Court name
Court of Appeal of Tanzania

Yohanis Msigwa vs Republic () [1990] TZCA 24 (01 September 1990);

Law report citations
1990 TLR 148 (TZCA)
Media neutral citation
[1990] TZCA 24

Makame, J.A.: In November 1983, at a village called Maliwa in Makete District, Iringa Region, a man known as G Kibweri Msingwa was severely cut five times: on the face, the ears, the neck and the chest. According to the postmortem examination report the deceased died of these injuries and the consequent haemorrhage. The High Court sitting at Njombe (Mwaikasu, J) was satisfied that the appellant Yohanis Msigwa was the person who H mortally wounded the deceased and that he did so with malice aforethought. The appellant was accordingly convicted for murder and condemned to death. He is appealing to us against the decision and in the effort he is being advocated for by Mwakilasa, learned counsel. In resistance of the appeal Mr. Sengwaji, learned Senior State I Attorney, argued on behalf of the Republic.
The appellant and the deceased were cousins and PW1 Teresia

Malube, the star witness, was the wife of the deceased. On the fateful day, according to PW1, the appellant A accosted PW1 in the village and asked her the whereabouts of her husband. He explained why he was looking for the deceased: A local medicine man had told him, the appellant, that the deceased was a wizard so he wanted to talk things over with the deceased so as to avoid antagonism. This conversation was allegedly in the present of one B Lubaso, a brother of the deceased, who was unhappily dead by the time the case came up for hearing so he was not available to testify. PW1 told the appellant where the deceased was at an abandoned house which they were using as their granary, and from which she had just come. When PW1 was going back to the abandoned house the C appellant walked past her and went to where the deceased was. He stabbed the deceased in the full view of PW1 who was a few meters from them. In her early report to both PW3 Feliski Sanga, a woman whose house was some thirty paces away, and PW4 Enock Sanga the Village Secretary, PW. 1 implicated the appellant. We need D not here comment on the confining of names said to have been introduced by PW3 in her statement to the Police for that was resolved by the trail Court and is no longer the subject matter of controversy, except we desire to point out that it is not quite the thing to do to make use of the alleged statement by PW3 as did the learned trial judge, E without such statement being tendered in evidence. Be it as it may, the appellant was arrested at Makambako, according to him on 29th December, 1983 and was eventually tried and found guilty of murder as aforesaid.
Mr. Mwakilasa urged two grounds of appeal. The first that the evidence adduced was not enough to base a F conviction of murder on, and secondly that the appellants alibi should have been accepted. Mr. Mwakilasa submitted that as PW1 was the only eye witness, her evidence required corroboration as a matter of prudence for a crime so grave. He suggested that PW1 testified falsely against the appellant because the appellant had put PW1 his daughter, his niece, in the family way. For good measure Mr. Mwakilasa further suggested that it is possible that G PW1 herself was the deceased's killer. Mr. Mwakilasa also wonders why, if PW2.'s story were true, the appellant was not arrested until some seven weeks later, whereas Makambako, where he was picked up by the Police, is just in the next door district of Njombe. Mr. Songwaji responded to this: He submitted that PW. 1 knew the appellant H before and the appellant conceded as much. PW1 said she knew of no grudges, and the pregnancy story was not put to PW1 for her to admit or deny; in any event the appellant says the matter was discussed and settled. As for the delay in arresting the appellant Mr. Dengwaji surmised that it I

A could well have been because the appellant was a pottery businessman at Makambako with no firm address.
As aforesaid, Mr. Mwakilasa also complained about his client's alibi. He submitted that although no notice of it was given as required of the Defence, the Prosecution was aware of its existence by virtue of the fact that the appellant B told the investigating officer, PW5, Inspector Benjamini Mwakatika, that he was not involved in the murder, that is; an alibi was implicit in the utterance.
We are able to say at the outset, with respect, that Mr. Mwakalasa's submission on the defence of alibi is decidedly C thin. Also in urging us to say that PW1 might have been the killer, Mr. Mwakilasa was truly scraping the barrel. It is a wild and barren theory, without the slightest foundation in the evidence on record.
The Prosecution was silent as to when the appellant was arrested so we must go by the appellant's own assertion, D which was not controverted, that he was not arrested until 29th December 1983 that is some seven weeks after the event. Mr. Mwakilasa did not come out more boldly but we think his oblique insinuation was that PW1 could not have implicated the appellant on the day of the incident otherwise the appellant would have been arrested a lot E earlier. We are unable to go along with learned counsel on this. We are not at all surprised that the appellant was not apprehended sooner than he was because, on his own account, he did not go back to the village since he went to Makambako in 1976 that is seven years previously. It is therefore possible that the villagers including PW 1 did F not know where he was living. Indeed PW 1 said that the appellant was not a frequent visitor and we think it is significant also that even PW4 Sanga, the village Secretary and so a man in authority at the village, did not at all know the appellant although PW4 had lived in the village since 1981.
G There was admittedly a lone eye witness in this case. Her evidence is not however detracted from because of that fact alone. As provided under Section 143 of the Evidence act, of course no particular number of witnesses is required for the proof of any fact. What were important here were PW1's opportunity to see what she claimed to have seen, and her credibility. Mr. Mwakilasa concedes it was broad daylight and, as Mr. Sengwaji remarked, the H learned trial judge was positively impressed by PW1 as a witness. We ourselves find no reason to doubt the veracity and reliability of PW1's testimony. We are satisfied that the appellant was quite properly convicted on the evidence and we accordingly dismiss the appeal.
I We wish to add one observation. All the three assessors who sat

with the learned judge advised that the appellant was not guilty. As we have had occasion to say before, it is a rule A of practice that when a trial judge departs from the unanimous views of his assessors. Albeit not binding, he should state his reasons for doing so. We have elsewhere referred to this as the Segesela Rule with reference to the judgment in the Court of Appeal Criminal Appeal No. 13 of 1973 Charles Segesela v R an appeal from Tanzania. B In the present case the learned trial judge gave convincing reasons for disagreeing with his assessors and the Segesela Rule was in our view clearly observed.
Appeal dismissed. C

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