R VS JAFFARI H MDOE and 30 others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 12 OF 2023 REPUBLIC VERSUS 3AFFARI HASSAN MDOE@ABUU KISHIKI ACCUSED SADICK SHABAN@MDOE@WHITE .2"° ACCUSED IBRAHIM ABDALLAH IBRAHIM@MASUFURIA 3«d ACCUSED SAID HAMIS MTULYA@ AL KATAIMI 4^h ACCUSED ALLY AYOUB NGINGO @MANFUDU 5^" ACCUSED SAID WAZIR NKURO @ ABUU WALDA. 6^" ACCUSED UMMA ALLY @HASSAN @MAKATA. ACCUSED SHOMARU SAID NGWABI 8^" ACCUSED KHATIBU HASSAN HAMISI 9TH ACCUSED ISSA HASSAN JABIR ACCUSED NURDIN SAID MHAGAMA........... HTH ACCUSED Page 1 of 27 HAMAD OMARY HAMIS JUMA ....12^" ACCUSED AHMAD YUSUFU NDULELE 13^" ACCUSED HAMIS HUSSEIN RAMADHANI. 14^" ACCUSED HAMIS MIRAJI HUSSEIN.. 15^" ACCUSED ALLY JUMA NGACHOKA @ALLY..... 16^" ACCUSED ABDALLAH HAMIS MOHAMED LUPINDO @MZEE 17^^" ACCUSED ABDUBILLAH ISMAIL NDIBALEMA 18^" ACCUSED SHAIBU SAM MKUNGU 19^" ACCUSED SEIF RAMADHAN SEIF MBWATE 20^^ ACCUSED HASSAN ABDALLAH @MADINKI 21^^ ACCUSED ABDURASHID SAID SADICK 22"^^ ACCUSED PAUL ABUBAKAR MGITA@ABUU OSAMA 23«d ACCUSED ABDALLAH FAKIHI MOHAMED ......24^" ACCUSED ABASS AYUB MKANDA 25™ ACCUSED NASSORO SAID HEMED.... 26™ ACCUSED RAJABU SELEMAN CHIJEJA 27™ ACCUSED MOHAMED ALLY OMARI 28™ ACCUSED SAID MWINCHANDE MANDANDA 29™ ACCUSED Page 2 of 27 SHAFII SHAIBU MPUTENI@ ABUU @ABUU TARIQ 30^" ACCUSED TWALHA AHMAD MWALUKA.. 31^^ ACCUSED RULING OF THE COURT Date oflast order: 26.11.2024 Date ofRuling: 28.11.2024 BEFORE: G, P, MALATA. J In attempt by the prosecution side through their witness P21 to tender to cautioned statements by Abdubillah Ismail Ndibalema, the 18^^ accused and Abdulrashid Said Sadick, the 22"^ accused as documentary exhibits in support of the prosecution case, both counsels for the two accused raised objection to its admissibility. Mr. Godfrey Kizlto Chambi learned counsel for the 18^^ accused raised objection to the effect that; The accused, Abdubillah Ismail Ndibalema has neither made nor signed any statement at the central Police Station Dar es Salaam or elsewhere. Whereas Ms. Caroline C. Mumba learned counsel for the 22"^ accused raised objection to the effect that; Page 3 of 27 The accused, Abdulrashid Said Sadick has never made, record or signed any cautioned statement in any police station within and outside the United Republic of Tanzania. This court ordered that trial within a trial will be conducted in respect of the two objections and disposed in one ruling for the reason that, P21 is the one who together attempted to tender the cautioned statements of both two accused. Before conducting trial within a trial, the court made directives that, since the cautioned statements are in respect of two accused persons named herein above and the case involves thirty-one (31) accused, made demarcation on the rights of the parties in raising objection. That whereas the maker of cautioned statements subject to this trial within a trial have both rights to raise factual and legal matters in respect thereof, the rest of the accused have right to raise legal matters only. In other words, all the factual matters are within the domain of the two accused persons and P21. Other accused will have no right to raise factual matter for the documents they did not make. They are strangers to the documents, however they are not strangers from raising legal matters thereof. The reason behind is that, the issue at hand is an objection in respect of documents made by specific accused, the 18^^ and 22"^ accused persons who alleged to have made the statements in question of which they are repudiating. All issues of involuntariness in procuring the documents falls within the domain of the makers (the 18^^ and 22"^ accused Page 4 of 27 persons) and procurer (P21) as they the only ones who stand in better position to testify as to how it was procured. In trial within a trial the prosecution witness TTPl (P21) testified that, on 03/07/2015 he was in the special police operation team looking for culprits suspected to have been engaging in terrorism crimes. The 18^^ and 22"^ accused were named by other accused persons arrested by TTPl (P21). Heading a team with nine police officers TTPl went to Kllungule- Mwisho while being led by informer. They arrived at about 10:00 hours at the house of Abdubillah Ismail Ndibalema, the 18^^ accused. TTPl introduced to 18^"^ accused he informed him that, he was accused of conspiring to commit terrorism crimes as such placed him under arrest. He searched him if he had any dangerous material in connection with alleged offence, they found nothing. TTPl testified that, they took the 18^'' accused to the police car and proceeded with looking for other suspect while 18^^ accused was in the police car. He testified that, operation ended at around 12:00 hours as he received directives to go back to the office. That on arrival at about 14:00hours the central Police Dar es Salaam he was directed to interview the 18^^ accused. That, TTPl left the accused with other police