20030701 TZCA Mwanza

·; ,. IN TI-IE COURT OF APPEAL OF •J:AN?.ANIA

AT MWANZA (.QQB;AM: Ll!_BUVA, Jo.Ao, MUNUO, JoAo, And NSEKELA.~ ~ ) - CRIMINAL APPEAL NO. 50 OF 1999 GODLUCK l''IAGANGA APPELLltNT AND THE REPUBLIC o o o n o a ono,,toet,oftnoa o .,., RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) :· (Ihi=ima·. J.) dated the 1st day of June, 1999 in Qriminal Session?~sa No. 49 of 199~ --------} JUD.Q_t1ENT OF THE' COTJR'f In this appeal, the appellant Godluck Maganga, was charged with and convicted of murder c/s 196 of the Penal Code and was sentenced to death. Dissatisfied with the cop.victi_o;q___?-nd sentence of:. __ .the High Court, (Ihema, J.) he is appealing to this Court. Arguing cin behalf of the appellant, r•:ro Byabusha, learned defence Counsel preferred two grounds of appeal. In the first ground he complained that the learned trial judge failed to direct himself and the assessors that the defenc·e of .self-defence was a,railable to the appellant a..nd secondly, that the learned trial judge failed to consider what he called 11 the possibility of mob justice and accomplice evidence of PW1". PW1 , Hawa Sbabani @ Mama Mento was a neighbour of the appellant who was looking after cattle belonging to one Mr., .!'1~shio She testifie.d. that one day which she • . 2 coula not remember at about 9oOO pm she hea-:rd someone crying for helpo She proceeded t·owards that direction where the appellant's house was, and

fauna the appellant holding a panga whilst tbe deceacea was lying on the grounao The panga had blood on ito The appellant told her that the deceased was atternpting to steal cattle. Both of them took the deceasea to PW1's home and as the deGease<'l-'-s- condi ti-on was·-a·eteriorating, ?W1 telephoned the police from a nearby house and upon their arrival she informed them that the appellant had \·JOunded the deceasedo Under cross-examination, PW1 testified that she was the first to arrive at tbe scene, but other people arrived soon thereafter. They carried no weapons nor aid they attack the deceased. And during re- examination PW1 stated - ar saw accused go into the latrine with a panga and when he came back, he had no panga and when we queried he did not answer properlyoH PH2--C~694 C/Sgt Zacharia is a policeman who arrived at the sceneo He saw a big stone stained with blood and prepared a sketch plan, e:~!Jibi t P2 and took the deceased to hospital. Re recorden the statement of tbe deceased at the hospital before he died and this was admitted in evidence as exhibit P3 despite objections fro!!l Mr. Kayaga, then learned defence Counsel. We shall revert to tbis issue later on. P-!J4 was one Fabian Kija, a clinical . officer at Nzega Hospital. He testified ti1G.t on the 3011.92 a patient called Peter Masanja (the de~eased) • 3 was brought to the hospitalo He was taken to the

theatre for medical attention and added that - "Deceased was still able to talk after coming out of theatre and hence able to make a: sta:temenfo · Dece·ased coulrl. have been in position to sign his statement~ It is not possible to take a statement while medical staff handle victim' bLlt I was present and assisting the pqlice. ±i is possible ·· ·for a patient liK'e· the. deceased to be in a state of confusion not to know what he is sayingo" The appellant gave evidence on oath. He testified that on tbe 3.11.92 at about 9.30 pm he was on his way home with his wife DW2, Fatuma SelemanL At a distance of about 100 yards from his house, he heard a heavy knock on the door. He rushed towards: his house and ri1et on the way three people he did not know. He asked for their identity, but there was no response :.'roriJ them. Under- standably he suspected that they were thie·i;es and raised an alarm~ The appellaut continued in his evidence as follows - aAfter arresting the person whom I do not know, the mob started assaulting himo I was present all along. I did not participate in the assault as I had no weapon_. I appealed to the crowd not to continue to harm him ■■ o The mob dispersed immediately upon the arrival of the people • . ./) j ------· because of the serious condition in which the victim waso These people who ran away were armedo I know that this victim eventue.l ly died

