COURT MARTIAL APPEAL NO

IN THE COURT MARTIAL APPEAL COURT THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM (CORAM: PHILLIP, BWEGOGE, And MTEMBWA, JJJ.) COURT MARTIAL APPEAL NO. 5602 OF 2022 (Appeal from the Decision of the General Court Martial (GCM) sat at the Land Forces Command Headquarters (Nyerere Officers Mess), Kibaha District, Coast Region) MT 127039 PRIVATE KANUTI KANUTI NDUNGURU ............. APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL ........................................ RESPONDENT JUDGMENT 05th July & 08th October, 2024 BWEGOGE, J.: The above-named appellant and his colleague namely, MT 126517 Private Mgaya Michael Joseph were charged and arraigned before the General Court Martial (henceforth “GCM”) convened at the Land Forces Command Headquarters (Nyerere Officers Mess), Kibaha District, Coast Region on the offence of theft contrary to section C.51 (1) of the Code of Service 1 Discipline. The particulars of the offence alleged that on an unknown date between 01st November, 2021 and 31st May, 2022, at Nyumbu Project (KJ 824), being servicemen, entered the barracks house, stole two (2) curtains and three (03) air conditioners, the property of Tanzania Peoples Defence Force. Eventually, the appellant herein was convicted of the offence whereas his co-accused was found not guilty and acquitted forthwith. The facts of this case albeit briefly, are thus: At the Nyumbu (Project) Military Base, foreigners were undertaking various projects. In the course of their undertaking, they stored valuable electronics and household properties in one of the houses at the military barracks therein which was unoccupied. It was the prosecution case in the trial GCM that in December, 2021, the appellant and his co-accused, among others, spotted the valuable items within the respective house, stole some of them and sold them to third parties. In particular, it was alleged in the trial court that the appellant personally misappropriated two curtains (exhibit PE-2) and three air conditioners, among others, from the stored goods above mentioned. Later on, he sold the air conditioners to one Yassin Yusuph Mdoe, PW2 herein, who sold them to his customers. In 2022 the appellant was shifted to Kanembwa Military Base (824 KJ) in 2 Kigoma region. It was then that the alleged theft came to light. Eventually, the military police namely, MT 78272 Sgt Buyamba, was appointed to investigate. He procured the inventory of stolen properties (exhibit P4) and interviewed the appellant who had been arrested and brought to Nyumbu (Project) Military base. It is the prosecution case that during the interview, the appellant admitted that he stole three air conditioners, among others, and sold the same to PW2. Likewise, it is the prosecution case that the appellant provided the mobile phone number of the PW2 to PW1 for tracing. However, when PW2 was found, the stolen properties had already been sold to third parties. Based on the confession made before PW1 by the appellant in his cautioned statement (exhibit PE-6), the appellant was taken to the Justice of the Peace, one Joseph Enard Mwanda, (PW3) herein for confessing. Eventually, the confession statement was made which was later tendered in evidence and admitted in evidence as exhibit PE-7. 3 In view of the above evidence, the appellant herein and his co-accused were charged with theft. In substance, the appellant refuted all the implicating evidence against him and eventually retracted both statements he made before PW1 and PW3. Having heard the evidence of both sides, the trial court was satisfied that the respondent proved the charge levelled against the appellant to the standard required in criminal proceedings and convicted him forthwith. However, the trial GCM found that the respondent failed to prove the charge against the appellant’s co-accused and acquitted him forthwith. The appellant was not amused. Feeling his freedom was unreasonably assailed, he appealed to this court. At the 1st instance, the appellant herein filed the statement of appeal comprising 6 grounds of appeal and later on, on leave of this court, filed an extended statement of appeal comprising 4 additional grounds of appeal as hereunder mentioned: 1. That, the trial GCM, in conducting the trial within the trial, the provisions of section C. 116 (4) of the National Defence Act read together with regulation 112.06. (2) of the Defence Forces Regulations [Cap. 192 R.E. 2002]. 2. That the trial GCM erred in law and facts by wrongly admitting exhibits PE-6 4 and PE -7 contrary to the law and established principle of criminal liability. 3. That the trial GCM erred in law and facts by finding the appellant guilty of the offence of theft of three air conditioners and acquitting the co-accused while the charge sheet alleged that the offence was inseparably committed by both accused. 4. That the Judge Advocate erred in law and facts by failing to properly direct the trial members that the evidence of PW2 needed corroborative evidence before could be safely acted upon as the basis of the conviction of the appellant. 5. That the Judge Advocate erred in law and facts by failing to properly direct the GCM that the evidence adduced by the prosecution against the appellant didn’t prove the offence of theft of three air conditioners to the required standard of proof in criminal cases. 6. That the trial GCM erred in law and facts by not giving legal reasons for the finding of guilt entered against the appellant contrary to the established principles of law. 7. That the Judge Advocate erred in law in failing to read/inform the appellant/accused the names of the military officers appointed to officiate as GCM trial members detailed in the convening order to enable the appellant to exercise his right of objection against any member thereof, a violation which is fatal and contrary to the mandatory requirement under regulation 112. 05 (3) (a) and (b) of the Defence Forces Regulations, II Volume (Discipline). 8. That the Judge Advocate erred in law in failing to swear in and, or affirm the military officers who were duly appointed as GCM trial members, including the President of GCM, before assuming their role in accordance with regulation 112. 05 (4) (a) of the Defence Forces Regulations, II Volume (Discipline) a violation which is not only fatal but occasioned a miscarriage of justice to the appellant. 5 9. That a military officer who acted as Judge Advocate (JA) of the trial GCM, although duly appointed, was not sworn in to act as such contrary to the regulation 112. 05 (4) (b) of the Defence Forces Regulations, II Volume (Discipline). 10. That the Judge Advocate erred in law for his failure to swear in and, or affirm the military officers who were duly appointed by Nyerere Barracks Commanding Officer before assuming their role as GCM trial Reporters in accordance with regulation 112. 05 (4) of the Defence Forces Regulations, II volume (Discipline). The appellant was represented by Lieutenant Colonel (Rtd) Godwill Fredrick Benda, learned advocate; and the respondent was represented by Major Yunis Seleli Dotto and Captain Shebe Juma Kasamalu, learned advocates. The appeal was heard by way of written submissions. It is noteworthy that the appellant’s counsel abandoned the 1st ground of appeal. In substantiating the grounds of appeal, the appellant's counsel commenced with 7th, 8th, 9th and 10th grounds of appeal. In respect of the 7th ground of appeal, the counsel argued that the accused has a right under regulation 112. 14 (2) of the Defence Forces Regulations to make an objection in respect of any military officers proposed by the military authority to become trial members based on any reasonable cause whereas the president is obliged to resolve such objection by either 6 sustaining or rejecting it. The counsel alleged that the proceedings of the trial GCM do not show any record depicting that the trial GCM informed the appellant and his co-accused the names of the military officers proposed by the military authority to become trial members and, or affording the same the opportunity to object any member so detailed. He opined that this omission is fatal to the case (vitiates the proceedings) as it entails that the trial GCM was not properly constituted; hence, lacked jurisdiction to try the case. Thus, the counsel called upon this court to nullify the proceedings, set aside the findings and sentence pronounced against the appellant. Submitting on the 8th, 9th and 10th grounds of appeal, the counsel argued that, the members of the said GCM, the Judge Advocate who presided the respective GCM and Reporters who took record of the trial GCM were not sworn/affirmed as required by the law. That such omissions were fatal touching the constitution, jurisdiction and powers of the trial GCM to conduct the impugned trial. That the proceedings of the trial GCM don’t depict that the above-mentioned members were sworn/affirmed to discharge their judicial duty contrary to the mandatory provisions of regulations 111.22 and 112.05 (4) (a), (c) of the Defence Forces Regulations, read together with Section C. 95 Code of Service Discipline. 7 Hence, the counsel opined that the omission is fatal to the case rendering it liable to be nullified. He cited the cases of P4818 Captain Tlaa Elisha vs. Judge Advocate General, Criminal Appeal No. 1 of 1995, HC and P7172 Maj William Mwakalindile & Another vs. Judge Advocate General, Court Martial Appeal Court No. 3 of 2003, HC (both unreported) to buttress the point. Reverting to the 2nd ground appeal, the counsel challenged the admission of the appellant’s statements (exhibits PE-6 and exhibit PE-7). He contended that the statements were admitted in evidence contrary to law. That the caution statement was objected to when it was tendered for admission necessitating the mini-trial. The counsel alleged that the appellant was arrested on 11th July, 2022 at Kanembwa Military Base (824 KJ) in Kigoma and remained in custody until 16th July, 2022 when he was brought to Nyumbu (Project) Military Base where he was likewise, detained until he was convicted. Thus, the counsel contended that the appellant’s cautioned statement was taken on the 18th July, 2022, 36 hours after he was put in custody at Nyumbu (Project) Military Base contrary to section 50 (1) (a) Criminal Procedure Act, (Cap 20 R.E 2022) read together with regulations 101.08 and 103.03 of the Defence Forces 8 Regulations. Hence, the counsel invited this court to expunge exhibit PE- 6 from records being obtained illegally. Concerning the confession (exhibit PE-7), the counsel alleged that it was taken contrary to the Chief Justice Guide to Justices of Peace published in A Handbook for Magistrates in Primary Courts. In bolstering his point, the counsel cited item 6 in the Chief Justice Guide to Justices of Peace (Special Powers of Justices Assigned to District Court) which instructs thus: “ A prisoner wishing to make a statement may be brought to the Office of a Justice of Peace under police escort and usually bearing a letter from the Officer–in–Charge of Police, to the effect that the accused, who is under arrest in connection with an alleged offence, wishes to make a voluntary statement to a magistrate/justice.” Based on the above instruction, the counsel alleged that the record indicates that P12822 Lieutenant Athumani Abdulrahman Mageni Othman did not deliver a letter from Nyumbu Military authority informing the Justice of the Peace that the appellant wished to make statement. Therefore, opined the counsel, the accused did not request to make voluntary statement to PW3; hence, the statement was involuntary. Further, the counsel alleged that the Chief Justice Guide to Justices of Peace doesn’t indicate that the appellant expressed intention to make 9 voluntary statement. Moreso, no details were given on the following items: (i) time and date of the appellant’s arrest; (ii) place of arrest of the appellant; (iii) place where the appellant slept before he was brought to PW3; (iv) whether any person by threat, promise or violence persuaded the appellant to give his statement, etc. The