officers and went to prepare the Interviewing room. Thereafter, he took the 18^^ accused, one Abdubillah Ismail Ndibalema to the interview room. TTPl testified that, on arrival at the room he notified the accused Page 5 of 27 of his rights Including the right to call any relative, lawyer, friend to witness the recording of statement. He also told the accused to be free to adduce statement or not and In case he decides to do so, the statement may be used in court as evidence. That, In reply the accused stated that, he needed no presence of any relative or lawyer to witness the recording of statement and that he was ready and free to adduce such statement. That accused told TTPl his name as Abdubillah Ismail Ndlbalema. TTPl cautioned the accused that he was accused of conspiring to commit terrorism crime c/s 27 of the Terrorism Act, 2002. TTPl testified that, they all signed the preamble of cautioned statement and thereafter TTPl commenced recording statement from the accused. TTPl testified that, he commenced writing cautioned statement at 15:00 hours and completed at 17:07 hours. He told the accused to read and he read it and told TTPl to be correct. That at the end of recording the statement they all signed, where by accused place thump print and his name. TTPl testified that, the cautioned statement was recorded and it belongs to the accused. TTPl testified that, the complaint that, the accused did not make, record and sign such statement Is false. He was not aware of the accused before the incidence and that all the personal and family particulars In the caution and family and how he got involved in the terrorism acts. TTPl tendered the cautioned statement, TTP-IDl and stated that Information therein belongs to the accused, Abdubillah Ismail Ndlbalema. Page 6 of 27 In response to the cross-examination questions, TTPl stated that, according to section 50 of the Criminal Procedure Act, the recording of statement must be done within four hours from the time of arrest/restraint. Section 50 of the CPA excludes the time of travelling with accused from one point to another. He testified that, he wrote the cautioned statement of the two accused persons, Abdubillah Ismail Ndibalema and Abdulrashid Said Sadick before registering them in the detention register. The time they arrived at police station is not the time, he registered them in the detention register. The rationale behind the detention register is to keep record of the accused before placing him in custody. There is no proof of the time they arrived at Police station. There is no special procedure accused can write statement after been detained in custody or before being place in custody. He testified further that, the proof as to the time of arriving at Police was in his statement and that he did not produced the statement he wrote at Police. That, he had not tendered the statement proving the time, they arrived at the police station. It depends on the nature of offence itself if arrest can be done without arrest warrant. That, he arrested the accused without arrested warrant and search warrant. TTPl testified that, section 27 of the Terrorism Act empowered me to arrest without warrant. I was the ASP of the Tanzania Police Force at the time. Page 7 of 27 The Police General Order(PGO)requires me to have note book for keeping records activities performed by the respective officer. I did not testify that I have police note book for keeping records. On the other hand, TTDl Abdubillah Ismail Ndibalema testified by denying all information contained in TTP-IDl. He recounted that on 03/07/ 2015 at around 15:00 hours he was arrested at Kigamboni Ferry while he was heading to Kigamboni to see mineral dealer one Batashi. He lamented that, he was arrested by many people dressed in civiiian attire whiie holding firearms. He stated that he was sheitered by smali towel at his face boarded in car and sent to one building, on arrival he was asked his name where he stated that his name is Wema Abdul Ismaii. TTDl stated that he was severaliy beaten and next day was taken to Surrender bridge Police Station. TTDl shown the court how he was injured at the leg. He added that, on the third day he was taken to house where he was severely tortured. On 09/07/2015 he stayed at Oster Bay up to 22/07/2015 when he was taken to Kisutu Resident Magistrates Court where they were informed that, they were charged for terrorism acts. TTDl when shown Exhibit TTP-IDl stated that, he doesn't know the document, he had neither made nor recorded such statement and he had never signed any statement at any time. That, the signature appearing on the cautioned statement is not his as well as thump print. He thus invited this court to reject the admission of the said statement into evidence because it not Page 8 of 27 his statement as his name Wema Abdul Ismail and he did not know what is written therein, until on 22/07/2015 when he was taken to Kisutu Resident