Hasan Mwaliumba &Another vs Republic (Criminal Appeal No. 42 of 2013) [2014] TZCA 2199 (19 May 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: RUTAKANGWA. 3.A.. BWANA. J.A.. and MANDIA. 3.A.1 CRIMINAL APPEAL NO. 413 OF 2013 PETER MWAFRIKA ........................................................... APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Chocha, J.~ ) dated the 13th day of February, 2013 in Criminal Session No. 35 of 2011 JUDGMENT OF THE COURT 6th& 14th May, 2014 BWANA. J.A.: The appellant, Peter Mwafrika, was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap. 16. He was sentenced to the mandatory punishment of death by hanging. He has now appealed to this Court against both conviction and sentence. Before us he is represented by Mr. Justinian Mushokorwa, learned advocate, while the
respondent Republic is represented by Mr. Achilles Paul Mulisa, learned State Attorney. The facts of the case as discerned from the record are as follows. The appellant and the deceased, Cosamu Mwafrika, were brothers, born of the same father but different mothers. The deceased's mother is the elder wife. For a long time there existed a family feud between the deceased and the appellant's mother, the younger wife in the family. The source of the feud was said to be their family land. It is on record that a day before the murder of Cosamu, he had appeared in a Primary Court in their area. The deceased and the appellant's mother had a case over that very piece of land. The appellant attended the hearing of that case. On the following day (after the case) that is on 11 February, 2010, the deceased together with his wife, PW1, went to weed the farm early in the morning near Shaji Village of Mbozi District. At around 8.00 hrs. a group of four (4) men armed with machetes came to the very farm where PW1 and the deceased were. Among the four, three of them were allegedly known to the couple. They were said to be Peter Mwafrika (the appellant), Nuru George and Samson George. The fourth person was a stranger, unknown to the couple.
Nuru and Samson were also relatives of the deceased and the appellant. Their father is said to be a younger brother of the deceased's and the appellants' father. PW2 is said to be an elder brother of the rest, sharing a mother with the deceased. Upon their arrival at the farm, the four men informed the deceased that they were to arrest him for cattle theft. Although the deceased denied those allegations, the one of the four then violently dispossessed the deceased a hoe he had been using and struck him with it on the chin. The deceased started bleeding. The four then tied the deceased with a rope and ordered him to accompany them to Mlowo Police Post, some distance away. While marching to the Police Post, PW1 accompanied them, pleading with the four not to further harm the deceased. Her calls were not heeded to. PW2, an elder brother, who was in the area, was informed. He too tried in vain to ask the four men not to harm the deceased. He then asked PW1 to seek assistance from a nearby village of Shaji. Upon noticing that some assistance was being sought from that nearby village, it is on record that suddenly Samson attacked the deceased by cutting him in the neck and spine region. That was followed by
the appellant who inflicted a severe cut aiming at the throat which was cut into two halves. The attackers are then said to have run away into the thick bushes around, taking with them their weapons, the machetes. Attempts to save Cosamu's life were unsuccessful as he died the following morning (12th February, 2010) at Mbeya Referral Hospital. A man hunt for the killers was launched by the Police but they managed to arrest only the appellant at Ilembo village, at the house of his other wife. The other three alleged assailants were still at large by the time this case was determined by the High Court. A post mortem report, exhibit PI, revealed that the cause of death of Cosam was haemorrhagic shock as a result of a cut neck. The appellant denied to have killed his half brother. Apparently he raised a defence of alibi, alleging that on the date of the killing, he was at his Ilembo residence. However, he did not call his second wife to testify that in deed he had been at her house on the material day. All the three assessors entered a guilty verdict and opined that the appellant be found guilty of murder. The trial judge entered a similar verdict, convicting him of murder and sentencing him to suffer death by hanging, hence this appeal.
The appellant's memorandum of appeal consisted of three main grounds namely:- • That the trial judge erred to hold that PW1 and PW2 had no protected interest despite the common fact that the two were, like the deceased and accused/appellant\ members o f one and same family/clan which had been bedeviled/beleaguered by a long standing land dispute. Hence there was great possibility for the two witnesses to have an axe to grind. • The trial judge erred in not drawing adverse inference against the prosecution for failure to call independent witnesses who were mentioned to have witnessed the alleged brutal attack o f the deceased. • The defence ofaWbi was not properly considered. We must state at the outset that this is a test case/appeal to principles of law hitherto in use in our jurisdiction. The said principles of law are the following. • The role o f the first appellate court in evaluating evidence adduced before the trial court. • The weight and credence o f evidence from witnesses who are blood related/same family.
• When should a trial court draw adverse inference against the prosecution for failure to call independent witnesses. In the instant case, the Court acts as the first appellate court. We do discern from the record that during trial and in the course of this appeal, the defence tried to impeach the credibility of PW1 and PW2. Therefore being a first appeal, we are enjoined by law to re-examine the entire evidence and where necessary, arrive at our own conclusion. In Bermax v. Austin Motors Company Ltd. (1955) A ll ER 326 et seq. the Court held:- "An appellate court, on appeal from a case tried before a judge alone, should not differ from a finding o f the trial judge on a question o f fact. But distinction in this respect must be drawn between the perception o f facts and evaluation o f facts. Where there is no question o f the credibility o f witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge.." (Emphasis provided).
(See also: Patrick Jeremiah v. Republic, Criminal Appeal No. 34 of 2006 - unreported). The Court has adopted the principle on occasions where it satisfied itself-in its evaluation of the evidence on record - that there are glaring irregularities on the face of the record or where there is obvious perversity. Going through the record of this case, as it will be shown below, it is obvious that this is a fit case for departing from the factual findings of the trial court and make our own evaluation of the evidence. Another important point for consideration at this stage is how much weight should be accorded to the evidence of prosecution witnesses who are blood related. It is sometimes claimed that such witnesses harbour a common interest. The position taken by this Court however, has always been twofold. First, that since there is no law which forbids relatives from testifying in court for the same cause, that argument should not be given credence. The Court's position is reflected in several decisions, some citing an early decision
of the erstwhile East African Court of Appeal (in R. v. Lulakombe Mikwalo and Kibege. 1936 EACA 43 at 44) that:- "There is no rule o f law or practice which permits the evidence o f near relatives to be discounted because o f their relationship to an accused person..." Second, that in a situation where near relatives are enjoined to testify, what must be born by the court is their credibility ... each one's evidence must be considered on merit as should also the totality of the story told by them. (See, Tarayi v. Republic, Criminal appeal No. 216 of 1994; Rashidi Abdallah Mtungwe v. Republic, Criminal appeal No,. 91 of 201 - both unreported). In Abdallah Teje @ Malima Makula v. Republic, Criminal appeal 195 of 2005 (unreported) the Court held that what matters is the credibility of their evidence and the weight to be attached to such evidence. In that regard, such evidence has to satisfy the following conditions:-
-
Whether such evidence was legally obtained.
-
Whether it was credible and accurate.
-
Whether it was relevant, material and competent.
-
Whether it met the standard of proof requisite in the particular case, that is, its believability. The foregoing discourse on this subject presuppose that the blood relatives are testifying on one side against an accused person on the other side and who is not a blood relative of the first group. In that kind of proceedings, the court may apply the law and practice as it currently is. There arises no need to call for independent evidence to verify certain matters before the court arrives at it decision, unless, of course, where it is evident that such independent evidence is necessary for the judicious determination of the matter. The above seems not to be the position in this case. The parties herein were blood related. The subject matter - the land dispute- concerned both sides to the case. The alleged killing of the deceased is alleged, by one side, to have been effected by the other side to the conflict, in the presence of on lookers who would have been called to testify but were not. The foregoing considered, we see logic in Mr. Mushokorwa'a arguments and a call to depart from the general application of the principle of law hitherto adopted by the Court on this subject.
The point of failure to draw adverse inference is considered later herein when examining the available evidence in general. The evidence on record points out the following salient sequence of events. • That there existed a family feud over a piece o f land, tearing apart mother and children o f each wife to the family. The feud had reached a point that same family members were suing each other in court. • One part o f the family ( i. e. the appellant and his mother) had come to a conclusion that the deceased was the source o f the conflict. • Whether that conclusion led to the appellant (and other people allegedly still at large) to form the necessary mens rea in the commission o f the offence, is not clearly established. • The above taken together, it draws the necessary inference that either side to the family conflict had an interest in seing to it that the feud came to an end - either through courts o f law or violently - as it eventually happened with the killing o f Cosamu. • The violent end o f the conflict is said to have been witnessed by PW1 and PW2, the wife and elder brother o f the deceased, respectively. These
two key witnesses had an interest in the case- both the life o f their dear husband/brother and the family land. Thereforef this would appear to be an exception to the general rule as propounded above, starting with the case o f Lulakombe supra. That the attack on the deceased, according to PW1, began at the farm where he and PW1 were weeding. That was an isolated place. Had the appellant and his alleged companions intended to kill the deceased, they would have done so at that spot, and may have killed PW1 too so as to eliminate all likely evidence, it was submitted by Mr. Mushokorwa. We do not comprehend the logic behind (if PW1 and PW2's version on this point is to be believed) the assailant's act o f tying the deceased with ropes from the farm and marching to Shaji village and then kill him as villagers were gathering to see what was going on. We think PW1 and PW2's evidence on this critical moment leaves much to be desired. We are alive to the principle o f adverse inference and what it entails in cases o f this kind. The law on the issue is settled thus: the prosecution does not have any obligation to produce certain witness irrespective o f consideration o f their number (see section 143 o f the Tanzania Evidence Act, Cap 6). That position o f the law notwithstanding,
it is equally settled that the said discretion on the part o f the prosecution must be exercised judicially in order to advance the cause o fjustice (See: Separatus Theonest v. Republic Criminal Appeal No. 138 o f 2005; Riziki Methord v. Republic, Criminal Appeal No. 80 o f 2008 - both unreported). In Aziz Abdallah v. Republic, (1991) TLR 71, the Court restated the law thus:- "...the general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who from their connection with the transaction in question, are able to testify on materia! facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.. "(Emphasis added). We subscribe to the foregoing as we find it to be very relevant to the instant case. As we stated above, it is on record that the fatal blow to the deceased took place near Shaji village, when people had started gathering. PW 2 testified that the earlier blow, using a hole against the deceased's chin, did not
inflict severe injury. It may be that is why he managed to march from the farm to where he was eventually given the killer blow. Again, the evidence of PW1 and PW2 when read together, it irresistibly points to the fact that when the deceased throat was cut into halves (thus the fatal injury), people from Shaji had started to come around and witness what was going on. It cannot be said that the prosecution did not know some of those people because during the Preliminary Hearing, the prosecution listed names and addresses of nine (9) would be witnesses. Apart from PW1, PW2 and PW3, the others were from nearby villages. Those villagers witnessed what took place at the scene of crime. They would have, in our opinion, given independent evidence on what actually transpired at the scene of the crime. Failure to call them without good cause being shown did, in our view, prejudice the course of justice in this case. The appellant may have cut the deceased with a hole at the farm but he may not have given the fatal cut(of the throat) at the scene of the fatal blow. We are mindful of the fact that some people allegedly involved in the killing, are still at large. The prosecution, therefore, needed to produce more evidence implicating the appellant, given the serious nature of the offence with which he was charged. The loopholes left unanswered, as shown herein above, should be, in the interest of jusctce, interpreted in favour of the appellant.
Therefore for the reasons given this appeal has merit. We therefore allow the appeal, quash the conviction, and set aside the sentence imposed by the trial court. Further, we order that unless the appellant is otherwise lawfully held, he be set free forthwith. DATED at MBEYA the 13th day of May, 2014. E.M.K.RUTAKANGWA JUSTICE OF APPEAL SJ. BWANA JUSTICE OF APPEAL W. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. FJ. Kabwe DEPUTY REGISTRAR COURT OF APPEAL