JACKSON s/o MWAKATOKA & 2 OTHERS v REPUBLIC 1990 TLR 17 (CA)

 JACKSON s/o MWAKATOKA & 2 OTHERS v REPUBLIC 1990 TLR 17 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Kisanga JJA, Ramadhani JJA, and Mnzavas JJA

17 May, 1990

Flynote

Criminal Law- Doctrine of common intention - Death resulting from a fight. B

Evidence- Identification - Repudiated confession - Credibility and demeanour of

witnesses - Conflict of evidence.

-Headnote

In a trial for murder caused during a fight at night, the trial judge found the

appellants guilty of murder on the C evidence that the first appellant was identified

as being present when the second and third appellant attacked the deceased on the

fateful night and thus participated in the murder under the doctrine of common

intention, that the second appellant was identified as one of the attackers, that the

third appellant had confessed to have hit the D deceased on the head with a stone,

and that the third appellant's repudiation of the confession required no corroboration

for his confession to support his conviction.

The Court of Appeal of Tanzania allowed the first and second appellants' appeal and

quashed the third appellant's E conviction for murder and substituted therefore

conviction for manslaughter.

Held: (i) There was conflict of evidence as regards the identification of the first and

second appellants and that the F identifying witness demeanour and testimony

lacked credibility;

(ii) mere presence of the first appellant at the scene of the crime was not

sufficient to invoke the doctrine of common intention and implicate him to the

murder;

(iii) repudiated confession though as a matter of law may support a conviction,

generally requires as a matter of G prudence corroboration as is normally the case

where a confession is retracted;

(iv) the third appellant's denial of his confession was an after- thought and

thus, on the basis of the evidence untenable;

(v) when death occurs as a result of a fight unless there are very exceptional

circumstances, the person who H causes death is guilty of manslaughter and not

murder.

Case Information

Order accordingly.

Tunkunjoba, for first and third Appellants I

1990 TLR p18

A Bateyunga, for Second Appellant

Ndunguru, for the respondent

[zJDz]Judgment

Mnzavas, Kisanga and Ramadhani, JJ.A.: The three appellants Jackson Mwakatoka,

Briton Mwakalasya and B Anthony Madawa were jointly charged with, and

convicted of, the murder of one, Amos Sanga c/s 196 of the Penal Code and sentenced

to death by the High Court, (Mtenga, J.)

Dissatisfied with the finding and sentence of the lower Court they have appealed to

this Court. Arguing for the first C and third appellants (Jackson Mwakatoka and

Anthony Madawa) Mr. Tukunjoba, learned Counsel, attacked the finding of the High

court on the ground that the two witnesses, PW. 1 and PW.2, who testified that it

was the accused who attacked and killed the deceased, could have been mistaken in

their identity of the appellants because D they were standing about 20 paces from

where the deceased was being assaulted. It was the learned counsel's submission that

there was doubt regarding identification of the appellants as the ones who attacked

the deceased on the material night and that this doubt should have been resolved in

favour of the appellants.

E As for the doctrine of common intention relied upon by the learned trial Judge in

convicting the appellants Mr. Tunkunjoba submitted that the learned judge "did not

give a thorough analysis of the evidence". The Court was asked to find the appellants

not guilty of the offence of murder and allow the appeal. Mr. Bateyunga, learned F

Counsel for the second appellant, Briton Mwakalasya, argued that the two witnesses

could not have properly identified the appellant as among the people who attacked

the deceased as, it was argued, there was only dim moon light on the material night.

It was also submitted that the two eye witnesses were hiding in a jungle of trees and,

as such they could not properly see what was happening leave alone identifying the

appellants as the people G who attacked the deceased.

The learned Counsel also submitted that although there were electric lights in the

neighbourhood the first electric light was 58 paces from the scene of crime, the

second electric light was 59 paces away and third was 47 paces H from the scene of

crime.

Mr. Bateyunga further argued that the two eye witnesses (PW. 1 and PW.2), could

have mistakenly identified the appellants as the people who belaboured the deceased

on the material night.

I In support of the convictions Mr. Nduguru, learned State Attorney, argued that

the two witnesses properly identified the appellants because there were electric

lights. It was also submitted that the two witnesses

1990 TLR p19

MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA

knew the second and third appellants before the incident and that because of this the

question of mistaken identity A of the second and third appellants by the witness

was safely discounted by the High Court. Mr. Ndunguru further argued that the third

accused confessed to a justice of the peace, (PW.5), that he attacked the deceased with

a stone.

