Lusagula Machia &Another vs Republic (Criminal Appeal No. 426 of 2013) [2014] TZCA 2188 (17 March 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE. J.A.. KIMARO. J.A.. And MJASIRI. J.A.) CRIMINAL APPEAL NO. 426 of 2013
- LUSAGULA MACHIA
- JINTA LUSAGULA j . APPELL VERSUS THE REPUBLIC ................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Lukelelwa. J.) Dated the 19th March, 2013 in Criminal Sessions Case No. 122 of 2006 JUDGMENT OF THE COURT 14th & 17th March 2014 MJASIRI. J.A:- The appellants were convicted by the High Court sitting at Tabora of the murder of one Njile d/o Gamu on 19 March, 2013. They were sentenced to suffer death by hanging. Aggrieved by the conviction and
sentence they have preferred this appeal against both conviction and sentence. The background to this case is that the deceased was a resident of Dulisi Village within Kishapu District in Shinyanga Region. On or about February 11, 2006 at night time, the appellants invaded the house of the deceased, stormed in her bedroom and attacked her using a machete. PW1 Sosoma Charles was at his grandmother's house and was sleeping when he heard the dog barking. He looked through the window and saw two people approaching the house. They were both carrying torches and there was moonlight as well. He saw the first and second appellants Lisagula Machia and Jinta Lisagula at the door. They forced the door open. Lusagula slashed the deceased with the machete while Jinta provided light for him. When PW1 raised an alarm the intruders attacked him with a machete and cut him on his back side. PW1 was the only eye witness. He testified that both appellants were well known to him. They grew up in the same village and they were neighbours. After killing the deceased they left saying that the case is now over. PW1 went to inform his relative PW3 Jagadi Sosoma about the incident. He named the appellants as the ones
who killed the deceased. There was bad blood between the first appellant and the deceased. She had made a complaint to the police against him and criminal proceedings were commenced in the primary court. At the hearing of the appeal, the appellants were represented by Mr. Method Kabuguzi, learned advocate. The respondent Republic was represented by Mr. Iddi Mgeni, learned State Attorney. Mr. Kabuguzi presented a three (3) point memorandum of appeal on behalf of the two appellants. The grounds of appeal are reproduced as under:- "1. That, the Honourable Judge grossly erred in law and fact when he held that the offence of murder had been proved by the prosecution against the appellant beyond all reasonable doubts." 2. That, the Honourable Judge grossly erred in law and fact when he grounded the conviction
o f the appellants by relying on the sole witness (PW1) who had allegedly identified the appellant by voice in unfavourable conditions. 3. That, the Honourable Judge grossly erred in law and fact when he held that there existed circumstancial evidence which rendered corroboration to the evidence o f PW1." Mr. Kabuguzi strongly argued that the offence of murder was not proved beyond reasonable doubt. He submitted that the conviction of the appellants was based on the evidence of a single witness, PW1. The circumstances were not conducive to a correct identification. The incident occurred at night and the source of light which was relied upon was torch light and moonlight. He contended that the standards set in the case of Waziri Amani v. Republic [1980] TLR 250 were not met.
He submitted that PW1 saw the appellant approaching the house through the window, given the surrounding circumstances there was a possibility of mistaken identity. Mr. Kabuguzi also faulted PWl's failure to name the suspects to his young brother Richard Juma, PW2 who was with PW1 at the house when the incident occurred. He submitted that apart from stating that the appellants were in shorts and bare-chested, he did not give their physical description or the colour of their shorts. Mr. Mgeni on his part supported the conviction of the appellants. He strongly argued that the appellants were properly identified by PW1. He saw them approaching from the window after he heard a noise. Apart from the moonlight, PW1 also relied on torch light as it was not beamed at his face. He relied on the case of Waziri Amani (supra). On the reliability on the evidence of a single witness, Mr. Mgeni submitted that the appellants were well known to PW1, they lived in the
same village, a fact which was also admitted by the second appellant. He stated that the court can rely on the evidence of a single witness, what matters is the credibility of the witness. It is a rule of practice, not of law, that corroboration is required of the evidence of a single witness of identification of the accused made under unfavorable conditions. He relied on Lusabanya Siyantemi v. Republic [1980] TLR 275. On the failure to name the appellants at the earliest opportunity, Mr. Mgeni submitted that PW1 named the appellants to PW3. He went to see PW3 immediately after the incident. The main issues for consideration and determination in this appeal are as follows:-
- Whether or not the appellants were properly identified by PW1.
- Whether or not the conviction o f the appellants was against the weight o f the evidence.
After carefully reviewing and analyzing the totality of the evidence on record and the submissions by counsel, we would like to make the following observations. It is evident from the record that the case for the prosecution rested entirely on the evidence of a single witness. This was PW1, who was the deceased's grandson. He was present when the assault by the appellants leading to the death of the deceased took place. The appellants were well known to PW1 as they lived in the same village for many years. PW1 saw the appellants from the time they were approaching the house, the breaking of the door and eventually the subsequent attack which led to the death of his grandmother. The trial court found PW1 a credible witness. As this is a first appeal, it is in the form of a re-hearing. The appellant is therefore entitled in law to have our own consideration and views of the entire evidence and our own decision thereon - See D.R. Pandya v R [1957] E.A. 336. However we are precluded from questioning the findings of fact of the trial court, provided that there was evidence to support the decision - See R v Hassan bin Saidi [1942] 9 EACA 62 and R v Gokaldas Kanji Karia and Another [1949] EACA 116.
We are mindful of the rule of practice that corroboration is required of the evidence of a single witness of identification made under unfavourable conditions - See Hassan Juma Kanenyera and Others v Republic [1992] TLR 100 and Lusabanya Siyantemi v Republic [1980] TLR 275. In Abdullah bin Wendo v R [1953] 20 EACA 166 it was stated that there is always the need for testing with greatest care the evidence of a single witness in respect of identification. - See for instance Roria v Republic [1967] EA; R V Turnbull [1977] QB 224, Mburu and Another v R [2008] 1 KLR 1229 and Vhegane v The State [2007] SCA 76 (RSA). The law is settled. In terms of section 143 of the Evidence Act, [Cap 6 R.E. 2002], there is no specific number of witnesses required for the prosecution to prove any fact - See Yonanes Msigwa v Republic [1990] TLR 148. What is important is the quality of the evidence and not the numerical value.
We are alive to the fact that the Court has stated in numerous decisions, the most celebrated being Waziri Amani (supra), that the evidence of visual identification is easily susceptible to error. At page 251
- 252 of the judgment, the Court succinctly stated as under:- "The evidence o f visual identification is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely watertight" In Anil Phukan v State of Assam [1993] AIR 1462 it was stated thus:- "A conviction can be based on the testimony o f a single witness and there is no rule o f law or evidence which says to the contrary provided that
the sole eye witness passed the test o f reliability in basing a conviction on his testimony alone." In Omari Ahmed V Republic [1983] TLR 52, it was held that the trial court's finding on the credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record which call for re-assessment of the credibility. See also Dickson Elia Shapwata and Another v Republic, Criminal Appeal No. 92 of 2007 CAT (unreported). In Shabani Daudi v Republic, Criminal Appeal No. 28 of 2001 CAT (unreported) it was held that the assessment of credibility of witnesses, in so far as demeanour is concerned is the monopoly of the trial court - See Salum Mhando v Republic [1993] TLR 170. According to the evidence of PW1, PW3 and PW4 the appellant had motive to kill the deceased. He wanted to prevent the deceased from proceeding with the case against him. Section 10(3) of the Penal Code [Cap 16 R. E. 2002] provides as under:-
"unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention is immaterial so for as reaards criminal responsibility." (Emphasis added) Motive is not an ingredient for murder, however its presence strengthens the prosecution case and its absence weakens it - See R v Tindikawe [1940] 7 EACA 67, where it was stated that motive can be considered when weighing the prosecution case - See Stanley Antony Mrema v Republic, Criminal Appeal No. 180 of 2005 CAT (unreported). In criminal cases the burden of proof lies on the prosecution to prove the case against the accused person beyond reasonable doubt, the burden never shifts - See Woolmington v DPP [1935] AC 462 and Mohamed Said Matula v Republic [1995] TLR 3. We are satisfied from the evidence adduced that the identification of the appellants was watertight.
In view of the reasons stated herein above, we find no merit in the appeal. The appeal is hereby dismissed in its entirety. DATED at TABORA this 15th day of March 2014. X H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. F ; y a SENIOR DEPUTY REGISTRAR COURT OF APPEAL