john daniel munda vs the director of public prosecutions 2023 tzca 17510 21 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: JUMA. C J„ NDIKA, J.A.. And KEREFU, 3.A.V CRIMINAL APPEAL NO. 220 OF 2021 JOHN DANIEL MUNDA............................................... ........ ...APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS......................... RESPONDENT (Appeal from the Decision of the Court of the Resident Magistrate's Court of Songea) (Lvakinana, PRM Ext. 3uris.1l dated the 24th day of March, 2021 in RM. Criminal Sessions Case No. 6 of 2020 JUDGMENT OF THE COURT 17th & 21st August, 2023 KEREFU. 3.A.: The appellant, JOHN DANIEL MUNDA was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Gap. 16 (the Penal Code) in RM. Criminal Sessions Case No. 6 of 2020 before the Resident Magistrate's Court of Songea (Lyakinana, PRM - Ext. Juris.). It was alleged that, on 5th October, 2017 at Nandengele area in Lumecha Village within Namtumbo District in Ruvuma Region, the appellant murdered one Charles Cristandus @ Kilowoko (the deceased). The appellant denied the charge. However, upon a full trial, he was found guilty, convicted and handed down the mandatory death sentence. In essence, the substance of the prosecution case as obtained from the record of appeal indicates that, both the deceased and the appellant were residents of Lumecha Village within Namtumbo District in Ruvuma Region. According to the testimony of Xavery Charles Kilowoko (PWl), there was a long-standing conflict between them over ownership of land measuring about 15 acres (the farm), located in the same Village. However, the said dispute was finally determined by the High Court of Tanzania at Songea in Land Appeal No. 16 of 2015 in favour of the deceased. A copy of that decision was admitted in evidence as exhibit P4. That, on 5th October, 2017, the appellant and his wife, Anna Dominicus Komba (PW3) went to the said farm and started digging. While there, they saw the deceased and his wife, Anna Metodi Ntala (PW6) together with their daughter Agness Ntala in the farm, PW3 testified that, the appellant approached the deceased and asked him what he was doing at the farm and the deceased responded that he was digging. Subsequently, the appellant picked a piece of wood and threw it towards the deceased but the deceased avoided it. Then, the appellant drew his billhook {nyengo) and moved closer to the appellant. Sensing danger, PW3 shouted to the appellant to stop, but the appellant did not heed the warning as he proceeded and cut the deceased on his head with the said nyengo whereupon, the deceased fell down unconscious. Hurriedly, PW3 and the appellant left the scene of the crime and went home. It was PW3's further testimony that, when they reached home, the appellant asked her to give him TZS 1,000.00 which she did not have. Thus, the appellant asked her to go and borrow the said money from one Zajuzi, where she went, obtained the money and gave it to him, with the money, the appellant told PW3 that he was going to Songea to his cousin named Alfred and that, she should hide and or throw the nyengo into a river. That, should she not obey, he would come back and hurt her. PW3 stated further that, she took the nyengo and threw it in a bean's farm. On the next day, i.e 6th October, 2017, PW3 was interrogated by Insp. Shulla Ebho (PW7) about the said nyengo and on 7th October, 2017, she led PW7 to where she threw it. PW7 seized it and filled a certificate of seizure which was also signed by PW3, Yasin Ponera and Edward Munda as independent witnesses. The said nyengo and the certificate of seizure were admitted in evidence as exhibits P2 and P3 respectively. According to PW6, after the deceased was attacked and passed out, he regained his consciousness and started going back home with her. While they were about to reach home, people who saw the deceased wounded, raised an alarm and some people responded. One of those people carried the deceased on a motorcycle and took him to Songea Regional Referral Hospital where he was attended by Dr. Victor Mchilika (PW5). It was the testimony of PW5 that the deceased died on 7th October, 2017. That, he conducted an autopsy on the deceased's body and concluded that his death was due to severe cerebral bleeding caused by a big cut wound on his scalp. A post mortem report to that effect was admitted in evidence as exhibit PI Hamza Abdu! Mbawaia (PW2) was also among the people who responded to the alarm. He testified that, he found the deceased injured on his head and was informed by PW6 that it was the appellant who injured him. PW2 stated further that he saw the appellant boarding a bus to Songea. That, they went and stopped