As to the doctrine of common intention it was submitted that the evidence of PW. 1.

and PW.2 and the fact that the B appellants took to their heels when they saw

villagers coming to the scene proved that the accused had formed a common

intention to kill the deceased. The learned state Attorney submitted that the appeal

has no merit and asked the Court to dismiss it in its entirety. C

In convicting the appellants the learned trial Judge said inter alia:

I observed very carefully these two witnesses i.e. PW.1 and PW.2 and I have come to

the conclusion that they are D witnesses of truth. These two witnesses managed to

see the three accused very clearly attacking the deceased for on that day it was a

moonlight day and also at the scene there was an electric lamp. The three accused

attacked the deceased jointly. The three accused therefore fall within the ambit of the

principle of common intention as provided E under section 23 of the Penal Code.

Dealing with the extra judicial statement of the third accused the learned trial Judge

said inter alia: F

The third accused tries to say that when he gave his statement a Police Officer was

present with a gun. I do not believe this story for if it was so then his advocate could

have raised this point when Mr. Kajeri, (PW.5), was giving evidence. The G third

accused also denied having told the justice of the peace that he hit the deceased with

a stone on the head for self-defence. With that I told the two assessors that a denied

confession differs from a retracted confession and it does not require to be

corroborated. If at all corroboration is required then there is enough of it from the

evidence of PW. 1 and PW.2. H

The learned Judge rejected appellants' defence of alibi and convicted the appellant

with the offence of murder and imposed the mandatory death sentence.

After having considered and evaluated the evidence and having tested the conclusions

of the trial Court drawn from I the demeanour of

1990 TLR p20

MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA

A the witnesses against the whole of the evidence in this case we are of the view

that the learned trial Judge erred in his assessment of the credibility of the two

witnesses, PW.1 and PW.2. The evidence of Emmanuel Ukara, PW. 1, which

evidence was accepted by the lower court as credible differed in material particulars

from his preview B statement to the Police (exhibit D1).

In his evidence he testified that on 12/8/86 at about 10.30 p.m. the appellants visited

his club, attacked him and robbed him of his shs. 1400/=. He testified that having

robbed him they left the club and followed the road to Chunya.

C The witness said that after the robbery he went home where he was told that his

landlord, the deceased, had followed them at the club after he (the deceased) had

been informed by one, Ally about the fracas at the club.

D It was his evidence that he, accompanied by Ally and Richard, PW.2, followed

the deceased. At the bus stand they saw the third appellant jumping in jubilation that

he had already done his duty. He told the Court that all the appellants were there and

that the third appellant was armed with an iron bar and a knife. In cross examination

he said he saw the accused attacking the deceased.

E Apparently this witnesses's evidence is diametrically opposed to his statement to

the Police on 13/8/86 (exhibit D1), in which he said that when he was attacked by the

appellants he raised an alarm and that when the deceased came to his rescue the

appellants attacked him with a knife.

F In the same breath the witness again gave a different statement to the Police on

5/l0/86. He told the Police that it was when he was returning home from the club

after he had been robbed of his money that he met the second and third appellants.

The third appellant is said to have announced that he had finished his job. He says in

his statement G that he saw the deceased lying on the ground and that the three

appellants were standing near the deceased. He however said he did not see the

appellants attacking the deceased.

Like PW. 1, Richard Sanga, (PW.2), also contradicted himself in his evidence. In his

examination in chief he H testified that after the fight at the club he proceeded

home and told his father, the deceased, what had happened at the club but on being

cross-examined by the learned defence Counsel he said that it was one, Ally who

reported to the deceased what had happened. In Court he testified that he was

standing six paces away from where the third I appellant was attacking the deceased

but when cross-examined by the learned defence counsel he admitted having said in

his statement to the Police that he was about 20

1990 TLR p21

MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA

paces from the scene of crime. He also said he was hiding in the jungle of trees when

he saw the third appellant A armed with a knife and an iron bar.

It was incumbent on the trial Judge to have dealt with the conflict of the evidence

and as to whether it was sage to convict the appellants on the evidence of PW.1 and

PW. 2; this the learned Judge did not do. We are also at a loss B as to why only PW.

1 and PW.2 testified regarding the alleged attack of the deceased by appellants. Given

that the incident took place in a populated area, and that many villagers came to the

scene, one would have expected other villagers to give evidence regarding the

incident. PW. 1 was the deceased's tenant and a business partner of C PW.2 who is

deceased's son. Taking into account this lead to agree with Mr. Bateyunga's argument

that PW. 1 and PW.2 had every reason to embellish their stories. It is also not

irrelevant to mention that although PW. 1 and PW.2 told the trial Court that there

was an electric lamp only 6 paces from the scene of crime when the trial court visited

D the scene it was found that one electric lamp was 58 paces from the scene of crime,

another one was 59 paces from the scene of crime and the third electric lamp was 47

paces away. These facts tended to discredit the two witnesses all the more.

