REPUBLIC VS MBALU SAMBALU IBRAHIM AND ANOTHER CRIMINAL SESSIONS CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 7883 OF 2024 REPUBLIC VERSUS 1. MBALU SAMBALU IBRAHIM 2. HALIMA SHABANI RASHID RULING Date of last order: 25/02/2025 Date of ruling:26/02/2025 A.A. MBAGWA J. This ruling seeks to determine the preliminary objections raised by the learned defence counsel Mr. Ramadhani Makange. The factual background from which the objections were raised is to the following effect: Mr. Hashimu Mgalla Daudi (PW4) is a Resident Magistrate at Chalinze Primary Court and therefore a Justice of the Peace. He testified to the effect on 31/05/2023 while at his workstation, Chalinze Primary Court a 1 police officer going by the name of SGT SAID of Chalinze Police Station brought before him the suspect namely, Mbalu Sambalu Ibrahimu, the 1st accused in this case. SGT SAID informed PW4 that the suspect was accused of murder and he was ready to confess. PW4 inspected the suspect and probed him whether he was willing and ready to give his statement. According to PW4, he was satisfied that the suspect was in good health and ready to volunteer the confession. As such, PW4 proceeded to record his statement according to law. It was the testimony of PW4 that he informed the suspect of his rights and the repercussions that could ensue out of the statement. According to PW4, the 1st accused told him that he was arrested at Mapatano Hamlet on the 27th day of May 2023 and submitted to Mbwewe Police Station. Later on, that is, on 28th May 2023 he was transferred to Chalinze Police Station where he came from to record the extra-judicial statement. PW4 continued that after recording the statement, he read it to the suspect who confirmed its contents by affixing his thumbprints. PW4 expounded that the suspect appended a thumbprint on the statement because he told him that he did not know how to write and read. 2 Having laid the foundation as narrated above, PW4 sought to tender the said extra-judicial statement in evidence. However, the prayer encountered an objection from the 1st accused’s counsel. Mr. Ramadhani Makange objected to the admission of the statement on two fronts, one, that there was a delay of five days in recording the statement. He expounded that the 1st accused was arrested on 27/05/2023 but he was brought before the Justice of the Peace on 31/05/2023. The learned counsel lamented that the delay is contrary to the law and renders the statement inadmissible. On this, Mr. Makange cited the case of Awadh Gaitani @ Mboma vs Republic, Criminal Appeal No. 288 of 2017, CAT at Dar es Salaam on pages 15, 16, and 18, to support his position. He elaborated that, the Court, while referring to the case of Mashinja Dotto vs Republic, held that there is no specific time for recording the extrajudicial statement but invoked the provisions of Section 32(2) of the Criminal Procedure Act and ruled that the suspect should be brought before the Justice of the Peace as soon as practicable. Mr. Makange added that the Court further held that the delay of six days was illegal. On that account, the 1st accused’s counsel impressed the Court to find that the 3 delay of five days was fatal and for that reason rejects the admission of the extra-judicial statement. Two, Mr. Makange assailed the extra-judicia statement contending that it does not indicate the time at which the suspect (1st accused) was arrested. He complained that the anomaly is contrary to the Chief Justice Guidelines. The learned counsel explained that the importance of indicating time was stressed in the case of the Republic vs Thomas Daudi Mwangili, Criminal Sessions No. 96 of 2021, HC, Iringa Sub- Regisrty at Njombe specifically on page 5 where the High Court held that the Justice of the Peace must observe the eight procedures including recording the time and date on which the suspect was arrested. In view of the arguments advanced, Mr. Makange implored the Court to reject the admission of the extra-judicial statement. Ms. Hilda Mushi, learned counsel for 2nd accused did not have supplementary submissions. She fully associated herself with submissions by Mr. Ramadhani Makange. In reply, Ms. Neema Kwayu, learned State Attorney, opposed both limbs 4 of objection. Essentially, she supported the objections raised by Mr. Ramadhani Makange. In rebuttal, the Republic strongly opposed the objections and beseeched the Court to overrule them. Starting with the 1st objection, Ms. Neema Kwayu, the learned State Attorney strongly argued that the statement was properly taken within time. She elaborated that there is no timeframe set by the law within which the extra-judicial statement should be taken. On this, she referred the Court to the case of Vincent Iromo vs the Republic, Criminal Appeal No. 337 of 2017, CAT at Iringa on pages 26 to 27, to support her assertion. It was her strong submission that since no law imposes the timeframe for recording the statement, this Court should find the objection unmerited and overrule it forthwith. Coming to the 2nd objection in respect of the failure to indicate the time of arrest, Ms. Kwayu vehemently submitted that the statement