CRIMINAL APPEAL NO 128 OF 2022 PIUS MAKEJA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: JUMA. C.J.. WAMBALI. J.A. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 128 OF 2022 PIUS MAKEJA..........................................................................APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Mnvukwa. J.^ dated 6th day of December, 2021 in HC. Cr. Sessions Case No. 183 of 2016 JUDGMENT OF THE COURT 21st & as*" February, 2025 JUMA. C.J.: The appellant, Pius Makeja, was taken before the High Court of Tanzania at Mwanza, where the prosecution charged him with murder contrary to Sections 196 and 197 of the Penal Code, Cap 16 R.E. 2002. The particulars of the charge alleged that around 02:00 hrs on 31 May 2013, at Kilombero Village, in Geita District, he murdered Mary d/o Shija whom we shall henceforth refer to her as "the deceased." The appellant denied the accusation, whereupon the prosecution presented five witnesses and three documentary exhibits—Extra-judicial Statement (exhibit PI), Caution Statement (exhibit P2), and Report on Post-mortem Examination (exhibit P3). At trial, the prosecution built its case around the identification evidence of an eyewitness, Agnes William (PW3). PW3 testified that she was present when the assailant hacked her aunt, the deceased, to death on the night of 30 May 2013. According to PW3, she and one Naomi, and the deceased shared a sleeping room. That fateful night, PW3 woke up and alerted her aunt about an intruder inside their room. The deceased asked loudly who the intruder was without reply. PW3 shone a torchlight and saw Pius, who walked out. The deceased and PW3 followed the intruder outside. While outside, the intruder attacked the deceased, slashing her with a bush knife on her head, hand, and thigh and slashing off her left breast. PW3 fled to the backyard when the appellant began to slice her aunt using a bush knife. According to PW3, the assailant returned to the house and saw Naomi. Naomi, who had been silent all along, raised the alarm, prompting the appellant to escape. When neighbours arrived following cries for help, PW3 told them that the appellant had committed the crime. PW4, Mazoya Fimbo a medical doctor from Geita Hospital, visited the scene of the crime, where he saw the deceased's body with cuts on the neck, backside, left shoulder, left hand, and right thigh. He conducted a post-mortem examination on the body of the deceased and determined multiple cut wounds to be the cause of the deceased's death. PW4 tendered a report on post-mortem examination (exhibit P3). On 19 June 2013, Lilian Joseph Katinde (PW1), a primary court magistrate then at Nyankumbu Primary Court in Geita and a justice of the peace, recorded the appellant's extra-judicial statement (exhibit PI), whose admission as evidence Mr. Mwanzalima, the appellant's learned counsel, did not object. In his defence evidence, the appellant, who was living at his uncle Bugando Mayeka (PW5)'s place since early 2013, stoutly denied any role in the death of the deceased. He told the trial court that on that night assailants brutally killed the deceased; he was asleep at his uncle's house. He learned about the murder the following day, on 31 May 2013, when police arrested him around 14:00 and took him to Nyamgaza Police Station, accusing him of murdering the deceased. Around 15:00 hrs, police transferred him to Geita Police Station, where the police confirmed that they were holding him for killing the deceased. Apart from denying that he admitted to his uncle (PW5) that he killed the deceased, the appellant repudiated the extra-judicial statement and denied he recorded a cautioned statement to confess the murder. After evaluating the evidence on record, the trial Judge Mnyukwa concluded that whoever inflicted wounds on the deceased's body using a sharp object had malice aforethought, that is, the intention to kill. The learned Judge then addressed the question of whether it was the appellant who murdered the deceased. The trial judge believed the evidence of PW3, who knew the appellant and had lived in the same village for over a year. The appellant did not dispute the fact that PW3 knew him. The trial High Court was satisfied that the prosecution had proved the murder charge against the appellant beyond reasonable doubt, convicted him of murder, and sentenced him to suffer death by hanging. The Appellant is aggrieved and would like this Court to overturn the decision of the High Court. He filed this appeal based on eight grounds, which we paraphrase. The first and third grounds fault the trial court for basing conviction on visual identification evidence of PW3. The second ground blames the trial court for relying on the extrajudicial evidence, which Justice of the Peace (PW1) failed to comply with a guide to the justices of peace set in two decisions of this Court in PETRO TEOPHAN VS. R, CRIMINAL APPEAL NO. 58 OF 2002 (unreported); and JAPHET THADEI MSIGWA V. R, CRIMINAL APPEAL NO. 369 OF 2008 [2008] TZCA 108 (1 July 2011) TANZLII. The fourth ground contends that the