The Republic argued that although only the first appellant did not assault the

deceased he stood passively while the E deceased was being attacked and that he ran

away with the second and third appellants when villagers came to the scene. This

behaviour, it was argued, made the first appellant guilty of the offence of murder

under the doctrine of common intention as defined in section 23 of the Penal Code.

The Eastern Africa Court of Appeal dealt with a F similar situation in the case of R.

v. Komen where it was held inter alia that:

. . . Mere presence of the accused at a killing, he not having raised any objection

thereto is not enough to justify his G conviction for murder.

As for the second appellant his conviction was wholly based on the evidence of PW. 1

and PW.2 whose demeanour impressed the learned trial Judge that they were truthful

witnesses. As we have already mentioned H above first and second appellants left

much to be desired. Dealing with the question of demeanour of a witness it was held

in the case of Byamungu s/o Rusiliba v R. [1951] 18 EACA. 233 that:

An impression as to demeanour of a witness ought not to be I

1990 TLR p22

MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA

A adopted without testing it against the whole of the evidence of the witness in

question.

Had the learned Judge tested the demeanour of PW. 1 and PW.2 against the whole of

their evidence he would no B doubt have found that their testimony was far from

being credible.

Coming to the third appellant the evidence against him was on different footing

when compared to the evidence against the first and second appellants. There was his

extra judicial statement to the justice of the peace (PW.5). In C his statement

(exhibit P. l) he assaulted the deceased on the head with a stone but in his defence in

Court he repudiated his confession and said that he never told the justice of the peace

that he had attacked the deceased with a stone in self defence.

He argued that he gave his statements to the justice of the peace in the presence of an

armed Police Officer and that D the statement was not read back to him. He

however admitted signing the statement.

In dealing with their appellant's repudiated confession the learned Judge said inter

alia:

a denied confession differs from a retracted confession as it does not require to be

corroborated... the leading authority E for this preposition is the case of R v. Fabiano

Kinene and Two Others [1941] 8 EACA 96. If at all corroboration is required then

there is enough of it from the evidence of PW. 1 and PW.2 .

F With respect to the learned trial Judge it was a clear misdirection for him to say

that a repudiated confession "does not require to be corroborated". That may have

been the law in 1941 when the case in R v Fabiano was decided; but the position has

since changed. In the case of Tuwamoi v Uganda [1967] EA at page 91 the Court G

said inter alia:

.... We would summarize the position thus a trial Court should accept any confession

which has been retracted or H repudiated with caution, and must before founding a

conviction on such a confession be fully satisfied in all the circumstances of the case

that the confession is true...corroboration is not necessary in law and the court may

act on a confession alone if it is fully satisfied after considering all the material points

and surround circumstances that the I confession cannot but be true.

1990 TLR p23

MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA

This decision was quoted and followed by this very Court in the recent case in Ali

Salehe Msutu v R. [1980] TLR A 1 in which the court held that "a repudiated

confession, though as a matter of law may support a conviction, generally requires as

a matter of prudence corroboration as is normally the case where a confession is

retracted".

Apart from the misdirection in law we are however in agreement with the learned

Judge when he says in his B judgment....

coming now to the extra judicial statement of the third accused; the third accused

tries to say that when he made the statement a Police Officer was present with a gun.

I do not believe this story for if it was so then his advocate could have C raised this

point when Mr. Kajeri (PW.5) was giving evidence....

On the totality of the evidence we are of the considered view that the third appellant'

s confession to the justice of D the peace could not but be true. His denial was

clearly an afterthought.

The extra judicial statement shows that there must have been a fight between the

deceased and the third appellant who showed to the justice of the peace a scar on his

forehead which he alleged was a result of a wound the E deceased had inflicted on

him before he (third appellant), attacked the deceased on the head with a stone.

When death occurs as a result of a fight as it was in this case, unless there are very

exceptional circumstances the person who causes death is guilty of manslaughter and

not murder. F

In conclusion we find that due to the paucity of evidence regarding identification of

the first and second appellants as shown above the learned trial Judge erred in

convicting them with the offence of murder. We allow the appeal in respect of the

first and second appellants and we order that they be released from custody forthwith

unless they are G otherwise lawfully held in connection with another matter.

As for the third appellant we, for the reasons stated above, find that he is only guilty

of the lesser offence of manslaughter c/s 195 of the Penal Code. Consequently we

quash his conviction for murder and substitute therefore conviction for manslaughter.

H

Taking into account that he has been in custody since August, 1986 we are of the

opinion that a sentence of 5 years imprisonment will meet the justice of the case. He

is so sentenced.

Order accordingly. I

1990 TLR p19

A