Laurent Kisingo vs Republic (Criminal Appeal No. 123 of 2013) [2014] TZCA 2196 (30 April 2014)

IN THE COURT OF APPEAL OF TANZANIA AT-AR-U-S-HA CORAM: OTHMAN.C.J., MANPIAJJV., And ORIYO,JLA CRIMINAL APPEAL NO. 123 OF 2013 LAURENT KISINGO...................................................................APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the conviction and sentence of High Court of Tanzania At Arusha) (Sambo, J.l dated the 13th day of March, 2010 in Criminal Session No 7 of 2007 JUDGMENT OF THE COURT 18th March & 30th April, 2014 ORIYO, J. A.: Upon conviction of the murder of his brother, Charles Kisingo, on 9th April, 2005 at Olgira Village, Kiteto District, Manyara Region, the appellant was sentenced to the mandatory sentence to suffer death by hanging. Feeling aggrieved, the appellant has instituted this appeal. At the hearing of the appeal, Mr. Haruni Matagane, learned State Attorney appeared for the respondent Republic. The appellant had the services of Mr. Kelvin Kwagilwa, learned advocate.

At the outset, the learned State Attorney raised a preliminary objection, notice having been filed earlier on, under Rule 4(2) of the Court of Appeal Rules, 2009, (the Rules). The objection read as follows:- ”1. The appeal is incompetent for non-compliance with the mandatory provisions o f Rule 68(2),(7) o f the Court o f Appeal Rules, 2009." To elaborate on the objection, Mr. Matagane contended that since it is the Notice of Appeal which institutes an appeal in criminal matters, such notice must contain a number of "essential components" including the nature of the conviction thereof and ought to be substantially in the Form B as it appears in the first schedule to the Rules. He contended that the Notice of Appeal in the record is incurably defective for failure to show therein the offence with which the appellant was convicted of. His further contention was that, as it is, the notice of appeal is misleading for stating the sentence of death by hanging imposed upon him, which is the mandatory sentence for both murder and treason offences, without specifically stating that he was convicted of murder.

The learned State Attorney referred to the decision of the Court in Matinda Lesaito Vs Republic, Criminal Appeal No. 92 of 2013 (unreported), where the defect in the Notice of Appeal was on the date of the decision complained of and the court struck it out. He urged us to agree with him and find the notice of appeal to be incurably defective and accordingly, strike it out. Mr. Kwagilwa responded briefly by conceding to the omission to state the offence with which the appellant was convicted of in the notice of appeal, but he was quick to add that the omission did not go to the root of the matter. Relying on Rule 96(1) of the Rules, the learned counsel observed that the record of appeal is composed of various other documents beside the notice appeal, which clearly state the offence for which the appellant was convicted with and the fear that the notice of appeal might be misleading is unfounded. He urged us to dismiss the objection. Rule 68(2) of the Court Rules provides:- "Every notice o f appeal shall state briefly the nature of the acquittal, convictionsentence, order or finding against which it is desired to appeal and shall

contain a full and sufficient address at which any notices or other documents connected with the appeal may be served on the appellant or his advocate and, subject to Rule 17, shall be signed by the appellant or his advocate. "[Emphasis ours] As correctly submitted by the learned State Attorney, subrule (2) of rule 68 contains several "essential components" of a notice of appeal. These include:- (i) the nature of acquittal/conviction; (ii) the nature of sentence/order, finding; (iii) full and sufficient address of the appellant or his advocate; (iv) the signature of the appellant or his advocate. In terms of subrule (7) thereof, it is provided as follows: "(7) A notice o f appeal shall be substantially in the Form B in the First Schedule to these Rules and shall be signed by or on behalf o f the appellant." We are aware that the Court of Appeal Rules 2009, provides for two identical formats of Forms "B" and Form "B/l". Whereas Form "B" is for general use by all appellants and is made under rule 68 thereof; ForrrTB/l"

is specifically made under rule 75 of the rules for those appellants who are prisoners. We have opted to reproduce the format in form "B" and not "B/l", because the objection raised by the respondent Republic arises out of Rule 68(2) and (7) of the Rules. The only difference being that Form "B/l" has an additional part at the bottom to provide for the particulars of the prisoner. The format of FORM B under rule 68 is as exhibited hereunder:- FORM B (Rule 68) "In the Court of Appeal of Tanzania a t .................. Criminal /Civil Application No ............... of............20 ............. In the matter of an intended appeal/Criminal/Civil Appeal No ............. ..................of 20 ........... between ................. Appellant and ..............Respondent (Appeal from the ................ of the High Court o f .............. a t ............................... (Mr. Justice ........ Dated ............. 20 ............. in ............ Criminal/Civil/or Application/Appeal No .............. of 20..............................) NOTICE OF APPEAL

TAKE NOTICE that...........appeals to the Court of Appeal of Tanzania against the decision of Hon Justice ............ given at .................... on the..........................day of ...................... whereby the appellant was convicted of ............. and sentenced to .........The appeal is against conviction only/conviction and sentence/sentence only.The intended appellant intends/does not intend to be present at the hearing of the appeal. The address of service of the appellant is ....................................................... Dated this....................................day of ....................... 20 ...... Signed ........................Appellant/Advocate for the Appellant Retained to appear at the hearing of the appeal. To: The Registrar of the High Court a t.................... Lodged in the High Court of Tanzania a t .................. on the............day o f .............. 20...................... Registrar". We have reproduced theformat of Form B in terms of rule 68 (2) and (7) so as to further underscore the essential components of a notice of appeal. The learned counsel for the appellant submitted that the appellant had complied fully with the format, save for the omission to state the 6

offence he was convicted of. The learned State Attorney, did not rebut that assertion. And on our part, we have no reason to differ with the parties because that is the position, as exhibited from the evidence on record; the appellant has substantially complied with the provisions of rule 68(2) and (7) of the rules. He has complied with all the fifteen essential components, in Form B except, the particular offence he was convicted of, was not mentioned. In our respectful view, on the facts of the case, that amounts to substantial compliance with the terms of Rule 68(2) and (7) of the Rules. In the circumstances of this appeal where the appellant has substantially complied with rule 68(2) and (7) of the rules, do we have any justification to find the notice of appeal incurably defective as prayed for by the learned State Attorney? There is evidence on record that the appellant was arrested on 9/4/2005, but was convicted after a period of almost (8) eight years later, that was on 12/3/2012. In the event we agree with the learned State Attorney that the notice of appeal is incurably defective as suggested by him and strike out the notice of appeal for incompetence, the appellant will be at liberty to refile the appeal, subject to the law of limitation. As it is,

no one can predict the outcome of further attempts to refile the appeal by a prisoner; whether it will take another 8 years or more or less, for the refilled appeal, if any, to be finalized. There is no direct, definite answer, but it remains mere guess work. In response to a question from the Court on how the Republic was or will be prejudiced by the omission or defect in the notice of appeal to state the offence for which the appellant was convicted, the leaned State Attorney replied in the negative. Rule 2 of the Court Rules provides:- "In administering these Rules the Court shall have due regard to the need to achieve substantive justice in the particular case ." Further rule 4 (2) (b) of the Rules states "(2) Where it is necessary to make an order for purposes of (a) N/A (b) better meeting the ends o fjustice; (c) N/A the Court may on an application or on its own motion , give directions as to the procedure to be adopted or make any

other order which it considers necessary." In view of the clear provisions of rules 2 and 4 (2) (b) of the rules, we are convinced that the interests of justice will be better served, if we proceed to determine the appeal on merits. In so deciding, we are neither making a general rule of practice nor making a departure from any previous decisions of the Court; but its application is only limited to the particular circumstances of this appeal. It is for the above reasons that we have found it necessary to proceed with the hearing of the appeal on merits. Regarding the appellant's complaints against the trial court's decision, M/s Loom Ojare & Co. advocates, filed a total of 7 grounds of complaints. However, in the course of arguing the appeal, Mr. Kwagilwa, learned counsel, decided to abandon grounds 5, 6 and 7 of appeal. He proceeded to argue the remaining four grounds, namely:-

1. THAT the learned Honourable Judge grossly erred in law in convicting the Appellant based on Extra-Judicial Statement (Exhibit P5) which was wrongly admitted during the trial

contrary to the provision of section 169(1) o f the Criminal Procedure Act; CAP 20 R.E.2002. 2. THAT the learned Honourable judge erred in law and fact in finding that prosecution witness Pw2 was a credible witness without directing his mind properly to the vital shortcomings in his evidence. 3. THAT the learned Honourable judge erred in law and fact, in convicting the Appellant on the basis that there was established malice aforethought 4. THA T the learned Honourable judge erred in law and fact to reach to a conclusion that the prosecution proved the case beyond reasonable doubt, while there were serious contradictions in prosecution witnesses testimonies. Before we discuss the merits or otherwise of the grounds of appeal, we shall briefly give the background of case at the trial court. The prosecution case was narrated by PW2, Julius Muya, the sole eye witness to the incident. The deceased was a blood brother of the appellant. In the afternoon of the fateful day, 9/4/2005, PW1 and the deceased were in their village of Olgira, working on a farm, uprooting tree stumps, when the appellant visited them carrying a locally made gun, (gobole). In the course

of their conversation, the appellant asked PW1 to inquire from the deceased as to why he was bewitching his family. Before PW1 delivered the massage to the deceased, the appellant shot the deceased at the left hand and stomach. Thereafter, the appellant unsuccessfully attempted to run away. He was arrested shortly thereafter. In response to the alarm raised; many other villagers arrived at the scene including PW4, Martin Bilia, who was the village chairman and PW3 Philemon George, a militiaman. The group at first proceeded to the village office and then to the hospital. However, the deceased died before they reached the hospital. Instead, they took the appellant, the "gobole" and the deceased body and handed them over to Kijungu Police Station Officers. On the next day, a post mortem examination of the deceased' body was performed. The Post Mortem Examination Report (PMR) which was tendered as Exhibit "PI" showed the cause of death to be due to excessive bleeding caused by bullet wounds. Subsequently, the appellant was taken before a Justice of the Peace, Willy Ole Mona, PW6, who recorded his extra judicial statement, Exhibit "P5". The appellant admitted to have shot the deceased accidentally and caused his death.

In his defence as DW1, the appellant vehemently denied to have caused the death of his elder, blood brother, intentionally. His version of the incident at the trial court was similar to the statement he made to the Justice of the Peace, Exhibit "P5". He admitted that there was a misunderstanding between the deceased and the appellant in that the deceased made unsuccessful attempts to develop a relationship with the wife of the appellant, who declined deceased' advances. The deceased was apparently not happy to be rejected and the appellant believed that it was the deceased who had bewitched his wife to become insane. The appellant's efforts through village elders to reconcile the appellant and the deceased did not bear fruit. The appellant, had on the fateful day, while carrying his gun (gobole), gone to the farm where the deceased and other people were at work, uprooting tree stumps. He explained that he carried the "gobole" with him for fear of attack from wild animals. He further told the trial court that he had three bullets with him; one was in the gobole and the other two were in the pocket of his shirt. At the farm he tried to explain to the deceased the difficulties he was facing due to his wife being insane

and the financial hardships the appellant was facing in paying for the medical treatment of his wife. He asked the deceased to take over and assist to pay for some of the medical costs for his insane wife. Apparently, the deceased was not happy and he threatened to attack the appellant with a pick axe, a tool the deceased was using to uproot the tree stumps. As he was avoiding the attack from the deceased, the appellant fell down and his "gobole" fired accidentally, shot at the deceased and fatally wounded him. The appellant expressed deep grievances for the incident which killed his only brother, in a family of two sons. At the end of the trial the learned trial judge made a summing up to the assessors. All the three assessors returned a unanimous verdict of guilty of murder. It is now settled law that for the offence of murder to be proved; three ingredients have to be established. One, that the person is dead. Two, it is the accused who killed the deceased. Three, the killing was done with malice aforethought. In this appeal, the first issue is answered in the affirmative that Charles Kisingo is dead in the face of the evidence of PW2, DW1 and

Exhibit "PI". Two, it is the appellant who killed the deceased as admitted in exhibits "P5" "Pl"and on the evidence of PW2, and DW1. Three, malice aforethought, remains a tricky issue. It is the duty of the prosecution to prove that the killing was done with malice aforethought. On the basis of the evidence on record we are of the view that the appellant's conviction was mainly based on the testimonies of PW2, Exhibits "PI" and "P5" and the appellant's defence at the trial. Reverting to the grounds of appeal, the first ground should not detain us here because when exhibit "P5" complained of was tendered in court on 23/6/2010, the appellant did not raise any objection thereto. Perhaps we should reiterate here, as a matter of general principle that an appellate court cannot allow matters that were not raised and adjudicated upon by the trial court. The objection raised in ground one of appeal against the admission of the extra judicial statement of the appellant, in terms of section 169(1) of the Criminal Procedure Act, that the statement was taken in violation of the law, ought to have been raised and decided upon at the trial court, before Exhibit "P5" was admitted and not otherwise; see Emmanuel Lohay and Another vR, Criminal Appeal

No 278 of 2010/(unreported). We find ground one to lack in merit and is dismissed. As for the remaining grounds 2, 3 and 4, we shall consider them together as they all center on the credibility of witnesses and the alleged contradictions in their testimonies. We have already observed that the conviction of the appellant was based on four pieces of evidence; namely, the direct evidence of PW2, Exhibits "PI" and "P5" and the appellant's sworn evidence in court. We shall start with the evidence of the sole eyewitness, PW2. He testified to have seen the appellant shoot the deceased. He stated: "He hit him first with a bullet in the left hand and also in the stomach" On cross examination by the learned defence counsel, he stated:- " The accused fired only once." However, PW3, the village militiaman who went to the scene in response to the alarm raised, testified:- "/ searched the person o f the accused I recovered two bullets from his coat pockets." Further down, PW3, stated:-

"/ am the one who searched the person o f the accused. I did so after being instructed by the village chairman , on Martin Bilia. I recovered two bullets. I remember there was one empty in the Muzzle of the gun" Exhibit "P5" as tendered by PW6, another piece of evidence from the prosecution, the appellant admitted that one bullet accidentally fired from the "gobole" and fatally wounded the deceased which led to his death. These prosecution testimonies were intended to corroborate each other on the aspect of malice aforethought. The testimonies were further corroborated by the defence of the appellant on the number of bullets he had with him, how many were used and how many were left. DW1 stated "On that day I had one bullet which fired and two in my hand. I also told PW6, the justice o f the peace" But when we examine the contents of Exhibit "PI" on the medical evidence, the medical Doctor who authored and tendered the medical report, we find the following evidence:- " Cause of Death

multiple bullet wounds which caused excessive bleeding. Summary of Report I found the deceased with four big bullet wounds on the left hand. There was also another four bullet wounds on the abdomen which went through the internal organs like the intestines, stomach, omentam and mesentry." To us, it is incomprehensible that a single bullet fired from a gobole could have inflicted a total of eight (8) wounds on the body of the deceased. The Medical Officer who conducted the postmortem should have explained more on the relationship between the single bullet and the multiple wounds on the deceased's body. In the case of Mohamed Said Matula Versus Republic, (1995) T.L.R, 3, the Court had this to say on contradictions/inconsistencies in witness testimonies:- "i. Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the

inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root o f the matter. ii. Upon a charge o f murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence." It appears the learned trial judge in this case, with due respect, did not take into consideration these stark inconsistencies and contradictions in the prosecution testimonies before convicting the appellant of murder. We think, had the learned trial judge taken into account the inconsistencies and contradictions on this vital piece of evidence, and tried to reconcile them he would have come to a different conclusion and his directions to the assessors would have been different. The serious contradictions and inconsistencies would have also shaken the credibility of the prosecution witnesses before the trial court, and would, in consequence thereof, have had reduced the heavy reliance on the prosecution witnesses testimonies to convict as malice aforethought was not established.

The accused's version of an accident was reasonably possible. One, it is the version he gave when he confessed to the Justice of the Peace, just a few days after the incident. Two, the gobole he used was a locally made gun and its back was strapped with a piece of sandal. Three, the deceased and PW2 were uprooting tree stumps and the prosecution did not adduce any evidence to show that they had no pick axe or other instrument to uproot the tree stumps. It was the accused version that he was fleeing the imminent attack when he got stuck at a fallen tree and fell down, which subsequently caused the accidental firing of the gun. Having thoroughly studied the record, we do not think that the prosecution discharged its obligation to prove malice aforethought, in the circumstances. In the event, we find the appellant not guilty of murder and substitute a conviction of the lesser offence of manslaughter under section 195 of the Penal Code, Cap 16, R.E. 2002. We accordingly sentence him to serve twelve (12) years imprisonment, to run from the date of conviction, on 12th March, 2012. The appeal is therefore allowed to that extent.

M.C. OTHMAN CHIEF JUSTICE W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. M. A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL