Manoni Isheli vs Republic (Criminal Appeal No. 193 of 2022) [2024] TZCA 1225 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO, J.A„ KENTE. 3.A., And MGONYA. J J U CRIMINAL APPEAL NO. 193 OF 2022 MANONIISHELI......................................................... APPELLANT VERSUS THE REPUBLIC ..................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) dated the 04th day of November/ 2022 in Criminal Sessions Case No. 31 of 2018 JUDGMENT OF THE COURT 26th November & 10th December, 2024 KOROSSO, J.A.: On 14/10/2015, the life of Njombile Manoni, the biological mother of the appellant Manoni Isheli ended abruptly. She was murdered. The murder was occasioned during the daytime at Ngula Village, within the District and Region of Geita. The appellant was arraigned in the High Court of Tanzania sitting at Geita, charged with the murder of Njombile Manoni, contrary to sections 196 and 197 of the Penal Code, Cap 16. The appellant denied the charges, evidence was produced for both sides, and the case

ended with the appellant being convicted as charged and sentenced to death by hanging. In convicting the appellant, the trial Judge relied on the evidence of the Isheli Barabara @Kashike (exhibit PI) admitted under section 34B (1) of the Law of Evidence Act, Cap 6 (Evidence Act), the appellant's cautioned statement (exhibit P2), the evidence of E.1895 D/Sgt Said (PW2) who recorded exhibits PI and P2, and the evidence of Dr. Christopher Yohana Matola (PW1), the medical doctor who examined Njombile Manoni's deceased body. To be noted is the fact that exhibit PI is a narration of what Isheli Barabara @ Kashike, husband to the deceased and father of the appellant heard and witnessed during and immediately after the murder of his wife. According to PW2, upon the report of the murder of Njombile Manoni reaching the police station, accompanied by other police officers, he went to the scene and found the body of the deceased lying on the bed with a big cut wound on the back of the head. On his part, when on 15/10/2015 PW1 was requested by the Police officers to conduct a post-mortem on the body at Geita Hospital, on arrival there he saw the body of an adult woman aged between 80 and 90 years old, who was identified by the deceased's husband Isheli Barabara and relatives who were present. Upon

examining her, he observed that she was dead with a big cut wound on the back side of the head caused by a sharp object and he determined that her death was caused by excessive bleeding. Upon considering the prosecution evidence, the trial judge held that the identification of the appellant by Isheli Barabara was watertight and reliable as he knew the assailants, including the appellant, whom he met coming from the house where he resided with his wife. The trial Judge considered the fact that exhibit PI revealed that, at the time Isheli Barabara met the assailants it was broad daylight and he had mentioned their names at the earliest opportunity. Furthermore, the trial judge was of the view that exhibit P2 was very detailed on what transpired at the crime scene and that it was only the appellant who could have provided such exhaustive information. The trial Judge rejected the appellant's defence of alibi, finding it improbable upon weighing it with his confession and exhibit PI on the evidence of identification of assailants. According to the trial Judge, the contents of exhibit P2 which he termed to be lies by the appellant are minor issues that further advanced the prosecution case and concluded that the cautioned statement was procured voluntarily and the incident details therein were nothing but the truth. In addition, the trial Judge was

of the view that the contents of the cautioned statement were corroborated by exhibit PI. As stated earlier, the trial court convicted the appellant for the offence charged. Aggrieved, on 6/7/2022, the appellant lodged a memorandum of appeal loaded with seven grounds which were supplemented by six more grounds filed on 19/11/2022 through his counsel. When the appeal came for hearing before us, Mr. Mashaka Fadhili Tuguta, learned advocate, who entered appearance for the appellant, before the hearing of the appeal commenced in earnest, with the consent of the Court, he abandoned the memorandum of appeal filed by the appellant on 6/7/2022 and prayed that it be substituted with the one filed on 19/11/2024. It suffices that the filed grounds essentially advance the following four grievances that fault the trial court for; One, conducting Criminal Case No. 31 of 2018 that emanated from improperly conducted and null committal proceedings. Two, relying on the statement of Isheli Barnaba @Kashike (exhibit PI), improperly admitted in evidence in contravention of section 34B(2) of the CPA. In addition, it was not read aloud in court upon being admitted. Three, relying on the appellant's confessional statement (exhibit P2) wrongly procured in contravention of

sections 57 and 58 of the CPA, and four, failure of the prosecution to prove the case beyond reasonable doubt. When accorded the opportunity to amplify the grounds of appeal, the appellant's counsel began by abandoning grievance number one for the reason that pursuing it would not advance the appellant's cause. Regarding the second grievance, Mr. Tuguta, argued that considering all the factors in the instant case, it was wrong for the trial court to rely on exhibit PI to convict the appellant for the offence charged for two reasons; one, it was unclear whether the person whose statement was recorded and admitted as exhibit PI was the father of the appellant and the husband of the deceased since his name kept changing as it sometimes appeared as Isheli Barnaba @ Kashike or Isheli Barabara or Isheli Barabara Kashike and thus his proper name remained unproven. Furthermore, the appellant has maintained that his father is alive and thus he could have been called to testify without the necessity to admit his statement under section 34B (1) of the CPA. Second, the propriety of its admissibility into evidence. The learned counsel for the appellant argued further that the propriety of admitting exhibit PI was also an issue of contention. According to him, there is no evidence that the prosecution side served

the appellant or his counsel a notice of their intention to tender the statement of Isheli Barabara @Kashike in terms of section 34B (2) of the Evidence Act as can be discerned when the alleged notice found at page 45 of the record of appeal is reviewed. He argued that even if for the sake of argument it be taken that the appellant was served the notice on the day it was filed, still, when the number of days from the said date of filing to the date the said statement was tendered and admitted into evidence it is plainly, less than the required ten days' notice stipulated by the law. He cited the case of Magige Marwa Mwita and 2 Others v. Republic, (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (28 October 2024) TANZLII to buttress his stance. Mr. Tuguta thus implored us to find that exhibit PI was admitted irregularly and therefore, wrongly relied upon by the trial court to convict the appellant He urged the Court to expunge exhibit PI from the record. Amplifying the third grievance on the propriety of admitting exhibit P2, he contended that it was procured in contravention of sections 57 and 58 of the CPA and should thus be expunged. He argued that since there was no question that the appellant knew how to read and write it was inappropriate for PW2 who recorded the cautioned statement of the appellant not to allow him to write the statement and read it on his own and that, in the process his rights stipulated by sections 57 and 58 of the 6

CPA were denied. To reinforce his argument, he referred the Court to the decision of the Court in Petro Sule and 3 Others v. Republic, (Criminal Appeal No. 475 of 2020) [2023] TZCA 17777 (25 October 2023) TANZLII and beseeched us to find that the trial court erred in relying on exhibit P2 to convict the appellant Concluding his submission, the learned counsel for the appellant submitted that the prosecution case is tainted with anomalies and if the court were to expunge exhibits PI and P2 as prayed, the remaining evidence would be too weak to sustain the appellant's conviction. He thus urged us to find that the case against the appellant was unproven to the standard required. Then, find the appeal meritorious and allow it, quash the appellant's conviction, and set aside the sentence to pave the way for his release from custody. On the part of the respondent-Republic, represented by Mr. Robert Magige, learned Senior State Attorney, objected to the appeal and advanced his support for the conviction and sentence of the appellant for the offence charged. Responding to the second grievance on the propriety of admissibility of exhibit PI and the trial court's reliance on it when convicting the appellant, the learned Senior State Attorney argued that it was properly admitted under section 34B (2) of the Evidence Act.

According to Mr. Magige, the case cited by the learned counsel for the appellant on this issue, Petro Sule and 3 Others (supra) is distinguishable as in that case, one of the issues of contention was the fact that the statement of a witness tendered under section 34B (2) of the Evidence Act, was not part of the committal proceedings, which is not the case in the instant case. Whilst Mr. Magige conceded the fact that in the present case, the required ten days1 notice of intention to tender exhibit PI was not complied with, he rationalized that, the fact that its admissibility was not objected to by the appellant conjectures that non-compliance of the time required to serve such a notice was not an issue for the appellant. Concerning the complaint of inconsistency and uncertainty in the name of the person whose statement is exhibit PI, he urged us to find the discrepancy minor as obviously, it arises from typographical errors since even the appellant's testimony shows that he referred to his father as Isheli Barabara, the name found in exhibit PI and that it did not go to the root of the matter in question. On assertions by the appellant, that his father, Isheli Barabara was alive and thus if exhibit PI was his statement then he should have been called to testify, and his statement should not have been tendered and

admitted under section 34B(2) of the Evidence Act, Mr. Magige urged us to find the assertion to be an afterthought since at page 116 of the record of appeal when cross-examined by the prosecuting attorney, the appellant had referred to his father, as the late, thus expressing his awareness of his father's death. He also stated that exhibit PI (his father's statement) was recorded on 14/10/2015. Therefore, the appellant's denial of such knowledge should be unheeded. He implored us to find that the trial court did not err when it relied on exhibit PI when convicting the appellant since it was properly recorded and admitted. Confronting grievance number three, the learned Senior State Attorney objected to the assertions by the learned counsel for the appellant that exhibit P2 was irregularly admitted as it was recorded in contravention of sections 57 and 58 of the CPA. He stated that the record of appeal reveals that on page 66, PW2 expounds reasons for recording under section 58(4) of the CPA and that in any case upon recording the cautioned statement, in line with section 148 of the CPA, PW2 gave it to the appellant for him to read, which he did and thereafter certified that its contents reflected what he had stated. On that account, Mr. Magige argued, the propriety of the trial judge to rely on it when convicting the appellant should not be questioned. Addressing the concern on the clarity of the time the cautioned statement was recorded as the time of the

appellant's arrest is ambiguous, the learned Senior State Attorney conceded that there was no clarity on the time the appellant was arrested and he refrained from discussing the import of that anomaly, praying that the Court determine the import and consequences of such infraction. The learned Senior State Attorney implored us to find that the prosecution case against the appellant was proved to the standard required, taking into account what he had submitted on the reliability of exhibits PI and P2, together with the fact that the eye witness of the incident expounded in exhibit PI, how he reported the incidence and the name of the appellant as one of the culprits immediately after some neighbors heeded to his call of alarm, which essentially gives credence to his evidence, citing the case of Christopher s/o Ally v. Republic (Criminal Appeal No. 510 of 2017) [2020] TZCA 321 (11 June 2020) TANZLII to reinforce his stand. Mr. Magige thus urged us to find the case against the appellant to be proven and that grievance number four to be without merit and dismiss the appeal. Mr. Tuguta's rejoinder was brief. He reiterated the fact that the case he cited during his submission in chief supported his assertions and that the Court should be guided by the principles therein. He emphasized the fact that the recording of exhibit P2 contravened sections 57 and 58 of

the CPA since upon PW2's finding out that the appellant knew how to read and write, he should have recorded the appellant's statement according to the provisions of the said sections and not otherwise. He urged us to also find that there was a contradiction in whose statement exhibit PI related since different names were provided for the said witness who allegedly witnessed what transpired at the incident. He concluded by reiterating his prayers expounded in his submission in chief. Having gone through the record of appeal, cited authorities and considered the oral submissions from the learned counsel for the appellant and the learned Senior State Attorney, we are minded that this being a first appeal, it is a form of re-hearing, the Court has to subject the entire evidence on record to a fresh re-evaluation and come to its own conclusions. This principle has been reiterated in various decisions of this Court such as; Phlipo Joseph Lukonde vs Faraji Ally Saidi (Civil Appeal No. 74 of 2019) [2020] 7ZCA1779 (21 September 2020) TANZLII and Ester Jofrey Lyimo vs Republic (Criminal Appeal No. 123 of 2020) [2022] TZCA 197 (14 April 2022) TANZLII. Concerning grievance number two and three, we agree with the learned counsel for the appellant that apart from infractions in the recording of the cautioned statement, exhibit P2, there were irregularities li

in the admission of exhibits PI and P2. We agree with the learned Senior State Attorney that the inconsistencies in the name of the witness whose statement is exhibit PI (Isheli Barbara @Kashike) are more or less typographical and minor since even the evidence of the appellant does not challenge the fact that he was his father and the husband of the deceased. Suffice it to say that for a statement to be admitted under section 34B(2) of the Evidence Act, there are six conditions to be fulfilled; One, the maker of the statement cannot be procured without delay. Two, the statement is signed by the maker. Three, the statement contains a declaration that the same is true and is liable to be prosecuted if found untrue. Four, its copy is served to each of the parties to the proceedings before the hearing. Five, if none of the parties, within ten days from the service with the copy of the statement, serves notice on the party proposing or objecting to the statement being tendered in evidence, and six, where the statement is made by a person who cannot read it, it is read to him before he signs and is accompanied by a declaration by the person who read it to the effect that it was so read. The Court has reiterated the fact that the above laid down conditions in paragraphs (a) to (f) of subsection 2 of section 34B of the

Evidence Act are cumulative and must be met for a witness statement to be admitted under section 34B (1) and (2) of the Evidence Act (see, Joseph Shabani Mohamed Bay & Others vs Republic (Criminal Appeal No. 399 of 2015) [2017] TZCA 178 (3 March 2017) TANZLII, Shilinde Bulaya v. Republic, Criminal Appeal No. 185 of 2013 and Twaha Ali and 5 Others v. Republic, Criminal Appeal No. 78 of 2004 (both unreported). Notwithstanding the above, we are of the view that the admissibility of exhibit PI, found on page 142 of the record of appeal leaves a lot to be desired as only three of the six conditions underscored were fulfilled and thus, had the trial Judge considered this fact he would not have concluded that section 34B (2) of the Evidence Act was complied with. Indeed, the concern raised by the learned counsel for the appellant that there is no evidence that Isheli Barabara @Kashike was unavailable to testify to move the prosecution to tender exhibit PI is not supported by evidence. Assertions that Isheli Barabara @ Kashike is not dead as testified by PW2 is negated by the evidence on record on page 116 of the record of appeal where the appellant himself is recorded to have referred to him as his late father; stating that, "... I was in love and affection with my father the late Isheli Barabara..."

A perusal of exhibit PI reveals a signature and a thumbprint which according to PW2 belonged to the maker of the statement. The concern on whether a copy of the statement of Isheli Barabara @Kashike was served to the appellant before being tendered should also not detain us, because, on page 45 of the record of appeal, there is a notice of intention to tender the witness statement of Isheli Barnaba @Kashike whom it states is dead, and reveals that a copy of the said statement is attached. In the absence of any objection from the appellant's side on the assertion of the death of Isheli Barabara when the said statement was tendered in court, an inference can be drawn that the appellant was privy to a copy and even if he was not, he was not in any way prejudiced. As shown above, it was only the three conditions above which were met. We have revisited exhibit PI and are satisfied that the third, fifth and sixth conditions of section 34B (2) of the Evidence Act were not realized. The statement has no declaration that the contents therein are true and the maker is liable to be prosecuted if untrue; in the absence of any evidence to prove that the notice of intention to tender Isheli Barabara @Kashike's statement was served to the appellant within ten days of being tendered as alluded by the learned counsel for the appellant and conceded by the learned Senior State Attorney means conditions three and five remain unmet. Condition six is also not fulfilled because there is

no declaration by PW2 of having read the statement to the witness after recording it. Essentially, because of the shortfalls exposed in exhibit PI stated above, we agree with the learned counsel for the appellant that it was wrongly admitted in evidence. We thus proceed to expunge it from the record. Concerning whether or not the cautioned statement (exhibit P2) was properly recorded and admitted into evidence found in grievance number three, our starting point is whether it was proper to record it under section 58 of the CPA under the circumstances. It should be noted that the cautioned statement was retracted and thereafter, admitted after an inquiry into its admissibility was conducted. It was an exhibit relied upon by the trial court to convict the appellant finding it to be detailed and thus truthful. The trial court sought corroboration and found it in the contents of exhibit PI, an issue we shall discuss iater herein. Plainly, exhibit P2 was recorded under section 58 of the CPA as discerned from the exhibit itself and the testimony of PW2 at pages 144, 66 and 108 respectively. At the end of the statement, it states: "UTHIBI7ISHO: Mfmi MANONI ISHELI nathibitisha kuwa haya ndiyo maelezo yangu ambayo nimesoma na kuona kuwa ni sahihi. Saini Manoni Isheli"

Thereafter follows the certification by PW2 of having correctly and honestly recorded the statement of the appellant under section 58 of the law on 18/10/2015. This being what is on record, we are of the view that the argument by the learned counsel for the appellant that it was improper for PW2 to allow the appellant to write and read on his own is misconceived, since, while in his testimony on page 112 of the record of appeal, he alluded that he didn't know how to read and write, at pagell5 of the record, when being cross-examined by the prosecuting attorney, the appellant admitted knowing how to read and write saying; "...I wrote myselfon the committalproceedings. I know how to write my name; I wrote my name on the committalproceeding on 19/4/2018..." Therefore, in essence, as held by the trial Judge, there was nothing irregular in the recording of the cautioned statement, as section 58 of the CPA which provides for the rights of a person who is under restraint knows how to read and write, was complied with. We thus reject the invitation by the learned counsel for the appellant to expunge exhibit P2. In light of the above, having expunged exhibit PI, the issue that remains for our determination is whether the prosecution case against the appellant was proved to the standard required, which is, grievance 16

number four. When convicting the appellant, the trial judge upon warning himself of the dangers of convicting the appellant on a retracted confession, the trial court found there was corroboration of material facts from the contents of exhibit PI. We ask ourselves, in light of the fact there is no longer exhibit PI, having been expunged, can the evidence of exhibit P2 stand on its own? We think not. We are of the said view because although the trial court found that the contents of the confession were truthful, it also had some misgivings on the same and hence sought corroboration. Certainly, corroboration is not to give validity or credence to evidence that is defective, suspect or incredible but only to confirm or support that which is sufficient, satisfactory, and credible as expounded in the case of Aziz Abdallah v. Republic [1991] T.L.R. 71 and Joseph Mkubwa and Another v. Republic, Criminal Appeal No. 94 of 2007 (unreported). In the instant case, in the absence of any other independent evidence alluding to the appellant's involvement in the commission of the offence charged, we refrain from finding a conviction of the appellant relying only on exhibitP2, the retracted confession whose content we cannot say was all truthful. We are thus of the view that in the circumstances, the prosecution failed to prove the case beyond reasonable doubt.

In the event, we allow the appeal. The conviction is quashed and sentence meted to the appellant is set aside. The appellant is to be released from custody forthwith unless he is otherwise lawfully held. DATED at MWANZA this 6t hday of December, 2024. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Deogratius R. Rumanyika, learned State Attorney for the respondent/Republic and also took brief for Mr. Mashaka Tuguta, learned Counsel for hereby certified a true copy of the original. . L. KALEGEYA __ UTY REGISTRAR ^ tO U R T OF APPEAL"