YOHANIS MSIGWA v REPUBLIC 1990 TLR 148 (CA)

 

YOHANIS MSIGWA v REPUBLIC 1990 TLR 148 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Makame JJA, Omar JJA and Mnzavas JJA

B September, 1990

Flynote

Evidence - Evidence of a single witness in a murder charge - Whether it requires

corroboration before conviction - S. 143 Evidence Act 1967.

-Headnote

C Before the High Court of Tanzania sitting at Njombe was Yohanis Msigwa, the

appellant, charged with the offence of murder. The trial court convicted him of the

offence and condemned him to death.

Dissatisfied with the conviction and the sentence, the appellant through the services

of Mr. Mwakilasa, learned D counsel, appealed to the Court of Appeal of Tanzania

raising among other grounds, that since P.W.1 was the only eye witness, her evidence

required corroboration as a matter of prudence given gravity of the offence.

Held: (i) As provided under section 143 of the Evidence Act 1967, no particular

number of witnesses is required E for the proof of any fact. What is important is the

witness's opportunity to see what he/she claimed to have seen, and his/her credibility;

Case Information

Appeal dismissed.

F Mwakilasa, for the appellant

Sengwaji, for the respondent

[zJDz]Judgment

Makame, J.A.: In November 1983, at a village called Maliwa in Makete District, Iringa

Region, a man known as G Kibweri Msingwa was severely cut five times: on the

face, the ears, the neck and the chest. According to the postmortem examination

report the deceased died of these injuries and the consequent haemorrhage. The High

Court sitting at Njombe (Mwaikasu, J) was satisfied that the appellant Yohanis

Msigwa was the person who H mortally wounded the deceased and that he did so

with malice aforethought. The appellant was accordingly convicted for murder and

condemned to death. He is appealing to us against the decision and in the effort he is

being advocated for by Mwakilasa, learned counsel. In resistance of the appeal Mr.

Sengwaji, learned Senior State I Attorney, argued on behalf of the Republic.

The appellant and the deceased were cousins and PW1 Teresia

1990 TLR p149

MAKAME JA

Malube, the star witness, was the wife of the deceased. On the fateful day, according

to PW1, the appellant A accosted PW1 in the village and asked her the whereabouts

of her husband. He explained why he was looking for the deceased: A local medicine

man had told him, the appellant, that the deceased was a wizard so he wanted to talk

things over with the deceased so as to avoid antagonism. This conversation was

allegedly in the present of one B Lubaso, a brother of the deceased, who was

unhappily dead by the time the case came up for hearing so he was not available to

testify. PW1 told the appellant where the deceased was at an abandoned house which

they were using as their granary, and from which she had just come. When PW1 was

going back to the abandoned house the C appellant walked past her and went to

where the deceased was. He stabbed the deceased in the full view of PW1 who was a

few meters from them. In her early report to both PW3 Feliski Sanga, a woman

whose house was some thirty paces away, and PW4 Enock Sanga the Village

Secretary, PW. 1 implicated the appellant. We need D not here comment on the

confining of names said to have been introduced by PW3 in her statement to the

Police for that was resolved by the trail Court and is no longer the subject matter of

controversy, except we desire to point out that it is not quite the thing to do to make

use of the alleged statement by PW3 as did the learned trial judge, E without such

statement being tendered in evidence. Be it as it may, the appellant was arrested at

Makambako, according to him on 29th December, 1983 and was eventually tried and

found guilty of murder as aforesaid.

Mr. Mwakilasa urged two grounds of appeal. The first that the evidence adduced was

not enough to base a F conviction of murder on, and secondly that the appellants

alibi should have been accepted. Mr. Mwakilasa submitted that as PW1 was the only

eye witness, her evidence required corroboration as a matter of prudence for a crime

so grave. He suggested that PW1 testified falsely against the appellant because the

appellant had put PW1 his daughter, his niece, in the family way. For good measure

Mr. Mwakilasa further suggested that it is possible that G PW1 herself was the

deceased's killer. Mr. Mwakilasa also wonders why, if PW2.'s story were true, the

appellant was not arrested until some seven weeks later, whereas Makambako, where

he was picked up by the Police, is just in the next door district of Njombe. Mr.

