20040520 TZCA Dodoma

t - IN THE COURT OF APPEAL OF TANZANIA ATDODOMA (CORAM: LUBUVA, J.A., MUNUO, J.A. And KAJI, J.A.) C.A.T. CRIMINAL APPEAL NO. 146 OF 2002 BETWEEN SAIDI JUMA MWIMI © DERESA ..................................... APPELLANT AND THEREPUBI..IC . ......................................................... RESPONDEIsJ1 (Appeal from the Decision of the High Court of Tanzania at Dodoma) (Ihema, 3.) dated the 29th day of November, 2000 • In Criminal Sessions Case No. 55 of 1999 JUDGMENT OF THE COURT LUBUVA. J.A. In the High Court sitting at Singida, the appellant, Saidi Juma Mwimi © Deresa, was charged with and convicted of the offence of murder of Abdul Moloo Kassam contrary to section 196 of the Penal Code. He was sentenced to the mandatory sentence of death. From this decision, the appellant has preferred this appeal. At the trial, the prosecution case was that on 17.11.1997, at about 2.30 p.m., the shop of the deceased at Sokoine Street, within the township of Singida, was invaded by a gang of thieves. The deceased was inside the shop which was at the time closed for lunch. Paskali Bundala (PW1), the attendant to the deceased shop, 2 and Abadallah Ngaliwata @ Mabalasta (PW2), were outside the shop waiting for its reopening. While there, suddenly, PW1 and PW2 saw a group of about five people rushing out of the shop carrying boxes the contents of which they did not know. When PW1 and PW2 entered the shop, they found the deceased lying on the floor dead stained with blood, his hands and feet tied up with ropes and his mouth was gagged with a piece of cloth. The police were informed and investigation was set in motion. The appellants were arrested and charged in court with the murder of the deceased. In the course of investigation, the appellant made a cautioned statement (Exh.P.7) and an extra-judicial statement (Exh. P.9). The investigation also resulted in the discovery of a bag from the house of Ramadhani Omary Mwimi (PW3) which PW3 said was left at his house by the appellant. The bag contained some of the items which were stolen from the shOp of the deceased including the container of BP monitor (Exh. P.4). In the High Court, the evidence against the appellant was largely based on the cautioned statement (Exh. P.7), the Extra- Judicial Statement (Exh. P.9) and the fact that the bag found in the house of PW3 contained some of the items stolen from the house of the deceased. On the basis of the evidence, the learned trial judge invoked the doctrine of recent possession to convict the appellant for the murder of the deceased. 3 - In this appeal, the appellant was represented by Mr. Nyabiri, learned counsel. He filled the following two grounds:- That the Hon. Trial Judge failed to properly evaluate the evidence on record which did not prove the charge against the appellant beyond reasonable doubt. That the Hon. Trial Judge erred in law and in fact in admitting the police statement and the alleged extra-judicial statement in disregard to the evidence of the appellant against them. In support of the first ground; Mr. Nyabiri submitted to the following effect. That the evidence of PW1, PW2 and PW3 was unreliable because there were inconsistencies regarding what exactly they heard from the shop where the alleged gang of thieves were. Furthermore, the circumstances in which the bag containing the alleged stolen items from the deceased's is shop was found in the house of PW3 were doubtful. The search of the house of PW3 was not witnessed by an independent witness. At any rate, the items which it was claimed were stolen from the deceased's shop were not found in the bag. Alternatively, even if it was accepted that the items were found in the bag, they were not identified satisfactorily as the items which were stolen from the shop. On her part, Mrs. Sumari, learned Principal State Attorney, was firmly of the view that there were no material inconsistencies in the evidence of PW1 and PW2. She said the essence of the evidence of ru PW1 and PW2 was that while they were waiting outside the shop of the deceased, they saw a group of people rushing out with boxes among other things. These witnesses, Mrs. Sumari pointed out, did not say what was contained in the boxes. What PW1 and PW2 heard from the voices in the shop of the deceased was not relevant for the conviction of the appellant, the Principal State Attorney further submitted. As correctly submitted by Mrs. Sumari, we find no material inconsistencies in the evidence of PW1 and PW2. The essence of their evidence is crystal clear. It was to the effect that while they stood outside the shop of the deceased, they saw a group of people rushing out of the shop carrying various items including boxes. From their evidence, there is no mention at all of the content of the boxes. Mr. Nyabiri's complaint on the inconsistencies in the evidence of these witnesses has no foundation in our view. As regards what was heard by PW1 and PW2 as urged by Mr. Nyabiri, again, with respect, we do not think that this is relevant to the evidence upon which the conviction of the appellant was based. The significance of the evidence of PW1 and PW2 is relevant when it is looked at in relation to the evidence of PW3, PW4 and the confessional statements of the appellant, Exh. P.7 and Exh. P.9 This, will be apparent shortly. The evidence of Ramadhani Omary Mwimi (PW3) and Haruna Mande (PW4) is pertinent with regard to the bag in which the container of the BP. Motion Exh. P.4 was found. First, the learned 5 trial judge found it as a fact that the evidence of PW3 and PW4 was credible. On this finding, we can find no reason for faulting the judge. As correctly observed by the learned judge, it is inconceivable that PW3 who is the brother of the appellant, would fabricate evidence to implicate the appellant. Why should he embark on this course of action, we pause to ask? In the circumstances, we agree with the learned judge that the bag which was found in the house of PW3 was left by the appellant. From the evidence of PW3, supported by PW4, the ten-cell leader, and Detective Sgt (PW.7), we are also satisfied that the bag was taken from the house of PW3 in the course of the investigation. As the necessary procedure for searching was in our view, followed in this case, we also find Mr. Nyabiri's complaint that the search was not properly conducted, is without foundation. Therefore, on the basis of the evidence regarding the property retrieved from the house of PW3, the position unfolds as follows: The bag in which the container of the BP monitor (Exh. P.4) was found, was satisfactorily identified by Obed Abdul, (PW5) the son of the deceased by its serial No. 10112138. In that situation, we agree with the learned trial judge that the appellant was in possession of the BP. Monitor container (Exh P.4) which was stolen in the course of a recent robbery from the deceased's shop when the deceased was killed. The doctrine of recent possession was, in our view properly invoked in sustaining the conviction against the appellant for 6 the murder of the deceased. In more or less similar circumstances, the Court had occasion to enunciate the doctrine of recent possession to sustain conviction for murder in the following cases: Manazo Mandundu and Another Versus Republic, (1990) TLR. 92 and Juma Boniface V Republic, Criminal Appeal No. 73 of 1999 (unreported). In both cases, the appellants were found in possession of stolen property from a shop which had recently been burgled resulting in the death of the deceased. Likewise, in the instant case, the appellant had left the stolen property (Exh. P.4) in the house of PW3 shortly after the deceased's shop had been invaded by the. thieves. We are therefore satisfied that the doctrine of recent possession was properly invoked to support the conviction against the appellant. On ground two, Mr. Nyabiri made the following powerful submissions. First, that the cautioned statement (Exh. P.7) should not have been admitted in evidence, it was not voluntary in terms of the provisions of section 27 of the Evidence Act 1967. He referred to the decision of the Court in Brighton Boniface v Republic, Criminal Appeal No. 54 of 1999 (unreported) and Nuhu Selemani v Republic (1984) TLR 93. Secondly, the extra-judicial statement (Exh. P.9) was also wrongly admitted because the statement shows that it was signed by the appellant when in fact, it was thumb printed. In that situation, what is contained in the statement, was not what the appellant stated in the extra-judicial statement. If the statement had not been S S 7 admitted, then there would be no evidence upon which to ground the conviction against the appellant. We shall first deal with the cautioned statement. The central issue is whether the statement was voluntary. In order to resolve this issue, it is necessary to examine the circumstances under which the statement was made. In the event that it is found that the circumstances were such that it was doubtful that the appellant was a free agent when he made the statement, then the court should not have admitted it. At this juncture, it is instructive for us to briefly analyze the circumstances relating to the statement. From