Magistrate joined in the case Criminal PI No. 45/2015. TTDI was cross- examined during which he stated that, his objection to admission of cautioned statement is that, he had never made statement at any Police Station. He doesn't remember the name written in the cautioned statement; he came across to the statement at the time of committal. The information contained in cautioned statement was different from his correct particulars and personal family Information. TTDI testified that, he had never made and signed any statement at any police station before any police officer. Further, he testified that, the names and all Information written therein do not belong to him. He stated that, his name Is Wema Abdul Ismail 51yers old, Muslim, Tanzanian. He detailed all personal and family information which defer from those contained in the cautioned statement, TTP- IDl. He totally repudiated all the Information contained in the cautioned statements and maintained that, he neither made nor signed in anyway the statement. Moreover, TTPl testified that on 06/07/2015 while In the special police operation at Kilungule -Mbagala, they went to Abdulrashtd Said Sadick while led by informer. Page 9 of 27 They arrived at house of Abdulrashid Said Sadick between 23:00 hours and 00:00hours. On arrival they knocked the door whereby Abdulrashid Said Sadick opened it. TTPl as team leader Introduced himself to the accused and told him that he was accused of conspiring to commit terrorism offences thus put him under arrest. He searched him if he had any dangerous material in connection with alleged offence, they found nothing. They took the accused to the police car at and proceeded with operation to look for another suspects. At around 05:00 hours of 06/07/2015 they left to the police station and arrived at Central Police Station Dar Es Salaam at 06:30hours. On arrival he was directed to take statement from the accused, Abdulrashid Said Sadick. Thereafter, he took the 22"^ accused, one Abdulrashid Said Sadick to the interview room. TTPl testified that, on arrival at the room he notified the accused of his rights including the right to call any relative, lawyer, friend to witness the recording of statement. He also told the accused to be free to adduce statement or not and in case he decides to do so, the statement may be used in court as evidence. That, in reply the accused stated that, he needed no presence of any relative or lawyer to witness the recording of statement and that he was ready and free to adduce such statement. That accused told TTPl his name as Abdulrashid Said Sadick. TTPl cautioned the accused that he was accused of conspiring to commit terrorism crime c/s 27 of the Terrorism Act, 2002. TTPl testified that, they all signed the Page 10 of 27 preamble of cautioned statement and thereafter TTPl commenced recording statement from the accused. TTPl commenced writing cautioned statement 08:00 hours and complete at 9:53 hours of 06/07/2015. On completion writing the statement, TTPl read the statement to the accused who confirmed to be correct. At the end of recording the statement they all signed, where by accused place thump print and his name. TTPl testified that, the cautioned statement was recorded and it belongs to the accused and that prior to the incidence they did not know each other. TTPl tendered the cautioned statement, TTP-ID2 and stated that information therein belongs to the accused, Abdulrashid Said Sadick. TTPl testified that, the complaint that, the accused did not make, record and sign such statement is false. He was not aware of the accused before the incidence and that all the personal and family particulars in the caution and family and how he gets involved in the terrorism acts. In cross examination, TTPl stated that at the time of arrest of the 22"^ accused, there were other people apart from the police, he doesn't have evidence that hamlet was present. He stated that on 06/07/2015 between 23:00 and 00:00 hours he arrested one Abdulrashid Said Sadick and it is true that at 8:00 hours to 9:53 hours he wrote cautioned statement from Abdulrashid Said Sadick. TTPl stated Page 11 of 27 that, according to section 50 of the Criminal Procedure Act, the recording of statement must be within four hours from the time of arrest. Abdulrashid Said Sadick testified as TTD2. He recounted that, he was arrested on 10/07/2015 at around 16:00 hours he was arrested at Mtoni Mtongani, Temeke, Dar es salaam and taken to Chang'ombe police station. He stayed from 10/07/2015 up to 13/07/2015. TTD2 lamented that, on 13/07/2015 he was transported to MIkochenI at one building where they asking him some question on his business, he was taken out all clothes and tied all his legs and hands and hanged him upside down. He was tortured from 13/07/2015 up to 15/07/20215. He stated that one of the police officers took a knife and threatened to kill him, he wounded him at his stomach. TTD2 testified