counsel cited the cases of Jackson Protaz vs. Republic (Criminal Appeal No. 385 of 2020) [2021] TZCA 705 and Mashiku S/o Kidesheni & Another vs Republic (Criminal Appeal No. 586 of 2017) [2021] TZCA 306 to emphasize the point that the Chief Justice’s instructions should be complied to the letter. Therefore, the counsel opined that the appellant’s confession was taken contrary to the Chief Justice Guide to Justices of Peace; hence, illegally admitted in evidence. The counsel prayed this court to expunge the document from the record of this case. In substantiating the 3rd ground of appeal, the counsel argued that the drafters of the charge sheet which formed the backbone of the offence against the appellant and his co-accused meant that the offence, if any, was committed inseparably by both accused. Therefore, it was impossible in law for one to be acquitted and another to be found guilty of the same offence. The counsel alleged that the trial GCM merely concluded that 10 the prosecution did not prove the case against the co-accused and no further reasons were given. And the trial GCM disregarded the cautioned statement of the co-accused (exhibit PE5) without explanation. In respect to the 4th ground of appeal, the counsel argued that the Judge Advocate failed to properly direct GCM trial members in that the evidence of PW2 needed corroborative evidence before it could be safely acted upon in convicting the appellant. That the testimony of PW2 was mere words which were not corroborated by any evidence of any independent witness to render it safe to be acted upon to ground conviction. The counsel argued that as PW2 disclosed that the appellant was brought to him by another person (broker) such person was a material witness who should have been procured to testify in court. Regarding the 5th ground of appeal, the counsel alleged that the judge advocate failed to properly direct the trial GCM that the evidence adduced by the prosecution against the appellant did not prove its case against the same for the offence of theft of 3 air conditioners to the required standard of proof in criminal cases. That the standard of proof in criminal cases is beyond reasonable doubt in terms of section 3 (2) (a) of the Evidence Act [Cap. 6 R.E 2019] which was not attained in this case. The counsel reiterated that the caution statement (exhibit PE-6) was taken beyond the 11 prescribed time. And the confession/extra judicial statement (exhibit PE- 7) was taken contrary to the Chief Justice Guide to Justices of Peace. Hence, he urged this court to expunge both evidence illegally procured from the record of this case. Lastly, in respect of the 6th ground of appeal, the counsel faulted the trial GCM for not giving legal reasons for finding the appellant guilty of stealing 3 air conditioners. He contends that such omission was contrary to established principles of law which obliged the same to give legal reasons for the impugned decision reached. The cases of Ex-P10677 Capt. Ngojwike Abdallah Ngojwike vs Judge Advocate General (Court Martial Criminal Appeal No. 4 of 2020) [2020] TZHC 4595 and Hamisi Rajabu Dibagula vs Republic (Criminal Appeal No. 53 of 2001) [2003] TZCA 01 were cited to bolster the point. Likewise, the counsel cited the Indian case of Rupan Deol Bajaj & Another vs Kanwar Palstaga Grill and Another (1995) Supp, 4 S, C. R. 237, at page. 258 wherein it was opined that: “Reasons introduce clarity and minimize chances of arbitrariness…”. Further, the counsel argued that considering the style taken by trial GCM in making a finding against the appellant and the sentencing of the appellant, it is evident that, trial GCM violated the provisions of Section 12 312 (1) of CPA which requires the decision of the court to contain point or points to be determined, decision thereon and reasons for the decision. The case of Matongo Mathayo @ Mgoro & Another vs. Republic, (Criminal Appeal No. 27 of 2021) [2023] TZCA 17441 was cited to buttress the point. Suffices to point out that the counsel alleged that the trial GCM failed to give reasons for its finding of guilty; likewise, he faulted the trial GCM for failure to give reasons for the heinous sentence imposed. On the premises discussed above, the counsel prayed this court to allow this appeal, quash the finding and conviction entered by the trial court and set aside the sentence imposed forthwith. In reply to the 7th ground of appeal, the respondent’s counsel was on one page with the appellant’s counsel in that it is a mandatory requirement that when the General Court Martial is convened and the accused brought before the Court, the Judge Advocate or the President, as the case may be, is obliged to read to the accused the Convening Order and inform him of the names of the Officers appointed to constitute a court (trial GCM) to try such accused person. The counsel admitted that the Judge Advocate or the President, as the case may be, is obliged to ask the accused whether he objects to be tried by any of the Officers whose names have 13 been read in terms of the regulation 112.05 (3) of the Defence Forces Regulations. However, the counsel vehemently disputed the allegation that this requirement was contravened in the proceedings under which the appellant was convicted. The counsel argued that the trial proceedings (“Miniti za Shauri’) are the continuation of proceedings of the trial GCM which was convened and commenced for the first time on 30 May, 2023 on which the mandatory procedure was complied with. And the appellant herein is on record acknowledging his presence on 30th May, 2023 when the Convening Order was read and names of the proposed Officers mentioned to the appellant and other accused persons. Suffice it to point that the counsel contended that page 3 of the proceedings depicts that the appellant acknowledged that the names of the Military Officers appointed to constitute the trial GCM were mentioned to him and asked whether he had objection against any of the mentioned Officers in terms of regulation 112.05(3) (a) of the Defence