20050303 TZCA Dar es Salaam

J t· ,, .. .,.,. IN THE COURT OF APPEAL OF TANZANIA • AT DAR ES SALAAM i (CORAM: LUBUVA, J. A., MUNUO, J.°A. AND NSEKELA, J. A.) CRIMINAL APPEAL NO. 134 OF 1999 BETWEEN 1. PAUL BUNDALA 2. JULIUS SUNZULA ................................................... APPELLANTS AND THE REPUBLIC .............................................. : .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mrema, J.) Dated the 15th day of September, 1999 In High Criminal Sessions No. 45 of 1990 JUDGMENT OF THE COURT ----------------------- LUBUVA. J.A.: · The appellants, Paul Bundala, Julius Sunzula and another, Richard Clement, who is not a party to this appeal, were charged with the murder of the deceased, Petro Chonza, contrary to section 196 of the Penal Code. The appellants were convicted as charged while Richard ( 2 Clement was acquitted. From the conviction, this appeal has · been preferred. From the facts as found at the- trial, the background of the case is · a follows. The deceased was a resident of Pangani Vilage in Kibaha District. Among other properties, he owned goats. The deceased's sister, Elizabeth Chonza (PW5), also lived near the deceased's homestead. On or about 8th September, 1987, the deceased was no longer seen at his house and his goat also disappeared. The body of the deceased was found buried near a water pond down the-valley-about 100 paces from the deceased's house. The body was exhumed on 12.9.1987. On 8.9.1987, the appellants were found with the deceased's 40 goats at Vingunguti Cattle Auction Centre, within the outskirts of Dar es Salaam. Apparently, the appellants were in the process of selling the goats. As a result of the appellants being found in possession of the 3 goats, they were arrested and charged with the murder of • the deceased. At the trial, the first appellant, Paul Bundala, and the second appellant, were referred to as the first and third accused respectively. Richard Clement, who, as indicated before, was acquitted, was the third accused. In their defence at the trial, the appellants denied any involvement in the murder of the deceased. The first appellant, Paul Bundala, admitted that he was arrested at Vingunguti while on his own errand. He claimed that he met the second appellant at Buguruni Police Station. Likewise, the second appellant, Julius Sunzula, denied the charge. He said he was arrested at Vingunguti and taken to Buguruni Police ·Station from where he, and other suspects he did not know, were driven to Kibaha Police Station. On 12.9.1987, he was taken together with the other suspects to the scene of crime at Pangani Village accompanied by Police men. 4 The learned trial judge was satisfied that as the • appellants were,-; found in possession of 40 goats, the property of the deceased which were stolen when the deceased was killed, the appellants were presumed to be guilty of the offence of murder. In the event, the appellants were convicted as charged. Mr. Ndolezi, learned counsel, represented the first appellant, Paul Bundala. The second appellant, Julius Sunzula, was advocated for by Mr. Rutabingwa, learned counsel. While Mr. Ndolezi, for the first appellant, filed an e~ght-point memorandum of appeal, Mr. Rutabingwa, for the second appellant, filed a four-point memorandum of appeal. From the totality of these grounds, it seems to us that the following are the major points of complaint raised: First, that it was erroneous on the part of the trial judge to find that the appellants were ·. found in possession of the goats at Vingunguti, there was no evidence in support of this finding. _Second, the trial judge erred in his finding that the persons . 5 found with the goats were the thieves who killed the • deceased. Third,·'the trial judge wrongly invoked the doctrine of recent possession in finding the appellants guilty of the murder of the deceased. Fourth, the trial judge erred in construing section 33 of the E_vidence Act, 1967 because the second appellant's statement was not a confe-ssion. Fifth, that the trial judge erred in finding that the appellants led the way to the place where the body of the deceased was buried. Mr. Ndolezi, learned counsel, for the first appellant, was firmly of the view that there was no cogent and reliable evidence to prove that the first appellant was found either with the goats or the permit, Exh. P.7: According to Mr. Ndolezi, one Juma Salum who had brought the appellants together with the goats to PW6, Ahmad Selemani Kayunguya, should have been called as a witness. Failure to call Juma Salum as a witness rendered the evidence of PW6 regarding the circumstance in which the appellants 6 were found with the goats hearsay and unreliable." Likewise, the evidence on.