that on 22/07/2015 he was taken to Kisutu Resident Magistrate where he joined with other culprits and charged in PI 45/2015. When TTD2 shown TTP-ID2 he was able to identify It, he stated that the cautioned statement has his name but the thump print, signature and hand writing is not his. He alleged that, he had never made any statement within and outside Tanzania. He invited this court to reject the admission of the said statement as evidence. Page 12 of 27 When TTD2 cross- examined, he testified by acknowledging his name but refuted all other information contained therein and denied to have signed the document in question. He also testified that, he had no evidence proving existence of the alleged facts as against what is narrated in the cautioned statement but just stated that he be believed in his oral testimonies. Having analysed the testimonies from both parties, this court assembled another concerns raised during cross examination of TTPl (P21) on non-compliance of provisions of law such as section 50 of the Criminal Procedure Act and the Police General Order (PGO) in procuring the statement. The prosecution side did not enter any re-examination to their witness, TTPl (P21) in respect of all matters raised by the defence counsels during cross examination. In the event, the court has assembled two issues for determination; 1. Whether the two repudiated or repudiated cautioned statements by 18^^ and 22"^ accused were recorded and procured in compliance with mandatory provisions of law governing such kind of statement. 2. Whether the two repudiated cautioned statements were obtained from the 18^^ and 22"*^ accused, respectively Page 13 of 27 When confession statement is retracted or repudiated by the accused the court is required to conduct trial within a trial to ascertain the voluntariness of the statement. The purpose of conducting trial within a trial is to enable parties and the court to ascertain that the accused; one^ made such statement or piece of evidence, two, statement was procured without coercion, inducement, beating or threat three,accused was made aware of his rights before adducing the retracted or repudiated statement, four,accused consented to write statement in question, five, statement was procured in compliance with law, six, statement was read by accused or caused to be read on that behalf to the accused, seven, accused confirmed that the statement is correct, eight, statement is signed or thumbed printed by the accused on all pages to avoid cooking of evidence on unsigned pages, nine, time for commencement and completion of writing statement is recorded by the recording officer, ten,statement is dated, eieven, statement has certification and signed by both accused and recording officer and any other person witnessing the process, tweive, that accused was inspected and his body status must recorded, in case the accused is found with injuries or bruises, the sources thereof must be recorded thirteen, write any other relevant information in connection to incidence. In so doing the court will be, inter alia, counterchecking testimonies and compliance with relevant provision of the law governing interview and recording Page 14 of 27 of cautioned statement such as sections 50, 51, 57 and 58 of the Criminal Procedure Act, Cap.20 R.E.2022 against what appears in the document in question. The question therefore is how do the court get to the destination. That will be done through conduct of trial within a trial. The process entails hearing of both parties on how the statement was procured from the accused. To discover the voluntariness or otherwise, the court considers three factors, that is; one, competence, two, materiality and three, relevance of the document sought to be tendered. The word, "competence" can be interpret to mean ability to do something in accordance with the prescribed procedure set up by the law. As such, the court will be looking legal compliance towards procuring the document in question. Due regards will be on compliance of procedures for procuring statement from the accused, the compliance of which makes it competent. It entails everything required to be done before, during and after of procuring the statement. Materiality means the quality of being relevant or significant. In this aspect, the objector is expected to establish materiality of the objection for it to be sustained and relevance means the state of being closely connected or appropriate to what is being done or considered. The mischief raised must be tangible and connected to process of procuring statement not a mere allegation. Competence, materiality and relevance will be assembled from the testimonies Page 15 of 27 from both parties proving how the statement was procured. In other words, the above thirteen features will be considered all of which fall within the words Competence, materiality and relevance. Courts are required to scan all the above processes