HAMISI MEURE v REPUBLIC 1993 TLR 213 (CA)

 HAMISI MEURE v REPUBLIC 1993 TLR 213 (CA)

Court Court of Appeal of Tanzania - Dodoma

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 112 OF 1993 B

25 October, 1993

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

Mwalusanya, J.) C

Flynote

Criminal Practice and Procedure - Statement of witness or substance of evidence not

read at committal proceedings - Whether witness can testify for prosecution at the

trial - Section 289(1) of the Criminal Procedure Act, 1985. D

Criminal Practice and Procedure - Witness - Notice to accused or Advocate of

intention to call witness - Contents of such notice - Criminal Procedure Act 1985, s

289(2).

Evidence - Extra-judicial statement retracted at trial - Whether it can be relied upon.

E

-Headnote

The appellant was convicted of murder and was sentenced to death on the basis of the

identification of a witness who saw him driving the stolen cattle of the deceased and

on his alleged confession made to a Justice of the Peace. The statement written by the

Justice of the Peace was not read at the committal proceedings. The Justice of the

Peace was called as a prosecution witness without F the appellant or his advocate

being given reasonable notice. At the trial, he retracted the extra- judicial statement

he made to the Justice of the Peace.

Held: (i) The learned Trial Judge erred in law in allowing evidence of the Justice

of the Peace to be given at the trial when his statement had not been read at the

committal proceedings and no notice had been given to the appellant or his advocate,

and therefore, the extra-judicial G statement was wrongly admitted;

(ii) Section 289(2) of the Criminal Procedure Act, 1985, makes it

mandatory for not only the name and address of the witness to be supplied, but also

the substance of the evidence H which he intends to give;

(iii) Since the extra-judicial statement was clearly retracted at the trial, the

Trial Judge should not have relied on it without warning himself of the dangers of

convicting on a retracted confession.

Case Information

Appeal dismissed.

No case referred to. I

1993 TLR p214

A Rweyongeza, for the appellant.

Ndunguru, for the respondent.

[zJDz]Judgment

Mfalila, J.A., read the following considered judgment of the Court:

B The appellant Hamisi Meure was convicted of the murder of one Abubakari s/o

Shabani and was sentenced to death by the High Court sitting at Dodoma

(Mwalusanya J). He lodged this appeal against both his conviction and the sentence of

death.

C At the trial two witnesses gave evidence for the prosecution. These were the

deceased's neighbour Erkadi s/o Mwakagile (PW1) and the Justice of the Peace David

Mzuri (PW2). Erkadi Mwakagile whose evidence was hotly contested both at the trial

and in this Court, told the Trial Court that on 16 March 1989 at about 1.10 am he was

awakened by an alarm from the deceased's house. D He proceeded there and found

the deceased's two wives crying. The deceased himself was sprawled on the ground

with serious injuries. The deceased then told him with difficulty, for he was barely

conscious, how bandits had attacked him and stolen his sixteen cattle, forty goats and

two sheep. The deceased died soon after that. However the villagers organised

themselves into two E groups and started to trace the cattle thieves. The following

day, 27 March 1989 at about 4 pm they caught up with the thieves driving the stolen

cattle. When they got sufficiently close to the gang, the witness said that he identified

the stolen cattle to be the deceased's as some of his own were in that F herd. He also

identified two of the eight bandits. He identified the appellant clearly because he said

they had been village mates for the last ten years. He also identified another who was

charged as the third accused and whom he named as Chimingati Meure. He was

acquitted at the trial. In the ensuing G fight, the bandits were overpowered and they

ran away leaving their loot behind, but one of their number, Koyesa was arrested but

he died later apparently of wounds sustained in the fight. The stolen cattle were

returned to the village. The appellant and the third accused at the trial Chimingati H

Meure were later arrested and charged with this offence.

The Justice of the Peace, Davis Mzuri recorded the appellant's extra-judicial statement

admitted at the trial as exhibit B in which he admitted taking part in the raid at the

deceased's homestead, but he explained that he was an unwilling participant as he had

simply been forced to join the raiding party I when he met them. He confirmed that

the third accused was an active participant.

1993 TLR p215

MFALILA JA

In his defence at the trial, the appellant denied taking part in the raid in which the

deceased was A killed. He said that he was just arrested for reasons he did not

understand. After his arrest, he was subjected to severe beatings in the course of

which he was forced to go to the Justice of the Peace where he made the extrajudicial

statement exh B. He was told what to say in that statement and that B the

names he supplied were given him by the Police Investigating Officer.

