Thomas Elias vs Republic (Criminal Appeal No. 280 of 2021) [2024] TZCA 1226 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO, J.A., KENTE, J.A. And MGONYA, J.A.l CRIMINAL APPEAL NO. 280 OF 2021 THOMAS ELIAS ................................ ..................................APPELLANT VERSUS THE REPUBLIC .................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Geita) dated the 25th day of March, 2021 in Criminal Session Case No. 133 of 2016 JUDGMENT OF THE COURT 25th Nov. & 10th Dec. 2024 MGONYA, J.A,: The appellant, THOMAS ELIAS was condemned to death by the High Court of Tanzania sitting at Geita (Rumanyika, J.). He is aggrieved and presently seeks to impugn both the conviction and sentence. A brief recapitulation of evidence is necessary at this stage, in order to appreciate fully the context of the appeal. It is alleged that, on 16th July, 2014, during night hours, the polygamist deceased one HOJA s/o NGUNGUHU, was asleep with his younger wife one Magale s/o Sebaganga. Two thugs invaded their house and demanded money. In

the course of the fracas, the deceased was hit by a stone on his head and fell unconscious. The said thugs took his wife out of the house and pulled her into bushes and ravished her. Later, the wife was released whereupon she screamed for help. The deceased who was still alive, was taken to hospital, but died on the way. An autopsy of the deceased's body was conducted by Doctor Christopher Yohana Matola (PW4) who pronounced the deceased's death was due to cerebral laceration from a tempered bone. Upon investigation, the appellant was arrested and later arraigned in the High Court in Geita charged with the offence of Murder where the trial was conducted to finality ending with the appellant's conviction. At the hearing before us, the appellant was represented by M r. Alex Richard Lwoga, learned Advocate, whereas the respondent Republic had the services of Mr. Robert Magige, learned Senior State Attorney (SSA). In support of the appeal, Mr. Lwoga prayed to substitute the earlier advanced Memorandum of Appeal which had eight grounds filed by the appellant with the Supplementary Memorandum of Appeal proposed and prepared by him with four grounds of grievance. The said grounds are to the effect that: "(1) That the appellants cautioned statement was recorded beyond the statutory prescribed time limit f

o f four hours contrary to mandatory provision o f section 50(1) (a) of the Criminai Procedure Act (Cap, 20 R. E 2019). The accused was arrested on ISP July 2014 and his statement was recorded on 2(fh Juiy 2014; (2) That, there was fundamental contradiction between a cautioned statement and extra Judicial statement; (3) That, the appellant was never identified, and (4) That, the prosecution side failed to prove the offence beyond all reasonable doubt% Addressing us on the 1 s t ground, M r. Lwoga challenged the cautioned statement alleged to have been recorded from the appellant stating that the same does not show when the appellant was arrested. Instead, he was straight away interrogated and his statement recorded. He said, due to the said omission, there is no any evidence that his statement was recorded within four hours of his arrest as prescribed by law. In the event, it was the learned counsel's concern that there was contravention of section 50 (1) of the Criminal Procedure Act, (the CPA) which prejudiced the appellant. He thus prayed the Court to expunge the appellant's cautioned statement (Exh. P4) from the record.

Submitting on the second ground, that there were fundamental contradictions in the appellant's cautioned statement and in the extra judicial statement, the learned counsel emphasized that the contents of the two documents do not correspond, despite being a narration of one incident recorded from the same person. Mr. Lwoga averred that; the said contradictions are so fundamental which makes the documents doubtful. Concluding, the learned advocate contended that, the documents were wrongly admitted in evidence and wrongly relied on by the learned trial Judge to justify the appellant's conviction. Elaborating further, the learned counsel pointed out some few anomalies saying, in the appellant's cautioned statement, he mentioned Juma being his accomplice who however was never brought before the court to testify. Further, the deceased's name was not mentioned at all. Reverting to the appellant's extra judicial statement, he said, the appellant did not say anything connecting him to the charge before the trial court. From the above narration, it was the learned counsel's conviction that, the two documents deserve to be expunged from the record. Submitting on the third ground of appeal, Mr. Lwoga is blaming the court for convicting and sentencing the appellant despite the appellant not being identified. The learned counsel submitted that, the evidence

against the appellant was merely circumstantial and that it was of a quality that could not reasonably lead to conviction of the appellant The learned counsel referred us to PWl's testimony who said she was not able to identify any culprit as it was dark. Therefore, it was the counsel's concern that, as the appellant was not identified, the learned Judge's conviction was an erroneous. Concluding with the fourth ground, that the prosecution failed to prove the case beyond reasonable doubt, the learned counsel reiterated all the above legal shortfalls during trial and prayed the Court to allow the appeal on those grounds. On behalf of the Republic, Mr. Magige, the learned SSA, resisted the appellant's appeal. Responding to Mr. Lwoga's submission, he said, despite the fact that the case is based on circumstantial evidence, it was M r. Magige's assertion that, the appellant confessed through his cautioned and extra judicial statements. Insisting that there is no contradiction in the two documents, the learned SSA articulated that, in both documents, the appellant repeatedly revealed that PW1 was raped by invaders, the fact which was similarly testified by PW1 herself, the deceased's wife. He thus prayed the Court to dismiss the appeal for being unmerited.

