KASHUMBA

I N T H E H I G H C OU RT O F U N I T E D R E P U B L I C O F TA N Z A N I A (K IG O M A S U B -R E G IS T R Y )

A T K IG O M A D C . C R I M I NA L A PP E A L N O . 37 O F 2 022

D I R E C T O R O F P UB L I C P R O S E C U T I O N S A PP E L L A N T

VERSUS EDWIN KASHUMBA 1st RESPONDENT ALBERT LULYALYA@ SITTA 2"d RESPONDENT JOB JOHN @ GWASA 3rd RESPONDENT JUMANNE MWINYO 4th RESPONDENT MG. 284370 LUCAS GOMBEYE 5th RESPONDENT (Appeal from the decision of the District Court of Kigoma at Kigoma) (K. V. Mwakitalu, RM) Dated 29th day of August 2022 In Criminal case No. 139 of 2021

JUDGMENT 22/04/ & 06/05/2024 NKWABI, J.: I am intrigued, in this case, by what has become a truism held by several societies in Tanzania that goes, "Lying and stealing are next door neighbours.// For a period of over two decades, I have experienced, in various parts of Tanzania that pearl of wisdom has not escaped the mouths of elder people. I am certain, however, that lies, they, be said by a prosecution witness or a defence witness are unwelcome in the administration of not only criminal justice but also civil justice. That could 1 b e g le an e d in Bahati Makeja v. Republic, Criminal Appeal No. 118 of 2006 ( unreported) where it was stressed that: ''It is settled law that a witness who tells a lie on the material point should hardly be believed in respect of other points. ,, The same stand view was taken in Republic v. Agnes Doris Liundi [1980] T.L.R. 38 Makame, Judge, as he then was, stated that: "... I am sstistied, beyond reasonable doubt, that Martha Sizya furnished this court with deliberate untruths and that she is an unblushing and unabashed liar ... ,, In terms of the stance of societies in Tanzania, I have mentioned earlier, there are a handful of platitudes which reflect the above position of the law. One of them being, "One lie is enough to question all truths." In this appeal, while the appellant natures the view that the respondents are guilty of assault

causing actual bodily harm contrary to section 241 of the Penal Code, Cap 16. R.E. 2022, the respondents are interested to see their clean names (records) maintained by this Court. The trial court exonerated the respondents from the alleged offences owing to material contradictions in the evidence adduced by the prosecution, which in the 2 v ie w o f th e tria l c o u rt w e n t to the roo t o f th e c a s e . T h e res p o nd e n ts w e re a c q u itt ed o f b o th c o u n ts . T h e a p p ea l w as d is po s ed o f b y w a y o f w ritt e n s u bm iss io n s . B o th p a rt ie s fi le d th e ir res p e c tiv e w ritte n su bm is s io n s . T h e w ritt e n s u b m iss io n s fo r th e a p p e llan t w e re d ra w n a n d fi le d b y a S ta te A tto rne y , w h ile th e re p ly su b m iss io n w a s w ritte n a n d fi led b y M r. M e th o d R . K a b u gu z i, lea rn e d ad vo cate . T h e a p pe llan t, o v e r th e 1st and 2nd grounds of appeal, criticises the trial court for failure to decide that the appellant had proved her case beyond reasonable doubt while there was watertight evidence against the respondents. It was maintained that through the testimonies of PW.1, PW.2, PW.3, PW.5, and PW.6 corroborated with the testimony of PW.4 proved the charge beyond reasonable doubt. It is pressed that before the respondents arrived at the premises, PW.1 and PW.3 were health with

no injuries but the respondents used excessive force which is contrary to the law. It is argued that PW.2, PW.5 and PW.6 identified the respondents. The appellant added that the respondents, save the 2nd respondent did not dispute to have been at the premises at the material time. It is unfortunate that even the facts of the case, do not bear the allegations of the appellant. The facts which were read over during the 3 p re lim ina ry h e a rin g d id no t in d ic a te a n y e xce ssiv e fo rce b e ing use d . PW .1 him se lf, in e vid e n c e, ind ic a te s tha t he re fuse d to co m p ly w ith th e d e m a n d o f th e C ou rt B ro ke r. T ha t is cou p le d w ith w h a t o th e r w itn e sse s te stifi e d th a t th e a tta cke rs said , 'tumechoka kubembetere: Indeed, PW.1 claimed to have regained consciousness at the police station counter. He protested that he was treated at Maweni Hospital but his condition became worse thus referred to Muhimbili hospital and MOI Department. He claimed his skull got fractured and could not even make love to his wife. He had found his son Yese unconscious at the premises. About being unconscious, they were supported by PW.5 Ramadhani who said he did not see the pt accused person at the scene but also did not see what had happened before he got there. He further said he did not see when the car was attached. In cross-examination, PW.1

admitted to have been convicted in a criminal case for preventing an execution of Court order and sentenced to one year imprisonment. It was PW.2 who confirmed that they obstructed implementation of the attachment order. She also said, Yese, his brother was hit by the respondents on various parts of his body who fell down unconscious. She said their father was hit with a club on the head. They threw Jese and their father into their motor vehicle and went away with 4 nd th e m . It w a s th e 2 accused person who ordered the beating up after coaxing them to let go the motor vehicle. In his evidence, Yese (PW.3) said he was attacked when he went to take Sara who was laying down, because of that he was assaulted. He said he regained consciousness while he was at the police station. They were treated and at 00:00 am were taken back to the police station. He too admitted to have been convicted for obstruction of execution, and that he filed an appeal out of time. He denied to have sustained a fracture on the skull. He said, and I quote, "You were ordered to assault me by the Court Brokers, they seid. 'tumechoka kubembeleza 'and it was then you started to beat me. " PW.4 Kagimbo, a clinical officer, corroborated the stories of PW.1 and PW.3 on sustaining head injuries. But said, PW.1 got three stitches while PW.3 had sustained only bruises. She confirmed that their injuries

were caused by a being hit with a sharp object. She attended both PW.l and PW.3 did not mention any serious injury, but said they sustained injuries through a sharp object, but said should have commented that the object so used was a blunt one. She stressed, in cross-examination, that the x- rays show no injury to their skulls, so, they were not fractured. 5 W h ile , th e c h a rge s hee t a nd th e e v id e n c e o f P W .1 a n d P W .3 sta te th a t P W .1 s u s ta in e d a fr a c tu re o f th e s k u ll, th e m e d ic a l d o cto r in s is t th a t x - ra y s s h o w e d n o fr a c tu re . T h e PW .1 , PW .3 a nd P W .2 cl a im tha t P W .1 a n d P W .3 lo s t c o n s c io u s n e s s a nd th ey re g a in e d c o n s c io u s n e s s a t th e p o lic e sta tio n , P W .6 w h o re c e iv e d th e m a nd issue d th e m w ith P F .3 to g o fo r trea tm e n t sta te d th a t w h e n th e y rea c h e d a t th e p o lic e sta tio n the y w e re t a lk in g . W ith th e a b o v e c o n tra d ic tio n s , I do n o t se e w h y th e tria l c o u rt c a lle d u pon th e re sp o n de n ts to e n te r th e ir d e fe n c e . T he p o s itio n o f th e la w th a t is re le v a n t h e re c ou ld b e s e e n in Republic v. Makuzi Zaid & Another [1969] H.C.D. No. 249, Georges C.J., as he then was, quoted Bamaulal P. Bhat v. Republic [1957] E.A. 332 where it was held that: "The case to be

prima facie case must be such that a reasonable tribunal properly directing its mind to the law and the evidence can convict if no explanation is offered by the defence. '' See also Mussa Fedha v. Republic, Criminal Appeal No. 169 of 1992, (Unreported), CAT, where it was stated thus: 6 '~ s to the deceesed 's embarrassing inde cen t dancing this was bro ught out by the appellan t himself in cross- examina tion by the second assessor. It was therefore no t part of the prosecution case. ·: .. It is thus clear that when the prosecutio n closed th eir case, there was n o basis on which th e appellan t could ha ve been con victed. A s it turn ed o ut the appellant was con victed n o t on the strength of th e prosecution case b ut on what he said. Wha t wo uld ha ve happened if th e appellan t had opted to say no thing ? Appeal allo wed. // The learned State Attorney tried to justify the testimony of PW.4 that she clarified that the object used to inflict the injuries was blunt instead of sharp object. On the other hand, there was another witness who said the injuries were sustained by use of a hammer instead of clubs. I do not accept the stand point of the learned State Attorney because, the wounds were described by the medical doctor in the PF.3s as cut wounds which do not reflect the weapon as a blunt object. My sentiment is backed by Republic v. Kerstin Cameroon [2003] T.L.R. 84

where it was underscored that: ''Since the evidence of an expert is to carry more weight than that of an ordinary witness, higher standard of 7 accuracy and objectify are required from him. An expert should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise and should never assume role of advocate. // When the trial magistrate questioned the absence of the referral letter and treatment documents from Muhimbili (MOI) hospital to justify that the appellant had not proved her case beyond reasonable doubt, the appellant brought to my attention the decision in Ahas Kondo Gede v. Republic [2020] 2 T.L.R. where it was stated that: "Oral evidence if worthy of creait; like in circumstances obtaining in the present case is sufficient without documentary evidence to prove a fact or title/ thus where a fact may be proved by oral evidence it is not necessary that documentary evidence must supplement that evidence as this is the other method ofproving a fact // With the nature of the evidence (oral testimony) that is available in the record, the trial magistrate was justified to find that the appellant had not prove her case beyond reasonable doubt. This reminds me of a cliche that goes, "Pain forces even the innocent to lie." PW.1 and PW.3 were in pain of losing their (family) dear motor vehicle. They are forced to

lie (fracture 8 o f th e s k u ll an d re fe rra l to M O I) n o t o n ly in o rde r to re v enge a g a in s t th e a tta c h m e n t o f th e m o to r v e h icl e b u t als o the p ro se c u t io n a nd p o ssib ly c o n v ic tio n a nd th e s en te n c e th e y s us ta ine d fo r ob s tru c tio n o f e x e c u tio n p ro c e s s . T h e a p p e ll an t, in h e r s u b m iss io n s, is pa in ting th e pic tu re tha t th e c o n tra d ic tio n s s u c h a s rea c h in g a t th e p o lic e s ta tio n u n c on s c io u s w h ile the p o lic e w ho re c e iv ed th e a ll eged v ic tim s o f th e a ssa u lts s a id w e re c on s c io u s , as m in o r c o n tra d ic tio n . I d o n o t th in k s o . M o re s o w h e n tha t cla im o f b e ing u n c o ns c io u s is lin k ed to th e ass e rt io n o f e x c e s s iv e fo rc e us ed in the a tt a c h m e n t o f th e m o to r v eh icl e . H a v ing s ta te d a s a b o ve, I a m o f a c o nside re d v ie w th a t th is a p p e a l la c k s m e rit, I a c c ep t th e s ta n c e ta k e n b y th e c o u ns e l fo r th e res p o nd e n ts . T h is a p pe a l is d is m is s ed in its e n tire ty . T h e d e c is io n o f th e tria l c o u rt is u p he ld . It is so ordered.

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