After a very careful summing up, the Assessors accepted the evidence of PW1, that he

identified both the appellant and the third accused at the scene while they were

driving away the cattle. The C assessors also accepted the extra-judicial statement

exh B as having been freely and voluntarily made. On these two pieces of evidence,

the assessors found both the appellant and the third accused guilty as charged.

However, the learned Judge stated that while he was able to go along with the

Assessors on the guilt of the appellant, he was unable to agree with them on the guilt

of the D third accused. Incidentally, the second accused had been acquitted at the

close of the prosecution case. The learned Judge was of the view that while PW1 was

indeed a truthful witness, his truthfulness did not extend to his alleged identification

of the third accused. In fact, the learned Judge E found that PW1 lied on three

points. He lied when he stated that he knew the third accused, that he lied when he

said that the third accused was a resident of Case Village when in fact he lived in

Msanga Village which is some fifty kilometres away. (The learned Judge was still

using the now defunct imperial system when he stated that Msanga is thirty miles

away). And lastly that PW1 lied F when he said that the third accused's name is

Chimingati s/o Meure when he is Chimingati s/o Ndyongo. In the circumstances, he

said that he was not persuaded that PW1 knew the third accused before the incident

to enable him make a correct identification. He therefore convicted the appellant G

as having been correctly identified by PW1 his long time village mate and acquitted

the third accused. The learned Judge also found that PW1's identification of the

appellant was corroborated, if corroboration was necessary, by the appellant's own

extra-judicial statement. H

In this appeal, Mr Rweyongeza learned Counsel who appeared for the appellant filed

four grounds of appeal. In ground No 1, he complained that the learned Trial Judge

erred in law in allowing the evidence of PW2 to be given at the trial when his

statement had not been read at the committal proceedings and no notice had been

given to the appellant or his advocate. During the hearing I

1993 TLR p216

MFALILA JA

A of the appeal, Mr Rweyongeza submitted that in the absence of a reasonable

notice, PW2 the Justice of the Peace was barred from being called as a witness under s

289(1) of the Criminal Procedure Act because the substance of his evidence was not

read at the committal proceedings. This section provides as follows:

B `289(1) No witness whose statement or substance of evidence was not read at

committal proceedings shall be called by the prosecution at the trial unless the

prosecution has given a reasonable notice in writing to the accused person or his

advocate of the intention to call such witness.

C (2) The notice shall state the name and address of the witness and the

substance of the evidence which he intends to give.

(3) The Court shall determine what notice is reasonable, regard being had to

the time when and the circumstances under which the prosecution became

acquainted with the nature of the witnesses's evidence and determined to call D him

as a witness. No such notice need be given if the prosecution first became aware of

the evidence which the witness would give on the date on which he is called.'

E Mr Rweyongeza added that ss (3) is not applicable because the prosecution

became aware of the existence of such evidence as far back as 3 November 1992

during the preliminary investigation when the first accused, the present appellant

intimated that he had been threatened into making the extra judicial statement to the

Justice of the Peace.

F At the trial, when the defence objected for the same reasons that the Justice of the

Peace (PW2) should not be called as a witness, the learned Judge overruled the

objection in the following words:

G `However it is my view that since yesterday 10 February 1993 (ie the day

before the trial began on 11 February 1992) the defence became aware of the

application for summons for the prosecution witnesses that was written about three

weeks ago. In that application for summons, the name of Mr Mzuri appears and it is

written that he is a Justice of the Peace. As it is written that he is a Justice of the

Peace, the defence Counsel must have known that the H substance of the evidence

that this witness would give concerns the extra-judicial statement he must have

recorded. So the Defence Counsel today was not taken by surprise. If he required

more reasonable notice, the Defense Counsel should have said so yesterday when he

became aware of the calling of this witness. It is my view that the I period from

yesterday morning to this day is sufficient notice to the Defence.'

