REPUBLIC. v MOHAMED SHEDAFFA AND THREE OTHERS 1984 TLR 95 (HC)

REPUBLIC. v MOHAMED SHEDAFFA AND THREE OTHERS 1984 TLR 95 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

November 18, 1985

E CRIMINAL SESSIONS CASE 10 OF 1983

Flynote

Evidence - Dying declaration-Accused's failure to reply to deceased's statement

naming him as assailant - F Whether amounts to acknowledgement of the truth of

the dying declaration.

Evidence - Dying declaration - Prerequisites before it can have evidential value.

G Evidence - Dying declaration - Repeated several times - Whether proof of the

truth of its content.

-Headnote

The accused persons were charged with murder. The evidence consisted of a dying

declaration H which the deceased repeated on several occasions identifying the

accused as one of his attackers. The accused did not reply to the statement.

Held: (i) It is possible for a conviction to proceed upon evidence consisting of a dying

declaration I only, although it is a rule of practice that a dying declaration requires

corroboration before it can be acted upon;

1984 TLR p96

SISYA J

(ii) the mere fact that the deceased consistently made precise and substantially

identical A statements on several occasions is not evidence that such statements are

accurate but only that the deceased was consistent in his belief that the accused had

assaulted him.

Case Information

Accused acquitted.

Cases referred to: B

1. Republic v Magiligitia s/o Lumije [1974] LRT n. 57.

2. Rex v Mwinyimbegu s/o Mwinyimvuale [1933] 2 EACA 70.

3. R. v Ramazan Bin Mirandu [1934] 1 EACA 107. C

4. Rex v Mnyovya Bin Msuma [1939] 6 EACA 128.

5. R. v Ally [1971] HCD n 306.

6. Republic v Joseph Ngaikwamo [1977] LRT n.6.

7. Migezo Mibinga v Uganda [1965] E.A. 71.

Chinguwile for the Republic. D

Mbusa for the Accuseds.

[zJDz]Judgment

Sisya, J.: These two accused persons, Mohamed s/o Shedafa (whom I shall hereafter

call the first accused) and Isa s/o Jeremiah alias Nyegere (whom I shall call second

accused) stand jointly E charged with the murder of one Mohamed s/o Abdalla at

Mlalo in the Lushoto District of Tanga Region. Both accused persons denied the truth

of the charge.

It is in evidence on the Prosecution side - which evidence was neither challenged nor

contradicted F and I accepted it as true - that on the morning of third March, 1980,

the deceased was found lying helpless on the ground outside the village pombe club at

Mhelo, Mlalo. He had ghastly cut wounds on the face, neck, right elbow, right

buttock, right palm and right shoulder. He was removed and G taken to the local

dispensary at Mlalo where first aid was administered on him. Thereafter he was

taken to the government hospital, Lushoto, for further treatment. About seven days

later he died in hospital. A postmortem examination was conducted on the body of

the deceased by a Doctor Kombo. The said Dr. Kombo did not give evidence in this

case. He somehow proved to be H "elusive" when it came to service of witness

summons on him. His presence was, eventually, dispensed with after the Court was

satisfied that the same could not be secured without undue delay to the hearing of

this case in which the accused have been on tenterhooks for a little over five solid I

years. The postmortem examination report

1984 TLR p97

SISYA J

A which was prepared and duly signed by the doctor was, however, tendered and

admitted in evidence (P.1). In it the doctor listed the injuries which the deceased

suffered, namely cut wounds, and their respective dimensions. He also mentioned

that some of the cut wounds had gone septic. B The doctor certified in the report

(P.1) that death of the deceased was due to tetanus.

The learned Counsel for both accused, Mr. Mbusa, made an issue out of the last point,

namely the cause of the deceased/s death. According to Mr. Mbusa tetanus may set in

even on a small wound. C In the instant case, argued Mr. Mbusa, we have not been

told which wound was responsible for the setting in of tetanus. With respect, Mr.

Mbusa's argument is self defeating. If, as he appears to concede, a small wound is

capable of letting in tetanus then, a fortiori, a bigger wound, let alone wounds, would

also do the same.

D In the instant case, as aforesaid, the doctor intimated in the postmortem

examination report that some of the cut wounds had already putrefied. It is, to my

mind and in all the circumstances of this case, reasonable to infer that tetanus must

have set in the wounds which were septic. Since the deceased's wounds did not last a

year and a day from the day on which they were presumably E inflicted to the day

of the deceased's death (see Section 205 of the Penal Code) and in the light of

provisions of Section 202 of the Penal Code, on my part, I entertain no doubts

whatsoever on the causality of death in this case, the fact that tetanus set in

notwithstanding. It is, and indeed it must F be deemed to be, the person who

inflicted the cut wounds on the deceased. In short, I am satisfied, and I so find, that

the deceased is dead and that he died a violent death.

The only question for serious and careful consideration by the Court in this case is the

identification of the person or persons who inflicted the injuries from which the

deceased subsequently died. It is G to the Prosecution evidence on this point that I

now turn.

One Saudati d/o Saidi (PW1), wife of the deceased person in this case testified that

one day her husband, the deceased, bade her goodbye and told her that he was

proceeding to a place called H Mikongoloni where there was a festival. Mikongoloni

is within the same Mlalo area but apparently some distance away from the deceased's

house. The deceased did not return home. On the following morning she joined a

search party for the deceased after she had reported the latter's failure to return home

to his (i.e. deceased's) mother, sister and friends. It was during the said I search

when she (PW1), that same morning, saw the deceased lying with injuries outside

Mhelo village pombe club. She asked him what fate

1984 TLR p98

SISYA J

had befallen him. He replied that he had been attacked and assaulted by Isa and

Shedafa. A According to PW1 she did not know who the said Isa and Shedafa were.

However, as a result of the deceased's condemnation she saw members of the search

party apprehend the second accused who was also present and among them. It will be

recalled that the second accused's first name is Isa. B

Evidence was given by the Senior Primary Court Magistrate, Mlalo, Mr. Raphael

Karekamu (PW4) that on the morning of 3rd March, 1989, whilst he was on duty at

the Primary Court, Mlalo, the first accused approached him and complained to him of

having been assaulted by one Mohamed s/o C Abdalla on the previous evening. Mr.

Karekamu listened to the first accused and then he made a formal reception of the

said complaint. As he did so the second accused too arrived. Mr. Karekamu asked

him, i.e. second accused, what problem he had whereupon the second accused replied

that he had gone there merely to see if the first accused whom he (second accused)

described as his friend D had lodged his complaint. According to Mr. Karekamu,

when asked the second accused replied that he, second accused, was present and

witnessed the alleged assault on the first accused by one Mohamed Abdalla on the

previous evening. Mr. Karekamu told the Court that, eventually, he E prepared to

issue the usual process to the said Mohamed Abdalla as an accused person.

Meanwhile he, Mr. Karekamu, received information that a person with serious

injuries had been found. The name of the said injured person and the place where he

was found tallied with those mentioned by the first accused in his complaint. This

aroused his suspicion whereupon he F suspended the issue of the said process to

Mohamed Abdalla, he placed the two persons, i.e. first and second accused under the

custody of a militiaman, and, at his suggestion, they all set off for the scene of both

alleged incidents. After walking a few hundred paces they met a group of persons G

which approached from the opposite direction. The said group carried with them an

injured person on a hammock. The injured person turned out to be the deceased in

this case. Mr. Karekamu told the Court that he stopped the group and he then asked

the deceased as to who had inflicted the injuries on him. Again, the deceased

mentioned these two accused persons. In a deliberate exercise H to test if the

deceased was in control of his faculties Mr. Karekamu asked him if he could point a

finger at his alleged assailants. Without hesitation the deceased pointed at these two

accused persons and added that the bone of contention was soup. According to Mr.

