Mfalila, J.A., read the following considered judgment of the Court:
B The appellant Hamisi Meure was convicted of the murder of one Abubakari s/o Shabani and was sentenced to death by the High Court sitting at Dodoma (Mwalusanya J). He lodged this appeal against both his conviction and the sentence of death.
C At the trial two witnesses gave evidence for the prosecution. These were the deceased's neighbour Erkadi s/o Mwakagile (PW1) and the Justice of the Peace David Mzuri (PW2). Erkadi Mwakagile whose evidence was hotly contested both at the trial and in this Court, told the Trial Court that on 16 March 1989 at about 1.10 am he was awakened by an alarm from the deceased's house. D He proceeded there and found the deceased's two wives crying. The deceased himself was sprawled on the ground with serious injuries. The deceased then told him with difficulty, for he was barely conscious, how bandits had attacked him and stolen his sixteen cattle, forty goats and two sheep. The deceased died soon after that. However the villagers organised themselves into two E groups and started to trace the cattle thieves. The following day, 27 March 1989 at about 4 pm they caught up with the thieves driving the stolen cattle. When they got sufficiently close to the gang, the witness said that he identified the stolen cattle to be the deceased's as some of his own were in that F herd. He also identified two of the eight bandits. He identified the appellant clearly because he said they had been village mates for the last ten years. He also identified another who was charged as the third accused and whom he named as Chimingati Meure. He was acquitted at the trial. In the ensuing G fight, the bandits were overpowered and they ran away leaving their loot behind, but one of their number, Koyesa was arrested but he died later apparently of wounds sustained in the fight. The stolen cattle were returned to the village. The appellant and the third accused at the trial Chimingati H Meure were later arrested and charged with this offence.
The Justice of the Peace, Davis Mzuri recorded the appellant's extra-judicial statement admitted at the trial as exhibit B in which he admitted taking part in the raid at the deceased's homestead, but he explained that he was an unwilling participant as he had simply been forced to join the raiding party I when he met them. He confirmed that the third accused was an active participant.
In his defence at the trial, the appellant denied taking part in the raid in which the deceased was A killed. He said that he was just arrested for reasons he did not understand. After his arrest, he was subjected to severe beatings in the course of which he was forced to go to the Justice of the Peace where he made the extra-judicial statement exh B. He was told what to say in that statement and that B the names he supplied were given him by the Police Investigating Officer.
After a very careful summing up, the Assessors accepted the evidence of PW1, that he identified both the appellant and the third accused at the scene while they were driving away the cattle. The C assessors also accepted the extra-judicial statement exh B as having been freely and voluntarily made. On these two pieces of evidence, the assessors found both the appellant and the third accused guilty as charged. However, the learned Judge stated that while he was able to go along with the Assessors on the guilt of the appellant, he was unable to agree with them on the guilt of the D third accused. Incidentally, the second accused had been acquitted at the close of the prosecution case. The learned Judge was of the view that while PW1 was indeed a truthful witness, his truthfulness did not extend to his alleged identification of the third accused. In fact, the learned Judge E found that PW1 lied on three points. He lied when he stated that he knew the third accused, that he lied when he said that the third accused was a resident of Case Village when in fact he lived in Msanga Village which is some fifty kilometres away. (The learned Judge was still using the now defunct imperial system when he stated that Msanga is thirty miles away). And lastly that PW1 lied F when he said that the third accused's name is Chimingati s/o Meure when he is Chimingati s/o Ndyongo. In the circumstances, he said that he was not persuaded that PW1 knew the third accused before the incident to enable him make a correct identification. He therefore convicted the appellant G as having been correctly identified by PW1 his long time village mate and acquitted the third accused. The learned Judge also found that PW1's identification of the appellant was corroborated, if corroboration was necessary, by the appellant's own extra-judicial statement. H
In this appeal, Mr Rweyongeza learned Counsel who appeared for the appellant filed four grounds of appeal. In ground No 1, he complained that the learned Trial Judge erred in law in allowing the evidence of PW2 to be given at the trial when his statement had not been read at the committal proceedings and no notice had been given to the appellant or his advocate. During the hearing I
A of the appeal, Mr Rweyongeza submitted that in the absence of a reasonable notice, PW2 the Justice of the Peace was barred from being called as a witness under s 289(1) of the Criminal Procedure Act because the substance of his evidence was not read at the committal proceedings. This section provides as follows:
B `289(1) No witness whose statement or substance of evidence was not read at committal proceedings shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate of the intention to call such witness.
C (2) The notice shall state the name and address of the witness and the substance of the evidence which he intends to give.
(3) The Court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature of the witnesses's evidence and determined to call D him as a witness. No such notice need be given if the prosecution first became aware of the evidence which the witness would give on the date on which he is called.'
E Mr Rweyongeza added that ss (3) is not applicable because the prosecution became aware of the existence of such evidence as far back as 3 November 1992 during the preliminary investigation when the first accused, the present appellant intimated that he had been threatened into making the extra judicial statement to the Justice of the Peace.
F At the trial, when the defence objected for the same reasons that the Justice of the Peace (PW2) should not be called as a witness, the learned Judge overruled the objection in the following words:
G `However it is my view that since yesterday 10 February 1993 (ie the day before the trial began on 11 February 1992) the defence became aware of the application for summons for the prosecution witnesses that was written about three weeks ago. In that application for summons, the name of Mr Mzuri appears and it is written that he is a Justice of the Peace. As it is written that he is a Justice of the Peace, the defence Counsel must have known that the H substance of the evidence that this witness would give concerns the extra-judicial statement he must have recorded. So the Defence Counsel today was not taken by surprise. If he required more reasonable notice, the Defense Counsel should have said so yesterday when he became aware of the calling of this witness. It is my view that the I period from yesterday morning to this day is sufficient notice to the Defence.'
We think, with respect, that this passage contains assumptions which, even if they were to be A proved correct, could not meet the rigid and mandatory requirements of s 289. Even if the application for witness summons were to be regarded as a notice under this section, which it cannot, there is not basis for believing that it was seen by either the appellant or his Counsel. Secondly, ss (2) makes B it mandatory for not only the name and address of the witness to be supplied, but also the substance of the evidence which he intends to give. There is no room for the defence to be left guessing as the learned Judge seems to suggest. Thirdly, since the prosecution became aware of the existence of such evidence four months before the trial opened, there was no justification for the C Court to pin down the Defence to a day's notice and call such notice reasonable under ss (3). In any event, we were surprised by the Judge's remark that if Defence Counsel had required more reasonable notice he should have said so earlier, when that was exactly what Counsel had demanded when arguing his objection. It having been accepted by the prosecution and the Judge D himself that PW2 did not feature in the record of committal proceedings, he should not have been allowed to give evidence in contravention of the provisions of s 289 which are mandatory. In the circumstances we agree with the complaint in ground 1 and hold that PW2 was wrongly allowed to E give evidence. Mr Ndunguru learned State Attorney who appeared for the Republic conceded that PW2 would not have been allowed to give evidence before complying with the mandatory provisions of s 289 of the Criminal Procedure Act 1985. F
Mr Rweyongeza argued grounds 2 and 3 together because they both touched on the credibility of PW1. In these two grounds, he complained that the Trial Judge should not have found PW1 a truthful witness in respect of one accused and a liar in respect of the other and that he should have found G PW1 an unreliable witness particularly after considering the statement this witness gave to the police and the evidence he gave in Court.
As we have already indicated, the learned Trial Judge found that PW1 had lied on three matters. However on our part, we think the learned Judge over-reacted to the differences between the H evidence of PW1 and that given by the third accused. PW1 told the Trial Court that he knew the third accused, while the third accused said that he did not know him. PW1 said that the third accused lived in Chasa Village while the third accused denied this saying that he lived in Msanga Village fifty I kilometres away. PW1 said that the third accused's name was Chimingati s/o Meure while the third
A accused said he was Chimangati s/o Ndyongo. Were these differences sufficient to suddenly turn PW1 into a liar when the Court had just evaluated him to be a truthful and reliable witness? The Trial Judge should have realised like the Assessors that the third accused had every reason to deny PW1's allegations about him, whereas PW1 had no reason to lie against the third accused. The Trial B Judge did not state where he got the impression that the third accused was a total stranger to PW1 apart from third accused's own denials. Indeed when cross-examined by Defence Counsel, PW1 stated categorically that:
C `The third accused is my village mate at Chase - he is called Chimingati Ndyongo s/o Meure. He does not stay at Msanga Village.'
PW1 was therefore aware of the third accused's other surname `Ngyongo' and in any case he D definitely knew his first name `Chimingati' which was not disputed. We are in the circumstances satisfied that the Trial Judge wrongly, even unfairly branded PW1 a liar. The Assessors' assessment of PW1 as a truthful and reliable witness was the correct one even after taking into account the E difference between what he said in Court and what he stated in his police statement exh A. In Court, he said that his group did not fight the bandits, but in the police statement he stated:
F `. . . Hapo tulizitambua ng ombe hizo na mbuzi ndizo zenyewe nilizooibiwa kwa marehemu, ndipo tukaanza mapigano ya mishale bahati tukawazidi nguvu wezi hao na kumkamata mmoja wao aitwaye Koyesa s/o Chimingati . . .'.
G It should be remembered that according to this witness, the search party was divided into two groups, the witness belonged to the group which was in front. But since the two groups were on the same mission, they were just one large group divided into two sections, so that when the witness was describing the events while at the police station, he chose to treat the whole search party as one H and he considered himself a member of the entire search party. But in his evidence in Court, he chose to be more detailed, describing that each section of the group did. We can therefore see nothing in this to make PW1 a liar and unreliable. In the circumstances we reject the complaints in grounds 2 and 3.
I In view of our finding that PW2 should not have allowed to give evidence in contravention of s 289, it follows that the extra-judicial
statement was wrongly admitted and therefore we need not deal with the complaint in ground 4 A namely that the learned Judge misdirected himself in relying on the extra-judicial statement of the appellant in complete disregard of the circumstances under which it was made. But we would like to point out that as it was clearly retracted at the trial, the Trial Judge should not have placed any B reliance on it without warning himself of the dangers of convicting on a retracted confession.
However as we hope we have clearly indicated, the Trial Court was perfectly and rightly entitled to base the appellant's conviction on the evidence of PW1 once they had evaluated him as they did, to be a truthful and reliable witness. The third accused should consider himself lucky for being C acquitted. The appellant was rightly convicted on the basis of the doctrine of recent possession.
The appeal has no merit, we accordingly order that it be dismissed. D