CRIMINAL APPEAL NO 487 OF 2022 TWAIBU MOHAMED NGINDO ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MWARIJA, 3.A., KEREFU. J.A.. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 487 OF 2022 TWAIBU MOHAMED NGINDO I st APPELLANT SADALA SHABANI MCHOPA .. 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) (Mlvambina, 3.) dated 28th day of September, 2022 in Criminal Sessions Case No, 23 of 2022 JUDGMENT OF THE COURT &>& 10* August, 2024 MAKUNGU, 3.A: Before the High Court of Tanzania sitting at Songea, Twaibu Mohamed Ngindo and Sadala Shabani Mchopa (the first and second appellants respectively) were charged with and convicted of murder contrary to sections 196 and 197 of the Penal Code, [Cap 16 R.E 2002 now 2019]. The prosecution alleged that, on 12th September, 2020 at the Lutheran Church - Majengo area within Songea Municipality in Ruvuma Region, they murdered one Rashid Ally Machupa, the deceased. There was no dispute at the trial that the said Rashid Ali Machupa was a security guard duly employed by Ilonjezi Security Group and that he met an unnatural death. The trial court's finding that it was the appellants who had caused the death of the deceased was based on their cautioned statements (exhibits P7 and P8) as well as the extra judicial statements allegedly made by them before a justice of peace. Following the conviction, the trial court sentenced them to the mandatory death sentence. Being aggrieved, the appellants have jointly preferred the instant appeal. The story as to what happened therefore, begins with the deceased workmate one Godfrey Martin Mangamale (PW1) who testified that; on the fateful night of 12th September, 2020, he was on duty at K.K.K.T Songea Town together with the deceased. The latter was stationed at the Kindergarten area holding a gun while PW1 remained at the main gate using a wooden club (kirungu). Around 00:00 hours, PW1 went to check on the deceased at Kindergarten area but he could not locate him. Having traced him and upon reaching at the meeting hall, he saw the deceased clothes scattered on the ground. While still wondering, he saw three people running away. Later, one of them started to chase him. He managed to escape while screaming for help. Furthermore, PW1 was rescued by other security guards who were guarding outside the K.K.K.T wall. Few meters from the meeting hall, they found the body of the deceased lying on the ground with injuries on the head. Beside him, there was a triangle shape stone and one side was stained with blood. The gun was one pace from where the body of the deceased was lying. PW1 went to the nearby house of a K.K.K.T Evangelist one Laban Wilson Kaminyonge (PW2) and informed him about the incident. PW2 informed the Ilonjes Securtiy Group Office and the Central Police Station. Assistant Inspector Said Madila (PW9) confirmed to be informed by PW2 on the murder incident. He accompanied the OCCID to the scene of crime where they met PW2 and a Security Guard. At the scene the deceased body was still lying on the ground behind the Church Club, the body had injuries on the head and beside there was a big stone with bloodstains. PW9 seized the said stone and filled a certificate of seizure (exhibit P2). He also drew the sketch map (exhibit P5) and the body was transported to hospital. At the Police Station PW9 handed the stone to PC Ramadhan. G. 8051 D/CPL. Tryphone (PW3) confirmed to receive the said stone from PC Ramadhan and tendered it in court. The same was admitted in evidence as exhibit PI. PW9 also attended the post-mortem examination conducted by Dr. Massawe who filled the autopsy report. PW9 tendered the said report in court and was admitted as exhibit P6. 3 Moreover, PW9 interviewed the appellants and recorded their cautioned statements. It was the testimony of PW9 that during the said interview the appellants confessed to have killed the deceased. The said cautioned statements were admitted in evidence as exhibits P7 and P8 respectively. E. 5154 D/SGT Timoth Philimon Mabuga, (PW8) the Police Officer arrested the appellants and later took them to the Police Station. Upon interrogation, they confessed to be involved in house breaking and he framed the burglary charge against them. Later on, he was informed about the murder incidence in Songea linked with the appellants. He handed the appellants to detectives Benson and Omary of Songea. Assistant Inspector Omary (PW6) confirmed to pick the appellants from Njombe to Songea where they were suspected to have killed the deceased. \ On 21st October, 2020, H. 4680 D/C Zawadi (PW4) while accompanied by D/C John took the appellants to Goodluck Kelvin Ndimbo (PW5), the Justice of peace and Primary Court Magistrate to record their extra-judicial statements (exhibits P3 and P4). In his evidence, PW5 confirmed that the appellants confessed before him to have killed the deceased. In their defence, the appellants had distanced themselves with the killing of the deceased. They denied to have been known to each other. They also denied to have confessed before PW5 and PW9. The first appellant (DW1) contended that he was tortured and forced to sign on the paper without knowing its contents. The second appellant (DW2) contended that he was arrested for the offence of brawling under section 89 (i) (b) of the Penal Code but surprisingly, he was charged with murder. In this appeal, the appellants have preferred seven grounds of appeal for our consideration. At the hearing of the appeal, Mr. Hillary John Ndumbaro and Mr. Elius Ndunguru, both learned counsel who were duly assigned to represent the first appellant and the second appellant respectively, appeared to prosecute the appeal. The appellants also were present in Court. On the adversary side, the respondent Republic was represented by Mr. Baraka Mgaya, learned Senior State Attorney. Before he could submit in support of the appeal, Mr. Ndumbaro prayed to abandon grounds 1, 2, 4, 5 and 7 and intimated that both of them would argue grounds 3 and 6 only. The said remaining grounds can therefore, be re-arranged and paraphrased as follows: 1. That, the trial court erred in law and fact by convicting and sentencing the appellants based on the exhibits P7 and P8 (cautioned statements o f the appellants). 2. That, the prosecution did not prove the case against the appellants beyond reasonable doubt Submitting with regard to the first appellant's complaint in the first ground, Mr. Ndumbaro contended that the cautioned statement of the first appellant (exhibit P7) was wrongly relied upon in evidence. He argued that the said statement was recorded on 15th October, 2020 but the first appellant in his extra-judicial statement stated that it was recorded on 16th October, 2020. He further argued that, the said statement ought not to be admitted because the first appellant was tortured and forced to sign it. Therefore, according to him, it was wrongly admitted in evidence. On the second ground of appeal, Mr. Ndumbaro argued that the case against the first appellant was not proved beyond reasonable doubt. He took us to page 122 of the record of appeal where the trial Judge observed that; "More so, in the case at hand, there is no any direct evidence which link the accused persons with the murder o f the deceased. The accused 6 persons confessed to have killed the deceased in their extra-judicial statements" From the above excerpt, he submitted that the first appellants conviction was based on his extra judicial statement which was not properly recorded. He attacked that statement on two aspects; One, that the Justice of the Peace (PW5) did not observe the Guidelines issued by the Chief Justice to the Justices of Peace relating to the procedure of recording extra-judicial statements. He specifically pointed out item 3 of that Guidelines which required PW5 to ask the first appellant where he slept before the date he was brought to him. According to him, failure to ask that question renders that statement invalid and therefore it was wrong for the trial Judge to rely on it in his judgment. Two, the failure of the trial Judge to consider the allegation raised in that statement that the first appellant was tortured and forced to sign the cautioned statement at the Police Station which created doubts in the prosecution case which, again, should have been resolved in favour of the first appellant. For those reasons, he prayed that the appeal be allowed and the first appellant be set free. On his part, submitting in support of the first ground of appeal, Mr. Ndunguru argued that, the cautioned statement for the second appellant was recorded contrary to the law. Although it is shown that it was recorded under section 58 of the Criminal Procedure Act, Chapter 20 of the Revised Laws, it was recorded by the Police Officer and not the second appellant. He admitted however, that the same was not objected by the second appellant's advocate during its admission in evidence but the second appellant himself repudiated that statement in his defence, which was not considered by the trial court. According to him, the said exhibit P8 should be expunged from the record because it was not properly recorded and admitted in evidence. Regarding the second ground of appeal, Mr. Ndunguru submitted that the offence was not proved beyond reasonable doubt because the trial court relied on the cautioned statement and the extra judicial statement of the second appellant which the contents of which are tainted with contradictions. He pointed out that the cautioned statement is more detailed than the extra judicial statement which raised a lot of doubt. The said doubt should be resolved in favour of the second appellant, he added. He prayed the appeal to be allowed and the second appellant be set free. Submitting with regard to the appellants' complaint in the first ground that the cautioned statements were improperly recorded and admitted in evidence, Mr. Mgaya argued that the contention is an afterthought. This is because, he submitted, at the trial, the appellants did not contest the admissibility of the said cautioned statements when they were tendered by PW9 who recorded them upon their consent. Besides, he stated, the appellants did not dispute their contents when they were read over and explained to them after they were admitted in evidence. In the circumstances, Mr. Mgaya submitted that the appellants cannot argue at this stage that the cautioned statements (exhibits P7 and P8) were not properly recorded or admitted. To support his stance, he referred us to the decision of the Court in Vincent Homo v. The Republic, Criminal Appeal No. 337 of 2017 in which reference was made to the decision of Emmanuel Lokay and Udagene Yatosha v. The Republic, Criminal Appeal No. 278 of 2010 (both unreported) where it was stated that; "It is trite law that if the accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and not during cross examination or during defence - Shihoze Seni and Another v. The Republic (1992) T.L.R 330. In this case the appellants \'missed the boat' by trying to disown the statements at defence stage. That was already too late. Objections, if any, ought to have been taken before they were admitted in evidence. " 9 In this regard, the learned Senior State Attorney submitted that as the appellants neither objected to the admission of exhibits P7 and P8 nor cross-examined PW9 on their contents, they cannot be heard to complain at this stage of the appeal. On the other hand, Mr. Mgaya submitted that the complaint by the appellants in the second ground that the case was not proved beyond reasonable doubt, has no merit. He argued that, the appellants' confessions as reflected in exhibits P3 and P4 demonstrated without doubt that they committed the offence of murder. He maintained that as both confessions were voluntary, the appellants cannot deny the allegation contained in the charge. He referred us to the decisions of the Court in Mohamed Haruna Mtupeni and Another v. The Republic, Criminal Appeal No. 259 of 2007 and Herman Muhe v. The Republic Criminal Appeal No. 113 of 2020 (both unreported) and stated that the best witness in a criminal trial is the one, like the appellants in this case, who freely confess their guilt. He thus concluded that considering the confessions contained in exhibits P3 and P4 were not challenged by the appellants, the prosecution case was proved beyond reasonable doubt. In the end, the learned Senior State Attorney urged us to find the appellants' appeal to have no merit and dismiss it. 10 In their brief rejoinder, the learned counsel for the appellants, reiterated their earlier submissions and stressed that the prosecution case was not proved to the hilt. They thus, once again urged us to allow the appeal and set the appellants at liberty. For our part, we entirely agree with the finding of the learned trial Judge at page 122 of the record of appeal that in this case at hand there is no any direct evidence which link the appellants with the murder of the deceased. However, the appellants confessed to have killed the deceased in their extra judicial statements. As correctly stated by Mr. Mgaya, the confessions by the appellants before PW5 who recorded exhibits P3 and P4 cast no doubt that they were the ones who murdered the deceased. The allegation in the charge therefore was fully proved by the admission of the appellants themselves. We entirely agree with the submission of the learned Senior State Attorney that the appellants' complaints that their cautioned statements were wrongly relied in evidence to ground their conviction because they signed them after being tortured have no basis. The record of appeal bears testimony to the fact that when PW9 prayed to tender them during the trial; they did not object, and they were thus admitted as exhibits P7 and P8 respectively. More importantly, their contents were 11 read over in Court before the appellants were granted opportunity to cross examine PW9. We further gather from the record of appeal that there were no appellants' questions in cross-examination with regard to the recording of exhibits P7 and P8. From the evidence on record, there is no suggestion that exhibits P7 and P8 were not voluntarily made as the appellants would wish to suggest. In this regard, we wish to reiterate the position stated in Emmanuel Lohay and Udagene Yatosha (supra) that, as the appellants neither objected to the admission of exhibits P7 and P8 nor subjected PW9 to critical cross-examination on their contents, they cannot be heard to complain at this stage. In the light of the Court's decision in Mohamed Haruna Mtupeni and Another (supra), we hold that the appellants being witnesses who confessed freely their guilt, is taken to have assisted the prosecution to advance its allegation on the commission of the offence of murder they were charged with. We thus even find the issues raised by the appellants' counsel to challenge the cautioned statements and confessions at this stage of an appeal, to have no substance. It is on record that during the trial, the appellants did not object or cross- examine PW5 and PW9 on those aspects. We accordingly dismiss the first and second grounds of appeal as we are satisfied that the prosecution case was proved beyond reasonable doubt. The foregoing said, we are of the considered view that the charge levelled against the appellants was proved to the hilt. We thus find no merit in this appeal and dismiss it entirely. Order accordingly. DATED at SONGEA this 16th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 16th day of August, 2024 in the presence of the appellants in person and Mr. Elipidi Eugeni Tarimo, learned State Attorney for the Respondent/Republic is hereby certified