Karekamu neither I accused said anything: However, they looked "sorrowful and

confused". Since

1984 TLR p99

SISYA J

A the deceased was in a critical condition Mr. Karekamu desisted from asking him

further questions. He was then carried to the local dispensary where he was given

first aid before he was referred to the government hospital, Lushoto, for further

treatment. Meanwhile both accused were handcuffed and B taken to the Police

station, Lushoto. They were at first charged with doing harm to the deceased. Later,

when the deceased died, the charge was amended to that of murder.

It is in evidence that while at the dispensary, Mlalo, the deceased was asked again as

to who inured C him and he condemned these accused persons.

One of the witnesses who gave evidence on the Prosecution side is the deceased's

father, Abdalla s/o Sheshunda (PW5). He swore that he accompanied the deceased to

Lushoto government D hospital and he remained there until the deceased's death.

Before he died PW5 asked the deceased on two different occasions to name his

assailants. On both occasions the deceased mentioned the accused persons. PW5 told

the Court that the deceased alleged that he (deceased) had ordered some soup from

the first accused. After drinking it he gave the first accused a Shs.20/= currency E

note and asked for his balance. The first accused, however, did not want to release it.

Instead the second accused came and caught hold of his hands and tackled him to the

ground. Meanwhile the first accused cut him with a panga.

F Two witnesses Shabani Msagati (PW2) and Habibu Hamisi (PW3) who described

themselves as friends of the deceased gave evidence in the case. They told the Court

that they were with the deceased on that fateful evening. According to Shabani

(PW2) the deceased was drunk to the extent that he staggered as he walked. Habibu,

however, denied that the deceased was drunk on the G material evening. Shabani

and Habibu told the Court that the two of them and the deceased stopped at Mhelo

village pombe club and they entered the hut in which the first accused used to boil

and sell some soup. As they did on many other minor details, Shabani and Habibu

differed on H the original cause for their stop at the first accused's soup parlour.

Shabani said that they did so that he could pay for the soup which he drank earlier

during the day. Habibu, however, said that they actually stopped because the

deceased wanted to drink some soup. Habibu told the Court that the deceased went

ahead and ordered the soup. He was served the same and he drank it. Thereafter I

the first accused demanded payment. The deceased replied that he would pay. To

this the first accused reported that he

1984 TLR p100

SISYA J

wanted to be paid with haste. He, first accused, abused the deceased as well by

saying, "Kumanina A we".

According to Shabani as he was effecting payment the deceased suddenly began to

abuse the first accused by saying, "Huna adabu". Both Shabani and Habibu are agreed

that the deceased and the first accused then engaged each other in a physical

confrontation. The details, again, however, B vary. Shabani stated in his evidence

that the deceased pulled the first accused outside the hut and the two of them

exchanged blows. In the course of the fight the first accused complained that the

deceased bit his finger. Habibu, on the other hand, swore that the deceased and the

first accused C only held each other and this took place inside the hut. He and

Shabani intervened in time as the two pugilists prepared to hit each other with their

hands.

Both Shabani and Habibu told the Court that after separating the deceased and the

first accused the deceased left and disappeared. Efforts to trace the deceased in and

around the pombe club proved D fruitless. Eventually, believing that the deceased

had gone ahead Shabani and Habibu proceeded to their respective houses. Both these

two witnesses told the Court that the deceased was all right when they last saw him

that evening. Next time they saw him was on the following morning, with E

injuries. They too heard the deceased mention these two accused as the persons who

injured him. They also swore that the second accused was not present during the

fracas in the first accused's hut.

Both accused gave their statements in defence upon affirmation. None of them called

witnesses. F The first accused's story as to what happened in his hut on the material

night tallies with what Shabani told the Court in his evidence. According to him,

however, the abusive words which the deceased addressed to him were, "Kuma

maayo. Mboro yake ndefu" and not only "Huna adabu" as G Shabani stated. The

first accused told the Court that he was hurt in the fight because the deceased

overpowered and hit him. Later he went to the local dispensary for treatment.

The first accused also conceded that on the following morning he went to the

Primary Court, Mlalo, and lodged a complaint against the deceased. He did this to the

magistrate, PW4. The first accused H denied that the second accused followed him

at the Primary Court. He conceded that he was present when Mr. Karekamu

questioned the deceased on the way as to who his assailants were and that the

deceased then mentioned him. The first accused, however, denied that the second

accused I was mentioned as well. According to the

1984 TLR p101

SISYA J

A first accused he reminded the deceased, immediately after the latter had

condemned him, that he (deceased) was all right when they parted on the previous

evening. The magistrate, PW4, however, stopped the deceased from making a

response.

B The second accused too raised the defence of denial. He denied that he followed

the first accused to the Primary Court. According to him he was simply called by the

Ward Secretary who then asked him what took place at the village pombe club on the

previous evening. He expressed ignorance because he finished selling pombe quite

early on the material evening. The second C accused also denied that the deceased

ever mentioned him as one of the assailants.

Neither accused called any witnesses.

I summed up the case to the assessors. I reminded them that the only evidence in the

instant case implicating these two accused persons is what the deceased himself is

alleged to have repeatedly D stated to various persons including a magistrate, Mr.

Karekamu (PW4). I told them that the said statement by the deceased, in so far as it

related to the cause or to circumstances surrounding his death, was admissible in

evidence. I, however, warned them that established case law demands that E such

statements by dead persons should be corroborated by some other independent

evidence before they can be acted upon. The first assessor advised that the two

accused are not guilty whereas the second assessor found both accused guilty as

charged and she advised that they should be convicted accordingly. The ball is now

in my Court and I, necessarily, proceed to play it.

F It is conceded by both learned Counsel that the only evidence implicating these

two accused is the deceased's dying declaration which he repeated to several persons

including a magistrate, PW4. In it the deceased persistently mentioned these two

accused persons as being the persons who G launched a panga attack on him.

Evidence on this point was given by wife of the deceased (PW1), the two friends of

the deceased (PW2 and PW3), the Senior Primary Court Magistrate (PW4) and the

deceased's father (PW5). The second accused, as has been mentioned in the synopsis

of the evidence hereinabove, denied that the deceased ever mentioned him. He was

supported in this by H his co-accused, i.e. the first accused. If the accused were to

be believed on this point then it means that the second accused was arrested and

charged in this case for absolutely no reason at all. Prima facie this sounds ridiculous.

I In his statement in his own defence the second accused told the Court that

residents of Mhelo village hated him because of his appointment in the Mhelo village

pombe club. The second accused

1984 TLR p102

SISYA J

himself is not a native of Mhelo village. In saying this the second accused was trying

to A demonstrate to the Court that Prosecution witnesses would therefore be willing

to lie against him. I am not in the least persuaded by this proposition. At any rate the

magistrate, PW4, is not a resident of Mhelo village. In addition to this he is a

completely independent witness in this case with B absolutely nothing to gain or

lose in this matter. I accept him as a witness of truth, as I also do PW1, PW2, PW3

and PW5 on this point.

In the case of the Republic v Magiligita s/o Lumije [1974] LRT n 57 it was held by

Mfalila J., inter alia, that one of the two tests which a dying declaration must satisfy

before it can have any C evidential value is that the said dying declaration was in

fact made. In the instant case I am satisfied on the evidence adduced, and I so find,

that the deceased did make the dying declaration and further that in it the deceased

condemned these two accused. By denying that the second accused too was

mentioned both first and second accused persons lied in open Court. D

In the case of Rex v Mwinyimbegu s/o Mwinyimvuale and another (1933) 2 E.A.C.A.

