20130729 TZCA

IN THE COURT OF APPEAL OF TANZANIA AT TANGA f CO RAM: KILEO, J.A.. MASSATI. 3.A. And MANDIA. CRIMINAL APPEAL NO. 138 OF 2013 ELINEMA K IB O ...................................................................... APPELLANT VERSUS THE REPUBLIC............................................... ....................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tanga) (RugaziaJJ.) dated the 31st day of May, 2013 in Criminal Session No. 18 of 2010 JUDGMENT OF THE COURT 26th & 30th July, 2013 MANDIA. J.A.: The appellant ELINEMA KIBO and a confederate by the name of SAIDI ZUBERI @ CHIDI were brought before the High Court of Tanzania at Tanga on an information for murder c/s 196 of the Penal Code. After due trial the appellant's confederate was found not guilty and acquitted. The appellant was found guilty, convicted and given the mandatory sentence of death by hanging. Aggrieved by both the conviction and the sentence, he has preferred the present appeal. PW5 Kadogo Kibo Selemani testified in the trial court that on 2/2/2008 his wife Magdalena, the deceased, left home at 6 a.m. in the morning to go to work at Tanga Forest and did not come back home in the evening. He (PW5) assumed that the deceased had gone to pay condolences to her sister who had recently lost a child. PW5 did not disclose where the sister lived. PW5 went on to testify that on 4/2/2008 Chidi, the confederate who was tried together with the appellant and acquitted, sent a pair of sandals which Chidi alleged were abandoned by the deceased after she ran away on being caught in a compromising situation with another man. PW5 further testified that on 5/2/2008 he and other persons went to the place which Chidi mentioned as the love spot where he i.e. Chidi, caught the deceased with another man. At the scene they found dried blood, hair and drag marks which led to a decomposing body which PW5 identified to be that of his wife Magdalena Elias. The body had cut wounds on the back, head and face. Amongst the villagers who accompanied PW5 Kadogo Kibo Selemani to the place where the deceased's body was found were PW2 Nyandwi Paulo and PW3 Ramadhani Jumanne. One day later, on 6/2/2008 PW2 and PW3 joined the company of PW6 Superintendent of Police Kimata Aziz to go to where all three witnesses referred to as "the accused's residence". The account of what happened there differ amongst the witnesses. PW2 is on record as saying:- "The accused's relative opened the door. He was asked to produce. He entered inside, came out with a bag out o f which he produced a mobile phone "SIEMENS" without a sim card. He was told to produce it. He produced it from a mud wall." On his part PW3 said:- "Surrendered him to the Police from there we proceeded to his residence. Myself, deceased's brother fellow militiaman, police officers. His brother produced a key. Inside we found a bag which when opened a mobile phone "Siemens" was found. No sim card. He was asked where it was and he produced it from a mud wall." PW6 said:- "We went to his residence. His brother opened the door. I ordered the accused to produce the items. He produced a "Siemens" mobile phone from a bag. Phone bluish white. It had no sim card which he produced from an opening in a mud wall." In an attempt to link the "Siemens" mobile telephone Exhibit P5 two witnesses gave evidence to establish the link. These were PW6 Superintendent Kimata Aziz who said:- ........... I summoned deceased's husband on 12/2/2008 who came and identified the phone. He told me there was one of the contacts the name o f his boss. Due to lapse o f time line already obliterated from network." On his part the husband PW5 Kadogo is on record as saying:- "On 12/2/2008 I was summoned to go to Pangani police station to identify a mobile phone allegedly found with Elineema Kibo my blood brother. My wife had a "SIEMENS" blue colour. That phone was hers. It had three particular names, i.e. Geofrey Kizito - my supervisor, the other two I cannot remember." Apart from this search which led to the retrieval of the mobile telephone the appellant recorded a cautioned statement with PW6 Superintendent Kimata Aziz, and extra-judicial statement with PW1 Sospeter Clemence Ruangisa, a justice of the peace. After a trial within a trial the High Court ruled that the cautioned statement was involuntary and refused to admit it in evidence. The same court however, ruled that the extra-judicial statement recorded from the appellant was voluntary, and when trial resumed admitted it in evidence. The essence of the extra­ judicial statement is that the deceased was killed by Chidi, the person who was acquitted by the High Court, and that his i.e. appellant's, role was in lending Chidi the panga used in the killing and taking possession of the deceased's mobile telephone which Chidi had taken from the deceased after the killing. As remarked earlier the appellant's confederate Saidi Zuberi @ Chidi was found not guilty and acquitted. The appellant was convicted and sentenced as aforesaid. In finding the appellant guilty, the trial High Court relied on the doctrine of recent possession i.e. the fact that the appellant was found in recent possession of a mobile telephone allegedly owned by the deceased before her death. The trial court relied on Rex vs Bakari s/o Abdulla (1999) 16 EACA 84 and the more recent case of Kulwa Athumani @ Mpunguti & 3 Others vs Republic, Criminal Appeal No. 29 of 2005 (unreported). Apart from the doctrine of recent possession the trial court also relied on what it referred to as a caution statement. In its judgment the trial court always referred to what it admitted as "the caution statement" (p 68), "this statement", "the said statement" (p. 69), "going by the caution statement (p. 72), "the statement by the second accused" (p. 73), "the 2nd accused's statement against the first accused" (p. 74). In finding liability on the part of the appellant based on the statement, the trial High Court observed thus:- "Going by the caution statement, I note that the parts o f the deceased's body where the wounds were inflicted are in total agreement with the contents o f the post-mortem. This fact goes a long way to show that the 2nd accused said nothing but the truth". The reasoning quoted above formed the basis of the discontent which the appellant had against his conviction in the trial court. The appellant filed a memorandum of appeal containing three grounds which go thus:- "1. That the honourable Judge erred in law and in fact by acting upon a retracted extra-judicial statement without warning himself as to the danger of acting upon it. 2. That, the Honourable Judge erred in law and in fact by applying doctrine of recent possession. 3. That the prosecution did not prove their case to the standard required by the law. The appellant's memorandum of appeal was lodged in the court registry at Tanga on 12th July, 2013. Three days later, on 15th July, 2013 Mr. S. L. Sangawe, advocate, lodged a memorandum of appeal containing three grounds. The memorandum lodged by the learned advocate goes thus:- "1. That the Trial Court erred in law and facts, when it acted on the Extra-judicial statement, allegedly made by the Appellant, which was retracted or disowned without cautioning itself, that, it was fully, satisfied that, under the circumstances, the confession was true. That, the Trial Court erred in law and in facts, when it held that, the Extra-Judicial statement was corroborated by "PW3" as independent witness, whereas, PW3's evidence was contradicting to that of "PW2" on how, the mobile phone and the sim card were found in the alleged Appellant's house, and no evidence was led by the prosecution to establish whether the house in which the said items were found, belonged to the Appellant, hence, since the said evidence was doubtful, it could not be used to corroborate the Appellant's Extra-Judicial Statement. That, the Trial Court erred in law and facts, when it relied on the caution statement which was rejected during the trial within trial, when the judge said that "I noted that the parts of the deceased's body where the wounds were inflicted are in total agreement with the contents of the post mortem report, the 2nd Accused said nothing but the truth in his confessional statement." Mr. Stephen Sangawe, learned advocate who lodged the memorandum whose contents we have just reproduced above, represented the appellant at the hearing of the appeal. The Respondent/Republic was represented by Mr. Iboru Saraji, learned State Attorney. Mr. Sangawe, picked for argument ground number one of the memorandum he filed, ground number two of the memorandum filed by the appellant through the prison authorities and ground number two and three of the memorandum which he filed which make these two grounds number three and four. Ground number one, three and four all relate to the caution statement-cum-extra-judicial statement which the trial court relied upon to found the conviction for murder against the appellant. Since the grounds are interrelated we will examine them together. The thrust of the argument by Mr. Stephen Sangawe, learned advocate, is that two confessional documents were introduced during the trial in The High Court. These were a cautioned statement which the appellant recorded with the police, and an extra-judicial statement which the appellant recorded with a justice of the peace PW1, Sospeter Clemence Ruangisa. After a trial within a trial involving both documents, the cautioned statement which the appellant recorded with the police was rejected, but the extra-judicial statement which the appellant recorded with the justice of the peace was admitted into evidence as Exhibit P2. While composing his judgment, however, the trial judge did not refer to an extra­ judicial statement, but kept referring to a "caution statement" or "the statement". This gave the impression that the trial judge was referring to the caution statement which the trial court had itself ruled to be inadmissible because it was not made voluntarily. Mr. Stephen Sangawe pressed home on this confusion arguing that what the trial court was referring to was the cautioned statement which the court had refused to admit during the trial within a trial. We have gone through the record. It is true that at p. 72 of the record the trial court refers to the statement as a "caution statement". At page 73 however the trial court in its judgment made the following remark:- "Turning to the first accused, it is apparent that there is no evidence connecting him with the offence other than the statement by the second accused. Mr. Mfmanga learned State Attorney submitted that since the said statement was accepted by the Court he prayed that it be relied upon. "(Emphasis ours). The words emphasized refer to a statement "which has been admitted in evidence". What was admitted in evidence is an extra-judicial statement, not a "caution statement" as referred to by the trial judge. We are minded of the position of law as set out in SIZA PATRICE versus THE REPUBLIC, Criminal Appeal No. 19 of 2010 which goes thus:- "We understand that it is settled law that a first appeal is in the form o f a rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive a t its own findings o f fact, it necessary...." The more recent case of MARAMO s/o SLAA HOFU 7 3 OTHERS vesus THE REPUBLIC, Criminal Appeal No. 246 of 2011 gives emphasis to the position of law set out in the Siza Patrice case (supra). We therefore find that the reference to a "caution statement" in the judgment of the trial court is a slip of the pen. The correct reference intended by the trial court was the extra-judicial statement tendered in evidence as Exhibit P2. Notwithstanding this observation, we agree with Mr. Stephen Sangawe, learned advocate, that the trial court needed to warm itself on the dangers of acting on the extra-judicial statement. We form this opinion because during his defence the appellant had this to say in relation to the supposed confession "On 7/2/20081 was taken to the justice o f peace who produced a prepared statement which he gave me to sign. I did not kill my brother's wife. The alleged extra-judicial statement was not what said but wasjust given to me to sign." Exhibit 2 was a repudiated statement. The appellant in the extract quoted above, is saying that he never made that statement. In the quotation we made above when the judge is referring to the statement, the trial judge compared the contents of the extra-judicial statement with the contents of the post-mortem report, Exhibit PI, and then made a finding that since the contents of these two documents are similar then the extra-judicial statement was true. With due respect, this was not the correct test to apply in admitting a previously repudiated statement. The correct test is that set out in TUWAMOI versus UGANDA (1967) E.A 84. The trial court must first treat the repudiated confession with caution. Secondly, it must show that it is satisfied that in the circumstances of the case the confession is true. No such caution is reflected in the judgment of the trial court, and, instead of examining the circumstances where the confession was made, the trial court compared the confession to a post-mortem report which was not in dispute. The circumstances surrounding the making of the statement were important after the appellant claimed in his defence that he was given an already prepared statement to sign. The duty of the court here was to show that what the appellant claimed had happened did not and could not happen. A post-mortem report tendered in evidence does not help in discharging this duty. In the absence of failure to meet the safeguards imposed by the TUWAMOI case (supra) we are satisfied that the trial court should not have relied on the extra-judicial statement to found a conviction. The trial court also relied on the doctrine of recent possession. Here the prosecution put up an allegation of fact that the appellant was found in possession of a mobile telephone three days after the deceased was last seen in possession of the telephone. The law is that for the doctrine of recent possession to apply four elements must exist. These were shown in JOSEPH MKUMBWA & SAMSON MWAKAGENDA versus THE REPUBLIC, Criminal Appeal No. 94 of 2007 (unreported) which held thus:- "Where a person is found in possession o f property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as a basis o f conviction, it must be proved, first, that the property was found with the suspectsecond, that the property is positively proved to be the property o f the complainant\ third that the property was recently stolen from the complainant, and lastly, that the stolen thing constitutes the subject o f the charge against the accused.... The fact that the accused does not claim to be the owner o f the property does not relieve the prosecution o f their obligation to prove the above elements...." In the case at hand all the three witnesses to the search that is, PW2 Nyandwi Paulo, PW3 Ramadhani Jumanne and PW6 SP Kimata Azizi testified that the house in which the telephone was found was locked, and it was a brother of the appellant who opened the house before the appellant went in to fetch the telephone. The evidence of the fetching is contradictory, PW2 said the appellant went to fetch the telephone and brought it out to the search party, while PW3 said the search party went inside the house and the appellant retrieved the telephone the mobile telephone from a bag and a sim card from a fissure in the mud wall of the house. There is no evidence on record why another person should open the house for the appellant to fetch the telephone supposedly belonging to a person who was murdered. In these circumstances the person who presumably allowed the telephone into the house should have given evidence to explain how the telephone got into the house in the first place with him controlling access to the house. Proof of possession, actual or constructive, cannot be ascertained in the absence of evidence from the person who opened the door to let the search party in. Secondly, according to the evidence of the husband of the deceased PW5 Kadogo Kibo Selemani and PW6 SP Kimata Aziz, the only proof that the telephone belonged to the deceased was an entry of the name of the supervisor of the deceased called Geofrey. The evidence of PW6 SP Kimata Aziz, however, shows that ownership of the telephone could not be ascertained because details got obliterated with passage of time. The position is that the elements listed in the Joseph Mkumbwa case (supra) have not all been established. We therefore agree with Mr. Stephen Sangawe, learned advocate, that the trial Court erred in invoking the doctrine of recent possession to found the conviction. In the upshot, we find that the appeal has merit. We allow the appeal, quash the conviction and set aside the sentence. The appellant should be released from custody unless he is held on some other lawful cause. DATED at TANGA this 29th day of July, 2013. E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original.