19890323 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAMI (C0RAi.: IY1AKAME J.A., KISANGA'J.A., And.9.MARL:J.A.) CRIMINAL APPEAL NO. 59 OF 1987 MANYANGA SHABANI JUMA RASHID KAPALA • APPELLANTS HAMISI KITONGA OMARI RAMADHANI MARAMI' versus THREPUBLIC. .• .. . eo.. •.• • • ., RESPONDENT (Appeal from the conviction Of the High Court Of Tanzania at Dar es Salaam) (Mama, J.) dated the 6th day of March, 1987 iz Criminal Sessions Case No. 1 of 1984 JUDGEMENT OF THE tOURT MAKAME, 3.A.: In the High Court sitting at Dar es Salaam these four appellants were condemned to suffer death consequent upon their conviction for murder Mama, J. agreed with bolh his assessors that all the appellants were guilty of murdering two persons, SHABANI OMARI and ABDALLAH OMARI, at Klwangwa in the district Of Bagamoyo, on 10th January, 1981. A't the trial the numbering of the appellants was the same as in this appeal. The deeeased persons were businessmen, apparently based in MOshi.. They used to go to Bagamoyo to purchase pineapples for sale elsewhere., P.W.6 SELENANI SAIDI knew them as such. On 8th January, 1981 the deceased Abdallah, who we shall refer to as the second Deceased, went to P.W.6's house. He gave shs. 4,000/.. tO P.W.. for thepurchase of pineapples and said thathe would go beck for the fruit the following day. On 9th January the second deceased went to P.W.6's house in the company of the deceased Shabani, the first deceased. The first -2- deceased had a bicycle with him while the second deceased borrowed P.W.G's Phoenix bicycle which was pink in colour. The two deceased told P,Vi.6 that they would go back to his house to return his bicycle and collect their pineapples. They never did. Later P.W6 went to a place in the bush where he was shown two dead bodies which he identified kP be those of the two deceased. They had cut wounds. One of the two bicycles found near the dead bodies wat the Phoenix bicycle belonging to P.W06. On the day Of the alleged killing, 10th January, 1981 as aforesaid, P..1 ALl MBWANA was in his shamba with his two w1ves At about mi iday, he told the trial court, he saw all the four appellants with their shirts over their shoulders and walking very fast in the direction two strargers On bicycles had taken about fifteen minutes earlier. Each Of the appellants, except the last one, was carrying a panga, and when P.W..1 asked a them why they were in sucW the appellants said something to the effect that he, P.W.1shOuld not ask the question as It was time for work. All the appellants denied being so seen by P.W..1 but.the trial court accepted as true this piece of evidence by P.W.J. If this piece of evidence is accepted as true, as it was by the court of biial, it puts all the appellants in the comp any of One another on the material day,in the vicinity of the scene of the killings shoreily after the two unhappy victims ha passed by P.W.l'sshamba. P.W.1 also testified to knowing all the appellants very well. All, except thetè±rd appellant, were born in his village while the third appellant, albeit born elsewhere, was living with his aunt in the village. The trial court considered the defence of each appellant and rejected it. Briefly, the first appellant said itwas true he made a statement to the Justice of the Peace but that he involuntarily did so because of being tortured by P.W-9 Supt. ICHONBA. Although he knows all the other appellants he did not see any of them on that day. He denied being seen by P.W.1 as alleged and also said that hiseOwn brother, P.W.2, had told an untrue story about his lending the first appellant a • a . ./ 3 a i —3- a pair of shoes On the material day which pair of shOes the first appellant had failed to return and about which the first appellant had lied before the first appellant abruptly left for Morogoro. There was evidence that One of the shoes said to have been lent to the first appellant was found at the scene of the murders. In his defence the second appellant said that On the material day he was in Dar es Salaani where he is a businessman at Mburahati. He did go to Kiwangwa in January, 1981 but he went back to Dar es Salaam On or about 9th January. He did not go to Kiwangwa again until 15th January and he was arrested on that day at BagamOyo Bus Stand. in cross—examination however he kept on changing his story regarding dates and in the process he owned that he was in Bagamoyo On the material day and did not go back to Dar es Salaarn Until the following day. He also prevaricated as to whether or not he made a statement to a Justice Of the Peace: Now he says he did, now he says he was never taken to any Justice Of the Peace. He also said he did confess to the Police but that Was because NchOmba had tortured him.. The third appellant said he was working in his shamba on the day of the alleged murders and when On 22nd January, 1981 he was arrested by the Police and told that he had killed sCme7jP@Ople he denied: He had not even heard of the killings. He was tortured by the Police and taken to various places where he was sin a number of things, but it was not true that he led to ft discovery of any of them. He made a statement to the Justice of the Peace two days after his arrest but this was because '.f tke torture he had received from the Police. The statement he made was an untrue one and although the Justice of the Peace told him he was free to make a statement he did not tell her about the torture and did not believe that she was a Justice Of the Peace. He thought she was another Police Off icer. RAMADHANI MWARAMI, the last appellant, told the trial court that he was surprised to be arrested On 25th or 26th January, 1981. He did not take part' in killing the deceased persons and was ri)t . . . 