AT
TANGA
(CORAM: MROSO, J.A., KIMARO, J.A. And LUANDA
CRIMINAL
APPEAL NO. 49 OF 2007
2. THOMAS RUBEN …….………..... APPELLANTS
VERSUS
THE REPUBLIC ……………………………………..…
RESPONDENT
(Appeal
from the Decision of the High Court of Tanzania
at
Tanga)
(Mkwawa,
J.)
dated
the 5th day of April, 2006
in
Criminal Sessions Case No. 31
of 2003
------------
JUDGMENT
OF THE COURT
19 & 27 June
2008
MROSO,
J.A.:
Two
men, Mhina Mndolwa @ Mhina and Thomas Ruben, were prosecuted for the offence of
murder contrary to section 196 of the Penal Code in the High Court at
Tanga. They were convicted of
manslaughter after a full trial and each was sentenced to imprisonment for six
years. Both believed they were wrongly
found guilty of the offence with which they were convicted and appealed to this
Court by a memorandum of appeal which was lodged by their advocate, Mr.
Sangawe. However, just a day before the
hearing date of the appeal, Thomas Ruben, who was the second appellant, wrote a
letter to the Registrar of the Court withdrawing his appeal. The letter was written from prison,
apparently without consulting his advocate.
He did not cite the legal provision under which he sought to withdraw
his appeal, but we assume he did so under Rule 70 (1) of the Court of Appeal
Rules, 1979.
Mr. Tangoh,
learned State Attorney, who represented the Director of Public Prosecutions in
this appeal, did not raise objection and the Court had no reason to refuse his
application. His appeal to this Court
was marked withdrawn. Mr. Sangawe,
therefore, argued the appeal in respect of the first appellant only, Mhina
Mndolwa @ Mhina.
We think it
is helpful to start off with a brief narration of the facts on which the
appellant was convicted for manslaughter.
The
appellant was a security guard who was employed by a security firm known as
Group 4 Night Watch. During the night of
20th March, 2002 he was
guarding the premises of one Geofrey Simbo (PW2), an employee of the Tanga
Cement Company. While on duty, according
to a finding of the trial High Court, an irate mob attacked the deceased with
clubs, sticks and panga resulting in
his death on that same night. The
incident occurred in the area which the appellant was guarding. The appellant together with Thomas Ruben (who
withdrew his appeal) were prosecuted for the murder of the deceased, one Saidi
Ramadhani. It is obvious the two were
prosecuted on the basis of evidence which was given by one Philemon Charles
(PW3).
Philemon
Charles (PW3) worked for a missionary in the neighbourhood of the house which
was being guarded by the appellant. He
told the trial court that on the night in issue he was awokened by the sound of
a whistle which was blown as alarm. He
took his torch and went to the scene of the alarm. With light from his torch he saw three
people. Those were one Ibrahim, the
appellant and Thomas Ruben. According to
him, the appellant had pinned a man to the ground. Thomas Ruben had a panga. From 18 paces away he
could see that the man who was pinned down was bleeding from the head. The man was allowed to leave but then two
motor vehicles from the Group 4 Night Watch Company arrived at the scene and
took away the injured man. According to
PW3, he was the only person who answered the alarm – “I can say that I was the only person who answered the alarm”, he claimed,
and that the appellant and the two others were all watchmen, guarding different
houses. They told him the deceased was a
thief.
The appellant
had a different story. According to him,
while he was on duty at the house he was guarding, someone suddenly struck him
on his shoulder with a heavy object causing him to drop down. That person was with three or more other
people. The appellant raised alarm by
blowing a whistle and several people responded to the alarm. Although he had a baton with him, he did not
use it. However, the people who
responded to the alarm heavily assaulted the person who subsequently died.
The learned
trial judge said –
“…. In the light of the
available evidence, there is no dispute that the deceased on the fateful night
was descended upon by an irate mob who believed that he (the deceased) was a
nocturnal thief.”
The
learned judge having believed that the appellant was party to the killing
sought to invoke the doctrine of common intention and said –
“This doctrine is
applicable in the present case both from their presence and actions. There is no way one can say that they (the
appellant and Thomas Ruben who did not wish to pursue his appeal) can be
dissociated from the acts of the irate mob that had descended upon the deceased
and beat him as a result of which he died.”
