Angelius Kaspari Chaula vs Republic (Criminal Appeal No. 86 of 2022) [2025] TZCA 1075 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA fCORAM: MWANDAMBO J.A.. MAIGE. J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 86 OF 2022 ANGELIUS KASPARI CHAULA .................................................APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Njombe at Njombe) (Chamshama , Ext. Jurisdiction^ dated 23r d day of March ,2022 in Extended Criminal Session No. 16 of 2022 JUDGMENT OF THE COURT 29th September & 13th October, 2025 MAIGE, J.A.: In the Resident Magistrate's Court of Njombe at Njombe, Extended Jurisdiction (the trial court), the appellant was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code. He was sentenced to death by hanging. The information asserted that, on 13th day of August, 2020 (the material day), at the village of Lusala (the village) within Ludewa District in Njombe Region, the appellant murdered one Fidolin s/o Msandawa Chaula (the deceased).

Until 13th August, 2020 when the incident under scrutiny came into existence, the deceased was living at village with his wife Tulajenda d/o Mdanga. At around 20:00 hours, the latter heard the deceased raising an alarm. She reported the incident to some neighbors who searched and managed to see the deceased unconsciously lying on the ground with a wound on his head. Information about the incident was conveyed to Akasio Pancras Mtega (PW2), the village chairman, who reported it to the police and, in response to which, some policemen visited the crime scene only to find the deceased had already passed away. The dead body of the deceased was on the next day, examined by doctor Rebecca d/o William Mduma (PW1). As per the postmortem examination report (exhibit PI), the cause of death was hemorrhage caused by a deep cut wound on the head and shoulder. In accordance with the testimony of FR 19371 Insp. Betinego Mwanyasa (PW5), the appellant was arrested on 19th August 2020 by a village militia Lezile Chaula and produced to Ludewa police station. On being interrogated, he allegedly confessed before PW5 to have committed the offence and volunteered to show where the machete used to commit the offence was hidden. The appellant was, therefore, taken to the village and the starting point was in the office of the village chairman (PW2). The latter interrogated the appellant who allegedly confessed to have

committed the offence and that, he was ready to show them where the weapon was hidden. He, thereafter took them to his residence where the machete (exhibit P4) was discovered and seized as per the seizure certificate (exhibit P5). The appellant was taken back to Ludewa police station and PW5 recorded his cautioned statement (exhibit P6) in which he confessed to have murdered the deceased. On the next day, the appellant was taken to the ward executive officer one Alanus Benedict Mbunda (PW4) where his extra-judicial statement was taken. It was admitted in evidence and marked as exhibit P3. In his defence, the appellant denied committing the offence. On the material date, he said, he was asleep at his house and that, was informed of the murder of the deceased by Lozina Mwinuka and attended the burial ceremony. He said, he was arrested by the police on 19th August 2020 in connection with the incident and taken to a room where he was beaten but denied the commission of the offence. He denied to have either recorded or signed any confessional statement. He further denied to have made any oral confession. He maintained further that, he had never been to the village since his arrest and detention. He said, before the justice of peace, he was forced to say what he said before the police.

As per the record, the conviction of the appellant was based on his oral confession before PW2 as validated by the extra judicial statement in exhibit P3. The trial court did not accept the appellant's defense as there was no proof that he was beaten. It may also be significant to note that while, as we have said above, the prosecution relied on the cautioned statement, in the decision of the trial court it was not considered at all and the reason therefor is not explained in the judgment. Being aggrieved, the appellant has preferred the current appeal on three grounds. He is, in the first ground, complaining that the case against him was not proved beyond reasonable doubt as his conviction was based on an oral confession which lacked legal basis to qualify as an oral confession. In the second ground, the trial court is faulted for sustaining conviction based on an uncorroborated extra judicial statement which was irregularly procured. In the last ground, the appellant criticizes the trial court in sustaining conviction despite the summing up to assessors being improper. At the hearing of the appeal, the appellant had the services of Mr. Jonasi Burton Kajiba, learned advocate whereas the respondent Republic had the services of Ms. Xaveria Makombe, learned Senior State Attorney.

For obvious reason, we shall start our deliberation with the third ground as to the propriety of the summing up to the assessors. The contention in this respect was that the assessors were not adequately addressed on the legal point that oral confession requires corroboration. The effect of the omission, he submitted, is to render the trial as if it was without assessors. He substantiated his contention with our decision in Mashimba Dotto @ Lukubanija v. R (Criminal Appeal No. 317 of 201) [2014] TZCA 271, TANZLII. He, therefore, urged us to quash the appellant's conviction and set aside the sentence thereof as there is no evidence to sustain conviction. In response, Ms. Makombe submitted that, contrary to the expression by the learned counsel for the appellant, the fact that oral confession requires corroboration, was clearly explained to the assessors as reflected in the assessors' opinions at pages 58 and 59 of the record of appeal. She submitted, therefore that, if there be omission, it was not in any way prejudicial to the appellant and thus, the authority cited is distinguishable. Having examined the record, we are in agreement with Ms. Makombe that oral confession was relied upon in sustaining conviction, and the trial magistrate with extended jurisdiction adequately explained to the assessors as per pages 57 and 58 of the record. Indeed, in their

respective opinion appearing at pages 61 to 63 of the record, each of the assessors considered the significance of corroboration in that aspect of evidence. This is a signification that, they were all informed and adequately addressed on the point. On that account, therefore, we find the third ground of appeal without merit and it is dismissed. We now turn to the first and second grounds of appeal on the proof of the case beyond reasonable doubt. As we said above, the conviction of the appellant was based on oral confession as corroborated by the extra judicial statement. In relation to oral confession, it was Mr. Kajiba's submission that, the same was not reliable as the appellant was not, in the circumstances, a free agent. The basis of the contention was that, the appellant was produced to PW2 while in police restraint. In that situation, he submitted, it could not be said that he was a free agent as to render his oral confession voluntary. The trial court, the counsel submitted, was required to go an extra step, which it did not, so as to satisfy itself whether the said confessional statement was actually made and if so, whether it was a voluntary confession. He placed reliance on Tabu Malebeti Medard and Another v. R (Criminal Appeal No. 115 of 2022) [2023] TZCA 17945, TANZLII and Shija Sosoma v. DPP (Criminal Appeal No. 327 of 2017) [2019] TZCA 390, TANZLII.

He submitted further that the extra judicial statement was not lawfully procured for non-compliance of the Chief Justice's Guidelines. He mentioned two areas of violation with the Guidelines. One, question number 9 as to whether or not the appellant was a free agent was not responded to. Two, though the appellant is, according to his own evidence, literate, the extra judicial statement indicates that he thumb printed. To Ms. Makombe, the appellant was a free agent in his oral confession before PW2 as he made the confession after PW5 and other persons had been excluded from the office. The confession before the justice of peace, she further submitted, was made in due compliance with the Chief Justice's Guidelines and the law. Contrary to the appellant's claim, the appellant expressed in the confessional statement that he was a free agent. She submitted further that, the confessional statement was admitted without any objection signifying that its admissibility was not in issue. In her contention, the alleged involuntariness during defence was a mere afterthought which was in any event not proved. Such a complaint, she insisted, ought, as per the principle in Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 [2012] TZCA 103, TANZLII, to have been raised at the point when the prosecution was praying for the admission

of the statement in evidence. He submitted, therefore that, the appeal is without merit and should be dismissed. As a starting point, we agree with Ms. Makombe, that oral confession made by a suspect before a reliable witness may, by itself suffice to sustain conviction. See for instance, DPP v. Nuru Mohamed Gulamrasul [1988] T.L.R. 82. We also agree with Mr. Kajiba that, for the court to rely on such evidence to sustain conviction, it must satisfy itself without any reasonable doubt that, it was actually made and that, the suspect was a free agent. That is what we said in Tabu s/o Malebeti @ Medard and Others v. R (supra). As a matter of principle, therefore, reliance ON such kind of evidence requires a great caution and the trial court is expected, as we said in Jumanne Yohana v. R (Criminal Appeal No. 838 of 2023) [2025] TZCA 378, TANZLII to make " extra efforts to satisfy itself that the confession was given voluntarily, if at all, it was given." On its part, the trial court, after assessing the evidence of PW2, it was satisfied that, the appellant was a free agent when he was making the oral confession. As the first appellate court, however, we are obliged to reappraise the evidence and come out with our own conclusion on the correctness or otherwise of the trial court's factual finding. In so doing,

we have in our mind that, the burden to prove that the confession was voluntary is on the prosecution and does not shift. PW2 claims to have heard the appellant confessing to have committed the offence on 19th August, 2020. In his defence, however, the appellant denied making such confession before PW2. He testified that, he had never returned to the village since he was arrested. We note that, in his testimony which appears at page 27 and 28 of the record, PW4 confirmed that when he was produced to him on 20/08/2020, the appellant said that he was arrested on 19th August, 2020 at night. This is also reflected in exhibit P3 in clause 7 and 8, where the appellant was specific that he was arrested on 19th August, 2020 at 00.00 hours and taken to Malangali police station where he slept until the next day when he was conveyed to Ludewa police station. Conversely, PW5 testified in cross examination that the appellant was arrested at the village by Lezile Chaula and conveyed to Ludewa police station on the same day. The said Lezile, was however, not called as a witness and the reason for that was not explained. We noted that, in his testimony, PW5 was cross examined on that aspect and said: '7 did not come with a detention register, what I know he was arrested by LEZILE CHAULA. I don't know if LEZILE CHAULA has testified in court"

With the failure of the prosecution to produce the person who allegedly arrested the appellant in the village and conveyed him to Ludewa police station, and, in the absence of any evidence from the prosecution on the time of the appellant's arrest, we have no any justification not to believe the testimony of the appellant in defence as validated by that of PW4 that, he was arrested on 19th August, 2020 at about 00.00 hours and brought to Ludewa Police Station the next day. With that, therefore, it would not be logically possible for the appellant to be in the village under the custody of PW5 on 19th August 2020 in the morning while he was not yet arrested. The above notwithstanding, the prosecution story on oral confession of the appellant before PW2 and the subsequent search at his residence and recovery of exhibit P4, leaves much to be desired. We shall explain as we go along. In the first place, while the appellant's alleged confessions as per exhibits P3 and P6 were disclosed during preliminary hearing, the fact that the appellant orally confessed before PW2 was not disclosed. That was unusual. In the second place, PW5 suggests that before going to the home residence of the appellant to conduct a search , PW2 called LEZILE CHAULA to witness the same. Unexpectedly, PW2 did not, in her evidence, name LEZILE as among the persons with whom they went at the residence of the appellant for the said search. In the third place, PW5 10

mentioned PW2 as among the persons who signed the certificate of seizure. In particular, PW5 testified as follows: "In his compound, he has three houses, in the house we entered was not used by him, I then prepared the seizure certificate. He signed, the chairman also signed, Liziie Chau/a also signed and DC Hamis. "[At page 34 of the record] We note that, throughout his testimony, PW2 did not testify on the existence or otherwise of the respective seizure certificate. More to the point, the respective seizure certificate indicates that it was issued at Malangali Police station on 19th August, 2020 at 15:30 hours and subsequently signed by PW5, PW2, Lezile and the appellant at the place and time not mentioned therein. Conversely, the evidence in exhibit P6 asserts that, 15:30 hours is the exact time when PW5 started recording the appellant's cautioned statement not at Malangali police station but at Ludewa police station. How possible would PW5 and the appellant be at Malangali police station and Ludewa police station at the same time, is a question which cannot find any answer from the prosecution evidence. As that may not be enough, PW5 asserted in his testimony on cross examination, as per page 43 of the record that, the appellant was never sent to Malangali.

The foregoing discrepancies, in our view, raise reasonable doubts on the credibility of the prosecution evidence surrounding the procurement of the appellant's oral confession before PW2 which should have been used at the benefit of the appellant. We proceed with the extra judicial statement. This was taken by PW4, a ward executive officer purporting to exercise powers of a justice of peace. Justices of peace are generally appointed under section 51(1) and (2) of the Magistrate Court Act. Sub-section (1) makes every specified officer of a district, town, municipal or city council to be an ex- officio justice of peace. Under subsection (2) thereof, the Minister is empowered to constitute any fit person to be a justice of peace for the district in which he is ordinarily resident. Notably, until 2004, ward executive officers were not justices of peace as they were not in the definition of term "specified officer" in section 51(4) which read as follows: "(4) In this section, "specified officer" means the secretary to the district, town, municipal or city council and includes the secretary of a divisional committee thereof". We are aware that, in 2004, the Minister issued the Magistrates' Courts (Appointment of Justices of Peace) Notice, 2004, G.N. No. 369 of 12

2004 in which " every ward executive officer was appointed justice o f peace for the ward in which he is a ward executive officer." As per section 52 of the same Act, for the justices of peace appointed under section 51 to be in offices as such, they have to be assigned, by the appropriate judicial authority, to a primary or district court house in the district for which they are appointed. The general powers of justices of peace are provided under section 54, 55 and 56 which do not include recording extra judicial statements. Indeed, taking extra judicial statement are additional powers which are provided under section 57 of the same Act which read as follows: "57. In addition to the powers conferred by this Act on a justice o f peace, a justice of the peace assigned to a district court house- (a) 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 (b) Shall have and exercise the powers, functions and duties conferred on a justice o f the peace assigned to a district court house by any other written law." As can be seen from the above provision, the powers to record extra judicial statement is specifically vested in justices of peace assigned to a 13

district court-house. The question which follows is whether PW4 was a justice of peace assigned to the District Court House. The answer must come from the relevant authority vested with the power to make the assignment which is none but the offices of the Chief Justice. For the purpose of exercise of such power, the Chief Justice issued an instrument entitled "A Guide for Justices of Peace/' Part one thereof which deals with justices of peace assigned to the District Courts, defines justices assigned to District Courts in the following words: "(i) All Primary Magistrates are justices assigned to the District Court-houses o f the District wherein their Primary Court is established. (ii) Executive officers o f District Councils (who are ex officio justices) if assigned to a District a District Court-house by a District Magistrate. A justice o f peace cannot take any action in a District Court-house unless he has been assigned thereto by a District Magistrate." [Emphasis is ours] Be it noted, under the above provisions, for a justice of peace other than a magistrate to be entitled in law to record extra judicial statement, he must have been specifically assigned to a District Court-House by a District Magistrate. In his evidence, aside from representing himself as a 14

ward executive officer, PW4 did not establish that he had been assigned to any District Court-house by a District Magistrate. In our opinion, therefore, PW4 had no authority to record the extra-judicial statement of the appellant and, therefore, the respective extra-judicial statement was incapable of grounding the appellant's conviction. We, therefore, agree with Mr. Kajiba that, it was quite wrong for the trial court to place reliance on such evidence to sustain the appellant's conviction. Having held that both the oral confession and extra judicial statements were unreliable, the only evidence pointing to the appellant which remains in the record is the cautioned statement in exhibit P6. With the confusion of the timing of the arrest and detention of appellant as discussed above and the apparent improbability of the same being recorded at Ludewa Police Station by PW5 on 19th August, 2020 from 15:30 hours, the period which, according to exhibit P5, he, together with the appellant were at Malangali police station, the evidence in the cautioned statement becomes incredible and, therefore, unreliable to sustain conviction considering that, aside from its admissibility being objected for being taken out time, the voluntariness of its procurement was vigorously contested by way of cross examination and the appellant's evidence in defence. In any event, the respective statement was not, for undisclosed reason, not taken into account by the trial court in its decision. 15

In the final result and for the foregoing reasons, we find merit in this appeal and we allow it. Consequently, we quash the conviction, set aside the sentence and order that the appellant be released forthwith if he is not held for any other lawful cause. DATED at IRINGA this 11th day of October, 2025. L. 1 S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Atupelye Makoga, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 16