towards ascertainment of voluntariness of statement in question. To conclude, the court looks at the testimonies, confession statement itself and all matter of legal compliances regulating procurement of the said confession. Having heard the parties and satisfied that, the statement was procured voluntarily, the court will proceed admit it or reject in case of involuntariness. The next question is who bears the onus of proving that the statement was voluntarily made? In the case of Richard Lubilo and another Vs R (2003) T.L.R 149, the court of appeal principled that; the law of this country is that in order for a confession to be admitted in evidence it mustbe voluntary. The iaw places the onus on the prosecution to prove affirmatively the voiuntariness ofany confession sought to be put in evidence''. As there is point of law arising from the evidence of trial within a trial on compliance of section 50 of the Criminal Procedure Act, Cap.20 R.E.2022 and other laws, the disposition of the same will commence and followed by the later as stated herein above. Page 16 of 27 t To start with, the time within which to record statement from the accused person is governed by section 50 of the Criminal Procedure Act, Cap. 20 R.E. 2022. The application of the said section was discussed in by the court of appeal Marceline Koivogui Vs Republic, Criminal Appeal No. 469 of 2017 where it propounded that; We begin with the position ofthe iaw reguiating the periods avaiiabie for interviewing a person under restraint which is stipuiated under section 50 ofthe CPA as foiiows: (1)For the purpose ofthis Act the period avaiiabie for interviewing a person who is in restraint in respect ofan offence is- (a) subject to paragraph (bj the basic period avaiiabie for interviewing the person that is to say, the period offour hours commencing at the time when he was taken under restraint in respect ofthe offence; (b)if the basic period avaiiabie for interviewing the person is extended under section 51, the basic period as so extended. It is not disputed that, the cautioned statement was taken at 17.00 hours out of prescribed time taking in account that the appeiiant was arrested on 19/5/2012 between 03.00 hours and 16.00 hours, and by 11.00 hoursshe was aiready atAnti-Drug Offices at Kurasini. Four hours iater, she was taken to the hospitai for examination and went back to ADU offices by Page 17 of 27 16.45 hours. No reason for the delay was given. We found this to be a serious the appellant was arrested, being aware ofthe prescribed time limits couid ha ve recorded the statement within the prescribed time at the airport. Ifthat was notpossible, the statementcouid have been reasonably recorded between 11.00 hours and 15.00 hours when the appellant was awaiting to be taken to the hospital which was stiii not the case. We are thus satisfied that having been recorded out of time, the cautioned statement of the appellant was iiiegaiiy obtained''. In Joseph Mkumbwa and another vs. The Republic, Criminal Appeal No. 94 of 2007 (unreported) the Court interpreted what is meant by being "under restraint" and when the basic period commences and stated that:- "In our view a person is deemed to be taken under restraint when he is arrested in respect of an offence, and that is when the basic period commences." In the case of Joseph ShabanI Mohamed Baya and Three Others Versus the Republic, Criminal Appeal No. 399 Of 2015, the court of appeal stated propounded that; 'It is apparent that the time allowed for interviewing a person is ordinarily within four hours from the time of arrest and in case an extension is required, for the following eight hours, the Officer In charge conducting the Page 18 of 27 interview must inform the accused and where more than the eight hours is required, a permission by a magistrate is required''. Based on the above interpretation by the court of appeal in section 50(1)(a) of CPA it is strictly that interviewing and recording of must be done within four hours from the time of arrest, unless extension of time is sought and vividly granted to do so as stated by the court of appeal in the case of Joseph Shabani Mohamed Baya and Three Others Versus the Republic. Section 50(2) of the CPA provides for exclusion of where certain intervening factor happens. It provides that; (2)In caicuiating a period avaiiabie for interviewing a person who is under restraint in respect ofan offence, there shaii not be reckoned as part of that period any time whiie the police officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation ofthe offence- (a) while the person is, after being taken under restraint being conveyed to a police station or other place for any purpose connected with the investigation; (b)for the purpose of- (i) enabling the person to arrange, or attempt to arrange, for the attendance ofa lawyer; Page 19 of 27 (ii) enabling the police officer to communicate, or attempt to communicate