Court name
High Court of Tanzania

Pia Joseph vs Republic () [1983] TZHC 2 (01 January 1983);

Law report citations
1984 TLR 161 (TZHC)
Media neutral citation
[1983] TZHC 2

Lugakingira, J. Around 11 p.m. on 31.3.1983 the complainant Abdallah Omari Fonga, a resident of Kondoa township, was attacked and injured with a sharp instrument.  It occurred as he opened the rear door of his bar on his way out and he claimed to have identified the appellant Pia Joseph as his  C assailant with the aid of moonlight.  Four days later he reported the appellant to the police whereupon she was arrested and charged with causing grievous harm c/s. 225 of the Penal Code.  At the conclusion of the trial she was convicted of unlawful wounding c/s. 228 (1), the trial magistrate  D taking a light view of the injury, and was sentenced to two years' imprisonment subject to confirmation.  She appealed against the conviction and sentence.  At the hearing of the appeal learned counsel for the Republic Mr. Mwamba declined to support the conviction.  I agreed and allowed the appeal, setting aside the conviction and sentence, and ordered the appellant's release  E from custody.  I did so for the reasons set out in this judgment.
In view of what will transpire, it is necessary to examine the relationship between the parties along with a summary of the contending evidence.  The complainant and the appellant were previous  F lovers who had cohabited for a year.  At the time of the incident they were estranged, the complainant having become "fed up" with the appellant, and a dispute was pending before the reconciliatory tribunal following a report by the complainant.  Earlier that morning they had met at a butchery and the appellant had allegedly threatened the complainant stating: "You are accusing me  G before the conciliatory board, but you (will) see it.  If I fail to kill you, then I will employ people to kill you."  Later that night the complainant was indeed attacked.  His evidence as regards the attack and the identity of the attacker was supported by PW2 and PW3 who were with him at the time.  In  H her defence, however, the appellant stated that she left her house at 8.30 p.m. and proceeded to Kondoa by Night Bar (not the complainant's) where she stayed until midnight.  She then returned home accompanied by DW2 and DW3 and straight went to bed.  Next day, at about 10 a.m., she got  I news of the complainant's attack.  She went to the hospital to see

  A him but learned that he had not been admitted.  She could not go to the complainant's house because (naturally) the complainant's wife was hostile to her.  Four days later when she was herself admitted in hospital she heard that the police were looking for her.  Upon her discharge she reported   B at the police station to inquire and was then accused of this offence. DW2 and DW3 corroborated her alibi.
The trial magistrate decided to believe the complainant and his witnesses.  He dismissed the alibi as untrue on the ground that the appellant's witnesses had contradicted themselves.  Whereas DW2   C stated that on arrival at the appellant's house from Kondoa By Night Bar he and DW3 went their separate ways, DW3 stated that she and her husband were staying in the same house with the appellant and that actually she (DW3) slept in the appellant's room as the appellant was not feeling well. Because of this contradiction the trial magistrate held that the alibi had not been corroborated   D and commented that the defence witnesses were intent on distorting justice.
Although this was a simple case it raises rather significant questions, namely credibility or the role of an appellate court in that regard, the burden of proof in an alibi and corroboration.  I will deal with these matters seriatim.
  E The law as regards the role of an appellate court in matters of credibility is settled beyond paradventure.  The trial court which has seen and heard the witnesses, thereby being privileged to observe their manner and demeanour, is certainly in a better position to assess their credibility than   F an appellate court which has not had these advantages.  It has therefore been consistently held that an appellate court will not lightly interfere in the trial court's finding on credibility unless the evidence reveals fundamental factors of a vitiating nature to which the trial court did not address itself or address itself properly.
  G As a rule of practice, therefore, a first appeal assumes the character of a retrial and as stated in The Glannibanta (1876), 1 P.D. 283, an appellate court:
   cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and H conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowances in this respect.
This case was followed by the Court of Appeal in Pandya v R. [1957] E.A. 336 as was Coghlan v   I Gumberland [1898]1 Ch. 704 where it was also stated:

   there may obviously be other circumstances, quite apart from manner and demeanour, which may show A whether a statement is credible or not; and these circumstances may warrant the court in differing from the (trial) judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen. B
In the case before me the trial magistrate stated emphatically that he believed PW2 and PW3. I think, however, that there were factors which, on a proper consideration, raise doubts as to the credibility of the two witnesses.  First of all, PW2 was in court when the complainant testified.  I am not saying  C that it is in every case that a witness will be doubted when he hears the evidence of a preceding witness, but when such first mentioned witness is called to give evidence of precisely the same import as the preceding witness, it cannot be seriously suggested that his is an independent mind.   D The court would therefore be bound to approach such evidence with reservations.  Secondly, PW3 was an employee of the complainant.  Undoubtedly, she had an interest of her own to serve and, unlike the learned trial magistrate, I cannot consider her to have been free of partiality.  There  E was reason to doubt her as well.  Thirdly, neither PW2 nor PW3 reported the appellant anywhere either that night or at any time thereafter.  In fact, PW3 escorted the complainant to the police station on route to the hospital at 5 a.m. but neither he nor the complainant himself mentioned the appellant then.  Interestingly, too, not a single police officer was called to testify on this or any other aspect.  F   On the other hand, PW3 abandoned the complainant at the scene and silently went to sleep.  Fourthly and finally, PW2 and PW3 contradicted themselves as to who, among them, was in a position to identify the assailant.  The relevant portions of their evidence are very revealing and I  G take the liberty to cite them.  In the words of PW3:
   As Abdallah fell backward on me he left the door open and I ran to it in order to shut it and soon I saw the accused with a bush knife in her hand.  I hurried to shut (it) for fear that she would do more harm to Abdallah H ....
But from PW2 we get a different impression, first, as to whether the complainant left the door open or shut upon being attacked and, second, as to who hurried to shut or open it, and who, therefore,  I was in a position to see the assailant.  He said:

A    I hurried to open the door to see who was the assailant and saw Pia Joseph with a panga.  I immediately shut the door to avoid further attack from her.
He then added, and no less significantly:
  B    Mama Wawili (i.e. PW3) was behind us and when I hurried to see who was the assailant she remained rubbing off blood on the complainant's forehead.
I think that having regard to these contradictions and the other factors stated in this connection, it   C was unsafe to hold that the two witnesses were credible in their purported identification of the assailant.  It is therefore difficult to uphold the finding of the trial magistrate.
The same applies to the complainant himself.  As just seen he never mentioned the appellant to the   D police on the very first occasion.  According to his own evidence he did so four days later.  Yet no reason was suggested for that four-day silence.  The only reasonable inference is that he could not have identified his assailant as claimed but later picked on the appellant ostensibly because of   E suspicion.  I have already set out the relationship between him and the appellant.  It was that of intense enmity.  A dispute was actually pending before the elders.  I have also indicated how earlier that morning the appellant had threatened to kill the complainant.  These were factors which could   F lead a person in the complainant position honestly but mistakenly to suspect the appellant.  As stated in Abdallah Wendo v R. (1953) 20 EACA 166.
   a witness may be honest yet mistaken, and may make erroneous assumptions particularly if he believes that G what he thinks is likely to be true must be true.
It must have been so with the complainant.  He had grounds to believe that what he thought was likely to be true must be true.  Yet I cannot say that he was also honest in his belief since it took him   H four days weighing up the chances.  There was therefore prevarication and soul searching and this, in my view, could only have been because he had not recognised or correctly recognised his assailant.
On the other hand, I cannot say that the prior threat by the appellant was not without significance.   I But since threats do not necessarily materialise, I cannot say, either, that the threat in this case provided irresistible evidence. A threat made in the

circumstances of this case can at best afford corroboration to other credible evidence.  In Waihi v  A Uganda [1908] E.A. 278 the appellant had announced his intention to kill the deceased and indeed the deceased was killed.  The Court of Appeal observed that
   Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person B accused of murder, but its probative value varies greatly and may be very small or even amount to nothing.
The Court went on to uphold Waihi's conviction for murder because the threat corroborated other  C evidence incriminating him.  In the case before me there was an alibi tending to exculpate the appellant and to this I will now turn.
It was confirmed by DW2 and DW3 that indeed the appellant was at Kondoa By Night Bar from around 8.30 p.m. to sometime after midnight and that they escorted her home.  The trial magistrate  Ddisbelieved those witnesses because they appeared to contradict themselves as to what happened after they had arrived at the appellant's house.  In law the accused has no obligation to prove an alibi.  The burden always remains on the prosecution to prove their case beyond reasonable doubt.   E The accused, if he elects to testify, is only expected to adduce such evidence as would suggest to the court that his story could possibly be true.  As held by this Court in Mwakawanga v R. [1963]E.A. 6: F
   an accused putting forward an alibi as an answer to a charge made against him does not in law thereby assume any burden of proving that answer.  It suffices to secure acquittal that the accused by such evidence as he may choose to adduce introduces into the mind of the court a doubt that is not unreasonable". G
It was similarly held by the High Court of Uganda in Sakitoleko v Uganda [1967] E.A. 531, and I agree, that: H
   It is a wrong statement of the law that the burden of proving an alibi lies on the prisoner.  It is the duty of a Criminal Court to direct its mind properly to any alibi set up by a prisoner; and, it is only when the court comes to the conclusion that the alibi is unsound that it would be entitled to reject it.  As a general rule of law, the I burden of proving the guilt of a prisoner

A    beyond reasonable doubt never shifts whether the defence set up is an alibi or something else.  That burden always rests on the prosecution."
In the instant case the trial magistrate rejected the appellant's alibi because of an immaterial   B contradiction in the defence evidence.  He thereby incorrectly cast upon her the burden of proving the alibi beyond reasonable doubt.  I say that the contradiction was immaterial because it did not relate to the fact that the appellant had been at Kondoa By Night Bar till midnight or the fact that she   C was from there escorted straight home.  It related to what DW2 and DW3 did after that.
I think that this is the appropriate juncture to touch on corroboration.  Corroborative evidence, as I understand it, is that which has the effect of confirming in material particulars the evidence requiring   Dcorroboration.  In the words of the Court of Appeal in Mande v R. [1965] E.A. 193 at p.199.
   The corroborative evidence required is that which shows or tends to show that the story of the person whose E evidence is to be corroborated is true.......
The material particulars in this case, the evidence which required corroboration, was whether the appellant was at Kondoa By Night Bar till midnight and whether from there she went straight to bed   F so as not to be in a position to commit the attack at 11 p.m. at the complainant's bar.  These matters were corroborated.  Without belabouring the point further, I think that a reasonable doubt had been raised for the alibi could possibly have been true.  This doubt was immensely fortified by the fact   G that it took the complainant four days to make up his mind as to who his assailant could have been.  Had the trial magistrate directed himself in the manner I have attempted to I cannot say that he would nevertheless have found the appellant guilty of any offence.
  H I was therefore of the view, which view I shared with learned counsel for the Republic, that the charge had not been proved beyond reasonable doubt and I allowed the appeal as aforesaid.
Appeal allowed.

A