thadei mlomo and 2 others vs the republic 1995 tzca 40 16 june 1995

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ' ( CORAM: RAKADHANI. J.A .. MFALILA. J.A.. And LUBUVA. J .A .) CRIMINAL APPEAL NO .& OF 1994 BET',VEEN 1. THA DEI MLOKO \ 2. CHARLES NYII.IBO « ....................APPELLANTS 3. BEN 3ANGA J A ID TIIE REPUBLIC................................ RESPONDENT (Appeal from the conviction end. sentence ~ of the High Court of'Tanzania at Mbeya) (Uchome, J .) dated the 11th day of September, 1993 in Criminal s e ss ions Case No. 102 of 1990 JUDGE'SITT OF THE COURT RAHADHAKI . J .A .: On 3rd August, 1988, Martin Mhenga, deceased, was on duty guarding a bridge on the Uhuru Railway, at Mgololo, • Mufindi D istrict in Iringa Region. Eis company included Abdallah Selemani, PW.7. They were attacked and robbed th e ir two Semi-Machine C-uns (S3*G) each with a magazine - containing th irty rounds of ammunition. The deceased got k ille d in the process while PW.7 was l a f t seriously wounded Four people were charged with the murder of the deceased. Three of them, the appellants here, Thadei Mlomo Charles Nyimbo and B^n Sanga, were convicted by the High Court of Tanzania at LIbeya (MCHOME, J . ), 2 - The learned judge was sa tisfie d with the evidence before him. Somehow, Charles Kyimbo, Appellant 2, was arrested at Makambalco on 3/10/88 and that information was- sent to the police in Irin g a. A .3.P. ICisika (PW.l) in the company of SSgt. Zakayo (PW.2) went to Makambako to . interrogate him. He admitted having participated in a number of robberies including th is one of the two SMGs which caused the death of the deceased. His camaraderie s p ir it brokedown and mentioned his co-participants. Appellant 2 said that he slashed PW.7 with a panga and got hold of his gun. As the deceased emerged to give assistance to PW»7» he was shot by Thadei lilomo, Appellant 1, and they took deceased’ s gun, too. PW.l travelled to Dar es Salaam with Appellant 2 who pointed out the houses of Ben Sanga, Appellant 3, and that of Appellant 1* Only Appellant 3 was arrested in his house but Appellant 1 was not found in the indicated house. After that, PW.l returned to Iringa with Appellants 2 and 3. The team of investigators, apart from PW.l and PW.2, included SSgt. Semu (PW.3), Inspector Gregory (PW.4) and D/Sgt Jonathan (Pffl.5). ----- Appellant 3 in interrogation disclosed another participant at Matanana, Kufindi. PW#1 fa ile d to arrest that other person but he was told of a guest of that person from Dar es Salaam who happened to be Appellant 1. So, he was arrested. Appellant 1 led the investigators to the place where he had-tMried his gun and i t was recovered. . . . ./3 - 3 - Appellant 3 fa ile d to.locate the place he had buried his gun. However, Appellant 1 pointed out that place, which was very close to where he had hid his, and Appellant 3 owned the unearthed gun. Both Appellants 1 and 2 recorded e x tra -ju d ic ia l statements, Exh. P5 and Exh. P6, respectively, before Stephen Mbungu (P7/.6), a Primary Court Magistrate. Appellant 2, also, recorded a police caution statement, Exh. P4. A ll the three statements narrated the events as summarised above. Appellant 3, however, did not record any statement. These statements were repudiated and the learned judge held a t r i a l-w it h in -a -t r ia l. The Appellants alleged to have been tortured into making them. The learned judge re lie d on Section 29 of the Evidence Act, 1967 and admitted them. In their defence the Appellants f l a t l y denied everything, even knowing one another. Appellant 1 said he only knew Appellant 2 be cause they were both in the business of s e llin g maize. The appeal was argued by Mr. Mlcumbe, learned advocate. He had four grounds of appeal. In tho f i r s t ground the Appellants complained that the learned t r i a l judge erred in admitting the statements of Appellants 1 and 2 since they were not voluntarily made. Grounds two, three and four objected the admission of a copy of a judgment of th is Court as evidence against the Appellants. . . . ./ 4 - 4 - ,7e sh all deal f i r s t with the last three grounds. A judgment of th is Court (Sxh. P8) was used to secure the conviction of the appellants. In that judgment we consolidated a number of appeal's and we upheld the D istrict Court of Iringa which convicted the Appellants and other persons on their own pleas of g u ilty to certain charges of robberies. Mr. Iikumbe submitted that i t was not proper to do so while Mr. tibise, learned Senior State Attorney, contended that i t was proper. I t is our considered opinion that we do not have to resolve that issue. There i s su fficien t evidence to support the conviction even without 3xh. P8. So, we leave that matter to be determined one way or the other in an appropriate appeal. The f i r s t ground of appeal challenges the statements which '.,-ere produced at the t r i a l . Admittedly, and as pointed out by Mr. i’lruxibe, Appellants 1 . .nd 2 repudiated th e ir confessions at the t r i a l . The learned t r i a l judge found that the confessions might have been obtained in volun tarily. Nevertheless, he admitted them under Section 29 of the Evidence Act, 1967. However, we agree with Mr. Mbise that that was proper, Kay be we start with Section 27 of that Act which provides: "27. - (1) A confeasion voluntarily made to a Police O fficer by a person accused of an offence may be proved as against that person. 5 (2) The onus of proving that any confession made by an accused person was voluntarily made by him sh all lie on the prosecution. (3) A confession sh all be held to be involuntary i f the Court ... ------ " *8* believes that i t was.r-induced by any threat, promise or other prejudice held out by the Police O fficer to whom i t was made or by any member of the Police Force or by any other'person in authority". This section provides fo r the admission of a voluntary confession against the maker in a t r i a l . It also prescribes when a confession is and when it is not voluntary. The onus of proving voluntariness is on the prosecution. . However, an involuntary confession is also admissable i f the Court believes i t to be t r u e T h a t is under Section 29 which provides: *’29. No confession which i s tendered in evidence sh a ll be rejected on the ground that a promise of threat has been held out to the person confessing unless the Court is of the opinion that the inducement was made in such circumstances and was on such nature as was lilcely to cause an untrue admission of g u ilt to be made", . 6 I t is doubtful that the le g is la to r intended i t to be "a promise of threat" and not !'a promise o£ th reat". We think i t is the la tte r and that the former is a typographical error. This section appears to us to encapsulate the principle enunciated in the Tuvvamoi' s case, /TL9677 3A 84 . This is the section which MCHOME, J. used tc admit the confessions of Appellants 1 and 2. Under _3._ 27 once e confession has been proved to be volu n tarily made then, i t would appear, a Court w ill accept i t as the truth* However, i f a confession was involuntary, then i t w ill be accepted under 3. 29 i f the Court i s of the opinion that the confession constitutes the truth, So, in the former section the truth of the confession is presumed by the Court while in the la tte r the truth has to be conceived by the Court, V/e may point out that th is holding is not in conflict with our previous decision in Marcus- Klsulculi v, R, Criminal Appeal No. 146/93 (unreported). There we said that 3. 29 cannot be used where there is actual torture. Here there was no proof of torture but only threats. The question for us is to determine whether the inducement was such as "to cause an untrue admission of g u ilt " , V/e have to determine whether the confession is l true or not. F irst of a l l , what is contained in the statements as to what happened that fa t e f u ll night at the bridge at Mgololo, t a lli e s with the evidence of PW.7, the guard who survived the onslaught. Secondly, Appellant 1 led the investigators to the discovery o.f the .two gunsswhich were robbed from the deceased and PW.7. The s e ria l numbers . . . . / I - 7 - of those guns (Exh. PI and Exh. P2) arc the same as the guns which were issued to the deceased :;nd PV/.7 per the armoury re giste r (Exh. P3). So, the confessions of Appellants 1 and 2 must be true. Mr* Mkumbe pointed out that Appellant 3 did not make a statement so he should not be convicted solely on the confessions of co-accused persons. .ve concede that. In such a case, the law requires corroboration. However, we say that there is corroboration. Though Appellant 3 fa ile d to pin-point where he had buried his gun, ho led the investigators to the sc,me area where Appellant 1 had buried his end where, la te r, Appellant 1 unearthed the gun which had been in the possession of Appellant 3. That cannot be coincidental. He actually possessed the gun, hid i t and knew the location of hiding. Either geiroinely or by pretence he fa ile d to point out the exact spot he had buried i t . 7/hen i t was unearthed, Appellant 3 owned i t . He denied to have done that, but the learned t r i a l judge believed the in vestigators. ',7e have absolutely no reason to d iffe r with him. So, we dismiss the appeal in i t s entirety. DATED AT UBSYA TEES 16TK DAY OF JUKE, 1995. • . . */8 8 A.S.L. RALIADIIANI JUSTICE OF__APPEAL L.M. MPALI LA JUSTICE OP APPEAL r ■ V # . v.V r> -' / > ,-i ■ ■■■■■ ■> ■ - \ r;n i <i! - ! U \ * V s £;'■')<5:^ ’ •: !i f/ v / D.z. LUBUVA "V *■ 's.. •^ -V * X -’ '•*---- JUSTICE OF APPEiiL I c e rtify that th is i s a true copy of the o rigin al. ( E.3. iffiiKc/Af,I ) DEPUTY REGISTRAR