Criminal Session 21 of 2023 Ruling Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

SITTING AT MPANDA CRIMINAL SESSION NO. 21 OF 2023

REPUBLIC

VERSUS JUMA LUCHANGANYA MABULA @SENDAMA............................ 1st ACCUSED EMMANUEL MAKOYE................................................................. 2nd ACCUSED

RULING 23rd & 24* September, 2024 MRISHA, J. This ruling is in respect of an objection against the prosecution prayer to tender the cautioned statement of the first accused as an exhibit. The said statement was recorded by PW8; police whose Force No. is G. 4308 D/CPL Joram. According to Mr. Hemed Amour, learned advocate for the first and second accused persons who raised such objection, the contents of that document were divulged and/or read over by PW8 before admission of the said cautioned statement which is contrary to the legal requirement 1 that a witness is not supposed to read or divulge the contents of the document sought to be tendered as an exhibit. To support his submission, Mr. Amour cited the case of Sybirion Michael vs The Republic, Criminal Appeal No. 262 of 2022 where it was stated that: "Before exhibit could be tendered into evidence, reading out the contents of the exhibit by divulging or reading out the statement is a fatal irregularity." Therefore, he argued that by reading the contents of the cautioned statement in dispute, PW8 divulged extensively the contents of that document, thus making it contrary to the law and fatal irregularity. It was thus, his prayer that the said document should be rejected. To Mr. Kalistus Kapinga, learned Senior State Attorney for the prosecution Republic, he simply contended that what PW8 did in the course of adducing his

evidence before the court, was to narrate what is in the knowledge he acquired through hearing, which is allowed under the provisions of section 62 (1) (b) of the Evidence Act, Cap 6 R.E. 2022 (the Evidence Act). Also, the respondent's counsel submitted that the argument that PW8 divulged the document sought to be tendered as an exhibit would have 2 hold water had he been given it, but in this case the said document was not given to that witness for him to read its contents. Regarding the case of Sybirion Michael vs The Republic (supra) cited by the learned defence counsel, Mr. Kapinga submitted that in that case it was observed that the exhibit was read before its admission, but in the case at hand, PW8 did not read the contents of the first accused cautioned statement, rather he was narrating what he heard from the said accused while recording his statement. The learned State Attorney also argued that the words divulging and reading are the same as per section 13 of the Interpretation of Laws Act, Cap 1 R.E. 2019 (the Interpretation of Laws Act). It was thus, his argument that in the circumstances, PW8 cannot be said to have divulged or read the contents of the document sought to be tendered by him as an exhibit. He added that, what was done by that prosecution witness was to record the cautioned statement of the first accused person, and by virtue of the principle stated in

the case of Robinson Mwanjisi vs Republic [2003] T.L.R. 218, the role of an investigator is to collect evidence and later testify before the court on what he had previously collected. Hence, it was Mr. Kapinga's argument that PW8 was justified to talk about what he heard and recorded from the first accused person. 3 In rejoinder, Mr. Amour submitted that the argument that PW8 was narrating about what he heard from the first accused, does not hold water because in the course of being examined in chief, he explained what he recorded from the said accused which leaves a dilemma from which witness did PW8 hear the statement. Also, the learned defence counsel argued that section 13 of the Interpretation of Laws Act does not apply in the circumstances of the case at hand for the reason that the said provisions talk about the written laws which is not the case here where the argument stems from the case law principle. I have gone through the rival submissions of the counsels from both parties and got an opportunity to read all the cases referred to me by the learned counsel. Likewise, I have read the provisions of the law cited by said counsel. The intention of doing so is to enable the court be in a good position to determine the merit or otherwise of the raised objection. At the outset, I prefer to start with the provisions of the law particularly, section 62 (1) (b) of the Evidence

Act which provides that: "62. Oral evidence must be direct (1) Oral evidence must, in all cases whatever, be direct; that is to say- 4 (a) N/A (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it" The above provisions clearly refer to the witness who is expected to adduce evidence about a fact which could be heard from another person; it does not specify the kind of person from whom such fact should be heard by a witness. In our case, PW8 has narrated a fact in issue which is the murder of the deceased person, which he heard from the first accused person. Hence, I do not see any merit in the argument raised by the learned defence counsel. Regarding the provisions of section 13 of the Interpretation of Laws Act, I have revisited it and found that apart from referring to the written laws passed or made after commencement of that Act, it also makes an internal reference to the provisions of section 2 (4) of the said Act. It reads: "Disjunctive construction of "or" In relation to a written law passed or made after the commencement of this Act, but subject to section 2 (4), "or", "other" and "otherwise " shall be construed disjunctively and not as implying similarity unless the word "similar" or some other word of like meaning is added" 5 Back home, it is obvious that the main discussion between the parties herein, stem from the

case law in which the words 'divulging' and 'reading'were referred and discussed by the Court of the land. Hence, on this, I agree with the argument of Mr. Amour that section 13 of the Interpretation of Laws Act is inapplicable in the circumstances of the case at hand. What remains now, is the question whether PW8 divulged or read over the contents of the cautioned statement sought to be admitted in evidence. Should that sub issue be answered in the affirmative, the objection raised by the learned defence counsel will be meritorious. I say so because, it a trite law that reading of the contents of a document before its admission, is a fatal irregularity-See: Sybirion Michael vs The Republic (supra) and Manje Yohana vs Republic which was also referred in that case. Reverting back to the present case, the records show that in the course of his testimony, PW8 was adducing his evidence without having the cautioned statement in his hands. In the circumstance, it cannot be said the said prosecution witness read over or divulged the contents of that document as the counsel for the first accused person would like the 6 court to find. This makes the case cited by the said learned defence counsel being distinguishable to the circumstances of the case at hand. In the cited case, it was observed that the witness read the contents of the document in dispute before its admission which is not

the case here. Hence, I subscribe to the argument of the counsel for the respondent Republic, that the raised objection is unmerited and is bound to be dismissed. Therefore, based on the above reasons, I am of the settled view that the objection raised by the learned advocate for the first accused, is without merit. Hence, I overrule it and grant the prosecution's prayer that the cautioned statement recorded from the first accused person be admitted as an exhibit. It is so ordered LA. MRISHA

JUDGE 24.09.2024 DATED at MPANDA this 24th day of September, 2024

JUDGE 24.09.2024 7