'a I —4-- taken to any Justice of 'the Peace. The evidenceiiznplicating him, including that of P.W.'l according to which the fourth appellant was in the company of the Others On that day, was all lies. At the hearing of this appeal the appellants were advocated for by Mr. Lubuljra learned counsel from the Tanzania Legal Corporation. Miss BarOiOm0ka, learned State Attorney, resisted the appeal. Mr. Lubulira's complaint was two - fold: That the learned trial judge was wrong to hold that the case had been proved beyond reasonable doubt and that there was in any event no evidence connecting the appellant Nwarami with the alleged crimes at alL. Miss BarohomOka sought to support all the convictions. Mr. Lubulira complained that the first appellant had put up an alibi - that he was at Morogoro - and he had denied his brother's story regarding the shoes. The confession the appellant made was untrue, induced by torture. Regarding the second appellant too, the appellant had put up an alibi and he too had been forced to make an .inv tary statement. The third appellant had been forced to confess and there was no evidence connecting the fourth appellant with the alleged crimes. Miss Barohomok a pQinted out the various pieces of evidence implicating each appellant. For the first appellant there was the evidence of P.W.1, which mentions all the appellants; P.W.2's testimony regarding the shoes, andtbe confession to P-.IW.kO. There was against the second appellant his confession to P.W.10 and the evidence of P.W,1 as aforesaid. For Appellant 3 there was the evidence of his leading to the pond andttO the area of It wherefrom a panga was discovered and the evidence of P.W.1, and again.t the fourth appellant, the evidence of P.W.,1 again, and also he is implicated by his cO—accused, the second appellant. W ith respect to Mr. Lubulira, there were no real alibis worth the name, by the first two appellants. It is a misreading Of the evidence to say that the appellant Manyanga had put ur an alibi. He did not say he was atMorogoro at the material time. - 5 • He was very much in the area in BagamOyo District, even going by his Own evidence and, as we have observed earlier, the second appellant tried hard to dodge about the material date but eventually he conceded that he was at Kiwangwa On 10th January, 1981, the day the killings were said to have taken place. He did not go back to Dar es Salaam until the following day. Regarding the first appellant's extra-judicial statement we wish to say that there was no Objection to its being produced at the trial, SO naturally there was no trial within trial t determine its voluntariliness or otherwise. Indeed Mr. Mwakasungula, learned Defence Counsel, is On record as having said that he had no objection to thb statement being produced. in cross-examination, the recording Justice of the Peace assured counsel that he had complied with the usual formalities and was satisfied that the appellant was a voluntary agent. The learned trial judge was similarly satisfied that the statement was vo1untar' and free and we have ourselves come to the same conclusion. The appellant, a school teacher,, knew what he was signing and he agreed that he did not disclose to the Justice of the Peace the alleged torture. Of course there was, beside, the evidence Of P.W.1; that of the appellant's Own brother and the shoe, the hurried departure from the village, and the sudden acquisition of new items of apparrel by a person who had been suspended or interdicted from his teaching job, and,who had not managed to pay his house rent for four months at the time of his arrest. We are satisfied that this conviction was justified on the evidence and accordingly we dismiss Manyanga Shabani's appeal. It is Our cOnsidered view that the conviction of the appellant Juma Kapala cannot be faulted either. Like in the case Of Manyanga, there was the evidence of P.W.1, as well as the appellant's Own confession to P.W.10 not Objected to, in which he implicates not only himself but also the first appellant, and discloses that he got a share of the money stolen from the dead persons. We dismiss his appeal. . . . . . ./6 -6-- Against the third appellant, .there was, as in the case of all the other appellants, the evidence of P.W.1 already referred to; as well astthe extra—judicial statement to NARY NAGHOHA, another Justice of the Peace, in which the appellant gave a detailed account of the killings and his subsequent receipt of shs. 700/_ 1 part of the booty, and on which he went On a spending spree. Independent evidence by P.W.3 ALl KIDAMBA had it that this appellant led the way during the search for a panga and indicated the area in a pond from which P.W.3 personally retrIeved a panga the appellant had associated with the killing. The third appellant's implication of the first and second appellants was, as demonstrated, also corroborated by other pe(e3 of evidence, We are satisfied that the learned trial judge was entitled to foundtthe appellant's conviction on the totality of the evidence adduced, and that' the attempt to assail the decision , cannot succeed. We accordingly dismiss the appeal. Now the fourth appellant. He too was seen by P.W.1 in the company of theG.her appellants and Mr. Lubulira before us conceded as much. It is true that, according to P.W.1, this appellant was the only One in the group who was not armed. Apart from this piece of evidence against Appellant 4, there was also the confession byAppellant 2 which implicates thiappellant and which is given credence to by the evidence of P.W.I. The conviction Was sound and the appeal against it is therefore dismissed. The information quIte properly contained two counts, each alleging One killing. The trial court recorded one omnibus conviction and imposed an Omnibus sentence. The correct procedure is to convict on each count and pass sentence On Only One count, leaving the other conviction on record. Accordingly we convict each appellant on each count and sentence to death each appellant for the murder of the deceased SHABANI OMARI. Save for this, all four appeals are dismissed. DATED at DAR ES SALAAM this 23rd day of March, 1989. L. N. NAKAME JUSTICE OF APPEAL hi 4 -fit —7- R. H. KISANGA • JUSTICE OFAPPEAL A. M. A. OMAR JUSTICE OF APPEAL I certify that this Is a true copy. of the °ina1. C J. H. NSOFFE ) SENIOR DEPUTY REGISTRAR.