Bahati Malimi & Another vs Republic (Criminal Appeal No. 324 of 2022) [2024] TZCA 1219 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA rCO RAM: MUGASHA. 3.A.. KHAMIS, 3.A.. And ISMAIL. J J U CRIMINAL APPEAL NO. 324 OF 2022 BAHATI M ALIM I ..................................................................... 1 st APPELLANT ELIAS JO H N ............................................................................2 nd APPELLANT VERSUS THE REPUBLIC .................................... .................................. RESPONDENT (Appeal from the decision of the Resident Magistrates Court of Bukoba with Extended Jurisdiction at Karagwe) (Tesha, SRM with Extended Jurisdiction^ dated the 31st day of March, 2022 in Criminal Session Case No. 32 of 2019 JUDGMENT OF THE COURT 29th November & 10th December, 2024 KHAMIS, J.A.: The crux of this appeal is whether the trial Resident Magistrates Court of Bukoba with extended jurisdiction was vested with jurisdiction to entertain a murder trial and subsequently convict and sentence the appellants to suffer death. The appellants contended that, apart from the insufficiency of evidence to ground a conviction, the trial court acted beyond its jurisdictional boundaries, rendering the judgment null and void. 1 i

Bahati Malimi and Elias John, the appellants herein, were charged with the offence of murder contrary to section 196 of the Penal Code, Cap 16, R.E 2022. The particulars in the information lodged in the High Court of Tanzania, Bukoba were that, on 28th day of June, 2017 at Katojo village within Karagwe District in Kagera Region, the appellants murdered Constantine Mashauri, the deceased. In exercise of the powers under section 45 (2) of the Magistrates Courts Act, Cap 11, R.E 2019 (the MCA), the High Court, Bukoba, transferred the case to the Resident Magistrates Court of Bukoba with extended jurisdiction and assigned it to Josephat D. Luambano, SRM with extended jurisdiction who presided over the preliminary hearing. Thereafter, the Judge in Charge invoked section 45 (2) of the MCA, yet again, to re - assign the case to Terrysophia C. Tesha, SRM with extended jurisdiction who presided over the trial and delivered the impugned judgment of the trial court. In a bid to prove its case against the appellants, the prosecution called six (6) witnesses and produced five (5) exhibits. At the end of the trial, the appellants were found guilty, convicted and sentenced to death.

Before we proceed, we find it befitting to narrate the material facts which led to this appeal. According to exhibit P5, the witness statement of the deceased's wife, in 2016 the deceased, his lovely wife Monica and their six children trekked from Wayi village, Kwimba District, Mwanza Region, to settle at Katojo - Kibogoizi Village, Karagwe District, Kagera Region. Apart from cultivating his own paddy field, the deceased used to buy paddy from farmers which was milled to rice for onward selling on the market. The wife of the deceased, Monica w/o Constantine, was listed as a prosecution witness but could not be procured for testimony during the trial. Her statement was thus admitted as exhibit P5 in terms of section 34B of the Tanzania Evidence Act, Cap 6 R.E 2019 (the TEA). Monica disclosed that, on the fateful night, the appellants visited her matrimonial home and invited her beloved husband to their paddy field for handover of paddy sacks. Unsuspecting, the deceased carried the empty sacks and a bucket for weighing the grains and followed his borrowers to the field. That was the last time he was seen alive by his family. The following day, Monica searched for him in the whole village to no avail. Among others, she visited the first appellant's house and 3

the house of a relative, Erick Rushugembe. The first appellant maintained that he did not see the deceased since the previous night. Owing to lack of a plausible explanation, Erick Rushugembe apprehended the first appellant and invited Vincent Rumilija and others to question him. In the process, the first appellant disclosed what had befallen the deceased and revealed the whereabouts of his body. Subsequently, Mbaraka Zaki (PW2), the hamlet chairman, championed the search process until the body was recovered. The naked lifeless body of the deceased was found afloat the water puddle near the tunnel. He was slaughtered by a sharp object and clothes were thrown away. Monica recognised the appellants as they had previously borrowed TZS 350,000.00 from the deceased and promised to give him five paddy sacks during the harvests. This arrangement did not make her suspect their going out with the deceased on the fateful night. In his testimony, PW2 said, following recovery of the body, Nyaishozi Police Station was informed and subsequently, a team of police officers accompanied by a medical doctor arrived at the scene to examine the body. PW2 assisted D/SGT Peter (PW1) to draw a sketch map of the scene (exhibit PI). 4

PW3 WP 3635 D/SGT Zuhura, a police woman together with D/C Feliciano, CPL Filbert and other police officers from Kayanga Police Station were in the team that visited the scene and carried a preliminary investigation. Subsequent to visiting the scene they picked the first appellant from Nyaishozi Police Station. At Kayanga Police Station, PW3 was instructed to record a cautioned statement (exhibit 92) which she complied in accordance with the law and procedure. The statement was voluntarily recorded from 17.30 hours to 18.30 hours and duly signed by the first appellant who confessed to commit the offence. The trial court disregarded the evidence of Yesaya Michael (PW4) who was presumed to be a medical doctor but on cross examination he was found to be a nurse. Worse still, the post mortem report purportedly prepared by him after visiting the scene was signed by someone else who did not examine the dead body. PW5 G 2484 D/CPL Felician, was one of the policemen from Kayanga Police Station who went to the scene together with PW3 and CPL Philbert. At the scene, he learnt that the first appellant was arrested and remanded at Nyaishozi Police Station. The team carried a preliminary investigation including an autopsy by PW4 and the sketch

r map drawn by PW1. Thereafter, they picked the first appellant from Nyaishozi Police Station and ferried him to Kayanga Police Station. Subsequently, PW5 was assigned to investigate the case and facilitated the arrest of the second appellant as a result of the confession by the first appellant. He was also involved in the recording of the second appellant's cautioned statement (exhibit P4). PW6 Benard Nduhira Tingasimiha, the Nyakahanga Ward Executive Officer (WEO) and the justice of peace, recorded the extra judicial statement of the second appellant on 28th August,2017. However, following an objection by the defence counsel, the statement was not admitted in evidence for contravening the Chief Justice Guide to the Justices of Peace (the CJGJP). At the dose of the prosecution case, the trial Senior Resident Magistrate with Extended Jurisdiction made a finding that the appellants had a case to answer. When put on his defence, the first appellant (DW1) testified that he was arrested on 29th June, 2017 at 10.00 hours. Apart from PW2, who summoned him to his office, he found several other people who apprehended him in connection to disappearance of the deceased. He was severely beaten and assigned a militia man to escort him to Nyaishozi Police Station.

At the police station, he was questioned and further beaten on the knees before being taken to Kayanga Police Station. At the latter station, PW3 and three other police officers tortured and remanded him before he was taken at Kayanga Health Centre for treatment. He maintained total unfamiliarity with the deceased and expressed lack of knowledge on how his body was recovered. He distanced himself from the cautioned statement (exhibit P2) whose contents were allegedly dictated by PW3. He claimed to be a resident of Iyembe village and denied any liability to the murder of the deceased. As for the second defendant, he became acquainted with him while in prison. The second defendant's testimony was that he was arrested at Kaiiua, Tabora on 8th August, 2017 and remanded at the Kaliua Police Station for nine days before he was hauled to Urambo Police Station where he stayed for five days. Thereafter, policemen from Karagwe ferried him to Kayanga Police Station where he was coerced to sign a cautioned statement (exhibit P4) whose contents were dictated by policemen. He raised a defence of alibi that he was in Kaliua and has never been to Karagwe before the arrest. In the end, the trial court held them culpable and convicted them.

Aggrieved by the conviction, the appellants lodged the instant appeal advancing three grounds in the memorandum of appeal and seven others in the supplementary memorandum of appeal. However, for the reason that will soon become apparent, we find no reason to reproduce the said pretexts. When the appeal came up for hearing, Messrs. Derick Zephurine and Dastan Mujaki, learned advocates, acted for the first and second appellants respectively. On the other hand, Mses. Wampumbulya Shani and Immaculate Mapunda, learned Senior State Attorneys, teamed up with Mr. Enosh Gabriel Kigoryo, learned State Attorney, to represent the respondent Republic. At the outset, Ms. Shani drew our attention to a preliminary point of law regarding the propriety of the transfer order from the High Court to the Resident Magistrates Court of Bukoba - Extended Jurisdiction which purported to give jurisdiction to the trial court. She contended that the High Court erroneously transferred the case to the Resident Magistrates Court of Bukoba - Extended Jurisdiction under section 45 (2) of the MCA instead of section 256A of the CPA which deals with cases of original jurisdiction of the High Court. She argued that, the former provision deals with appeals originating

■from the lower courts to the High Court as opposed to the present case involving the original jurisdiction of the trial court. On that basis, the learned Senior State Attorney asserted that the lower court's proceedings were a nullity for lack of jurisdiction. She urged us to invoke section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA) to nullify the proceedings and judgment, quash the conviction and set aside the sentence meted out by the trial court and order a retrial. She opined that, in case of fresh trial, there is overwhelming evidence to ground a conviction against the appellants. Responding, Mr. Mujaki made a concession to the point of law but differed on the way forward. According to him, the record is abound with insufficiency of evidence to ground a conviction against the appellants. He argued that, if an order of retrial is made, the prosecution is likely to fill up the gaps that are apparent on record, namely: the first appellant's cautioned statement was recorded contrary to section 50 (1) (a) of the CPA; the witness statement of the deceased's wife was admitted contrary to requirements of section 34B of the TEA and was not listed as an exhibit during the committal proceedings contrary to the requirements of section 246(2) of the CPA. He argued that, if those pieces of evidence were expunged from the

•record, the remaining evidence is hearsay and insufficient to advance the prosecution's case. On his part, Mr. Zephurine joined hands with Ms. Shani and Mr. Mujaki on lack of jurisdiction of the trial court to entertain the case leading to this appeal. He contended that, the orders exhibited at pages 29B and 34B of the record were made under wrong provisions of the law rendering the trial a nullity. The learned counsel contended that, apart from contravening section 50 (1) (a) of the CPA, the second appellant's cautioned statement was recorded contrary to sections 57 and 58 of the CPA and in the presence of PW3, contrary to the legal requirements. He buttressed his assertion with our decision in Mbuzi Lushona @Mwangaiki and 2 others v. Republic, Criminal Appeal No. 159 of 2022 [2024] TANZLII wherein this Court addressed itself on the delay to record a cautioned statement of a suspect who was in police custody and remarked that: "...Considering the observations in Chacha Jerm iah M urim i (supra) and comparing them with the circum stances existing in the present appeal that is, being restrained for an extended period without a credible explanation , we find 10

that it m ight be prejudicial to the suspect. This is because prolonged restraint is considered as a form o f torture, as it induces anxiety and uncertainty about the suspect's fate. Consequentlysuch circum stances often lead to the presum ption that, torture was em ployed to extract a confession regarding commission o f the alleged offence..." The learned counsel for the second appellant faulted the trial court for failure to draw adverse inference against the prosecution which did not call material witnesses named by other witnesses. He referred us to page 42 of the record where Vincent Rumilija, Erick Rushigembe and Joseph Konya were said to have recovered the deceased's body from the paddies. He argued that if retrial is preferred, the prosecution is likely to engage these witnesses and cure its omission to the detriment of the appellants. He therefore invited us to allow the appeal and order the release of the appellants from custody. There was no rejoinder by the respondent Republic. Having carefully considered the rival submissions by the learned counsel on the aftermath of the appeal and upon perusal of the record, we shall now pronounce ourselves on the issues that we find pertinent for our determination, namely: one, whether the trial court lacked 11

requisite jurisdiction on account of the defective transfer orders by the High Court; and; two, whether a retrial should be ordered in the circumstances of this case. We propose to start with the first issue related to the extended jurisdiction of the trial court. Extended jurisdiction of a court refers to the extension of a court's authority to hear and determine certain types of cases. In our country, it is done for both criminal and civil cases in their original or appellate jurisdictions. Section 173 (1) (a) and (b) of the CPA, empowers the Minister for Justice in consultation with the Chief Justice and the Attorney General, to invest any Resident Magistrate with power to try any category of offences which would ordinarily be tried by the High Court or with power to try any specified case or cases and to impose any sentence which could lawfully be imposed by the High Court. Section 256A of the CPA caters for transfer of cases of original jurisdiction from the High Court to the Resident Magistrates Court with extended jurisdiction. It empowers the High Court to direct that the taking of a plea and the trial of an accused committed for trial by the High Court, be transferred to, and conducted by a resident magistrate upon whom extended jurisdiction has been granted. Under Section 45 12

(2) of the MCA, the High Court may direct that an appeal instituted in the High Court be transferred to and heard by a resident magistrate upon whom extended jurisdiction has been conferred. When the High Court inclines to transfer a case for trial before a resident magistrate with extended jurisdiction, the transfer order is bound to be made under section 256A (1) of the CPA which envisages that the magistrate exercising extended powers to whom a case is transferred must take the plea as well as conduct the trial. In Juma Lyamwine v. Republic, Criminal Appeal No. 42 of 2001 (unreported), the High Court transferred a case for trial before a Resident Magistrate with extended jurisdiction under a wrong provision of the law. Instead of applying section 256A (1) of the CPA, the order was made under section 173 of the Act. On appeal to this Court, the trial which proceeded before the Resident Magistrate with extended jurisdiction was declared a nullity. In this matter, both transfer orders which were made under section 45 (2) of the MCA by the Judge in Charge to two different Senior Resident Magistrates with extended jurisdiction were not proper. The transfer orders ought to have been made under section 256A (1) of the CPA. 13

In the circumstances, the plea taking and the preliminary hearing before Luambano, SRM with extended jurisdiction and the trial by Terrysophia C. Tesha, SRM with extended jurisdiction were a nullity. The second issue for our consideration is whether a retrial should be ordered. It is not a golden rule that retrial should always be ordered when the original trial is found to be illegal or defective. In Shaban Abdallah v. Republic, Criminal Appeal No. 255 of 2013 (unreported), we restated the law that, retrial will not be ordered where the conviction is set aside due to insufficiency of the evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. In this case, the appellants were convicted based on their own repudiated cautioned statements (exhibits P2 and P4) and the witness statement of Monica, the wife of the deceased (exhibit P5). This is clear at page 157 and 158 of the record where the trial Senior Resident Magistrate with extended jurisdiction reasoned that: "...So, in those circum stances, I have no reason to disbelieve the accused w ife's statem ent as she knew the accused before and her statem ent was corroborating the accused persons'cautioned statem ents . " 14

This Court has consistently maintained its stance that in recording cautioned statements, the mandatory provisions of the CPA should be observed. These include sections 50, 51, 57 and 58 thereof. According to section 50 (1) (a) the period available for interviewing a person who is in restraint in respect of an offence is four hours commencing at the time when he was taken under restraint in respect of the offence. The second appellant's cautioned statement (exhibit P4) was recorded on 23rd August, 2017 from 13.00 hours. According to DW2 and PW5, he was arrested on 8th August, 2017 and therefore, there is unexplained delay of about fifteen (15) days which in light of our decision in Mbuzi Lushona @ Mwangaiki (supra) creates doubts on whether the statement was voluntarily recorded. The statement yet suffers another abnormality. It was recorded by PW5 in the presence of PW3. This is evident at page 68 of the record of appeal where PW5 testified that: took the accused person from the police custody to the investigation room. The accused was healthy. In that room there was another person one CPL Zuhura who was doing her duties also. I first introduced m yself to the

accused person and inform ed him that he was free to give his statem ent..." Faced with a similar issue in Kisonga Ahmad Issa & Another v. Republic, Criminal Appeal No. 362 of 2017 (unreported), we pointed out that: "It is further noted that the cautioned statem ent o f the first appellant was recorded by PW1 in the presence o f the other police officers. That was yet another irregularity, as the right o f privacy to the first appellant was infringed. We therefore fin d m erit on this ground o f appeal and expunge a ll confessional statem ents from the record . " On the strength of the above legal stance, we are of the view that the act of PW5 to record the cautioned statement in presence of another police officer infringed the second appellant's right to privacy and was prejudicial to his case. In the circumstances, exhibit P4 cannot survive in evidence but rather, be expunged from the record. After expunging exhibit P4, the remaining evidence on record is exhibit P2, the repudiated cautioned statement of the first appellant which is also the evidence against the second appellant. The position of the law regarding the evidence of an accomplice was amply and 16

'correctly stated in Laurent Joseph & Another v Republic [1981] T.L.R 351, thus: "Although the law does not say that conviction on uncorroborated accom plice's evidence is illegal[ it is s till unsafe, as a m atter o f practice to uphold a conviction on the uncorroborated evidence o f a c o - accused . " In Emmanuel Joseph @ Gigi Marwa Mwita v. Republic, Criminal Appeal No. 57 of 2002 (unreported), the Court had the opportunity to pronounce itself on the weight of the retracted and or repudiated confessional statements and held that: "... we are increasingly o f the view that it is highly unsafe to sustain the conviction o f the appellant on the basis o f the retracted confessional statem ents which were not corroborated...," The question facing us is whether the cautioned statement of the first appellant and the witness statement of the wife of the deceased can be independently relied upon. We are certain that these pieces of evidence requires corroboration. 17

The meaning and purpose of corroboration was succinctly explained in R. v Baskerville [1916] 2 K. B 658 which was referred to in R v. Manilal Inshwerlal Purchit [1942] EACA 58, thus: "... the corroboration which should be looked fo r is, as la id down in R V. Baskerville.... some additional evidence rendering it probable that the story o f the accom plice is true and that it is reasonably safe to act upon it It m ust be independent evidence which affects the accused by connecting him or tending to connect him with the crime, confirm ing in some m aterial particular not only the evidence that the crim e has been com m itted but also that the accused com m itted it It is o f course not necessary to have confirm ation o f a ll the circum stance o f the rime. Corroboration o f same m aterial particular tending to im plicate the accused is enough w hilst the nature o f the corroboration w ill necessarily vary according to the particular circum stances o f the offence charged it is sufficient if it is m erely circum stantial evidence o f his connection with the crime. Corroboration m ay also be found in the conduct o f the accused." 18

We have carefully examined the first appellant's cautioned statement (exhibit P2) and the witness statement of the wife of the deceased (exhibit P5) to gauge their corroborations. Despite resemblance of the date of the deceased's disappearance before his demise, the two statements sharply differed on the nature of the relationship between the deceased and the appellants. Whereas in exhibit P2 the first appellant allegedly confessed that in January 2017, he approached the deceased for a personal loan with a promise to repay in June - July 2017. The wife of the deceased claimed that, on 27th June, 2017 the appellants approached the deceased for a loan following which he gave them TZS 350,000.00. In absence of corroboration from these key statements, we have failed to see how the prosecution's case can sail through, bearing in mind that, some material witnesses were not paraded to testify. It is on record that PW2 was informed of the incident by Joseph Konya. When PW2 took charge of the investigation machinery at the village level, Joseph Konya, Vincent Rumilija and Erick Rushigembe had restrained and interrogated the first appellant who disclosed some incriminating information leading to discovery of the body of the deceased. All these witnesses were not brought to testify for no apparent reason. 19

Having considered the evidence on record, we hereby quash the proceedings and judgment of the trial court and set aside the sentence meted out to the appellants. We order that the appellants be released from prison forthwith unless held for other lawful cause. DATED at BUKOBA this 9th day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Derick Zephurine holding brief for Mr. Dastan Mujaki, learned counsels for the 1st and 2n d appellants and Mr. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 20