thadei mlomo and 2 others vs the republic 1995 tzca 37 16 june 1995

IN THE COURT OF APPEAL OP TANZANIA AT MBEYA ( CORAM; RAKADKANIt J . A . , MPA L I L A , J . A . c And LUBUVA, J . A . ) CRIMIITAL APPEAL NO. 33 OP 1S94 EET.ffiEN 1. T HADEI ML01.10 2. CHARISS NYTIIBO 3. SEN SANGA J%J......................APPELLANTS AID TIIE REPUBLIC.................................... RESPONDENT (Appeal from the c o n v ic tio n and sentence o f the High Court o f Tanzania at Mbeya) ( Uchome, J . ) dated the 11th day o f September, 1993 in Crim inal Sessions Case No. 102 o f 1990 JUDGI-.IBNT OP THE COURT HADHAITI . J .A .: On 3rd August, 1988, Martin Mhenga, deceased, was on duty guarding a bridge on the Uhuru Railway, at M gololo, M ufindi D i s t r i c t i n I r i n g a Region. His company in clu ded Abdalli.h Selemani, P 7 .7 . They were attached and robbed t h e i r two Semi-Machine Guns (SFG-) each w ith a magazine c o n ta in in g t h i r t y rounds o f ammunition* The deceased g o t k i l l e d i n the process v/hile PW.7 was l e f t s e r io u s ly wounded. Pour people were charged w ith the murder o f the d eceased. Three o f them, the a p p e lla n ts here, Thadei Mlomo, Charles Nyimbo and Ben Sanga, were con victed by the High Court o f Tanzania a t libeya (MCHOME, J , ) . S 1 « •//? 2 The learn ed judge was s a t i s f i e d w ith the evidence b e fo re him. Somehow, Charles Kyimbo, A p p e lla n t 2, was a r r e s t e d at Makambako on 3/10/88 and th a t in fo rm a tio n was sent t o the p o li c e i n I r i n g a . A . 3 .P. K is ik a (P W .l) i n the company o f SSgt. Zakayo (PW.2) went to Makambako to i n t e r r o g a t e him. He admitted having p a r t ic i p a t e d i n a number o f r o b b e r ie s in c lu d in g t h i s one o f the two SMGs which caused the death o f the deceased. His camaraderie s p i r i t brokedown and mentioned h is c o - p a r t ic i p a n t s . A p p ella n t 2 s a id th a t he slashed PV/.7 w ith a pang a and g o t hold o f h is gun. As the deceased emerged to g iv e assistan ce to PV7.7, he was shot by Thadei Mlomo, A p p ella n t 1, and th e y took d ec ea se d ’ s gun, t o o . p'.7,l t r a v e l l e d to Dar es Salaam w ith A p p ella n t 2 who p o in te d out the houses o f Ben Sanga, A p p ella n t 3, and th a t o f A p p e lla n t l j Only A p p ella n t 3 was a r re s te d in h is house but A p p e lla n t 1 was not found in the in d ic a t e d house. A fte r t h a t , PW .l retu rn ed t o I r i n g a w ith A p p ella n ts 2 and 3. The team o f i n v e s t i g a t o r s , apart from PW.l and PW.2, in c lu d e d SSgt. Semu (PY/.3), In s p e c to r Gregory (PW.4) and D/3gt Jonathan (PW .5). A p p e lla n t 3 i n i n t e r r o g a t i o n d is c lo s e d another p a r t i c i p a n t a t Matanana, K u fin d i. P,7,1 f a i l e d t o a r r e s t th a t o th e r -person but he was t o l d o f a guest o f th a t person from Dar es Salaam who happened to be A p p ella n t 1. So, he was a r r e s t e d . A p p e lla n t 1 le d the i n v e s t i g a t o r s to the p la c e where he had buried h is gun and i t was re c o v e r e d , *. •. / 3 A p p e lla n t 3 f a i l e d to loc.-te the p lace lie had buried h is gun. However, A p p e lla n t 1 p oin ted out that p la c e , which was v e r y clo s e to where he had laid h is , and A p p ella n t 3 owned the unearthed gun. Both A p p ella n ts 1 and 2 recorded e x t r a - j u d i c i a l statem ents, Exh. P5 and Sxli. P6, r e s p e c t i v e l y , b e fo r e Stephen Mbungu (PY7.6), a p r i m a r y Court M a g is tr a te . A p p e lla n t 2, a ls o , recorded a p o l ic e caution statem ent, Exh. P4. A l l the th re e statements n a rra ted the even ts as summarised above. A p p ella n t 3, however, did not re c o rd any statem en t. These statements were repu diated and the learn ed judge h eld a t r i a l - w i t h i n - a - t r i a l . The A p p ella n ts a l le g e d to have been t o r t u r e d i n t o making them. The learn ed judge re lie d on S e c tio n 29 o f the Evidence Act, 1967 and admitted them. In t h e i r defence the A p p ella n ts f l a t l y denied e v e r y t h i n g , even knowing one another. A p p ella n t 1 said he o n ly knew A p p ella n t 2 because th ey were both in the business o f s e l l i n g maize. The appeal was argued by Mr. Kkumbe, learn ed ad vocate. He had fo u r grounds o f appeal. In the f i r s t ground the A p p e lla n ts complained th a t the learn ed t r i a l judge e r r e d in a d m ittin g the statem ents o f A p p ella n ts 1 and 2 since th e y were n ot v o l u n t a r i l y made. Grounds two, three and fo u r o b je c t e d the admission o f a copy o f a judgment o f t h i s Court as evidence a g a in st the A p p e lla n ts . 4 ,7e s li a l l d e a l f i r s t with. the l a s t th ree grounds. A judt'smsnt o f t h i s Court (Sxh. P8) was used to secure the c o n v i c t io n o f the a p p e lla n t s . In th a t judgment we c o n s o lid ..te d a number o f appeals and wo upheld the D i s t r i c t Court o f I r i n g a which co n v icted the .Appellants and oth er persons on t h e i r own p lej.s o f g u i l t y t o c e r t a in charges o f ro b b e rie s. Mr. ncumfce submitted th a t i t was not p roper t o do so while I'~r. m-bise, learn ed -Senior rJtate A tto rn e y , contended th at i t was p ro p er. I t i s our con sidered opinion t.iat we do not have to r e s o l v e th a t is s u e . There i s s u f f i c i e n t evidence to support tlie c o n v ic t io n even without 3xh. p8. So, wc le a v e th a t m atter to be determined one way or the other i n an a p p ro p ria te appeal. The f i r s t ground o f appeal c h a lle n g e s the statements which ';ere produced at the t r i a l . A dm ittedly, and as p o in te d out by ?'Ir. Ironhe, A p pellants 1 . .nd 2 rep u d ia ted t h e i r con fes s io n s at tins t r i a l . The learn ed t r i a l judge found th a t the c o n fes s io n s might have been obtained in v o lu n ta rily . N e v e r t h e le s s , he admitted them under S e c tio n 29 o f the Evidence A ct, 1967. However, we agree w it h Mr. Mbise th at th a t was p ro p er, Llay be we s t a r t w ith S e c tio n 27 o f th at Act which p ro v id e s : ” 27. ~ (1 ) A c o n fes s io n v o l u n t a r i l y made to a P o l i c e O f f i c e r by a person accused o f an o ffe n c e may be oroved as again st th a t -person. 5 (2 ) Tiic onus o f p ro vin g th at any c o n fe s s io n made by an accused person was v o l u n t a r i l y made by him s h a l l l i e on the p ro secu tio n * (3 ) A c o n fe s s io n s h a l l be held t o be in v o lu n t a r y i f the Court b e l i e v e s th at i t was induced by any t h r e a t , promise or other p r e ju d ic e held out by the P o lic e O f f i c e r t o whom i t was .'a;:.do or by any member o f the P o l i c e Force or by any other person in a u th o rity ". T h is s e c t io n p ro v id e s f o r the admission o f a v o lu n ta r y c o n fe s s io n a g a in st the maker in a t r i a l * I t a ls o p r e s c r ib e s when a c o n fe s s io n i s and when i t i s not v o lu n ta r y . The onus o f p ro v in g v o lu n ta r in e s s i s on the p ro s e c u tio n . However, an in v o lu n t a r y c o n fe s s io n i s a ls o admissable if the Court b e l i e v e s i t t o be tru e* That i s under S e c tio n 29 which p r o v id e s : H29* No c o n fes s io n which i s ten dered i n evidence s h a l l be r e j e c t e d on the ground th a t a promise o f th r e a t has been held out to the person c o n fe s s in g unless the Court i s o f the opin ion th a t the inducement was made i n such circumstances and was on such nature as was l i k e l y t o cause an untrue admission o f g u i l t to be made5,#j It i s d o u b tfu l th at the l e g i s l a t o r intended i t to be "a promise o f t h r e a t 1' and not ;,a promiso or t h r e a t ” . We th in k i t i s the l a t t e r and th a t the form er i s a t y p o g r a p h ic a l e r r o r . This s e c tio n appears to us to en capsulate the p r i n c i p l e enunciated in the Tuwamoi *s case, /l9(o ]/ 3A 84. T h is i s the s e c t io n which MCHOME, J. used t c admit the c o n fe s s io n s o f AppeH ants 1 and 2. Under 3. 27 once a con fes s ion lies been proved t o be v o l u n t a r i l y made then, i t would appear, a Court w i l l accept it as the t r u t h . However, i f a c o n fes o io n was in v o lu n ta r y , then i t w i l l be accepted Linder S. 29 i f the Court i s o f the o p in io n th a t the c o n fe s s io n c o n s t it u t e s the t r u th . So, i n the form er s e c t io n the tr u th o f the c o n fes s io n i s presumed by the Court while i n the l a t t e r the t r u t h has to be con c eiv e d by the Court. 7/e may p oin t out that t h i s h o ld in g i s not i n c o n f l i c t w ith our p reviou s d e c is io n i n Marcus K is ukuli v . E , C rim in al Appeal No. 146/93 (u n r e p o r t e d ). There we said th a t 3, 29 cannot be used where there i s a c tu a l t o r t u r e . Here th e re was no p r o o f o f to rtu re but o n ly t h r e a t s . The qu estion f o r us i s t o determine whether the inducement was such as " t o cause an untrue admission o f g u ilt-, V/e have t o determine whether the c o n fes s io n i s tru e or n o t. F irs t o f a l l , what i s contained i n the statem ents as t o what happened th at f ^ t e f u l l n igh t at the b rid g e at M go lo lo , t a l l i e s w ith the evidence o f PW.7, the guard who su rv ive d the onslaught*. Secondly, A p p ella n t 1 le d the i n v e s t i g a t o r s t o the d is c o v e r y o f the two guns which were robbed from the deceased and PW.7*. Tiie s e r i a l numbers ® wr /? •v I 7 o f those 31ms (Exh. P I and Exh.. P2) arc the same as the guns which were issu ed to the deceased r.nd 7 per the armoury r e g i s t e r (Exh. P 3 )« 3o, the con fes s ion s o f A p p e lla n ts 1 and 2 must be tr u e . LIr. ivlkumbe p o in te d out th at A p p c lla n t 3 did not make a statement so he should not be c o n v ic tc d s o l e l y on the c o n fe s s io n s o f co-accused persons. ,7e concede t h a t . In such a case, the law r e q u ir e s c o r r o b o r a tio n . However, we say th a t th ere i s c o r r o b o r a tio n . Though Appellant 3 f a i l e d t o p in - p o in t whore he had buried h is gun, he le d the i n v e s t i g a t o r s to the same area whore Appellant 1 had buried h is and where, l a t e r , A p p ella n t 1 un:-..rtiied the gun which had been i n the p ossessio n o f A p p ella n t 3. That cannot be c o in c id e n ta l. He a c t u a l l y possessed the gun, hid i t and knew the lo c a t io n o f h id in g . E it h e r g e n u in ely or by pretence he f a i l e d t o p o in t out the exact spot he had buried i t . When i t was unearthed, A p p ella n t 3 owned i t . Ho denied to have done t h a t , but the learn ed t r i a l judge b e lie v e d the in v e s tig a to r s . '.7e have a b s o lu t e ly no reason to d i f f e r w it h him. So, we dism iss the appeal in i t s e n t i r e t y . D...TED AT MB3YA THIS 16TH DAY OF JUII3, 1995. /8 8 ^ , Vy , ;, , T\T*T* ^ * O » J_i » iiiJ. a -—<*m. J. •JL JUSTICE OF APPEAL I c e r t i f y th a t t h i s i s a true copy o f the o r i g i n a l . DEPUTY REGISTRAR