JANTA JOSEPH KOMBA AND OTHERS

IN THE COURTjOF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LUBUVA- 31A-, KAJI, 3;A. AND KILEO, l . A .^ > CRIMINAL ^PPEAL NO 9 5 OF 2006 Ib e t w e e n JANTA JOSEPH KOMBA ADAMU OMARY SEIF QMARY MFAUME CUTHBERT MHAGAMA AND THE REPUBLIC (Appeal from the decision of the Resident Magistrate's Court at Kisutu [Hon N. P. Kimaro, PRM.] Extended Jurisdiction) Dated the 17th day o f July 2000 In Crim inal Sess ion Case no 8 of 1999 JUDGM ENT OF THE COURT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - j— ^ ------------------------------------------------ 05 December 2006 &. 2 Feb, 2007 KILEO, J.A.: The appellants, Janta JosepH Korhba, Adamu Omary, Self Omary Mfaume and CUthbert Mhjagama, were charged with; ahd convicted of murder, and ^ere sentenced to the mandatory sentence of death by hangingj, l According to the evidenc^ that was led at the trial, the deceased, Mwaiimu Hamisi Omari, [§) Teacher, was a driver who used to drive a pickup for hire. Orji the fateful day, which was October 30th 1990, the deceased had barked his motor vehicle at Ilala Boma, Dar es salaam. A few houfs before he met with death he was hired by two people. The mentor vehicle was found sometime later abandoned at Old Kigo[go road with bloodstains inside. The deceased was found lyincj near a river seriously wounded. Shortly, he succumbed to the wojjnds and died. Post-mortem examination report showed that he di£d of haemorrhagic shock following bullet injury. There were no eyewitnesses to the commission of the crime and the people who hired the deceased were not identified. The conviction of the appellants was therefore based on their confessions, which were [etracted. The case against the fir^t appellant, Joseph Janta is contained in the testim ony of PVV2. Tpis witness arrested the 1st appellant. His evidence is to the effect that the appellant was foUnd in possession o f a motor vfehicle that contained two shotguns. The arrest w as made on 5/11/1990; Pw2 handed this appellant over to According to the e v id e n t that was led at the trial, the deceased, Mwalimu Hamisi Omari, [§) Teacher, was a driver who used to drive a pickup for hire. Or| the fateful day, which was October 30th 1990, the deceased had jparked his motor vehicle at Ilala Boma, Dar es salaam. A few hou(*s before he met with death he was hired by two people. The mdtor vehicle was found sometime later abandoned at Old Kigcjgo road with bloodstains inside. The deceased was found lyincj near a river seriously wounded. Shortly, he succumbed to the wojjnds and died. Post-mortem examination report showed that he di^d of haemOrrhagic shock following bullet injury. There were no eyewitnesses to the commission of the crime and the people who hired the deceased were not identified. The conviction of the appellants was therefore based on their confessions, which were retracted. The case against the fir^t appellant, Joseph Janta is contained in the testim ony of PW2. Tn is witness arrested the 1st appellant. His evidence is to the eff<:ect that the appellant was found in possession of a motor \ ehicle thgt contained two shotguns. The arrest was made on 5/1 /1990. Pw2 handed this appellant over to P w l, Senior Superintendent) of Police Paulo Kikoti. After interrogating him, SSP Kikoti Idirected that he be charged with unlawful possession of firearm^, ft appears that he was charged as directed by SSP Kikoti but he vj/as absolved of the charges relating to possession o f firearms. It is |a!so on record that he was taken to a justice of the peace thouglji this appellant's statement to the justice of the peace was nev&r tendered in court. On 9/11/1990 PW7, Superitendent of Police Mwanzi recorded his cautioned statement. The second appellant, Acjamu Omary, was arrested on 16/12/1990. He and the foiirth appellant, Cuthbert Mhagama, were, according to the testimony of Pw4, arrested on suspicion of having killed the driver of Da Ih a CO. The witness testified further that the appellants told them Jihat they had some weapons, which they had hidden in a toilet. The third appellant, Seif 0niary Mfaume was arrested on 16/12/1990. His cautioned st^tdment was taken on 17/12/1990. According to Pw3, D/Sgt. Chafles, who is the officer who arrested 3 this appellant, the third appellant was pointed out to him by the second appellant. At the hearing of the appeal Janta Joseph Komba, first appellant Adamu Omary, second appellant ^nd Seif Omary Mfaume, third appellant were represented J>y Mr. Rweyongeza, learned advocate. Mr. Kalolo Bundala, learnjed advocate, represented Cuthbert Mhagama fourth appellant ^nd Ms Neema Mwanda, learned State Attorney, represented the Republic. The joint memorandum of appeal for the 1st, 2nd and 3rd appellants contained two grounds of) appeal while the memorandum of appeal of the 4th appellant contained three grounds. All the grounds of appeal, as submitted by Mr. Rweyongeza, can be condensed into one m ain gtjound; that the. conviction was wrongly arrived at as it was based (f)n retracted confessions, which lacked corroboration. Mr. Rweyongeza argued th|at in order for the confessions of the appellants to be taken a^ a basis for their conviction it was necessary for the prosecution to establish without any shadow of doubt that the statements vfere voluntarily made. The learned counsel w ent on to argue thatj the circumstances, which led to the making o f the statements,! rule out the possibility of the statem ents having been made| voluntarily. Submitting on behalf of the 1st appellant, Janta Joseplj Kom^a, he pointed out that he was arrested on 5/11/1990 and stjayed In custody for four days before his statem ent was taken. The] learned counsel submitted that the four days that the first appjellant spent in custody resulted in mental torture apart from |the physical torture that he was subjected to. Mr. Rweyongeza submitted farther that because the statement of this appellant was taken contrary to the procedure laid down for obtaining statements of suspects, then it ought not to have been taken into account. Counsel referred to section 169 of the Criminal Procedure Act in support oft this argument. As for the second appellant, Mr. Rweyongeza pointed out that there was no evidence tendered which connected hljn with the commission of the crime apart from being mentioned| in the cautioned statement of the third appellant. 5 Regarding the third appellanjt, the learned counsel argued that his cautioned statement wes vsjrongly admitted. The finding by the trial court that there were incidences where accused persons admit commission of the offence notwithstanding the seriousness thereof, was challenged as teing a generality which cannot apply when it comes to the proof <}f a particular criminal case. Mr. Rweyongeza further ardiued that In order for a court to find that a statement was mace Voluntarily on the basis of details given in the statement, the details] must be in relation to the commission of the crime itself and not details relating to the life of the accused like his date and place of birjth, and the schools he went to. The learned counsel made |reference to the book titled: Desai's Law Relating to Confessions and Dying Declaration by XC. Desai at pg 273-274,281 jn suRport qf his argument that the evidence of cautioned statement or extra judicial statement is generally weak piece of evidence. Mr, Kalolo Bundala for ttfie fourth appellant argued that the circumstances under whichIthe ^xtra judicial statement was taken were such that it could not b i said that the appellant was a free agent when he made the statement. The learned counsel pointed out that his client was kept irj custody for 15 days before he was taken to a justice of the peac^. Counsel also argued that jt was not proper to find that the retraced confession of the 4th appellant w^s corroborated by the evidjence o f Pw4 because the criteria for what constitutes corroboratioh was not met. The learned counsel argued that in order for a retracted Confession to be acted upon it had to be corroborated by independent evidence connecting the accused with the crime. In Support o f this submission Mr. Kalolo Bundala referred to the casfes of Makungu v.R [2002] 2 E A 482 and W aswa & Another v. Uganda [2002] 2 E A 667 decided by the Court of Appjsal of Kenya and the Supreme Court of Uganda respectively.. Ti^e Supreme Court of Uganda agreed with the English case of Republic v Baskerville [1916-17] AH. ER rep 38 in which It was Fjeld that; "evidence in corroboration must be| independent testimony, which affects the accused by (Connecting or tending to connect him with the crime, in 0ther yvords, it must be evidence which im plicates him -i that is whicH confirms in some material particular not jDnly the evidence that the crime has been committed, but allso that the prisoner committed it." The learned counsel also maide reference to the cases of Rex v. Aryato d/o Ochulura [1 9 3 frl EACA, Vol.III, Part II, pg 120 and Rex v. Opet s/o Erui(, [1936]. EACA, VoIJII, Part II, pg.122. In these cases it v\Jas held that a retracted confession cannot be corroborated by |other retracted and uncorroborated confessions. Ms Neema Wanda for tlhe respondent Republic supported conviction and argued that Ithe appellants' confessions were so detailed that they could be Nothing but the truth. She referred to the case of Hemed Abdall^h v. Republic [1995] T L R 172 in support of her argument. Admittedly, the case for thel Drosecutbh was largely based on the appellants' confessions. Th^ main question before us is, given the circumstances o f this case ban it be Said that the cautioned and the extra judicial statemerjts of the appellants were voluntarily given? In term s o f section 27 of the Evidence Act, 1967 a confession voluntarily made to a police officer by a person accused of an offence may be proved a s against that person. The onus of proving that any confessiqn made by an accused person was voluntarily made by him lies ori the prosecution. Section 27 provides further that a confession shall be held to be involuntary if the court believes that it vj/as induced by any threat, promise or other prejudice held out by |the police officer to whom it was made or by any member of the police Force or by any other person in authority. Dealing with the questiorj whether the statement of the first appellant was voluntary Ithe learned trial Principal Resident Magistrate with Extended Jurisdiction, held; "In my ruling in the {trial within trial I said that the question of voluntariness of the statem ent was an afterthought. Although) the f^rst accused said he was tortured for three consecutive days and that he was given a PF.3 for treatment, th£ treatment, which he received, did not match with the elxtent of the injuries he said he suffered. The statement! was recorded on 9/11/90. He was referred to hospital on 14/11/90 and the PF.3 shows that he was referred to hospital for treatment of a wound). The PF.3 shows that th|e wound was only treated with spirit. This