DIRECTOR OF PUBLIC PROSECUTIONS v NYANGETA SOMBA AND TWELVE OTHERS 1993 TLR 69 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v NYANGETA SOMBA AND TWELVE OTHERS 1993 TLR 69 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA and Omar JJA, and Mapigano Ag JA

CRIMINAL APPEAL NO. 53 OF 1990 B

14 July, 1992

(From the decision of the High Court of Tanzania at Musoma, Mwalusanya, J.) C

Flynote

Criminal Law - Defence of alibi - Requirement of notice to Court and the prosecution

- Form of such notice. D

Criminal Law - Identification of accused - Huge crowd, commotion of the moment

and charged atmosphere - Reliability of identity evidence.

-Headnote

The Director of Public Prosecutions appealed to the Court of Appeal of Tanzania

against the decision of the High Court of Tanzania at Musoma acquitting thirteen

persons who were charged with murder. E The learned Trial Judge's basis for

acquittal was insufficiency of evidence of identification of the deceased's assailants

from a huge crowd characterized by commotion of the moment and a charged

atmosphere. At the trial, all the respondents raised the defence of alibi which the

Trial Judge accepted. At the preliminary hearing all the respondents told the High

Court that they were elsewhere F at the time when the murder of the deceased was

committed. Six respondents gave particulars of their alibi the rest did not. The

appellant argued that the Trial Judge was wrong to accept the defence of alibi because

no notice of intention to rely on alibi was given to the Court and the prosecution in

terms of s 194(4) of the Criminal Procedure Act, 1985. G

Held: (i) There was in this case sufficient notice of intention to raise the defence

of alibi within the meaning of section 194(4) of the Criminal Procedure Act, 1985, in

respect of the 6th, 7th, 8th, 10th, 12th and 13th respondents;

(ii) Although no form of the notice has been prescribed the notice must

furnish sufficient H particulars of the alibi and the notice must be given before the

main hearing;

(iii) In respect of the rest of the respondents the Trial Judge had discretion

to apply the provisions of subsection (6) of s 194 of the Criminal Procedure Act, 1985,

and give their alibis some weight;

(iv) Given the uncertainty about whether the deceased was already dead

when he was set afire I and the other materials in the record, only

1993 TLR p70

A those people who assaulted and burned the deceased or those who

facilitated or encouraged the assault and the burning could be convicted of murder;

(v) Given the huge crowd, the commotion of the moment and the charged

atmosphere, reliability of the identity evidence of the three witnesses was doubtful.

Case Information

B Appeal dismissed.

No case referred to.

Malamsha, for the appellant.

Rugarabamu, for the respondents.

[zJDz]Judgment

C Mapigano, Ag. J.A., delivered the following considered judgment of the court:

These thirteen respondents were jointly charged with the murder of one Karabani

Mbarae contrary to D s 196 of the Penal Code. The case came for trial in the High

Court at Musoma before Mwalusanya J. In a judgment delivered on 6 October 1989,

the learned Judge acquitted all of them. The Director of Public Prosecutions is

appealing against that judgment and on his behalf Mr Malamsha, learned E State

Attorney, has filed four grounds of appeal. In the course of his address before us,

however, Mr Malamsha dropped the second and the fourth grounds.

None of the respondents could be traced for normal service and so a substituted

service was F ordered and effected by the publications of the notice in the Uhuru

newspaper. In spite of that exercise none of them appeared when the appeal was

called on for hearing. But Mr Rugarabamu, learned Advocate, resisted the appeal on

their behalf on a dock brief.

G Karabani Mbarae was killed on 2 December 1987 at Nyegina in Musoma District

in very cruel and dreadful circumstances, and he is referred to herein below as `the

deceased'. Related to his killing was the death of another man called Maudi Magesa in

the same village a few days back. The divination of a fortune-teller whom some of the

villagers consulted had it that Maudi Magesa was not H actually dead but had been

bewitched and transformed into a zombi by the deceased and PW5 Masatu Esagara.

This divination was made public at a large gathering in the morning of 2 December

1987, and in great passion the gathering resolved that Karabani and PW5 be

apprehended and tried I by the Baraza la Jadi which we understand to be a

Sungusungu organ.

1993 TLR p71

MAPIGANO Ag JA

PW5 got wind of what had transpired at the meeting and he slipped away from the

village and went A to the police station at Musoma to report the incident. In a

smouldering rage the multitude went to and stormed a certain building referred to in

the evidence as `the milk house' where the deceased was attending another meeting.

The crowd pounced upon the deceased and took him to the home of B PW5. He was

thoroughly belaboured on the way and he was in a very hopeless condition when he

arrived at the home of PW5. Indeed, it is quite possible that he was then dying.

When the crowd discovered that PW5 had vanished they decided to and actually did

set the deceased afire, and it is quite possible that the deceased was then already dead.

