republic vs desi jonas 2013 tzhc 2103 17 july 2013

IN THE RESIDENT MAGISTRATE'S COURT OF TANGA AT TANGA (EXTENDED JURISDICTION.) CRIMINAL SESS. CASE NO.13 OF 2013 THE REPUBLIC VERSUS DESI JONAS Date of last order: 15.07.2013 Date of Ruling: 17.07.2013 RULING P.C. MKEHA, EXT. JUR. The information filed against this accused person, Desi s/o Jonas, is that, on 11th day of March, 2010 at Makumba village within Korogwe District in Tanga Region, the accused, did murder one SALOME d/o PAULO. When the information was read over to the accused person, he protested his innocence. During the preliminary hearing it was agreed and consequently established that the deceased in this case is indeed dead, that, the cause of death to the deceased was Cardiac arrest and Circulatory failure due to hypovolaemic shock due to extensive burn injuries covering more than 40 % of the deceased's body. It was also l conceded that, the accused and the deceased were living together as husband and- wife before they separated. The sketchplan of the scene of incident was also not in dispute. It was further agreed that, the accused person was arrested in respect of the offence charged. There remained therefore, a task upon the prosecution to prove to the satisfaction of this court that, the death of the deceased was neither natural nor accidental, that, the death was the contrivance of the accused now before this court and that the accused caused the said death intentionally or at the very least, that, the accused had an intention of causing serious bodily harm to the deceased. In view of proving the case againstthe accused, the prosecution examined four witnesses before this court. The prosecution has now closed its case. At the close of the prosecution case, the defence counsel Mr. Mlawa, made a submission of no case to answer. This ruling, follows that submission. Before I go to the details of the learned advocate's submission, 1 find it pertinent, to briefly state, the substance of evidence, upon which, the prosecution case rests. 2 Emmanuel Edward introduced himself to be the deceased's grandson. This person appeared before this court as PWI. He gave evidence under oath to the effect that, on the 11th day of March, 2010 at midnight, he was asleep. Then his wife awakened him to respond to a certain alarm she heard from outside. Upon going out of his house, he realised that, the alarm was being raised by his own grand mother whom he had hosted in one of his houses at his own compound. He saw his own house burning. Salome d/o Paul (the deceased) was by then inside the burning house. He too, raised an alarm to get some people who could assist him to stop the said fire. As he was raising an alarm, PWI heard a voice of a person asking for help from the burning house. According to PWI some people responded. Since the burning house had been closed from outside, they had to break the door to get inside the house. Upon breaking the outer door, PWI instructed the deceased to get out of her room. The deceased responded that she could not see where to go because of a flame which surrounded her. PWI instructed the deceased to move while following his voice (PWl's).The deceased did so. That is how the witness pulled the deceased outside of the burning house. 3 He put her under a certain tree. The body of the deceased was by then full of burn injuries. By then; a lot of people had gathered at that place in response to PW l's alarm to render an aid of stopping fire though it was by then too late. The witness further told this court that the deceased told him and the crowd of people who gathered at that place that, she was emphatic that, it was Desi Jonas (the accused) who set fire to the house in which the deceased was sleeping. The witness stated that, the deceased had narrated to him that, the accused, who used to have intimate relationship with the deceased, had approached the latter in view of reviving the said relationship and in view of sleeping with her the fateful night. When the deceased declined to accept that pursuasion, the accused is said to have threatened the deceased in the following terms: "Najua huna wageni lakini una watu unaotaka ulale nao, sasa tutaona kama hao watu utalala nao". The words can literally be translated to mean: "I know that you have no guests. All what you want to do, is to sleep with other people. Let us see if at all you will be able to sleep with them." The deceased's house was set to fire the very night. It was therefore because of what had transpired between 4 the accused and the deceased, the latter highly suspected the former to be her assailant. The deceased however, never said that she saw the accused setting fire to her house. The witness further described the geographical location of his house in relation to that of the accused and the one in which the deceased had slept on that night. In short, the three houses are just close to each other. That, the accused had threatened the deceased, this had been stated by the then Village Executive Officer for Makumba Village one Mr. George Petro Nyange who appeared before this court as PW2. This witness too, got time to interrogate the deceased shortly after the incident. The witness told this court that, the deceased had told him that, she suspected her former lover, Desi Jonas to be responsible of the event of setting fire to her house because of the threat which the accused had uttered to