But
the judge thought that there was no intention to kill the deceased (however,
since they had acted unlawfully), he convicted the appellant for manslaughter.
Mr. Sangawe argued three out of four
grounds of appeal.
In the first ground it is averred that
there was no direct evidence from the prosecution side showing that the
appellant attacked the deceased. In the
second ground, the complaint is that PW3 – Philemon Charles – was not a
credible witness, that he gave contradictory evidence and, therefore, that the
trial court should not have believed him.
The third ground of complaint is that since the trial court found as a
fact that the deceased was killed by an irate mob, the appellant was implicated
as a participant only because he was carrying out his watchman duties.
Mr. Sangawe contended that even going by
PW2’s evidence, nowhere did he say the appellant struck the deceased. He said he saw the appellant pinning down the
deceased. If the deceased was an
intending thief or even merely an intruder into the premises the appellant was
guarding and was accompanied by others, there was nothing unlawful about the
appellant restraining the deceased by pinning him down while awaiting
assistance from his employers.
But the appellant explained that it was
the deceased and at least three other people who assaulted him (the appellant)
and he raised alarm. Indeed, two motor
vehicles from his employer arrived at the scene in response to the alarm and
took away the deceased. We, therefore,
agree with the appellant that there was no direct, and we may add, not even
indirect, evidence that the appellant inflicted any harm on the deceased.
As mentioned earlier in this judgment,
the trial court found as a fact that the deceased died from an assault by what
it termed “an irate mob”. By invoking the doctrine of common intention,
the trial court associated the appellant with the act of the mob and found the
appellant guilty of manslaughter. But,
when is the doctrine of common intention invoked against an accused
person? Is mere presence at the scene of
crime enough to implicate an accused person under the doctrine?
If it is accepted that the appellant as
a security guard was entitled to arrest and keep under restraint an intruder
who is suspected to be a thief and all that PW3 told the trial court was that
he saw the appellant “pin down” the
deceased, then if an irate mob came to the scene and without instigation from
the appellant fatally assaulted the deceased, was the appellant responsible for
the resulting death? It should also be
kept in mind that there was no evidence that the mob assaulted the deceased at
the time when he was being restrained by the appellant.
The doctrine of common intention is
invoked where two or more people set out or are intent to commit an offence and
in the process of prosecuting the intent one or some of them commit the actus
reus
“23. When two or more persons form a common
intention to prosecute an unlawful purpose in conjunction with one another, and
in the prosecution of such purpose an offence is committed of such nature that
its commission was a probable consequence of the prosecution of such purpose
each of them is deemed to have committed the offence.
On
the facts of this case there is not an iota of evidence that the appellant and
the irate mob had formed a common intention to kill the deceased or even to
assault him. The court below erred,
therefore, in importing the doctrine of common intention into the case to
implicate the appellant.
PW3 said nothing about an irate mob
descending on the deceased. Yet, the
trial court found as a fact that there was such a mob and that it was the mob
who caused the death of the deceased.
The court must have obtained that evidence from the appellant. That implies that PW3 did not see everything
that occurred at the scene although he claimed to be the only person who
answered to the alarm. If he had been
the only person who responded to the alarm there would not have been an angry
mob who must also have answered to the alarm and who lynched the deceased. It means, obviously, that PW3 was not a
wholly truthful witness and his evidence was to be taken with great
caution. Unfortunately, the trial judge
took everything that PW3 said as gospel truth.
The learned judge said of PW3 –
“I must also point out that
I had found PW3 a credible witness and that he had left me with lasting
impression of sincerity and truthfulness”.
With
respect, had the learned judge considered the evidence as a whole, including
the evidence of the appellant, he would not have found PW3 as credible as he
thought him to be. Therefore, he would
not have relied on his evidence to find the appellant guilty of manslaughter.
At the end of the day in this appeal Mr.
Tangoh, learned State Attorney for the respondent, very candidly and properly
conceded to the appeal. We allow this
appeal by quashing the conviction of the appellant for manslaughter and set
aside the sentence of six years imprisonment.
The appellant is to be set free forthwith unless he is held for some
other lawful cause.
DATED at TANGA this 24th day
of June, 2008.
J. A.
MROSO
JUSTICE OF APPEAL
N. P.
KIMARO
JUSTICE OF APPEAL
B. M.
LUANDA
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(W. E.
LEMA)
DEPUTY REGISTRAR
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