MICHAEL HAISHI v REPUBLIC 1992 TLR 92 (CA)

 MICHAEL HAISHI v REPUBLIC 1992 TLR 92 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas, JJA

13 May, 1992 C

Flynote

Evidence - Witnesses contradicting themselves on vital details - Whether credible. D

Evidence - Bias - All witnesses from a village hostile to that from which accused

comes from -Inconsistency in evidence given by witnesses - Fears of bias must be

dispelled.

Evidence - Identification - Witnesses contradicting themselves - Whether reliable. E

-Headnote

The appellant is alleged to have been a party in malicious damage of property of

another person. He was prosecuted, acquitted by the trial court, convicted on appeal

to the High Court and then he appealed to the Court of Appeal challenging the

decision of F the High Court. His conviction was supported by evidence of

identification and other pieces of evidence adduced by witness who hailed from a

village which harboured hostility against the appellants village. It was argued in

favour of the appellant that the evidence given by the witness had so many

contradictions that it was unsafe to ground G conviction on such evidence. Further

it was said that since all the witnesses hailed from a hostile village there was need to

dispel fears of bias and on the evidence these fears were not dispelled.

Held: (i) Since the witnesses contradicted themselves on the question of identification

H of the appellant that evidence cannot remain unshaken;

(ii) since all the witnesses hailed from a village which was hostile to that of the

appellant a high degree of consistency than the one displayed is essential to dispel

fears of bias. I

1992 TLR p93

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

Case Information

Appeal allowed. A

Sang'ka, for the appellant.

Lyimo, for the respondent.

[zJDz]Judgment

Ramadhani, Omar and Mnzavas, JJ.A.: At about mid-day of 23/3/1987 the B house of

Slaa s/o Malley (P.W.1) at Gongali Village in Mbulu District was rid of its roof which

was then put on the ground and set on fire. This was done by about fifty people of

whom six were prosecuted for malicious damage to property contrary to section

326(1) of the Penal Code. The District Court of Mbulu found that three accused C

persons had no case to answer and at the end of the trial the remaining three were

acquitted because of insufficient evidence.

The Republic was aggrieved by that judgment and appealed against two of the

discharged accused persons before the High Court of Tanzania at Arusha. In the D

course of the hearing the Republic abandoned the appeal against one respondent but

proceeded to secure a conviction and a sentence of imprisonment for two years with

respect of the remaining respondent, Michael Haishi, the present appellant. E

As in the High Court, the appellant was represented before us by Mr. Sang'ka, learned

advocate. The memorandum of appeal contained five grounds which crystalizes down

to three. The first ground is on the credibility of the Prosecution witnesses while the

second is on the existence or non-existence of circumstantial evidence and lastly the

severity F of the sentence.

Mr. Sang'ka submitted that the learned first appellate Judge (Mchalla, J.) "erred in law

and fact in interfering with the trial magistrate's findings on the issue of credibility in

the absence of circumstances of unsual nature apparent in the record of the trial

court". G To support his proposition, the learned advocate cited the following

authorities: Daudi Mwabusila v John Mwalefila [1967] H.C.D.n.59 and Ibrahim

Ahmed v Halima Gullet [1968] H.C.D.n. 76

Mr. Sang'ka said that the trial Magistrate who saw the witnesses disbelieved them but

H the first appellate Judge accused him of having "acted on wrong principles and

thereby grossly misdirected himself on the law and hence wrongly acquitted the 1st

respondent". Mr. Sang'ka submitted that it was the learned Judge who misdirected

himself when he said "I really fail to see how the trial magistrate disbelieved P.W.2's

I evidence."

1992 TLR p94

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

Mr. Sang'ka had a twofold attack on the credibility of the Prosecution Witnesses. A

First, he contended that they were not independent. He said that there were two

hostile bordering villages: Gongali and Bassodowish. Mr. Sang'ka pointed out that all

the P.W.s. were from Gongali while the appellant was the chairman of Bassodowish.

B Secondly, Mr. Sang'ka pointed out that the only eye witness, Akweso s/o Baric

(P.W.2), was unreliable as he had contradicted himself in a material particular.

On behalf of the respondent/Republic was Mrs. Lyimo, learned State Attorney. She

conceded that there was the inter-village hostility but contended that it was

prejudicial C since the four crucial prosecution witnesses were at various localities

when they saw what they testified to in court and therefore did not have an occasion

to conspire against the appellant. She thus argued that the prosecution witnesses were

independent. Against Mrs. Lyimo admitted that there were contradictions in the

testimony of P.W.2 but she D submitted that they were not fatal because of the

circumstantial evidence from the other prosecution witnesses.

At this juncture it is imperative that we pose to review what these prosecution

witnesses testified in court.