70 at page 71 the Court of Appeal for Eastern Africa stated, categorically, that it was

not prepared to rule that in no circumstances can a conviction proceed upon evidence

consisting of a dying declaration only. E By necessary implication a conviction may,

therefore, be founded solely on a dying declaration. The same Court, however,

warned in the case of R v Ramazan bin Mirandu (1934) 1 EACA 107, that too great

value should not always be attached to dying statements, and they should be received

with F caution, and, in the case of Rex v Mnyovya bin Msuma (1939) 6 E.A.C.A. 128,

that a careful direction must always be given by the trial judge as to the nature of

evidence of dying statements and the caution with which it should be received.

Concerning dying declarations the Court of Appeal for Eastern Africa quoted a

passage from Field on Evidence, Seventh Edition, which is more instructive. G It

reads:

"The caution with which this kind of testimony should be received has often

been commented upon. The test of cross-examination may be wholly wanting; and ...

the particulars of the violence may have occurred under H circumstances of

confusion and surprise calculated to prevent their being accurately observed. The

deceased may have stated his inferences from facts concerning which he may have

drawn a wrong conclusion, I or he may have omitted important particulars, from not

having his intention called to them".

1984 TLR p103

SISYA J

A The current position is that corroboration is required as a matter of practice before

a dying declaration can be acted upon as proof of the content therein - see R. v Ally

[1971] HCD n 306; R.v Magiligita s/o Lumije, supra; and Republic v Joseph

Ngaikwamo [1977] LRT n.6.

B In arguing out the case before me the learned State Attorney, Miss Chinguwile,

submitted that corroboration of the deceased's dying declaration in this instance may

be found from the fact that both accused remained silent when the deceased, before

whom they had been brought, not only C mentioned but also pointed at them in his

condemnation. In support of her argument Miss Chinguwile quoted the Ugandan

case of Migezo Mibinga v Uganda [1965] E.A. 71. In that case the appellant was

convicted of manslaughter and the only evidence implicating him, as is the position

in D this instance, consisted of repeated statements made by the deceased to several

persons soon after he was discovered lying injured that it was the appellant who had

beaten him. What happened was that the appellant was brought to where the

deceased was lying, the deceased pointing at the appellant had said ".... You are the

person who has beaten me" and the appellant made no reply. E The learned trial

judge who happened to be no lesser a person than the Chief Justice of Uganda

himself, Sir Udo Udoma, considered with care the circumstances under which the

statements were made and looked for corroboration which he found in the conduct of

the appellant when the latter F remained mute after being accused by the deceased

in the presence of others of having beaten him. The appellant appealed to the Court

of Appeal for Eastern Africa but his appeal was dismissed. The Court of Appeal held,

inter alia, that "the probative force of a statement as to the cause of his death by a

person since deceased is not enhanced by its being made in the presence of the

accused unless G by his conduct, demeanor, etc., the accused has acknowledged its

truth and consequently the trial judge should expressly state whether he is satisfied or

not that there was such acknowledgement".

H In the present case I am satisfied, on the evidence adduced, that the deceased was

in full control of his mental faculties when he made repeated statements that these

accused persons were the ones who injured him, including the one which he made in

the presence and within the hearing of the accused persons. As aforesaid the first

accused swore that he querried the deceased. This is I diametrically opposed to what

the Senior Primary Court Magistrate, Mr. Karekamu (PW4) said. One issue here is

purely factual and it rests squarely on

1984 TLR p104

SISYA J

the question of credibility. Without any hesitation I choose to believe Mr. Karekamu

on this point. A As a magistrate his duty in this case is purely to assist the Court in

ascertaining the facts. In addition to this nothing has been suggested, let alone

established, nor has any fact established itself to show why Mr. Karekamu should

deliberately lie and seek to implicate these accused persons in this matter. Mr.

