USI ATHUMANI MATU v REPUBLIC 1988 TLR 78 (CA)

 USI ATHUMANI MATU v REPUBLIC 1988 TLR 78 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Omar JJA

23rd June, 1988 B

Flynote

Criminal Practice and Procedure - Evidence - Assessment of - Judge departs from his

assessors in assessing evidence - What judge should do - Baland Singh rule of practice.

Evidence - Assessment of - Judge departs from his assessors in assessing evidence - C

What judge should do - Baland Singh rule of practice.

-Headnote

The appellant was charged with and convicted of murder. After close of the hearing

of D the case one assessor opined that the appellant was not guilty of murder. The

second assessor was of the view that the evidence established the offence of

manslaughter. The learned judge, on the evidence, was convinced that the appellant

was guilty of murder as charged. The judge recorded his reasons for departing from

his assessors in assessing the evidence and convicted the appellant as charged. E

On appeal the appellant charged that the judge erred in departing from his assessors

in assessing the evidence.

Held: (i) The learned trial judge in this case complied with the Baland Singh rule of F

practice and that he gave good and convincing reasons for reaching a different

conclusion from those of his assessors;

(ii) the proved facts showed that the offence of murder was established.

Case Information

Appeal dismissed. G

Cases referred to:

1. Charles Segesela v R. Crim. app. No. 13 of 1973 Court of Appeal for E.

Africa (Unreported). H

2. Baland Singh vR. (1954) 21 EACA 209.

Mneney for the appellant

Sengugi for the Republic

[zJDz]Judgment

Makame, Mustafa, and Omar, JJ.A.: The appellant Usi Athumani Matu was I

sentenced to suffer death upon his conviction

1988 TLR p79

MAKAME JJA, MUSTAFA JJA AND OMAR JJA

for murder by the High Court, Kyando, J., sitting at Mtwara. He is appealing against

that A decision and Mrs. Mneney, learned Counsel, appeared on his behalf before us.

Mr. Senguji, learned State Attorney who represented the Republic, resisted the

appeal.

The appellant was at the material time a school teacher at Ngorongoro Primary

School B in Newala District. On 1st February, 1983, at a pombe shop he saw the

deceased who had stopped for the night at the village, Kitama Cha Pili, on his way to

some other village to go and purchase some fish. The appellant conversed with the

deceased before the appellant left the place, only to return after a brief while with the

Village Chairman C who told the deceased that he was under arrest. The appellant

said that the deceased had stolen his, that is the appellant's, clothes. The deceased was

taken to the Chairman's house where it was decided that he should be escorted to the

nearby Police Station at Nyamamba.

P.W.3 Salumu Nayava, a cousin of the deceased and who was travelling with the D

deceased for the fish-buying, told the trial court that after they had covered only

about three hundred metres from the Chairman's home the appellant, who was about

five paces from P.W.3, cried out "Thief! Thief! Thief!" and started hitting the deceased

several times on the head with a stick the thickness of P.W.3's wrist. A crowd of

people E came in response to the alarm raised by the appellant. P.W.3 was clear that

this was after the appellant had started assaulting the deceased. There was a general

pushing around and a great deal of commotion. The crowd moved on towards the

Police Station and when the appellant hit the deceased again with the stick, again on

the head, the F deceased collapsed. The crowd then dispersed and the appellant also

disappeared. The appellant conceded in his evidence that he went away from the

scene, but he said that this was because he went back to the Chairman's house to go

and fetch a letter to the Police. Another person who said he was present when the

appellant attacked the G deceased was P.W.4, Hassani Nammenge, the deceased's

brother-in-law. His testimony was not identical with that of P.W.3 and this fact

formed the basis of an attack by Mr. Kisaka, learned Defence Counsel at the trial. The

learned trial judge dealt with H this matter in the course of his judgment and was

satisfied that the differences between the testimony of P.W.3 and that of P.W.4 were

the type one would ordinarily find when two people relate an incident in

circumstances like those which obtained in this particular case, and that they did not

detract from the reliability of the Prosecution case as a whole. I

Mrs. Mneney argued two grounds of appeal before us. She

1988 TLR p80

MAKAME JJA, MUSTAFA JJA AND OMAR JJA

submitted that the conditions for identifying the appellant as the assailant were far