Forces Regulations. Likewise, the counsel enlightened this court that the law requires the reading of the Convening Order, mentioning of names of the Military Officers appointed to constitute the GCM and asking the accused person as to whether he objects to be tried by any of the Officers 14 appointed should be done at the beginning of the trial in terms of regulation 112.05(2) of the Defence Forces Regulations, not on each date scheduled for trial. Pertaining to the allegations that the members of the trial GCM, Judge Advocate and the reporters who took the records at trial were not sworn in/affirmed as alleged under the 8th, 9th and 10th grounds of appeal, the counsel contended that the proceedings of the trial GCM specifically, at page 03, the appellant is on record acknowledging witnessing the swearing in of the members of the Court. The counsel enlightened this court that prior to swearing, the respective names of members of the court were mentioned to enable the appellant and his co-accused to object the appointment of members whose names were detailed. That the appellant herein was specifically asked whether he objected to the appointment and swearing of the members of the court and it is recorded that he had no objection. Hence, the counsel opined that the requirement for swearing of the members of the Court, Judge Advocate and reporters before they assumed their legal duties was complied with when the Court convened on 30th May, 2023 in compliance with regulations 112.05(4) (a) of the Defence Forces Regulations. 15 In reply to the submissions made in respect of the 2nd ground of appeal, the respondent’s counsel contended that the exhibits PE-6 (Cautioned Statement) and Exhibits PE-7 (Extra-Judicial Statement) were lawfully admitted in evidence. That the allegations made by the appellant in respect of the caution statement (exhibit PE-6) were not substantiated. The counsel asserted that the respective statement was admitted in evidence after the trial court conducted a trial within a trial and satisfied, based on evidence adduced on record, that the caution statement was lawfully procured. Hence, the appellant cannot be heard lamenting that the impugned statement was procured by torture. The case of Republic vs Marwa s/o Julius Iteinbe & Another, Criminal Session Case No. 72 of 2018, HC-MZA (unreported) was cited to validate the point. In the same vein, the counsel maintained that the statement (exhibit PE- 6) was taken within the prescribed period. That the Prisoners Logbook (exhibit PE 3) depicts that the accused was detained on 18th July, 2022at 18:05 hrs and his statement was taken on the same day from 19:46 hrs to 20:48 hrs; hence, within the prescribed time of four hours as per section 50(1) of the CPA. Otherwise, be that as it may, the counsel contended that the Defence Forces Regulations do not provide for any limitation of time for taking caution statement. 16 With respect to the extra-judicial statement (exhibit PE-7), the counsel contended that the alleged contravention of the Chief Justice Guide to Justices of Peace is unfounded as well. It is contended that PW3, one Josepha Enard Mwenda, a Justice of the Peace to whom the statement was made deponed in the trial GCM that the appellant and co-accused were brought before his court to record their Extra-judicial statements by one Lt. Othman who handed him a letter from the Military Headquarter. That this evidence corresponds with the proceedings of the trial court as depicted on page 67. Hence the allegation that the appellant was brought before the justice of the peace without a formal letter from the Military Headquarters informing the same that the appellant intended to confess/make voluntary statement is unfounded. Likewise, the counsel contended that the impugned statement bore facts that PW3 had put questions to the appellant to ascertain the voluntariness of the same to make the statement. And when PW3 was satisfied that the appellant voluntarily intended to make the extra-judicial statement, and having complied with the provided procedure, he duly took the appellant’s statement. Thus, the alleged contraventions remain unsubstantiated. Regarding the 3rd, 4th and 5th grounds of appeal, the counsel contended 17 that the prosecution had a duty to prove beyond a reasonable doubt that the appellant and co-accused (MT 126517 Pte Michael Joseph Mgaya) committed the alleged offence. In discharging such duty, the prosecution adduced evidence implicating the appellant, not his co-accused, in relation to the alleged theft of the three air conditioners. Hence, as a matter of law, the trial court was constrained to find the appellant’s co-accused not guilty of the alleged theft. Contrarywise, the defence counsel argued that exhibits PE-6 and PE-7, along with testimonies of PW1 (arresting/investigating officer) and PW2 made a strong prosecution case against the appellant. Hence, the counsel opined that the argument by the appellant's counsel that the evidence of PW2 needed further corroboration is misconceived. Concerning the charge under the 5th ground of appeal that the prosecution did not prove its case to the required standard of proof in criminal cases, the counsel contended that the main argument by the appellant in this respect is centred on the purported view that the confession statement (exhibit PE-6) was unlawfully obtained. The counsel directed the mind of this court to the case of Josephat Somisha Maziku v. Republic [1992] TLR 227 wherein the Court held; “While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a 18 confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilt...” The counsel argued that contrary to the charge made by the appellant’s counsel, the impugned statement (exhibit PE-6) was admitted in evidence after the trial court conducted the trial within the trial and satisfied that the statement was made voluntarily. Hence, the allegation that the evidence was procured illegally has no footing in this appellate court. The counsel concluded the argument by asserting that for a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person to leave a remote possibility in his favour which can easily be dismissed as held in the case of Magendo Paul & Another vs. Republic [1993] TLR 219. And the counsel reiterated that in this case, the implicating evidence from the confession statements of the appellant (exhibit PE-6 and PE-7) which were augmented by testimonies of PW1 and PW2 who was the independent witness, left no reasonable doubt in respect of the appellant taking part in the charged offence. Hence, his conviction was justified. 