20040610 TZCA Mbeya 1

- IN_ THE (;OURT OF APPEAL OF TANZANIA AT MBEYA - · (CORAM: MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.) CRIMINAL APPEAL NO. 37 OF 2004 BETWEEN 1. ALPHONCE MWALYAMA } . . - -- · 2. ANTHONY GONELAMENDA .................._.._._ ......... APP. ELLANTS 3. LINUS MWAKAJENDAJI ANp THE REPUBLIC ........................................................ RESPONDENT (Appeal from the Judgment of the High_ Court of Tanzania at Mbeya) (Wambura, PRM / Extended Jurisdiction) dated the 21 st day of June, 2000. m Criminal Sessions Case No. 23 of 1996 JUDGMENT OF THE COURT MSOFFE, J.A.: The appellants were convicted of Murder and sentenced to suffer death by hanging. They are dissatisfied and hence this appeal. At the ·.hearing of the appeal Mr. Mwakolo, learned advocate, advocated for them while Mr. Boniface, learned State Attorney, argued the appeal on behalf of the Republic. Mr. Boniface did not 2 support the conviction. for reasons which will be apparent in this Judgment. . At the trial, it was apparent that the deceased Mohamed Mussa Kigonga lived in a village known as Mtamba. He was unmarried and stayed in one. house. with his father.. The appe11ants lived in the neighbouring village of Ukwavila. The deceased was engaged to one Rhoda Mwandupe (PW2) of Ukwavila Village. · At the same time, it was alleged that the first appellant was also interested in Rhoda who was not prepared to accept him. The first appellant detected that he was refused because Rhoda was interested in the deceased. So he decided to interfere with the aim of stopping the friendship between Rhoda and the deceased. He accordingly enlisted the assistance of the. 2nd and. 3rd appellants and one Aloyce Mwanjute who has since died. They planned to attack the deceased during his next visit to Rhoda. On 18/7/93, in the evening, the deceased visited Rhoda. He· was riding a bicycle "Phoenix" make. On the way, he was seen by the first appellant who alerted the other appellants and Aloyce Mwanjute. Together, they followed the deceased whom they found 3 outside Rhoda's house. Aloyce Mwanjute, who had a hoe, struck it . . : .- . . on the deceased's head and he fell down. He died instantly. Then they picked up the deceased's bicycle· and. used it to· ride and take away the dececlsed to a bush. They left the deceased in the bush · and Aloyce Mwanjute took the bicycle to his home. A search for the deceased was mounted. On 27/7/94 his remains were found in the bush. The remains could be identified because they had pieces of clothes which were identified to be those· of the deceased. Also, there was a trail of blood leading to Rhoda's house. Rhoda was put to task and she accordingly explained what took place outside her . house on the fateful day. The first appellant was . accordingly arrested and named the other appellants and the deceased Aloyce Mwanjute. The first appellant also made a cautioned statement in which he named the said appellant and Aloyce Mwanjute. He repudiated the statement at _the trial;_ Hence a trial within trial was conducted after which the statement was admitted in evidence. In their defence, the appellants denied killing the deceased;. The first appellant did not simply deny the killing but he went on to say that 4 he never made any _statement to the police. The trial Court disbelieved the appellants and hence the conviction and sentence. In the memorandum of appeal which was drawn and filed by f:1r. Mwakolo there are three grounds which read as follows:- 1. That the learned PRM (EJ) erred in law and · fact when. she convicted and sentenced the appellant on the offence of murder while the prosecution failed. to prove its .case beyond any reasonable· doubt. 2. That the learned (PRM EJ) erred in law and facts when she admitted .the caution statement of the 1st accused which had a lot to be desired having been retracted by · the appellant and not properly taken by . PW4 one Cpl. Mathias. 3. The .learned Hon.· PRM (EJ) erred in law and fact when she held that the appellant killed ..· the deceased with malice 5 aforeth9ught which wasn1t proved by the prosecution. ·· In arguing the appeal, Mr. Mwakolo decided to begin with the second ground. The complaint in this ground hinges on one major point i.e. that the caution statement (Exh. PS) was wrongly admitted in evidence because it was not recorded according to law. In the submission of Mr. Mwakolo, a number of requirements stipulated under The Criminal Procedure Act, 1985( were not complied with. He cited the following examples:- One, the first appellant was not given the opportunity· to· communicate with a relative or a friend, contrary to the provisions of S. 53 ( c) (ii) of the above Act.· Two, the appellant was.not informed of his right to a lawyer., contrary to S. 54 ( 1) of the above Act. Three, the statement was not read over to the appellant and asked if he wanted to make any alteration or correction, contrary to S. 57 (3) W of the above Act. V 6 In conclusion on the point, Mr. Mwakolo was of the view that a . . . . . . . "wrong" statement was· used to convict the J st appellant (who was said to have made it) and the other appellants (who were mentio_ned · in the said statement). Mr. Boniface supported Mr. Mwakolo on the . above observations and went further to say that it was also possible and likely t_hat even the certificate appended at the bottom of the. statement was obtained by force. Hence, if it was so obtained then the· essence of making. the statement was defeated because the document was not made voluntarily. He cited S. 27 of The Evidence Act, 1967 requiring that a statement be made voluntarily.. He continued to argue further and say that in an ideal case a conviction could be grounded on the basis of a cautioned statement in line with S. 33 (1) of the above Act, but under sub-section (2) thereof, corroborative evidence would be needed. In conclusion, he was of the view that assuming the caution statement was properly recorded and admitted in evidence, still no conviction could lie for want of corroboration. 7 We have given c;:areful thought and consideration to learned counseL's argu~ents on the above point. In the end, vve are satisfied that the complaint in the second ground of appeal has merit. It is true that the cautioned statement was not properly recorded as · stipulated by the law. That was, no doubt, irregular because the above cited provisions. of the law ar~ mandatory. The failure to observe the procedures rendered the document worthless and it could not, therefore, be used in grounding the conviction. Once the statement was excluded from the evidence, the ultimate and inevitable conclusion was that there was no other strong evidence to _convict the appellants. . We say so because the prosecution case either advanced or fel.l with the cautioned statement. But that is not the end of the matter. A look at the record will show that the firstappellantnever admitted, in the first place, to have ever made a statement to the police. In other words,· all he has been saying all along is that the cautioned statement (Exh. PS) was not his document. In our view, the trial Court had to jump this "hurdle" first by decidi~g whether the first appellant ever made a statement before deciding whether the said · statement was made voluntarily. < 8 Apparently, this was not done. If, for instance, it was true that the first appellant did not make a statement in the first place, then the logical conclusion was that there was no statement upon which the Court could safely rely in convicting the appellants . . We may also mention here in passing, that it was also wrong for the trial Court to treat the statement (Exh. PS) as a confession. It · was not a confession . in the strict sense of . the word because, assuming the statement was made by the first appellant, a close look at it will show that he was not confessing to have killed the deceased. At best, all he appeared to be saying was that the killing was done by the other appellants and the said Aloyce Mwanjute. To be a true confession it was imperative upon him to confess that he committed the murder before he could name or implicate the others. A confession .of such nature would have been in line with S. 33 (1) of The Evidence Act, 1967 which reads:- "33 (1) - When two or more persons are being tried jointly for the same offence or for different offences arising out of the same 9 transaction, and a confession of the offence or offences charged made by one of. those persons affecting himself and some other of.· those persons is proved, the court may.take that confession into consideration against that other person". (Emphasis added) Learned counsel have argued the 1st and 3 rd grounds separately: In · our view, they are inter-related and could have conveniently been dealt with together. The thrust of the complaints therein is that the prosecution· case was not established beyond reasonable doubt. In the light of the position -we have taken on the second ground there will be no need. to discuss these grounds in defail. It will suffice to say that once the cautioned statement (Exh. PS) was excluded from the evidence, there was no other strong evidence upon which the appellants could be convicted. The only possible evidence would be that of PW1 (the deceased's father) 'and PW2. But these two witnesses were not credible. For instance, PW1 is on record as having said that on the fateful day the deceased left with a bicycle and only to change the story at some later stage in his testimony and say that he was not sure if he left with the bicycle. 10 Likewise PW2 at some stage said ·that Aloyce Mwanjute was holding a _ hoe, and only to say later that none was holding a hoe .on that night. . .· . . In any case,the thrust of her testimony was that she did not go out" . . - of the house on that day so it was unlikely that she could be able to know and appreciate what was going on outside. There was one procedural irregularity at the trial which we have to mention here. A look at the record of the proceedings of the preliminary hearing will show that the memorandum. of the agreed matters was not read over and explained to the appellants. Surely, that was wrong for being against the mandatory provisions of S. 192 Ll.} of The Criminal Procedure Act, 1985 which reads as follows:- . "(3) At the-conclusion of a pr.eliminary hearing · held under this section, · the court · shall prepare ·-a·· memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused ·and his advocate and b_y. the ·public 11 prosecutor, and then filed." (Emphasis added) · Iri the case of Efraim Lutambi v Republic Criminal Appeal No. 30/96 . this Court underscored the importance of complying with the above provision, thus:- - " Before the accused and counsel ·are asked to append their signatures to a memorandum · of undisputed matters the contents of the document should be read over and explained to the ·accused. This is · · important be.cause, as was .pointed out in Holela's case, it is the accused himself who must agree that he admits or does not dispute the listed matters." In the end, we are satisfied that there is merit in the appeal. \Ne accordingly allow it, quash the conviction and set aside the sentence .. The appellants are to be released from prison ~nless they · are lawfully held therein. DATED at MBEYA this 10th day of June, 2004. J.A. MROSO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL. I certify that this is a true copy of the original. ( S.A.~RA ) SENIOR DEPUTY REGISTRAR