BUIIKU MZIGO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MWANDAMBO, J.A.. FIKIRINI. 3.A. And NGWEMBE, J.A.^ CRIMINAL APPEAL NO. 512 OF 2021 BUJIKU MZIGO............................................................................APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Bahati, 3.) dated the 1st day of October, 2021 in Criminal Sessions Case No. 33 of 2019 JUDGMENT OF THE COURT 5th & 11th June, 2024 MWANDAMBO, 3.A.: The High Court, sitting at Tabora tried and convicted the appellant, Bujiku Mzigo of the offence of murder of Helena Makoye which occurred on the night of 12 July 2016. It accordingly sentenced the appellant to the mandatory death sentence by hanging. The particulars in the information alleged that on 12 July 2016 night hours, at a place called Ufulaga, Kaliua District, Tabora region, the appellant and one John Sabini murdered the deceased Helena d/o Makoye to which they pleaded not guilty. However, the case against John Sabini abated following his death before he stood trial. It was not disputed during the trial that; the deceased died an unnatural death from severe pain and haemorrhage as a result of big cut wounds caused by sharp objects as certified by a medical doctor who examined the deceased's body. The dispute was whether it was the appellant who was responsible for the deceased's death. To prove its case, the prosecution had 3 witnesses; Dr. William Benedict Kaijage (PW1) who examined the deceased's body and prepared a post mortem report (exhibit PI) on the cause of the deceased's death. The second witness was F. 6776 Det. CpI. Julius (PW2), a police officer who, along with his colleagues and PW1 visited the scene of crime. At the scene, drew a sketch map (exhibit P2) and interviewed the suspects who were already apprehended by the local vigilante; popularly known as sungusungu. The suspects were the appellant and the deceased John Sabini. From the appellant, PW2 said he recorded a cautioned statement which he tendered in evidence and the trial court admitted it as exhibit P3. The last witness was Boniphace Shimbe (PW3); a magistrate acting as justice of peace before whom the 2 appellant is said to have confessed killing the deceased and recorded an extra judicial statement (exhibit P4). The arraignment and the prosecution of the appellant was triggered by the following facts which are largely not in dispute. In the morning of 13 July 2016, PW2 who was stationed at Kaliua Police Station in the criminal investigation department was instructed by his superiors to go to Ufulaga hamlet to investigate a death of a person (the deceased) occurred the previous night reported by a Hamlet Chairman. Acting on the instructions, PW2 went to the scene of crime along with other policemen and PW1. At the scene of crime which happened to be the home of the deceased and her husband, they found the body of the deceased lying outside her house surrounded by a crowd of people. At that time, 3 people had been arrested by sungusungu in connection with the deceased's death. Interview with the people found at the scene revealed that the deceased and her husband had been invaded the previous night by unknown people with machete and axe targeting the deceased to whom they inflicted body injuries which resulted into her death. According to PW2, the interview revealed also that after the incident, an alarm was 3 raised and people assembled at the scene following which, they traced the culprits through the path they took in a motorcycle whose tyre marks led their way to the appellant's house. Upon their arrival, they found the appellant with two un-announced strangers who happened to be John Sabini allegedly hired to kill the deceased in revenge for bewitching the appellant's mother. The other person was a motorcyclist who was said to have ferried the "hired killer" from Kahama. It was equally revealed that the suspects were apprehended by the sungusungu and upon interrogation, John Sabini confessed to have been hired by the appellant to kill the deceased in consideration for payment of TZS 350,000.00. On the other hand, it was claimed that upon interrogation, the appellant confessed the killing in the presence of the people who had assembled at the scene of crime. Subsequently, the appellant and his visitors were taken to the police at Kaliua after the examination of the deceased's body by PW1. At the police, the appellant allegedly recorded a cautioned statement before PW2 and subsequently an extra judicial statement before PW3. Eventually, the appellant and his associate were arraigned in court on the information of murder of the deceased as alluded to earlier on. After the trial, the trial court was satisfied that the appellant was responsible for the unlawful killing of the deceased based solely on the cautioned and extra judicial statements (exhibits P3 and P4). It found the appellant guilty and convicted him as charged followed by the appropriate sentence. Aggrieved, he has appealed before the Court protesting his innocence. The appellant's resent against the trial court's decision is predicated upon 5 grounds of appeal which raise one main issue; whether the conviction of the appellant on the basis of the cautioned and extrajudicial statements was legally sound. At the hearing of the appeal, the appellant appeared in person represented by Mr. Kelvin Kayaga, learned advocate. Mr. Merito Boniphace Ukongoji, learned State Attorney appeared for the respondent Republic supporting the appeal. Mr. Kayaga began his onslaught with ground 3 faulting the trial High Court for grounding conviction on exhibit P4 whose admission was objected by the appellant for being extracted by threat of torture. He pointed out that the appellant was not a free agent when he recorded the extra