trial court erred in relying on the cautioned statement (exhibit P2), which police recorded outside the period the law prescribes. The fifth ground blames the trial court for acting on a repudiated and retracted confession without corroboration. The sixth ground expresses concern as to why the prosecution failed to bring the murder weapon to court, as one of the prosecution witnesses mentioned in his testimony. In his seventh ground, the appellant faulted the trial judge for convicting him based on doubtful, weak, and untruthful evidence of PW1, PW2, PW3, and PW4, which failed to prove the case beyond reasonable doubt. Finally, in the eighth ground, the appellant faulted the trial judge for solely relying on prosecution evidence to convict him without evaluating his defence evidence. The appellant, through his learned advocate, Mr. Egbert Colonel Mujungu, further filed a supplementary memorandum of appeal dated 17 February 2025, raising three grounds: firstly, that the learned trial judge failed to comply with section 246 (3) and (4) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) making his conviction and sentence a nullity. Secondly, he faulted the trial judge for failing to rule whether the appellant had a case to answer in section 293 of the CPA. Thirdly, after earlier ordering the appellant to undergo a mental examination on the soundness of his mind, the learned trial judge offended section 218 of the Act for failing, upon resuming the trial, to make a finding on the appellant's mental soundness. At the appeal hearing on 21 February 2025, Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney, assisted by Mr. Godfrey Sanare Odupoy, learned State Attorney, appeared for the respondent Republic. Mr. Egbert Colonel Mujungu, learned advocate appeared for the appellant. Mr. Mujungu opted to first submit to expound on the three grounds in the supplementary memorandum of appeal. He followed up with submissions on the eight grounds in the memorandum of appeal. In this appeal, we shall restrict our focus on the eight grounds in the memorandum of appeal. Upon Mr. Ndamugoba, the learned Principal State Attorney, conceding the appeal and opposing the appellant's conviction, Mr. Mujungu abandoned the three grounds in the supplementary memorandum of appeal. Mr. Mujungu combined grounds 1 and 3, which fault the trial judge for relying on the visual identification evidence of PW3 to convict the appellant. He then expounded why he thinks the eye-witness evidence of PW3 was too weak to sustain a conviction. He faulted the trial judge for failing to subject the visual identification evidence of PW3 to the warning this Court issued in the celebrated case of WAZIRI AMANI VS REPUBLIC [1980] TLR 250 to the effect that "evidence of visual identification is of the weakest kind and most unreliable. No court should act on evidence o f visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely watertight" The learned advocate for the appellant referred to page 66 of the record of appeal, where he submitted PW3 failed to convincingly show how she recognized the appellant at the scene of the murder as the person with who they lived together in the neighbourhood. Mr. Mujungu submitted further that PW3 did not show how far apart they lived or the light intensity, which enabled her to identify the appellant. Mr. Mujungu insisted that when he read her testimony, he did not get the impression that PW3 knew and recognized the appellant that night at the scene of the murder of the deceased. He urged us that it is unsafe to rely on the identification evidence of the sole eye-witness whose evidence does not lend assurance that there are no possibilities that PW3 mistakenly identified the appellant as the person who killed the deceased. Mr. Mujungu urged us to allow grounds 1 and 3, under which the evidence of PW3 formed the bedrock of the appellant's conviction for the murder of the deceased. Moving on to the second ground of appeal, Mr. Mujungu submitted that the learned trial judge relied on the appellant's extra-judicial statement, which Lilian Joseph Katinde (PW1), a Primary Court Magistrate (Justice of the Peace), recorded, to convict the appellant. He submitted that the appellant repudiated that extra-judicial statement, which the trial judge admitted as exhibit PI. Placing reliance in the case of TUWAMOI V UGANDA [1967] EA 84, the learned advocate for the appellant faulted the trial judge for acting on the repudiated extra-judicial statement of the appellant, which PW1 recorded without warning the appellant. Mr. Mujungu submitted that when he read the appellant's extra-judicial statement, he saw so many shortcomings that it was unsafe to rely on this confessional statement to convict the appellant. Ordinarily, Mr. Mujungu asserted, confessions in extra-judicial statements must identify the person the accused killed. However, the extra-judicial statement subject of this appeal does not identify the name of the woman the appellant killed. In urging us to allow the appellant's second ground of appeal, the learned advocate explained that the trial judge should not have relied on the incoherent and inconclusive extra-judicial statement to convict the appellant. The learned advocate for the appellant next adverted to the fourth ground of appeal that faults the trial judge for admitting a cautioned statement that Detective Constable Saidi (PW2) recorded on 18 June 2013 at Geita Police Station which was outside the prescribed period for recording an accused person's statement after the Police had placed him under their custody. In exhorting us to allow the fourth ground of appeal, Mr. Mujungu faulted the trial judge for according weight and relying on a cautioned statement that the Police took outside the periods Sections 50 and 51 of the CPA prescribes. Moving on to ground 6, Mr. Mujungu expressed his concern about why the prosecution failed to tender the murder weapon, which its witness, PW5, mentioned during the trial. Initially, the police arrested PW5, accusing him, together with the appellant, of the murder of the deceased. PW5 later became a prosecution witness and, in his evidence, tried to implicate the appellant in that murder. PW5 testified that while both were in police custody, the appellant confided about his killing the deceased and leaving the murder weapon, a bush knife, at the home kitchen table. Failure to tender bush-knife as evidence, Mr. Mujungu argued, created doubt over the whole prosecution case against the appellant. He urged us to allow ground 6 of appeal. Mr. Mujungu next submitted on grounds 7 and 8, which attack as doubtful, weak, and untruthful the evidence of PW1, PW2, PW3, and PW4, which he accused the trial judge of solely relying on to convict the appellant and ignoring to evaluate his defence evidence. The learned advocate directed his most potent attack at the evidence of the eye­ witness, Agnes William (PW3), who claimed she and another Naomi 10 William, who did not testify, saw the appellant. According to PW3, she and Naomi William were sleeping in the same room with the deceased when the appellant broke in. While PW3 ran outside, Naomi remained and raised an alarm. PW3 testified that the appellant raped Naomi. Mr. Mujungu wondered why the prosecution failed to call such a vital eye-witness like Naomi William, who, apart from helping to identify and recognize the appellant as the murderer and as the man who raped her. He also expressed surprise at the prosecution's not calling the evidence of neighbours whom PW3 contacted and told them that the appellant had committed the crime. The learned advocate submitted that the failure of the prosecution to call Naomi William, who they listed in the Committal Proceedings, casts aspersions that Naomi had adverse evidence sufficient to cast doubt against the evidence of PW3. The learned advocate for the appellant wound up his submissions on the eight grounds of appeal by reiterating that prosecution evidence suffers from serious shortcomings and cannot, on re-evaluation, sustain the appellant's conviction beyond reasonable doubt. He urged us to find merit in this appeal. 11 Mr. Castuce Ndamugoba, the Principal State Attorney, fully supported the appellant's appeal. He premised his submissions by dividing the eight grounds of appeal into two. The first group, grounds 1 to 7, challenged the trial judge's conclusion that the prosecution proved its case beyond reasonable doubt. In the second group, there is one ground where the appellant faults the trial judge for failing to consider his defence. In his reading of the decision of the trial court, the learned trial judge relied on three types of evidence to convict the appellant for the murder of the deceased. The first type, according to Mr. Ndamugoba, is the identification evidence that placed the appellant at the scene of the deceased's murder on the night of her death. The second type is the extra-judicial statement (exhibit PI), in which PW1, a Justice of the Peace, recorded the appellant's confession. The third type is the cautioned statement (exhibit P2), in which PW2 recorded the appellant's confession on 18 June 2013. Like the appellant's learned advocate, Mr. Ndamugoba submitted that the shortcomings in the identification evidence of the only eye-witness, PW3, create serious doubt in the prosecution case. He elaborated, firstly, that after PW3 had testified that she identified and recognized the 12 appellant at the scene of the murder, her evidence fell short of details to guard against mistaken identification of the appellant. Secondly, PW3 failed to mention the names of neighbours who went to the scene and to whom she took the earliest opportunity to accuse the appellant of killing the deceased. Thirdly, PW5 testified that he visited the scene of the crime and saw the lifeless body of the deceased. Mr. Ndamugoba wondered why PW3 failed to mention the appellant's name to PW5. Fourthly, the learned Principal State Attorney submitted that according to the charge sheet, the deceased met her death on 31 May 2013. He wondered why the police waited until 11 June 2013 to arrest the appellant who lived in PW5's house if PW3 had identified and recognized him at the crime scene. The learned Principal State Attorney added that there was no evidence that the police were looking for the appellant between 31 May 2013 and 11 June 2013. He referred us to two cases: HARSON GERALD MBUYA V. R. (CRIMINAL APPEAL NO. 198 OF 2021) [2024] TZCA 432 (11 June 2024) TANZLII and HASSAN HUSSEIN V. R. (CRIMINAL APPEAL NO. 41 OF 2022) [2023] TZCA 17304 (02 June 2023) TANZLII -to argue that delay to arrest the appellant who PW3 had earlier linked to the murder of the deceased, casts doubt in the identification evidence of PW3. 13 The learned Principal State Attorney also agreed with the reasons that Mr. Mujungu advanced to urge us to discard the extra-judicial statement (exhibit PI) and the cautioned statement (exhibit P2), which the trial judge relied on to support the appellant's conviction for the murder of the deceased. Mr. Ndamugoba faulted PW1, the Justice of the Peace who recorded the extra-judicial statement, for failing; before recording the statement to caution the appellant that, he should make the statement of his free will, and if he makes it, it may be used as evidence against him in court. Regarding the cautioned statement (exhibit P2), Mr. Ndamugoba agreed with the learned advocate for the appellant that PW2 recorded the appellant's confessional statement outside the periods Sections 50 and 51 of the CPA prescribes. He elaborated that PW2 did not indicate which Police Station in Rukwa received the appellant between 11 and 17 June 2013 and what the appellant was helping the police to investigate in Rukwa. He concluded that in his testimony, PW2 did not furnish details of circumstances to justify his failure to complete the recording of the cautioned statement within the initial four hours law prescribes or even to explain any further extensions. 14 After considering the eight grounds of appeal in light of the evidence on the record, Mr. Ndamugoba agreed with the learned advocate that this appeal has merit and we should allow it. In his rejoinder submissions, Mr. Mujungu, the learned advocate for the appellant, informed us that in light of the concession of this appeal by the learned Principal State Attorney, he was abandoning all the three grounds in the appellant's supplementary memorandum of appeal, which centred on questions of law. He urged us to allow the appellant's appeal based on the submissions of the two learned counsel. On our part, we marked the three grounds of appeal in the supplementary memorandum of appeal as abandoned. On our part, upon considering the eight grounds of appeal and submissions of both sides, we think Mr. Ndamugoba and Mr. Mujungu have highlighted issues of law and areas of misapprehension of evidence by the trial High Court requiring us to play our duty as a first appellate court, to re-evaluate the evidence and arrive at our conclusion. We are grateful to the industry, Mr. Ndamugoba and Mr. Mujungu, for narrowing their submissions on three salient areas needing re-evaluation: First is the identification evidence of the sole eye-witness (PW3). Second is 15 the evidence of extra-judicial statement (exhibit PI), and third is the legality of the cautioned statement (exhibit P2). We shall begin with grounds 1 and 3 concerning the evidence of visual identification. On numerous occasions, the Court has stated that in criminal cases where its determination depends solely on identification, the evidence on conditions favouring a correct identification is of utmost importance. Subjecting the evidence of PW3 to guidance the Court gave in the often-cited case of Waziri Amani v. Republic (supra), the evidence of PW3 is of visual identification. It is of the weakest kind and most unreliable; we have to eliminate all possibilities of mistaken identity before acting on the evidence of PW3. Upon scrutiny, the visual identification evidence of PW3 suffered from deficiencies that Mr. Mujungu and Mr. Ndamugoba outlined in their submissions. PW3 did not describe the appellant, even though she claimed to have identified him using a torch and moonlight and that he "was with an open chest wearing a white shirt" {Page 66), but did not describe the appellant. There is also evidence of recognition, which PW3 fronted. Although PW3 claimed the appellant was not a stranger as they 16 lived in the same place, she did not give details beyond the generalities. In the case of HAMIS HUSSEIN & OTHERS V. REPUBLIC, CRIMINAL APPEAL NO. 86 OF 2009 (unreported), the Court stated that recognition evidence is more reliable than identifying a stranger when there is clear evidence on sources of light and its intensity. In the present record, despite the contention by PW3 that she knew the appellant before the incident, she failed to describe him. As a result, grounds 1 and 3 of appeal have merit. We have re-evaluated the extra-judicial statement of the appellant, which Lilian Katinde (PW1), a Justice of the Peace, recorded on 19 June 2013. In that extra-judicial statement, apart from acknowledging his sufferings from epilepsy and occasionally falling into epileptic seizures, the appellant's statement was incoherent and did not identify the name of the woman the prosecution accused him of killing. As ground 2 of the appeal complains, the extra-judicial statement that PW1 recorded and the trial court admitted as exhibit PI did not comply with the Chief Justice's Guidelines for Justices of the Peace. In MASHIKU s/o KIDESHENI & GODI s/o MIKOBA, CRIMINAL APPEAL NO. 586 OF 2017 (unreported) the Court referred to the CJ's 17 Guide published in A HANDBOOK FOR MAGISTRATES IN THE PRIMARY COURTS REVISED AND UPDATED IN 2019, providing a summary of the steps a Justice of the Peace must take before recording the extra­ judicial statement. These steps are: 1)The time and date of his arrest. 2) Place he was arrested. 3) The place he slept before the date he was brought to the Justice of the Peace. 4) Whether any person by threat or promise or violence has persuaded him to give the statement. 5) Whether he really wishes to make the statement on his own free will. 6) That, if he makes a statement, the same may be used as evidence against him. The Justice of the Peace (PW1) did not record any of the six steps in the extra-judicial statement she recorded. In this respect, we allow ground 2 of the grounds of appeal. 18 Concerning ground 4 of the appeal, on the legality of the cautioned statement (exhibit P2), we must at the outset agree with the two learned counsel that PW2 recorded the appellant's cautioned statement outside the four hours prescribed in mandatory terms by the provisions of section 50(l)(a) of the CPA. We have no other recourse other than to discard exhibit P2. Section 50(l)(a) of the CPA states: 50.-(1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person. that is to sav. the period of four hours commencing at the time when he was taken under restraint in resoect of the offence: (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. [Emphasis added]. In his testimony, police constable Saidi (PW2) recalled that Geita Police Station received the appellant on 11 June 2013, and the police officers transported the appellant to Rukwa Region to help search for another person the Police wanted to join in the murder charge sheet. They 19 returned to Geita Police Station on 17 June 2013 at around 20:00 hrs, and PW2 recorded the appellant's cautioned statement the following day, on 18 June 2013, at 09:00 hrs. In his defence, the appellant explained that the Police arrested him on 31 May 2013 at 14:00 hours and took him to Nyangaze Police Station. After an hour, the Police took him to Geita Police Station, where he stayed for three days. Surprisingly, the appellant did not in his defence mention travelling to Rukwa Region yet; Police Constable Saidi (PW2), who recorded his statement on 18 June 2013, told the trial court about his arrest on 11 June 2013 and a trip to Rukwa to search what PW2 suggested as his fellow accused person. Further, PW2 did not explain how the appellant travelled to Rukwa and how he returned. Even if we take that the Police arrested the appellant on 11 June 2013 (and not on 31 May 2013 the appellant claims), PW2 recorded the appellant's cautioned statement well beyond the four hours set under sections 50 (1) (a) of the CPA. The testimony of PW2 does not show justifications or lawful extensions of periods to save his belated recording of the appellant's cautioned statement (exhibit P2) on 18 June 2013. PW2 did not provide any evidence within the requirements of section 50 (2) of the CPA to show what the police were for 18 days from 31 May 2013 investigating, and which refrained the police from recording the appellant's cautioned statement within four hours after placing him in custody as Section 50 (1) (a) of the CPA demands. Sections 50 (2) of the CPA state:- 50 (2) In calculating a period available for interviewing a person who is under restraint in respect of an offence, there shall not be reckoned as part of that period any time while the police officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation of the offence- (a) while the person is, after being taken under restraint, being conveyed to a police station or other place for any purpose connected with the investigation; It was not enough for PW2 to perfunctorily state that on 11 June 2013, the police had transported the appellant to Rukwa and returned him on 17 June 2013 without giving details and particulars. 21 We agree with Mr. Mujungu and Mr. Ndamugoba that the appellant's cautioned statement (exhibit P2), which PW2 recorded was out of the prescribed period. We thus allow the appellant's fourth ground of appeal. In the final result, we allow this appeal, quash and set aside the appellant's conviction for murder and sentence of death. We order his immediate release from prison unless he is lawfully in custody. DATED at MWANZA this 24th day of February, 2025. I. H. JUMA CHIEF JUSTICE F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025 in the presence of the appellant in person and Mr. Godfrey Odupoy, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.