20100429 TZCA Mwanza

• U \NTi P- r-f €-p- L IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MSOFFEV 1A., MBAROUK, J.A. And BWANAV ).A.) CRIMINAL APPEAL NO. 87 OF 2005 THOMAS s/o MGIR_A .................................................... APPELLANT VERSUS THE REPUBLIC ......................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court with Extended Jurisdiction at Magu) (Mciaya - PRM, Extended Jurisdiction) dated the 8th day of April, 2005 in RM Criminal Case No. 40 of 2004 JUDGMENT OF THE COURT 27 April & 4 May, 2010 MSOFFE, J.A.: PW1 Modesta Onesmo, the only key and material witness, stated that on 1/10/2002 at around 8.00 p.m. she was seated in the sitting room to their family house having dinner with her deceased mother. Suddenly two people came in. One of them, who happened to be the appellant, entered into the house leaving the other person outside. On entering the house the appellant retorted in "Kisukuma" language thus "uI/haya kinehe ngiku/u" In a loose translation these I words meant "linasemaje b/bi"in Swahili. The deceased responded by asking the appellant whether he too had anything to say. Without saying anything else, the appellant slapped the deceased on the face, got hold of his panga and slashed it on the deceased's head and neck. The deceased died instantly. PW1 was very positive in her evidence that she did not identify the other person who remained outside. As for the appellant, she was categorical that she did identify him properly because there was a wick lamp, she was familiar with the appellant's voice because he was their neighbour in the village, and finally that on the material day and time the appellant was putting on a blue jacket and a black pair of shorts. In her further testimony, PW1 stated that after the appellant had slashed her mother to death he walked outside and met the person he had left there. She heard the other person asking the appellant whether he had "finished the job" and the appellant answered in the affirmative. According to PW1 the whole incident took not less than half an hour. After the appellant and his colleague had left, PW1 reported the incident to his brother PW3 Ntobi Onesmo, and a mwano (alarm) was raised. The incident was also reported to the 2 police. Following the alarm and the report, the appellant was arrested in the following morning. Indeed, in the appellant's own testimony, he was arrested at around 6.00 a.m. in the morning of the following day. After the death, funeral arrangements were made. According to PW1 and PW3 the appellant, their neighbour, did not participate in the funeral. The appellant's defence was, in fact, an alibi contending that on the date and time in question he was sleeping at hishome He heard an alarm being raised. He responded to it by going to the deceased's home where he stayed for the whole night. Early in the morning he excused himself and went back home because he was not feeling well. The trial Principal Resident Magistrate with extended jurisdiction, as she then was, (hereinafter the Magistrate), analyzed both the prosecution and the defence cases. In the end, she was satisfied that the case against the appellant was proved beyond reasonable doubt. She accordingly convicted the appellant of murder 3 contrary to section 196 of the Penal Code and sentenced him to death. The appellant is aggrieved hence this appeal. Mr. Wilbald Butambala, learned advocate, appeared and argued the appeal on his behalf while the effort was resisted by Mr. Edwin Kakolaki, learned Senior State Attorney for the respondent Republic. Mr. Butambala filed two grounds of appeal. At the hearing he argued both of them together. In essence, and in a nutshell, he centred his arguments on the crucial aspect of identification. In principle, he was of the view that the evidence of identification was not watertight. In this regard, he invited us to hold that PW1 was not all that credible as opined by the trial Magistrate. On the other hand, Mr. Kakolaki was of the strong view that the evidence of identification in the case was, and indeed still is, overwhelming. He carried us through the testimony of PW1 and urged us to hold that he was a credible witness. Admittedly, the determination of the case depended on the crucial aspect of identification. In this context the evidence of PW1 11 was very crucial in this case. The trial Magistrate considered this issue and opined as follows:- The crucial issue pertains to the identification of the accused by PW1 who was able to recognLze the accused that stood close to her in thefr room, and was able to identify the accused because there was burning kibatari in the room where they sat with the deceased eating. There was sufficient time for PW1 to put the accused under observation as he entered and started talking to the deceased while the witness observed before cutting her. More so, the witness (PW1) and the deceased were neighbours and could even tell the clothes worn by the accused on the fateful day. With respect, we are in agreement with the trial Magistrate on the above findings of fact. We agree with her for the following reasons:- The appellant was PW1's neighbour; and the appellant agreed that much. There was a wick lamp in the room. With the aid of the light being illumitated from the wick lamp PW1 and the deceased could easily enjoy their dinner. The appellant, a neighbour, was well 5 known to PW1. PW1 described the attire worn by the appellant on the fateful day and time. The incident took a considerable long period of time. At the time of the incident PW1 sat close to the appellant and was, therefore, able to observe him at close range. We may also add here that being familiar to the appellant, PW1 also identified the appellant by voice when he spoke the above Kisukuma words. As this Court stated in Baldwin Komba © Ballo v Republic, Criminal Appeal No. 56 of 2003 (unreported) what is required in voice identification is where the witness is familiar with the voice in question as being the same voice of a person at the scene of crime. In the light of the above evidence of identification we entertain no doubts that PW1 duly identified the appellant. The conditions obtaining on the material day and time were favourable for a correct identification. This brings us to three other points which we think we should address. The first one is as follows. As already stated, the appellant raised the defence of an afibi. It is not in dispute that he did not give n. notice or furnish particulars in terms of Section 194 (4) and (5), respectively, of the Criminal Procedure Act, (CAP 20 R.E. 2002), hereinafter the Act. Inspite of this, the Magistrate considered the defence and accorded no weight to it. She did so in line with the provisions of Section 194 (6) of the Act which reads:- (6) If the accused raises a defence of alibi without having first furnished the particulars of the alibi to the court or to the prosecution pursuant to this section, the court may in its discretion, accord no weight of any kind to the defence. In other words, subsection (6) does not say that if an accused person raises an alibi without disclosing the intention to do so to the court and to the prosecution, then it will not be considered. On the contrary, the Court has to consider the defence of alibi. So, in considering the alibithe Magistrate did so according to law. Indeed, while we are on this point we may reiterate the position taken by this Court in Charles Samson v Republic (1990) TLR 39 on the proper import of Section 194 (4)1 , ( 5) and (6) of the Act. The Court stated:- 7 • - on a proper construction of the provisions of this section .. the court is not exempt from the requirement to take into account the defence of alibi; where such a defence has not been disdosed by an accused person before the prosecution doses its case. What this section means is that where such a disdosure is not made, the court, though taking cognizance of the defence U,jy in its discretion, accord no weiiht of any kind to the defence ' Where the court falls to take cognLance of an alibi it amounts to a mistrial and a consequential miscarriage ofjustice. See also Rashid Seba v Republic, Criminal Appeal No. 95 of 2005 (unreported). The second point is in relation to the undisputed fact that immediately after the incident PW1 named the appellant to PW3. According to PW3. PW1 told him that "she identified one of the killers as being the accused person in the dock". PW3 in turn informed the village and the police authorities, respectively. In consequence thereof, the appellant was arrested in the early morning hours of the following day, as already observed above. We think that the ability by PW1 to name the appellant at the earliest possible opportunity was significant. We say so because as this Court stated in Marwa Wangiti Mwita and Another, Criminal Appeal No. 6 of 1995 (unreported):- - -. The ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliability, in the same way as an unexplained delay or complete failure to do so should put a prudent court to inquiry. (Emphasis supplied.) In naming the appellant to PW3 at the earliest possible opportunity was a further assurance that PW1 was a reliable witness. The third and final point in this series has a bearing in that portion of the judgment where the Magistrate stated:- and I differ from the 3' gentleman assessor who gave his opinion that the accused is not guilty of the offence charged. With respect, as correctly submitted before us by Mr. Butambala, this assertion is not borne out by the record. The record is clearthat, like the two other assessors, the third assessor also returned a verdict of guilty. In the upshot, there is no merit in the appeal. We hereby dismiss it. DATED at MWANZA this 29th day of April, 2010. J. H. MSOFFE JUSTICE OF APPEAL M. S. MBAROUK JUSTICE OF APPEAL S. J. BWANA• JUSTICE OF APPEAL I certify that this is a true copy of the original. (3. 10