is an medicatjion that it: was, just an injury w^iqfi could as well hajve occurred after he recorded his statement or it v\(as a move taken for precautionary purposes after realising the effect of his confession." We think that a lot of What is stated as above by the learned trial Principal Resident Magistrate with Extended Jurisdiction was speculation. There wasj no basis for thinking as she did, that the injury, which was sustained by the appellant, could as well have occurred after he recorded his statement or that it was a move taken for precautionary! purposes. Conviction in a criminal matter must be based on gcodjground cind speculation has no room. The burden is on the prosecution ta prove beyond reasonable doubt, that the accused committed the offence with which he is charged. We agree with learned |counsel for the appellants that being in police custody for a peripd beyonej the prescribed period of time results in torture, either (mental of otherwise. The legislature did limit the time within wjiich a suspect could be in police custody for investigative purposes and we believe that this was done with sound reason. The relevant provisions dealing with the time under which a suspect may be held ^n police custody for investigation purposes are sections 48-51 of (the Criminal Procedure Act, Cap 20 of our laws [2002 RE]. Section 48 provides as hereunder; (1) Where a pejrson is, or has been, under restraint in respect of an offenc£, a police officer m ay- (a) ask the pejrson questions; or (b) take otheij investigative action, in connection with the investigation of the offence, during a period available |for interviewing the person but not qtherwise. (2) The provisions o f tjjls Act relating to a period available for interviejwing a person shall not be ta k e n - (a) to make lawful the hcMi^g of the person untfer restraint: during any| period durihg yvhich it wpuld, but for those provisions, be unlawful to hold him under restraint; or (b) to authorise tfje asking of any questions or the taking of other investigative action in relation to the person during a period |during which it would, but for those provisions, be unlawful to hold him under restraint. Section 50 provides for periods available for interviewing persons and it states as follows; (1) For the purposej of this Act, the period available for interviewing a personj who is in restraint in respect of an offence is - (a) subject to paragraph (b), the basic period available for interviewing the persbn, that is to say, the period of four hours comnjiencincj a^ the time when he was taken under restraint in rejspect of the offence; (b) if the basic period available for interviewing the person is extended underj section 51, the basic period ^s so extended. 12 n cannot be completed within four ension of the time under certain r by section 51, which states thus: (1) W here a person is in laVvful custody in respect of an offence during | the basic period available for interviewing a persor|, but has not been charged with the offence, and it appealrs to the police officer in charge of investigating the offejnce, for reasonable cause, that it is necessary that the peifson be further interviewed, he m a y- (a) extend the Interview for a period not exceeding eight hours and inforrjn the person concerned accordingly; or (b) either befo|re the expiration of the original period or that of the Extended peripd, make application to a m agistrate for a further extension of that period. It is apparently clear froijn the above provisions that the first arid fourth appellants were field in investigative custody for much longer than the time th^t is provided for by the law. The first appellant was held in cujstody for fduf days. No application was made to a magistrate ffcr extension of the period of twelve hours under which the policy could hold him in custody. The fourth appellant was held ih police custody for 15 days. In the circumstances, the appjellants having been held in police custody for such long period it| is doubtful that the appellants were free agents when they fina|lly made their statements. The legislature must have had good ijeason for limiting the time Under which a suspect could be helb under police custody for investigative purposes and the policy are obliged to abide by the law like every one else. The obtaining of the statements of the appellants while still in custody outsicjle the time provided under the law for investigative custody, j contravened the provisions of the law. Section 169 of the Crirfiinal Procedure Act provides for exclusion of evidence illegally obtained. It provides: (1) Where, in ^ny proceedings in a court in respect of an offence, objectiojn is taken to the admission of evidence on the ground tfiat the evidence was obtained in contravention of, o j in consequence o f a contravention of, or of a failure to cojnply with a provision of this Act or any other law, in relation to a person, the court shall, in its absolute discretion, not pdmit the evidence unless it is, on the balance of probabilities, satisfied that the admission of the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of any person. (2) The matters th^t a court may have regard to in deciding Whether, in proceedings in respect of any offence, it is satisfied | as required by subsection (1) in clu d e - (a) the seriousness of the offence in the course of the investigation of whi<j:h the provision was contravened, or was not complied wjlth, the urgency and difficulty of detecting the offender [and the urgency or the need to preserve evidence of the) fact; (b) the nature ancj seriousness of the contravention o r failure; and (c) the extent tcj which the evidence that was obtained in contravention of, in consequence of the contravention of or in consequence of the failure to com ply with the provision of any law, might have been lawfully obtained. (3) The burden of satisfying the court that evidence obtained in contravention of, in consequence of the contravention of, or in consequence of the failure to comply with a provision of this Act should be admitted in proceedings lies on (the party who seeks to have the evidence admitted. (4) This sectio^ is in addition to, and not in derogation of, any otfier law or fule under which a court may refuse to admit ej/idence in proceedings. The prosecution did not ^how how the admission of the appellants' statements in the circumstances of this case would "specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of any person." We believe that if the learned trial Principal Resident Magistrate With Extended Jurisdictiofi had considered the import of the above provisions she would ha|ve found, not only that the statements were obtained without acjhering to the procedure laid down by the l^w, but also that the statements of the appellants were not 16 voluntarily given. She wo|uld therefore have found the statements inadmissible. The other reason that tjie trial court gave for finding that the statem ent of the first appellant was voluntary was that it was a detailed one that could o|nly be given by the appellant. Details of date o f birth, village, schools attended were among the details that w ere found to be onfy to the knowledge of the appellant. The learned trial Principal Resident Magistrate with Extended Jurisdiction also made reference to the explanation on how the motor vehicle with registration no TZA 2442 Toyota Corolla was acquired. This motor vefjicie was allegedly found to contain two shotguns. It is common knowledge tjhat in order for a confession to be found voluntary on the basis o\ having contained detailed information, §uch detailed informatiorji must be in relation to the particular crim e itself and not to th|e history of the accused person. In the instant case it is our viev|/ that details relating to how the motor vehicle registration no T|ZA 2442 Was acquired is not directly connected to the commission of the crime in issue. n It is also our view tljiat the learned trial Principal Resident Magistrate with Extenaetji jurisdiction misdirected herself when she found that the evidence |of PW4 corroborated the testimony of the fourth appellant who wa^ the second accused at the trial. She was of the view that the evidence of Pw4 corroborated the confession of the fourth appellant tjecause |ie arrested them and they led to the recovery of the weapons. It is to be noted that the weapons that were allegedly fourjd at Majumba Sita were not proved to have been used in the cc mmission of the crime that the appellants were faced with. There was also undisputed evidence that the second appellant Adamuj Omary was charged with possession of the weapons but was subsequently acquitted. In her judgment the trial magistrate observed [that, "the mere fact that he was charged with possession of firearms and acquitted does not mean that he did not participate in the Jcommission of the offence he is charged w itfy" This observation ripay generally be fine, however the trial rpagistrate had also earliejr on founcj corroboration in the fact that the appellants had led th^ police to th^ recovery of the weapons,. There Is, we think, a contradiction In' the approach that was adopted by the trial court. 18 We have stated earlier) that the weapons that were allegedly recovered were not proved to havei been the murder weapons. For this reason it follows thajt even if it is granted that the appellants led to the discovery of tlhe weapons, this would not reinforce the case against the appellants, the weapons had nothing to do with the crime, the subject cjf the charge. Moreover, in view of the acquittal o f the 2nd appellant of unlawful possession of firearms, the evidence of Pw4 ttjat the 2nd appellant led them to the recovery o f the weapons js doubtful. The second appellant appears to have been charged j^ecause he was mentioned in the 4th appellant's extra judicial statement. The 4tP' appellant's extra judicial statement, which was retracted, could not be relied upon because it needed corrobc ration itself. As held by the Supreme Court of Uganda in the case of W a s w a , (supra) we agree with th^ test for corroboration laid down in the English case of Republic |v. Baskeville [1916-17] All. ER rep 38 (suipra). W hen put to th^ test, the evidence of Pw4 does hot stdnd. W e find that it w^s not proper, in the circumstances, to hold that the evidence | of Pw4 corroborated the retracted confessions. 19 In the light o f the - o v e considerations we are constrained to agree with M/S Rwevongeza and Kalolb Bundala, learned counsel for Che appellants that the^e is m erit in this appeal. C o n s e q u e n t . . . draw the appeal, quash the conviction and set aside the sentence o f death impose^. We order the release from custody of the appellants forthwith unless otherwise held [awfully. DATED AT DAR ES SAL M M this 30th day of January, 2007. P. 2. LUBUVA JUSTICE OF APPFAl S. N. KAJI JUSTICE OF APPFAl J J . A . KILEO JUSTICE OF APPFAl I certify that this is a true ^opy of the original. \ C O U ff 20 t— r