Songwaji responded to this: He submitted that PW. 1 knew the appellant H before

and the appellant conceded as much. PW1 said she knew of no grudges, and the

pregnancy story was not put to PW1 for her to admit or deny; in any event the

appellant says the matter was discussed and settled. As for the delay in arresting the

appellant Mr. Dengwaji surmised that it I

1990 TLR p150

MAKAME JA

A could well have been because the appellant was a pottery businessman at

Makambako with no firm address.

As aforesaid, Mr. Mwakilasa also complained about his client's alibi. He submitted

that although no notice of it was given as required of the Defence, the Prosecution

was aware of its existence by virtue of the fact that the appellant B told the

investigating officer, PW5, Inspector Benjamini Mwakatika, that he was not involved

in the murder, that is; an alibi was implicit in the utterance.

We are able to say at the outset, with respect, that Mr. Mwakalasa's submission on the

defence of alibi is decidedly C thin. Also in urging us to say that PW1 might have

been the killer, Mr. Mwakilasa was truly scraping the barrel. It is a wild and barren

theory, without the slightest foundation in the evidence on record.

The Prosecution was silent as to when the appellant was arrested so we must go by

the appellant's own assertion, D which was not controverted, that he was not

arrested until 29th December 1983 that is some seven weeks after the event. Mr.

Mwakilasa did not come out more boldly but we think his oblique insinuation was

that PW1 could not have implicated the appellant on the day of the incident

otherwise the appellant would have been arrested a lot E earlier. We are unable to

go along with learned counsel on this. We are not at all surprised that the appellant

was not apprehended sooner than he was because, on his own account, he did not go

back to the village since he went to Makambako in 1976 that is seven years

previously. It is therefore possible that the villagers including PW 1 did F not know

where he was living. Indeed PW 1 said that the appellant was not a frequent visitor

and we think it is significant also that even PW4 Sanga, the village Secretary and so a

man in authority at the village, did not at all know the appellant although PW4 had

lived in the village since 1981.

G There was admittedly a lone eye witness in this case. Her evidence is not however

detracted from because of that fact alone. As provided under Section 143 of the

Evidence act, of course no particular number of witnesses is required for the proof of

any fact. What were important here were PW1's opportunity to see what she claimed

to have seen, and her credibility. Mr. Mwakilasa concedes it was broad daylight and,

as Mr. Sengwaji remarked, the H learned trial judge was positively impressed by

PW1 as a witness. We ourselves find no reason to doubt the veracity and reliability of

PW1's testimony. We are satisfied that the appellant was quite properly convicted on

the evidence and we accordingly dismiss the appeal.

I We wish to add one observation. All the three assessors who sat

1990 TLR p151

MAKAME JA

with the learned judge advised that the appellant was not guilty. As we have had

occasion to say before, it is a rule A of practice that when a trial judge departs from

the unanimous views of his assessors. Albeit not binding, he should state his reasons

for doing so. We have elsewhere referred to this as the Segesela Rule with reference

to the judgment in the Court of Appeal Criminal Appeal No. 13 of 1973 Charles

Segesela v R an appeal from Tanzania. B In the present case the learned trial judge

gave convincing reasons for disagreeing with his assessors and the Segesela Rule was

in our view clearly observed.

Appeal dismissed. C

1989

Editorial Board

Chairman

The Hon. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, P.P.P., Attorney-General Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General Chambers, Zanzibar

Dr. S. BWANA, Registrar, Court of Appeal of Tanzania

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel,Tanzania Legal Corporation

Ms. M. SHANGALI, Administrative Assistant

Mr. B. LUANDA, Deputy Registrar, Court of Appeal of Tanzania

Special Assistant

Mr. S. MCHOME, Lecturer in Law, Faculty of Law,

University of Dar es Salaam, Assistant Managing Editor

Assisted by Dr. N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of

Appeal of Tanzania and the High Courts of

Tanzania and Zanzibar

CITATION

These Reports are cited thus [1989] T.L.R.

Judges of the Court of Appeal of Tanzania in 1989

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

6. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

7. The Hon. Mr. Justice N.Z. Mnzavas Justice of Appeal

8. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

Judges of the High Court of Tanzania in 1989

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K.Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

12. The Hon. Mr. Justice M. Mwakibete Puisne Judge

13. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

14. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

15. The Hon. Mr. Justice C. Mtenga Puisne Judge

16. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

17. The Hon. Mr. Justice A. Bahati Puisne Judge

18. The Hon. Mr. Justice H.A. Msumi Puisne Judge

19. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

20. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

21. The Hon. Mr. Justice B.P. Moshi Puisne Judge

22. The Hon. Mr. Justice L.A. Kyando Puisne Judge

23. The Hon. Mr. Justice W.H. Sekule Puisne Judge

24. The Hon. (Madam) Justice E.N. Munuo Puisne Judge

25. The Hon. Mr. Justice J. Masanche Puisne Judge

26. The Hon. Mr. Justice L.B. Mchome Puisne Judge

27. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

Judges of the High Court of Zanzibar in 1989

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1989 TLR p1

A

[zRPz]STAR SERVICE STATION CO. LTD. v TANZANIA RAILWAYS

CORPORATION 1989 TLR 1 (HC)

Court High Court of Tanzania- Tabora

Judge Chipeta J

18 January, l989 B

Flynote

Contract - Exclusion clause - Whether must be drawn to the attention of the other

party.

-Headnote

Plaintiffs sued defendants claiming damages for loss of goods consigned to the latter

for transportation. Defendants raised a preliminary point arguing that they were not

liable C under the "Conditions of Carriage" contained in their tariff book which

stated that "dangerous goods", such as petroleum products, are carried at owner's risk

as the defendant are not common carriers. D

Held: In cases in which one party to a contract inserts a term excluding or limiting

liability which would be otherwise his, the question whether or not the other party

was made aware of such clause and accepted it is often a question of fact to be

ascertained from the evidence adduced. Rarely can the question be dealt with as a

preliminary E point.

Case Information

Preliminary objection overruled.

Case referred to. F

1. Thornton v Shoe Lane Parking Ltd [l971] l All ER 686.

[zJDz]Judgment

Chipeta, J.: This is a ruling on a preliminary point. The plaintiffs, M/s Star Service

Station Co. Ltd, have filed a suit against the defendants, the Tanzania Railways G

Corporation in which they claim damages for loss of goods consigned to the

defendants by the plaintiffs for transportation from Dar es Salaam to Shinyanga.

The defendant's preliminary point raised was that based on an exclusion or limiting

clause as to the defendant's liability. The defendants asserted that they can in no way

be H liable by virtue of the "conditions of carriage" contained in their "Tariff Book"

which state that "dangerous goods" as petroleum products (the goods in question in

this case) are carried at "owner's risk" as the defendants are not "common carriers" of

such goods.

To my mind, there are cases in which such preliminary points may be upheld. But I

before such a submission can be upheld, certain

1989 TLR p2

CHIPETA J

principles of law must be carefully examined. The existence of a valid contract A

presupposes that the contracting parties were ad idem as to the terms of the contract

and that each of them willingly accepted those terms of the contract. In cases in

which one party to a contract inserts a term excluding or limiting liability which

would otherwise be his, the question whether or not the other party was made aware

of such B exclusion terms of liability and accepted them is often a question of fact to

be ascertained from the evidence adduced. Such cases may also raise the question as to

whether or not such exclusion terms or clauses render the given contract void for

unreasonableness of the given exclusion clauses. C

In deciding such cases therefore, it is necessary to enquire whether the other party

was given reasonable notice of the exempting or exclusion clauses. As Lord Denning,

M.R. pointed out int he case of Thornton v Shoe Lane Parking Ltd. [l971] I All E.R.

686 at page 105: D

It is no use telling the customer that the ticket is issued subject to some "conditions"

or other without more, for he may reasonably regard "conditions" in general as

merely E regulatory, and not as taking away his right unless the exempting condition

is drawn specifically to his attention (Emphasis added).

Lord Denning, M.R., went on:

I do not pause to inquire whether the exempting condition is void for

unreasonableness. F All I say is that it is so wide and so destructive of rights that the

court should not hold any man bound by it unless it is drawn to his attention in the

most explicit way. In order to give sufficient notice, it would need to be printed in

red ink with a red hand pointing G to it, or something equally startling.

In the present case, in the absence of evidence, the court would not be in a position to

know whether the exempting clauses were drawn to the attention of the plaintiffs in

the H most explicit way or whether or not the defendants are not common carriers

of petroleum products, and so on. All these are questions of fact which can only be

determined from evidence to be adduced by the parties.

For these reasons, the preliminary point fails. The case will proceed to trial and be I

determined on the merits.

Order accordingly.

1989 TLR p3

A