20070316 TZCA Mwanza13

,, ... . , . ,. IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUBUVA, J.A., MROSO, J.A. AND RUTAKANGWA, J.A.) CRIMINAL APPEAL NO. 220 OF 2004 TABU NYANDA@ KATWIGA ..................................... APPELLANT VERSUS THE REPUBLIC. ■■■■■■■■■■■■■■■■■■■■■■■■■ I ■■■■■■■■■■■■■■ ••• ■■■■■■■ •• RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Tabora) (Mwita, J.) dated the 19th day of October, 2004 in Criminal Sessions Case No. 51 of 1997 JUDGMENT OF THE COURT 27 February & 16 March 2007 LUBUVA, J. A~: · The appellant, Tabu s/o Nyanda @ Katwiga, together with one Nhaga s/o Sengerema, were charged with the offence of murder \. contrary to section 196 of the Penal Code. The High Court (Mwita, J.) . ...· ~' '• ' • ii- I :, ~-~----.:· -i.l~- ·. Jj 2 sitting at Tabora convicted and sentenced him to death. The other co- accused was acquitted and hence not subject of this appeal. The case for the prosecution as established at the trial was that on 21.4.1995 the appellant came to the house of the deceased for the purchase of "dengu", a merchandise crop. Following the appellant's visit, at about 20.00 hours that day, the deceased left his home telling his wife Susana Masanja, (PW .1) that he was going to the appellant's house to purchase "dengu", following the appellant's visit to their house earlier on that day. Since then, the deceased was not seen alive. Information about the disappearance of the deceased was first passed on to James Ditu, the Village Executive Officer (PW. 3) and to the rest of the villagers including Joseph Mashana (PW.2), the brother of the deceased. An alarm was raised and the villagers responded. During the meeting of the villagers, when the appellant was interrogated on the disappearance of the deceased he admitted to have killed the deceased and led the villagers to the place where the deceased's body was dumped. The matter was reported to the police and the appellant was 3 arrested and charged with the offence of murder of the deceased, Katabi s/o Windi. While under police custody, the appellant made a caution statement which was admitted at the trial within a trial. As a matter of fact, the caution statement was the sole basis upon which the appellant was convicted. At the trial the appellant retracted the caution statement and denied any involvement in the killing of the deceased. He claimed that he had been tortured by sungusungu and the police. After a trial within a trial was conducted the learned trial judge found that the appellant was a free agent when he made the statement. Consequently, it was admitted as exhibit P.3. On the basis of this evidence the trial judge was satisfied that the case against the appellant had been proved and as already indicated, he was convicted and sentenced to death. Aggrieved, this appeal has been preferred. In this appeal, the appellant had the services of Mr. Magongo, learned counsel and for the respondent Republic, Mr. Mdemu, learned State Attorney, appeared. 4 • -- . Ground One of the memorandum of appeal reads: "That in view of the evidence of PW.1 in the trial within a trial the honourable trial Judge erred in law and fact in holding that the cautioned statement was correctly recorded". While Mr. Magongo categorically conceded that the statement, Exh. P.3, subject of the trial within a trial, was voluntary, he firmly maintained that it was not correctly recorded. Explaining further Mr. Magongo said that it was improper for Det. Sgt. Pius Magambo PW .1 at the trial within a trial, to assume the role of an investigator, interrogator and an interpreter to the appellant. That is PW .1 at the trial within a trial investigated the case, and also interrogated the appellant in Kisukuma and recorded the caution statement in Kiswahili. This, Mr. Magongo urged, was not proper because it is not certain whether PW. 1 recorded correctly what the appellant said in Kisukuma. In that situation counsel further submitted, the possibility of bias could not be discounted in this '- 5 .. case. To buttress his submission on this point Mr. Magongo referred the Court to the decision of the erstwhile Court of Appeal for Eastern Africa in R. v.1. Sadiki Kyoyo 2. Wadebuka s/o Maliwa 3. Kayendiki w / o Muga 4. Yowana Katende (1943) 10 E.A.C.A. 1033. With regard to the correctness of the recorded statement, Mr. Magongo also referred to the case of R. v. Erieza Mulindwa (1949) 16 E.A.C.A. 148. For the respondent Republic, Mr. Mdemu, learned State Attorney, strongly resisted this ground. In his view, the statement was correctly recorded because the language used by the appellant was Kisukuma which language Pius Magambo (PW.1) was conversant with. Having heard what the appellant had said in Kisukuma, PW.1 recorded it straight in Kiswahili. The fact that PW. 1 was conversant with Kisukuma was more advantageous than would otherwise be the case if PW.1 was not conversant with Kisukuma language, Mr. Mdemu urged. What is important, Mr. Mdemu further submitted, it has not been shown how was the appellant prejudiced in any way either during the 6 trial within a trial or the main case by the fact that PW.1 played the role of an investigator, interrogator and interpreter. If the appellant was not prejudiced by the role played by PW.1 with regard to the statement Exh. P.3, the complaint in this ground is without substance, Mr. Mdemu stressed. With regard to the Sidiki Kyoyo case {supra} cited by Mr. Magongo. Mr. Mdemu said that the case does not advance the appellant's appeal, because it is distinguishable from the instant case. He said in that case as happened in the· instant case the investigation, interrogation and recording of the statement was done by the same officer. However, the State Attorney further stated, while the Court observed that it is undesirable to involve one officer in the role of an investigator, interrogator and interpreter in a particular criminal case, the appeal was dismissed. Similarly, Mr. Mdemu urged the Court to dismiss the appeal as PW.l's involvement in the case did not in any way affect the correctness of the statement which as conceded by Mr. Magongo was voluntary. 7 From these submissions, it is undisputed that Det. Sgt. Pius Magambo, PW.1 at the trial within a trial, played the role of investigator, interrogator and recorder of the caution statement of the appellant Exh. P.3. The issue for consideration is whether the fact that PW.1 at the trial within a trial played such a role did in any way affect or prejudice the appellant. We do not think so. As submitted by Mdemu, learned State Attorney, apart from the mere assertion by Mr. Magongo that PW .1 in the trial within a trial having played both the role of an investigator, interrogator and recorder and interpreter of the statement (Exh. P.3) was likely to be biased, it is not shown how the appellant was prejudiced. In the absence of evidence to this effect, it is a matter of conjuncture that the appellant was prejudiced. The court can hardly afford the luxury of engaging itself in such an exercise of conjecture and speculation. In this case, it would be recalled that Mr. Magongo had no difficulty in conceding that the statement was voluntary. In that light and in view of the fact that PW .1 in the trial within a trial was conversant with Kisukuma language, we have no basis upon which to accept Mr. Magongo's submission that PW.1 was biased and did not record the statement correctly. On the contrary, we venture to think .I 8 that being conversant with Kisukuma, PW .1 was in a better position to understand and appreciate what the appellant stated in the caution statement (Exh. P.3) which he recorded in Kiswahili. On this we are alive to the decision of the erstwhile Court of Appeal for Eastern Africa in Sadiki Kyoyo {supra} to which we were referred by Mr. Magongo, learned counsel. In that case as is the case here, the same officer was involved in the investigation, interrogation and interpreting what had been recorded to the appellant. The appellant was charged with murder. The complaint was that it was improper for the same officer to assume these roles. Dismissing the appeal the Court held inter alia: "It is undesirable that policemen, especially if they have been engaged in the investigation of a case or in arresting the accused should act as interpreters of confessions to police officers, although there may be cases where no alternative is available". 