the record, it is clear that the defence had strongly objected against the admission of the cautioned statement. The reason advanced was that the statement was not free and voluntary. In what appears to us a rather scanty and brief ruling, the learned trial judge took the view that the statement was freely made in terms of the provisions of section 27 of the Evidence Act, 1967. With respect, it is our view that the judge was in error in this ruling. It was incumbent upon the judge to go further and hold a trial within a trial after the defence had raised serious objection against the statement. In a trial within a trial, the court would be better placed in testing the voluntaries or otherwise of the statement. As happened, the statement was not tasted, and so, it was, as correctly submitted by Mr. Nyabiri, unsafe to rely on such confessional statement in a serious criminal charge of murder. All the more so, where allegations of torture are raised. In Brasius Maona and 3 - 8 Gaitan Mgao v Republic,. Criminal Appeal No. 215 of 1992 (unreported), in more or less similar circumstances, though the trial judge had found the confessional statement not voluntary under section 27 of the Evidence Act, 1967, nonetheless, he admitted it under section 29 of the Evidence Act, 1967. On appeal, this Court inter alia stated: Once torture has been established courts should be very cautious in admitting such statements in evidence even under the provisions of section 29 of the Evidence Act, 1967 which, in our opinion was not meant to be invoked in situation where the inducement involved is torture. - In the instant case, as the statement was not tested by way of a trial within a trial, it is difficult to take a categoric position one way or the other on the voluntariness of the statement. As always in a criminal charge, the doubt should be resolved in favour of the accused, the appellant. Consequently, in such circumstances, we are in agreement with Mr. Nyabiri that the cautioned statement (Exh. P.7) was improperly admitted. It should be discounted from the evidence. However, with the exclusion of the cautioned statement, what is the position regarding the extra-judicial statement. We think this aspect can, be disposed of briefly. On this, we find no merit in Mr. Nyabiri's assertion that what the appellant stated before the Justice of the Peace (PW.8) is not what is contained in the statement (Exh. P.9). According to Mr. Nyabiri, the statement was thumb printed while in the statement it is shown at the end that it was signed. With respect, this may well be an attractive argument but it raises nothing of substance rather than an academic distinction. From the record, it is clearly shown 'at the end of the statement on one side "the signature of the suspect" and on the other, the same line, it is also shown "the right thumb print (R.T.P) of the suspect". Below the R.T.P., the statement is thumb printed. The pertinent question is whether the appellant signed or thumb printed the statement. In this case, it is shown that the statement was thumb printed and the Justice of the Peace also signed it. In the circumstances, we are satisfied that the appellant made the extra-judicial statement. The magistrate, Michael Mteite, (PW8) as a Justice of the Peace having complied with the procedure laid down 10 by the Chief Justice's Instructions in terms of section 56 (2) of the Magistrates' Courts Act, 1984, cannot now be impeached on appeal. It is too late in the day at this stage for the learned advocate to disown the extra judicial statement of the appellant before the Justice of the Peace. Furthermore, the record does not show that this aspect was raised at the trial when the Justice of the Peace (PW8) was giving evidence and the statement tendered as an exhibit. It is thus nothing but an after thought, we reject this ground. Like the learned trial judge, we are satisfied that the extra- judicial statement was properly admitted in evidence. The statement, we are further satisfied, was voluntary and corroborated by the evidence of PW1, PW2 and the discovery of the stolen items from the deceased's shop which were found in house of PW3. Consequently, on the basis of the extra-judicial statement, the appellant was again sufficiently linked with the death of the deceased. ' 11 In the event, and for the foregoing reasons, the appeal is dismissed in its entirety. DATED at DODOMA this 20th day of May, 2004. 41 Z. LUBUVA JUSTICE OF APPEAL /(0 N. MUNUO JiJSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the Original. o (S.Aj(iVambura) SENIOR DEPUTY REGISTRAR