her when she denied sleeping with him the fateful night. According to this witness, the threat is couched in the following words: "basi utaona kama hanitaki." Again, the witness who recorded the deceased's dying declaration (PW4) told this court that the deceased told him that she suspected Desi Jonas to be his assailant because of the threat he had uttered to her the night of the event just some hours before the event. Before this witness, the deceased said that she had been threatened by the accused in the following words: "Kama hutakubaliana turudiane kimapenzi, utaona kitakachokutokea." That was during noon hours. Later on during the night, at about 01.45 hrs the accused is said to have knocked the deceased's door. Upon opening the door, the deceased saw the accused, they exchanged some words although the accused never managed to enter the house. The accused howeiver, is reported to have managed to pull a piece of cloth (Kitenge) from the deceased. PW4 stated that, the deceased told him that, as Desi was leaving, he again threatened her in the following words: "Kwa kuwa umenikatalia kuingia ndani kulala na wewe utaona." After a short while, the deceased witnessed the house within which she was sleeping burning. There is also from the prosecution case a story to the effect that, when the accused visited the house of the deceased left with 6 the latter's piece of cloth "kitenge" which he forcefully pulled from the deceased. The story goes on to indicate that, upon his arrest, the accused was found covering himself with that piece of cloth "Kitenge." PW2 and PW3 testified to that effect. After the event had happened, the deceased survived for three days and then died. PW1, PW2 and PW4 told this court that, although the deceased was in a very critical state in terms of pain resulting from the burn injuries, she was able to speak without difficulties. The prosecution has now closed its case. At the close of the case for the prosecution, Mr Mlawa stood on a plea of no case to answer with respect to his client, the accused person. On behalf of the accused, Mr. Mlawa submitted by seeking reliance on a stream of authorities which involved the subject of "no case to answer". The cases referred to were: Bhatt v.R (1957) EA 332; R.V. Kafengele (1968) HCD no 43; R.v. Edward Mongo (2003) TLR 45 and AG vs Ally Crystykes (1957) EA 257. According to the learned defence advocate, the prosecution have not adduced sufficient evidence, which, if the law is applied on it, would lead to the conviction of the accused, had it not been that the accused has a right of defence. The learned advocate submitted that, the authorities he cited on the subject of no case to answer are instructive that, when the prosecution closes its case without reaching that standard in adduction of evidence, then a finding should be made that the accused has no case to answer which finding should be followed by an acquittal order in favour of the accused. Mr. Mlawa went on to submit that, the fact that the deceased told different persons that the accused was her assailant was only evidence of consistency and not a quarantee of accuracy. He referred this court to the decision of the case of Pius Jasunga v. R (1954) 21 EACA 331. The learned advocate insisted that there was already a practice established in this country that for a dying declaration to support a conviction it must be corroborated. He was however mindful of the situations whereby the same can be acted upon without corroboration that being, in situations whereby the statement, (dying declaration) is made in the presence of the accused person. To this, the learned advocate (cited the case of R. V. Marwa (1971) HCD No 473. The learned advocate further submitted that/ there was no circumstancial evidence which could prove with mathematical accuracy that it was the accused who set fire to the house of the deceased. To this, the learned advocate cited the case of Makau & Another v. Rep (2010) 2 EA 283 at pg, 284. According to the learned advocate for the accused, the "Kitenge" story can not be taken to have corroborated the dying declaration. The learned advocate submitted that, although the deceased survived for three days after the incident, while of a sound mind, the same "Kitenge" was not taken before her so that she could confirm whether, what the accused was found with, was really her " Kitenge" or not. The learned advocate further submitted that, neither could the accused's failure to respond to the alarm on the night of event be taken to corroborate the dying declaration. After all, it was not stated in evidence that, all the villagers responded, save the accused person. The learned advocate urged this court to acquit his client for having no case to answer. In rebuttal, the Republic was being led by Ms. Msalangi assisted by Ms. Mtengule, both learned State Attorneys. Ms Msalangi was of the emphatic view that, a prima facie case had been established through the four prosecution witnesses. The Learned State Attorney submitted that all the prosecution witnesses had consistently testified that, they heard the deceased stating that she suspected Desi Jonas to be her assailant because of the threat which he had uttered to her some hours before the event that: " Kwa kuwa umekataa tusirudiane, utaona." The Learned State Attorney stated that, PW1, PW2 PW3 and PW4 had heard those words from the mouth of the deceased and; to the learned State Attorney, that was direct evidence. Section 62(l)(b) of the Evidence Act was referred to. The learned state attorney submitted that the "Kitenge" story and failure of the accused to respond to the alarm corroborated the dying declaration. The learned advocate added that, the attempt of the accused to run, when PW3 was effecting his arrest is also an indication that the accused was aware of the wrongful act he had done. The Learned State Attorney was of the view that, there was an unbroken chain of events in the instant case. She therefore invited me to rely on the case of Hamidu Musa Timotheo and Majid 10 Musa Timotheo and Majid Musa Timotheo Vs Rep. (19930 tlr. 125 to hold that, the accused has a case to answer. It was further the learned State Attorney's view that there was sufficient circumstancial evidence which is considered to be the best evidence oftenly. To this, she referred me to the case of Tumhere vs Uganda (1967) EACA She again asked me to require the accused to give a satisfactory explanation as to how he came to possess the deceased's "Kitenge." To this, reference was made to the case of Maruzuku Hamis V. R (1997) TLR The Learned State Attorney concluded her pursuasive submission by stating that, in her considered view and that of the Republic, a prima facie case had been established. When he was asked to rejoin, the defence counsel told this court that, referring to what is the fact in issue in the instant case, it can not be said that there was any direct witness from the side of the prosecution. He also stated that, all the cases cited by the Learned State Attorney were distinguishable from the case before me. He thrown the matter to the court to decide as it is customary. li In confronting the two contesting submissions, I ask myself the following important question. When can a submission of no case to answer be upheld? Next to that, is another, equally important question: What is the fact in issue in this case? In resolving the first question, inevitably, I find myself resorting to Bhatt's case (supra), to seek for an answer. In that case, the Court of Appeal for Eastern Africa defined a prima facie case in the following terms at pages 334 -335: " Rem em bering that legal onus is alw ays on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prim a facie case is made out if, a t the dose o f prosecution, the case is m erely one "which on fu ll consideration m ight possibly be thought su fficien t to sustain a conviction." This is perilou sly near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes that the defence w ill f ill the gaps in the prosecution case. Nor can we agree that the question w hether there is a case to answ er depends on whether there is; "some evidence irrespective o f credibility o r weight, su fficien t to p u t the accused on h is defence." A m ere scin tilla o f evidence can never be enough, o r can any am ount o f w orthless discredited evidence. I t is true as W ilson, J. said, that the court is n ot required a t that stage to decide fin a lly whether the evidence is worth o f credit, o r w hether if believed it is weighty enough to prove the case conclusively; that fin a l 12 determ ination can only properly be made when the case fo r the defence has been heard\ It m ay not be easy to define what is m eant by "a prim a facie casef/ but a t least it m ust mean one on which a reasonable tribunal, properly directing its m ind to the law and the evidence could convict if no explanation is offered by the defence." I earlier indicated in the beginning of this ruling that it was the prosecution's task to prove to the satisfaction of this court the following three elements of the offence of murder:- (i) That, there happened a death o f the deceased which was neither natural, nor accidental; (ii) That, the death o f the deceased was the contrivance o f the accused now before th is court and (H i) That, the accused caused the said death intentionally o r a t the very least, that, the accused had an intention o f causing serious bodily harm to the deceased. As rightly submitted by the Learned State Attorney, Ms. Msalangi, indeed the deceased is dead and the Report on Post Mortem proves the fact that the death of the deceased was not natural. The dying declaration relied upon by the prosecution is cauched in the following different terms: 13 To PW1: "Najua huna wageni lakini una watu unaotaka ulale nao, sasa tutaona kama hao watu utalala nao." To PW2: "Basi utaona kama hunitaki" To PW4: " Kama hutakubaliana turudiane kimapenzi, utaona kitakachokutokea." Taken as they are, the words, though each prosecution witness had his own version, do not specifically state that the deceased told any of the witnesses that, she saw the accused setting fire to her house. The words are truly threatening. They however do not prove as to who actually set fire to the house of the deceased. Can it safely be said that the said dying declaration if any, proved that the death of the deceased was the contrivance of the accused and that, the accused caused the said death intentionally or at the very least, that, the accused had an intention of causing serious bodily harm to the deceased? That takes me to the next question namely, what is the fact in issue in this case? In my considered view the fact in issue in this case is: who actually set fire to the house of the deceased? Ms Msalangi Learned 14