Andrea Ngura vs Republic (Criminal Appeal No. 15 of 2013) [2013] TZCA 2141 (2 December 2013)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KIMARO. 3.A. MASSATI. J.A.. And MMILLA, 3.A.) CRIMINAL APPEAL NO. 15 OF 2013 ANDREA NGURA..............................................APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (Sambo. J.) dated the 12th day of November, 2008 in Criminal Session No. 2 of 2007 JUDGMENT OF THE COURT 26th November & 2n d December, 2013 MASSATI. 3.A.: On an information for murder, the appellant was tried and convicted by the High Court sitting at Arusha. He was sentenced to death. He is now appealing against both conviction and sentence. The information alleged that, on the 16th day of November, 2004 at about 22.00 hrs at Gichameda village, in Babati District, Manyara Region, the appellant murdered one TATU d/o BAKARI (the deceased).

The appellant and the deceased had, before her demise, been cohabiting as husband and wife. On the material day and time, the couple had gone to PW4's shop where they bought sardines, and kerosene and left in the company of one Jumanne Salim. At around 10:00 pm the duo reached the neighbourhood of PW1, John Aweda; who was asleep in his house. PW1 heard their voices, (which he knew; as they were quarrelling whenever they passed there on their way home which was also nearby). When he came out, he saw the appellant assaulting the deceased, who was lying on the ground helpless. When he tried to intervene in order to rescue the deceased, the appellant threatened him with a machete he was wielding. PW1 quickly retreated to the safety of his abode. The next morning PW1 was the first person who saw the deceased's lifeless body lying on the path, the very spot where he had seen the couple the previous night. He immediately reported to the ten cell leader and told him what he saw the previous night. They went in search of the appellant. He was found planting paddy seeds. They arrested him and took him to the police station, where he was re-arrested, and after some investigation, he was accordingly charged. In his defence, the appellant, told the trial court that on that day, when he came back from his shamba work at 9.00 pm, and did not find the deceased home, he and Jumanne Salim, set out to look for

her. Before reaching Kinyume village, they met her. They went to PW4's shop, bought some kerosene tobbaco and sardines and they took her to Salome Bakari (PW3) the deceased's tribesmate, who advised them to let her sleep there as she was too drunk to walk home, and so that is where they left her. He knew nothing about the death of his wife until the following morning when he was arrested on that account. Unfortunately Salome Bakari who testified as PW3 denied having seen either him or his wife the night before as alleged by the appellant. The trial court disbelieved the defence and was satisfied that the prosecution case was proved beyond reasonable doubt and accordingly convicted him as indicated above. At the hearing of this appeal, Mr. Severin John Lawena, learned counsel represented the appellant. He filed and argued three grounds of appeal. In the first ground, the judgment of the trial court was assailed for convicting the appellant without any evidence to prove malice aforethought. The learned counsel contended that, since, according to PW1 the couple could possibly be engaged in a mutual fight, and that both were drunk, giving rise to the defence of intoxication, and that since there

was no evidence that he used the machete on the deceased, although he had it, and so there was no clear cut cause and effect between the alleged assaults as seen by PW1 and the cause of death shown in the Post Mortem examination Report (Exh P2), malice aforethought could not be inferred. Arguing the 2n d and 3r d grounds together, the learned counsel briefly argued that, PW1 who was a crucial witness in the prosecution case, was also a suspect and so an incredible witness; and that the circumstantial evidence used to convict the appellant was not such that it led to the irresistible inference that it was the appellant who killed his wife. It was also his view that the failure to call Jumapne Salim left a gap yawning in the prosecution case; and the evidence of visual identification by PW1 was suspect, as there was no evidence on whether or not the distance between where PW1 was, and where the man and woman were embroiled in a fight was clear or not, despite the presence of a bright moonlight. Mr. Lawena thus prayed that the appeal be allowed. On the other hand, the respondent was represented by Ms. ELIAIMENYE NJIRO, learned State Attorney who resisted the appeal. Responding to the first ground of appeal learned counsel referred to the decision of this Court in ENOCK KIPELA v REPUBLIC Criminal Appeal

