20120511 TZCA Arusha

--:-·--- - ~ -- --·- .. ·-. -- .• . CRlf✓ilf✓ /d AP Pf.AL NO. 246 CF 2UJ J. ;-':!". R.A ,,, C s .1 o SL.A/:. H OFU - TSAQ\-'V!•.R.!:. sio NG/dDA i .... D/1.Htah!G s/o BURP. .D.PPELLAN, 5 ..., ,✓i/.::.TL[ s/G QWANG ) VERSUS 1 !~r~ R.EPUS:..IC ............................................................... RESPONDE:ff (/~ppeal from the judgment of the High Court ( Chocha, J.) JUDGMENT OF THE COURT l-,,,.·r,n,, c·n l -' -'·, 11":I -""'e •t, _!Ii •• -::, _ r::,_[h 'v . i~•-,·.,-~., -, ,~.:w,'. .JC, r.' )' 1 • _·/·-;lr.J:,..... ·-,,:):- -J ~l ._, 1 Ti-..,..... ;-<_eOion. _., i i!C ·.,Ii J _.. :·,1··· erupt c.;r-.l ... '-·'· Li:, \ \ . ·. (1'7 lS , 1 1 .. !G did so. So, on 5/2/.: 008, fiv\:: suspects, ! . . l1 s/c SL.P,t. HOFU, HILONG.6. s/o /1,UTO, TS,!J..Q\.'Vf:..R/-'. s/o ·. . •I \ DAHANG s/o SURA. and M,L\Ti_E s/o QVVJi,NG \\-'ere oiTaigned ~ t:~1e High Court at Arusha, for the murder of the deceased 1 =:ry to section 196 of the Penal Code (C2p 16 RE 2002). Before . . :12nt howe\.'er, the second accused HILONG/i. AUTO, died, and Ca c.c -o-.:ns __. ,._ G -·VI. ...l him d- LJO 1 l.,--'-e,d l ~ -- . The recnaining were convirted as j and sentenced to death, hencE the present appeal. r_.,., _ ·, 0 facts of the case as found by the lovver court and on the Nl JOSEPHI/\1,ll_ SILAP., and father to PVV2, SAMVVEL JOSEPHAT th District. 0,-1 the 6 Janua,y, 2005, at 2 pm PVV1 and her children had just coiT,e back from their farm for lunch. The deceased who v-1as -l~r. nu!- V r~mo h:;:,cL- ._,.__..,It:or I·u,,'--1,. tift~r e 1u·-.·c1- '- \.. for P farm a,:;,.) V -::l5n 1..., v, \...0 11.._ •nrh ,---.; i I! 11 h--- rlC: )oft· I t-h ... 1,.._' .. Sc:0,1, P\:\/1 hea1d an a/arm. She and her children vvent in iespo,:se to _- ·:,:, aiar·m. They sav.1 one Dagharo's mott121 who to!d them that the c Ii'< (.:ased had struck one Mathias @ D0sha:0 with a stone. This dppears to have been the source of the spark of the violence that followed. fa.ccording to PW1, the first appellant, who was also a ten cell leader, and other youths took the injl.lred Mathias Dagharo to hospital; vvhi!e Tsaqwara Ghaida, Hilonga Auto, Dahaw Sura and Matle Qwaang remained behind but later decided to take the d~ceased to the village office. On the· way, the deceas~d was • i. .. .:. ~ ~ roughed up~ but on second thoµght they decided against taking him to the village office. Instead, they decided to take him to his home . and burn him vvhich decision they finally executed; and at ai! the material time: P'vVl was keenly following the group. It was further in evidence that the group first decided to take him to where the child had been struck where the sub village chairman advised against . them taking the !a"vv into their own hands,. but the advice v✓as turned dovm. Then the ordeal began. They first collected dry grass, prepared a hearth, and attempted to burn the deceased there. The deceased 0 ran tc hide \r.to his house. The h-c:...se was set on fir·e. The deceased escaped inV) the house of or,e Jc~n Garcase. The irate mob went z/ter him and retrieved him; and brought him •;-:here the fire was still razing. Despite all the pleadings· for- me·rcy, ! the • ••• ; I : mob, grabbed the deceased_· and threw him into the burning fire after tying him with some ropes. There, he burnt to ashes, un.der the pitiful eyes of his wife ( PVI/ 1) and chiidren, including PW2. Although the deceased d·ied en the same day, the village and t, 1 ' .J! waro governm·ent together with the pol/c:e came the .following I th morning, but no arrests were made until 15 July, 2006, some 18 months later. According to PVi/3, it was the appellants and their deceased colleagues who were ai-rested and accordingly charged with Lhe rnurder of JOSEPHAT D.t.GARO. In their defences, all the appe:iants raised defences of alibi, ··1hirh '-he '-r1·-1 rourt \'\Olf\..l! ll,-c L d .._, / I-eJ·e,,-teo' ..... ' /yZ ~-:7Pw""°';/i'~:w ~"':-:-!"""