the bus and required the appellant to step down but the bus conductor resisted on ground that people would kill him. The said conductor however, assured them that he would avail him to the Police at the next traffic Point. Upon arriving at that point, he handed over the appellant to No. G.3263 PC Nurdin Alfy Juma (PW4) who took him to Namabengo Police Station where he was interrogated by No. F.1333 D/SGT Onael Makala (PW8) who recorded his cautioned statement. In his defence, the appellant, apart from admitting that he also resided at Lumecha Village and that he knew the deceased, PW3 and PW6, dissociated himself from the accusations levelled against him by raising a defence of alibi. He averred that, on the fateful date, 5th October, 2017, while going to Songea by bus, a police officer stopped the bus and he was arrested by PW4 and taken to Namabengo Police Station. That, upon being interrogated by PW8, he denied to have caused any grievous harm to the deceased. He thus he disowned the said nyengo as he claimed that when he was arrested it was not in his possession. He also challenged the evidence of PW3 and PW6 that they gave untrue story before the trial court. He blamed the prosecution for failure to summon Agness Ntala who was alleged to be at the scene of the crime and the two independent witnesses who were alleged to have signed exhibit P3. He also blamed PW7 for failure to produce the sketch map of the scene of the crime and his cautioned statement. At the end of the trial, the presiding learned trial Magistrate summed up the case to the assessors who sat with him at the trial. In response, the assessors returned a unanimous verdict of guilty against the appellant. In his final verdict, the learned trial Magistrate agreed with the assessors and found the appellant guilty and convicted him as indicated above. Dissatisfied, the appellant is now before us challenging the decision of the trial court. It is noteworthy that on 28th June, 2021, the appellant lodged a memorandum of appeal comprising five grounds of appeal. However, on 15th August, 2023, Mr. Edson Mbogoro, learned counsel who was assigned to represent him, substituted the said memorandum with a new one comprising four grounds. When the appeal was placed before us for hearing, Mr. Mbogoro prayed to abandon the original memorandum of appeal and the fourth ground in the substituted memorandum. He thus intimated that he would argue the following three grounds: 1, That, having disregarded the appellant's defence o f alibi, the trial court erred in law and fact for failure to take into account what transpired at the scene o f the crime and availed the appellant the defence o fprovocation; 2, The trial court erred in law and fact for failure to take into account that the evidence o f PW3 amounted to that o f an accomplice; 3, That, the trial court erred in law and fact for failure to draw adverse inference on the prosecution for failure to summon Agness Ntala who was said to be at the scene o f the crime. On the adversary side, the respondent Republic was represented by Mses. Sabina Silayo and Hellen Chuma, learned Senior State Attorneys, but it was Ms. Silayo who addressed us first by making their position clear that they were opposing the appeal. She however, intimated that she would respond to the third ground, while her colleague, Ms. Chuma, would respond to the first and second grounds. Submitting on the first ground, Mr. Mbogoro, although admitted that during the trial the appellant raised a defence of alibi, he insisted that the death of the deceased occurred as a result of provocation within the context of the long-standing conflict between the appellant and the deceased. He thus faulted the learned trial Magistrate for failure to hold that what transpired at the scene of the crime availed the appellant the defence of provocation. It was his argument that, had the learned trial Magistrate directed himself on what transpired at the scene, would have convicted the appellant of a lesser offence of manslaughter instead of murder. In establishing that the appellant was provoked, the learned counsel picked the evidence of PW3 and PW6. Although, he equally admitted that in their testimonies, PW3 and PW6 did not state that there was a quarrel or arguments between the appellant and the deceased prior to the incident, he insisted that since it was the deceased who approached the appellant, the trial court was required to find that there was provocation and decide the same in the favour of the appellant. On the second ground, Mr. Mbogoro faulted the learned trial Magistrate for failure to consider the evidence of PW3 as that of an accomplice. He referred us to pages 50 and 51 of the record of appeal and argued that, in her evidence PW3 stated on how she assisted the appellant to escape and hide the weapon used to attack the deceased. To support his proposition, he cited section 142 of the Evidence Act and urged us to find that PW3 was an accomplice and that her evidence was not corroborated. On the last ground, it was the submission of Mr. Mbogoro that, although, during committal proceedings, the prosecution listed Agness Ntala as one of their witnesses at the scene of the crime, she was not summoned to testify before the trial court to shed light on what exactly transpired at the scene. Although, Mr. Mbogoro acknowledged that, PW6 at page 73 of the record of appeal testified that Agness was not mentally fit for being suffering from convulsions, he insisted that the failure by the prosecution to field such an important witness should have prompted the learned trial Magistrate to draw an adverse inference against the prosecution. Based on his submissions, he urged us to allow the appeal and find that the appellant was provoked at the scene of the crime thus he deserved a punishment for a lesser offence of manslaughter. In response to the first ground, Ms. Chuma countered that, from the evidence on the record, there was no doubt that it was the appellant who attacked the deceased with malice aforethought. Expounding on that point, she referred us to the evidence of PW3 and PW6 who witnessed the incident at the scene and argued that, in their evidence there is nowhere they indicated that, prior to the incident, the appellant 8 was provoked by the deceased. She referred us to page 49 of the record of appeal and argued that, in her testimony, PW3 stated clearly that it was the appellant who approached the deceased and asked him what he was doing at the farm and the deceased responded that he was digging. It was her strong argument that the deceased's response cannot, at any standard avail the defence of provocation to the appellant. That, is why, even in his defence during the trial, the appellant never raised that defence as he only relied on the defence of alibi, she argued. She thus insisted that, at the trial, the prosecution managed to establish that the appellant attacked the deceased with malice aforethought due to the nature of weapon used, the amount of force he applied to injure the deceased and the part of the body where the harm was inflicted together with his conduct before and after the incident. To support her proposition, she cited the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 (unreported) and urged us to find that the appellant's first ground is devoid of merit. As regards the second ground, Ms. Chuma argued that the same is baseless because at the trial, PW3 testified as a competent witness and not as an accomplice and had never been a co-accused because she did not participate in the commission of the offence. To elaborate further on this point, Ms. Chuma referred us to page 49 of the record of appeal and argued that, at the trial, PW3 clearly testified that when the appellant was about to attack the deceased, she warned him to stop, but the appellant proceeded and attacked the deceased. It was her further argument that the act of PW3 of borrowing money and hiding the weapon used by the appellant cannot be translated that she was an accomplice because she only obeyed what was ordered by her husband who threaten her that should she not comply with his orders, would come back and hurt her. She thus urged us to find that the appellant's complaint in this ground is unmerited. In response to the third ground, Ms. Silayo cited section 143 of the Evidence Act and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. She thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW3 and PW6 who were at the scene and clearly narrated what transpired. She added that the evidence of those two witnesses was corroborated by PW2, PW4, PW5, PW7 and PW8. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses and the reason for not summoning the said Agness was well stated by PW6. She thus also urged us to find that the third ground is devoid of merit. In conclusion and on the strength of their submissions, she urged us to find the appellant's appeal unmerited and dismiss it in its entirety. 10 In a brief rejoinder, Mr. Mbogoro reiterated his earlier position and maintained that the appellant was provoked at the scene of the crime. Having considered the rival arguments by the learned counsel for the parties in the light of the record of appeal, the grounds of appeal as well as the substance of their oral submissions, we should now be in a position to consider the grounds of complaints raised. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). Starting with the first ground, there is no doubt that it raises one issue as to whether, in the circumstances of this appeal, the defence of provocation was available to the appellant. Provocation as a defence is provided for under section 201 of the Penal Code, which states that: "When a person who unlawfully kills another under circumstances which, but for the provisions o f this section would constitute murder, does the act which causes death in the heat o f passion caused by sudden provocation as defined in section 202, and before there is time for his passion to cool, he is guilty o f manslaughter only." ii In addition, section 202 defines the term "provocatiorf' to mean: "...any wrongful act or insult o f such a nature as to be likely, when done to an ordinary person, or in the presence o f an ordinary person to another who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation o f master or servant, to deprive him o f the power o f self- control and to induce him to commit an assault o f the kind which the person charged committed upon the person by whom the act or insult is done or offered." In terms of the above provisions, the defence of provocation can only sail through once the court is satisfied that the words uttered or conduct demonstrated by the deceased were provocative to an ordinary person of the community to which the appellant belonged. This Court in several occasions, has pronounced itself on the applicability of the above provisions, See for instance, the cases of Moses Mungasiani Laizer Alias Chichi v. Republic [1994] TLR 222, Nyakua Orondo v. Republic, Criminal Appeal No. 141 of 2002 (unreported) and Saidi Kigodi @ Side v. Republic, Criminal Appeal No. 281 of 2009 [2011] TZCA 137: [1 July 2011: TanzLII]. In the latter case, this Court held that: 12 "We are o f the firm view that the defence o fprovocation is avaiiabfe to a suspect who kills;at a-spur o fthe moment, in the heat o fpassion before he has time to cooi down. " Furthermore, In the case of Kenga v. R (1991) I EA 145, the Court of Appeal of Kenya sitting at Mombasa held that: "The accused does not have to prove provocation but only to raise a reasonable doubt as to its existence." We find the above decision highly persuasive hence we take inspiration from that position. In the instant appeal, we have carefully considered the evidence on record, together with the circumstances surrounding the case like the events which occurred before the incident, the appellant's conduct before and after the event, and we fail to detect any act which would raise a reasonable doubt to establish that the appellant was provoked. For clarity we have revisited the evidence of PW3 and PW6, the only prosecution's eye witnesses at the scene of the crime to ascertain what exactly transpired. In her testimony found at page 48 of the record of appeal, PW3, the wife of the appellant who, before adducing her evidence, was properly addressed in terms of section 130 (1) of the Evidence Act, testified that: "...on 5/10/2017, I was at my farm at 9:00 hours. I was with my husband John Daniel Munda. We were digging (tuiikuwa tuna/ima). While there, we saw Charles Cristandus Kiiowoko with his wife. Charles carried a hoe 13 and he started to dig in his farm. Then, John asked him that, what was he doing there? And Charles replied that, he was digging there. Then, John Daniei Munda followed Charles Cristandus Kiiowoko and picked a bar o f a tree and threw it at Charles Cristandus KHowoko. Then, Charles 'afikwepa kite kipande cha mti.' There was a nyengo there, John Daniel took it... I there toid John to 'stop'but he did cut Charles Cristandus KHowoko with the said nyengo on his head (utosini)." PW3's evidence was corroborated by PW6 who was also at the scene of crime. In her own words, PW6 at pages 71 to 72 of the same record, testified that: "That, on 05/10/2017 at 07:30 hours, I together with my husband, Charles Cristandus KHowoko we were at the farm/shambani... While they were digging, I saw John Daniel Munda and his wife coming to the place where Charles Cristandus KHowoko was... When John used a bar o f tree to hit Charles Cristandus, Charles Cristandus did not respond anything. A/so, after John Daniei Munda cut Charles Cristandus KHowoko by using nyengo, Charles did not do anything at all. When we saw the said event, I and the wife o f John Daniel Munda, we stopped Daniei but he refused." From the above excerpts, we are settled that the defence of provocation suggested by the appellant's counsel cannot stand. This is so, because the evidence is clear that at the scene, it was the appellant 14 who approached the deceased and asked