AFRIKA MWAMBOGO v REPUBLIC 1984 TLR 240 (CA)

AFRIKA MWAMBOGO v REPUBLIC 1984 TLR 240 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Nyalali CJ, Makame JJA and Omar JJA

July 10, 1985

CRIMINAL APPEAL 37 OF 1984 H

Flynote

Evidence - Dying declaration - Deceased's persistence in implicating assailant -

Whether may be relied upon.

Evidence - Identification - Conditions of identification not ideal -Unsafe to convict in

the absence of I corroboration.

1984 TLR p241

MAKAME JA

-Headnote

A The appellant was charged with and convicted of murder. In convicting, the trial

judge relied on a dying declaration in which the deceased persistently implicated the

appellant as his assailant. He also relied on identification evidence which was not

corroborated. The high court decision was attacked on appeal.

B Held: (i) The deceased's persistence in implicating the appellant was mere

evidence of consistency and honesty but not of correctness;

(ii) in the circumstances of this case the deceased could have been honestly

mistaken in his C belief that it was the appellant who shot at him;

(iii) since the conditions of identification were not ideal it was unsafe to

convict in the absence of corroborative evidence.

Case Information

D Appeal allowed.

No case referred to.

[zJDz]Judgment

Makame, J.A. read the following judgment of the court. The appellant in this case,

Afrika E Mwambogo was sentenced to suffer death following his conviction for the

murder of a person called Charles Augustino, an official of the Game Department.

The High Court (Chua, J.) was satisfied that it was the appellant who shot the

deceased to death in the early evening of 5th March, 1978.

F The Prosecution case against the appellant was based on a Dying Declaration made

by the deceased and naming Afrika Mwambogo as the assailant. Mr. Bateyunga,

learned counsel, appearing for the appellant before us, has complained that it was

unsafe to rely on the G uncorroborated Dying Declaration in the circumstances.

Representing the Republic Mr. Teemba, learned Senior State Attorney, supported the

conviction.

There was evidence by P.W.1 and P.W.2 that on 5th March, 1978 when they were

travelling in P.W.1's motor vehicle at around 6 p.m. they found a person lying on a

road, injured. They H recognized him to be the deceased who told them that he had

been shot at by Afrika Mwambogo and he asked them to take him to the hospital.

The deceased is said to have continued to implicate the appellant even when he spoke

to P.W.3 Ganja Musura the Village Chairman, and to the Police.

I Mr. Bateyunga has pointed out that it was unsafe to convict on the strength of the

Dying Declaration in the circumstances, in the

1984 TLR p242

MAKAME JA

absence of some corroborative evidence. He submitted that even though the time of

alleged A incident was before sunset the geography of the scene was such that the

opportunity for the deceased to see and identify his assailant was not so good so that

the deceased might have mistaken the killer for the appellant.

Mr. Teemba rightly submitted that it is possible to convict on an uncorroborated

Dying Declaration B where the conditions for identification are ideal. He asserts

that the Deceased's was one such declaration. The time was around 6 p.m., the

deceased was obviously lucid of mind, and the evidence of P.W.2 shows that although

the place was a busy one, one could see between the trees C "as there was ample

space".

Our first concern in this appeal was whether it had really been established that the

Charles Augustino mentioned in this case is really dead. Matters were not as neatly

tied up as they should have been and we indicated, during the hearing of this appeal,

that we were thinking that we might D have to order additional evidence. None of

the two people mentioned in the Postmortem Examination report as having identified

the dead body to the doctor, Chausiku Ramadhani and Esau Nchimbi, nor the

policeman alleged to be present during the autopsy. P.C. Brown, was called to E

testify. We were informed from the bar that none of these people not even the police

officer, could be located. We think that the trial court record should reflect such an

assertion.

We have since looked at the record more closely and we are satisfied that, in the

particular circumstances, there is reasonable certitude that the alleged deceased is

indeed dead. The alleged F assault was in the evening of 6th March and the doctor's

report, on Charles Augustino's dead body, was completed on the following day.

According to PW.1 when he left the deceased in this case in the hands of the Police

the latter said they were taking the deceased to the hospital and just G on the

following day the police told him that the deceased had died. There was evidence

suggestive of the fact that a muzzle loading gun was used to shoot the deceased, while

the foreign bodies found in the dead body examined by the doctor are consistent with

the weapon alleged to H have been used in this case. The region of the body in

which the wounds were found was more or less the same as indicated by the deceased

in this case. The totality of these facts persuades us to hold that it is established that

the said Charles Augustino in this case is indeed dead. We wish to remark, however,

that we find it hard to believe that even the police officer could not be traced. We I

would urge the Prosecution

1984 TLR p243

MAKAME JA

A to endeavour to avoid such lacunae in future which can, in some cases, cause a

miscarriage of justice. So much for the identity of the deceased.

Now whether this deceased was killed by this appellant: We are satisfied in view of

the evidence; B that the Afrika Mwambogo mentioned by the deceased in his Dying

Declaration is the appellant in this case, and none other, and that the deceased and

the appellant knew each other. It is also established that the incident occurred before

dusk, when one could see and recognize a person from a distance. What bothers us is

the geography of the place. The area was richly verdant, and with C trees. One

description, by P.W.1, is that "The bush was tall but the grass was about 3 feet high.

The bush was thick ... The forest was very thick. A person standing about 20 paces

could not be seen".

D The deceased was encumbered with two bottles of milk and, evidently, a gun, and

according to what he allegedly told P.W.3, he was shot at before he looked "at the

direction" and when he did so is when he saw the appellant running away. The

assailant was presumably running away with his back to the appellant, in an area

already described, in circumstances of traumatic surprise. In his E judgment the

learned trial judge correctly pointed out that there was no evidence of the distance

between the assailant and the deceased, no evidence of how long the latter was able

to observe the former, or whether the assailant was on the road or in the bush. The

learned trial judge seemed F influenced by, among other things, the fact that the

appellant and the deceased had known each other before, the sun had not yet set, and

that in 1976 the deceased had caused the appellant's arrest. He noted also that 'there

was a thick bush around the road' but he did not say what the effect of this might

have been.

G Evaluating the evidence on identification, we are respectfully of the view that the

conditions of identification cannot be said to have been ideal. Unlike the learned trial

judge, we are further unable to assert, as he did, that the Post Mortem Report can

make one opine that the deceased was shot at H from the front, with the implied

suggestion that this would have promoted the deceased's chances of recognizing his

assailant.

We think that the deceased was quite honest in implicating the appellant in the dying

Declaration and we agree that he reportedly did so. We are of the carefully

considered view, however, that we I cannot safely discount the very real possibility,

in the circumstance, that the deceased could have been honestly mistaken in his

belief

1984 TLR p244

that it was the appellant who shot at him. The deceased's persistence in implicating

the appellant, A which seems to have heavily influenced both assessors, is thus mere

evidence of consistency, and of honesty even, but not of correctness. This was March,

1978 and only in 1976 the deceased had allegedly accused the appellant of killing a

buffalo and the appellant was arrested. The case was B eventually withdrawn, so the

appellant was not only known by the deceased to be at large but was presumably

believed by the deceased to possess a gun, and able to use it; and have grudges against

the deceased. The appellant's name would in the circumstances naturally rush to the

deceased's mind, once he was shot at in the bush. C

We are satisfied in the absence of corroboration it would be unsafe to uphold the

conviction. We accordingly allow the appeal and consequently quash the conviction,

set aside the sentence and order the appellant's immediate release unless he is

otherwise lawfully in custody. D

Appeal allowed.

1984 TLR p244

E