19 Lastly, the responding to the charge made by the appellant on the 6th ground of appeal, the counsel conceded that it is the legal obligation placed on the deciding court to give reasons for its findings in terms of section 312 (1) of the CPA. In this respect, the counsel cited the decided cases of Hamis Rajabu Dibagula vs. Republic (supra) and Amir Mohammed vs. The Republic [1994] TLR 138. However, the counsel contended that the trial GCM made an analysis of the case and evidence adduced by the key witnesses and applied the evidence to the facts before it reached conclusion. Further, it was opined that the trial GCM considered the evidence namely, confession statements (exhibits PE-6 and PE-7) and testimonies adduced by PW1, PW2 and PW3; consequently, convicted the appellant as charged but acquitted his co-accused for want of evidence. Hence, the counsel called upon this court to find the 6th ground of appeal without substance as well. In sum, the counsel opined that this appeal is devoid of merit and prayed this court to disallow it and uphold the findings and sentence entered by the trial court (GCM). Now, at his juncture, we shall canvass the grounds of appeal aforementioned in seriatim commencing with the additional grounds of appeal which were argued earlier by the appellant’s counsel. 20 The allegation in the 7th ground of appeal is that the Judge Advocate erred in law in failing to read/inform the appellant the names of the military officers appointed to officiate as GCM trial members detailed in the convening order to enable the appellant to exercise his right of objection against any member thereof, a violation which is fatal and contrary to the mandatory requirement under regulation 112. 05 (3) (a) and (b) of the Defence Forces Regulations, II volume (Discipline). Unarguably, as rightly contended by the appellant’s counsel, it is a mandatory requirement that when the General Court Martial (GCM) is convened and the accused brought before the same, the Judge Advocate and, or President as the case may be, is obliged to read to the accused the Convening Order and inform him/them the names of the Officers appointed thereof to try such accused person. This procedure aims to afford the accused the right to state whether he objects to be tried by any of the Officers appointed whose names appear in the convening order in terms of regulation 112.05 (3) of the Defence Forces Regulations. The question arising herein is whether this requirement was complied with. 21 As rightly conceded by the respondent’s counsel, the proceedings pertaining to the reading of the convening order and swearing of the members of the trial GCM were not directly taken in the proceedings of the case in question. It seems that the respective proceedings were taken separately on separate dates prior to the commencement of hearing. As rightly contended by the respondent’s counsel, page 3 of the proceedings entails what actually transpired on the day the trial GCM was constituted. The proceedings entail that the appellant and his co-accused were called upon to stand and asked whether they recalled what transpired on 30th May, 2023 pertaining to the constitution of the court and they affirmed the fact (see page 03 of the proceedings). Then they were asked whether the convening order was read on a particular date and they answered affirmatively. Lastly, the accused were asked whether they recalled that they were given the right to object and appointed members of the GCM and they likewise, confirmed the fact. And they likewise confirmed that they exercised their right by approving the members of the GCM appointed (See the same page of the proceedings). Based on the respective record, we shall not tarry in subscribing to the respondent’s counsel that it is glaring on the record that the mandatory provision of regulation 112.05 (3) of the Defence Forces Regulations was 22 complied with to the letter by the trial GCM. Consequently, we find the 1st ground of appeal misconceived. We proceed to delve into the 8th, 9th and 10th grounds of appeal. The allegation in the respective grounds of appeal is thus: The members of the GCM, Judge Advocate and the reporters who took the records at trial GCM were not sworn/affirmed. The appellant's counsel persuaded us that the proceedings do not entail that the members of the GCM, Judge Advocate and the reporters who took the records at trial GCM were sworn /affirmed. He asserted that the omission is fatal and initiated the proceedings which are the subject of this appeal. Having decided the 1st ground of appeal in the negative, the 8th, 9th and 10th grounds of appeal need not detain us. We purchase wholesale the argument made by the respondent’s counsel in that in the proceedings of the trial GCM, specifically on page 03, the appellant is on record acknowledging witnessing the swearing-in of the members of the Court; and likewise, it is in the record that the appellant had no objection to the appointment and swearing of GCM members. 23 We are of the settled view that all the members of the GCM, including the Judge Advocate, President and the reporters who took the records at trial GCM were sworn /affirmed when the Court convened on 30th May 2023 in compliance with regulations 112.05(4) (a) of the Defence Forces Regulations. That said, we likewise find the 8th, 9th and 10th statements of appeal misconceived as well. At this juncture, we revert to discuss the 2nd ground of appeal. The charge thereof alleges that the trial GCM wrongly admitted the caution statement and confession of the appellant (exhibits PE-6 and PE-7) contrary to the law. This allegation is worth our consideration. In substance, the appellant's counsel alleges that the cautioned statement was procured under torture and it was taken out of prescribed time contrary to the law. Upon scrutiny of the record, it is apparent that the counsel never raised the objection pertaining to the time limitation of the taking of the impugned caution statement but torture. We are aware that the trial GCM conducted mini-trial and reached the conclusion that the allegation of torture was not substantiated. However, we find ourselves constrained to assess the legality of the caution statement of the appellant to find whether it passed the scales of justice before it was admitted in 24 court. It was deponed by the appellant (DW1) both in the mini-trial and during his defence in the main case that he was arrested on 11th July, 2022 while serving at Kanembwa Military Base (824 KJ) in Kigoma Region. He was kept in lockup until the dawn of 16th July, 2022 when he was escorted to Nyumbu (Project) Military Base. They arrived on the same day around 23: 00 hrs. Thereafter, he was kept in lockup until 18th July, 2022 when his statement was allegedly taken having been beaten. The prosecution never brought evidence as to how the appellant was arrested and moved to Nyumbu Military Base and when he exactly arrived thereat. Likewise, PW1 (MT 78272 Sgt Buyamba) refrained from enlightening the trial GCM who arrested the appellant and when exactly he was brought to Nyumbu Military base where to interviewed him. He purported that he arrested the appellant at Nyumbu Military Base where he found him loitering around. The attempt made by the defence to procure the serviceman namely, CPL Gapi Lusesa (DW2) who escorted the appellant from Kanembwa Military Base didn’t bore any fruit as he purported to be a stranger to the proceedings. Hence, based on the wanting evidence from the prosecution, we are constrained to agree with the appellant’s counsel that the cautioned statement was taken after the appellant stayed in custody at 25 Nyumbu Military Base for more than 36 hours having moved from his working station at Kanembwa Military Base, Kigoma Region. The respondent’s counsel contended that the Defence Forces Regulations don’t prescribe a time limitation for taking the suspect's cautioned statement. The appellant’s counsel agreed to this assertion but submitted that the Criminal Procedure Act should fill the lacuna. We agree with his proposition. As the applicable law in the trial GCM doesn’t provide for a prescribed time within which the suspect under custody may be interviewed in respect of the charge he is arrested for, we don’t fold hands but invoke regulation 101.08 of the Defence Forces Regulation which instructs that in case of lacuna, the cause that seems best calculated to do justice be followed. Therefore, we abide by the procedural law applicable in the classical courts, the Criminal Procedural Act. Having found that the appellant’s cautioned statement was taken after he stayed in custody for more than 36 hours; it follows that the cautioned statement was taken beyond the prescribed period of 4 hours contrary to the provision of section 50 (1) (a) of the Criminal Procedure Act. This finding alone discredits and vitiates the impugned cautioned statement. Therefore, the purported cautioned statement is hereby expunged from the record. 26 We now turn to discuss the veracity of the allegation that the extra-judicial statement was taken contrary to the Chief Justice Guide to Justices of Peace. Ab initio, we find it pertinent to highlight that the prosecution prayer for admission of the impugned confession in the trial court was not objected during the admission in evidence. It was opined by the Apex Court in the case of Selemani Hassan vs. Republic, Criminal Appeal No. 364 of 2008 (unreported) that: "It is also true that a statement will be presumed to have been voluntarily made until objection is made to its admissibility by the defence." Suffice it to point out that the complaint pertaining to the voluntariness and legality of the impugned confession statement surfaced in this appellate court. The kernel of the complaint of the appellant’s counsel, among others, is that there was no formal correspondence from the military headquarters served to the Justice of the Peace (PW3) informing him of the intention of the accused to make a voluntary statement. Having scrutinized the record of trial GCM, specifically pertaining to the testimony adduced by the Justice of the Peace (PW3), we subscribe to the respondent’s counsel in that page 67 of the proceedings of the trial court as depicts that Lt. Othman handed PW3 a letter from the Military Headquarter before PW3 recorded the appellant’s extra-judicial 27 statement. Moreso, it is our settled view that PW3 complied with instructions laid down in the Chief Justice Guide to Justices of Peace to the letter in taking the impugned confession. Hence, we agree with the respondent’s counsel that the allegation that the extra-judicial statement (exhibit PE-7) was taken contrary to the Chief Justice Guide to Justices of Peace is unfounded. Likewise, we agree with the respondent’s counsel that PW3 had put questions to the appellant to ascertain the voluntariness of the same to make statement. And being satisfied that the appellant voluntarily intended to make the extra-judicial statement, he duly recorded the appellant’s statement. Thus, in view of the foregoing, we apprehend that the complaint in the 2nd ground of appeal is without substance. We would canvass the 3rd, 4th and 5th statements of appeal jointly, as they are substantially intrinsically connected. The above statements of appeal bear complaints that: The appellant could not be convicted separately for the alleged theft and his co-accused acquitted while they were jointly charged for the commission of the same offence; the evidence of PW2 needed corroboration before it could be safely acted upon; and the prosecution failed to prove the charge to the standard of proof set in 28 criminal proceedings. Primarily, we agree with the appellant’s counsel that it was the duty of the prosecution to prove the charge levelled against the accused persons. The standard of proof set in criminal proceedings is proof beyond a reasonable doubt in terms of section 3(2) (a) of the Evidence Act [Cap. 6 R.E. 2022]. See also cases: William Ntumbi vs. Director of Public Prosecutions (Criminal Appeal No. 320 of 2019) [2022] TZCA 72 (25 February 2022); Hemed vs. Republic [1987] TLR 117; and Magendo Paul & Another vs. Republic (1993) TLR 219. In particular, in the case of Magento Paul & Another vs. Republic, the Apex Court held: "For a case to be taken to have been proved beyond reasonable doubt its evidence m ust be strong against the accused person as to leave a rem ote possibility in his favour w hich can easily be dism issed." [Emphasis supplied]. In the same vein, it is not the duty of the accused to prove his innocence, it suffices that he raises a reasonable shadow of doubt on the prosecution case. See the cases; Joseph John Makune vs. Republic [1986] TLR 44 and George Mwanyingi vs. Republic, Criminal Appeal No. 335 of 2016, CA (unreported). Likewise, the accused person cannot be convicted 29 on the weakness of his defence but on the strength of the prosecution case. See the case of Christian s/o Kale and Rwekaza s/o Bernard vs. Republic [1992] TLR 302. We now revisit the prosecution case to find the veracity of the appellant's complaints registered herein. In substance, the prosecution procured three witnesses in a bid to prove the charge of theft levelled against the accused and his co-accused. One MT 78272 (PW1) is the investigator who investigated this case. He deponed in court that he visited the house which stored the stolen properties. He was given inventories of properties previously stored therein and those which were allegedly stolen. The inventory was tendered and admitted in evidence as exhibit PE 1. Likewise, PW1 interrogated the appellant herein who admitted to having conspired with his co-accused in stealing curtains and three air conditioners. Further, Pw1 enlightened the trial GCM that the appellant having admitted to stealing three air conditioners, sold them at Kariakoo to the businessman namely, Mdoe and duly provided the mobile phone number of the buyer of the stolen properties. Hence, PW1 traced the mentioned buyer who admitted to having bought the respective properties from the appellant and resold the same to his customers. 30 The testimony of PW1 was augmented by one Yassin Yusuph Mdoe, the businessman who testified as PW2. He enlightened the court that way back in 2021 the appellant brought him three air conditioners for sale on an explanation that he lacked school fees for his children and opted to sell his properties. When PW2 asked the appellant to produce a receipt as proof of ownership of the properties he sought to sell, he produced his identification card and mobile phone number assuring him that he was available if any query arose on the properties. Being satisfied, PW2 paid TZS 700,000/ for each air conditioner and later resold the items to his customers whom he could not recall. Lastly, one Joseph Enard Mwanda, the Resident Magistrate and Justice of the Peace testified as PW3. He deponed that on 19th July, 2024 the appellant and his co-accused were brought before him by the military officer to make confession/ extra-judicial statement. PW3 enlightened the trial court that upon inquiry, the appellant ascertained that he intended to make voluntary statement. Likewise, PW3 enlightened the trial GCMv that the appellant was informed that his statement may be used as evidence against him; nevertheless, the appellant showed willingness to make the statement. Thus, PW3 inspected his body and found no wound. Being satisfied that the appellant intended to make voluntary statement, 31 he recorded his statement. Further, PW3 enlightened the trial GCM that the appellant admitted that he entered one of the houses at the military barracks and stole three air conditioners. We scrutinized the confession/ extra judicial statement (exhibit P7) made by the appellant and it is glaring on the record that he confessed that he stole three air-conditioners, among other properties before he was transferred to Kanembwa Military Base in Kigoma. It is a rule of law in this land that: “The very best of the witnesses in any criminal trial is an accused person who freely confesses his guilt.” See also the cases of Mohamed Haruna Mtupeni and Another vs. Republic, Criminal Appeal No. 259 of 2007 (unreported) and Halfan Rajabu Mohamed vs. Republic (Criminal Appeal 281 of 2020) [2023] TZCA 178. In the same vein, the inventory (exhibit PE 4) comprising stolen properties entails that three air conditioners were enlisted as among the stolen properties. During the defence, the appellant made general denial and alleged that he made his cautioned statements having been tortured and threatened. 32 He didn’t controvert the evidence adduced by PW1 in that he disclosed the name of the person with whom he sold stolen properties and provided his mobile phone number. Likewise, DW1 didn’t categorically controvert the implicating evidence adduced by PW2 in that he sold him three air conditioners allegedly stolen. Given the above-revisited evidence, the trial GCM convicted the appellant but acquitted the co-accused based on the wanting evidence directly implicating him for the alleged theft, save his own caution statement (exhibit PE 5) and the confession of the appellant (exhibit PE 7) in which he purported to mention him as his accomplice. We subscribe to this finding. For clarity, we are constrained to borrow a leaf from the case of Republic v. ACP Abdallah Zombe & 12 Others, HC-Criminal Sessions Case No. 26 of 2006 (unreported), wherein it was expounded: "It is also a truism that whether in the form of a confession, or any other types of evidence of a co-accused, to ground a conviction, it must be corroborated as a matter of law (in case of confessions) (s 33 (2) of the Evidence Act) or of practice in any other types of evidence of a co-accused (see Pascal Kitigwa v. R (1994) TLR (CA)." 33 In the same vein, in the case of Pascal Kitigwa vs. Republic (supra) the Apex Court expounded viz: "However, as correctly observed by the trial magistrate and the learned judge, even though the law is such that a conviction based on uncorroborated evidence of an accomplice is not illegal, still as a matter of practice, the then Court of Appeal for Eastern Africa and this Court have persistently held that it is unsafe to uphold a conviction based on uncorroborated evidence of a co-accused. In this case, the trial magistrate as well as the learned judge on first appeal apart from warning themselves of the danger of convicting on uncorroborated evidence of the second accused (DW2), went further to look for other evidence implicating the appellant. It is common ground that corroborative evidence may well be circumstantial or may be forthcoming from the conduct or words of the accused." Based on the above revisited decisions, we are of the settled view that the caution statement of the appellant’s co-accused could not be acted upon to ground his conviction for reasons that: One, though he admitted to the commission of the offence, unlike the appellant, he didn’t disclose the whereabouts of the stolen properties. Two, the incriminating statement was not corroborated by any other independent evidence. Hence, the trial court was right in finding him not guilty of theft. Thus, we find the complaint in the 3rd ground of appeal unmerited. 34 Inversely, having scrutinized the evidence laid before the trial GCM and evasive defence made by the appellant, we find no cogent ground to fault the finding of the trial GSM in convicting the appellant herein. It is glaring on record that the prosecution/respondent made a strong case against the appellant which could not be shaken by the defence. Hence, the trial GCM was correct in dismissing the remote possibility in favour of the appellant. We are of the considered opinion that the prosecution discharged its burden of proof to the standard required in the criminal proceedings. We would find the 4th ground of appeal without legal footing; hence, it collapses as well. In tandem with the above, we find PW2 an independent witness and the witness of truth in this case. We fail to apprehend the argument of the appellant’s counsel in that the evidence of PW2 was bound to be corroborated as no ground was advanced for taking this view. Likewise, we dismiss the charge in the 4th ground of appeal. Lastly, we proceed to determine the 6th and last ground of appeal in this case. The charge made herein is that the trial GCM failed to give reasons for the finding of guilt entered against the appellant contrary to the law. Unarguably, the giving of reasons for the decision rendered by the 35 decision maker is a fundamental requirement of fairness and is necessary for the satisfaction of parties thereto. The concepts of fairness, justice and reason are interchangeable and one cannot be achieved without the other. It is perceived that the reasons are the pivot between the decision and the mind of the deciding body. In this respect, in the case of Hamisi Rajabu Dibagula vs. Republic, Criminal Appeal No. 53 of 200, CA (Unreported) the superior Court had this to say: "The necessity for the court to give reasons cannot be overemphasized, it exists for many reasons including the need for the courts to demonstrate their recognition of the fact that litigants and accused persons are rational beings and have the right to be aggrieved. " Indeed, as rightly asserted by the appellant’s counsel, the provision of section 312 (1) of the Criminal Procedure Act, instructs that every judgment shall contain the point or points for determination, the decision thereon and the reasons for such decision. In the case of Sabas Kuziriwa vs. Republic, Criminal Appeal No. 40 of 2019 (unreported) it was aptly held: “Much as we are aware that judgment writing is a matter of style, each and every magistrate or judge has his own. What is relevant is the critical analysis of both the prosecution and defence 36 evidence.” In the same vein, in the case of Amiri Mohamed vs. Republic [1994] T.L.R. 138: it was held thus: "Every magistrate or judge has got his or her own style of composing a judgment, and what vitally matters is that the essential ingredients shall be there, and these include critical analysis of both the prosecution and the defence. Having made the observation above, we revert to the charge made by the appellant and assess its veracity. Our scrutiny is directed to the decision made by the trial GCM. Admittedly, the judgment rendered by the trial GCM is a brief one. However, it is apparent on the judgment rendered by the trial GCM that the same considered weighty evidence adduced by the Justice of the Peace (PW3) and confession statement (exhibit PE-7) as well as the testimony of an independent witness (PW2) along with what was deponed by PW1 (investigator) pertaining to his investigative findings. Likewise, the defence case was scrutinized at length and dismissed. Finally, the trial GCM convicted the appellant as charged. In tandem with the above, we observed that the trial GCM considered the aggravating factors adduced by the prosecution and mitigations advanced by the defence before entering the impugned sentence. 37 Hence, based on the above observations, we are on the same page with the defence counsel in that the trial Court duly gave reasons for its decision in compliance with the law of this land. Given the reasons endeavoured to be given herein above, we find that the appeal herein is bereft of merit. We accordingly dismiss the appeal herein in its entirety. The conviction and sentence entered by the trial General Court Martial are hereby upheld. So ordered. DATED at DAR ES SALAAM this 08th October, 2024. B.K. PHILLIP JUDGE O. F. BWEGOGE JUDGE H.S. MTEMBWA JUDGE 38