1993 TLR p217

MFALILA JA

We think, with respect, that this passage contains assumptions which, even if they

were to be A proved correct, could not meet the rigid and mandatory requirements

of s 289. Even if the application for witness summons were to be regarded as a notice

under this section, which it cannot, there is not basis for believing that it was seen by

either the appellant or his Counsel. Secondly, ss (2) makes B it mandatory for not

only the name and address of the witness to be supplied, but also the substance of the

evidence which he intends to give. There is no room for the defence to be left

guessing as the learned Judge seems to suggest. Thirdly, since the prosecution became

aware of the existence of such evidence four months before the trial opened, there

was no justification for the C Court to pin down the Defence to a day's notice and

call such notice reasonable under ss (3). In any event, we were surprised by the

Judge's remark that if Defence Counsel had required more reasonable notice he

should have said so earlier, when that was exactly what Counsel had demanded when

arguing his objection. It having been accepted by the prosecution and the Judge D

himself that PW2 did not feature in the record of committal proceedings, he should

not have been allowed to give evidence in contravention of the provisions of s 289

which are mandatory. In the circumstances we agree with the complaint in ground 1

and hold that PW2 was wrongly allowed to E give evidence. Mr Ndunguru learned

State Attorney who appeared for the Republic conceded that PW2 would not have

been allowed to give evidence before complying with the mandatory provisions of s

289 of the Criminal Procedure Act 1985. F

Mr Rweyongeza argued grounds 2 and 3 together because they both touched on the

credibility of PW1. In these two grounds, he complained that the Trial Judge should

not have found PW1 a truthful witness in respect of one accused and a liar in respect

of the other and that he should have found G PW1 an unreliable witness particularly

after considering the statement this witness gave to the police and the evidence he

gave in Court.

As we have already indicated, the learned Trial Judge found that PW1 had lied on

three matters. However on our part, we think the learned Judge over-reacted to the

differences between the H evidence of PW1 and that given by the third accused.

PW1 told the Trial Court that he knew the third accused, while the third accused said

that he did not know him. PW1 said that the third accused lived in Chasa Village

while the third accused denied this saying that he lived in Msanga Village fifty I

kilometres away. PW1 said that the third accused's name was Chimingati s/o Meure

while the third

1993 TLR p218

MFALILA JA

A accused said he was Chimangati s/o Ndyongo. Were these differences sufficient to

suddenly turn PW1 into a liar when the Court had just evaluated him to be a truthful

and reliable witness? The Trial Judge should have realised like the Assessors that the

third accused had every reason to deny PW1's allegations about him, whereas PW1

had no reason to lie against the third accused. The Trial B Judge did not state where

he got the impression that the third accused was a total stranger to PW1 apart from

third accused's own denials. Indeed when cross-examined by Defence Counsel, PW1

stated categorically that:

C `The third accused is my village mate at Chase - he is called Chimingati

Ndyongo s/o Meure. He does not stay at Msanga Village.'

PW1 was therefore aware of the third accused's other surname `Ngyongo' and in any

case he D definitely knew his first name `Chimingati' which was not disputed. We

are in the circumstances satisfied that the Trial Judge wrongly, even unfairly branded

PW1 a liar. The Assessors' assessment of PW1 as a truthful and reliable witness was

the correct one even after taking into account the E difference between what he said

in Court and what he stated in his police statement exh A. In Court, he said that his

group did not fight the bandits, but in the police statement he stated:

F `. . . Hapo tulizitambua ng ombe hizo na mbuzi ndizo zenyewe nilizooibiwa

kwa marehemu, ndipo tukaanza mapigano ya mishale bahati tukawazidi nguvu wezi

hao na kumkamata mmoja wao aitwaye Koyesa s/o Chimingati . . .'.

G It should be remembered that according to this witness, the search party was

divided into two groups, the witness belonged to the group which was in front. But

since the two groups were on the same mission, they were just one large group

divided into two sections, so that when the witness was describing the events while at

the police station, he chose to treat the whole search party as one H and he

considered himself a member of the entire search party. But in his evidence in Court,

he chose to be more detailed, describing that each section of the group did. We can

therefore see nothing in this to make PW1 a liar and unreliable. In the circumstances

we reject the complaints in grounds 2 and 3.

I In view of our finding that PW2 should not have allowed to give evidence in

contravention of s 289, it follows that the extra-judicial

1993 TLR p219

statement was wrongly admitted and therefore we need not deal with the complaint

in ground 4 A namely that the learned Judge misdirected himself in relying on the

extra-judicial statement of the appellant in complete disregard of the circumstances

under which it was made. But we would like to point out that as it was clearly

retracted at the trial, the Trial Judge should not have placed any B reliance on it

without warning himself of the dangers of convicting on a retracted confession.

However as we hope we have clearly indicated, the Trial Court was perfectly and

rightly entitled to base the appellant's conviction on the evidence of PW1 once they

had evaluated him as they did, to be a truthful and reliable witness. The third accused

should consider himself lucky for being C acquitted. The appellant was rightly

convicted on the basis of the doctrine of recent possession.

The appeal has no merit, we accordingly order that it be dismissed. D

1993 TLR p220

E