with any person whom he is required by section 54 to communicate in connection with the investigation ofthe offence; (Hi) enabling the person to communicate, or attempt to communicate, with anyperson with whom he is, under this Act, entitled to communicate; or (iv)arranging, or attempting to arrange, for the attendance of a person who, under the provisions ofthis Actis required to be present during an interview with the person under restraint or while the person under restraint is doing an act in connection with the investigation; (c) while awaiting the arrival ofa person referred to in sub paragraph (iv) ofparagraph (b); or (d) while the person under restraint is consulting with a lawyer. In the present case, TTP1(P21) testified that, he arrested the 18^^ accused one Abdulbillah Ismail Ndlbalema at Kilungule-Mwisho on 03/07/2015 at 10:00hrs. Page 20 of 27 That; he was led to the house of the accused by informer. He stayed with the accused continuing with operation up to 12:00hrs when he was called to go back to the office. That on arrival at police central station, at about 14:00hrs he was directed to record statement from the accused and he started recording It at 15:00hrs and completed at 17:07hrs. TTPl testified that, they went to the accused after being named by the already arrested accused, however, he did not testify where and whom did they go to arrest from lOiOOhrs to 15:00hrs. The cautioned statement was written after seven hours from time of arrest of Abdulbillah Ismail Ndibalema. This court was not told as to why they travelled with accused from Temeke to central Police Station while they have all facilities at Temeke Police Station where the accused was arrested. Even if they were to be transported to anywhere statement could have been recording anywhere instead of central police station. Accused person was not taken to any other place for any specific purposes be it to show other accused or led to discovery of some materials connected to the offence in question. TTPl did not mention the place or name of the person they were looking for from 10:00hrs to 15:00hrs. Accused testified that, they were nine police officers but none of them recorded statement at the nearest police post or station within Temeke Regional Police Office. As to the 22"^ accused, TTPl testified that, he arrested the accused on 06/07/2015 between 23:00 and OOiOOhrs. He stayed with accused from the time arrest to 08:00hrs when he wrote the Abdulrashid Said Sadick. The accused was examined Page 21 of 27 in chief and cross examined, as at what time did he arrest the accused and at what time he wrote the accused statement, TTPl maintained same position for five times that, he arrested the accused on 06/07/2015 between 23:00 and OOiOOhrs and wrote statement at from 08:00hrs and completed at 09:53hrs. Going by the testimonies by TTPl the statement was written before arresting the accused. The statement was written on 06/07/2015 at 08:00hrs-09:53hrs. This is confirmed by the cautioned statement TTP-ID2. TTPl testified and answered same question five times he stated that, the accused was arrested at 06/07/2015 between 23:00hrs and OOiOOhrs. Counting from 23:00hrs of 06/07/2015 when accused was arrested to 08:00hrs when the accused recorded statement, it is clear the statement was written after nine (9) hours from arrest. TTPl testified that after arrest he continued with operation to arrest other culprits which exercise continued up to 05:00hrs when he was ordered to go back to the office where he wrote statement, however, he mentioned no person whom he went to arrest and where he was at. Further, TTPl did not offer any explanations as why they stated with accused for nine (9) clear hours at Kllungule -Mbagaia Temeke without writing the cautioned statement. TTPl did not testify if the accused did lead the police officers to any discovery thence delay in writing cautioned statement. Further, TTPl did not state where did they go and to whom after arrest of accused. Within Temeke there so many Page 22 of 27 Police station/post. Why nine (9) police officers failed to record statement of one accused for more than nine (9) hours in contravention of mandatory provision of section 50 (1)(a) of the CPA. As, it established that, the two cautioned statement were written after expiry of four hours, there ought to be evidence that, TTPl invoked section 51 of the CPA and requested for extension of time to write cautioned statement outside the set up time limit. That legal position of seeking extension of time is cemented by the court of appeal decision in the case of Joseph Shabani Mohamed Baya and Three Others Versus the Republic, supra. However, there is no evidence if writing cautioned statements outside thetime limit was preceded by sanction from the authority as echoed by section 51 of the CPA. TTPl testified that, according to the Police General Order, every police officer must have Note book for keeping records of every incidence he is encountering on a day. He further testified that, the rationale behind is that, one should not use his head in keeping official records. He testified that, he testified that he did not record the incidence in any notebook. This court took time to read PGO no.282 of the PGO of 2006 which was in place in 2015. It noted that, it contains mandatory directives to all police officers. It reads that; 1. Every member of the Force shall be Issued with an official police notebook, anda PersonalDescription Aid(PF. 171)which mustbe carried in the notebook. Page 23 of 27 2. The rank, number and name ofthe ownershall be written In block letters on the Inside cover of the notebook. 