~'"'FiP'i'~ · - 0 '1 r• On +t-ie basis of that e·✓ iddi:Ce the appellants 1\12re convicted ci11d sente,,ced to deau-1. They have now come to this Court to challenge their convictions. In this Court the appellants were represented by Mr. John . Umbulla, learned counsel. The respondent/Republic was represented by Mr .. Victor Kahangwa, learned Principal State Attorney. Mr. Umbulla, filed· and aroued 'J.three grounds of appeal as ·_,I • t_, follows> (1). The Honourable Trial Judge erred In. law and in fact in holding that PVl/1 and PV✓2's concealment of information concerning the death of the deceased for over one year was influenced by a promise by the suspects to build them a dwelling house. (2) The Hon. Trial. judge erred in law and in fact in convicting the accused persons on contradictory and unreliable evidence of the prosecution witnesses. The Hon trial judge erred in lavv in faiiing to explain to the assessors in his summing up of the evidence, the meaning and the consequences of the defence of alibi. ·ihl= prosecution witnssses. This · 1s i1Y1porlant in this appeal because its decision is purely factual, and credibility of PVV1. and PVV2 is therefore cruciai. VVe are aware of the rule that usually the trial court is best :_Jid_-:c_e_d__t_o__o_:e_t_e_rm_in_e_._t_l-_:e__c_re_d_i bi! i!J_____ Ql_ __ ~i~n~sses ( See AUGUSTINO KAGANY.4 ETHANAS NYAMOGA P,ND VVILLIAM MWANYENJ E v R ( :-:-,94) TLR 16 (CA.). This is especial!v so, ,.,Jhere>the g_eci~ioo of t::·;e case is \V~_Ql!Y bas~d o~~the credibility of v✓ itnes~~s ?uch as_.:t!lE; Q.r_~iE;;.ntone (See ALI ASDALLAH PJDABU ·.- ~AfJ,DA ABDALLAH RAJABU AND OTHERS·(1994) TLR 132. ~;Jt it is also settled law that tt1e duty of the first aopellate s~ch as ~'hat we are ,1 ·- now is to reconsider and evaluate the evidence 011d - 1-----·----·-····-----· ···---··-- ···-···. ------····· -~-······· --· . come to its own conclusions bearino ,n mind that it never saw the · - - - ----------·----- ~ ------ iNitnesses as they testified (See PANDYA v R (1957) EA 336. \/Ve wiii tiy to reevaluate the evidence of PV✓ l- and PV./2 in the next ! I a:tC! P\N2 as credible witnesses although they had given conflicting and inconsistent explanation on why they delayed or concealed information about who killed the deceased for more than a year. We have revisited the evidence of these witnesses . . -We have noted that while PWl explained that the concealment , was partly .motivated by the promise for the suspects to rebuild a house for them, sh-e also gave otber reasons such as cc:·:t:nued ·threats ......r.l, from the suspect:$_,,, \vhrch ex}1~ined the co,:tinued ., ·. - · concealment even after the house had been constructed. But with respect, the trial court should have subjected this behavior to close scrutiny before finding that thos2 witnesses were credible, for it is al! too we!! knovvn that del;:1y in o~m/'"19 4-_.suspecL2L.tt"l§: e_ariiest opportunity dents a__ yvitness_'5 credibi1ity 1 especialiy ~\I~~-C~ the identification of the suspect is in issue JARIBU ABDALLA v R ------ . Crirn1na! Appeal No 220 of -1994 (unreported). But in AZIZI ,.-, ·1-i _,_,__ u·~~A- 11 r,, V R ;"'1 ·,-:.. c~:~· -a , ''DP~~I 1 :1;,,.1; 1 ro., • eo1 l\u. _ L-i,,,1·9,q4_ 1~ -/1 _ -;u·,nr·eporte""'.·';· , c ~,.:.· -·;·!.S 1 Court also observed: "l''~;111<: 11-.·, un2xpI31/767 - ' uc-'a!' .J ' to name c suspeCi rnay justify fears on tfrye veracity ot a witness, it need not be so where there is a plausible explanation. ft is not secret that in the country not many people are 11 prepared to count on police confidence. After reevaluating the evidence . . on record, we discern that . immediately after the death of deceased, PVv'l told the trial court "Policemen came also. They then came to my home. The ware Ex~cutil1e Offic_er anc .; '·: ~-..,; the village Executive Olficer conversed ~vith the policemen. /I Then later, she explained: "I did not tell the police what l am tei,'ing the court no:N. J feared my file. I had been threatened by the leadership." \!\ihen cross examined, she further explained: ''.i thought t-'7e village leaders had reported the incident at police ................... " r.r,d 1-n' M, L O ----L· •, _ _ _ ..r .:~: . . ,.~r :tt;· •!! t r•t ..,~---·. "77,e aca1s-ed persons 1vete st!!! threaten11i9 fir' {/ me. accused accused" The village leaders are related to the The l-'VEO is related to the 2 1 c And concluded in re examination: "I spared my life. · That is why I did not state what I have said here at police. I decided to disclose the 1;7formation because threats persiste~ and because the promise was not honored// 1 P~ also testified: f :r _,. "On the following day the Policeman came.// This witness (PV\/2) did not explain why they de!ayed to report- the incident. So it was not correct to say that he was inconsistent \,v:th PW1. Jn our judgment therefore after re evaluating the evidence we 1 1 think that the trial court vvas wrong in concluding that the promise fo, the re construction of a house featured prominently or at all in prosecution witnesses' delay in naming the culprits to the .-=-~.". _-~. -:~ .' 1 h~=: first ground, and added that the t\-'v'O \Nitnesses were explaining the same things but in different words. In any case, he \vent on, the alleged inconsistencies did .not go to the root of the matter. ·He urged us to dismiss this ground t90. -----~-- Before we embark on examining this. ground, we feel it necessary to high light certain principles on this subject . . i'.·r· --·: \!Ve must start by r:·, r:erating wl.i.9t we said,:-, MOHAMED SAID MATU LA's case that: "l,1/here the testimony by__ witnesse~ con(ain inconsistencies ancf____.!._(}.:_'7t(idictiqn___sr...... the court has 2 duty to address the --------------·-- inconsistencies and try to reso_!v~ them . --··-·-· . where poss1b/e1 else the court has to deode whether the ,~1consistencies and contradictions are only minor or whether t/iev oo to the root of the matter. /I It is therefore true that the existence of contradictions,. inconsistencies in the evidence of a vvitness is a basis for a finding of lack of credib'dfty; bl..'r t11e discrepanci~_mu~-~ · be .sufficient, -----------·- serious, and rnust concern matters tr:at are relevant to the issues ·-·-------- - being adjudicated, to warrant an adve·rse findinq. As this Court ·----·· ---------------- .. -·-· ..-·•·---·- ···--- ····-···· -·-····-··-········ - said ii I SAID ALLY ISMALL v R Criminal Appeal i'W. 249 of 2008 (Unreported) T[' . II 1, IS not every discrepancy in the prosecution case that will cause the --------------- prosecution case to f!_op: ___ It/~ qnly where - -- ·- - - ·---•-· -------- the aist of the evidence ;s tontradlctorv ·-------- _, ---- ----------------·. _ _ _ ,. __ - • • . ,I - then the prosec{Jtion c2se i111/I be - ---- ---------- ---~-- -- ____ .. - . '·dlsm~rrt.Jed. " The second principle \/\/e must observe is that when assessing the credibility of 2 all the evidence, both oral documentary (if any) must be consid2r2d and assessed; not just selected portions Gf the evidence. The -:-- _______________________ third observation is that in ali tria!s, normal discrepancies ------- are bound to occur in the testimonies of \V:tnesses, due to normai errors of observations such..... -as .- errors in memorv due to laosE of' - ·-. .. - ·- . . ....· . . . · . . I I ---·--·· ·-·--·-··-- - --·--· . time or due to menta! disposition such as shock and horror al the . -··· ----------- ----------------· -----------·-·····- ... . . . fl,.hrior- contradiCilons l nc..c.ins1srenc1es, embellishments! or :mpi·ove:-:m,::nts, on Lrivial matte,s whicr: do noL affen the case of the prosecution case should r:ot be made a ground on which the-evidence can be rejected in its entirety: Now in the present case the question is whether the alleged contradictions pointed out by the appeilaat really go to the root or central story of Lhe prosecution.? We think not. The central story of thE prosecution case is thet on 6th January 2005 rhe deceased w.as burnt to death. Both P~'Vl and PW2 witnessed ~-- the burnino. ·, l~ ·1. .,, . ~ P\Jv'J identified m court th1:~ appellants as the ones who perpetuated this atrocity (p. 10 of the proceedings) PVV2 also · mentioned ·the appe!!ants by touching them in court (p. 17 of the proceedings). Both PVvl and PV✓2 also consistently norrated how the deceased tried to escape! but to no avail, and the duration of the ordeal. They both narrate, the role of each of the appellants 1r, ki!lino the deceased. By their evidence, these witnesses adequate! y established that it v':as the appeliantsi 'Nho, vvith a common intention, and with malice aforethought 1 caused the issues come to the fore i: 1 cround ...., . at all on the appellants defences or contradictions in the prosecution case. ? The second is what is the effect of such non direction or misdirection to the assessors ? And the last, is, whether the trial court was right in rejecting the appellants' defences of a!ibi. ? We will begin with the second issue. BrieAy, the law (section 265 of the ~.irJ~.Lfr9~ec:l_ure Act) ___requ_ires that all ___!rial?. Q~fc1re ---··-· ---·-· the ... Hight she!! best.with . the ald of assessors. _ ~1d ~t:'4:ne At_, ___the ..... trial, the law (section 298 of the CPA) requires the judge to sum - --·--·-------··~----- up the evidence to the assessors and shall require them to state . . . . . . . their opinions on the case generally, although such opinion is not binding on the trial judge. Now, it has been heid that if in 1 . summing up to the assessors, the trial judge misdirects them on a vital po1nt such as provocation, the trial judge cannot be said to have been aided by those assessors because by such misdirection he wil! have disabled the assessors from giving him, the aid which they should have given him, and thus in turn disabled himself ::. ·•.• );1;y~ (St>1~ ~LPHONCE PHILBERT v R (Criminal Appeal f\Ju. 27 of J.979 ·' (unreported),. and mioht have the effect of vitiatino the entire \ _,; ~ p1·oceedings (See HATI3U TENGU v R Criminal Appeal No. 62 of 1992 (unreported) V\!e, next go to the first issue; was there any direction or non direction to the assessors. As seen above, section 298 of the CPA .·:.::quires the trial judge to sum ,_,o to the assessors the e 1idence of 1 the prc,s,::cution and the defence. On the appt:llants' alibis the tria(<! 1. ... ·i ., .Jc'. judge suiT,med up to the assessors as follows: "Their defence style was uniform/ in that all resorted to a defence of alibi. Every one told the court that he had not been at the 11 scene of crime on the fateful day ...... And towards the end of the summing up he directed them: "You are called upon to opine whether the prosecution case has satislied the standards provided by the low and whether the .J it> ·k,i~·.;.~~~'{~~-- r· ~1·ii ~:;: --~)-1t2!:ri·. ,.F.~:~~1.Z:~i~~i:: vJ • f!.~,_..;r,.,1.":"'J;,·W?'· fit;1::t •1/i ,'·!•,~-~v- ·f;r Iii· :,: ,'.ing their opinions lr:1::· he shoJ;,_· nave done. -{~jff" (See ALPHONCE PHILBERT V R (Cri, incl Appeal No. 27 of 1 979 ~tr ,, I (unreported) and mi-ght have the el ect of vitiating the entire I proceedings (See HATIBU TENGU v. R Criminal Appeal No. 62 of 1992 (unreported) I I ! # We; next go to the first issu_e; /was there any direction or non . ! direction to the as·sessors. As se~n above, section 298 of the CPA I . i I · requires the trial judge to sum i_;9 to. the assessors the t?vidence of ! ; (t t_he pros:.:::cution and the (lefenc;:e/ On the appellants' aiibis the trial · ·Q ~ ~ It . .I i judge summed up to the assessors ' as follows: . I ! / i "Their defence sty/€!, was uniform/ in that all resorted to a defence of alibi~ Every one / told the court tha( he had not been at the scene of crime on .the fateful day ...... :, ~.nd towards the end of the summing up he directed them: "You are called upon to opine whether the prosecution case has satisfied the standards provided by the law and whether the ./i)lf~ .·: :.: ..:J ;:~ :: ( ~·,··::::inc,:;:; ·-• • •- I .,_ / h::.;,:: I.._,._,, _, 0( ".;/'I.',--{;,- LJ J,r I(:,..._\:... rc:,c;L"-led lc:/rl :in\.· o.....Q_· (--•~- I (.II•/ s:hao'ovv· of doubt. ,. VVe think, with due respect to fv1r. Umbula, that the triai judge did properiy direct the assessors on the evidential aspects of the defences of alibi, and what role the defence had to play, which vvas only, "to cast doubt in the prosecution case. i VVhat rerriains to be exan1ined is whether, the trial court was ~ , ...., the appellants' defences ? We have no h:::sitation r-ioht in reiec:tino in answering it in the affi;-mative: i. ✓ ~ Of course, it is not the law that once the alibi is proved to be false: or not found to have raised doubt, the task of proving the :!ish ouif+-l ,·,.::>. . C:'- ----co,,....o 0 d accused no~r-nr.'c -'-1:;;'-",:..J ' --' I 11: 1 r '- I , There must still be convincing prnsecution evidence on its own· to bring home the alleged o;-i-ence (See .ALI AMSI v R Criminal Appeal No. 117 o, 1991 (urn·eported) Nov.1, here; First P\N1 and PVv'2 had sufficiently identified the appellants to have not only been at the scene of ' to nave ut 2:so ' articipated in the cort1mission of the crime. •··----· , ~.460.-:::ZC. &§¼,.· · ... , ... ,.. , .. .......... ( .. ,J.&.~---~---~-- . .-... ':'.•~ ... • ..... ' .- ... ·-, .. ,.(- ··-····· .. ~-P:..:. ·;-~;/ _{. 1/t:~~l~t~jf' :_?;t±)jf~e witnesses had_ 0 nc, oti1Er _grudgeS agair.<t i:llern All the ·;\fR(rtt <____ ·· ~,r ,... ,..... jJ; :}//· ::·· appellants said they wei"e not there on the material day. fc,r the l" appellant whc, said he had gone to Haydon Hospital and back the rest had gone out of the village and returned after the Except deceased had died. Strangely 1 none of them produced any witness to support their alibis. As this Court said in MAKALA KIULA v R Criminal Appeal No. 2 of 1983 (unreported) "If a person charged with__!! se!_iq_us _offence a!Jeoes that at the time when ii 1.vas ~. -- ..,l 1 •·• cornmitted he wa5 in some other Dlace where he is well known and yet he makes 4• ' .. no elfort to prove that fac~ which if true/ could easily be. prove~ the court must -----· .. necessanly attach little weight to his ·--------- - ---·--···----·---- .... ,__ a/legations. _...----· // Similarly in the present case if it was true that the appellants had been at some other place when the offence was commirced 1 they \•vould not have failed to produce any witnesses to support then-\ which they did not. fa,nd it was certainly a strange ····:; '. \'\/e therefore think that the trial court rightly rejected the appe-ilants' defences of aiibi. This ground too fails. For all the above reasons, this appeal cannot succeed. It is :~,;::-;missed in its entirety. Order accordingly. Df~TED at ARUSH.4 ,his 11 th day of May, 2032. -J. R. NSEKELA 1 JUSTICE OF APPEAL. B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI ti ,~-,,-..,.ct- OF M,,1... ..,U~-1.1. ADDi=Ar!.. I certify that_ th\5 is a tru~\opy of the original. . - . ,1:·)J ::.. l I ! f. '., .: \ . 'N.; I I ' " Ii\. i 1I • I ,~ . il,1~' · ',1 ii : _-·. \ ! . . .. I \ , . -~ I'viI AlL.C V\ !: ( rvv· r·" \ )\ nr::01 ;-=--'o.J".,.r;-t:r=,..5~,--,i:..r-: v '- 1 v r ~ 'i:\ u l. ::-"· . K 'ro· --- 1Lk~ i o·~ •pn-'·. ·r.- t-'t:P,L ~ ~ \ ~