·;Exh. P.7, the permit for transporting the goats which was heavily relied upon by the trial judge was also hearsay. Juma Salum who suspected the authenticity of Exh. P.7 and arrested the appellants should have been called as a witness, ·M·r. Ndolezi urged. Once the evidence based on Exh. P. 7 and the evidence of PW6 regarding the goats is discounted, there was no further reliable evidence to prove that the appellants were found with the goats, counsel added. In these submissions, Mr. Ndolezi was supported by Mr. Rutabingwa, counsel for the second respondent. It was the submission of Mr. Rutabingwa that unlawful possession of the goats could not be established against the second appellant on the basis of the extrajudicial statement Exh. P.9 and the permit Exh. P.7. He said Exhibit P.9 was not a confession on the part of the second appellant as held by the . ~, . . 7 trial judge. The statement, ML Rutabingwa maintained, was "' . a plausible explanation how the second appellant was asked to escort the first appellant to take the goats (41) to Vingunguti Cattle Auction Centre. He also said that_ in the process of escorting the 1st appellant, the appellants were -arrested at V-ingunguti. In the circumstance, Mr. Rutabingwa submitted, the doctrine of recent possession was inapplicable. He further stated that the trial judge misapplied the provisions of section 33 of the Evidence Act, 1967. It is generally not in dispute that the conviction of the appellants turned on the fact that the app_elJan.ts ..were found with the goats at Vingunguti. This is the issue, which learned counsel for both appellants have seriously contested. Were the appellants found with the goats at Vingunguti, we pause to consider. The evidence of Ahmad Selemani Kayunguya (PW6), is pertinent on this issue. He was the CCM Ward Secretary of Vingunguti at the time of the incident. From the record, his (PW6) evidence is to the ........ 8 effect that on 8.9.1987 at about 1.30 p.m. one Juma Salum, • I who did not testify brought to him the appellants together with 41 goats and the permit Exh. P.7. This led to the appellants being arrested and handed over to the police at Vingunguti. This is fully borne out from the evidence of the police officer Cpl. Materu (PW4) to whom the appellants, the goats, an Isuzu 3 Ton lorry and other exhibits were handed over. From the evidence of PW6, which was found by the trial judge truthful and we can find no reason for faulting him, the appellants admitted being found with the goats. They also admitted to have stolen the goats from one Shija in Mtakuja Vill~_ge_ whose owner they said· had gone- to· Mwanza. Furthermore, in the extra judicial statement, Exh. P .9 before a Justice of the Peace, the second appellant does \ not dispute having been found wi_th the goats. He explained how he, together with the first appellant were found with the goats at Vingunguti. This evidence, we are satisfied was sufficient to find, as the learned trial judge did, that the appellants were· found in possession of the goats. With 9 respect, we do not agree with Mr. Ndolezi that unless, Juma • Salum was called to testify, the evidence pertaining to the appellants being found with the goats at Vingunguti was hearsay. The essence of the evidence of PW6 was that upon information received, the appellants were arrested with the goats, the permit and the Isuzu lorry. This, was not, in our view, hearsay. We therefore dismiss the ground of complaint regarding possession of the goats at Vingunguti. Having resolved the issue that the first and second appellants were found in possession of the goats at Vingunguti, the next issue relates to the ownership of the goats. We have no difficulty in disposing of this issue. There was paucity of credible evidence to show that the goats belonged to the deceased. For instance, the evidence of Andrew Mathias Mayo (PW2), the Village Chairman of Pangani, where the deceased lived, Elizabeth Chonza (PW5), the sister of the deceased supported by PW4, PW6, PW9 and PW10, sufficiently show that the goats belonged to the deceased. I~ addition, neither of the appellants laid any claim over the o'wnership of the goats. In the light of this evidence, we.think the learned trial judge was justified in his finding that the goats which were found with the appellants belonged to the deceased. Next is the central issue in this appeal, namely whether those found in possession of the goats were responsible for the killing of the deceased. Both learned counsel, Mr. Ndolezi and Mr. Rutabingwa, have vehemently attacked the learned trial judge in his finding that as the appellants who where found in _possess:ion of the_ goats stplen from· -the deceased, they were presumed to have killed the deceased. Mr. Ndolezi, for the first appellant, submitted that the appellants could not be convicted of the murder of the deceased because there was no evidence to link the appellants with the murder of the deceased. He further