9 In this case, we fully subscribe to the principle enunciated in Sadiki Kyoyo that it is undesirable for the same investigating officer to assume the role of interrogating an accused person and also to act as an interpreter. However, in this case as there is no evidence on record to show that the involvement of Det. Sgt. Pius Magambo (PW .1 in the trial within a trial) prejudiced the appellant in anyway, we are satisfied that the caution statement, Exh. P.3 was correctly recorded. In this regard, we think the case of Erieza Mulindwa {supra} which was relied on by Mr. Magongo is of no assistance. In that case the Court of Appeal for Eastern Africa, was considering the voluntary nature of a confession. It was the view of the Court that if there is an allegation or circumstances showing that the confession was not voluntary, the court should enquire fully into the circumstances in order to ascertain the exact words used. While in that case the issue was whether the confession was voluntary, in this case, Mr. Magongo conceded that the statement Exh. P.3 was voluntary. So, the reference to "exact words" used in that case relates to a different context from the allegation in this case that PW .1 may not have recorded correctly 10 ~ what the appellant said. Consequently, ground One fails, it is dismissed. We shall next deal with ground Two which reads: "That as the preliminary hearing was conducted contrary to the mandatory provisions of the law, there is no evidence on record to prove that the deceased is dead and that the skeleton of his dead body was found in the bush". Briefly stated, Mr. Magongo's submission in support of this ground was to the following effect. The preliminary hearing was not conducted in accordance with the provisions of section 192(3) of the Criminal Procedure Act, 1985 (the Act) and rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules, 1988 (the Rules, 1988). Mr. Magongo further submitted that at the conclusion of the preliminary hearing, the record does not show that the memorandum of the matters agreed was read over and explained to the accused, the appellant in this appeal. 11 From the record Mr. Magongo went on in his submission, it is apparent that the advocate for the appellant at the trial one Mr. Mahuma answered on behalf of the accused, now the appellant. This, Mr. Magongo urged was wrong, it violated the provisions of rule 6 of the Rules, 1988. For this reason, counsel insisted, the preliminary hearing proceedings were fatally affected, they should be discounted. With the preliminary hearing proceedings discounted, Mr. Magongo urged that there is no proof that the deceased was dead. Consequently, in the absence of proof that the deceased was dead, the case against the appellant had not been proved, counsel pressed. He urged that because there would be no post mortem report if the preliminary hearing proceedings are discounted, the appeal should be allowed. In support of this submission, he cited the decision of the Court in the cases of: 1. MT. 59720 PTE Joseph v. R. CAT Criminal Appeal No. 93 of 2000 and 12 2. Libert Hubert v. R. CAT Criminal Appeal No. 28 of 1999 {both unreported}.. In response Mr. Mdemu, learned State Attorney, firmly maintained that it is not true that the preliminary hearing was conducted contrary to the provisions of section 192( 3) of the Act. The learned State Attorney submitted that from the record it is clear that the provisions of rule· 4 of the Rules, 1988 were complied with as the charge was read over to the accused, the appellant in this appeal. The appellant pleaded not guilty and thereafter the prosecutor read out the facts. If this had not been done, then Mr. Mahuna, advocate for the appellant, would not be in a position to answer on behalf of the appellant which is indicative that the facts were either admitted or not. If this had not been, it is inconceivable that a plea of not guilty was enterred, Mr. Mdemu further charged. However, the State Attorney was quick to concede that the provisions of rule 6 of the Rules, 1988 were not complied with in that the advocate responded on behalf of the accused, the appellant. 13 Despite this defect the learned State Attorney firmly maintained that the whole case was not affected. The reason, he said is that the basis of the conviction of the appellant was the caution statement Exh. P.3. In that situation, he further submitted, even if the preliminary hearing proceedings were discounted, the conviction would still be sustained on the basis of other evidence. At this juncture, we shall deal with the complaint that the preliminary hearing was conducted contrary to the provisions of section 192(3) of the Act and rules 4 and 6 of the Rules, 1988. As Mr. Mdemu correctly in our view, conceded, it is accepted that rule 6 of the Rules, 1988 was not complied with at the stage of conducting the preliminary hearing. The rules provide: "4. The person prosecuting shall, in every trial under these Rules, prepare, as clearly as possible, the facts of the case which shall be read to the accused and explained in a language he can understand. .. 14 6. When the facts of the case are read and explained to the accused, the court shall ask him to state which of those facts he admits and the trial Magistrate or judge shall record the same". From the provisions of rule 6 extracted above it is common knowledge that it is the duty of the court to ask the accused, the appellant in this case, to state which of the facts set out by the prosecutor he admits and this is to be recorded by the trial judge or magistrate. In this case, the record is loud and clear that the appellant as the accused was not asked by the trial judge to state which of the facts he admitted or otherwise. Instead, the record shows that Mr. Mahuma, counsel for the appellant, answered on behalf of the appellant. This, it goes without saying was a serious irregularity in the preliminary hearing proceedings. Failure to comply with the mandatory provisions of the law as set out above, fatally affected the preliminary hearing proceedings. In the case of MT. 7479 Benjamin Holela v. Republic, (1992) TLR. 120, the Court 15 addressed the effect of non-compliance with the mandatory provisions of section 192(3) of the Act and rule 6 of the Rules, 1988. The issue in the case of Holela {supra} was that in the preliminary hearing proceedings, the contents of the memorandum of matters agreed were not read and explained to the accused. The Court inter alia held: "It is the accused himself who must indicate what matters he or she admits". In this case, as the mandatory provisions of the Act and rule 6 of the Rules, 1988 were· not complied with, we are in agreement with Mr. Magongo that the preliminary hearing proceedings were vitiated. Consequently, as also conceded by Mr. Mdemu, learned State Attorney, these proceedings are to be discounted. With the preliminary hearing proceedings discounted, the issue is what are the consequences on the case. Mr. Mdemu, had urged that even if the preliminary hearing proceedings are discounted, still there is sufficient other evidence upon which the conviction against the 16 appellant could be upheld. He said the caution statement Exh. P.3. was the basis upon which the appellant was convicted. We agree with Mr. Mdemu, that the caution statement (Exh. P.3.) which we had earlier on found to be true and voluntary is sufficient evidence to ground the conviction. As correctly found by the trial judge, in the caution statement the appellant admitted killing the deceased whose body he disposed of by dumping it in a place from which it was recovered. The situation in this case is different from the circumstances of the case in Mt. 59720 Joseph {supra} to which we were referred by Mr. Magongo. In that case the issue was whether the deceased died from the injuries sustained from the gun shot three weeks before. It was necessary in that case to tender the post mortem report which was missing. In this case, the position is different. The appellant in his statement Exh. P.3 admits unequivocally that he killed the deceased and disposed of the body at place from where it was recovered. In the circumstances, we are in agreement with the State Attorney that even if 17 the post mortem report is discounted, still the cause of death was established. In more or less similar circumstances, in Libert s/ o Hubert {supra} this Court upheld the conviction for murder after excluding the post mortem report because the preliminary hearing proceedings were conducted contrary to section 192(3) of the Act and rule 6 of the Rules 1988. This was so because the Court was satisfied that even after excluding the post mortem report, still there was sufficient evidence to prove the death of the deceased. Similarly, we are satisfied that in this case, there was other evidence to prove the death of the deceased. · At this stage, it is desirable to consider whether the court can act on the retracted confession in the statement without corroboration. In Tuwamoi v. Uganda, (1967) E. A. 84, the Court of Appeal for East Africa in part stated: "But corroboration is not necessary in law and the Court may act on a confession alone if it is 18 ' fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true". In similar vein, in the instant case, we are satisfied as the learned trial judge was satisfied that the confessional statement Exh. P.3 was but true, he was entitled to rely on it in convicting the appellant. In the event, for the foregoing reasons, the appeal is dismissed in its entirety. DATED at MWANZA this 16th day of March, 2007. . ......., ___ ,