judicial statement by reason of threat of torture by PW2 who sent him to PW3 for recording such statement. The learned advocate urged that, whereas the appellant's counsel objected admission of the extra judicial statement on the ground that he recorded under a threat of torture, the learned trial judge overruled the objection reasoning that the appellant had not proved the alleged torture and admitted the extra judicial statement. Mr. Kayaga argued, and rightly so, that contrary to the reason given by the trial judge in overruling the objection, the appellant had no burden to prove torture but the prosecution to prove that the said statement was voluntarily recorded. In the absence of such proof, it was argued, it was wrong for the trial court to rely on exhibit P4 in grounding conviction. Mr. Ukongoji was in agreement with the submissions by Mr. Kayaga and added that, in any case, exhibit P4 was taken in contravention of the Chief Justice's instructions since there is no indication therein on the date and time of the appellant's arrest. The learned State Attorney urged the Court to expunge exhibit P4 from the record. Upon examination of the proceedings particularly, page 80 and 81 of the record, we are constrained to agree with the learned counsel that the learned trial judge strayed into an error in overruling the appellant's objection to the admission of the extrajudicial statement on account of torture. As submitted by Mr. Kayaga, the appellant had no duty to prove that he was tortured into recording the statement rather, the prosecution proving that the alleged confession before the justice of the peace was but voluntary. There is authority for the proposition that, where the admission of the extra judicial statement is objected, the trial court is bound to conduct a trial within a trial to determine its voluntariness. One of such authorities is the Court's decision in Godfrey Ambros Ngowi v. Republic, Criminal Appeal No. 420 of 2016 (unreported). It was thus irregular for the trial court to overrule the objection to the admission of the extra judicial statement in the manner it did. Instead, it ought to have conducted a trial within a trial to determine its voluntariness. Addressing a similar situation, in Julius Charles & Another v. Republic, Criminal Appeal No. 36 of 2017 (unreported), the Court stated: "...as the Court has stated in several decisions, where an objection is raised by an accused person [to] the admission o f [a] cautioned statement or extra judicial statement■ , the trialjudge has a duty to conduct a trial within a trial and come to a conclusion as to whether The overall effect from the above is, as urged by the learned counsel, there was no valid confession which could have been relied upon by the trial court to be proved against the appellant and grounding his conviction. As urged by both counsel, since exhibit P4 was wrongly admitted in evidence, it must be, and is hereby expunged from the record. Having expunged exhibit P4, the next question is whether there was other evidence to sustain the appellant's conviction. That takes us to a determination on the complaint revolving around the reliance on the cautioned statement (exhibit P3) tendered by PW2. Mr. Kayaga had two arguments on this. The first was predicated on non-compliance with section 57 (3) (a) (i) and (ii) of the Criminal Procedure Act (the CPA). The second which was taken in the alternative was lack of independent evidence to corroborate the repudiated confessions. Addressing the Court on the first argument, Mr. Kayaga drew our attention to page 115 of the record of appeal at which, PW2 who recorded the statement is said to have certified it upon completion of the recording exercise. The learned advocate took exception to the words inserted at page 115 of the record purporting to be a certification of the 9 cautioned statement. According to him, such inserted words did not validate the otherwise wanting certification which had a bearing on the voluntariness of the cautioned statement affecting its admissibility in evidence let alone being relied upon in grounding the appellant's conviction. Counsel urged that such wanting statement should not have been admitted in evidence. Mr. Ukongoji conceded as much on the wanting certification and added that, in any case, there is no indication under which provision PW2 made the purported certification. Yet again, we are in agreement with the concurrent submissions by the learned counsel. It is evident that exhibit P3 was taken under section 57 (2) of the CPA which regulates the recording of an interview by a police officer with a criminal suspect for the purpose of ascertaining whether in the course of such interview orally or in writing, he admits commission of an offence and confesses to an offence in which case, the police officer is required to make , while the interview is being held or as soon as practicable after the interview is completed, a record in writing setting out matters specified in (a)- (f) of that sub- section. Such matters include; an indication if a caution was given to the person before he made the confession and, if so, the terms in which the caution was 10 given, the time when it was given and any response made by the person to the caution and the times when the interview was commenced and completed. To authenticate the record of interview so recorded, section 57 (3) (a) (i) and (ii) of the CPA enacts: "(3) A police officer who makes a record o f an interview with a person in accordance with subsection (2) shall write, or cause to be written>at the end o f the record a form o f certificate in accordance with a prescribed form and shall then, unless the person is unable to read- (a) show the record to the person and ask