JUDGMENT CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO (CORAM; MKUYE. J.A.. KAIRO, J.A. And, MLAC HA, J.A.^ CRIMINAL APPEAL NO. 32 OF 2023 YUSUPH RAMADHAN KORONGO 1st APPELLANT HUSSEIN ALLY DIWINGE.......... 2nd APPELLANT FARAJI SELEMANI HAWAYA..... 3rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Morogoro) ( Nqwembe, J.^ dated the 8th day of December, 2022 in Criminal Case Session No. 92 of 2022 JUDGMENT OF THE COURT 3rd & 12th June, 2024 KAIRO. J.A.: The appellants were jointly charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). In the particulars of offence, the prosecution side alleged that on 5th day of November, 2020 at Kisaki area, Bwakila Division within Morogoro District in Morogoro Region, the appellants murdered one, Christopher John Mbuya. As it were, when the charge was read over and explained to them at the trial, they all denied the allegations and thus, the matter went to a 1 full hearing. The prosecution side relied on nine witnesses and tendered 7 exhibits which were; certificate of seizure tendered by PF. 18655 Kanyika William Rukonge (PW1) and admitted as Exhibit PI; a motorcycle with Reg. No. MC. 307 CNS make Haujoe, black in color together with a numberplate and two side mirrors tendered by PW1 and admitted as Exhibit P2; the motorcycle registration card tendered by Abdul Omari testified as PW2 and the same was admitted as Exhibit P3; postmortem report tendered by Abeid Andrew Sanga (PW4) and admitted as Exhibit P4; certificate of seizure tendered by PF 22113 Ass. Inspector Masai (PW5) and admitted as Exhibit P5, a techno hand set and nine lines of handsets tendered by PW5 and admitted as Exhibit P6 and an extra judicial statement of the 3rd appellant tendered by Sarah Salvator/ Buya (PW8) and admitted as Exhibit P7. At the end of the trial, the High Court found all of them guilty. Consequently, it convicted and sentenced them to suffer death by hanging. They were aggrieved, hence decided to lodge this appeal to challenge the trial court's decision armed with nine grounds of appeal in the memorandum of appeal lodged on 2nd August, 2023 and two grounds 2 in the supplementary memorandum of appeal availed to the Court on the hearing date, thus making a total of eleven grounds. However, the appellants decided to drop five grounds to wit; grounds number 3, 4, 6, and 8 of memorandum of appeal previously filed and ground number 2 in the supplementary memorandum of appeal, when the appeal was called for hearing. The remained six grounds were renumbered as follows: 1. That the learned trial Judge erred in law and fact to convict and sentence the appellants relying on Exhibit P7 which was procured contrary to section 32 (2) o f the CPA, as the prosecution failed to provide reason for delay to take the 3rd appellant to justice o f peace. 2. That, the learned trial judge erred in law and fact for convicting the appellants on illegal search contrary to section 40 o f CPA. 3. That the learned trial Judge erred in law and fact for convicting and sentencing the appellants on the evidence o f Exhibit P6 while prosecution failed to establish the chain o f custody. 4. That, the learned trial Judge erred in law and fact for convicting and sentencing the appellants without warning itself on the reasonableness o f Police not parading the appellant that was on their custody to lead the way to the scene o f murder on the feeble pretex that the public would kill them. 3 5. That, the learned trial Judge erred in law and fact for convicting and sentencing the appellants in the basis o f their weak evidence while giving weight to prosecution evidence. 6. That the learned Judge grossly erred in both law and fact for convicting the appellants basing on a case where the body o f the deceased was not positively identified to be that o f Christopher John Mbuya. At the hearing of the appeal, Mr. Daudi Mkilya, learned advocate represented all of the appellants while the respondent Republic was represented by Ms. Upendo Shemkole, learned Senior State Attorney, who teamed up with Mses. Rosemary Mgenyi and Veronica Chacha, both learned State Attorneys. We wish to state at the onset that, we shall determine each ground immediately after the parties' present their arguments on each one of them. Starting with ground number 1, Mr. Mkilya rephrased the same and submitted that, the appellants' complaint is on the delay to take the 3rd appellant to the Justice of Peace. Elaborating, he stated that, the 3rd appellant was arrested on 20th November, 2020, but the statement was recorded on 4th December, 2020. That is a lapse of 14 days to which he contended to be against The Chief Justice Guide for Justices of the Peace (the Guide) and the Chief Registrar's letter of 13/5/2016. He referred the 4 Court to the decision of Mashimba Dotto @ Lukubanija vs The Republic, Criminal Appeal No. 317 of 2013 [2014] TZCA 271 (22 October 2014), to back up his argument. According to him, the period of six days before the appellant therein was taken to the Justice of Peace was considered too long to conclude that the accused confessed as a free agent. In her response, Ms. Mgenyi dismissed the complaint for being baseless. She submitted that, neither the Guide nor the Chief Registrar's letter has provided for the time limit within which an extra judicial statement is to be taken. Instead, she contended, what was noted therein was a special form having a format of questions and answers to be recorded by the Justice of Peace when taking extra judicial statement; including where was the accused taken after his arrest, where he slept a day before appearing before the Justice of Peace, and most important, whether he freely confessed to the Justice of Peace as to what exactly happened regarding the accusations before him. Concluding her arguments on this ground, Ms. Mgenyi submitted that, after going through exhibit P7, they saw nothing which suggests that the procedures were flouted as argued by the appellants. After hearing the rival arguments of parties, the issue for 5 determination in this ground is whether there is time limitation for recording the extra judicial statement of the accused person after his/her apprehension. Indeed, neither the Guide nor the Chief Registrar's letter provide for time of so doing as correctly submitted by Ms. Mgenyi. In our considered view, time for recording a confession depends on the circumstances of each case together with its sequence of events. We are fortified by the position stated in the case of Peter Charles Makupila @ Askofu vs Republic, Criminal Appeal No. 21 of 2019 [2021] TZCA 467 (14 September 2021), into which the Court observed as follows when faced with akin scenario: - "In the light o f the above holding, there is no statutory time limit set within which extra-judicial statement should be recorded. It can be taken at any time but within reasonable time after the accused has expressed his willingness to make such c o n fe s s io n [Emphasis added] It is noteworthy that, the referred reasonable time is gauged from when the accused person has shown willingness to confess. When the Court probed from Mr. Mkilya as to when the 3rd appellant indicated his willingness to confess, he had no answer. That apart, it is evident that, the Chief Registrar's letter issued on 6 13th May, 2016 which amplified the Guide was not in operation yet by the time when the cited case was decided. In the circumstance, the doctrine of the most recent decision comes in to operation to qualify the position we took in the stated case. We thus find the ground meritless. We dismiss it. In ground number 2, the appellants fault the trial court to convict the appellants basing on illegal search conducted in contravention of the provision of section 40 of the Criminal Procedure Act, No. 20 R.E. 2019 (the CPA). Mr. Mkilya clarified that the complained search was conducted during the midnight of 20th November, 2020 without seeking and being granted a required permission by the court, to conduct the search beyond the hours allowable under the law. As such, the certificate of seizure (exhibit PI) prepared as a result, was according to him in contravention of the law and therefore, incurably defective. The learned advocate went on to elaborate that, the said search was not an emergency one as by that time, five days had lapsed already since the appellants were apprehended. Mr. Mkilya therefore implored the Court to expunge exhibit PI for the pointed-out flout'. Replying, Ms. Mgenyi did not dispute that the search was conducted during the night without applying to court for the permission to do so. She 7 however argued that, the said search was an emergency one conducted pursuant to section 38 (1) of the CPA. It was her contention that, since the motorcycle connected to the offence was in Dar es Salaam in the hands of persons not yet apprehended, but who were connected to the 3rd appellant according to the information the Police had, taking the application to court for permission could have destroyed the investigation which was still going on. Besides, the case involved more than one accused who were scattered. Thus, it was found prudent to conduct an emergency search under the provision of section 38 (1) of the CPA. She beseeched the Court to find the ground of appeal without substance. We wholly join hands with the arguments by Ms. Mgenyi. Indeed, exhibit PI was issued under section 38 (3) of the CPA which suggests that the search conducted was an emergency one under section 42 (1). The begging question is whether the conduct of an emergency search was justified. Admittedly, the case at hand involved three accused who were in different places and transacted with various persons. Some of them were yet to be apprehended but were connected to the motorcycle that was being traced. Considering that the motorcycle is a movable item, an emergency search could not have been escaped, lest the evidence could not be destroyed and in fact, prudence in our view, demanded the conduct 8 of it, as it was done. On top of that, the alleged contravened provision used the word may, which in our considered view is permissive in certain circumstances, as it was the case in the matter at hand. As such, we are with firm view that, the search was properly conducted in the circumstances of this case and therefore, the invitation to expunge exhibit PI extended by the appellant is declined. In fine we find the ground without merit and accordingly dismiss it. The complaint in ground number 3 was to the effect that, it was improper for the trial court to base its conviction on exhibit P6 while the chain of custody as regards the items listed therein was questionable. Mr. Mkilya therefore implored the Court to expunge it from the record of appeal. The respondent conceded to the shortcoming and agreed to the way forward as suggested by the appellant. We would not be detained on this ground. Indeed, the record does not show how the items establishing exhibit P6 were handled from the date when they were ceased, to the time when they were taken to the trial court and tendered as evidence as correctly observed by both parties. But we hasten to add that, the record shows that, the trial court disregarded the same in its judgment as correctly submitted by Ms. 9 Mgenyi, contrary to what seems to be suggested by Mr. Mkilya. Nevertheless, we accede to the parties' invitation to expunge exhibit P6 from the record of appeal, as we hereby do. Coming to ground number 4, the appellant's complaint hinge on non­ involvement of the appellant in the process of recovering the deceased body from where it was dumped at Kisaki Kitope area. Refuting the reason that it was unsafe for them to accompany the police advanced by the prosecution, the appellants wondered as to how the police managed to get the body alleged to have been hidden in the gulley, while none of them led them to the said gulley on pretext that it was unsafe for the appellants to go at the scene of the crime. Yet, the trial court ruled out that, the appellants were the ones who killed the deceased and dumped the body, the finding which they contended to raise doubts which principally were to be resolved into the favour of the appellants. Replying to the complaint, Ms. Mgenyi conceded that, the appellants did not lead the police to the scene of crime where the body was recovered. However, it was so decided for security reasons so as to guard them against the angry mob who might have harmed them. She went on submitting that, despite that, the appellants were the ones who gave direction and description of where the body was dumped, which assisted 10 the police to locate the place and recover the body. She contended that in the circumstances therefore, the alleged doubts do not exist. She further submitted that, the trial court also relied on the credence of the prosecution witnesses to conclude that, it was the appellants who killed the deceased and dumped his body into the gulley where it was found basing on the appellants' descriptions. She wondered why the appellants did not cross examine the witness (PW1) on that aspect while they had the opportunity to do so. She thus, implored the Court to find the complaint an afterthought and dismiss it. Having heard the rival arguments on the issue and thorough scrutiny of the record of appeal, we could not agree more with Ms. Mgenyi's arguments. Undeniably, the appellants did not accompany the police when they went to search for the body for security reasons, to which we find to be rational and convincing as testified by PW1 (page 33 of the record of appeal). Nevertheless, it was out of their directions which led the police to the scene of crime. As it were, it turned out to be the exact place where they located the dumped body of the deceased. In this context, we are of a firm view that the reason advanced by the prosecution was lucid and cogent, on that account, we find the alleged doubt is superfluous and in 11 fact, fanciful. Besides, we did not see anywhere in the proceedings the trial court doubting the credibility of the prosecution witnesses. In the same vein, we found their testimony coherent and reliable. That apart, the appellants had the opportunity to cross examine the witness on that aspect, but did not. The law is settled that, where a party fails to cross examine a witness on a certain matter, he/ she is taken to have accepted to be true what was stated [Refer: Amos Jackson vs Republic, Criminal Appeal No. 439 of 2018 [2022] TZCA 467 (22 July 2022) 467 and Kanaku Kidari vs The Republic, Criminal Appeal No. 326 of 2021 [2023] TZCA 223 4 May 2023)]. We therefore find no merit on the ground and accordingly, we dismiss it. As for ground number 5, the appellants complained that, the trial court mounted its conviction on the basis of the weakness of their defence, as opposed to the strength of the prosecution case as required by law. In elaboration, Mr. Mkilya argued that, none has seen the appellants killing the deceased, nor were the appellant found with the motor cycle in question. According to him, what made them to be convicted is the confession of the 3rd appellant (exhibit P7) which he contended was taken 12 against the procedures as submitted in ground number 1. He went on submitting that, though circumstantial evidence can lead to conviction, but in the matter at hand, the doctrine was wrongly applied. In her reply, Ms Mgenyi submitted that, there was no dispute that the deceased died an unnatural death as was confirmed by PW4, who also tendered a postmortem report (exhibit P4) to that effect. She contended that, as to who killed him, the prosecution evidence adduced pointed an accusing finger to the trio basing on the doctrine of recent possession, circumstantial evidence, as well as the confession which she argued was voluntarily given by 3rd appellant. It is settled that confession voluntarily given is the best evidence and backed up her arguments with the decision of Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May, 2012). It was her argument that all of the stated doctrines upon which the court based its conviction, were proved beyond reasonable doubt, thus contrary to the appellants arguments that the trial court grounded its conviction basing on the weakness of the appellant's defence. Amplifying on the malice aforethought in the killing, Ms. Mgenyi referred to exhibit P4 and the testimony of PW4 which denotes that, the deceased was hit hard with a blunt object at the back of his head to the 13 extent that the bones at his back were displaced and caused loss of alignment of his backbone. It was also her further submission that, the lies of the appellants added more strength to the prosecution case. She therefore concluded that, it was on the strength of the prosecution case which grounded the appellants conviction contrary to what was submitted by Mr. Mkilya and prayed the Court to find the ground with no substance as well. The contention in this ground is whether the conviction was based on the weakness of the appellants defence to which we hastily answer negatively. We shall explain. It is on record that, after the deceased went missing on 5th November, 2020 and the matter reported to the police, PW1 got some information connecting the 1st appellant with the missing of the deceased on 20th November, 2020. He was apprehended when preparing to run away. Upon questioning him over the issue, he confessed to be involved and mentioned the other two appellants. That, the 2nd appellant was apprehended on the same day and they both gave the police the direction on where they dumped the deceased body. Indeed, the police who were in the company of the deceased relatives, discovered the body as directed which upon examination by PW4, it was confirmed that he was brutally 14 killed as the back bones were displaced following the hard hit on the back. That apart, even the motorcycle in question was gotten in Dar es Salaam by the assistance of the appellants who told the police during interrogation that it was sold to PW7 who was found by PW6. In his testimonies, PW6 testified to have received the appellants in the midnight of 6th November, 2020 riding the motor cycle in issue and they requested him to find a buyer. While the appellants went to the house of PW6 in Dar es Salaam searching for the purchaser of the motorcycle, the record also shows that its rider went missing on 5th November, 2020 and later found dead. As for PW7, he conceded to have purchased the motorcycle from the 1st appellant who posed as the owner at the presence of the other appellants. The said motor vehicle was identified by PW2; the owner who tendered its registration card (exhibit P3) while the 1st appellant when asked by PW7 the whereabout of the registration card, he stated that it was confiscated by his wife following the misunderstanding between them. When defending themselves, they did not give a plausible explanation as to where they got the motor cycle while its last rider who went missing, was later found to have been killed. We are aware that the 1st appellant stated that, the motorcycle was 15 given to him by one Livinus Makero to sell it, but he failed to provide his address nor call him to verify the said assertion. As such, the same did not cast doubts to the prosecution evidence. As if that was enough, it was their direction which led to the discovery of the deceased body. All the above evidence points an accusing finger to non-other than the appellants. Another factor which, we think, is of importance as correctly submitted by Ms. Mgenyi, though not referred by the trial Judge is the lies of the appellants. When explaining the whereabout of the registration card of the motorcycle he posed to be his, the 1st appellant told PW7 at the presence of the other two that the card was confiscated by his wife. However, his claim of ownership of the motorcycle was contradicted by PW2 who also tendered exhibit P3. It is an elementary principle of law that the accused has no duty to prove his innocence, but sometimes his lies, as the case herein may corroborate the prosecution case. [See: Paschal Mwita & Others vs Republic [1993 T.L.R. 295, Miraji Idd Waziri @ Simwana and Another vs The Republic, Criminal Appeal No. 14 of 2018 [2020] TZCA 387 and Nkanga Daudi Nkanga vs The Republic, Criminal Appeal No. 316 of 2013 [2014 TZCA 213 (21 October 2014)]. 16 In Paschal Mwita (supra), the Court cited with approval a decision of the East African Court of Appeal which observed as follows: '!'Although lies and evasions on the part o f an accused person do not in themselves prove the facts alleged against him, they may, if on material issues, be taken into account along with other matters and the evidence as a whole when considering his guilt" On the basis of the above discussion, we have no hesitation to find and hold that, the trial court based its conviction on the strength of the prosecution case and not on the weakness of the appellants defence. The ground therefore is baseless. As regards ground number 6, the appellants contended that it was an error to convict them in a case where the deceased was not positively identified to be that of Christopher John Mbuya. Clarifying, Mr. Mkilya argued that, the prosecution failed to call the person alleged to have identified the deceased body at the scene of crime, one Salvatory, though he was in the list of witnesses to testify on the prosecution side. He contended that, the person was a material witness to prove that the body of the deceased discovered at the scene of crime, was in fact that of Christopher John Mbuya. According to Mr. Mkilya, the omission entitled the trial court to draw an adverse inference against the prosecution. For 17 this reason, he prayed the Court to allow this appeal. Responding, Ms. Mgenyi dismissed the appellant's contention and submitted that, the body was positively identified to be that of Christopher John Mbuya at the scene of crime by Salvatory Aniset, the deceased uncle who was in the company of other relatives. She went on to submit that even PW4 when testifying stated that he made an examination of a male body which was discovered to be that of the deceased herein. Besides, in his report (exhibit P4), PW4 mentioned Salvator/ Aniset to be among those who confirmed that the deceased was Chistopher John Mbuya; she contended. Winding up, Ms. Mgenyi argued that, the appellants had the chance to cross examine the prosecution witnesses on that aspect if they had doubts, short of it, the law is long settled that, failure to cross examine amounts to an acceptance to what was stated. She therefore implored the Court to dismiss the complaint for being an afterthought. It is true the record reveals that, the deceased body was identified at the scene to be that of Chistopher John Mbuya by a person mentioned by the name of Salvatory; the deceased uncle who was in the company of other relatives. The said evidence was given by PW3, PW4 and exhibit P4. The contentious issue is whether the said identification was optimum in the absence of the said Salvatory's testimony to that effect. 18 Essentially, the determination as to which witness to summon to testify in court during trial is in the mandate of the prosecution. Which means, the prosecution was legally justified not to call Salvatory to testify despite listing him previously. But further to that, throughout the record, neither the credibility of PW3 nor that of PW4 who testified on that aspect was questioned. It is a settled legal stance that, every witness is entitled to be believed unless there are cogent reasons to the contrary [See: Goodluck Kyando vs Republic [2006] T.L.R. 363. In the case at hand, we did not find any reason not to believe them. On that account, we do not have any reason to doubt their testimonies on that aspect. In the same vein, the call to draw adverse inference for failure to call the said witness is baseless. We believe, nothing unfavorable to the prosecution as regards the identification of the deceased body would have been testified if the witness would have been called to testify. As rightly submitted by Ms. Mgenyi, the appellants had the opportunity to cross examine the witnesses on the issue, but they did not. Failure to do so denote that they accepted the veracity of what the witnesses testified over the issue. Their complaint therefore, is an afterthought, which cannot be accorded any evidential value. 19 That apart, it is on record that, the appellants were recorded in the memorandum of agreed facts appearing at page 29 of the record of appeal conceding to the fact that " the deceased is Chistopher John Mbuye/' and further added "riding a motorcydd' As such, they are estopped from turning around querying a fact they previously conceded to. All in all, we find no substance in the ground. For what we have endeavored to discuss, we are in accord with the respondent that the case was proved beyond reasonable doubt, thus the appeal lacks merit and we dismiss it on its entirety. DATED at MOROGORO this 11th day of June, 2024. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 12th day of June, 2024 in the presence of the Appellants in person and Ms. Rosemary Mgenyi, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of