Republic v Ntakimazi Chubwa and 2 Others (Criminal Sessions Case No 11 of 1933) [1999] TZHC 180 (11 May 1999)

l .... , ..-,.~ .. _ ... .,.. ......... , ... .. -·· .. MWITAj J;• ( 28 ) lN THE HIGH ·COURT OF TANZANIA. AT . Tl'.BORA . ORIGINAL JURISDICTION (TABORA. REGISTRY) . ORIMINAL SESSIONS CASE NOo 11 OF 1993 THE REPUBLIC VERSUS

1. · RrAKIMAZI CHUEWA
2. LU$HASI CHUBWA The aeoused 1 KAVINA NTAKIMAZI 1 is charged with murder ootar:, to section 196 of the Penal Code in that on 25.5.1991 at Nyamidaho · / .Village, Kasulu Distric~. the accused murdered IEVOCATUS"BALlH~- The Ona-- of proof is upon· the Prosecution to produce evidence· to establish bed reasonable .doubt that the aoused unlawta:1.iy ld.llect the deceased and· -that he did so with malice aforethought. Tlie Prosecution called two witnesses, namely, '1It Leon_ard · • Kainhanga and .\12, Birababuye Ndabunda. Pif2 is said to be the · 10 eye_ witness to the killing. She is the jtmior wife of the accused's 4 father. As her evidence, tended to implicate her husband, she wa:s informed of her rights under section 130 (1) of the Evidenoe Aet 1 19 she neveh.eless decide·d· to proceed to give her evideneee Her husband . NTAKIMAZI CHO'ffi~ was_ jointly charged with the accused and one Lushrud Chubwa.. However, Ntakimazi Chubwa and Lushasi Chbwa died before the .· . . . date fixed. for· their trial. The ·DPP entE?red Nolle Proseq_ui under section 91 (1) of the «Jriminal Procedure A.et, 1985' in respect of tlie .dead accused persons. dence prosecution of Kavina Ntakimazi alon PWI 1'oonard Kamhanga told the court that the ao•used, Kavina 'Y) Ntakim;azi 1 was wanted by the authorities in connection.with a·criminal . . . .

.j offence. On 25.5.1991 Pill and the deceased were sent by the CCM office to inform the accused that he was wanted at te 00M office. The deceased·and PWI belonged to the village militia. When the two arrived at the accused's home and nformed him that he was j wanted at the CCM office, the accused refused to come out of his house. Hence Pr/I left the deceased outside the accused's house and went -to the CCM effice to seek reinforcementso Accompanied by three militia, PIII went back to the accused• s house,. where he had left the decased. On reaching the·said house, they could not find. the accused and deceased~ On making enquiries they were informed 10 ..... 1 .. ':)Il , Mg_ .tM-1 .. --~~,,,. Kjwigiri 1 ... had. $8.n .. cc,uae.d. . .come.'oJJ..t3t(,. ~ .. ,." "' ., ..• ,,, .. ,. ___ ... the house carrying an axe and that the deceased followed him. The three militia men and PdI decided to look for accused and deceased at accused's father• s home. On the. way they met accused• s father; NtaJdmazi Chubwa, accompanied by his .junior wife,, Birababuye Ndabunda (W2). R-1! asked Ntrucinazi Chubw whether he hd seen the accused and· deceased. NVlld.m!l.zi Chubwa denied to have se·en the accused and deceased that day. l?WI aecompanie!i by the three militia men went to Ntakimazi Chubwats home but did not find the accused and deceased there. They retued and reported th_e situation to CCM Office. Later a, at abo•t 20.00 hours ·the CCI-f Chairman accompanied by militia including PWI mounted a search for the accused and deceased without success. It should be·pointed out at.this juncture that what the evidece of PWI establishes is the fact that the accused was wanted by the authorities in connection with some matter. The deceased and PTI- were sent to arrest him. PWI left the deceased outside accused• s house as he went back to CCM office for reinforcements. When M returned with reinforcements neither the accused nor the deceased ¢ould be found. Since that date the deceased was never seen alive. There is no. evidence to establish that the person who was refusing to ~ come out of the accused's house was the accused since NI did not see him.and has given evidence that he identified accused by voice. What PWI was told by Kajwigiri is hearsay evidence. The evidence· of_ P,12, Birababuye Ndablm.da, was to the effec·t that