him what he was doing at the farm and the deceased said the obvious that he was digging. Thereafter, the appellant picked a piece of wood and threw it towards the deceased but he avoided it. Then, the appellant, drew his nyengo and cut the deceased on his head. As eloquently argued by Ms. Chuma, the response by the deceased to the question asked by the appellant, could not be adjudged provocative by the standard of an ordinary person of the community which the appellant belonged as Mr. Mbogoro would have us conclude. We equally find the claim by Mr. Mbogoro that the said provocation might have been caused by the alleged long-standing conflict which was finally determined by the High Court two years ago i.e 2015 prior to the date of the incident unfounded. In Jacob Asegelile Kakune v. The Director of Public Prosecutions, Criminal Appeal No. 178 of 2017 [2020] TZCA 75: [24 March 2020: TanzLII] when faced with an akin situation, we stated that: "...for provocation to be a defence it is not enough for one to cite a long existing conflict or provocation as it has been done in this case, because that wifi not suffice if there is no last and sudden act o fprovocation." -see also our decision in Said Kigodi @ Side (supra). With profound respect, and following the Court's reasoning in the above cited cases, we find the submission by Mr. Mbogoro on this matter, to be nothing, but an afterthought. Worse enough, and as correctly argued by Ms. Chuma, throughout the trial, the appellant never raised that defence as, he only relied on the defence of alibi. We equally wonder how can the two defences {alibi and provocation) be invoked at the same time? Definitely not. We are increasingly of the view that, since during the trial the appellant relied on the defence of alibi, Mr. Mbogoro's criticism on the finding of the learned trial Magistrate on this aspect is, with respect, without any justification. On that basis, we dismiss the first ground for lack of merit. As for the second ground, we wish to start by defining the word accomplice. Pursuant to Osborn's Law Dictionary, 8th Edition, the word accomplice is defined to mean, "Any person who either as a principal or as an accessory,, has been associated with another person in the commission o f any offence " Having revisited the evidence of PW3 which was corroborated by the evidence of PW6 who was also at the scene of the crime, it is our settled view that PW3 by any standard, does not fit to be an accomplice in the circumstances of this appeal. We therefore agree with Ms. Chuma that the appellant's complaint in this ground is unfounded. On the last ground, we wish to state that, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is 16 proof beyond reasonable doubt. Therefore, the prosecution is at liberty to bring only those witnesses who could advance their case regardless of the number - see section 143 of the Evidence Act. What is required is the quality of evidence and the credibility of the witnesses. This position has been emphasized in several decisions of this Court. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100 and Mwita Kigumbe Mwita & Another v. Republic, Criminal Appeal No. 63 of 2015 (unreported). In the latter case, the Court stated that: "In each case, the court looks for quality, not quantity o f the evidence placed before it. The best test for the quality o f any evidence is its credibility. It was for the prosecution to determine which witness should prove whatever fact it wanted." In the instant appeal, however, the reason for failure to summon the said Agness as a witness was well stated by PW6 at pages 73 to 74 of the record of appeal. That, she was suffering from persistent convulsions affecting her mental capacity to testify coherently before the court. That said, and being guided by the above authorities, we go along with Ms. Stfayo's submission and also find the third ground of appeal devoid of merit. In totality and upon a careful re-appraisal of the evidence on record, we are satisfied that, the evidence taken as a whole establishes 17 that the prosecution's case against the appellant was proved beyond reasonable doubt. For the foregoing reasons, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at SONGEA this 20th day of August, 2023. I. H. JUMA CHIEF JUSTICE G. A.M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL This Judgment delivered this 21st day of August, 2023 in the presence of Mr. Lazaro Simba holding brief for Mr. Edson Mbogoro, learned counsel for the appellant and Mr. Edgar Luoga, learned Principal State Attorney assisted by Ms. Sabina Silayo, learned Senior State Attorney for the respondent / Republic, is hereby certified as a true copy 18