20050603 TZCA Tanga5 1

1 IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MUNUO, J.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 35 OF 2004 IJUMAA AUGUSTINO ....·................................ APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) ·(Longway,_J.) dated the 30 th day of August, 2002 m Criminal Session Case No. 18 of 1998 JUDGMENT OF THE COURT MUNUO, J.A.: .In Criminal Session Case No. 18 of 1998 in the High Court of Tanzania at Tanga, the appellant, Ijumaa Augustina was convicted of murder and sentenced to death by hanging, before Longway, J. in that the appellant, on the 8th February, 1997 at Magoma Village within Korogwe District in Tanga Region, killed one Bernard Lukosi, with malice aforethought. 2 A single eye witness, PVV1 Mwajyma Hassan Shafi deposed that on the fateful night at about 8.00 p.m. she was selling local liquor at her shed at Magoma Village.· The deceased; a customer, bought some liqu_or. As the deceased was partaking the liquor, PW1 sat ·beside him. The shed, she further deposed, was lit with a kerosene lamp so visibility was good. Suddenly PWl saw the appellant, a person she knew advance wielding a knife. She said that the appellant walked straight to the deceased and throttled him stirring a fracas. The appellant warned PWl to exit for her own safety as he threatened to eliminate the deceased which he did by stabbing him fatally. When PWl was swiftly exiting, the lamp went off. Outside the shed, PWl encountered PW2 Stephen Maluko, her neighbour who wanted some liquor but she told him she would not return to the shed because there was a fracas and it was dark therein. It was the evidence of PW1 and PW2 that there was moonlight on the material night so visibility outside the shed was favourable. As PWl and PW2 were talking about the fracas in the shed, PW1 and PW2 saw and identified the appellant by moonlight as he emerged from the shed and passed near them at the entrance of the shed. They stated that the appellant was not a stranger so they had no difficulty recognizing 3. him. From there, the appellant went ipto hiding until he was traced and arrested in July 1998, over a year l_ater. The appellant denied stabbing the deceased or causing his death. He claimed that he was at his Lushoto home and not at Magoma Village at the material time so he could not have been involved in the murder of the deceased on the fateful night. The trial court was satisfied beyond all reasonable doubt that the appellant, with malice aforethought, fatally stabbed the deceased, Bernard Lukosi as charged. Hence the conviction and sentence of death imposed on the appellant. Aggrieved, the appellant lodged this appeal to challenge the conviction. Mr. Zuberi Abdallah, learned advocate, represented the appellant during the trial and in this appeal. The respondent Republic was represented by Mrs. Neema Ringo, learned State Attorney. Counsel for the appellant filed three grounds of appeal. He contended, in ground one, that the learned Judge failed to comply with the mandatory provisions of Section 192 (3) of the Criminal Procedure Act, 1985 so the provisions of Section 192 (4) of the 4 Criminal Procedure Act, 1985 shall not-;1pply to the memorandum of undisputed. facts. He cited the case of MT 7479 STG. BENJAMIN HOLELA Versus Republic (1992) TLR 121, a similar case in which the contents of the memorandum· of undisputed facts was not read over· and explained to the accused pursuant to the provisions of Section 192 (3) of the Criminal Procedure Act, 1985. On the omission of the court to read over and explain the contents of the memorandum of undisputed facts to the accused, the Court of Appeal of Tanzania held, that - "Section 192 (3) of the Criminal Procedure Act, 1985 imposes a mandatory duty that the contents of the memorandum must be read and explained to the accused. Since the requirements under Section 192 (3) were not complied with the provisions of Section 192 (4) of the Criminal Procedure Act cannot apply .. " We wish to affirm the above decision of the court in view of the provisions of Section 192 (3) and ( 4) of the Criminal Procedure Act, 1985 which state, inter alia: 5 "192 (3). At the coyiclusion of the preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained_ to the accused in a language that he understands, signed by the accused and his advocate and by the Public Prosecutor and then filed." In the present case, the record does not show whether the learned Judge complied with the provisions of Section 192 (3). As in the case of Holela cited supra, because the provisions of Section 192 (3) were not complied with, the contents of the memorandum of · agreed facts, as Mr. Zuberi Abdallah rightly observed, cannot be deemed to be duly proved as stipulated under Section 192 ( 4) of the Criminal Procedure Act, 1985 which provides; "192 (4) Any fact or document or agreed (whether such fact or document is mentioned in the summary of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved;· save that if, during the course of the trial, the court is of the opinion that the interests of justice so demands, that court 6 may direct that any fatt or document admitted or agreed in the