20101124 TZHC Mbeya2

1 ·•1r., ,i'; -.· ,, ·t, ·~ \.'-:.- -· -IN THE COURT OF APPEAL OF TANZANIA -- AT MBEYA (CORAM: NSEKELA, J.A.:, MSOFFE, l.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 133 OF 2008 MELA SAN GO. ■■■• ■■ •••• ■ ••• ■■•■ ••••• ■•■ ••••••••••••••••••••••• ■■■■•■ ••• ■■■■■■■ •• ■■•■ ••• I ••• APPEL·LANT- -- VERSUS THE REPUBLIC. ■ •••••• ■■■■■ ••••••• I ••••••••••••••• ■■■ ••••••••• I ••.•••••••••••• ■~. ■ • • • • • RESPONDENT I. {Appeal from the decision of the High Court of Tanzania at Mbeya) (Lukelelwa, l.) dated the 2 nd day of November 2007 in Criminal Sessions Case No. 36 of 2006 JUDGMENT OF THE COURT 18th & 25th November, 2010 ORIYO, J.A.: The appellant, Mela Sango, was convicted by the High Court (Lukelelwa, J.) sitting at Mbeya, of the offence of Murder of one Anyandwile Mwandola, contrary to Section 196 of the Penal Code [Cap 16 R.E 2002]. The appellant was sentenced to death. Aggrieved by the , conviction and sentence, he has preferred this appeal. 2 Mr. Thomas Massawe, learned -advocate appeared and argued the - appeal on behalf of the appellant. Mr. Faraja Nchimbi, learned State Attorney represented the respondent Republic and argued to oppose the appeal. Without reproducing in detail the contents of the oral submissions made before us, it suffices to state briefly that, as indicated in the Memorandum of Appeal, Mr. Massawe was of the strong view that the offence of murder against the appellant was not proved beyond reasonable doubt. On the other hand, Mr. Nchimbi was of the view that the totality of the prosecution evidence, particularly the admissions made by the appellant in the cautioned statement and to PW2, established the appellant's guilt to the required standard and therefore proved the prosecution case against the appellant beyond reasonable doubt. At the Preliminary Hearing all matters were in dispute except: - (i) the appellant's name and residence (ii) the fact that Anyandwile Mwandola is dead 3 - {iii) the death-- of Anyandwile Mwando!a-- on 8/8/2004 was due to unnatural causes as per the Postmortem Examination Report The crucial issue before the trial court was who perpetrated the death of the deceased? To answer the issue, the prosecution fielded three witnesses, namely PW1 C.6987 Detective Sergeant Edward, a police officer who recorded the cautioned statement of the appellant in which the appellant admitted to have shot the deceased dead. This confession to PW1 was retracted by the appellant at the trial. The trial Judge conducted a trial within trial to establish the voluntariness of the confession. At the end of the trial within trial, the learned trial Judge was satisfied that the cautioned statement made to PW1 by the appellant was voluntarily made and it was recorded in compliance with the law. The cautioned statement was admitted as Exhibit "P2" without any objection from the defence. The other witness was PW2, Alan Timothy Nkobole, who was at the time of the incident, the Village Chairman of Tindingoma Village, Mbozi 4 District, Mbeya Region, where the appellant and the deceased resided~ He testified how the appellant admitted before him and other village authorities that the appellant killed the deceased by shooting him using the appellant's own gun. He also told them that after the shooting he hid the gun in the home of one Asheri Simbeye, (a co-accused discharged before trial began). And true to his word he led PW2 and the others to the home of Simbeye where the weapon was recovered hidden in a maize farm. The third and last prosecution witness was Helena Wilson, the wife of the deceased; PW3. She testified how on the fateful day, around 8pm, PW3 and the deceased were sitting in their house with the door open. Suddenly they saw grass burning at their door step. She also testified that the night was moonlit. As the deceased stepped out of their house to extinguish the grass fire, PW3 followed behind. And as the couple looked around with the aid of light from the burning grass and moonlight, PW3 saw the appellant moving at a distance of about five (5) metres away holding a gun. As PW3 was running back to the house, she heard gunfire outside, which actually killed the deceased. 5 PW3 told the court that it was easy for her to recognize the appellant as he was known to her before the incident and both were residents of the same village. The defence of the appellant at the trial was a complete denial. He testified that he did not kill the deceased. And as stated earlier, the appellant retracted the confessions he had made in separate occasions to PWl and PW2 that he had shot the deceased dead. But what is more is that the appellant put up another defence, that of alibi as well. After analyzing the evidence on record and the credibility of the prosecution witnesses, the learned trial judge conclusively held that on the credible testimonies of PWl, PW2 and PW3, he was satisfied beyond doubt that the prosecution had proved its case beyond reasonable doubt. At the hearing of the appeal, Mr. Massawe, learned counsel, urged us to fault the learned trial judge's decision. He advanced the reason that the prosecution testimony on record was not sufficient to prove the offence of 6 - ~- -murder beyond reasonable· doubt.·-shoold-·we·-really-·fault-the- learned trial- judge on his findings? At this juncture, we wish to restate that this is a first appeal. It has been held that such an appeal is by way of a retrial and therefore the court is empowered to reconsider the evidence adduced at the trial without being bound to follow a trial judge's finding of fact, except in circumscribed instances such as where the finding is based on credibility, [See Selle vs Associated Motor Boat Co. (1968) EA 123]. And as it was said by Lord Simmonds in Benmark vs Austin Motors Co. Ltd (1955) All ER. 326 (HL): - "Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial Judge and should form its own independent opinion." 7 Similarly our duty-here ls to"-reevalUate-the- evidence and -if -need be-- - come to our own conclusions, if the trial judge's findings are based on improper inferences to be drawn from specific facts. We shall first deal with the issue of identification of the appellant at the scene of crime as testified by PW3. While on the credibility of the prosecution witnesses, the learned trial judge categorically stated that after examining them in the witness box and observing their demeanour, he found them to be credible witnesses. Further he stated as follows: - "While PW3 the widow of the deceased could have succumbed to emotional sentiments for his (sic) fallen husband to the extent of adding salt to her evidence this appear to have not worked on her adversely. She remained calm and composed in the witness box. " However, the learned trial High Court Judge in his judgment, discounted the evidence of PW3 on the identification of the deceased for ~ 8 ,,., wanCof corrofforation in sofne "filaterial particulars and therefore held that-·- the evidence of identification was not watertight. He stated as follows: ''However the possibility of a genuine mistaken identification cannot be overruled. There was need to corroborate the evidence of PW3 to confirm the identification in -some material particular as evidence on identification has to be watertight before it can be acted upon. " In conclusion he stated: '1t follows therefore that the identification made by PW3 was not watertight and therefore it cannot alone form the basis of convicting the accused." The principles of law on visual identification are well settled, as they were enunciated by this Court in the case of WAZIRI AMANI vs R (1980) TLR 250 at page 252. It is a trite legal principle that the evidence of visual identification is of the weakest kind and most unreliable which should only be acted upon cautiously when the Court is satisfied that the evidence is watertight and that all possibilities of mistaken identity are eliminated. 9 In the present appeal it is undisputed that the appellant was well known to the deceased as well as PW2 and PW3. Therefore, the evidence of PW3 was evidence of recognition rather than the commonly known evidence of visual identification of a stranger. And as it was stated by this Court, such evidence of identification by recognition is more reliable, satisfactory and more assuring than in the case of identification of a stranger, (See the cases of Issa s/ o Mgara @ Shuka vs R, Criminal Appeal NO. 37 of 2005 and Nhembo s/ o Ndalu vs R, Criminal Appeal No. 33 of 2005, both unreported). Also see the Kenyan Court of Appeal decision .in the case of Rotich Kipsongo vs R [2008] e KLR. We wish to stress here that even where the evidence of identification is by recognition, courts are bound to closely scrutinize the circumstances in which such identification was made. This principle was expounded by this Court in the case of Dorika Kagusa vs R, Criminal Appeal NO. 174 of 2004 (unreported), in the following language: - '1ft is trite law that in a case depending for its determination essentially on identification be it of a single witness or more than one witness/ such \i, . 10 evidence must be watertight, even if it is - -- - - evidence of recognition. And where such evidence is of a single witness made under unfavourable conditions, such evidence, as a matter of practice only, requires corroboration. This rule, however does not rule out a conviction on the evidence of a single witness if the court is fully satisfied that the witness is telling the truth. " See also the case of Hassan Juma Kanenyera vs R, [1992] TLR 100. We have carefully scrutinized the evidence of PW3. We are fully aware that her testimony on the identification of the appellant was a case of recognition by a single witness in unfavourable conditions. It was identification done during the early hours of the night, at around 8pm. She was able to identify the appellant with the aid of two sources of light; that is, it was a moonlit night together with additional light emitted from the grass fire burning at their doorstep. She saw the appellant carrying a gun at a distance of 5 metres only, which proximity was actually quite near each other. 11 As it is, and on the authority of Dorika Kagusa above, the trial court could have legally convicted the appellant on the sole testimony of PW3 having established as it did that PW3 was telling nothing but the truth. But in the present case, the trial court did not rely on the testimony of PW3 of identification by recognition alon~. There was also the testimonies of PW1 and PW2 where the appellant made unequivocal confessions to have killed the deceased. The evidence that the appellant, PW2 and PW3 resided in the same village was uncontroverted at the trial. In the circumstances, the evidence of identification by PW3 was watertight. The trial court cannot be faulted on that. In addition to the evidence of complete denial by the appellant of having committed murder, the appellant had also raised the defence of alibi. He testified that on the fateful day he did not go to the deceased's home at all and at 8pm when the incident took place he was asleep at his home. DW2, Esta Simbeye, who was the wife of the appellant repeated in 12 her testimony the appellant's defence of alibi. She stated in her testimony that on the date of the incident, on 8/8/2004 she stayed home with the appellant for the whole day and they had supper at 6pm and retired to bed for the night at 8pm. This piece of evidence of alibi was given after the prosecution case had been closed. In his judgment, the learned trial judge briefly considered the defence of alibi and rejected it, all in one sentence. With respect, this piece of evidence by the appellant deserved to be treated in a more detailed manner than was done by the learned trial judge. Being the first appellate court, we shall have to do what the trial court failed to do in this respect. The Appellant did not complain to us that his defence of alibi was not properly considered at the trial court. Indeed, the trial court made a brief reference to the appellant's alibi, bl.It it did not discuss it. The learned trial judge stated that since the appellant did not comply with the provisions of section 194 (4) and (5) of the Criminal Procedure Act by giving notice that he intended to rely on the defence of alibi; that was sufficient reason for the trial judge to take cognizance of the defence of alibi and using his judicial discretion, he accorded no weight to that defence. And with those 13 few words the learned judge did not say more in connection with the appellant's defence for alibi in the judgment. The procedure to be followed where an accused person intends to rely on the defence of alibi, is provided for under section 194 of the Criminal Procedure Act. The relevant part of section 194 provides: - "194- (1) N/A (2)N/A (3) N/A ( 4J Where an accused person intends _to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case. (SJ Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed. 14 (6) If the accused raises the 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. " The appellant in this appeal had legal assistance of an advocate who ought to have known and understood the above legal requirements regarding the defence of alibi. With respect, it is apparent that no efforts were made for the appellant to satisfy the requirements of Section 194(4) and (5) above before the defence of alibiwas put in evidence. Apparently the learned trial judge was very much alive to the requirements of section 194 -(4) and (5) thereof. He made references to them but did not mention section 194 (6). The question that arises here is whether the court's discretion under section 194 (6) was properly exercised by the bare statement from the trial judge that the court attached no weight to the defence of alibi raised by the appellant, in the absence of the 15 requisite notices under section 194 (4) and (5) of the Criminal Procedure Act. This court had occasion to consider the import of section 194 (6) of the Criminal Procedure Act in the case of Charles Samson vs R [1990] TLR 39 and stated, inter alia, as follows: ''It is obvious, on a proper construction of the provisions of this section, that the court is not exempt from the requirement to take into account the defence of an alibi, where such defence has not been disclosed by an accused person before the prosecution closes its case. What this section means is that where such disclosure is not made, the court, though taking cognizance of such defence, may in its discretion, accord no weight of any kind to the defence. " Elaborating on that, this Court, in the latter case of Mwita Mhere and Another vs R, Criminal Appeal No. 65 of 2002 (unreported) stated: - ''It will not, therefore, be sufficient in our considered view, to merely say that the court has exercised its discretion not to accord any weight ... 16 of any kind to the defence of alibi, and rest it at that. The court has to demonstrate, however briefly, how that discretion has been exercised to reach the decision it takes. " In Salum luma Kocho vs R [1994] TLR 206, the appellant raised a defence of alibi for the first time during his defence. The trial judge rejected it. On appeal, this Court, in an attempt to explain the circumstances which led the trial court to exercise its discretion not to accord weight of any kind to the defence of alibi, said as follows: - "He had given no prior notice of this alibi as required under the law. Admittedly he was under no legal obligation to prove the alibi but in the face of the a/legations made against him, one would reasonably expect him to call the said uncle to bear him out. However the appellant declined to do so despite suggestions to him in cross-examination. In these circumstances therefore, no weight can be attached to his alibi, and the learned trial Judge rightly discounted it. " 17 - ... - - - . Reverting to the appeal before us, we wish to- --fully -assodate - ourselves with this Court's approach and reasoning, in the above cited cases which have to be observed, before a trial court can exercise its discretion to accord no weight to the defence of alibi. We are of the considered opinion that on the basis of the decisions above, the learned trial judge in the instant case should have stated more on the appellant's defence of alibi. He should have at least mentioned the crucial provision of section 194 (6), instead of merely stating the legal principle therein as the decision of the court. The learned Judge should have proceeded t show why the defence of alibi could not hold in the face of the truthful and undiscredited testimonies of the prosecution witnesses. With the above observations, we uphold the learned trial Judge's exercise of discretion to attach no weight to the appellant's defence of alibi. We now move to consider our final issue, that is the murder of Anyandwile Mwandola. 18 The death of the deceased and the fact that he was murdered has never been contested. In law murder is the unlawful killing of human being with malice aforethought. Malice aforethought is defined in section 200 of the Penal Code Cap 16 (R.E 2002) and it states thus: - ''200. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances - (a) an intention to cause the death of, or to do grievous harm to any person, whether that person is the person actually killed or not; (b) N/A (c) An intent to commit an offence punishable with a penalty which is graver than imprisonment for three years. (d) N/A. Was malice aforethought proved beyond reasonable doubt in the instant case? 19 The learned High Court Judge while addressing himself on malice aforethought as an essential ingredient of the offence of murder, briefly slipped into an error by taking into account the sour relationship that existed between the appellant and the deceased. Fortunately he realized the error early enough and immediately corrected himself stating that motive is not an essential ingredient in the offence of murder; but fell short of stating how malice aforethought was proved in the present case. We have already shown that on the evidence of the Post Mortem Examination Report, Exhibit Pl, the undisputed cause of death of Anyandwile Mwandola was due to: - severe haemorrhage due to multiple deep penetrating wounds from gunshot. The two penetrating wounds were in the Right Upper Part of the Abdomen and in the Left Wrist. In our considered opinion these injuries were so serious that any reasonable person who inflicted them must have intended that they should cause the death of the deceased or do him 20 grievous harm. This act brought the intention of whoever caused the death of the deceased within the ambit of Section 200 (a) and (c) of the Penal Code. Malice aforethought was therefore proved beyond reasonable doubt. For the foregoing reasons, we therefore dismiss the appeal in its entirety. DATED at MBEYA this 24th day of November, 2010. H. R. NSEKELA JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL -- ---···-···- ··-·;·-y-;- MkWiZU) - DEPUTY REGISTRAR COURT OF APPEAL