; .;._ - ~ ..·• ., -~ '.' 'l' AT H;4ANZA -- ,._,...,_~ ........ ;j (GORA.: 0 ~-"'-rlff"I'•- ~: CRIMINA'l.o APPEAL NO. 58 OF 1995 BETWEEN 1. $AMWEL SAMSON MASATU} 2,. 1IMBU SUNGWA ~ o • o •••• APPELLANTS 3. KUBE SHIWA } I .I ' AND THE REPUBLIC o • • 0 P O 0 •• RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) (~cl~-~nja,_~) dated the 14th day of August, 1999 in 9:-~3 Sessions Case No. 122_,~.£..29-?0 JUDGEMENT KISANGA__,_Y,..!..: , The three appellants \1ere convicted of murder and sentenced to deatt by the High Court (Mackanja, J.) sitting at Tabora. They now appeal against both conviction ·and sentence. They were represented in this cour by Mr. Hatata, learned advocat·e, while Mr. Ndunguru, learned Senior State Attorney, was for the respondent Republic. Mr. Ndunguru did not seek to support the convictions~ Very briefly the background to the case was as follows:- The deceased had made allegations of adultery, with his wife,. against tlte~ . ~-;-~\·. -.: . ...:I,. second appellant, Limbu Sungwa, a fellow villager. The second appellant ··. r. felt defamed by the allegations and l~dged a complaint in the Primary Cow ' for defamation. The complaint was received and acted upon by the first appellant Sarnwel Samson Viasatu, a court clerk, in the absence of the Primary Court Magistrate who was working at another station that day • • 0 ./2 ., 2 I• . t The decea,c_,ed we.s duly arrested by the third appellant, Kube Shija, a member. of the tra.ditional secu~ity force - Sungusungu, upon a warrant of arrest issued by the first appellant~ Following the arrest the first and third appellants put the deceased .in leek up at the ·Primary Court. However, the first a]:)pellc.nt S.3.id thet when L?.ter he ce,me and inspected the lock up he noticed the deceased 1 s leg sticking out of a broken.window indic!3.tive of the deceased -intending to escape. \,Thereupon he removed the d~ceased from the locl: up e.nd transferred him to the court office and locked ·him there .•. · On the fo3..J.•wing day he came :md open,s-d the office only to find that, · according to hfri, the deceased had hanged himself using a. piece 1. , of cloth (ki.tenge) .which the first· appellant h:J.d taken. from him as pa.rt ! of prisoner's property and put in an adjacent store- room th'3.t had .no door. The trial judge found th::it the three appelbnts 3.cted together to execute a. plan initiated by the second appellm1t to ham the deceD.sed. With due respect, however, this was mere conjectu.re •. There was not a shred of evidence to support such a view. For, after the second appellant hc1d lodged his compJ.2.int of being defamed, which act was lawful, he is not · ,showi1 to have done anything eitl1er ·'.l..:.1:~ or ,signifyin~ pG.rt:i.ci_pat.:..:in whr1 I. ! the co-appellants, to harm the deceased. Similarly, the. third appellant II_, after lawfully arr,':!sting the .decw.sed and assisting the firs:t appelle.rit to put hi.111 in the lock up e,t the Primary Court, did nothing e·ither alone I I. i or signifying participa.tion with his co-appellants to harm the deceased.· ! The tr{al judge :L, his judgement found that the third' appellant assisted the first appellant to transfer the dece~sed fr9m ·the.lockup to the officeo. This finding was erron~us. The evidence on record shows that I. I ~- . the third appellant did not particip~te in such transfer, his role in the matter ended with putting the decee,sed in the lock up.. Therefore there was no evidence at all to con..,ect the second and third appellants with the death of the .deceased. . .,./3 3 The c3:se of the first appellant too. is not free from difficulty. The first difficulty ari,ses because, as the trial judgf Iightly found, . . rs •, :. .;,J: .: ,' ~ .· . :. . . cc3.use of ,death of' >the d-ece1~~_ed\_,:[1D;i not esta.blisl\.~d·+ ir:Y'et ·having ·made that l ... • -:· finding the. learned judge proceeded to .convict the appeli@t(s) for i!iurdei< That sounds plainly a contro.diction in te-rms. The :learned judge."s~id th::=tt although cause of death we.s unkno11m he found, nevertheless:, that .deceased died an unnatu3;~l iea~h. This however, does. not answer the question ; 1wha.t was the_ cause of death1:, unnatural, t;hough it inay be. In the. a.bsexice ..of cmy answer tq th8.t question, we increasingly 'think that co.nvicti9n for murder could not be su.sta;i.ned in th~ circUii1$tances of this case. The first appellAflt may hav.e aci;ed wrongly in law in locking up the deeeased.upon a co\pla.int of defamation which was purely of a civi_l nature. That alone, however cannot connect the appellant with the dec::.th Of the deceased. Likew.ise his act of transferring the dErc·ease_d from the_ lock up to the office cannot be taken as implicating him_ with ~he death. For one thing, the appellq>nt would not allow the deceased to be killed in his officl;l because that would openly betray him. His locking him up in the cf·ffre IT'.':.l.J hD.VC been quite :i.li.r.i.0c;Gnt. I'.".1.,.:1.eed the arpej lmt' 5 ~xplr:_,ation could possibly be true thr.1.t he transferred the deceased into that office for security reasons to prevent his escape, and the deceased might have ·. met his death there by means unconnectGd with the ctppell,mt, such as, suicide.- Thus we are satisfied that while there was suspicion against the appellant the ev_idence Rdduced, however, could not 'found his conviction for the murder of the deceased • .i The learned Senior Sta.te Attorney rightly _did not seek to support the e.ppellants' convictions. In the ~esult,. and for the reasons set ~ut ab~\te; the appeal is allowed. The convictions arc quashed and sentences •• ;./4 ... 4 set aside. The appellants are to be released forthwith unless .they are otherwise lawfully held in custody. DATED at DAR-ES-SALAP)1 this 4th day of September, 2000. L. M. i'lfJ(AME JUSTICE OF A::?F-EAL R.H. KI2ANGA JUgTICE OF APPEAL K._S._K. LUGAKINGIRA. Jm;TICE OF APPEAL · I certify_ that this is a true copy of the original. I I·•·· .I