20170523 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: JUMA, Ag. C.J .. MJASIRI, J.A. And MWANGESI, J.A.) i CRIMINAL APPEAL NO 243 OF 2010 ELIMRINGI JOSEPH @MLA.Y ••••••••••••.•.••••••••••••••••••••••••••••••••••••••.•••••••••••••• APPELLA.NT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••.•.•••••••••••••.••••••.••••••••••••••••.••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Mugasha, J.) dated the 4 th day of August, 2010 in VIDE DC. Criminal Appeal NO. 105 of 2008 JUDGMENT OF THE COURT 22 nd & 24th May, 2017 JUMA, Ag. C.J.: The appellant was together with Godfrey s/o Gaspar Swai @ Mosoi, Josephat s/o Emmanuel Shayo @ Sadala, Lucas s/o John Dismas and Evarist Thadei Mzee Mrema, were jointly charged before the District Court of Rambo at Mkuu, with the offence of armed robbery contrary to section 287A of the Penal Code, Cap 16 R.E. 2002. The particulars of the offence were that on 25 th March, 2007 at around 00.05 hours at Makiidi village in 1 Rambo . District in Kilimanjaro Region, they stole a 12 calibre shotgun (Cogswell Harrison-with serial number 55715) and two rounds of ammunition for the shotgun, the property of Makiidi Rural Society Corp. Ltd. It was further alleged that immediately before and after stealing, and in order to obtain the stolen property, they used a knife to slash and injured one Sebastian s/o Paulo, the watchman guarding the premises. In summary, the case against the appellant can be traced back to the evidence of the watchman (PW1) who while on guard, felt thirsty and decided to walk home for a drink of water. On the way he was accosted by · two people, who while slashing him with a knife and machete, were demanding a gun which they took. Bleeding, PW1 ran to his neighbor, Nicolaus M. Kinabo (PW2) who called up the police. PW2 testified that it was the appellant who told him that apart from the injuries he had sustained, the bandits also took his gun. PW1 was issued with a PF3 which he took to the nearby Huruma Hospital to be examined and treated. Amongst the pieces of evidence which the prosecution lined up against the appellant was the evidence of the justice of the peace, Bertha G. Malisa (PWS) who testified how the appellant was taken before her on 30th March 2007 to record his extra-judicial statement. 2 The learned trial magistrate (S. Selestine-RM) relied on the extra- judicial statement which was admitted as exhibit PB. The trial magistrate held that this extra-judicial statement proved that the appellant had not only admitted the offence, but had also recounted how the offence was actually committed from its beginning to the end. Finally on 16 September, 2008, the trial District Court found the appellant, Godfrey s/o Gaspar Swai @ Mosoi, Josephat s/o Emmanuel Shayo @ Sadala, and Lucas s/o John Dismas guilty of the offence of armed robbery and convicted them and sentenced them to thirty years imprisonment. In addition they were ordered to suffer 12 strokes of the cane. The trial court acquitted Evarist Thadei Mzee Mrema. Aggrieved by the judgment of the trial court, the appellant, Godfrey s/o Gaspar Swai and Josephat s/o Emmanuel Shayo, lodged an appeal in the High Court at Moshi (DC Criminal Appeal No. 105 of 2008). The appellant was not as lucky as his colleagues when first appellate Judge (Mugasha, J.) upheld his conviction and dismissed his appeal. His co- appellants were successful because their appeal was allowed, and their conviction and sentence were set aside. Still aggrieved, the appellant has preferred this second appeal. 3 The appellant's memorandum of appeal raised two grounds of appeal. The first ground faulted the first appellate Judge for upholding his conviction and sentence on the basis of his extra-judicial statement. This extra-judicial statement was according to the appellant, wrongly read out in court before it was first cleared for admission as the procedure requires. In the second ground, the appellant faulted the first appellate judge for placing reliance on the extra-judicial statement allegedly made by the appellant to corroborate the evidence of PW1 whose evidence the learned Judge had doubted. This appeal before us was first set down, for hearing on 16th May, 2016 but Mr. Khalili ·Nuda, learned Senior State Attorney prayed for its postponement because the extra-judicial statement upon which the appellant had grounded his appeal were missing from the record of appeal. The Court agreed with Mr. Nuda that the record of appeal was indeed incomplete, and directed the Deputy Registrar of High Court at Moshi to trace the missing document in readiness for the next hearing date, which was rescheduled to 22 nd May, 2017. When this appeal finally came up again for hearing before this Court on 22 nd May, 2017, the appellant appeared in person, while the respondent 4 Republic was represented by Mr. Nuda, assisted by Ms. Amina Kiango, learned State Attorney. It is apparent that the attempt to trace the missing extra-judicial statement has not borne fruits. Despite his concerted search, which included consulting the records of the office of the Attorney General in Moshi, Resident Magistrates' Court at Moshi and Karanga Prison; the Deputy Registrar of the High Court at Moshi had completely failed to locate the missing documents including the extra-judicial statement. He swore an affidavit to that effect. Before the appellant could be heard on his two grounds of appeal, our attentio_n was drawn to a Notice of Preliminary Objection which Mr. Nuda had earlier filed on 13th May, 2016 contesting the competence of this appeal on the ground that it was initiated by a notice of appeal that contravenes the provisions of Rule 68 (1) (2) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). After a brief exchange with the Court, Mr. Nuda magnanimously abandoned the preliminary point of objection and instead preferred to support the merit of the appellant's appeal. Submitting in support of this appeal and the two grounds of appeal as set out in the Memorandum of Appeal, Mr. Nuda argued that the only 5 evidence against the appellant which is the basis of his conviction is an extra judicial statement the appellant had made to a justice of the peace (PWS). The learned Senior State Attorney proceeded to explain why he thought that the extra-judicial statement is still insufficient to prove the prosecution's case against the appellant, even if the Deputy Registrar had managed to trace and restore it back to the record of appeal. The learned Senior State Attorney highlighted to us the shortcomings apparent on page 18 of the record of appeal where the trial court infringed the prevailing procedure when receiving the extra-judicial statement. It appears that PWS had proceeded to read the contents of the extra-judicial statement without first clearing it for admission, then admitting it as an exhibit. Explaining why he thought that the correct procedure for admitting the extra-judicial statement was not followed, the learned Senior State Attorney argued that PWS was supposed to identify the document to be the one he had prepared, and then pray to tender it as evidence. He argued that reading out the document should only have come after it had been received by the trial court. To support his argument that the way the extra-judicial statement was tendered prejudiced the appellant and should not sustain his conviction, Mr. Nuda sought support from a decision of the 6 Court in Raymond John @ Kakaa and Joseph John vs. R., Criminal Appeal No. 47 of 2015 (unreported) wherein reference was made to Walii Abdallah Kibutwa & Others vs. R., Criminal Appeal No. 181 of 2006 and Robinson Mwanjisi and Three Others v. R., Criminal Appeal No. 154 of 1994 (both unreported). In Robinson Mwanjisi and Three Others v. R the Court had observed that: "Whenever it is intended to introduce any document in evidence, it should first [be] cleared for admission, and be actually admitted, before it can be read out. Reading out documents before they are admitted in evidence is wrong and prejudicial. ,✓ The learned Senior State Attorney concluded his submissions by stating that the extra-judicial statement was exhibited in clear violation of the case law, and prejudiced the appellant who was not afforded a chance to object its exhibition as evidence. He argued further that even if the missing extra-judicial statement was in the record, it would have been expunged, in any case. 7 When his turn came to submit, being a lay person as he was, the appellant had nothing useful to add, other than to associate himself with what Mr. Nuda had submitted on. On our part, our concern in this second appeal shall inevitably be focused on issues of law. From the submissions of the learned Senior State Attorney the main issue of law is the weight to be attached to the extra- judicial statement, which as he correctly submitted, was not cleared for admission, and should not have been the basis of the appellant's conviction. Unlike the position taken by Mr. Nuda, the first appellate Judge clearly gave credence and weight to the extra-judicial statement, by regarding it as voluntary: "During the hearing of the appeal 1st appellant denied to have made the extra Judicial statement claiming that, he was only asked about his name and required to sign. So the 1st appellant is trying to impress on the court that, he did not make extra Judicial statement. The record shows that, the 1st appellant made his confession to PWS after being assured that he is not forced but free to make the extra Judicial statement. Moreover, the statement was read over to the 1st appellant before admitting the same in 8 1 evidence Exhibit P 9~" [Page 70 of the record of proceedings]. Then on page 71 of the record, the 1st appellate Judge stated that: 11 ••• • It is vivid thaC the extra judicial statement was made before Hon. Malissa PCM in the Urban Primary Court of Moshi who testified as PWS during the trial. The law was not violated because section 28 of the Evidence Act Just requires a confession to be freely and voluntarily made by the accused in the presence of a magistrate who is defined in section 2 of the Magistrate's Courts Act ..... " We think, much as PWS in her evidence stated that before recording the extra-judicial statement, she had assured the appellant of his freedom to make or not make his confession before her as a justice of the peace that alone shall not add much weight on the extra-judicial statement that was not cleared first before it was exhibited in evidence. The evidence of PWS on page 18 of the record of appeal bears out the learned Senior State Attorney's concern that the extra-judicial statement was neither cleared for admission, nor was the appellant ever afforded the opportunity to object to its admission: 9 PWS. Bertha G. Malisa/ 50 yrs/ Xtian has sworn and she states:- Xd-pp: ....... I informed the accused that he is free to tell his statement no one, forces him and I asked him [if] he has been forced [toJ come to me to confess/ but he told me that no one has forced him and he is free to tell. I was then satisfied that he ( accused) was a free agent. I then told him that the said statement if he makes it may be used as evidence at the trial against him but he told me no problem. Then he started to give me the statement✓ which I recorded I pray to read the same in court. Court: - The same is read over in court S. SELESTINE R.M. 3/4/2008 At the end the accused signed and then called the police officer to take him. I pray to tender the statement in court as exhibit. 1st accused: - I have no objection that is what [I] told her. 10 Court: - Extra judicial statement of the 1st accused · admitted as exhibit PB. S. SELESTINE R.M. 3/4/2008" As rightly submitted by Mr. Nuda, the extra judicial statement ( exhibit PS) should have been cleared for admission, and had it been so cleared, the appellant would probably have had the chance to object its voluntariness. Cautioned and extra-judicial statements are in essence self- incriminating evidence. The obligation to ensure these confessional documents are first cleared before their admission assumes special significance in so far as the cardinal rule that no person accused of any offence shall be compelled to be a witness against himself-is concerned. In Abubakari Hamisi and Stephen Focus vs. R., Criminal Appeal No. 253 of 2005 ( unreported) the Court noted that the learned trial judge had found that the prosecution case was based on cautioned statements of the two appellants. The Court made reference to its decision in Hamimu Hamisi Totoro @ Zungu vs. R., Criminal Appeal No. 124 of 2005 11 (unreported) where the appellant had complained that the trial District Magistrate had not given him an opportunity to object to the admission of his cautioned statement. The Court observed that giving an accused person an opportunity to object to the admission of cautioned statement is a prelude to ensure the prosecution bears its burden of proving that a confession made by an accused person was voluntarily made by him. In Said Lubinza, Segesa Bulengo, Mashala Natta, luma Kashindye @ Maganga and Juma Tano vs. R., Criminal Appeal Nos. 24, 25, 26, 27 and 28 of 2012 (unreported) the appellant therein was not afforded an opportunity to object before a confessional statement was exhibited in evidence. The Court observed: "...A close look at the record will show that these statements were produced and admitted in evidence without asking the respective appellants if they had any objection(s) to their being tendered in evidence. The learned judge on first appeal dealt with this aspect of the case and opined as follows:- .. .Furthe0 I also noted from the court proceedings that, none of the appellants objected to the admission of statement while being tendered and admitted in trial court. Also, I noted that, the appellants had ample opportunity to raise their objection before trial court, but none of them 12 objected to the admission of any of the caution statements... With respect, the record does not bear out the above assertion. No question of the appellants' failure to object to the statements could arise when they were not afforded an opportunity to object to them in the first place. If they had been availed of that opportunity and then raised no objection the above statement would be sound in law. But as matters turned out to be/ that was not the case. In fact if the appellants had been given the opportunity to object that would have been quite in order and in line with section 169(1) of the Act. If that had happened the prosecution would then have been given the opportunity to discharge the burden mandated under sub-section ( 4) thereto. As it is, the respective appellants' complaint in this regard is justified and has merit." [Emphasis added]. In the final analysis we find that in so far as the extra-judicial statement ( exhibit P8) was not cleared before its admission, it is unsafe to rely upon it to form the basis of the conviction of the appellant for the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16. This appeal has merit and we accordingly allow it. We quash the conviction of the appellant and set aside the sentence imposed on him. 13 ~ -~· .. i, I • • The appellant shall be set at liberty forthwith unless he is otherwise lawfully held. DATED at ARUSHA this 23 rd day of May, 2017. I. H. JUMA ACTING CHIEF JUSTICE S. MJASIRI JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL E. D.E TY~R · STRAR ~ - 14