Court name
Court of Appeal of Tanzania

Nyigoso Masolwa vs Republic () [1994] TZCA 18 (01 August 1994);

Law report citations
1994 TLR 186 (TZCA)
Media neutral citation
[1994] TZCA 18

Omar, JA, delivered the following considered judgment of the Court: B
The appellant Nyigoso s/o Masolwa was convicted on a charge of murder contrary to s 196 of the Penal Code and was sentenced to death. He is now appealing. C
PW1 Modosta Luchoga stated that she was at home with her husband the deceased in old Shinyanga Village on the night of 5 August 1987 when two bandits broke down their front door and entered, and straight away started attacking her by cutting her on the head and on the left hand. She fell down and became D unconscious but before that she said she was able to identify the appellant by the torches each one of them carried. They flashed their torches straight at her face and the light dazzled her but the appellant was illuminated on the face by the torch of his colleague and she was able to identify him as Nyigoso Masolwa the brother of the former wife of her husband Amos Matiga, the deceased. At that time when E she ran to the front door her husband dived under the bed and she heard the bandits say `here he is'. Apparently he was pulled out from under the bed and cut to pieces. When she regained consciousness after the attackers had gone she F went and reported the matter to the ten cell leader, one Ngolo Shumbi. She further said that the cell leader did not ask her who had attacked her. She was feeling severe pains that night that is why she did not tell the cell leader or any of the persons who had gathered at her home, who her attackers were. She could not recognise the other attacker. The appellant whom she identified had put on a red shirt, the other bandit whom she could not see was wearing a black shirt. G
The rest of the witnesses PW2 and PW3 talked of the dispute between the father of the appellant and deceased over the bride price of seventeen head of cattle which the deceased demanded to be given back after he had divorced the sister of H the appellant. PW2 Leonard s/o Kankutebe who was the acting Divisional Secretary in Shinyanga was handed a letter by the District Commissioner directing him to collect seventeen head of cattle from the father of the appellant and hand them to the deceased as per court order. The handing over was to be done on 6 August 1987. The deceased died on 5 August 1987 one day earlier. I

A The appellant in his defence denied over being at the house of the deceased or slashing him with a panga. He said he was a home on the night of 4 August 1987. He said he knew about the dispute over bride price and preparations were under way to pay back deceased's cattle. Mr Magongo learned counsel for the appellant B submitted that the identification of the appellant by PW1 left much to be desired. PW1 never mentioned the appellant immediately after the attack. She never reported having identified the appellant to the ten cell leader or to the people who had gathered at the scene.
He submitted that PW1 never identified the appellant at all and he quoted the C following lines in the judgment of the trial court and concluded that they were mere assumptions. The quoted lines are:
`Believing as I do that each of the two attackers had his own torch and since they were looking at random to locate the position of the victims it is reasonable to see the urgency of their part to keep their torch alight all the time. The fact that they slashed PW1 on the head as well with a D panga they had (were) criminally disposed to kill PW1 as well so that when she dropped to the ground they had mistaken her for a dead person. Even if they had not intended to kill PW1 time to them was very important soon after the accused and the other attacker had got into the house of the deceased. The possibility of the accused and the other attacker carelessly E flashing torch light would appear the most reasonable assumption. It is most likely that in their carelessly flashing the light the accused became exposed to the blazing torch light held by the other person.'
F These arguments by the Trial Judge Mr Magongo covered in his second ground of appeal which is `that the finding and the conclusion arrived at by the honourable Trial Judge in his decision are indefensible both in fact and law.'
G Mr Kaduri learned State Attorney in reply stated that there were two torches, one was flashed on to the appellant who had already cut her and it was then that she identified him. Besides, PW1 knew the appellant for quite a long time.
We have gone through the evidence of PW1 the sole identifying witness and are of the view that circumstances prevailing in that room at the time of the attack were H not favourable for proper identification of the attackers and therefore the testimony of PW1 is unreliable in this respect.
We therefore allow the appeal, quash the conviction and sentence, and order that the appellant be set free unless he is otherwise lawfully held. I

A
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