No. 150 of 1994 (unreported) on the question of which circumstances could be looked at in establishing proof of malice aforethought. From the list of 7 circumstances, Ms. Njiro borrowed three factors that could be applied to the present case. These were, first, the amount of force applied in the assaults; second the attacker's utterances said before, during, and after the occurrence; and third, the conduct of the attacker, before and after the killing. In the first slot, learned counsel referred to the evidence on record by PW1 that the appellant beat the deceased when she was lying helpless, on the ground. On the second slot she said, that there was evidence from PW1 that the appellant was abusive, and threatened to kill the deceased on that day and that time. With regard to the third slot, the learned counsel referred to the'appellant's threats to PW1 who tried to rescue the deceased, while he continued to trample on her; and that next morning he showed no remorse about what he did to his wife, but went about his business as usual. In response to the second and third grounds, Ms. Njiro, submitted that PW1 was a credible witness whose identification of the appellant was watertight; he saw the appellant beating his wife (the deceased's) both of whom he knew as they were his neighbours. He even tried to intervene in order to rescue the deceased, he was the one who first saw the deceased's lifeless body at the very place 5

where he witnessed the assault. That the appellant was the last person to be with the deceased was partly, also supported by PW4 and PW3 who contradicted the appellant's defence that he had left the deceased at her (PW3)'s place. When asked by the Court about the admission of the Post mortem Examination (Exh P2) which was tendered by the prosecuting counsel and contrary to section 291(3) of the Criminal Procedure Act (the CPA), the learned state counsel conceded that it was irregular, and the irregularity was incurable, and so Exh P2 should be expunged from the record. However, even without this exhibit, she argued, cause of death could still be established from the evidence of PW1, PW2 and PW3. On the question of mutual fight and intoxication, Ms. Njiro argued that there was no evidence that the deceased ever fought with the appellant, but the other way round. As to intoxication, she said that under section 14(1) of the Penal Code, for the defence to prevail, it must be established that the intoxication caused temporary insanity, such that the person did not know what he was doing, or that what he was doing was wrong. She then argued that the evidence on record points to the

contrary. The appellant demonstrated that he knew what he was doing and vividly remembered everything that took place the previous day. Intoxication as a defence was therefore not available to the appellant, she concluded. And with that, she prayed for the dismissal of the appeal. In rebuttal, Mr. Lawena submitted, first that PW2's testimony as to the marks he saw on visiting the scene, was an indication that there was a fight. Second, he said that nowhere did PW1 testify that if there was a beating of the deceased by the appellant, it was continuous. Lastly, he insisted that since the appellant had believed that his wife was too drunk to walk home and had left her at Salome's place, there was nothing unusual in the appellant going about his business the following morning. So, he reiterated his prayer to the Court to allow the appeal. In the course of hearing the appeal we engaged the learned counsel to share with us their views, on two matters, on points of procedure which featured in the present appeal. The first relates to the role of assessors. The record shows that although all the assessors were present throughout the trial, there is no record if some of them were allowed to put any questions, to some prosecution witnesses. For instance, while all the

assessors were recorded to have put questions to PW1 and DW1, only one is shown to have asked PW2, and only two are on record as having asked questions to PW3 and again only one asked PW4 questions. However, they all gave their opinions after summing up. Both counsel did not seem to have noticed this anomaly, but Mr. Lawena was of the opinion that since the assessors were present throughout the trial, the omission to record whether or not some of them put any question to some witnesses did not vitiate the trial. Trial by assessors is an important part in all the trials of capital offences in Tanzania. Although, in terms of section, 298(2) of the CPA their opinions are not binding on the trial judge, the value of their opinions very much depends on how informed they could be. To maximise the value of such opinions, the trial judge should not only, before trial begins, explain the duties of the assessors (See MAGAZI KILUNGA V R. (1981) TLR. 165, but in terms of section 177 of the Tanzania Evidence Act Cap. 6 R.E. 2002 also afford them the opportunity to put question to the witnesses so that they can decide on the credibility or otherwise of such witnesses. (See SAID MOHAMED MRIMI V R. Criminal Appeal No. 12 of 1991 (unreported). But in this case, although the record does not reflect whether

