20000904 TZCA Mwanza

•-~~-~~,-~,,~,~,--~--~1•· ) Cf \. ~ 'it ., ' '.' .-'i: IN 11'.KG counT OF APPEAL OF TANZANIA A'l' Mt'ANz;A ,----'i;--'-•"'- (fQ~l: li~~~.2..-{±1-li.lii!\.EQA ,.2~\!~.AI}._d....~9..fl.IQi{9JB!,~.}±) ~>- CRIMINAL AFPBAL NO. 222 GF 1994 AZIZ A.'E·lli.MAN @ BUYOGERA. o • 0 O O O 0 • APPELLANT AND TI-Illi P3PUBLIC • • • • c,oooooc:,o • P.:t:;SPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) dated the 11th day of November, 1991+ in SL:r.~.?P~!~I-~~~,S.?:9!,1.S,._q_~?.tJ!~!-~~1,9....._'2.,f_, ••192.Q JUDGEMEN'l' OF· 'rilli COURT LUGAKINGIRA., 'J .A.~ u• ~,....._-~_.,.._....__ On the afternoon of 3/10/88, a bus TZ 81749, christened §__l!P.~. Star, was travelling from Kigoma to Kasulu when it was ambushed by a ga..'1g of armed and masked robbers. They robbed the passengers, killed one and injured several others, but the deceased, a male adult, was never identified. Investieations into the incident led to the arrest of the appellant·, AZIZ ATHlJ1,1AN BUYOG.i.~I<.A, and four other persons who were charged with the murdero v1hile the others were acquitted at the close ' of the prosecution case, the appellant was subseq_u.ently convicted and sentenced to deat}~. The most crucial evidence again'?t the appellant consisted of his identification by PW3 Cajetan Anthony Ly:imo, a passenger I in the ill-fated bus, and the appellant 1 s exti:-a-judicial statement, Exh .. 1B 1 , in which he admitted participation in the robbery. In'this appeal the Court is invited to revisit that evidence and. the findings of the High •~ourt thereono -•-.,.*"''""----~q•~-., r au zo ,..,.., ...... - T ··· - · •~ · - - - - · - ¥ .. a;• A • •• •• _.,._ _ , 2 • 'rhe learned trial judge (Katiti 1 J .) described the incident as tragic, terrible and sadistic, and commented that 1 ·not even Hollywood has invented such epic-tragic oriented movies ♦-" .I1his characterisr,tion W'dS not without 1 justification. When the bu8 arrived in the Mkuti area, the robbers suddenly sprang onto the road, one of them firing a sun. The driver brought the bus to a halt and he and his conductor made good their escape• A member of the gang wLo held a knife 1entered the bus and ordered. the passengers oute 'l'hey disembarked amid gunshots and were ordered to lie faces do;.-m, close their eyes and undress. ·rhose too slow to comply, notably the females, got assistance from the knife-wielding thug who cut their pants. Meanwhil0, money, watches and other valuables were collectedo The ran.sacking over, the p2~sengers were ordered back into the bus, naked as they were, and the bus was ordered off., But the driver had escaped, therefore a n2,ked passenger, PW1 Simon He_ta, took over the wheel and delivered at Mayange village a bizarr~ spectacle of traumatised passengerso fW3 and the appellant lived in the same locality ·of Kigoma town and. had knovm each other fer well over a year_, although the appellant denied tniso The appellant worked on buses and used to promise spare parts to PW3 if ever he needed themo Indeed. around 9 a .m • on the fateful day the appellant sold a Bedford windscreen to PW3 al though he was not in need of one. The witness, an authorised accountant and auditor in private practice, recounted that apart from the.man with the knife, there were _three gunmen at the scene - one was firing and his colleagues called him gun, ::Kichaa::, the second was not, the third had what looked like a toy L greenish in colour o As PW3 was sccmipering onto the bus following the order to embark, (.Kichaa 1' recognised him and dashed at hjm to attack but he was restrained by his colleagues \vho had. recognised Hi3 earlier. In the struggle that ensued, PW3 was hit and injured on the left ear by the butt .of the assailant's guno He fell dO\-m, d.rar;ged himself underneath the o• ,/3 3 bus and ensconced himself atop the •·diff •. : What followed is better told in his own words. " .. Kichaa went around o o. Every time he wanted to look under the bus the po.per mask rr.acl.e it difficult for