contended that the offence of murder and that of stealing or being found in possession of goats are two distinct offences. _( _ 11 In this case, counsel went on ·in his submission, there was • no evidence- to show the time and circumstances in which either the deceased was killed or the goats stolen. Unless the stealing of the goats is linked with the killing of the deceased, it was an error on the part of the trial judge to find that the thieves were also the murderers of the deceased. On this ground, Mr. Rutabingwa for the second appellant, was likewise, critical of the trial judge's finding. He said the ingredients of the offence of murder were not addressed by the trial judge. Instead, he further submitted, the judge directed himself on the application of the doctrine of recent possession·which, in his vi.ew, did not appJy in this .case. In applying the doctrine of recent possession, Mr. Rutabingwa and Mr. Ndolezi faulted the trial judge in considering the second appellant's extra judicial statement (Exh. P .9) as a confession to the charge of murder. According to both counsel, this statement was nothing but an explanation by the second appellant how he was found with 12 the goats at VinQ_unguti. As the second appellant had given plausible explan~tion, Mr. Rutabingwa maintained that the doctrine of recent possession could not be invoked in order to find the second appellant guilty of stealing the goats or being in possession of same. He said, the second appellant was merely asked by the first appellant to assist taking the goats to the Cattle-Auction Centre at Vingunguti. Had the trial judge properly directed himself on the application of the doctrine of recent possession in this case, we think he would have come to the conclusion that there was no basis upon which to convict the appellants for the offence of murder, counsel urged. As observed earlier, the learned trial judge convicted the appellants upon the fact that they were found with the goats. According to the judge, since the goats were stolen during the commission of the murder of the deceased, the appellants were presumed to be guilty of murder. In this case, can it positively be said that the goats were stolen 13 during the time ~he.n the deceased was killed? On the evidence, it is· nqt established that the goats were stolen in i the course of the murder of the deceased. First, it is not certain when the deceased was killed and the goats stolen as well. This is discerned from the evidence of Andrea Mathias·, the Chairman of Pangani ViHage. (PW2) whose evidence was to the effect that on 7.9.1987, at about 5.00 p.m. it was noticed that theft had taken place at the homestead of the deceased. The deceased and his goats were missing. Similarly, the evidence of Elizabeth Chonza, the sister of the deceased (PW5), does not show when and how the deceased was killed. On 7.9:·1987, -she learned of the disappearance of the deceased and his goats. The other vital witnesses in the case, namely PW4, PW6, PW9 and PW10 are not helpful either on the crucial question, when and how was the deceased killed. 14 -( In the circumstance, we do not think that the evidence • In this case wai, such that it could, with any degree of certainty be said that the appellants stole the goats in the course of which the deceased was killed. Having regard to the fact that it is not certain when the deceased was killed or when the goats were stolen, it .is doubtful that this is -a fit case for involving the doctrine of recent possession to support not only the theft of the goats but also the murder of the deceased. Going by the evidence of PW5, the goats could have been stolen any time between 10.00 a.m. when he last saw the goats and 5.00 p.m. when the deceased and the goats we_re- reported missing on 7 .9.19-9-8. ln simi.la:r vein, the deceased could possibly have been killed or forcefully taken from his house any time thereafter or before. It is therefore· difficult to link the two incidents, namely the killing of the deceased and theft of the goats as one continuing process which led to the death of the deceased. Here is where we think, the learned trial judge fell into the 15 error in ass·umin~ that .it was one and the same transaction of stealing the gqats that led to the death of the deceased. This, on the evidence, was not the case. The circumstances in which the doctrine of recent possession can be invoked ·were succinctly elaborated by• the COurt of Appeal for East Africa in the case of REX v. BAKARI S/O ABDALLA (1949) 16 EACA 84. In this case the appellant was convicted of arson and entering a dwelling house with intent to commit a felony and stealing. The complainant's house was completely destroyed by fire . incll:lding his property. Four days after the.