WILFRED LUKAGO v REPUBLIC 1994 TLR 189 (CA)

 

WILFRED LUKAGO v REPUBLIC 1994 TLR 189 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 75 OF 1993 B

1 August, 1994

(From the conviction of the High Court of Tanzania at Tabora, Korosso, J) C

Flynote

Criminal Law - Murder - Contradictions in evidence regarding circumstances in

which deceased was killed - Whether may be relied on for conviction of murder.

-Headnote

The appellant was the husband of one Elizabeth Lukago (PW1). After years of a D

happy marriage blessed with six children, some misunderstandings developed which

led to the appellant's wife having a boyfriend, and the appellant and his wife living

separately. On the material day the appellant went to the house of PW1 where he

met his wife and her boyfriend, but later left. PW1 and her boyfriend also E went

out for a visit, during their return they were offered a lift by a motor vehicle.

Thereafter the evidence was not clear as to what exactly happened but all in all PW1's

boyfriend was subsequently found killed. The appellant was charged and convicted of

murder. The conviction was largely based on the evidence of PW1 which was,

however, contradictory in some respects. F

Held: The prosecution evidence had some serious contradictions and, in the

circumstances of this case, it was impossible to assess the credibility of the appellant's

wife whose evidence was heavily relied on in reaching conviction; all these raise a

grave doubt as to the appellant's guilt. G

Case Information

Appeal allowed.

No cases referred to.

Nasimire, counsel for appellant.

Kaduri, counsel for the respondent. H

[zJDz]Judgment

Kisanga, JA, delivered the considered judgment of the Court:

When this appeal came up for hearing we heard counsel for both sides after which we

allowed it, quashing the conviction for murder and setting aside the sentence with an

order for the appellant's I

1994 TLR p190

KISANGA JA

A immediate release. We reserved our reasons for judgment, which we now proceed

to give.

The appellant is the husband of one Elizabeth Lukago (PW1). For quite some time the

two lived happily as husband and wife, and they had six children between them.

However, close to the happening of these events they fell into family

misunderstandings which caused PW1 to develop the relationship of boyfriend B

with the deceased. At the material time PW1 and the appellant, although husband

and wife, were living separately.

In the morning of the material day the appellant had gone to the house where PW1

C lived and found PW1 and the deceased, her boyfriend there. He went away after

some time but made no comment about his finding the deceased there. After some

time PW1 and the deceased went out together. The deceased had asked PW1 to escort

him to visit the family of one Mwakibete, and from there they visited D Tabora

Boys' and Girls' Secondary Schools. After leaving the schools at about 3.00 pm, and as

they were walking along, a motor vehicle came from the opposite direction and on

reaching them the occupants thereof offered them a lift.

Thereafter the evidence is so unsatisfactory that Mr Nasimire, learned advocate E for

the appellant, submitted in effect that no court properly directing itself could have

grounded the appellant's conviction on it. Mr Kaduri, learned Senior State Attorney

appearing for the respondent Republic, concurred and did not wish to support the

conviction.

F The rest of the prosecution case depended entirely on the evidence of PW1. She

stated that upon the occupants of the motor vehicle offering them a lift, the deceased

accepted provided that the motor vehicle went in their direction. Whereupon the

driver reversed and headed in their direction. One of the G passengers of the motor

vehicle was the appellant and another one was Mrs Mwakibete to whose house PW1

and the deceased had been that morning only to find her out at work. PW1 did not

know Mrs Mwakibete before, but she was identified to her by Mrs Mwakibete's son

(PW2) who had joined PW1 and the H deceased as they were walking along, and

the three were together when they met the motor vehicle. PW1 and the deceased got

into the motor vehicle leaving Mwakibete's son on the ground. Then as the motor

vehicle drove off fast, PW1 and the deceased were blindfolded by some of the

passengers in the motor vehicle, using cloth material for the purpose. At some point

further on the motor vehicle stopped. PW1 and the deceased were forced out of the

motor vehicle after which they I

1994 TLR p191

KISANGA JA

were attacked in the most brutal manner. PW1 lost consciousness for over two A

months as a result of the severe attacks. The dead body of the deceased was found

lying on the ground under a tree. It had marks of violence on the head, and in the

doctor's opinion death was due to head injury and intracranial haemorrhage. In his

defence, the appellant flatly denied the charge of murder. B

The prosecution evidence was unsatisfactory in a number of ways. First, it involved

serious contradictions. PW1 is contradicted when she said that Mrs Mwakibete was in

the motor vehicle which kidnapped her and the deceased, and that it is Mrs

Mwakibete's son who identified his mother to her (PW1). For, C Mwakibete's son

(PW2) denied being in the company of PW1 and the deceased at the time of meeting

the alleged motor vehicle. Mrs Mwakibete who gave evidence for the defence (DW2)

equally denied being a passenger in the said motor vehicle or otherwise being at the

scene as claimed by PW1. The trial judge in convicting the appellant, relied heavily

on the evidence of PW1 whom he found to be a truthful witness. However he did not

attempt to resolve these contradictions in the D evidence. He did not say why Mrs

Mwakibete and her son should deliberately testify unfavourably against the deceased

who was shown to have had some friendly connections with the Mwakibete family,

as against the appellant who was a total stranger to that family. E

Secondly, PW1 admitted making two statements to the police about the incident. She

further admitted that those statements might be different because of the brain injury

that she sustained which, as already noted, rendered her unconscious for over two

months. Now, a number of questions arise from this. First, which of the F two

statements was the basis of her evidence in court, or was that evidence based on both

statements? The learned judge never addressed himself to that question and on the

evidence we can find no clue as to what the answer is. In those circumstances it

becomes impossible to assess her credibility, that is, to G determine the extent to

which her evidence was or was not affected by the severe brain injuries which she

sustained.

And lastly, in convicting the appellant the court also relied on the evidence that H

some time during the investigation of the case an axe was recovered from the

appellant's house which had marks of human blood on its blade and the wooden

handle. While such evidence served to augment suspicion on the appellant, it did not

advance the prosecution case any much further. For, it was not shown whose blood it

was. It could be that of the person or persons who occupied the house and who used

the axe. I

1994 TLR p192

A In our view, all these points taken together raise a grave doubt as to the

appellant's guilt, and had the learned trial judge addressed his mind to them he would

not have convicted the appellant. It is for these reasons that we allowed the appeal,

quashed the conviction and set aside the sentence and ordered the appellant's

immediate release from prison unless he was otherwise lawfully held. B

1994 TLR p192

C