EVA SALINGO, MT 6222421 PTE PETER MAGOTI AND MT 62218 PASCAL MGAWE v REPUBLIC 1995 TLR 220 (CA)

EVA SALINGO, MT 6222421 PTE PETER MAGOTI AND MT 62218 PASCAL MGAWE v REPUBLIC 1995 TLR 220 (CA)

Court Court of Appeal - Mbeya

Judge Ramadhani JJA, Mfalila JJA and Lubuva JJA E

Criminal Appeal No 32 of 1995

August 23, 1995

(From the conviction and sentence of the High Court of Tanzania at Iringa, Mchome,

J) F

Flynote

Evidence - Identification - Identified persons not strangers to the identifying person -

circumstances favourable for unmistaken identity. G

Evidence - Identification - Identification parade - Appellants not identified because

they were not in the parade - Whether failure of identification.

-Headnote

H The second appellant challenged his conviction for murder by the High Court on

the ground that he was not identified as one of the killers. He charged that the

witness who identified him was not a truthful witness and that she had failed to

identify him during an identification parade in which he was present. On appeal:

Held:

(i) There was plausible evidence to show that the appellants were not I

1995 TLR p221

LUBUVA JA

strangers to the witness and that the circumstances at the time were A

favourable for unmistaken identity;

(ii) The witness did not identify the appellants at the identification parade

for the obvious reason that the appellants were not there and this cannot be taken as a

failure on the part of the witness to identify them. B

Case Infomation

Appeal dismissed.

No case referred to.

Ndibalema for the appellant.

Mbise for the respondent. C

[zJDz]Judgment

Lubuva JA delivered the following considered judgment of the Court:

The second appellant, MT 62421 Pte Peter Magoti and the third appellant, MT 62218

Pte Paschal s/o Mgawe were charged in the first count with the murder of D the

deceased, Said s/o Mlonganile. In the second count, the first appellant, Eva d/o Salingo

was charged as an accessory after the fact. Both were convicted as charged. The

second and third appellants were sentenced by the High Court sitting at Iringa

(Mchome, J) to death. The first appellant was sentenced to five years imprisonment.

E

Initially each of the above-named appellants had lodged an appeal against the

conviction and sentence. However, we were notified at the hearing of the appeal that

the third appellant died in prison on 1 April 1994. So the appeal is proceeded with

only in so far as the first and second appellants are concerned. In this appeal, we shall

refer to the third appellant, the deceased, as the third accused. F

The tragic death of the deceased took place at Makambako on 15 February 1990. The

first appellant, Eva d/o Salino owned a pombe shop where Ruti d/o Filangali (PW3)

was employed in selling pombe. It would appear that the first appellant had a love

relationship with both the deceased and the second appellant. It was the G

prosecution case that on 15 February 1990 at about 8.00 pm the second appellant

accompanied by the third accused came to the pombe shop for a drink. PW3 was then

on duty at the pombe shop. At about 10.00 pm the deceased also came to the pombe

shop where he sat at the counter with the first appellant. As it was closing time for

the bar, the first and second appellants together with the deceased left the pombe

shop and went towards the house of the first appellant. When PW3 H was taking

the pressure lamp from the pombe shop to the house of the first appellant about I

1995 TLR p222

LUBUVA JA

A 30 paces from the pombe shop, she saw the second appellant and the third

accused in hot exchange of words over the first appellant. Then the second appellant

and the third accused held the deceased by the collar of his shirt outside the pombe

shop. From the first appellant's house door, PW3 saw the second appellant and the

third accused still beating the deceased with their boots. Then they dragged the

deceased to a place she (PW3) did not know. B

PW3 did not see the second appellant, the third accused and the first appellant until

the next morning at 5.00 am when the first appellant returned to her house and

shortly left for Njombe. It was in the morning following the night of the incident C

when the first appellant had left for Njombe that PW3 learnt of the deceased's death.

She went to see the dead body lying by the roadside near the CCM office. PW3

identified the dead body as that of the deceased. Following the death of the deceased,

a number of suspected people were arrested including Ruti d/o Filangali (PW3), Sauda

Nyelenge (PW4), Ester Sanga (PW5) and the first D appellant. While in police lockup,

the first appellant threatened PW3 not to disclose to anybody about the fight that

took place at the pombe shop where the deceased was beaten. If she (PW3) revealed,

the first appellant threatened, PW3 E would be bewitched by the first appellant's

mother. PW4 and PW5 who also heard this threat notified the police (PW6).