3. Notebooks shall always be carried by all ranks on duty. 4. In criminal cases, accuracy is ofsuch importance that a Police Officer must not trust to his memory, but must enter at once in his notebook sufficient particulars of every incident or occurrence of which he is iikeiy to be called upon to give evidence. Descriptions ofpersons and scenes of crime shaii be noted down in accordance with the procedure iaid down in the PersonalDescription Aid(PF. 171), Had there been compliance of the above PGO, we would have been In a position to know what transpired at what time and who was In conduct of the same. Since it is confirmed that, the cautioned statements were written outside the prescribed time limit without any assigned reasons thereof by the recording officer, it goes without saying that, invocation of section 50 (2) must be preceded by intervening factors for such a delay. For the investigator to benefit from exception and write cautioned statement beyond the limit prescribed by law as stated herein, he must demonstrate and prove existence of one or more intervening factor which prevented him from doing a thing thence reliance of section 50(2) of the CPA. Page 24 of 27 Furthermore; if the TTPl found that, the time for recording the statement from the accused persons had lapsed, he could have applied for extension of time to the respective authority as elucidated herein above. This court is satisfied beyond sane of doubt that, the two cautioned statements by Abdulbillah Ismail Ndlbalema and Abdulrashid Said Sadick were recorded beyond the time limit of four hours prescribed by law. The next question is what is the legal effect of such cautioned statements written outside the time limit prescribed by law? The effect of acting In contravention of section 50 of the CPA has been established by the court of appeal In many authorities. To cite a few; In Lumuda Mahushi v The Republic, Criminal 29 Appeal No. 239 of 2011 and Joseph Mkumbwa and Another v The Republic, Criminal Appeal No. 9 of 2007 (both unreported) the Court, upon finding that, the statements were taken outside the prescribe time, proceeded to expunge the statements from the record. In another case of Pambano Mfillnge Vs the Republic, Criminal Appeal No. 283 of 2009 (unreported), the Court after quoting extensively sections 50 and 51 of the Act stated that; "Upon numerous occasions, this Court has been confronted with situation similar to the one at hand. (See the unreported decision of the Court in Criminal Appeal No. 278 of2008 - Emilia Aidan Fungo@ Aiex andanother v. R, CriminalAppealNo. 51 of2010 - Mussa Mustafa Page 25 of 27 Kusa V R, Criminal Appeai No. 126 of 2011 - Hamisi Juma @ Nyambanga and another VR, CriminalAppeai No. 261 of2011 -Majuii Longo and another v RJ. In all these decisions the Court heid that noncompiiance vitiated the particular cautioned statement. To this end, we are left with no other option than to expunge the cautioned statementfrom the record. "(Emphasis Is ours). The 2nd, 3rd and 4th appellants statements', as demonstrated above, were taken In contravention ofthe provisions ofsection 50ofthe Act The learned Senior State Attorney conceded on this. The cautioned statements are hereby accordingly expunged from the record. For the interview and recording of statement to be done outside the time prescribed by section 50 (1) (a) of the CPA, there must be a proof by the prosecution side that, one or more factor existed thus invocation of section 50 (2) of the CPA. Short of that, the four hours principle as per section 50 (1)(a) of the CPA applies. As the first issue has been able to dispose the fate of the cautioned statements, this court finds no need to discuss the second issue. That said and done, this court hereby reject the prayer for admission of cautioned statements by Abdulbillah Ismail Ndibalema and Abdulrashid Said Sadick on the grounds stated herein above. Page 26 of 27 IT IS SO ORDERED DATED at DAR ES SALAAM this 28^*^ November, 2024 ■'v , G. P. MAL/TA JUDGE r 28/11/2024 RULING delivered at DAR ES SALAAM In open court this 28^^ November, 2024 in the presence of Prosecution and defence counsels and all accused. qOUR o G. P. MALATA A.'- JUDG •.V ^ 28/11/2024 Page 27 of 27