20120528 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA {CORAM: MUNUO, J.A., KIMARO, J.A. And MJASIRI, J.A) CRIMINAL APPEAL NO. 257 OF 2011 1. MWINGULU MADATA} 2. ·MWALU MARTINE ••••••••••••••••••••••••••••••••••••••••••••••••••••. APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Rwakibarila, J) dated 3 rd day of October,2011 in Criminal Session Case No. 22 of 2009 JUDGMENT OF THE COURT 25 & 28 May, 2012 MJASIRI, J.A: In the High Court of Tanzania at Tabora in Criminal Sessions Case No. 22 of 2009, the accused persons (1) Mwigulu Madata and (2) Mwalu Martine were jointly and together charged with the offence of murder contrary to section 196 of the Penal Code. It was alleged that on July 2, . ' 2008 at Bunambiyu village within the District of Kishapu in Shinyanga, they 1 murdered one Ng'umbi d/o Jiteleja @ Lutema. The 1st appellant was arrested by sungusungu at Mipa Village on the night of July 2, 2008 around midnight while riding a bicycle. He was found carrying a torch and a matchete which had bloodstains. The background to this case is as follows. At Banambiyu Village at Mwachanjo suburb in Kishapu District in Shinyanga Region, PW1 Martine Mushinawa lived with his three wives namely Njiro Kandago, Ng'umbi Jiteleja and Mirembe Nyandeg'hwa. There were are a total of nine huts, in his compound three of them being occupied by his three wives. On July 2, 2008 PW1 went to a neighbbaour's wedding. While returning home at around 11.30 hours he went straight to the hut of Ng'umbi Jiteleja, his second wife. He knocked on her door, but she did not answer. He pushed the door, which was open and he found the dead body of his wife lying on the floor and her neck was slashed by a panga (matchete). He ran to the hut of his first wife to tell her the news and she accompanied him to the hut of his son PW 7, who was the deceased's son. 2 The appellants and PWl are related. The 1st appellant is his son in law, married to his daughter. The 2nd appellant is the 1st appellant's brother in law, married to his sister, and PWl's daughter. It was the prosecution case that the second appellant hired the first appellant to assassinate the deceased. According to the allegations made, the deceased was responsible for the death of the 2nd appellant's two (2) children by the act witchcraft. She had six (6) children and two (2) of them were killed by the deceased. The 1st appellant also had grievances against the deceased as she was using acts of witchcraft to prevent him and his wife from having children. Upon his arre~t by sungusungu, it was alleged that the 1st appellant confessed to them that he was contracted by the 2nd appellant to kill her stepmother and that the contract price was TZS 120,000 and a bicycle (hero model). The second appellant was also arrested by sungusungu at Bunambiyu village. They were both subsequently charged of killing the deceased. 3 At the hearing of the appeal, the appellants were represented by Kamaliza Kayaga, learned advocate and the respondent Republic was represented by Mr. Edwin Kakolaki learned Principal State Attorney, assisted by Mr. Hashim Ngole, learned Senior State Attorney. Mr. Kayaga presented two (2) points of appeal in his memorandum of appeal, which is reproduced as under: 1. The charge of murder was not proved beyond reasonable doubt and the appellants were found guilty and convicted on shaky grounds. 2. The learned trial judge erred in law as he failed to consider the possible defence of belief in witchcraft as provocation on the part of the appellants. In his submissions on ground No. 1, Mr. Kayaga stated that the evidence on record was not sufficient to ground a conviction in respect of the appellants. 4 ... According to him the trial Judge reached a finding that the confessions of the 1st appellant made before PW2, PW3, CW1 and CW2 and the confession by the 2nd appellant to PW9 were made contrary to the requirements under the law, and were not given any weight. He also made a finding that the caution statement made by 2nd appellant which was recorded by PW8 did not comply with section 57 (1), (2) and (3) of the Criminal Procedure Act Cap 20 R.E.2002. He concluded that the non- compliance was fatal and the statement cannot therefore be relied upon. However the trial Judge contrary to the conclusion he had reached, he went ahead to convict the appellants on the evidence of CWl and CW2. He argued that the evidence of CWl and CW2 was not independent as they relied on what the sungusungu (PW2 & PW3) had informed them. If the evidence of PW2 and PW3 was not given any weight, then the evidence of CW1 and CW2 would have no leg to stand on. Mr. Kayaga emphasized that the trial Judge found the evidence on confessions so unreliable such that, in his summing up to the assessors he asked them not to consider the evidence at all. 5 Mr. Kayaga reiterated that there was no evidence on record to link the appellants with the offence. He contended that it was not the confession of the 1st appellant made before the sungusungu in Mipa which led to the discovery of the body of the deceased. The body of the deceased was discovered by her husband, PWl. In relation to the second ground of appeal which was argued in the alternative, Mr. Kayaga submitted that the trial Judge failed to consider the . defence of the appellants. He argued that a belief in witchcraft could be a defence of provocation. He relied on the case of John Ndunguru Rudowiki V Republic [1991] TLR at page 105. He complained that the appellants were not availed with the defence of provocation. The trial Judge even failed to address the assessors on the possibility of the said defence. On his part, Mr. Kakolaki did not support the appeal. He did not oppose the findings of the trial Judge on the unreliability of the confessions made by the 1st and the 2nd appellant. His arguments mainly centred on 6 the weakness of the defence case and he brought to the attention of the nd court numerous examples of the lies told by both the 1st and the 2 appellant. He made reference to the case of Hamidu Musa v Republic [1993] TLR 125. He submitted that the confessions can be relied upon as evidence if there is corroborating evidence, whether it is circumstantial or otherwise. He cited the case of Pascal Kitungwa v Republic [1994] TLR 67. He argued that it was the words stated by the 1st appellant at Mipa which led to the discovery of the body of the deceased. Mr. Kakolaki also relied on the evidence of PW1, PWS PW4 and PW7, that the 1st appellant was seen at the compound of PW1, on 30 June and on July 2. He submitted that the 1st appellant was properly convicted. He also stated that in view of the provisions of section 22 (1) (d) of the Penal Code the 2nd appellant having counselled the 1st appellant to commit the offence, she was equally guilty. With regards to ground No. 2, on the defence of provocation, he argued that no evidence was adduced that the appellants believed that the 7 deceased was a witch. As there was no sign of threat from the deceased the defence cannot feature. We are fully aware that an appellate court can only interfere with a finding of fact by a trial court where there has been a misapprehension of the evidence, a miscarriage of justice or a violation of principle of law or practice. See DPP v Jaffari Mfaume Kawawa v Republic 1981 [TLR] 143 and Mussa Mwaikunda v Republic, Criminal Appeal No. 174 of 2006 CAT (unreported). In Hassan Mfaume v R 1981 TL.R 167 the Court held as follws:- •~ Judge of first appeal should reappraise the evidence because an appeal is in effect a rehearing of the case" Emphasis added We have observed that the learned trial Judge in summing up to the assessors decided to sift the evidence for them and directed them as to which evidence they should or should not consider. This move was very unprocedural and highly irregular. His role is simply to summarise to 8 them the evidence on record and the laws applicable. He was not required to give them direction as to which evidence ought to be discarded. See Ally luma Mawepa v Republic 1993 TLR 231where it was stated as follows:- "When summing up to the Assessors the Trial Judge should as far as possible desist from disclosing his own views, or making remarks or comments which might influence the Assessors one way or another in making up their own minds about the issue or issues being left with them for consideration'~ We are of the considered view that there was no miscarriage of justice given the circumstances of this case. However we would like to state that it is very important to comply with all the requirements under the law. After a careful review and analysis of the entire evidence on the "lengthy" record and the judgment of the trial court, we have found a compelling need to interfere with the finding of the trial court. We are 9 satisfied in our minds that the trial judge had no basis to ground a conviction. After discarding the confessions made to the sungusungu commanders and the cautioned statements made by the 2nd appellant, it was not proper for him to base the conviction of the 1st appellant on the evidence of CW1 and CW2, whose evidence originates from the Sungusungu commanders. In relation to ground No. 1, the only evidence linking the appellants with the offence are the confessions made by the 1st and second appellants. As this evidence cannot be acted upon, the prosecution case falls apart. We are therefore inclined to agree with the submissions made by Mr. Kayaga that the evidence on record was not sufficient to support the conviction of the two appellants. In a Criminal trial the burden of proof always lies on the prosecution to prove its case beyond reasonable doubt, the burden never shifts and no duty is cast on the appellant to establish his innocence. See Mohamed 10 Said Matula v Repulic [1995] TLR 3. 32 and John Gilikola V Republic, Criminal Appeal No. 31 of 1999 CA (unreported). It is evident from the evidence on record this burden was not discharged. There is no credible evidence linking the appellants with the killing. The case against the appellants may well be highly suspicious. However in a criminal charge suspicion alone, however grave it may be is not enough to sustain a conviction. This being a criminal case, the burden lies on the prosecution to establish the guilt of the appellant beyond all reasonable doubt. See Woolmington V Director of Public Prosecutions 1935 AC 462 and Boniface Siwinga VR, Criminal Appeal No 421 of 2007 CAT (unreported). As for the alternative second ground of appeal, we are of the firm view that we do not have to discuss it because the first ground adequately disposed the appellants' appeal. 11 In the event, we allow the appeal, quash the convictions of both appellants and set aside the sentences. The appellants are to be released from prison forthwith unless they are lawfully held therein. DATED at TABORA this 28th day of May 2012. E.N.MUNUO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL L I certify that this is a true copy of the original. (Z.A@a) DEPUTY REGISTRAR COURT OF APPEAL 12