Investigations were carried out and as a result, on 6 March 1990, the second appellant

and the third accused were arrested and charged together with the first appellant.

F In her defence at the trial, the first appellant, Eva d/o Salingo virtually denied

everything. She did not know the second appellant and the third accused. On the

fateful night, she did not see the second appellant or the deceased at the pombe shop.

She did not witness any fight taking place at her pombe shop that night. Though she

knew the deceased she did not have love relationship with him. She G further stated

that after she had returned the lamps from the pombe shop she went to bed. The

following morning she left for Njombe to attend to a civil case. She denied

threatening PW3.

H The second appellant raised the defence of an alibi. He claimed that he did not

visit the pombe shop but remained at the barracks on the material night. He also

maintained that he was not identified at the identification parade in which he took

part. This, he insisted, showed that he was not in any way involved in the killing of

the deceased.

The learned Trial Judge after a careful analysis of the evidence came to the conclusion

that PW3, PW4 and PW5 were honest and I

1995 TLR p223

LUBUVA JA

truthful witnesses. The judge further held that both the appellants had told the court

A a pack of lies. Consequently, the second appellant was found guilty of murder and

was sentenced to death. The first appellant was convicted as an accessory after the

fact for which she was sentenced to five years' imprisonment.

Mr Ndibalema, learned counsel represented the appellants in this appeal. He B raised

two points, namely that the learned Trial Judge erred in convicting the second

appellant of murder because there was a fight. And that as regards the first appellant,

the sentence of five years imprisonment was excessive.

From the outset, we wish to make it clear that it is our view that the main issue in C

this appeal is the identification of the appellants. Arguing the appeal on behalf of the

second appellant, Mr Ndibalema's brief submission was that as Stephen Kihanga

(PW1), the investigating officer mentioned in his evidence of a fight and quarrel

taking place at Msafiri pombe shop, it was possible that as a result of such D a

quarrel and fight, the appellant was forced to retaliate against the deceased. In that

case, Mr Ndibalema charged, the second appellant should have been convicted of

manslaughter and not murder. In connection with the identification of E the second

appellant, it is relevant to mention at this juncture that at the hearing of this appeal,

in a rather unusual and dramatic manner, the second appellant who was present in

court sought to conduct his appeal on his own. This was after Mr Ndibalema, learned

counsel had finished his submission for both the appellants. We allowed him to

address the court. The essence of his address to us was that F he was not involved in

the murder of the deceased. This, he said, was so because he was not identified at the

identification parade held at the barracks in which he took part. He discredited PW3

as an unreliable witness. He handed over to the court copies of the police statements

by some of the witnesses for the prosecution to show how inconsistent they had been

in identifying him (second appellant). G

On the issue of identification, the crucial evidence is that of Ruti Filangali (PW3).

From the record it is evident that on the fateful night, she was on duty at Msefiri

pombe shop from 8.00 pm to 10.00 pm, the closing hour. She was the employee H of

the first appellant. PW3 in her evidence firmly stated to have seen the second

appellant and the third accused at the pombe shop at the material time. That her

employer, the first appellant, was also present there seated at the counter with the

deceased. It is also in her evidence that both the appellants and the deceased were not

new to her. She I

1995 TLR p224

LUBUVA JA

A had seen them on a number of occasions before at the pombe shop in company

with the first appellant. There is therefore no reason why she should have mistaken

the identity of these people that day. With the aid of a pressure lamp ('karabai')

which sufficiently provided light at the pombe shop, she was able to see the

appellants and the deceased inside the pombe shop. Outside the B pombe shop, she

again saw the second appellant and the third accused beating the deceased. The first

appellant was also present. From the threshold of the door of the first appellant, PW3

saw the second appellant in the company of the third accused still beating and kicking

the deceased who had fallen down a few paces away from the pombe shop. From

there, PW3 also saw the deceased being C dragged by the roadside to a place she did

not know. The following morning the dead body of the deceased was found lying by

the roadside naked. The learned Trial Judge was convinced that PW3 identified the

second appellant sufficiently. Addressing himself on this issue he stated: D

'The issue is whether PW3 identified those who were fighting. She says she

knew both second and third accused persons and the deceased well before. They were

the first accused's lovers. They came into the pombe early and drunk. At closing time

their quarrel over E first accused started inside ... I am therefore convinced that

PW3 identified those who beat up the deceased clearly. I find PW3 to be an honest

and truthful girl ...'

And PW3 in her evidence inter alia had stated: F

'... I saw second and third accused beating the deceased with their boots. We

went to Eva's house and stood at the door. We watched their beating the deceased.

They said we would G never leave you this woman. We feared to come close. We

watched through the door. They continued beating him. We were about 30 paces

from the pombe shop at Eva's house. They dragged the deceased to I (sic) do not know

where and Eva returned at 5.00 am.'

H On the basis of this evidence, the learned Trial Judge came to the conclusion that

the second appellant and the third accused were the ones who beat the deceased and

strangled him to death. This is supported by the post mortem examination report Exh

PIV which indicates the cause of death as asphyxiation following strangulation. The

acceptance of the evidence of PW3 was a question of fact which the learned Trial

Judge was entitled to as correctly submitted by Mr I

1995 TLR p225

LUBUVA JA

Mbise, learned senior State attorney. It goes without saying that the judge was in a A

better position to see the demeanour and assess the credibility of the witness (PW3)

than an appellate court. We see no reason for faulting the Trial Judge on this point.

The credibility of PW3 is strengthened even further by PW4 and PW5. In their

evidence they support PW3 in her evidence that while in police lock-up the B first

appellant threatened her (PW3) not to reveal to anybody about the fight that had

taken place outside the pombe shop near the first appellant's house. The threat was

that if she (PW3) did so, she (PW3) would be bewitched by the first appellant's

mother. The threat was heard by PW4 and PW5 who were also in C police lock-up.

It was PW4 and PW5 who informed the police about the threat and as a result, the

investigation against the first appellant was intensified. This again, in our view,

reinforces the fact that PW3 was a witness of truth as found by the Trial Judge.

With the evidence of PW3 accepted by the Trial Judge as credible, Mr D

Ndibalema's claim that the death was a result of a fight between the deceased and the

second appellant together with the third accused has no leg to stand on. It is clear

from the evidence of PW3 that the deceased did not initiate the fight apart from

pleading that the first appellant was, for a long time, his wife. Instead, the E

evidence showed that all along, it was the second appellant and the third accused who

were beating and kicking the deceased. The deceased was dragged away to the place

where the next morning he was found dead. We agree with Mr Mbise's submission

that this ground has no merit. F

Next we intend to deal with the identification parade. As regards the complaint raised

by Mr Ndibalema, the learned advocate and the second appellant himself in his

address in court on identification, we hardly need to say much on it. This is because,

as observed, once the evidence of PW3 is accepted as truthful as found G by the trial

court, there is no room for doubting the identification of the second and first

appellants. We have already pointed out that there was plausible evidence to show

that the appellants were not strangers to PW3 and that the circumstances at the time

were favourable for unmistaken identity. We agree with Mr Mbise that the

identification of the appellant was watertight. H

Then there is the issue raised by the second appellant that PW3 was unreliable since

she could not identify him at an identification parade held at the barracks in

Makambako in which he participated. On this again, we must say at once that the

record is loud and clear. The evidence of PW3 does not support this claim. In her I

1995 TLR p226

LUBUVA JA

A evidence, she clearly states that on the day the identification parade was held at

Idofi barracks, the second appellant and the third accused were not among those who

took part in the parade. So she did not identify the second appellant and third accused

in that parade for the obvious reason that they were not there. To our minds, this

cannot be taken as a failure on the part of PW3 to identify the second B appellant, as

he claimed at the hearing of the appeal. Even then, from the record, at the next

earliest opportunity when PW3 saw the second appellant and the third accused at

Msafiri pombe shop, without any delay, she alerted the police (PW6) who arrested

them. This again, in our considered view, is a clear testimony C of PW3's firm and

unmistaken identification of the second appellant and the third accused as the

assailants of the deceased. The Trial Judge was entitled in his finding that PW3's

identification of the second appellant was conclusive. The complaint on the

identification of the appellants is to our minds groundless. D

As for the first appellant, like the case of the second appellant, the evidence of PW3

fully supported her conviction. We have sufficiently demonstrated that it being a

question of credibility, she was properly convicted. Mr Ndibalema's E complaint

against the sentence of five years' imprisonment as being excessive because she had

stayed in remand prison for four years is, with respect, untenable. In any case, this

was an aspect which was duly taken into account by the Trial Judge who rightly

observed that the offence involved was a very serious one. She was centrally involved

in enticing the deceased and the second appellant F into the rivalry that resulted to

the tragic death of the deceased for which death penalty has been imposed against the

second appellant. We think that the sentence of five years' imprisonment is by any

stretch of imagination not excessive in the circumstances of the case. We see no

reason to interfere with the sentence. G

For these reasons we dismiss both appeals in their entirety. H

1995 TLR p227

A