memorandum filed under this section be formally proved." We are of the considered view that the record shows clearly that the postmortem examination report, Exhibit Pl, was admitted without any objection during the preliminary hearing. In that regard, the cause of the death of deceased as reflected on the postmortem examination report, Exhibit Pl, which states clearly that the cause of death was a stab wound on the left axillary region of the body. With regard to grounds 2 and 3 of the appeal, counsel for the appellant contended that the trial Judge erroneously found the single eye witness,· PWl Mwajuma Hassan Shafi, a credible witness, allegedly because the conditions of identification under moonlight, were unfavourable and possibilities of mistaken identity could not be ruled out. In that respect, counsel asserted, the guilt of the appellant was not proved beyond all reasonable doubt so the conviction should be quashed and the sentence be set aside. Mrs. Neema Ringo, learned State Attorney, supported the conviction. Urging us to uphold .the conviction, the learned State Attorney contended that the trial Judge properly found PWl credible 7 and truthful because there are no cgntradictions in her testimony upon which her credibility could be dented. She further contended that PWl an~ .PW2 were familiar with the appellant because the latter often visited his brother at Magoma Village where PWl and PW2 reside so they knew him and he was not a stranger to them on the fateful night: As for PWl, the learned State Attorney observed that she eye witnessed the appellant enter the shed carrying a knife in his hand,· threaten to eliminate the deceased as he throttled him, caution PWl to get out of the shed for own safety and then stab the deceased. The lamp was burning in the shed so PWl clearly identified the appellant, the learned State Attorney observed. On the issue of identification by a single witness, the learned State Attorney cited the case of Christian Kale and Rwekiza Bernard Versus Republic (1992) TLR 302 wherein the Court of Appeal sustained a conviction of murder by stating: "PWl was not only a reliable witness but also a witness of truth and his evidence clearly showed that the first appellant had a hand in the murder of the deceased." 8 The learned State Attorney further referred us to the case of . / Eva ~alingo, MT 6222421 PTE Peter Magoti and MT 62218 Pascal Mgawe Versus Republic (1995). TLR 222 in which one of the appellants claimed that he was not identified as one of the killers of the deceased. On the identification evidence adduced at the trial, the Court of Appeal held that -: "There was plausible evidence to show that the appellants were not strangers to the witness and that the circumstances at the time were favourable for unmistaken identity." The case of Rajabu Khalifa Katumbo and 3 others Versus Republic (1994) TLR 129 was also cited by the learned State Attorney on the ground that it is similar to the present case because the offence of murder was committed at night, and like in the present case,· i.dentification was facilitated by lamp light. In Rajabu Katumbo's case (supra) the court held that - · " (i) Although the offence was committed at night, there were two lamps in the · corridor inside the house which facilitated the identification of the offenders. 9 (ii) The accused were knoyvn to the witness well. before the day of the incident: the witnesses, therefore, were extremely unlikely to mistake tb_e.m." All in all, the learned State Attorney submitted that PWl and PW2, correctly, and without possibility of mistake, identified the appellant by moonlight when he emerged from the shed and passed near them and that in the shed, PW1 identified the appellant by the light of her lamp which was burning when the appellant stabbed the deceased so the court should dismiss this appeal for want of merit. On the identification of the appellant, the learned trial Judge observed that - ."She (PW1) told the court that the accused entered the shed suddenly went straight at the deceased and throttled him. He at the same time held a knife in his hand (ready for action) which she saw him put in use and also uttered threats - "lea ni siku ama zako ·ama zangu." Meaning it was either a day for reckoning for the deceased or for the appellant which indicated that the appellant was out to terminate the life of the deceased which he did by savagely stabbing him causing death. The killing was, therefore, p~meditated which established malice aforethought. As demonstrated in the authorities cited by the Republic, where the identifying witnesses, here PW1 and PW2 are familiar with the appellant, and where a lamp (and moonlight) facilitated the identification of the appellant, possibilities of mistaken identity was ruled out. We are satisfied that in this case PW1 and PW2 correctly, and with the light of the lamp and moonlight outside the shed, properly identified the appellant as the killer of the deceased. Under the circumstances the appeal is lacking in merit. We accordingly dismiss the appeal. DATED at TANGA this 3rd day of June, 2005. E. N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S'. N. KAJI JUSTICE OF APPEAL