leonard joseph chota another vs republic 1987 tzca 80 29 april 1987

IK I HI COURT OF APPEAL OF TANZANIA AT j J3EYA QORAK; MUSTAFA, AG. C.J. j . *. akd pe a r , j .a. CRIMINAL APPEAL NO. 53 OF 1986 LEONARD JOSEPH CHOTu > ANOTHER . . . . APPELLANTS Versus THE REPUBLIC . . . . . . . . . . . . . . . . . . . . . . RESPONDENT (Appeal from the Conviction and Sentence of The High Court of Tanzania at Iringa) (Mwaikasu, J .) dated I3th August, 1986 in Criminal Sessions Case No. 57 o f 1983 JUDGMENT OF THE COURT EAKAME, J .A . The two appellants LEONARD J'^'EPH CHOT A and CARLO JOSEPH CHOTA are brothers. They were aliegod to have murdered a c o -v i lla g e r c a lled DANIEL FF,FGIFG.„ The High Court at Irin g a , (Ewaikasu, J . ) , found them g u i l t ; of the offeree charged and duly sentenced them to s u ffe r death. The/ arc appealing to th is Court and arc being repre­ sented by Er. Mvvakingwe, learned advocate. On behalf o f the Repub­ l i c Mr. Ndunguru supported the High Court decision . The conviction of the two appellants was based on th e ir confessions to the v i l l a g e r s , includin-.* th e ir own mother, P'73 TAABU SEVATE. Mr. Mvvakingwe ’ s main ground of complaint was that the confessions wore involuntary and also that as these wore retracted they needed to be corroborated for them to ba relied. on, -and. there was no such corroboration. Mr. Mwakingwo subnittad that because the appellants were hand­ cuffed when they' nade the alleged confessions the confessions were n e c e ss a rily involuntarys The confessions -were extracted under torture and undue influenc . P. think t h i t that i s too wide a proposition. People who arc aaudcuffod can make voluntary confes­ sio n s. I t a l l defends on the evidence. ”/e sec no evidence to support the claim that the confessions were other tho.n voluntary. Indeed, according to PY/4 FeSTOFI 3APGA, the V illa g e Secretary, the f i r s t appellant s p e c i f i c a l l y assured the v i l l a g e r s , when asked by them, that they had not been forced to confess to the k i l l i n g . Further, there was the confession the two appellants made to th eir own mother,, on a d iffe re n t occasion, and before th e ir apprehension. This was in the absence of any other person. Mr. Iwakingwe submi­ tted that that particu lar confession was suspect any way, because the mother was inside the house and only heard the a p p e lla n ts’ vo ic e s . However; Mr. Mwakingwe grace fu lly abandoned that lin e when i t was brought to his attention that, according to the evidence, at a certain stage on the same occasion the second appellant ca lle d her out o f the house and repeated the confession*„ Mr. Mwakingwe also submitted that the learned t r i a l judge f a il e d to explain to the gentlemen assessors that i t i s the practice to look for corroboration when a confession i s retracted . With resp ect, Mr. Mwakingwe i s r ig h t . This was a non-direction on the part of the learned t r i a l judge. We arc s a t i s f i e d , however, that had the learned t r i a l judge s p e c i f i c a l l y directed the gentlemen assessors and him self on the is s u e , corroboration would have been found in the act of the appellants leading to the two d iffe r e n t spots from where the deceased's sorry remains were retrie v e d . In fact the t r i a l judge did re fe r to the fact that the two appella­ nts had led the v i l l a g e r s to the remains of the deceased in his judgment when dealing with the truthfulness of the confessions. We note that ev r. without such s p e c i fic d irectio n , the two gentlemen assessors .themselves referred to the fact that the appellants had led the way to the remains of t-v; deceased and considered, that as a supporting or corroborative factor of the confessions. We are s a t i s f i e d t h a t t h e two ..ppeiiantis were pi’oparly c o n v i c r t o d . We therefore dismiss t h e i r appeals. D \TT]D at KBTfA t h is 29th da / of A p ril, 1987- AG. C H I’ -F JU3TICT 1 j Li U. LiKAM^ J U S T I a J OF APPEAL OFAR appeal X c e r t i f y that t h i s i s truo copy of tlic o r ig in a l. it- ( j . H. Ksoffc) DEPUTY ifHGISTR^R