20100822 TZCA Iringa

' .J ii 1 IN THE COURT OF APPEAL OF TANZANIA .AT IRINGA (CORAM: RUTAKANGWA, J. A., KIMARO, J. A. And MANDIA,J. A.) CRIMINAL APPEAL NO. 83 OF 2009 KEVIN S/O EMMANUEAL MAHIGA .............................. 1 ST APPELLANT JUMA S/O CHRISTOMAS MGENI ................:••••····•····•··2ND APPELLANT VERSUS I · THE REPUBLIC •••••••••..•.•••••••••••••••••••••••••••. ~ •••••.••••.•••..••.. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa {Werema,J.} dated 17th of March, 2008 in Criminal Sessions No. 52of 2006 . --------------- JUDGMENT OF THE COURT 18th & 24th August, 2010 Rutakanqwa ,J.A.: This is a first appeal . It arises from the judgment of the High Court sitting· at Iringa, dated 1ih March, 2008. The two appellants were convicted of the murder of one Bushiri s/o Ismail @ Wanguvu. They were sentenced to death by hanging. Aggrieved, they have lodged this appeal. , I I r, . 2 Through Mr. Justinian Mushokol)'Va, ,· learned advocate, who did j not advocate for them at their trial, ·:they are before us with three grievances. These are that:- (1) In view of section 3(1) and (2) of,the 11 1 Evidence Act Cap.6 R.E, 'the holding that: the I ,I alleged rival confession51, of the Appellants . I corroborated each other was bad at law and I' I there was no other rJliable corroborating 1: evidence to Justify c~nvictions of both appellants. (2) The learned trial judge erred to reject the. I I documentary evidence (Exh D1) tendered by ! the Z'd Appellant which jtstified the retractio(I of his confessions on ground of torture. '!: (3) As there was unclea1evidence on the age of the 1st Appellant, thdi trial judge ought to have held in his favour that he was minor at .I . the time of the commissibn of the offence'~ This appeal has been strongly! resisted by respondent Republic I \ . which was represented by Ms. Neerha Mwanda, learned Senior State . I ' I r .·J i l 3 I I Attorney. Mr. Mushokorwa appearecf in person to prosecute the I appeal. Before canvassing the thr, grounds of appeal, we have found it expendient to give, first, the bssential factual background to r . I the appeal as gleaned from the totality of the evidence on record. It is as follows. Emmanuel Mahiga (PWS) is a r~sident of Tosamaganga village I I' within Iring·a District, Iringa Region. /He is a family man. One of his children is Kevin Mahiga ( the 1st appellant). However, up to 15th 'j December, 2004, Kevin was not living with his parents. He was I: residing in Dar es Salaam with the family I of his. paternal aunt, one i'. Mrs. Georgina Kajange. Indeed, u~til ,! 15th December, 2004 PWS 1 .Emmanuel Mahiga had never seen/Kevin for almost one year. But Kevin suddenly arrived at his family r~sidence on that day. It was about 22.00hrs. Kevi,n was in the company of two colleagues .. He introduced his collJagues ~o his parents as Hifadhi I, I, Kabora and Juma Christomas Mgeni (c the 2nd appella_nt). They had a I' ~ . white saloon car, Toyota Cresta, With them. I They said they were ',, travelling to Songea. Overwhelmed (on seeing his son, PWS Mahiga invited them to spend the night with them and proceed with their i ' 4 - t safari to Songea the following morning. I. The invitation was r courteously not accepted. They prornised I to come back after three 1, days. They then boarded their car an1 ~ drove away, ostensibly going [ I to Songea. They did not reach far. The engine stalled and the car I, I' J came to a stop. They thought they had run out of fuel. I Kevin returned to his home td find out from his father from I I, I ·1 where they could purchase fuel. He directed them. However, the I. I: engine could not start. PWS Mahiga beseeched them to sleep and I have the car checked in the morningJ They were not in the mood of 1· spending a night at the village. Thef would "try hard since their trip was important", they told him. SiJce they could not yield to his I entreaties, PWS Mahiga left them alohe and retired as he was tired. ' found the white car still there. On waking up in the morning, tile '· Thinking Kevin and his colleagues Jere around, he went about his I I business. When he came back later, the car was there. Kevin and 1: his friends were nowhere to be seent Curiosity and anxiety led him to i where the car was. A cursory inspection I of it alarmed him. The. car I had no number plates; the insurante cover had been removed. A ,,I, peep at the dashboard made him think that it had been "vandalized". ' j ' d r··1 : l I : 5 'i I He believed the vehicle had been carjacked. He instantly reported the matter at Ipamba Police Post. I, Police officers led by PWl A.S.P Nicholaus Kimela inspected the vicinity of the car. They managei to come across two hammers and a steak knife, (exh P2) and a /c1oth, all of which were blood I stained. Also a damaged car radio vJ~s picked up. With the help of I:II local mechanics, the police managed !to unlock the car doors. Inside i the car they found blood stains on theI driver's seat and a lot of blood . ~: at the back seat. Their inspection le8 them to the car's boot. There I,, I· they found a dead body of a male p~rson covered with a car carpet. The body had a deep cut wound on !he forehead, and a compressed I fracture on the occipital region. Thete was also a manila rope (exh. I I P2). The police took all these articl~s as well the body to the police 1: station. The dead body was subsJquently sent to. Iringa Regional Government hospital where a . ~ost-mortem examination was 1, performed. At the hospital the dead bo~y was identified to be that of 1. Bushiri s/o Ismail @ Wanguvu. /:The post-mortem examination, I, I , J ,II f j; 6 I . performed on 18th December 2004, established the cause of death to I, be head injury. Suspicion centered on Kevin Emmanuel and his colleagues. [ i PWS Mahiga informed his brother in !'aw (Hezron Kajange) in Dar es . !i . Salaam, what had befell them. He requested him (Kajange) to I I facilitate the arrest of Kevin. Kevin, who before had been residing ,! 1 I with the Kajanges' at Yambo Vitu~a, was arrested at Josephine I Mahiga's home at Mikocheni "B" in D~r es Salaam on 18th December, 1' I 2004 by No. D 639 D/Cpl Mabula. (fW2). He had, after all, never gone to Songea. Upon his arrest, Kevin was tletained at Oyster Bay Police 1 l Station, Dar es Salaam. In tte course of his preliminary ,, investigations, D/CPL.Mabula, recortjed ·Kevin's cautioned statement . r (exh. P6). In his cautioned statemen~, Kevin owned up to the murder of Bushiri s/o Ismail @ Wanguvu ,bether with Juma Christomas i Mgeni and Hafidhi Kabora on the n)ight of 16th December, 2004, at "I i Tosamaganga village. Kevin· was [brought back to Iringa on 20th December, 2004, by PW1. Kimela. ji II I, 7 Once in Iringa,Kevin led the poli1e to the residence of Juma C. 'I I Mgeni at Mshindo area. Juma, it was :earnt, had shifted. He was all 1 1 ! the same, arrested by PW1 KimelJ, at Mivinjeni area on 21 st I~ December, 2004. On being intervievJed by PW1 Kimela, Juma like · Kevin, in his cautioned statement (ex~. P7) confessed to the murder . Ii · of Bushiri Ismail in the company off Kevin and Hafidhi. On 22 nd 1: I December 2004 both Kevin and Ju➔a separately appeared before Anna Lupembe, (PW3) a Primary colrt Magistrate and a Justice of. I . the Peace to whom they made extra~3udicial I . statements (exhibits P4 and PS). Each one confessed to ha~e jointly murdered Bushiri, as . II they had done in their cautionedi statements. The cautioned . 1 statements and extra judicial statemehts were tendered and admitted I. in evidence without any objection fro~ the defence side. iI Armed with these unequivoca_'I ('confessions, the police formerly I! instituted criminal proceedings agaihst the two for the murder of I - Bushiri Ismail. Hafidhi Kabora, has never been traced to date. Kevin I Emmanuel Mahiga and Juma Christomas Mgeni were formally 'I f . 1 arraigned for the murder of Bushiri s/o Ismail @Wanguvu, before the th J High Court at Iringa on 7 February ~006. Ij 8 . ' The two appellants denied the ch,arge at the comhiencement of 1 the trial. Although the second appella/nt maintained his denial in his sketchy defence, the first appellant/ unequivocally advanced the prosecution's case against him. For ~his reason we can as well say I that this appeal, as far as he is concerlned, is against the sentence of death only. The 1st appellant's sworn evibence was remarkably short. Bearing out his father (PWS), he t,ld th~ trial High Court that in December, 2004 after sunset, togettiter with the 2nd appellant and Hafidhi, they called at his home at Tosamaganga village, after an · absence of about a year. They had a saloon car. They left that car which they had planned to steal with a dead body inside, at his home and went to sleep in one of the I uest houses at "Tosamaganga ' ' II Area". As what they did and happenJd to them thereafter he left it to the trial High Court to gather from his cautioned statement (exhibit 1 P6). He concluded his evidence in chief unequllvocally asserting that:- "All what is said in my cautioned statement is i true except my age. " I I t I i l I 9 I What the 1st appellant said it exh.P6 was concisely and I, . l dispassionately put thus by the learned trial judge: I i •~ .. The first accused "Jade not only a I confession but an extrem~ly detailed account I on the plan schemed a4 the Z1d accused's . i' house at Mshindo Area/ lo/es of each of the jl three persons✓ execution Jri the evil plan drive to Tosamaganga in a hijJcked car, whom he I j, . talked to/ where he got the fuel for the car, f escape to Dar es Salaam and his arrest." I I I i I We have read carefully exh.P6 and we are satisfied that the t learned trial judge well summed u.~ its contents. We have also 1· 11 st studied the 1 appellant's extra judici~I statement to .PW3 Anna i (exh.PS). It is an unequivocal cohfession i to the murder of the ji deceased Bushiri, who was a taii,, driver. Both were neither I' -repudiated nor retracted at any stag'e. ,, As such, they contain a true I' and correct account of who killed Bu~hiri and how. I: , II I I . l' As for the second appellant, he denied any complicity in the I • • . f murder of Bushiri in an evasive manner. He belatedly retracted both :1 his cautioned statement (exh. P7) allleging that it was a result of being tortured by the police, and his extra - judicial statement (exh. P4). On the latter which, too, was a confession to the murder in cold blood of Bushiri in collaboration with the 1st appellant and Hafidhi, he alleged that he gave it under fear of the tortures he had earlier experienced at the hands of the police. The three assessors unanimously returned a guilty verdict for both appellants. In his judgment the learned trial judge found it undisputed that Bushiri s/o Ismail @ Wanguvu was dead. Relying on the undisputed Report on post-mortem examination, he also found that Bushiri died a violent death. We entirely agree with him on both findings of fact. He then had to grapple with only two issues. These were: One, whether or not the two appellants were responsible for the death of Bushiri, and two, if they were, whether or not they did so with malice aforethought. Relying mainly on the evidence of PW1 A.S.P. Kimela, PW2 D/CPL.Mabula, PW3 Anna Lupembe and PWS Emmanuel Mahiga, whom he found to be credible and reliable witnesses, as well 11 • •• 1' as the appellants' confessions he an;swered the two crucial issues affirmatively. Hence the conviction tot murder. As already indicated above, the, conviction for-·murder is being I challenged on the basis of the complaints contained in the first two i grounds of appeal, which we shall cpnveniently· discuss together as i they are interrelated. The first ground of appeal is pegged on section 33 (1) and (2) I . ,, of the Evidence Act. The two provisi~ns read thus:- ''33-(1) When two or more ipersons are being tried I Jointly for the same o~ence or for different offences arising out of the lame transaction, and a I confession of the offenc~ or offences charged ! ,, I made by one of those persons affecting ,himself i and some other of those persons is prove~ the 1 court may take that confession into consideration I' I, against that other person. i '1. I (2) Notwithstanding subse'ction (1)✓ a conviction of I i an accused person shall not be based solely on a confession by a co-accused" I 1, I 12 1 /: ,I 1, The word "confession" has been jgiven an expanded meaning in j' section 3(1) of the Evidence Act. Twoj such meanings are: I ,, "(b) a statement which admits in terms either I. an offence or substantially that the person I, i making the statement has committed an i offence; or j 1' (c) a statement containing an admission of all I i the ingredients of the offence with which its maker is charged/" In this appeal, there is no dispute on the fact that the i cautioned statements and extra-judicial statements of the appellants i i amount to confessions in law. The issue is that the learned trial !: I, judge erred in law in holding that each I, appellant's confession which i I were retracted, corroborated each other, and could therefore be 1 1 i safely relied on to ground a convicti,On for murder without any other ,,I reliable corroborating evidence. Mr. Mushokorwa has strenuously argued that there was no such ~orroborati ng evidence, a claim I Ii resisted by Ms. Mwanda. I I I, I• I: 13 '' I .r ': . i' Ms. Mwanda argued before us th,at the retracted confessions of 1, ,, I the 2nd appellant were adequately corr?borated. Aligning herself with I I the firm view of the learned trial judge, she contended that such corroborative evidence came from the Report on Post-Mortem examination, the evidence of the 1st appellant, the discovery of the I' murder tools (exh.P2), the finding of the body in the boot of the car, I i' l the narration of the 2nd appellant:; in his statements on what I, transpired at PWS Emmanuel's home pn the night of the murder, etc. 11 I t ;1 I In disposing of these two grounds of appeal we shall begin with i this assertion. This is that not ev¢ry confession, be it retracted, I repudiated or otherwise, needs to be corroborated. A conviction for I any offence may be solely based on!.a confession. This Court in the I' case of Twaha Alli & 5 others Ve,rsus Republic, Criminal Appeal · I I No. 78 of 2004 (unreported), put it c!early thus:~ l, i "We wish to emphasiz? here that it is a mundane truth that the ve,y best of witnesses is .j an accused who confesses his guilt. This confession, however, should not be taken casually. .. " 14 ,. Af. early as 1945, the Eastem1frican Court of Appeal in the case of Republic versus GAE s/ o ~aimba and Another (1945) I 12 EACA 82, had said:- · / "There is no rule of law or ~ractice making I' corroboration of a retracted confession l' l essential. Corroboration df a retracted i confession is desirable ~ut if the court is I, fully satisfied that the fOnfession cannot I ' but be true, there is ndI, reason in law 'I I why it should not act ~n it." I [Emphasis is ours]. ~ This position was reiterated by the East Africa Court of Appeal l in the case of Tuwamoi v Uganda (1967] E. A. 84 . The Court i said:- !t " ... Corroboration is not r,ecessary in law and I, 11 the court may act on thei confession alone when it is fully satisfied Jtter considering all t ' i i the material points and surrounding I, i: circumstances that the C:onfession cannot but be true" r . . ·• l l 15 -, This legal position has !' been consistently maintained by this ! Court. See, for instance Michael L~hiye V Republic [1994] TLR 181 and Jumanne Mfaume @ Said V Republic, Criminal Appeal i I No. 52 of 2006 (unreported) whose Judgment is dated 6th November, I 2009. In Luhiye's . case (supra), this:'Court I upheld the trial Judge in I1 acting on a retracted confession whi~ h she had found to have been :1 i I nothing but the truth although it had been made under "intimidating 11 surroundings." I I I' . I[ ' In the appeal before us, we have two sets of confessions by . each appellant as already shown abore. The two sets of confessions I I were tendered in court and rece ived in evidence without any 1 I objection from the appellants who rnad legal representation. If the I ' 2nd appellant seriously believed tha,t the cautioned statement was ['. obtained from him through torture, he should have so instructed his counsel who would have objected ttj its production in evidence. The Prosecution would have had the opportunity to prove its I" ! voluntariness through a trial within a trial. He did not do so, but he sprang up with the claims of torture supporting them with a PF3 i' (exhibit D1) when he was defending himself. To us this very late 16 attempt was an afterthought and this rendered exhibit D1 highly suspect. For this reason alone we ho:ld that the learned trial Judge was justified in according no weight t6 exhibit D1, and rejecting the I i 2nd . appellant's defence. We find support for the position we have taken in our decision in the case of H~dija Salum & Dotto Isimbe I versus Republic, Criminal Appeal No..11&33 of 1996 (unreported). We find justification in our doubting of the genuineness of the I I 2nd appellant's torture claims and e~hibit D1 from the undicredited I evidence of PW3 Anna Lupembe. As! already I shown above, the 2nd I appellant made a confessional extr9'-judicial statement before PW3 Anna Lupembe.. This was after he had been allegedly tortured and i' then treated at Iringa government Hospital. I 1' PW3 Lupembe told the trial Hi~h Court that the two appellants I I separately made their statements 'as free agents. None of them ,i complained to her of having been ,tortured. When recording those statements no person other than herself and the respective suspect was present or within sight. She read out each statement in court. I The 2nd appellant's statement shows that he was explained all his rights and that his body had no single scratch or bruises. The • 17 appellants' counsel only cross-examinJd I PW3 Anna on minor issues relating to the date and time when the/ statements were recorded. In all five questions were put to her on( cross examination. None of I I these related the allegation thatthe 2td appellant had been tortured, threatened, etc., before he was sent ~o her. The learned trial judge i. commended her forthrightness and honesty ,I and accepted her entire i I evidence to be nothing but the truthJ~ We have found no reason to /i differ with him. It goes without s~ying, therefore, that the 2nd . • !1 !, Appellant's cautioned statement to /PWl Kimela and extra-judicial I I statement to PW3 Lupembe, were fre~ly and voluntarly made. In view of the above, it is .dur finding that the appellants' I confessions to PWl Kimela, PW2 D/CPL.Mabula and PW3 Lupembe, 1 were freely and voluntarily made. T~ey were all unequivocal, leaving ,· I no grain of doubt on their complicity in the murder of Bushiri s/o I I,. Ismail @ Wanguvu. These confessjons in our settled view, needed I I no corroboration. Standing alone t~ey sustain the conviction of the I I two appellants for the murder of Bushiri s/o Ismail @ Wanguvu. We conclude our discussion qf the first two grounds of appeal i, as follows: It is true that the learned trial judge improperly alluded ,I j 18 st that the confession of the 1 appellarl,t corroborated what has been I 1: I persistently referred to as the retracted confessions of the 2nd 1r appellant. All the same, this was not fatal to the conviction of the I'. I appellants. As we have already sufficiently demonstrated these I, ' ' confessions being nothing but the truth needed no corroboration. We have found the torture claimJ to be figments of the 2nd I' , appellant's own imagination. we/ are fully satisfied that the I appellants were rightly convicted 9n the basis of their truthful voluntary confessions and the truthfb1 evidence of PW1, PW2, PW3 I and PWS. As the first and second grounds of appeal are, seriously ~ I' wanting in merit, we dismiss them. 4,s a consequence we dismiss the 11 ,, appellants' appeal against conviction. 1 I The third ground of appeal cbncerns the 1st appellant. It is 11 . common ground in this appeal that !there was a confusion regarding I: his age during the course of the tdal. This necessitated the stake- 1 'I 1 holders (i.e, the judge and counsel for both sides) to agree on an II impartial arbiter so to say. They( agreed to seek expert medical . l I'st opinion. By a court order the 1 appellant was sent to Iringa I government hospital for examinatiok In our view the court properly I I ,. '! 19 . i l so acted in terms of section 16 (1) of t ~e Children and Young Persons 1 Act, Cap.13. i i The 1st appellant was exa~ined by PW6 Dr. Gervas !• I Rugakingira, himself a qualified me~ical doctor. PW6 Dr. Gervas 1'i opined that at the time he exami1ed the 1st appellant, on 22 nd !i February, 2008, the appellant was approximately 20 years old. In sentencing the appellants, /the learned trial judge, rightly I 11 . feeling not bound by the opinion of t~e doctor, determined the age of \ . r the 1st Appellant Kevin basing on exh ibits PS and P6, to have been 18 1 \ years in 2004, when he committed!. the offence. Hence the death f . ,I sentence. We find it our duty to ptjint out forthwith that under the I'I •1• provisions of 5.16 (2) of Cap 13, the [jurisdiction to determine the age I I of the 1st appellant vested in the trrial High Court after making due i, 1· "inquiry". There is no dispute here ~hat the trial judge made such an . I inquiry. As a result, he was satisfidd that Kevin was 18 years when ! I • I he committed the offence. Mr. Mushokorwa has lJrged us to fault this finding because it was contr~ry .to the opinion of Pw6 Dr. j' ,, Rugakingira. Ms. Mwanda pressedI us to uphold the learned trial I: I ,, . . 20 ,-{ . . judge's finding as it was judicially alirived at after considering the - l - I appellant's own confessions and other relevant facts. It is true.th?it in both exhibits PS and P6, the 1st appellant, on - I - . his own volition, stated that he was 18 years old. It must be recalled that he did-noUn -. his. eiidence repudiJte I anything in the extra-judicial .... · .•... ·:. . . .j . - statement. . The_-learhed judge reasoned thus:- - . . . j . . . . .• . j 1 _ ~-•• The .• , ·-accused completed I his secondary education in: November, 2004. A month j before· he was involved in this case. At the , - . l tim; he recorded his stdtement his age was . . . . . . . 1. I . . riot a· controversial issue.!.. He had no reason j. . to lie -about his age._.· ·But now he has every . . _· I ' .. . ~- i ' ) .. :. :··reason to lie in order to escape punishment - . -l deserved for him. His resort is nothing but an . _-· afterthought ... " .. . .We e~tirely'. ~gree with him. rn top of Kevin's ~wn reckoning of his age. in exh1b1ts PS and P6, ~r have found -nothing on record, nor we wer~ shown any by Mr. '~ushokorwa, to convince us that I . Kevin started Primary School at the age of four· years, so as to 21 complete form ·1v in 2004. We accor8ingly dismiss the third ground of appeal . .All said and 9onei we dismiss ~his appeal in its entirety, and · I uphold the conviction and death sentence. . . .. . . . ! DATED atIRINGA this 22 nd dayiof August, 2010 .. I ·E.M.K. RUTA~NGWA JUSTICE OF APPEAL . i N.P. KIMARO . JUSTICE OF APPEAL I · dr¢PfZ~r·., · W.S. MAN.DIA . .• ·.·· _,,,~-~:.~-~ . JUSTICE OF APPEAL . l,~: . .. I /;· , is a true copy bf the original. I ~~ / ·1 . . .. / t:\. ' . ¼ ' ~.. . J.S.:GJJ:;;_f, · DEPUTY REGISTRAR COURT OF APPEAL I I