[1952] EACA 253

### COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) SIR HENRY Cox, C. J. (Tanganyika)

## (1) GAMUNGA s/o GIDAGURIJA (Original Accused No. 1), (2) WAIDA s/o GIDAGHAMA (Orginal Accused No. 2), Appellants

#### REGINA, Respondent (Original Prosecutrix)

### Criminal Appeals Nos. 172 and 173 of 1952

(Appeal from the decision of H. M. Supreme Court of Tanganyika—Sinclair, J.)

# Murder-Extra judicial statement: Interpreter a headman with powers of a Police Officer—"Gimarda Custom" of Wamangati.

The two appellants with a third accused were charged with murder before the High Court of Tanganyika. The appellants were convicted. Both appellants made extra judicial statements to a First Class Magistrate but the admissibility of such statements was attacked on the ground inter alia that the interpreter was a headman with the powers of a police officer and was thus an interested party.

Evidence was given that the first appellant claimed "Gimarda", which is a custom of the Wamangati tribe whereby a person who has killed a human being or a lion can claim one head of cattle from each of the older members of his clan.

*Held* $(24-10-52)$ .—(1) It is possible to differentiate in the capacity in which a person is acting when that person holds more than one office and the interpreter did not act in any police capacity in his association with the appellants. The statements were held to be voluntary and admissible.

(2) The custom of "Gimarda" appears to be an inducement for murders to be committed on neighbouring tribes by the Wamangati.

Case cited: Rex v. Jijengu, 10 E. A. C. A. 111.

First appellant appeal dismissed.

Second appellant appeal allowed.

#### Appellants unrepresented and absent.

Dawson for Crown.

JUDGMENT.—These two appellants, Gamunga s/o Gidagurija and Waida s/o Gidaghama, whose appeals we have consolidated were charged jointly, along with one Gopa s/o Kidamabhai, since acquitted in the High Court of Tanganyika sitting at Singida, with the offence of murder contrary to section 196 of the Penal Code, and convicted, the Court finding that they, on or about the 29th day of January, 1952, murdered one Muna s/o Hindai.

The facts as found by the learned trial Judge established that on the day in question Muna, who was about 14 years of age, and three small girls were collecting firewood when Muna left the others and went off alone to cut as he said, a large log. He went out of sight, but shortly after the other children heard a cry, and going to the spot they found Muna dead, having been brutally murdered. He had a deep wound penetrating the right lung, several other small cut wounds on the body, and his throat had been deeply cut. The children were joined by a man who had heard Muna's cry and went and assisted in finding the body. A search carried out soon after disclosed a leather cushion for a sandal about 25-30 yards from where the body was found, and a little later the same day a further search disclosed a rubber sandal about 3 yards from where the body had been found, this sandal being in a place between where the body had been found and the place where the leather cushion had been found. Some 16 of 20 paces from where the body had been found was a freshly cut branch of a tree. Behind the branch were some broken pieces of stick, and a few paces from the branch was a patch of dried blood. Approaching the tree branch and going up to it were the shod footprints of two persons. Going away from the scene were the shod footprints of three feet, the fourth footprint being that of a bare foot. Both the approaching footprints and the departing footprints came from or went in the general direction of a village Gerodum. A hue and cry was raised and the village headmen of all the villages in the vicinity joined in the search for the culprits.

On the 3rd of February the first appellant was arrested at Basutu on another charge and on the 7th of February made an extra-judicial statement to Mr. Ronaldson, D. C. of Singida, and a first-class Magistrate. In this statement the appellant implicated himself, the appellant Waida and the third accused Gopa, who, as stated, was subsequently acquitted. At the preliminary inquiry the appellant stated that he had nothing to add to the statement which had been proved and tendered in evidence by the prosecution, but at his trial he retracted the statement, stating that it was entirely untrue and that he was not present at the killing.

Gamunga's retraction of the statement necessitated a trial within the trial to establish whether or not the statement was admissible in evidence. The learned trial Judge found the statement had been properly taken and was admissible in evidence.

In this Court the admissibility of the statement has been attacked on several grounds which may conveniently be summarized as: $-$

- (1) The interpreter Shabokotu was a headman with the powers of a police $(1)$ officer and was thus an interested party. - (2) The statement was not a voluntary one, because Shabokotu was one of those who taught the appellant what to say when giving the statement.

The evidence showed that the interpreter Shabokotu was a village headman who had joined in the search for the murderers, as indeed had the whole country-side, but that he had no part in the arrest of the appellant who was arrested outside Shabokotu's own area, nor was he in any way responsible for his custody though he had been present with others at a certain time and place with the appellant after his arrest. The Magistrate, no doubt realizing these facts and the further fact that it would have been almost impossible to obtain anyone not employed by Government or the Native Authority or not otherwise associated in some way with the investigation of this offence who could speak the appellant's language, Kimangati, as well as Kiswahili, appears to have taken exceptional care in the taking of the statement and ensuring that it was voluntary. The Magistrate went out of his way to check the correctness of the interpretation, in so far as he personally could, and to ensure that the appellant fully understood exactly what was happening. The learned trial Judge was satisfied that the statement was a voluntary statement and not rendered inadmissible by reason of the fact that Shabokotu was the interpreter in the taking of that statement. With this view we agree. It is true that in certain cases a village headman may be clothed with the duties and to some extent the powers of a police officer, but even if that question arose in this case it is possible to differentiate in the capacity in which a person is acting when that person holds more than one office: (Rex v. Jijengu, 10 E. A. C. A. 111). In the present case, moreover, Shabokotu did not act in any police capacity in his association with the appellant. As we are satisfied that the statement was correctly taken and was a voluntary statement properly admitted in evidence, that ground of appeal fails. The terms of the statement will be considered subsequently.

The second appellant, Waida s/o Gidaghama, it is alleged, also made an extra-judicial statement to Mr. Ronaldson, and this statement, upon being tendered in evidence at the trial, was objected to on the ground that it had never been made by the appellant. This likewise necessitated a trial within the trial, and the learned trial Judge found that the statement had been properly taken, was voluntary and admissible in evidence. In this Court the admissibility of the statement has been attacked on grounds somewhat similar to those already referred to in relation to the statement of the first appellant, and we are satisfied for the reasons given there that there is no merit in that part of the appeal founded on those grounds. The statement was a voluntary statement admissible in evidence.

The appellant Gamunga in his statement said that, on the suggestion of the third accused Gopa, he and Gopa set out to steal cattle of the Wanyaturu, and on the way they were joined by the second accused, the appellant Waida; that they continued on together until they saw people "breaking sticks", when Gopa said, "We shall murder these people", and the statement then continued:—

"I said: 'What is this—to murder people?' Gope (third accused) said: 'Without doubt, I shall murder, that is our job for to-day. If you have anything to say, say it now.' Waida (second accused) said: 'You see, one of these people is separated from the others; if we kill this one what will be said?' (Itakuwa maneno gani?) Gopa went by a roundabout route to get between the one person and the remainder of the party. When he had accomplished this Gopa began to run towards us. At this stage the intended victim was between Gopa and Waida and myself and slightly to one side. When Gopa had come to within about from here to the road (20 yards) he moved towards the stranger, who was still cutting firewood. Waida also began to run, following Gopa. I wondered what it was that was happening I was afraid. I saw Gopa strike the stranger on the head and the man fell down, crying out ('anapige kilele'). I was afraid that the Wanyaturu would come so I turned and ran away. Waida ran after me. He said to me: 'My shoes have fallen off.' We had run about from here to the rest camp (300 yards) when Gopa called out to us to go slowly. We did not wait but continued to run. Eventually Gopa caught up with us. I saw that there was a great deal of blood on Gopa's spear and his stick was broken. I asked whether the man had been killed. Gopa replied: 'I have already finished; even the throat I have cut ('Nimekwisha kumaliza, hata shingo nimekata'). We continued to Basotumbek, where Waida left us."

As that extra-judicial statement had been retracted at the trial the learned trial Judge correctly sought for corroborative evidence. Further facts proved in the course of the trial were to the effect that the first appellant and the accused Gopa slept the night before the murder at Giniwa's house at Gerodum; that they left together early in the morning of the murder, each carrying a spear and a stick; and that they returned there to sleep that night. Giniwa who had been absent and returned himself late that night did not know when they returned, but the next morning the appellent in the presence of Gopa came to Giniwa and claimed "gimarda". Now "gimarda" is a custom of the Wamangati whereby a person who has killed a human being or a lion can claim one head of cattle from each of the older members of his clan, and the first appellant in the presence of Gopa claimed from Giniwa this reward for what he, Gopa, and

another person whom he called Hotai (not the second appellant) had done the previous day. The appellant and Gopa stood in such a relationship to Giniwa that according to the customs of their tribe they were entitled to claim a head of cattle from him. It is not clear from the evidence how many cattle can be claimed, but it well may be that one head of cattle must be provided by each of the senior married members of the clan. This custom no doubt is a great inducement to gratuitous murdering.

The value of Giniwa's evidence has been attacked on the grounds that he did not give this information as to what the present appellant had said in the presence of the third accused until some days later, but it appears that certain headmen asked a gathering of the Wamangati who had run away from Gerodum and the vicinity in fear of reprisals from the Wanyaturu whether they had any information as to the murder. Amongst those present was Giniwa, who kept silent. That was on 1st February, but on the following day when it was proposed to administer a tribal oath to all those present Giniwa rather than take the oath told his story to headman Bakari. We agree with the learned trial Judge that it is not surprising that Giniwa was naturally reluctant to incriminate his relatives, and in considering that the short delay in telling his story did not detract in any way from his credibility. Giniwa impressed the learned trial Judge as a witness of truth, and he accepted that evidence. With that view we see no reason to disagree, especially after an examination of the record.

The learned trial Judge held the opinion that the first appellant's extrajudicial statement constituted a confession that he aided and abetted the commission of the murder. We are far from certain that this was a correct appreciation of the effect of the statement, for by itself it appears to us that it was intended to be self-exculpatory. It is true that he admitted that he and his companions set out on the felonious enterprise of stealing cattle, and they were all armed, but it is also true that the murder in this case was not a necessary consequence of the enterprise upon which they had embarked and therefore it cannot be looked upon as part of the original concerted action. The learned Judge, however, rested his finding on the fact that when Gopa formulated his plan to kill the boy the appellant did not dissociate himself with the scheme by, for example, leaving the vicinity. He stayed where he was thereby giving his companions reason to believe that he would be able readily to come to their assistance and this naturally would give them additional confidence and assist them in the carrying out of the murder, and this the Judge thought was further borne out as from the statement he did not dissociate himself when Gopa made a detour in order to place himself between the victim and the other Wanyaturu, thus placing the victim between himself and the appellant so that the victim's escape was cut off in both directions. The appellant did not run away until Gopa had actually struck the boy to the ground, and then he ran because, as he said, "I was afraid that the Wanyaturu would come so I turned and ran away". If that were all we should find difficulty in supporting the learned Judge's inference of guilt, but there are other factors. The appellant did not even dissociate himself from Gopa after the killing because he spent the rest of the day with him and that night at Giniwa's, and together with Gopa in the morning went and saw Giniwa. Upon seeing Giniwa the appellant, as spokesman on behalf of Gopa and himself, claimed the "gimarda" for what they had done, the appellant claiming that "we" had killed a man. It is pertinent to remark that Gopa did not in any way contradict the appellant in his claim as to the part he had taken in the killing, which is strange unless the appellant had in fact taken part in the murder and was entitled to a share of the profits resulting therefrom. In the memorandum of appeal it is urged that the words used by this appellant to Giniwa could not reasonably be construed as

implicating the appellant in the commission of the offence. We cannot accept this submission. For the reasons set out in the learned trial Judge's judgment, namely, the presence of the appellant at the scene of the crime, his failure to dissociate himself with the man who he said was the murderer while the murder was taking place, when linked with his association with that same murderer for the remainder of that day and the whole of the following night until the next morning, when on behalf of the alleged murderer and himself he claimed the "gimarda", satisfy us that the learned trial Judge's finding as to this appellant's guilt was a finding which could properly be arrived at on a consideration of the contents of the statement, the evidence of Giniwa and the surrounding circumstances. That being so, there is no merit in the remaining grounds of appeal.

As regards the appellant Waida, the case against him rests on his own statement, the statement of the appellant Gamunga, so far as it is admissible against the second appellant, and the fact that the sandal found in the vicinity was proved to belong to him.

The appellant's statement having been repudiated by him but being admissible in law, it remained on the record as a part of the case against him and may be taken into consideration in assessing whether or not there was sufficient evidence to support the conviction. In this statement the appellant admitted that he saw the accused Gopa and arranged to meet him on the following day to steal cattle of the Wanyaturu. On the next day he met Gopa who was accompanied by the appellant Gamunga. The statement continues:—

"We took the road down the Endesh valley, to Jerimbid, where we saw several Wanyaturu persons—three girls and a boy I saw. When we saw them Gopa said: 'Wait while I count these people.' He went about from here to the tree across the road (40 yards) and then returned. He said: 'We shall kill that person.' Kamunga (first accused) asked why we should kill him. Gopa did not reply. He went up to the Wanyaturu boy and struck him on the head with his stick. I had followed Gopa but when the boy was struck I turned and ran after Kamunga, who had already begun to run. As I ran one of my shoes fell off and remained behind—a shoe inside of cattle hide and rubber from a car tyre."

The learned trial Judge was satisfied that the statement was true in so far as it implicated the appellant and was of the opinion that as the appellant was aware of what Gopa intended to do and not only did not dissociate himself from Gopa's purpose but actually followed him to see it put into effect, he was therefore aiding and abetting Gopa and was thus equally guilty of the murder. Now it is true that the appellant Waida had gone with Gopa; in fact the footprints indicated that he had accompanied or followed Gopa to very near where the boy was first struck.

The evidence against this appellant can be summarized as Gamunga's retracted extra-judicial statement, the appellant's own repudiated extra-judicial statement, the finding of the appellant's sandal very near where the body was found, the foot-prints leading to near where the first blow must have been struck, and an association of the first appellant Gopa and himself on the morning before the murder. There is in our view not sufficient evidence to justify the inference that the appellant with Gamunga and Gopa was engaged on a common purpose to commit murder. In the case of the appellant there is no evidence whatsoever of any association between him and either Gamunga or Gopa after the murder, and the value to be placed on Gamunga's statement in so far as it supports the case for the Crown against this appellant is very little, it having been retracted by Gamunga.

With the above considerations in view, we cannot say that we are satisfied that the evidence adduced on behalf of the Crown was sufficient to bring home. the charge against this appellant beyond a reasonable doubt, and that being so, we must hold that his conviction cannot stand.

Reference has been made to a third accused, Gopa, who was also charged and acquitted. It perhaps should be recorded that the evidence against him consisted solely of the retracted statement of the first appellant and the repudiated statement of the second appellant. The weight which can properly be given to such statements as these is discussed in the judgment of this Court in Criminal Appeals 156 and 157 of 1952. On the technical rules of evidence the learned trial Judge therefore felt compelled to acquit him, although there can be little doubt that he was the actual killer. One further observation might also be made, and that is that it is within the knowledge of one member of this Court that a considerable number of murders occur in the vicinity where this. murder took place, and it would appear that a considerable inducement for these murders to be committed on neighbouring tribes is the existence of this system of "gimarda", and it would further appear that if the elders of the clan comprised within the tribe in question are prepared to implement the age-old custom of giving murderers cattle after they have committed a murder then it may be that some action requires to be taken against the elders and others of that tribe in order to try and safeguard the lives of innocent people in that vicinity.

The appeal by the appellant Gamunga s/o Gidagurija is dismissed. The appeal by the appellant Waida s/o Gidaghama is allowed, the conviction being quashed and the sentence set aside. He must be set at liberty forthwith.