and following his death I was arrestedo It is not true tbat I cut the victim even though PW1 9 and her husband alleged that it was me who attacked the victimo II DW2, the vrife of the appellant testified tbat on hearing a knock on the door of their house while some 100 to 200 yards away 9 the appellant rushed· to the house and she followed him. On reaching home, she found the appellant ''ho_ld.ing--o-n-e· old mano II They- raised an alarm and about fifteen people responded .. She did not see ar,:y wounds on the victimo During cross~exarnination she confirmed that on her arrival, the appellant was holding the deceased., DW3 was ru1other neighbour who responded to the alarm raised. He found people had gathered at the scene but he retired home soon thereafter because he was ... drunk. "' It is against this background of the evidence that Mr. Byabusha, learned defence Counsel thought that the defence of self-defence was available to the appellanto As correctly pointed out by Mrso Mutaki, learned St8.te Atto1.~ney for the respondent_ Republic this defence was ----··-· not raised during the trial before the learned trial judge. However, she went on to submit that there is no evidence on the record to that effect. We are in agreement with the learned State Attorney. PW1 testified that when she arrived at the scene, it was the appelJ.ant . • 5 who was holding a panga and the deceased

was lying on . -· the groundo DW2 also testified that on reaching the scene sh_e found. _the appellant holding an old man who happened to be the deceased. The clear message here is that it is in .fact the appellant who had subdued the deceased who was helpless. There is no scintilla of evidence that the deceased had attacked the appellant in any wayo This is not aiL The appellant himself in his evidence categorically denied that he took part in assaulting the deceased together with other persons who had resp~nded to the alarmo It is therefore very surprising to us that Mru Byabusha had the courage to raise this defenceo It is certainly misconceivedo It is totally unmeritorious. In a further attempt to dista_~ce the appellant from the murder of the deceased, Mro Byabusha sought to dis- credit the evidence of PW1 suggesting that she was an accomplice and hence there was need for corroborative evidence in respect of exhibit P3, the dying declaration of the deceased recorded by PW2. The learned State Attorney strongly resisted that Fw1 was an accomplice in the commission of the murdero She added that DW2 in her evidenc did not implicate PW1 in the commission of the offence. On our part we find no difficulty in rejecting Mro Byabusha's argument. PW1 was the first to arrive at the scene and found the appellant slashing the deceased with a pangao There is no evidence that PW1

partici-pated in assaulting the deceased. Instead, with the appellant, they took the deceased. to::her-.home. She reported the matter to the p6liceo She did not passively witness • 6 the appellant attack the deceased but pleaded with him to stop his criminal actions. On these .facts, we do not consider that PW1 was an accompliceo We now turn our at·'.;-:,, ~ion to cxhibi t P3, the dying declaration recorded by PW2, D/Sgt Zachariao The convic- tion of the appellant was largely dependent on the testimony of PW1 taken together with the dying declarationo The learned trial judge stated thus - nTo crown it all the affirmative .evidence of P'v¥1 was on all fours ·with the dying declaration of the deceased - exhibit P3o It is corroborative evidence which in law is admissible. and I find it to be so in the case before meo I have seen PW1 giving her evidence; she was steady, credible and con- sistent to a great extento .She was indeed an eye witness contrary to --what the lady assessor had observed." As stated before, at the trial the then learned defence Counsel objected to the admission in evidence of exhibit P3 but the lea~ned trial judge overruled the objection and admitted exhibit P3 under sectj_on 34-B of the Evidence Act, 19670 Section 34B (1) and (2) provides in part as fol lows - 11 34-B (1) In any criminal proceedings where direct oral evidence of a relev1311t f~ct would be

admissible, a written statement by any person who is, or . ·-•· ooo/7 _; / .. ~-------· . . ·----..·-·· - . --,-1 ma~,r be, a witness shall subject to the following p1~visions of this section, be admissible in evidence as proof of the relevant fact contained in it, in lieu of direct oral evidence. (2) A written statement may only be admissible under_this section - (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains.a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be .liable to prosecu- tion for perjury if he will- fully stated in it anything whi~l" he knew to be false or. did no-t--be lieve to be true;" :1 I ji ----------.-~--·--- This Court in the case of (1) Swalehe Kalorn~a@ Swale r I l,,,,i (2) Mak21:e Seni Zongol2_~..}~ Criminal Appeal Noa 46 of 2001 (unreported) held that the provisions of section 34-B (2) are cumulative and all·the parap.;ra.pbs (a) to (f) have to be satisfied and none can stand on its own. If one condition is violated, then a statement is not admissible in evidence. Exhibit P3 did not comply with paragraphs (b) and (c). It was therefore wrongly admitted in evidence • • .. \' J _! :... ,. !' l 8 Apart from this as a general rule a court can act upon a dying

declaration ·if it is satisfied tbat the declaration was made, if the circumstances in whicb it was made give assurance to its accuracy, and if it is in fact true. (See: CAT Criminal Appeal No. 34- of "1995 between ("1) g_amisi Nzunda (2) An~~son Tuyai~.£ (3) ~emson Tu_I.~n~ v R (unreported). Having admitted the declaration in evidence in terms of section ?li-B of the Evidence Act, the trial judge did not consider the above circumstances. We have no doubt that the deceased made the declaration in vie,: of the evidence of PW2 and PW4- at the hospital after coming out of the theat~eo Before being taken to hospital however, the deceased did not utter any words to PW"l and PW2 and this was soon after the event. PW'+ in his evidence also stated that - "It is possible for a patient like the deceased to be in a state of confusion not to know \vhat he is saying." Under the circumstances, we find it unsafe to act upon a declaration that wa.s made at the hospital. If exhibit P3 is excluded from the evidence, as it should have been, then there is only the__ ~_:7_idence of PW"l ft Is this evidence sufficient to found a conviction for the murder of the appellant? This takes us to the first limb of the second ground of appeal, namely, what the defence Counsel termed as ~'the possibility·of mob justice.," It is not in dispute that after the alarm was raised, neighbours and other people

responded to the call • It must be remembered that • 0 0 ./9 \.._ - .----9- it was night time and tbere is no evidence that there was moonlighto There is the evidence of RJ1 and H-12 that other people had come to the scene of the incident; stones were found ;nearbyo PW3 testified that the appellant admitted to have beaten tne deceased with a sharp: instrument a11.d stone o The evidence of Pd1 and Pv/3 corroborated the post-mortem examination report, exhibit P1o The essence of the defence case is that the decea.sed was a victim of 11 mob jus-cicen whatever that meanso There is no dispute however that the appellant participated in one way or another together wj.th otllIT_ people who r.e.sp.onded to the alarm in inflicting injuries upon the deceasedo We are satisfied that the appellant was joined by other people not before the court who participated in assaulting the deceased. There is evidence of stones with blood_ at the sceneo The appellant was part of the crowd that inflicted injuries upon the deceased resulting in his deatho This unorthodox defence of 11 mob justice/instant justice has caused us considerable anxietyo We are not aware of any law of the land which sanctions such a course of actiono Article 14- of the Constitution of the United Republic--o·f· Tanzania provides "Kila mtu anayo halci ya kuishi na · -kupata lmtoka--kwa ·jamii hifa.dhi ya maisha yake, kwa mujibu

wa sheriao II Our country espouses the rule of law and good governanceo We cannot countenance t~1is indiscriminate taking of law • : _) .. ,I; 10 - into ones hands. No person should take shelter under the so called defence of "mob-justice 11 in violation of the .J.aws Qf_tbe land. This_is .totally unacceptable. In the upshot, unlike the trial judge, we are unable to "irresistibly and affirmatively" point to the appellant as the sole cause of the appellant's death and that he caused it, if at all, with the requisite malice afore- thought. He hereby quash the conviction for murder and sentence an.d substitute therefore a conviction for man- slaughter c/s 195 of the Penal Code. The appellant is 'c sentenced to ten years imprisonment. It is so ordered. DATED at MWANZA this 1st day of July, 2003. --- . . of D. Z. LUBUVA Jo. ft ·--- _!lJSTICE .. Q.F. APPEAL ·o 0 E. N. MUNUO ~\

JUSTICE OF APPEAL H. R. NSEKELA

JUSTICE ... _,,,,,__ OF APPEAL ,,_..,,...__ I certif;y that this is a true copy of the originalo __ ,,,.. .. ·•. i , -~---·t·· \/\ \. I \ .• J . . -- ,, ... ,,...,....-\_. ·,.__ __ ( FoLoKo WAMBALI)

DEPUTY REGISTRAR •