in contest clearly tells that the suspect was arrested on 27/05/2023 in Mapatano Kwang’andu Village. According to Ms. Kwayu, that was sufficient to tell the Court the time the suspect was arrested. In a bid to fathom her argument, the learned State Attorney referred to the case of Jumanne 5 Mzanje vs the Republic, Criminal Appeal No. 601 of 2021, CAT at Dodoma on page 16, where the Court held that in assessing the compliance with the Chief Justice Guidelines, parties should look at the contents and substance rather than the verbatim expression of the Guidelines. On the strength of the above arguments, Ms. Kwayu submitted that the Justice of the Peace (PW4) complied with the Chief Justice Guidelines. In the end, she urged the Court to dismiss the second limb of objection as well. In rejoinder, Mr. Makange reiterated his submissions in chief. I have carefully heard and given earnest attention to the rival submissions. I also had time to read the cited authorities and glanced at the contested statement. To start with the first objection on the delay in submitting the suspect to the Justice of the Peace, both parties are at one that there is no statutory time within which the suspect should be brought before a Justice of the Peace for confession. This is also the position taken in the case of Vincent Ilomo vs the Republic (supra). The parties only lock horns on the phrase ‘as soon as practicable’. It is equally a settled position that each 6 case should be decided on its own merits. In this case, the 1st accused was arrested on 27/05/2023 and surrendered to Mbwewe Police Station. He was then transferred to Chalinze Police Station on 28/05/2023, and on 31/05/2023 he was taken before the Justice of Peace. In our instant case, it is common cause that there was a span of about five days between the date of arrest and the date of recording the statement. However, it should be noted that a suspect is not automatically submitted to the Justice of the Peace after his arrest but rather he is taken before the Justice of Peace only when he indicates his willingness to confess. Unfortunately, we have no evidence yet as to when the suspect indicated his willingness to confess. In addition, the accused does not allege torture that would have compelled this Court to strictly inquire into the reasons for the delay. In view of the deliberations above, I find the first limb of preliminary objection devoid of merits and consequently, I overrule it. Regarding the second limb of objection on the absence of time of arrest, as rightly submitted by Mr. Ramadhani Makange, a Justice of the Peace is required to ask the suspect and record the time and date the suspect was allegedly arrested. See the case of Japhet Thadei Msigwa vs. 7 Republic, Criminal Appeal No. 367 of 2008, CAT at Iringa. The underlying objective behind these requirements in the Chief Justice Guidelines is to ensure the voluntariness of the suspect in giving his statement. On page 2 paragraph 7 of the disputed extra-judicial statement, it is clear that the Justice of the Peace asked the suspect the time and place he was arrested but the suspect simply answered that he was arrested on 27/05/2023. Admittedly, the statement does not indicate the time of arrest contrary to the Chief Justice Guidelines. However, the pivotal issue for determination is whether the anomaly occasioned injustice to the suspect. In my considered view, the ailment is not fatal, the more so, the suspect does not contend to have been tortured. Looking at the statement, it is common cause that the Justice of the Peace substantially complied with the Guidelines that require him to ask the suspect the time he was arrested. Indeed, it is not the law that the Justice of the Peace need not strictly comply with each instruction verbatim contained in the Chief Justice's Guidelines. In the case of Vincent Iromo vs the Republic (supra) on page 25 the Court of Appeal held: 8 ‘But in addition, we do not think in Mashimba Dotto @ Lukubanija V. Republic (supra) it was intended what was pronounced to be a principle of general application. Far from it. We think it is enough if recording of extrajudicial statements substantially conforms to the Chief Justice's instructions.’ Further, in the case of Jumanne Mzanje vs the Republic (supra), the Court on page 16 held: ‘We would, however, wish to insist here that, in testing compliance with Guidelines or Rules, parties have to look at the contents and substance rather than expecting verbatim expressions of the guidelines. Having considered the foregoing, it is my unfeigned view that the failure to indicate the time where the date of arrest is shown did not invalidate the statement. I thus overrule the second limb of objection. All the above considered, I find the objections without merits and consequently overrule them. I hold that the extra-judicial statement of Mbalu Sambalu Ibrahimu (1st accused) was legally recorded and therefore is admissible in law. It is therefore admitted and marked as exhibit P2. 9 It is so ordered. A.A. Mbagwa JUDGE 26/02/2025 Court: The ruling has been delivered in the presence of both parties. A.A. Mbagwa JUDGE 26/02/2025 10