· -incident, the appellant was found selling a blanket, one of the appellant's property which was identified. Dismissing the appeal, the Court, inter alia held: "That cases often arise in which possession by an accused person of property proved to have been very I ;- 16 I recently stolen has been held not only to I suppor:t a presumption of burglary or of breaking and entering but of murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal (emphasis supplied)". In the instant case, so long as the theft of the goats was not linked with the death of the deceased, unlike the case of BA-KARI. {s-upra), the: presumption of guilt against the appellants for the offence of stealing goats can not be extended to the charge of murder. This is because it can hardly be said that all the circumstances of the case point to no other reasonable conclusion. For instance as said before, in the absence of evidence regarding the circumstances leading to the death of deceased and theft of the goats, the case was open to other reasonable ( . 17 conclusions or -gossibilities that the deceased could have • been killed by other people._ This being a criminal charge, the doubt should be resolved infavour of the accused. Consequently, it seem to us that this is a case in which there was no evidence to show that the deceased was killed so as to effect the stealing of the goats. In Manazo . Madundu and Another v. Republic [1990] TLR 92, the appellants were convicted of murder. The appellants were found in possession of stolen property shortly after a watchman of a shop was killed. It was strong.ly contended .that re.cent possession of stolen property was not alone ground a conviction for murder. The Court dismissed the appeal staping among other things: "In the circumstances it was not wrong to conclude that the appellants were also responsible for killing the deceased, and because we are satisfied ;- 18 \ that the killing was so as to effect the • stealing we are of the view that it is quite proper to infer malice-aforethought". Quite clearly, the instant case is distinguishable from Manazo Madunda (supra). The circumstances of the cas-e were such that we think with respect, the learned trial judge was wrong in concluding that the appellants were also responsible for the murder bf the deceased. Malice- aforethought could not be inferred against the appellants. In the finaLanalysis therefore, were are .unable to agree with Mr. Masaju, learned Senior State Attorney, that there was cogent evidence, to support the trial judge's finding that the appellants killed the deceased. Apart from the fact that the doubtful circumstances in which the deceased was killed, the evidence that the second appellant led to the place where the body of the deceased was buried was not helpful to the prosecution either. Apart from glaring contradictions, 19 it is apparent from the record that on 12.9.1987, when the • appellants were _taken to the pond area, the villagers had gathered around the place where the body of the deceased was buried. As it was already known where the body was buried, the appellants, if at all, led to the already known place wh-ere-the body was buried. At any rate, the trial judge did not solely rely on this evidence in. convicting the appellants. Because of some discrepancies in the evidence, the judge was prepared to have this aspect of the evidence excluded. · Ultimately, .the cor-e·- -evidence- on which the murder charge against the appellants was grounded was the possession of the goats by the appellants at Vingunguti. This evidence alone, we think, was not sufficient to lead to an irresistible inference that the appellants killed the deceased. The learned judge was in our view, wrong in convicting the appellants of the offence of murder based on 20 such evidence. It w~s susceptible to doubts which ought to .. . have been resolved infavour of the appellants . • On the other hand, there can be no doubt that the appellants were found in possession of the goats which were identified as the property of the deceased. The learned trial judge accepted the ev"idence regarding the circumstances in which the goats were found with the appellant. The defence of the appellants was not accepted as reasonable. On the evidence therefore, the offence of receiving stolen property contrary to section 311 (1) of the Penal Code was proved against the appellants. Consequently, for the foregoing reasons, the appeal is allowed, the conviction of murder quashed and sentence of death set aside. In substitution thereof the appellants are convicted of the offence of receiving stolen property contrary to section 311 (1) of the Penal Code. They are each sentenced to ten years imprisonment. ~,,..., .. ·,· . ~: .. 21 ·DATED at DAR ES SALAAM, this 3rd day of March, • 2005. D. Z. LUBUVA JUSTICE OF APPEAL E. N.-MUNUO JUSTIGE OF APPEAL H.R.NSEKELA - JUSTICE OF APPEAL I certify that this is a true copy of the original.