Karekamu swore that neither accused made any reply when the deceased B

condemned and pointed at them. I find this as a fact. By claiming that he actually did

try to challenge the deceased the first accused, again, lied in open Court. The story,

however, does not C end there. According to Mr. Karekamu himself the accused

persons were not given an opportunity to question the deceased on their

condemnation. It is common ground that the deceased was, at the material time, in a

critical condition. Nevertheless, having seen the importance of testing the deceased's

faculties Mr. Karekamu should also have perceived the importance D

of giving the accused an opportunity of putting a few questions to the deceased. As

afore intimated this he failed to do.

Mr. Karekamu, however, pointed out that both accused appeared "sorrowful and

confused" when the deceased named them as his assailants. I have already found that

Mr. Karekamu is an honest E and truthful witness. I am, therefore, prepared to act

on his evidence without reservations. That being the case can it, positively, be

gainsaid that the accused remained mute simply because of sorrow and confusion at

being named and not necessarily as acknowledgement of the truth of the dying

declaration? On my part, in all the circumstances of this case - particularly the fact

that the F accused were not given an opportunity, albeit for a short time, to question

the deceased - I entertain grave doubts as to whether or not by failing to make a reply

these two accused persons acknowledged the truth of the dying declaration. The law

demands that every doubt must be G resolved in favour of the accused. It is,

therefore open to me to find, which I do, that the accused persons' failure to reply to

the deceased's statement in the instant case was not or cannot be taken as

acknowledgement of its truth. The case of Migezo Mibinga (supra) can thus be

distinguished H from the instant one on this ground.

I have considered the accuseds' deliberate lies in open Court. Clearly they are a

manifestation of the weakness of the defence case. The position in law is that a

conviction should not be grounded on the weakness of the defence case. Can't the lies

provide corroborative evidence of the dying I declaration in this case? I have

1984 TLR p105

SISYA J

A considered this question as conscientiously as I could and I have come to the

conclusion that they may and they may not. I am satisfied that the accused could

have chosen to lie out of sheer stupidity having realised that everyone who came

forward stated having heard the deceased B mention these accused as his assailants.

But though consistency of reiterated statements is undoubtedly some ground,

generally speaking for thinking that the person who makes them believes in their

truth, it is no guarantee of accuracy. This is a statement of law but most probably

beyond the knowledge of these accused persons.

C In the instant case the dying declaration must be received by the Court with

greatest caution. This is because the attack on the deceased was made in the night

which according to Shabani (PW2) was a dark night. The circumstances in which the

incident took place as described by the deceased D to his father, PW5, differed from

what the supposed eye witnesses, i.e. PW2 and PW3, stated. Both PW2 and PW3

swore that there was a physical engagement between

the first accused and the deceased on the material evening and that the latter emerged

unscathed. If so then the only reasonable inference to be drawn from the evidence of

PW2 and PW3 is that the E attack in which the deceased was injured must have

taken place in a subsequent incident and in their absence. There is absolutely no

evidence whatsoever as to how the deceased managed to see and identify the first and

second accused and that the incident did not take place in the same night and in

darkness and in circumstances of confusion.

F Indeed, on the evidence of PW2 and PW3 and on the first accused's own

statement in defence one may reasonably infer a motive on the part of the first

accused to attack the deceased. The first accused was, admittedly, overwhelmed in

the first encounter. At the same time the said first G encounter, per se, could also

have acted, as a basis for the deceased's inference that the person who attacked him

suddenly and in the dark that same night was the first accused. On the evidence on

record it cannot be stated with moral certainty and to the exclusion of every

reasonable doubt that the deceased could not have erred in so doing.

H Suffice to say that after considering the evidence which has been adduced in this

case as carefully as I could I find that it will be dangerous to convict the accused

persons. I find them not guilty and I acquit them of the offence charged. Unless they

are being held for some other lawful I purposes it is hereby directed that both first

and second accused be set at liberty forthwith.

Accuseds acquitted.

1984 TLR p106

A