from A ideal. Her second argument was that, in any event, there was no evidence

from which to hold that the assault upon the deceased was committed with malice

aforethought, so that at most the appellant should have been found guilty of

Manslaugter, and not of murder. B

Mr. Senguji responded by saying that the offence of murder had been proved: Not

only was the appellant the first person to hit the deceased but he was also the person

who raised the alarm which made the crowd of people converge on the scene and

participate in the assault. C

The learned trial judge closely considered the evidence given by the appellant and

was satisfied that it did not stand to scrutiny. As the learned trial judge remarked, and

we respectfully agree, "Under cross-examination he (the appellant) was completely D

shattered". Studying the evidence closely as we did, we came out with the same

impression ourselves. The appellant's story was that the deceased was injured when

the crowd arrived. He, the appellant did not cry out "Thief" and did not take part in

the assault. The appellant's version of the facts postulates the presence of two crowds

with E opposing intentions: There was this crowd which attacked in a bid to release

the deceased and for that reason this crowd started by assaulting the militiaman in

whose custody the deceased was. We wish to pause here and observe that if that was

so the militiaman would have been a very useful witness for the defence, but he was

not called. F There was also a second crowd, which attacked the deceased. The

appellant broke down in cross-examination as to which crowd came from where and

did what. Now he says that the people who came from the houses lining the route

were the ones who were intent upon rescuing the deceased. Then he says the people

with whom the appellant and G others had left the Chairman's house were the ones

who wanted to save the deceased. The ones from the houses along the route were the

ones who wanted to beat him. The learned trial judge was satisfied that the appellant

contradicted himself because he was telling lies. The learned trial judge quite properly

went on to direct himself that the H appellant's lies could not however form the sole

basis for his being convicted. The learned judge was, satisfied, rather, on the strength

of the evidence by the Prosecution that appellant had indeed assaulted the deceased

as alleged.

None of the two gentlemen assessors who sat with the learned High Court judge

advised I that the appellant was guilty of Murder.

1988 TLR p81

MAKAME JJA, MUSTAFA JJA AND OMAR JJA

One gentleman assessor found the appellant Not Guilty of any offence at all, while

the A second gentleman assessor opined that the appellant was guilty of

Manslaughter only. In effect therefore the learned trial judge disagreed with both his

assessors. In such a situation it is a rules of practice for the judge to state his reasons

for disagreeing with the assessors (See Charles Segesela v R. Criminal Appeal No. 13

of 1973 decided by the B Court of Appeal for East Africa). Especially where the

assessors have given reasonable grounds for their opinions it is desirable that the

judge should clearly record his reasons for differing with the assessors. (See Baland

Singh v R. (1954) 21 C E.A.C.A. 209). In the present case the first gentleman assessor

was bothered by the fact that P.W.4 had contradicted P.W.3 as to whether there was

a little moonlight or no moonlight at all; and whether the two witnessess merely

heard the appellant assaulting the deceased or actually saw him do so. On his part the

second gantleman assessor was D satisfied that the appellant did assault the deceased

and that he was the first person to do so. Not only that, but also that it was the

appellant's cries of 'Thief' which summoned the crowd to the scene, and that the

villagers also beat up the deceased. He expressed the opinion that although the

appellant was the one who assaulted the deceased first, and E was also the one who

caused the others to assault the deceased, the appellant did not kill the deceased

'intentionally'. He found the appellant guilty of Manslaugher only.

We are satisfied that the learned trial judge in this case complied with the Baland

Singh F rule of practice and that he gave good and convincing reasons for reaching a

different conclusion from those of his assessors. He explained why he was satisfied

that the appellant assaulted the deceased as alleged and we agree with his assessement

of the evidence on this. As to whether the appellant was guilty of the offence of

Murder as G charged, and not of Manslaughter only, we are of the view that the

proved facts showed that the offence of Murder was established. The appellant hit the

deceased hard on the head several times with a stick and continued the treatment

until the deceased collapsed. The appellant was teaching in the village and he must

have known that his very H unnecessary alarm would in the circumstances be a

clarion call to the villagers to get incited into an unrestrained attack on the poor

deceased who was not resisting being taken to the Police Station. The appellant

invited the dangerous violence on the deceased and he initiated that violence. We are

satisfied that it was the violence which I caused the intracranial haemorrhage which

resulted in the

1988 TLR p82

deceased's death. The High Court decision was sound and the appeal against it is A

consequently dismissed.

Appeal dismissed.

1988 TLR p82

B