t' on 25.5,91 in the morning F.12 was with her husband, who is the father of the·accusedt at their home when she saw the deceased and accused coming towards their home while quarrelling. The accused had an axe. She told the court that on reaching their home the accused cut the deceased at the back of the head. Then the accused's father took the axe from the accused and used it to hit the deceased. The deceased died . . instantlJ•. After_ the killi~, the accused and his father threatened N2 and chased her from the scene of the killing"' :E\12 reported the killing to the Divisional-Secretary and took the said Divisional. Secretary to the scene of the killing. The deceased•s body was fo,md 10 buried ·close to the scene of the killing ·with the legs protruding out ··" .......... ~ · of- the- grave.:-··· .... ··•·····,-·' . The motive for the killing was the deeeased•s attempt to arrest the accused. The Report on Post Mortem Examination, exhibit P.I indicate the cause of death as HEAD INJURY. In his submission, Mt-. Kayaga was of the view that PW2 did not report the killing at. the first opportunity she had to do so. Hence her evidence is not reliable. Mr. Kaya.ga also suggested that since P.12 told the court that her husband was the last to hit the deceased a:> with an o.xe, o.nd as the Post Mortem Examination report indicate that the deceased•s body had only one wound, then that wound must have been caused by the husband of PW2. It is on record that in her testimony PW2 told the court that she did not inform ~1I of the killing because she feared her husband. That fear was well founded when it is remembered that when PN2 tried to ory_out on witnessing the killing she was threatened with dea1:h by the accused and her husba.11do Hence when ?IT met her . in the (:Ompany of her husband and her husband, on being asked, denied to have been the accused and deceased, P.42 could not have had the courage to inform ·NI of the killing in the presence of her husband. P,12 was quite specific in her evidence as to what part of the doceased 1 s body was cut by the ~ccused·using_ an axe - it was at the back of the head. That tallies with the Post - Mcttem examination. report. 30

( 31 ) P:12 identification or the accused would appear to be wtertight. In WAZIRI A:MANI V• REPUBLIC (1980) TLR 250 the Court of Appeal outl;i.ned tests to be used in testing reliability of eye witness identification, the aim being to avoid mistaken identification. Such tests include: . ( i) The time the wi_tness had the accus&d under observation; (ii) The distance at which he observed him; (iii) The conditions in which such observation oeourredt for instance, whether it was day o_f night time, .whether there was good or poor lighting at the scene; 10 · (iv) Whether the witness knw o_r il?,-g. ___ se.n.. ... th- __ a_oc:use-.,--, ... .-, .. , .......... , .. before or not. In this ease P.;12 saw the accused and deceasing coming towards them while quarrelling; she saw the accused cut the deeeo.sed with an axe at their home, she saw the accused and her husband 'bhrea:ben her when she tried to cry out when she witnessed the killing; she saw the· accused and her husband chasing her from the scene of the killing. Renee she had ample time to observe the accused. Such observation 2'.'.> took place at close rae• It was during day time. The accused is the ~ son of the husband of Pd?s the accused was, therefore, well known to l:W2. Hence the question of mistaken identification does not arise. The Defence called only one witness, the accused. This witness relied on the defence of alibi. He told the court that he was in Kibondo District for the period 6.5.1991 to 5Q6ol991o Hence he could not have been at the scene of the killing on 25o5ol99ls a killing whioh took place in Kasu.lu District. However, the said witness did not comply with th0 provisons of sub-section ( 4) and (5) of section 194 of the Criminal Procedure act, 1985• Sub - Sectiom (.4) provides •. . "Where an accused person intends to rely upon an alibi in his defence he shall give to the court and the prosecution notice-of

( 32 ) his intention to rely on such defence before the hearing of the case"• Sub-ooSection (5) provides - Vtr,ihere an accused person does not give notice of his intention to rely on the de~~ce of alibi before the hearing of the case, he shall furnish the prosecution with tho particulars of the alibi at any time before the ease for the prosecution is elosedV The aim of these provisions is to give opportunity to the prosecution I to adduce evidence to rebut the defence of alibi. !n terms of sub-section 10 (6) of section 194 of the Criminal Procedure Act, 1985, where the accused raises the qefence of alibi without having first furnished the particulars of the alibi to the court or to the prosecution the court m/3.y in its · discretion accord no weight of any kind to the defence;. · The lady and gentlemen assessors do not appevrtto have accorded any wight to the defence of alibi. Such evidence is to be considered in the light of what appears to be watertight visual identifidation evidence given by F.12e Having seen Pi2 and tho accused giving evidence :in court I am satisfied that PW2 was telling the truth. Such was also the unanimous opinions of the lady and gentl6'111en assessors. In this case only the evidence given by ?,,12 implicates the accused with tho offence with which he is charged. Section 143 of the Evidence Act, 1967 provides. "Subject to the provisions of any other written law, no p..c"l.rticular numb8T oi witnesses shall in any case be required for thG proof of any factn. :tn has been held in a number of cases that there is no law requiring that more than one person should be required to prove any fact. Such ':ft, eases include. Masudi Amlima V Republic (1989) TLR 25 and YOH.-\NIS MSIGWA V. REPUBLIC (19~) T.L.R. 148. In Yohanis Msigwa V • Republic (1990) TLR 148_ at P. 15() Jlak:ame J.A.Said:

( 33 ) 11 There was admittedly one eye witness in this case. Her evidence is not however detracted from because of that fact alone, As provided under section 143 of the evidence Act, of course no particular number of witnesses is required for the proof of any fact. What were important here were PW'I's ·opportunity to see what she claimed to have seen, and her credibility''• As I have aJ.ready said I saw Pil2 give evidence in court and I was impressed. I have no hestation in ba3irtg conviction on her evidence 10 alone. I, therefore, find that Levoca.tus Balihinyuza w~.s killed by the accused Kavina Ntaldmazi on· 25.5091 at Nyamidaho Village, Kasulu District. thought. The next question is whether ha did so with malice afore- In terms of section 200 of the Penal Code malice aforethought shall be deemed to be established by evidence proving that the accused intended to cause the death of, 0r to do grievous harm to, the deceased• Jn R.V. TUBERE S/0 OCHUEN (1945) 12 E .. A.CoAo 63 it was held that in arriving at a conclusion as to whether, me.lice aforethought had been established the court must consider the weapon used, the manner in which it is used and the part of the bocJ.:y injuredo In TUNUTU s/o MNYASULE Vo RffiPUBLIC (1980) TLR 204 the Court of Appeal held that malice aforethought can be proved by the fact that the accused stabbed the victim several times with a knifeo In Christopher Kima.mbo AND iillOl'HJ:::R J" o Republic (1982) TLR ?!)? the Court of Appeal held that brutal neture of. the killing showed that appellant had malice aforethoughto In the instant case the accused killed the deceased by cutting him on the head. When a person cuts another on the head using an axe he knows the result of that action .. It is death or grievous harm. Every person must be taken to intend the nature.1 consequences of his actions. I am satisfied that th.r:: o.ccused intended to kill the deceased or cause him grievous harm~ The lady ~nd gentlemen assessors are of similar opiniono The ccused is acordingly convicted of murder.

i ' D.M.MWITA JUDGffi . •. Sentenee: There is only one _sentence for the offence of murder. It is death. The accused will suffer death by hanging. D.M.MWITA. JtIDGE Delivered in open court in the presence of Mrs •. Sehel, State Attorney and Mr. K.:lyaga, defence Counsel and in presence of accused this 11/5/1999. JUDGE 10