him- (i) to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make; (ii) to sign the certificate set out at the end o f the record..." Upon our examination of exhibit P3, there is no indication that PW2 asked the appellant to read the recorded confession and make any alteration or correction to it if he wished. Besides, the alteration appearing at page 115 of the record does not appear to have been made ii contemporaneous with the recording and on the same date the appellant is said to have made the statement. Neither is there any indication under which provision the said statement was made as submitted by the learned State Attorney. In our view, had the learned trial judge examined exhibit P3 with a critical eye, she should not have brushed aside the appellant's objection to its admission particularly, on the wanting certification. Consequently, we sustain Mr. Kayaga's submission and hold that, the cautioned statement was wrongly admitted in evidence and relied upon to ground the appellant's conviction. Mindful of the Court's previous decisions, amongst others, Zabron Joseph v. Republic, Criminal Appeal No. 447 of 2018 (unreported), we expunge exhibit P3 from the record for being invalid. The upshot of the foregoing is that, such an invalid confession could not have grounded the appellant's conviction for murder as held by the trial court without any independent evidence linking him with the deceased's unlawful killing. Next we shall turn our attention to the alternative argument by Mr. Kayaga on the wrongful reliance on exhibit P3. Mr. Kayaga was emphatic in his submission that, at any rate, had the cautioned and extra judicial statements passed the test of admissibility, they could not have been 12 acted upon in grounding conviction for lack of evidence to corroborate them since the appellant had repudiated them. It is common ground that, the appellant objected to the admission of the cautioned and extra judicial statements for being involuntarily taken by reason of torture and threat of it. The trial court overruled the objection after conducting a trial within a trial to determine the voluntariness of the cautioned statement. As seen earlier, the appellant's objection to the admission of the extra judicial statement was overruled for lack of proof of torture. Be it as it may, the overall effect in both cases was that the appellant repudiated the statements. Both learned counsel were in agreement that, since statements were repudiated, none could corroborate the other but by an independent evidence which was not there. We note from the impugned judgment that the trial court was satisfied that the statements were, but a true account proving the appellant's guilt in connection with the deceased's death. This the learned trial judge did mindful of the established practice through case law cautioning trial courts on the danger to act on repudiated confessions in the absence of independent corroborative evidence in particular, the Court's decisions in Hatibu 13 Gandhi & Others v. Republic [1996] T.L.R. 12 Hemed Abdallah v. Republic [1995] T.L.R. 172 and Ali Salehe Msutu v. Republic [1980] T.L.R. 1. With respect, much as the learned judge found the cautioned statement truthful and corroborative of the extra judicial statement, we think she was not correct. As have said above, each statement required independent evidence to corroborate it. There was none in this appeal which rendered it unsafe to act on the uncorroborated statements as it were. Quite surprisingly, PW2 is on record claiming to have interviewed people at the scene of crime on 13 July 2016 including the deceased's husband but none was called to testify. Neither did the prosecution make use of section 34B of the Evidence Act if, PW2's assertion that the entire village was relocated to an unknown place after the incident had anything to go by. What is evident in the instant appeal is that the case was not investigated as required. We cannot do better expressing our dismay on this than echoing our dissatisfaction in the like manner we did in Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013 (unreported) in which the Court lamented: 14 "We get the impression that the case was poorly investigated and prosecuted. We say so because in absence o f any other evidence, the prosecution case was to stand or fail on the word o f the appellant regarding the alleged events of the day. We think,in this case prudence deserved that the deceased's parents and investigating officer ought to have been summoned with the aim o f hearing their version o f the day... perhaps, if summoned the evidence o f these people would have helped lending credence to the appellant's story contained in the extrajudicial statement as it were. In the absence of the evidence o f the above people it is not sage to believe whole heartedly that the conviction is sound." [at page 13 -emphasis provided] It is very glaring in the instant appeal and we agree with the learned State Attorney that, failure to investigate the case and summon people from Ufulaga Hamlet including the deceased's husband to give evidence during the trial warranted taking adverse inference against the prosecution case on the authority of the Court's decision in Aziz Abdallah v. Republic [1991] T.L.R. 71. 15 The cumulative effect of the foregoing is that the appellant's conviction was against the evidence on record. In fine, we allow the appeal and quash the conviction and set aside the sentence. The appellant is to be released from prison forthwith unless he is lawfully held therein. DATED at TABORA this 10th day of June, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of the Mr. Kelvin Kayaga, learned counsel for the appellant and Mr. Nurudini Mmary, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL