Said Hussein Sungi vs Republic (Criminal Appeal No. 902 of 2023; Criminal Sessions Case No. 10 of 2023) [2026] TZCA 356 (25 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO, J.A., MWAMPASHI, J,A- Anti MLACHA, J-AQ CRIMINAL APPEAL NO. 902 OF 2023 SAID HUSSEIN SUN GI............................................................. APPELLANT VERSUS THE REPUBLIC ......... ............................................... ........RESPONDENT (Appeal from the decision of the High Court of Tanzania/ at Babati Manyara) (Kahvoza, J.) dated the 23rd day of November, 2023 in Criminal Session Case No. 10 of 2023 JUDGMENT OF THE COURT 10th February & 25th March, 2026 MWAMPASHI, J.A.: In Criminal Sessions Case No. 10 of 2023, the High Court of Tanzania sitting at Babati Manyara, tried Said Hussein Sungi, the appellant herein, jointly with one Onesmo Sikukuu Massai, herein after to be referred to as "co-accused" who is not party to the appeal, on the information of murder. The particulars of the offence in the information alleged that on 19.11.2022, at Gichameda Village within the District of Babati in Manyara Region, the duo murdered one Daniel Herman Awe @ Karatu (the deceased). Both the appellant and the co-accused pleaded not guilty to the information. However, after the trial, while the co-accused was acquitted, the appellant was found guilty as charged. Consequently, he was convicted and sentenced to suffer the mandatory sentence of death by hanging. Aggrieved, he has preferred the instant appeal before the Court. The facts that the deceased died and that the death was unnatural, were not in dispute. According to Dr. Paui Chacha (PW5) who performed the autopsy of the deceased's body and from the Post Mortem Examination Report (exhibit P.l), the cause of the death was haemorrhagic shock secondary to severe traumatic brain injury. It was PW5's testimony that, apart from his pupil which was pierced, the deceased had sustained two deep cut wounds on the scalp inflicted by a sharp object. Contentious and in dispute was whether it was the appellant with the co-accused who inflicted the wounds on the deceased hence, causing the death. In a bid to prove that it was the appellant and the co-accused who were behind the death of the deceased, the prosecution heavily relied on the testimony of Gift Emmanuel Joseph Milinga who testified as PW3. It was his testimony that, in the evening hours of 18.11.2022, he was having drinks with other people including the appellant and the deceased at John Paul Ombi's bar. At about 00:00 hours, the bar attendant, one Irene, asked her customers to leave as she was about to close the bar. At the deceased's request, PW3 escorted the deceased up to Darajani. After he had left the deceased to proceed to his home on his own, the appellant who was in the company of another person approached PW3 and asked for TZS. 500/=. The appellant was given the amount he had asked. Nevertheless, he, with his colleague invaded and attacked PW3 before taking TZS. 30,000/= and a mobile phone from the pockets of his trouser. PW3 testified further that it is when the deceased came to his rescue when the attacks from the appellant and his colleague shifted to him. Using a dry stick picked from a nearby fence, the appellant hit the deceased on his head, at the back and legs before pushing him into a water ditch. PW3 went on testifying that when the deceased was being attacked, he managed to escape and take refuge in a nearby house belonging to one Mama Yuni. The appellant and his colleague pursued him up to Mama Yuni's house. They asked Mama Yuni about him but she defended him by denying having seen him. Thereafter, Mama Yuni and her husband (Baba Irene) assisted by taking him back home. In the morning, the information about the death of the deceased reached PW3. He went where the deceased's body was and observed that it was in a pool of blood with injuries on the head, legs and hands. It was PW3's further testimony that the appellant is his brother in-law and is well known to him because he was once married to his sister. It is also worthwhile to state at this stage that, when cross- examined by the defence counsel PW3 is on record stating that he was coached by D/Stgt. Masanja (PW2) on what to tell the court. He also stated that it was the mother of the co-accused who asked him to testify. At another point, he stated that what he told the trial court is what his mother had directed him to tell. There was also evidence of Alex Joseph (PW4), the Gichameda Hamiet Chairperson, who called the police and reported the incident. He told the trial court that from the scene of crime human teeth and a pair of shoes were collected. E. 7152 D/Stgt. Masanja (PW2) was one of the police officers who rushed to the scene of crime in the morning hours of 19.11.2022. According to him, the deceased's dead body which was in a shallow water ditch, had cut wounds and one eye had been pricked out. To him, 6 human teeth and a dry stick with blood stains were collected from the scene. To that effect, a seizure certificate was tendered in evidence by him as exhibit P.4. He also drew a sketch map of the scene of crime. Donald Nyerere Nyamuhanga, a retired police officer who testified as PW6 told the trial court that he recorded the appellant's cautioned statement (exhibit P.5) at Babati Police Station on 20.11.2022 at around 18:00 hours. Then on 21.11.2022 he took the appellant to the Ward Executive Officer of Nangara Ward one Robinson Winfrid Katonji (PW1) who recorded the appellant's extra judicial statement tendered in evidence as exhibit P.3. The appellant denied to have committed the murder in question. In his affirmed defence, he told the trial court that on 18.11.2022 he spent the whole day with her mother at their farm. He maintained that, on that day, he never went at the bar as claimed by PW3. He also testified that he was arrested on 20.11.2022 while at Magugu open market and that he was taken to Babati Police Station at around 18:00 hours. In its judgment, the High Court found the testimony of PW3 credible and reliable. It was found that PW3 being an eye witness positively identified the appellant who was not a stranger to him, as one of the two persons who attacked the deceased and caused his death. Having considered all the factor and circumstances for positive identification, the High Court was satisfied that PW3's identification evidence of the appellant by recognition was watertight leaving no room for mistaken identity. Through the two confessional statements exhibits P.3 and P.5, it was found by the High Court that, the appellant voluntarily confessed to have participated in murdering the deceased. Based on PW3's evidence and the two confessional statements; the charge against the appellant was found proven beyond reasonable doubt. On that basis, the appellant was convicted of the murder of the deceased as charged and sentenced to suffer death by hanging. The instant appeal seeks to challenge the above findings by the High Court. Whereas, at the hearing of the appeal, the appellant was represented by Mr. Sabato M. Ngogo, learned advocate, Ms. Saada Mohamed, learned Senior State Attorney, appeared for the respondent Republic. In support of the appeal, two memoranda of appeal containing 11 grounds of complaint were filed by the appellant. The memorandum of appeal comprising 7 grounds was lodged on 23.04.2024 while the supplementary memorandum lodged on 09.02.2026 contained 4 grounds of complaint. However, upon taking the floor, Mr. Ngogo clustered and argued the 11 grounds of complaint under the 1s t ground in the memorandum of appeal that, the case against the appellant was not proved beyond reasonable doubt. In his submissions in support of the ground that the case against the appellant was not proved to the hilt, Mr. Ngogo argued that PW3 was not a credible and reliable witness and the High Court ought to have not relied upon his testimony in convicting the appellant. He contended that, though PW3 claimed that he knew the appellant well because he is his brother-in law which is not true, he did not name him at the earliest opportunity. Mr. Ngogo pointed out that, while it is on record that PW3 went to the scene with other villagers and saw the dead body of the deceased in a water ditch, he left for his home without telling the people who had gathered there about what had allegedly happened the night before and without naming the appellant to any of those people. It was further contended by Mr. Ngogo that it was not until when PW3 was fetched by police officers from his home and brought back to the scene of crime when his statement was recorded. He insisted that PW3 was not credible at all because according to him, he was coached by PW2 what to testify and also that the co-accused's mother and his own mother are the ones who compelled him to testify. Mr, Ngogo went on attacking PW3's credibility and reliability by referring the Court to pages 23, 24, 160 and 165 of the record of appeal where PW3 is on record giving self-contradictory accounts on what allegedly happened. It was contended that while at one-point PW3 testified that he accompanied the deceased up to the bridge where the deceased was attacked by the appellant, he is also on record having stated to the police that the deceased was attacked outside the bar. Mr. Ngogo did also argue that while it is in his testimony that the owner of the bar bought him a drink because he had no money, he later claimed that the appellant and his colleague got away with his T2S. 30,000.00 and a mobile phone. It was further submitted by Mr. Ngogo that, apart from the questionable PW3's credibility and reliability, the appellant who was arrested on 19.11.2022 was not arraigned before the committing court until on 13.12.2022 in contravention of section 33 (1) (redesignated as section 34) of the Criminal Procedure Act, Cap. 20 (the CPA). He complained that the delay of about 20 days was not explained hence raising a reasonable doubt on the prosecution case. Mr. Ngogo also wondered why the bar attendant known as Irene was not called as a prosecution witness. He, for that reason, urged the Court to draw an 8 adverse inference against the prosecution and find that the case against the appellant was not proved to the hilt. He also prayed for the appeal to be allowed by quashing the conviction, setting aside the sentence imposed on the appellant and setting him free. In response, Ms. Mohamed encountered a steep climb. Despite conceding to a number of shortfalls in the prosecution case, she clang to her stance that the case against the appellant was proved beyond reasonable doubt. She contended that though, as rightly argued by Mr. Ngogo, the credibility and reliability of PW3 was doubtful, the prosecution case and the conviction was not based solely on PW3's evidence. The complaint that there was delay in arraigning the appellant was conceded by the learned Senior State Attorney. However, she contended that, the delay was just for 20 days which might have been caused by the investigations considering the seriousness of the offence in question. On the complaint regarding the delay in arraigning the appellant, we outrightiy agree with the leaned Senior State Attorney that the complaint is baseless. Apart from the fact that Mr. Ngogo did not tell the Court how and to what extent the appellant was prejudiced by the delay, given the nature and seriousness of the offence charged, it cannot be said that the appellant was prejudiced by the delay of 20 days in arraigning him. The delay could not have vitiated the trial and the resultant conviction. See- Eliapenda Zephania Zakaria @ Kicheche v. Republic [2024] TZCA 728. The complaint is thus found baseless. Ms. Mohamed insisted that the case against the appellant was proved to the hilt and further that the conviction was properly based on confessional statements which were admitted in evidence without objection. However, upon being prompted by the Court, she conceded to the fact that there was no evidence establishing that PW1 who recorded the extra judicial statement (exhibit P.3) was assigned to any district court house as required by section 57 of the Magistrate's Court Act, Cap. U (the MCA). She thus urged the Court to expunge the relevant extra judicial statement from the record. Notwithstanding the expungement of the extra judicial statement from the record, the learned Senior State Attorney submitted that, the remaining evidence including the cautioned statement of the appellant (exhibit P.5), sufficiently supported the conviction. He contended that the cautioned statement was corroborated by PW3's evidence which had, however, to be acted upon cautiously. 10 Finally, it was conceded by Ms. Mohamed that the case was pooriy investigated and prosecuted as the bar attendant one Irene, Mama Yuni and her husband who were material witnesses were not called to testify. That notwithstanding, she reiterated that the case against the appellant was proved beyond reasonable doubt. She therefore prayed for the appeal to be dismissed. In his brief rejoinder, Mr. Ngogo reiterated his submissions in chief arguing that the case against the appellant was not proved to the required standard. He insisted that, PW3, the key prosecution witness, was not credible and reliable and his testimony was incapable of corroborating the cautioned statement. He prayed for the appeal to be allowed. From the submissions made for and against the appeal, the issue calling for our determination is whether or not the case against the appellant was proved beyond reasonable doubt. As alluded to earlier, the conviction by the High Court was grounded on the testimony of PW3, the extra judicial statement (exhibit P.3) taken by the Justice of Peace (PW1) and the appellant's cautioned statement (exhibit P.5) which was recorded by PW6. Therefore, the issue before us is on the credibility of PW3 and the reliability of exhibits P.3 and P.5. Beginning with the credibility and reliability of P3, having assessed his testimony and the whole evidence on record, we are in total agreement with Mr. Ngogo, as also conceded by Ms. Mohamed, that the credibility and reliability PW3 is very doubtful. We appreciate the position that, a witness's credibility is in the domain of the trial court only in so far as demeanor is concerned. It should also be restated, at this stage that though it is the trial court which is better placed in assessing the credibility of a witness, an appellate court can also do so by assessing the coherence of the evidence of the witness and by considering his evidence in relation to that of other witnesses. See- Shaban Daudi v. Republic Criminal Appeal No. 28 of 2000 (unreported). Having assessed the coherence of PW3's testimony and the relation of his testimony to that of other witnesses, we are of the settled view that, the High Court misapprehended the evidence on record and misdirected itself in finding PW3's testimony credible and reliable thus sufficient to warrant conviction. As pointed out by Mr. Ngogo PW3 gave self-contradictory and incoherent evidence that dented his credibility and reliability. Firstly, while he is on record telling the trial court that he had no money and for that reason his brother who was the owner of the bar had to buy him a 12 drink, he is also on record testifying and claiming that during the incident, he did not only give the appellant TZS. 500.00 but he was also robbed of his TZS. 30,000.00. Secondly, at one point, as reflected at page 24 of the record of appeal, PW3 claimed to have known the appellant well before the incident as his brother in- law because the appellant's elder brother is married to his sister. However, at page 28 of the record of appeal, he is on record stating, in cross-examination, that the appellant was married to his sister in 2021. Thirdly, PW3's failure to name the appellant as the one who had allegedly murdered the deceased when, in the morning, he joined other villagers at the scene of crime where the deceased's body was found, dented his credibility and reliability. If truly PW3 had witnessed the appellant attacking, dragging and pushing the deceased in the water ditch the previous night, it is not clear why he did not disclose and immediately name the appellant to the people who turned up at the scene of crime. It should also be borne in mind that, PW3 did not only fail to name the appellant at the earliest possible opportunity but he also left the scene of crime for his home and he had to return to the scene only after being fetched by the police. 13 Fourthly, PW3 is on record at page 27 of the record of appeal stating in cross-examination that he was coached by D/Stgt Masanja (PW2). He also stated that it was the co-accused's mother who asked him to give evidence. Not only that but PW3 is also on record stating that his testimony is based on what his mother told him to tell the trial court. It is our considered view that, where a witness declares in his testimony that what he has testified is based on what he had been coached and asked to tell the triai court by other people including police officers, his testimony cannot be credible and reliable capable of grounding conviction. PW3's evidence was thus not credible and the High Court should not have relied upon it in convicting the appellant. At this point, we should aiso agree with the learned counsel for the parties that an adverse inference ought to have been drawn against the prosecution for failing to call as witnesses the bar attendant one Irene as well as Mama Yuni and her husband. The bar attendant who had allegedly attended the appellant, PW3 and the deceased at the bar and who had asked them to leave at the time of closing the business, was a material witness whose testimony could have corroborated PW3's testimony. Likewise, Mama Yuni and her husband who allegedly took PW3 home after PW3 had taken refuge into their house while being 14 pursued by the appellant and who it is said had conversation with the appellant, were very material witnesses. It is not known how and why the prosecution found it not necessary to call such material witnesses if what was testified by PW3 was true. The failure to call them as witnesses fatally eroded the prosecution case against the appellant. Regarding the extra judicial statement (exhibit P.3), we are in agreement with the learned Senior State Attorney that, the same is liable for expunction from the record and the High Court ought to have not acted upon it because it was taken by a justice of peace (PW1) who was not qualified to record it. The fact that PW1 was a Ward Executive Officer (WEO) of Nangara Ward is not in dispute. By virtue of being the WEO of Nangara Ward, PW1 was thus a justice of peace for the Nangara Ward. That, however, did not make him qualified to record cautioned statements. As we noted in the case of Angelius Kaspari Chaula v. Republic [2025] TZCA 1075, Ward Executive Officers were not Justices of Peace until in 2004 when the Minister issued the Magistrates' Courts (Appointment of Justices of Peace) Notice, 2004, G.N, No. 369 of 2004 in which every ward executive officer was appointed a justice of peace for the ward in which he is a ward executive officer. 15 Furthermore, as the Court emphasized in Angelius Kaspari Chaula (supra), a justice of peace has no powers to record extra judicial statements unless, in terms of section 52 of the MCA, he is assigned, by the appropriate judicial authority, to a primary or district court house in the district for which he is appointed. It is also provided under section 57 (a) and (b) of the MCA that, in addition to the powers conferred by the MCA, a Justice of Peace who is assigned to a district court house may hear, take and record the confession of persons in the custody of a police officer in the same manner as a magistrate may hear, take and record such confession and he shali also have and exercise the powers, functions and duties conferred on a justice of the peace assigned to a district court house by any other written law. It is also noteworthy that by an instrument titled "A Guide for Justices of Peace" issued by the Chief Justice, it is directed under Part One thereof that a justice of peace cannot take any action in a District Court-house unless he has been assigned thereto by a District Magistrate. In the instant case, there was no evidence and it was not established that PW1 being a justice of peace who recorded the extra judicial statement (exhibit P.3) was assigned to any District Court-house hence empowered to record the statement. In view of the relevant law 16 as expounded above, the extra judicial statement (exhibit P.3) was recorded by a person with no authority rendering it invalid. That being the case, the statement (exhibit P.3) is accordingly expunged from the record. Having discredited PW3's testimony and after we have discarded the extra judicial statement (exhibit P.3), remaining, in so far as the strength of the prosecution case against the appellant is concerned, is the appellant's cautioned statement (exhibit P.5). The matter regarding the cautioned statement in question need not detain us. While it is trite principle that, cautioned statements constitute the best evidence on which conviction may be grounded, the statements must have been taken according to law. See- Petro Sule & 3 Others v. Republic [2023] TZCA 17777. In the instant case, the appellant's cautioned statement (exhibit P.5) appearing at page 147 of the record of appeal, was recorded by PW6 under section 58 which is currently redesignated as section 59 of the CPA, in contravention of the law. It has to be restated that, cautioned statements made under sections 57 (now 58) and 58 (now 59) of the CPA differ in so far as their initiation is concerned. Even the circumstances under which they are made, are different. While under 17 section 58 (formerly section 57) the statement is made by an accused person and recorded by a police officer when the accused person is being interviewed, and while in terms of sub-section (2)(a) of section 58, the statement is required to be in form of questions and answers, the statement made out under section 59 (formerly section 58) is initiated and written out by an accused person who wishes to do so personally and it is for that reason that the statement under that section is required to be in a narration form, It is provided under section 59 (1) and (2) of the CPA that: "59.-(1) Where a person under restraint informs a police officer that he wishes to write out a statement, the police officer shaii- (a) Cause him to be furnished with any writing material he requires for writing out the statement; and (b) Ask him, if he has been cautioned as required byparagraph (c) o fsection 54, to set out at the commencement of the statement the terms of the caution given to him, so far as he recalls them. (2) Where a person under restraint furnishes to the police officer a statement that he has written out, the police officer shall write, or cause to be written, at the end of 18 the statement a form o f certificate in accordance with the prescribed form, and shall then -..." Discussing the difference between cautioned statements made under sections 57 (now 58) and 58 (now 59) of the CPA, the Court in Ramadhani Salum v. Republic [2007] TZCA 178, stated that: "The circumstances in which the two kinds of cautioned statements are taken are different The one taken undersection 57[now 58] maybe as a result o f either of answers to questions asked by the police investigating officer or partly as answers to questions asked and partly volunteered statements. The statement under section 58 [now 59] is a result of a wholly volunteered and unsolicited statement by the suspect" Further, in the case of Seko Samwel v. Republic [2005] TZCA 101, the Court stated that: "The initiative in a cautioned statement under section 58 [now 59] conies from the suspect... A cautioned statement under section 58 [now 59] is supposed to be written without the writer being led by being asked questions. That is the import of section 58 [now 59]. On the other hand, a 19 record of an interview under section 57 [now 58] is required to be recorded in question and answer model. This comes about when a poiice officer is interviewing a person to ascertain whether he/she has committed an offence and if that person makes a confession. So, in effect the provisions of section 58 [now 59] were not complied with in respect of Exh. P3. " [Emphasis added] As we have intimated above, the appellant's cautioned statement (exhibit P. 5) which was purportedly made under section 59 of the CPA was neither made at the instance of the appellant nor was it written out by him. The statement was not initiated by the appellant as it is required under section 59 of the CPA. The statement was thus not made in accordance with the law. It was made in contravention of section 59 of the CPA. For that reason, the cautioned statement in question (exhibit P.5) was invalid with no evidential value. Given the incredible and unreliable evidence of PW3 and having discarded the two confessional statements, that is, exhibits P.3 and P.5, there is no remaining evidence upon which the appellant's conviction could be grounded. We thus allow the appeal on the ground that the 20 case against the appellant was not proved beyond reasonable doubt. Consequently, the conviction is quashed and the sentence is set aside. It is ordered that the appellant be set free unless he is otherwise so held for any other lawful cause. DATED at DODOMA this 25th day of March, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered Virtually this 25th day of March, 2026 in the presence of appellant in person and Mr. Tonny Kilongo, learned State Attorney for the respondent and Mr. Fahmi Karemwa, Court Clerk; Court is hereby certified as a true copy of the original. % R. W. CHAUNGU £ \ \ DEPUTY REGISTRAR n ! : COURT OF APPEAL 21