When PW5 came C back in the company of policemen the deceased had been burnt

beyond recognition and but for the intervention of the police PW5 would probably

have met the same fate.

There was no dispute about the fact as above stated. The identity of the deceased's

assailants was D the main point in dispute and the defence which was common to all

the respondents was alibi. In the third ground of appeal the Trial Judge is faulted for

`upholding' that defence. Mr Malamsha contended that the judge was wrong to give

weight to the alibis, because, he said, none of the respondents had given any notice in

terms of s 194(4) of the Criminal Procedure Act 1985. Mr E Rugarabamu thought

otherwise.

On 30 August 1989, at the preliminary hearing all the respondents told the High

Court (Munyera J) that they were elsewhere at the time when the murder of the

deceased was committed. But none F except the 6th, 7th, 8th, 10th, 12th and 13th

respondents gave any particulars of the alibi.

It is provided by ss (4) of s 194 that:

`Where an accused person intends to rely upon an alibi in his defence, he

shall give to the Court and the prosecution notice of his intention to rely on such

defence before the hearing of the case.' G

No form of the notice envisaged by this provision has been prescribed, but the view

we take is that the notice must furnish sufficient particulars of the alibi so as to enable

the prosecution to verify the H truth of those particulars and if necessary assemble

evidence in rebuttal, and that the notice should be given before the main hearing. In

our opinion there was in this case sufficient notice of intention to raise the defence of

alibi within the meaning of the above subsection in respect of the 6th, 7th, 8th, I

10th, 12th and 13th respondents.

1993 TLR p72

MAPIGANO Ag JA

A Subsection (6) of that section provides that:

If the accused raises a defence of alibi without having furnished the particulars

of the alibi to the Court or to the prosecution pursuant to this section, the Court may

in its discretion accord no weight of any kind to the defence. In respect of the rest of

the respondents the Trial Judge had discretion to apply this subsection and give their

alibis B some weight as he did.

There was a body of evidence which established that there existed a common

intention among a number of people in the crowd to assault and kill the deceased.

The Trial Judge directed himself `that C only those accused persons who had been

identified as having taken part in the burning of the body of the deceased, and those

who helped to collect grass and firewood for burning the deceased, could be

convicted of murder'. Given the uncertainty about whether the deceased was already

dead when he was set afire and the other materials in the record, the view we

entertain is that only those D people who assaulted and burned the deceased or

those who facilitated or encouraged the assault and the burning could be convicted of

murder.

E The allegation was that the respondents shared the common intention to kill the

deceased. The central thrust of that allegation stemmed from three relatives of PW5

the other sorcerer suspect, ie PW4 Kisika the son of PW5, PW7 Masasi a member of

PW5's household, and PW8 Sabe, his cousin.

F PW4 gave an account of how a crowd descended on the home of PW5 twice on

that fateful day. The crowd first came at around 10 am searching for PW5. The crowd

left when they were told that PW5 had travelled to Musoma. An hour or so later the

crowd returned to that place with the G deceased. Heavy blows were rained on the

deceased and then the burning followed. This witness implicated all the respondents

in the killing except the 6th, 8th and 11th respondents.

PW8 saw seven respondents among the multitude, ie the 1st, 2nd, 3rd, 4th, 7th, 10th

and 13th. He H observed that the deceased had been beaten up. He left the place and

before long he heard a voice announcing with content `that the witch is dead, he

should be burned down'. He next saw the first respondent collecting firewood.

As for PW7, he stated that he saw the 1st, 2nd and 8th in the mob that brought the

deceased to the home of PW5. But he did not say what they did to the deceased.

Under cross-examination the I following admission was elicited from him:

1993 TLR p73

`I ran away when the group approached Masatu's home. The family of Masatu

went to the home of Malima for safety. A We all ran away from the charging group

including PW4 Kisika. In truth I had not identified any of the offenders at the scene. I

was far away hiding. Masatu's family all hid and no one eye-witnessed the killing.'

In acquitting the respondents the Judge expressed doubt about the reliability of the

identity evidence B of the three witnesses, given the huge crowd, the commotion of

the moment and the charged atmosphere. He also expressed doubt about the

credibility of those witnesses. He was of the opinion that their evidence was riddled

with contradictions and falsehoods. The appellant's first ground is that C the learned

Judge `grossly erred in law and in fact for failing to evaluate and assess the evidence

against the respondents'. With respect we disagree.

As correctly pointed out by Mr Rugarabamu, Mr Malamsha has not demonstrated to

this Court how the Trial Judge failed to assess the evidence. We think that in the light

of the disclosure of PW7 D quoted above, any prudent Court would have felt doubt

that any of the three principal witnesses had actually witnessed the event. The

evidence of PW7 showed clearly that all of them had fled from the home of PW5 in

terror and gone into hiding. E

We are of the opinion, therefore, that the judgment appealed from was right, and

must be affirmed. We accordingly dismiss the appeal.

1993 TLR p73

G