ANANGISYE MASENDO NG'WANG'WA v REPUBLIC 1993 TLR 202 (CA)

 

ANANGISYE MASENDO NG'WANG'WA v REPUBLIC 1993 TLR 202 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

D CRIMINAL APPEAL NO. 5 OF 1993

13 August, 1993

E (From the conviction and sentence of the High Court of Tanzania at Mbeya,

Mwaikasu, J.)

Flynote

Evidence - Murder - Conviction based mainly on the evidence of a single witness -

Whether such conviction can F stand.

Evidence - Defence of Alibi - Alibi raising no reasonable doubt on the prosecution

case - Effect thereof.

-Headnote

G The two appellants were jointly charged with and convicted of murder. They

were each sentenced to death. They appealed against both conviction and sentence on

two grounds: Firstly that their conviction was wrongly based on the evidence of a

single witness, and secondly that their defences of alibi raised during the trial of the

case were rejected on insufficient grounds.

H Held: (i) Since the learned Trial Judge had warned himself of the danger of

relying on a single witness in a serious charge of murder and since he was satisfied

that he could safely act on that evidence to convict the appellants, the learned Judge

was entitled to so convict;

(ii) The appellants' defences of alibi did not raise any reasonable doubt on

the prosecution case and were properly rejected.

Case Information

I Appeals dismissed.

1993 TLR p203

No case referred to. A

J.E. Kayange, for the appellant.

M.T. Mbise, for the respondent.

[zJDz]Judgment

Kisanga, J.A., delivered the following considered judgment of the court: B

The two appellants were jointly charged with and convicted of murder contrary to s

196 of the Penal Code, and were each sentenced to death by the High Court

(Mwaikasu J) sitting here in Mbeya. They have now appealed against both conviction

and sentence. Before us the appellants were C represented by Mr Kayange, learned

Advocate, while Mr Mbise, learned State Attorney, appeared for the respondent

Republic.

The Republic alleged that on the day of the incident the deceased and his sister

(PW1) set out to go D to a funeral of a relative. On the way they met the appellants

who stopped them, blew a whistle which attracted three more others to the scene

after which the whole group set upon the deceased and beat him up using sticks and

clubs. After the assault the deceased was never seen alive again. His dead body was

recovered from a river about a week later bearing cuts and stab wounds. The E cause

of death was haemorrhage due to cut wounds. The appellants' defences were a flat

denial coupled with an alibi. The Trial Court rejected their defences and convicted

them as charged.

Mr Kayange filed three grounds of appeal which essentially raise the issue of

credibility of the F witnesses. He complained that the appellants' conviction was

wrongly based on the evidence of a single witness and that the appellants' defences of

alibi were rejected on insufficient grounds.

Admittedly the appellants' conviction was based mainly on the evidence of a single

witness. This was G Enelise Nomba (PW1), the deceased's sister who on the fateful

day had accompanied the deceased to the funeral of their relative. The learned Trial

Judge was fully aware of this aspect of the evidence, and specifically addressed

himself to that issue. At the end of the day, however, he found H that he could

safely act on that evidence to convict the appellants. This is what he said in his

judgments:

`While fully aware of the danger of relying on a single witness in a serious

charge like this, this Court is clearly of the view that bearing in mind the fact that this

incident took place in broad daylight while I

1993 TLR p204

KISANGA JA

A the PW1 was very close to the assailants, and had ample time to have a close,

careful and clear look at them all, and that in all respects the PW1 appeared to have

been telling the truth, it can confidently and safely walk on the rope of the evidence

of the PW1 to the sacred end of justice in this case. There is therefore, no hesitation

in placing B reliance in the evidence of the PW1, though the only eye witness in this

case.'

On the material before him, the learned Judge was entitled to come to that conclusion

and we can find no valid ground for complaint. Furthermore, in addition to the

factors mentioned by the learned C Judge, the witness knew the appellants well

before the day of the incident, indeed she said she is related to Masendo, the first

appellant. That would strengthen the Judge's finding that PW1 could not have

mistaken the identity of the appellants. Again when PW1 arrived at the place of the

funeral she D disclosed the incident and mentioned the appellants to be among the

assailants. Such promptness in reporting the incident and the consistency in

mentioning the appellants as the culprits would tend to lend credence to her story.

And finally she testified that there were five assailants altogether but of these she

knew only the two appellants. The view may be taken that if she were given to E

exaggeration she might claim that she had recognized the whole group.

There was evidence also that the news of this attack and the disappearance of the

deceased immediately thereafter spread widely in the locality. There was further

evidence that both appellants F were members of the local militia popularly known

as `Sungusungu'. The appellants in their defences, however, claimed that they were

not at all aware of this incident having happened in their locality. The Trial Judge

found it strange that the appellants who as members of `Sungusungu' were, G on

their own admission, concerned with matters of security in the locality, should not

have known of the incident until their arrest three days after the incident. The Judge

took the view that the appellants' denial of any knowledge about the incident was an

attempt to avoid any suspicion being cast upon them in conjunction with their

involvement in causing the death of the deceased. We H cannot say that such

inference was unjustified.

Not only that. There was evidence that only two to three weeks prior to the incident,

the appellant Fabian, in a group of other persons unknown, had mounted an ambush

attack on the deceased, for which the said appellant was prosecuted, convicted and

fined, and ordered to compensate the I deceased Shs 10,000/=

1993 TLR p205

KISANGA JA

which he had taken from him during the attack. So far the appellant had refunded

only Shs 2,000/= A and the remaining Shs 8,000/= was due to be paid on a Monday

but then this incident happened on the preceding Friday. The appellant Fabian,

therefore, nursed a grudge against the deceased and that would provide motive for the

subsequent and fatal attack on the deceased. It is clear, therefore B that the

appellants' convictions were not based on the evidence of the single witness (PW1)

alone. There was also other circumstantial evidence which tended to implicate the

appellants with the offence.

In their respective defences of alibi, the first appellant Anangisye had stated that on

the day of the incident he was at his home, and the second appellant Fabian claimed

that he had gone to the C District Court in Tukuyu to lodge an appeal in the said

case involving him and the deceased. The Trial Court duly considered the defences

and rejected them. The appellant Anangisye could very well have been at his home as

he claimed. But there was nothing to prevent him from going to commit D the

offence and then return home. The same may be said of the appellant Fabian. He

could have been to Tukuyu District Court to transact business there and then

returned to his locality in Kiwira in time for the incident which happened at about 3

pm. We do not think that the defences of alibi are E such as would raise any

reasonable doubt on the prosecution case, and like the Trial Judge we reject them.

The Trial Judge considered the fact that the deceased was found to have sustained cut

and stab wounds which caused his death, while the only evidence received was that

the appellants and the F rest of their group were seen attacking the deceased with

sticks and clubs; no sharp weapons were seen. He resolved the matter by saying that

since the deceased was assaulted as he was being held by the appellants, and since the

deceased was never seen again alive after such assault, then the appellants, must have

known how the deceased came to sustain these wounds. That is, the G appellants

must have been parties to the inflicting of those wounds on the deceased. For our part

we cannot say that such inference was erroneous.

Upon a careful study of the record we satisfied that the appellants' convictions were

amply justified. H We find no merit in the appeals which are accordingly dismissed

in their entirety.

1993 TLR p206

A