Makame, Mustafa, and Omar, JJ.A.: The appellant Usi Athumani Matu was I sentenced to suffer death upon his conviction
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
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 Happellant'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.
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 Dsatisfied 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
deceased's death. The High Court decision was sound and the appeal against it is A consequently dismissed.