the trial judge explained to the assessors their duties at the beginning of the trial, and although the record shows that some of them were not given opportunity to put questions to some of the witnesses, we are not able to say that this led to a miscarriage of justice, because at the end of the trial they all gave sound opinions, including two who opined that the appellant did not intend to kill his wife. The second point is oh the admissibility of the Postmortem report (Exh P2). There are two aspects. First, it was tendered by the prosecution counsel. Second, before admission, the record does not reflect whether the accused was informed of his rights under section 291 (3) of the CPA. Mr. Lawena did not express any opinion on this point, but Ms Njiro promptly conceded that the first irregularity was an incurable irregularity, but the second one was curable under section 388 of the CPA especially because the defence did not object to its admissibility. For the first irregularity, she was prepared to let the post mortem report be expunged from the record. It is an elementary rule of evidence that an exhibit, as part of evidence, in a trial can only be tendered by a competent witness. And in terms of section 198 of the Criminal Procedure Act, section 127(1) of the

Evidence Act, and section 4(a) of the Oaths and Judicial Proceedings Act Cap. 34 R.E. 2002, a witness in any judicial proceeding must be sworn or affirmed. Since in the present case, the prosecution attorney who allegedly tendered the Postmortem examination report, and which the trial court admitted as exhibit P2 was neither a witness nor a person summoned to produce a document in terms of section 148 of the Evidence Act, he was not competent to tender that exhibit. So we agree with Ms Njiro, that Exh P2 improperly found its way in the record. But, it has also been held by this Court that, the provisions of section 291(3) of the CPA are mandatory and places on the trial court, the duty of informing an accused person of his right to call the doctor who prepared the postmortem report to testify, and that it is only him (the accused) who can decide whether or not to call him. No one else can wish away that right, and non compliance was fatal (See DAWIDO QUMUNGA V R. (1993) TLR 120. With respect, this irregularity, is not curable under section 388 of the CPA as Ms Njiro would wish us to believe. It may, perhaps, not be out of place, to remind the prosecution, that section 388 is not meant to be an escape route for all kinds of irregularities; because not every irregularity is curable under that provision (See NIYONZIMA V R. Criminal

Appeal No. 216 of 2008 (unreported), UGANDA V HADI JAMAL (1964) EA 294). For the above reasons, since the post mortem report (Exp P2) was not properly admitted, the same is hereby expunged from the record. With the above background, we now proceed to examine and determine the decisive issues in this appeal. We take it as settled law, that for the offence of murder to the proved; it must be established that; a person is dead; that it was the accused who killed him/her; and that he did so, with malice aforethought. The first issue that necessarily arises from the expulsion of Exh. P2 is whether TATU BAKARI is dead, and if so, what was the cause of death? Ms Njiro was of the view that even without the post mortem examination report it was established through PW1 that the deceased whom he knew as Tatu Bakari, was dead, and he observed that she had a broken neck. Mr. Lawena did not seem to challenge that finding in his rebuttal submission.

We agree with Ms Njiro. Although medical evidence is the commonly accepted way of establishing a cause of death; it is not the only method. Cause of death could also be proved by circumstantial evidence (See BOMBO TOMOLA V R. (1980) TLR 254. It was also held in JOSEPH HAMISI AND ANOTHER V R. Criminal Appeal No 13 of 1990 (unreported) that:- "Where cause of death is not medically established, that is not necessarily fatal to the charge. This is so if there is other cogent evidence direct and circumstantial from which to arrive at a conclusion as to the cause of death." In the present case, PW1 testified that the deceased's neck was broken, when the doctor came to examine her. PW2 also observed the same. So did PW3. If this is exposed in the light of the testimony of PW1 that he saw the deceased being beaten the previous night, it inevitably leads to the inference that the death must have been caused the broken neck that was caused by the beating that PW1 witnessed. So we are satisfied that there was a direct link between the beating that PW1 witnessed the previous night, and the death of the deceased, TATU BAKARI.