hj.rn to see. So he dee ided· to remove the mask, to look 1::here I could possibly be. I then looked at him, and identified him, and said to myself, ·.:Kumbe ni Azizi rafiki yangu a.nataka kuniua?i· Azizi is the first acc-.i.sed,. I saw him and he saw me. This gave me courage, I crawled out of,the bus 1 helped the woman who had her thigh shot into the vehicle. '!.'he first accused saw me help the woman, he could not shoot, and others did not shoot at me, I no ;longer had my eyes closed, we were all ri_aked o ~ • ide left the deceased there, v~e got into the bus safely. Later at night as he lay i.."rl hfa bed, there.was a knock at his window. A voice said: ,;?Jizee Lyimo tunatambua · ~ewatambua majambazi yaliynkupig:·., ole wake ukitutarnlr-a, ·• and another added: .iNa watoto wake tunawatambua, tuk.imkosa yeye hatutakosa watoto.'· 1 Ind~ed ., although he reported to the ' police early, he refused to n,ention anyone until the appellant was arrested for fear of his life. He said~ 1 ·,,r was afraid these Junior '1 Police Officers wouJ.d spill the beans o Senior Police Officers never called me either.i· , The learned trial judge and the assessors were unanimous in finding PW3 credible. They observed that the ind,'.,ident took place in broad daylig:it and the witness knew the appellant well. At: the hearing of the appeal, though, Mro Nasimire who appeared for the appellant argued that there were contradictions between PW3 on the one ha11d and PW1 and PW2 Angelina ••• /4 ,.,. ':•'·-····"."'"· ..... ~ 4 Kokwitika Mali.'lgumu on the other, and that HO could not have found refuge atop the 1·diff;, wb<m the order to drive off had already been given. In his usual concern for niceties, Nro Nasimire listed seven or so so-called contradictions but whicr~ in fact were differences between PW3 and the two witnesses. As a sample he said that PW1 and PW2 did not mention the struggle between PW3 and ·,:Kichaa1:, ~id not mention PW3 hiding under the bus, did not mention tbe appellant removing his mask, or did not say that P\v3 helped an injured woman :L.'lto the bus., The overall problem is that learned couns0l could not see that this was neither a picnic nor a stage show but, according to all the three witnesses, shooting w~.s going on all the t:i.nie., It was csmfusion at the time of· embarkation and. it seems that intuition rather than_reason prevailed. Furthermore, it is apparent that 1-:,iarned counsel overlooked other cviC:.ence that Pvl3 was last to embark and t:hat, according to Pv/1 1 passengers were ordered to lie u.11der the seats once they were inside the bus., Giv~n this and the panick that charact~rised the embarkation, it ·is hardly surprising, in our vievi, that PW1 and PW2 never become aware of PW3' s experience. 1:Je think, on the whole, there were _no contr::..dicti.ons of any consGc~aer.r-s. Beg&.rdin~ :PW:',,.. _,,,..t ')f er~.s~oncing atop the i:diff", we agree with Mr. Ndunguru, learned Senior State Attorney, that it could not lmve been out of choice in the wake of the blow on the head which sent him sprawling. Mr. N:asimire also found it unclear why PW3 did.: not name the appellant immediately but we believe the evidence cited above, to which the trial judge also re:t·ei-:red; makes that clearo While unexplained delay to hame a suspect may justify fears on the veracity of a witness, it need not be so where there is a plausible explanation. It is no secret that in this country not many people are prepared to count on police confidence. In all considerations, t~er8fore, we are unable to fault the finding that PW3 was a credible witness• .... /5 ... ·~·•: ....... • 5 Once it is accepted that PW3 was credible, it becomes unnecessary to consider the appell&11t 1 s extra-judicial st0.tement, but we will do so for particularly one reason. It transpired at the. trial that the original document could not be traced and the trial judge admitted a certified copy as Exha l,B1: under ss. 65 and 67 (1) (c) of the Evidence Act, 1967. Mro Nasirnire contended tha.t ~xh. 1•B•' was not secondary evidence and therefore not adm'issible under So 67 ( 1) (c) because it v;as t;.,..pe¼Titten and not sig,·nedo Although he did not elaborate further, it may be desirable to state the position briefly5 The record of committal proceedings in which Exh.• 1•B•i was comprised, was duly signed and authesticated by the magistrate as required by s. 256 of the Crimi.vial Procedure Act, 1985. Although the magistrate did not thereby subscribe his signature and certificate on each document individually, we are satisfied that the collective authentication was sufficient certification of eacho A certified copy of a docwnent is secondary evidence under s. 65 (a) and such evidence is admissible in the circumstances set out under s. 67 (1) (c). 'l'he genuineness of such a copy is presumed under s. 88. How a copy ought to b<'l produced depends 0::-1 th'" definition of 1 'dor::ument;·.. Ui::ler s. 3 (1) of the Act, a doc1.m1ent means, inter alia, any writfag, handwriting; printing and every recordfog upon any tangible thing. That covers .Exh. •1ff• in this .case. Asswning, on the other hand, that by reference to absence of signature on Exh. :.B:, learned counsel had in mind the signature of the appellant, it seems this was a legitimate observation since the appellant denied signing even the original. Looking at s. 67 (1)~ it is apparent that secondary evidence niay be given of the contents of the or,iginal docurnent 1 but not of its sign2iture: cf .• Sl-u~K/.R'S LA\·J OF :'1:VIDENCE, 12th Ed., P• 603 and the authority cited thereat. We think, however, that other evidence like direct oral evidence of a person who saw the signature · would oe admisGible for the deficiency on the copy. In the case before us, ••• /6 6 the Justice of the Peace, PW5 A.H. Kubezya, caw the appellant sign the original o.nd sto.ted so in his evidence. He was believed by the trial court and we have no cause to differ. \-!e are satisfied on the whole that a copy of the extra-judicial statement was properly admitted :in evidence. In the sta.tem,mt the appellant admitted taking part in the robbery and attributed the shooting of the de,sed to one of his colleagues, but he repudiated all that at the trial, stating that he never made any statement, but alleging police torture even in the very presence of the Justice of the Peace. !fr. Nasimire therefore raised questions of vollmtariness and corroboration but we think these matters vere adequately dealt with by tn.e tri,?-..J. judge. The learned judce found that the adrnissions were made and the.t they amounted to a confession to the offeace, and believed the JP that - the accu.s0d narrated his story freely I willingly and voluntarily while seated :in front of him in his office afte:c· the escoTting officers had been told to move out., After carefully exz.mir.t.ing the evidence, vm have no reason to fault that finding; and so long as the confess ion Was voluntarily made in the ' :i.!n,";1ed.iate presence of a magistrate, s. 28 operated and the confession was correctly proved against the appellant. l-"'inally, the trial judge found that the extra-judicial statement a.11d the evidence of PW3 were .is:L..1ilar, if not identical;•,. That is true; for instance, the appellant 1 s descriPtion of how the bandits I ~ were armed, tallied with the evidence of PW3 to which \•1e have referred. Since we have held that PW3 was rightly believed, we find overwhelmL11g corroboration of. the appella.nt's story .•.. • 0 ./7 7 In the final result 1 this appeal has no merit nnd must fail. It is dismissed ~ccordi...-1.gly o DATED at DAR lS SALAAM this 4th da7r- o:t _.September, 2000. JU.:-;TIC:V:: QI:' AFP:;J;P.L o::o.•.c-:,._,. •...r• .. o..,·• ,_,..,...4_.'-L~-»••,.; .,.. .. _ _.._.,. JU_; TICE OF AFPEAL n--.•_..,_.,.._.. , _ ................-._-,--.....,:,~_. : K.S.K.LUGAKINGIRA JU;..;TICE . .... .... ..-. ..: , ----···-~--,; OF ..../u·'Pii.:AL .,,....... ~ I certify that thi.s is a true copy :of the original. DEPUTY REGLS'l'f'ZA.1:'1