The eye witness, P.W.2, stated that he had seen the appellant leading a group of E

about fifty persons to the house of P.W.1. This witness was very positive that he saw

these people lifting off the roof of P.W.1's house, resting it on the ground and that the

appellant then applied a lighted match-stick to it and thereby set the roof ablaze. On

F the other hand, P.W.3, Yohana d/o Ako, only recognised the appellant out of the

fifty strong who were warming themselves against a fire which was about thirty paces

from the house of P.W.1.

P.W.4, Bura s/o Lehema, testified that he was told by the appellant that the appellant

"will demolish the house of P.W.1". Soon after that P.W.4 saw from far away smoke

G rising up to the sky but he did not know what was burning. P.W.4 added "when I

saw them passing I did not know where they were going". P.W.4, Sahware Barie, saw

the appellant with his group going to the house of P.W.1. We better let him tell his

own story:

H They started to break the house of P.W.1. they break all the house and started

to carry it from there and went with it outside the shamba. After a short time I saw a

big smoke which was followed by fire. I

1992 TLR p95

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

P.Ws 2 and 5 claimed to have been eye witnesses yet their testimonies are A

irreconcilable. Whereas P.W.2 saw just the roof being hoisted down and set on fire by

the appellant, P.W.5 witnessed the whole house being demolished and then merely

saw a big smoke. P.W.5 did not see who lighted the fire and all that he said about the

appellant was that "all that they did this accused was there" - So according to P.W.5

B the transgression committed by the appellant was being present without knowing

whether innocently or otherwise.

Then, as Mr. Sang'ka had pointed out, P.W.2 contradicted himself. Both in his

examination-in-chief and in his cross-examination by the sixth accused, P.W.2 was

emphatic that "It was only Michael [the appellant] who set fire to the house and no C

one else". However, P.W.2 shifted ground when he replied to the fourth accused that

"Even this accused [fourth accused] did set fire to the house". So it was no longer only

the appellant and no one else who lighted the fire. D

Again P.W.2 testified that the whole mob of fifty people was in a single group. P.W.4,

on the other hand, talked of three district groups and that the appellant was in the

second one. At first, however, this witnesses had deposed: "They were too many but I

only identified two of them, that were village chairman (1st accused) and 2nd

accused. E They passed me in a group." It is not clear whether by "in a group" he

meant the whole lot was in a single group or as he had said later in the second group.

Not only that, but P.W.4 went on to say that he identified the fifth accused too in the

third group thus contradicting his earlier deposition that he had identified only 1st

and 2nd F accused persons. Then P.W.5 talked of two groups and that the appellant

was in the first group contrary to what P.W.4 had said.

So we find that P.W.2 was not the only one who had contradicted himself but that

P.W.4 did that as well and that P.Ws 2, 4 and 5 contradicted one another G

hopelessly-in vital details.

However, the learned Judge found that "Inspite of the discrepancies in P.W.2's

evidence as pointed out by Mr. Sang'ka, that evidence on the whole remains

unshaken. With respect we are a shade unsure whether that could be so and

particularly as H P.W.2 is controverted by the other who are themselves

irreconcilable - and the fact that the learned Judge did not pose to consider these. On

the contrary he found that "The evidence of P.W.2 was highly corroborated by

another cogent evidence that was given by P.W.3 and P.W.4 who were also

physically present at the scene..." I

1992 TLR p96

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

This unhealthy state of evidence is aggravated by the fact of hostility which was A

established to exist between the two villages. The learned Judge stated:

I tend to agree with the finding of the trial magistrate that the source of the

problem in B this matter could be a dispute over ownership of land which the parties

in this case are contending.

If so, in our considered opinion, then the probability of biased testimony, prompted

by that hostility becomes a matter of nagging concern which could not be lightly

waived C aside by saying:

There is no reason, let alone good reason, given why these witnesses who are

independent witnesses at that should have conspired to testify falsely against the 1st

respondent and thereby implicate him in this charge. D

The trial magistrate correctly pointed out that all the six prosecution witnesses hail

from Gongali Village while the appellant was the chairman of Bassodowish Village.

So a high degree of consistency than the one displayed is essential to dispel fears of

bias. Thus E we agree with the trial magistrate that:

These collection of those doubts make any court of justice and law find the

accused not guilty at all. F

Once we have come to this conclusion then the remaining two grounds of appeal are

superfluous. There could be no question of corroborating circumstantial evidence

since that, too, would have come from the other biased witnesses. Of course if the

appellant is not guilty there is no question of punishment. G

We thus allow the appeal, quash the conviction, set aside the punishment and order

the immediate release of the appellant unless he is otherwise lawfully held.

H Appeal allowed.

1992 TLR p97

A