The second issue is whether it was the appellant who caused the death of the deceased? Mr. Lawena thinks that there was no sufficient evidence to establish so. He alluded to there being possibilities of other persons, including PW1 and/or JUMANNE SALIM (who was not called as witness,) as being responsible for the foul play. On her part, Ms Njiro opined that all evidence points to the appellant. We think there can be no rational dispute that PW1 was a credible witness. He saw, with the aid of a full moonlight, the appellant beating the deceased who was lying still on the ground, and that when he visited the scene of crime in the morning, he saw a bottle of kerosene beside the body. The appellant admits he had bought some kerosene from PW4 the previous night, and that the deceased was carrying it. PW4 confirmed this; and PW2, and PW3 also saw the bottle of kerosene beside the body. The bottle of kerosene found near the deceased is also evidence that the appellant was the last person to be seen with the deceased alive and corroborates PWl's evidence of visual identification of the appellant, whom he saw assaulting the victim the previous night.

Unfortunately Mr. Lawena did not come out clearly what he meant when be said that PWl's evidence was suspicious; and that the deceased could also possibly have met her death through Jumanne Salim, who did not testify. If he was referring to PWl's reaction of going back inside after witnessing the deceased being battered, as an act of acquiescence, that would have made him an accessory, he was certainly wrong, because the evidence also shows that before doing so, PW1 showed his disapproval and even tried to rescue the deceased before the assailant threatened him back. (See ZUBERI RASHID V R. (1957) EA 455. So, in law, PW1 was above suspicion. As for the possibility of Jumanne Salim intercepting the deceased, we find it too remote and fanciful. In his own defence, the appellant informed the trial court that he parted company with the said Jumanne, after leaving the deceased at PW3's place. And it is not as if the prosecution did not want to call him as a witness. According to the record, they failed to trace him after he had shifted from the village. So, in the circumstances, no adverse inference could be drawn against his not having testified. (See AZIZ ABDALLAH V R. (1991) TLR 71.

In the circumstances, we think there can be no doubt that, it was the appellant who was seen beating the deceased, and we do not hesitate to conclude that it was the beating that led to the death of the deceased. The next issue is whether, the killing was with malice aforethought? According to Mr. Lawena, there was no evidence of malice aforethought, and tried to show that death could have been a result of a mutual fight or intoxication. But the respondent disagreed. In her view, the appellant's force in the assault, his utterances, and conduct, all go to prove that he had malice aforethought when he killed the deceased. It is true that when death occurs as a result of a fight, an accused person would be found guilty of the lesser offence of manslaughter (See MOSES CHICHI V R. (1984) TLR 222. It is equally true that, in a criminal case, it is a good and sufficient defence if the accused succeeds in raising a reasonable doubt that at the time of the killing he was so intoxicated as to be incapable of forming an intention to kill or to cause grievous harm or of appreciating that he was using a dangerous weapon. (See HAMIS SAMSON @ MBANGWA V R., Criminal Appeal No. 77 of 1992 (unreported) and R V JUSTO ODINGA (1994) EA 29.

However, in the present case, none of the above defences was raised by the appellant in his defence at the trial. In fact, under section 219(1) of the CPA the defence of intoxication must be raised at the time of taking the plea or latest at the preliminary hearing (See EMMANUEL YUSUF @ NORIEGA V R. Criminal Appeal No. 152 of 2005 (unreported). Beside, since in his defence the appellant does not admit killing the deceased, he cannot now rely on the doctrine of mutual fight. So, we think these two defences were introduced at this stage as mere afterthoughts. Coming back to the issue before us, we cannot but agree with Ms Njiro that all the evidence on record point to the existence of malice aforethought. First, according to PW1, the appellant was attacking the deceased who was lying still on the ground. Second, while doing so he uttered abusive words and was heard telling his wife that he was going to kill her on that day, and that he physically threatened PW1 who had intended to go and rescue the deceased. (See ENOCK KIPELA V R. (supra). Beside, according to PW2, the deceased's body was thrown into a ditch, and some oil had been poured over it. All these pieces of evidence were not challenged by the defence. We therefore agree that, the

deceased, TATU BAKARI was killed by the appellant with malice aforethought. It is thus our considered view that the prosecution case was proved beyond reasonable doubt, and that this appeal has been lodged without substance. It is accordingly dismissed in its entirety. DATED at ARUSHA this 29th day of November, 2013. N.P. KIMARO JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL