Joseph s/o Kamiliango & 5 Others v Republic 1983 Tlr 186 (Ca)

JOSEPH s/o KAMILIANGO & 5 OTHERS v REPUBLIC 1983 TLR 186 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

May 8, 1984

CRIMINAL APPEAL 47 OF 1982

Flynote

Evidence - Circumstantial - Mere knowledge by the accused about the background and circumstances of the death and subsequent discovery of the body of the deceased - Whether sufficient circumstantial evidence to support conviction.

Criminal Law - Provocation - Defence of provocation by witchcraft - Firm belief that the deceased was practising witchcraft - Killing calculated with cool minds and in full possession of their faculties.

-Headnote

The appellants were jointly charged in the High Court at Bukoba on information for the F offence of murder contrary to section 196 of the Penal Code. They were charged together with one Joseph Kamiliango who died before this appeal could be heard and his appeal is thus abated by operation of law. The grounds of appeal are based on the defence of provocation and the insufficiency of circumstantial evidence to support the conviction.

Held: 

(i) The mere knowledge about the background and circumstances of the death of the deceased, coupled with the discovery of the dead body of the deceased did not constitute sufficient circumstantial evidence to support a conviction of murder; 

(ii) since the appellants did not act suddenly and as their conduct clearly showed that they had calculated their move with cool minds and in full possession of their faculties, the defence of provocation by witchcraft cannot be availed to them.

Case Information

Order accordingly. A

No case referred to.

S.R. Kahangwa for the appellants.

M.M.K. Mtaki for the respondent.

[zJDz]Judgment

Nyalali, C.J., read the following considered judgment of the court: The appellants in this case, namely, Deogratias s/o Katabazi, Yolanda d/o Adolf, Kambalula d/o Adolf, Rozalia d/o Adolf and Steria d/o Adolf were jointly charged in the High Court at Bukoba on information for the offence of murder contrary to section 196 of the Penal Code; and they appeared as the third, sixth, seventh, eighth and ninth accused persons, respectively. They were charged together with one Joseph Kamiliango, who was the first accused at the trial, and Msafiri Abdallah, who was the second accused.

The said Msafiri Abdallah was acquitted at the trial but the said Joseph Kamiliango was convicted together with the appellants as charged. The convicts were all aggrieved by the convictions and hence this appeal to this court. Unfortunately, the first accused, that is E Joseph Kamiliago died before this appeal could be heard and his appeal is thus abated by operation of law. Initially the information filed in the High Court included two other persons, that is, Kafukulu Rwameluka and Rubazibwa Bacheluka, in respect of whom a Nolle Prosequi was entered by the Director of Public Prosecution before the commencement of the trial. They appeared as the fourth and fifth accused persons, respectively.

The remaining appellants, that is, the third, sixth, seventh, eighth and ninth accused persons were represented in this appeal by Mr. Kahangwa, learned advocate; whereas the Republic was represented by Mr. Mtaki, learned State Attorney.

It is common ground that one Martina Adolf, who was the elder sister of accused Nos. 6,7,8 and 9, was killed during the night of the 24th/25th December, 1978, in Kazilantemwa village, Ikuza Island of Lake Victoria, within Muleba district. All the remaining appellants and the deceased were residents of that village. It is undisputed that some time in December 1978 before the death of the deceased, accused Nos. 6,7,8 and 9 travelled to Kagunza Village on the mainland and visited the first accused, that is, Joseph Kamiliango who has died before the commencement of this appeal. The said I Joseph Kamiliango was a traditional medicineman and the four sisters travelled back with him to Ikuza Island. They were accompanied by one Msafiri Abdallah, who was the second accused at the trial, and who was acquitted by the High Court. Furthermore, it is undisputed that the dead body of Martina Adolf was discovered by a search party of villagers after she had been reported missing by her husband. The discovery was made on the 26th December, 1978, near the homestead and in the banana grove of the third and seventh accused who were husband and wife, respectively. In consequence of this discovery and as a result of interrogations of the third accused by the villagers, all the accused persons were apprehended by the villagers that same day. The dead body had a cut wound on the back of the head. Her left breast, vagina and two fingers of her left hand were cut off and missing. As a result of interrogations, the first accused, whose appeal has abated, led a group of village militia and others to the home of one Alois Fabrian, where the first and second accused had been staying. There the missing breast, vagina and one finger were recovered. It is further undisputed that the police were informed and they came to collect the accused persons and the dead body to help the police in their investigations. Subsequently, the remains of the deceased were viewed by Dr. Twahibu Musoke (P.W.5) on the shores of Lake Victoria on the 30th December, 1978.

Accused No.1, whose appeal has abated, together with accused No. 6,7,8 and 9 were taken before the Justice of the Peace P.W.4) to whom they made extrajudicial statements concerning the death of the said Martina Adolf.

It is the prosecution's argument that accused Nos. 6,7,8 and 9 believed that the deceased was a witch who had killed, by witchcraft, many members of their family.

They also believed that she had bewitched their father who was seriously ill at the time when they decided to pay the first accused a visit. To prevent the deceased from wiping out the entire family, the four sisters, who appeared in this appeal, sought the assistance of the first accused, who agreed to kill the deceased on payment of a fee of shs 800/= out of which shs. 100/= were paid in advance and the balance was to be paid upon accomplishment of the undertaking. It is part of the prosecution's case that pursuant to this agreement, the first accused killed the deceased and removed the parts of the body which were found missing.

The defence of accused Nos. 3,6,7 8 and 9 consisted in a denial of the prosecution case.

The first point for consideration and decision in this case is whether the accused persons, who are the appellants in this case, participated in killing the deceased. The learned trial judge considered the four sisters together as their defence and the evidence led by the prosecution against A them is the same for each of them. We propose to adopt the same approach by dealing with the third accused first and concluding with the four sisters of the deceased as a group.

In convicting the third accused the learned trial judge stated:

The evidential position then with regard to the 3rd accused is this. He mentioned the 1st accused as the participant in the killing and even knew where he could be traced, the 1st accused has been proved to have indeed taken part in the killing. Both the 1st accused the C proved killer and the deceased were at the home of the 3rd accused drinking pombe during the evening when the deceased was killed, her body was found in the shamba belonging to the 3rd accused. Since one of the killers was a member of the drinking party at the house of the 3rd accused, then the killing must have taken place in or near the house and the body D taken into the shamba. That killing in or near his house that evening by one of his guests against his own sister in law could not have been carried out without the knowledge of the 3rd accused. The reasons he gave at the scene for the killing of the deceased, tallied with the reasons given later in the extra-judicial statements by the sisters. This proved that the 3rd accused was an insider and party to this killing which took place in or near his house.

Mr. Kahangwa has strongly attacked the finding and views of the learned trial judge by submitting in effect that mere knowledge by the third accused about the background and circumstances of the death of the deceased, are not sufficient circumstantial evidence to support the conviction of the third accused. We respectfully agree with the submissions made by the learned advocate. Those circumstances can be given an G innocent explanation. Firstly, the third accused could have acquired his detailed knowledge of the relevant facts by virtue of his being a member of the family which believed that the deceased was bewitching them.

Secondly, the deceased could have been killed without the participation of the third accused near the homestead after she H had left the drinking party on her way back home. For these reasons we are satisfied that the conviction of the third accused cannot be sustained and we are bound to interfere with it. But first, we must deal with the case of the four sisters. Each of them made an extrajudicial statement to the justice of the peace (P.W.4) which amounts to a confession to the effect that they hired the first accused to kill the deceased to prevent her from eliminating the whole family by witchcraft. They paid an advance of shs. 100/= to the first accused and the balance of shs. 700/= was to be paid after the deceased had been killed. The extra-judicial statement made by the first accused also amounted to a confession by him which confirmed what the four sisters B stated in their own confessions.

Further confirmation of the confession made by each of the sisters and the first accused was given by P.W.7, Jacob Iliharugo, who lived in the same village as the first accused. He testified about seeing the four sisters paying the first accused a visit some time in C December, 1978.

Mr. Kahangwa, learned advocate for the appellants, has submitted that the four sisters acted under provocation arising out of their firm belief that the deceased was practising witchcraft and was determined to finish them off. But as Mr. Kahangwa conceded, it is quite clear on the evidence that the four sisters did not act suddenly but they deliberated upon their move at a meeting held to consider their position. They then travelled across the lake from their island village to the mainland where they negotiated with the first accused. The conduct of these four sisters clearly shows that they had E calculated their move with cool minds and in full possession of their faculties. The defence of provocation by witchcraft is thus not available to this "gang of four". They were a party to the killing of the deceased by hiring the killer.

The same evidence also supports the finding of malice aforethought on their part. For these reasons concerning the case against accused Nos. 6,7,8 and 9 and the reasons concerning the third accused, we hereby dismiss in their entirely the appeals of Yolanda Adolf, Kambalula Adolf, Rozaria Adolf and Steria Adolf who are accused Nos. 6,7,8 G and 9, respectively; but we allow the appeal of Deogratius Katabazi, that is, the third accused, by quashing his conviction, setting aside his sentence and directing that he be released from prison forthwith unless detained therein for some other lawful cause.

Order accordingly.

1983 TLR p190

A