In rejoinder, Mr. Lwoga repeated what he had submitted in chief, reiterating his prayer to have the appeal allowed. Having heard the rival submissions from both learned counsel and going through the record of appeal, we now turn to determine the merit or otherwise of the appeal. We are grateful to both learned counsel for their assistance to the Court through their respective submissions. As rightly stated by M r. Lwoga, the case at hand is purely based on circumstantial evidence as no one witnessed the deceased's killing. In determining the grounds of appeal, we shall start with the first ground that the appellant's cautioned statement was recorded beyond the four hours period prescribed under the law, counting from the time of arrest, contrary to section 50 (1) of the CPA. The law is very clear under section 50 (1) of the CPA that the basic period available for interviewing a person is a period of four hours commencing from the time when he was taken under restraint in respect of the offence. Therefore, since it is not disputed that the appellant's cautioned statement is alleged to have been recorded beyond the prescribed period, and in the absence of any explanation or the delay by prosecution, there is an inference that the statement was involuntary

recorded. See the case of Janta Joseph Komba and 3 Others v. Republic, Criminal Appeal No. 95 of 2006, and Salim Petro Ngalawa v. Republic, Criminal Appeal No. 85 of 2004, (both unreported). Having examined the appellant's cautioned statement attentively, there is nowhere in the said document where the time of appellant's arrest is stated so as to determine whether the said statement was recorded within four hours. Referring to the said cautioned statement (Exhibit P4), the police officer recorded the appellant's cautioned statement at Katoro Police Station on 20/07/2014 from 08:00 hrs. to 09:17 hrs. Thereafter, the recording proceeded with the appellant's historical background without stating the place, date and time of his arrest. We have noted in this case that, prosecution had only four witnesses. The deceased's wife, Magale s/o Sebaganga (PW1), Simon Wilson, the Magistrate who recorded the appellant's extra judicial statement (PW2), E. 8779 D/Cpl. Edmundi, the Police Officer who recorded the appellant's cautioned statement (PW3) and the doctor Christopher Yohana Matola who conducted an autopsy on the deceased's body, (PW4). It is inexplicable that, there was no any witness be it a police officer who arrested the appellant or the case investigator who

was brought before the court to testify as to when and where the appellant was arrested. Under the circumstances, the appellant deserves to benefit from this legal shortfall by holding that, indeed, the appellant's cautioned statement was procured illegally contrary to section 50(1) of the CPA. We therefore proceed to expunge Exh. P4, being the appellant's cautioned statement from the record. As for the second ground, the appellant is faulting the trial court that, there were fundamental contradictions between the contents of the appellant's cautioned statement and extra judicial statement. As we have just expunged the appellant's cautioned statement, we see no need to labor in determining this ground in comparison to the expunged cautioned statement as we are remained only with the appellant's extra judicial statement. In the event therefore, the nagging question is whether or not, the extra judicial statement in question was recorded in accordance with the Chief Justice's Instructions as contained in "the Guide for Justices o f Peace" which was issued by the Chief Justice pursuant to section 56 (2) of the now repealed Magistrates Courts Act, 1963 Cap 537. The said section 56(2) is in pari materia with section 62 (2) of the Magistrates1 Court Act Cap. 11 R.E. 2019 commonly known by its acronym as the MCA. The Guide by the Chief

Justice (herein to be referred as "the Guidelines"), became operational on 1 s t July, 1964 and, after the repealing of the MCA 1963, the Guide was saved by section 72 (3) of the current MCA which provides: "Any applicable regulation made under the Magistrates1Court Act, 1963 and in force prior to the date upon which this Act comes into operation shall remain in force as if they have been made under this Act until such time as they are amended or revoked by rules made under this Act" It follows therefore that, pursuant to the saving section, the Guidelines are part and parcel of our laws and has to be strictly observed by all Magistrates and Justices of the Peace. In the case of Petro Teopher v. The Republic, Criminal Appeal No. 58 of 2012 (unreported), when elaborating the Chief Justice's Guidelines to Justices of Peace, quoting the case of Japhet Thadei Msigwa v. Republic (Criminal Appeal 337 of 2008) [2011] TZCA 108 (1 July 2011; TANZLII), the Court observed: "5(9, when Justices o f Peace are recording confessions o f persons in the custody o f the police, they must follow the Chief Justice's Instructions to the letter. The section is couched in mandatory terms"

The Court went on to state: "The Justice o f the Peace ought to observe, inter alia, the following: i. The time and date o f his arrest; ii. The place he was arrested; iii. The place he slept before the date he was brought to him; iv. Whether any person by threat or promise or violence he has persuaded him to give the statement; v. Whether he really wishes to make the statement on his own free will, and vi. That if he makes a statement, the same may be used as evidence against him ." Stating the logic behind the requirement to adhere to the Guidelines, the Court observed that: "We think we need to observe the Chief Justice's instructions are two-fold\ One, if the suspect decided to give such statement, he should be aware o f the implications involved\ Two, it will enable the trial court to know the surrounding circumstances under which the statement was

taken and decide whether or not it was given voluntarily." In this appeal, eyeing to the appellant's extra judicial statement meticulously, we have noted that, when the Justice of Peace was recording the appellant's extra judicial statement, he did not adhere to the requirement in item (i) of the Guidelines by not recording the time and date of the appellant's arrest. Referring to the decision of Japhet Thadei Msigwa v. Republic (Supra), we hold that adherence to the conditions in the Guidelines is mandatory, whereby a Justice of Peace is obliged to make sure that, all steps enumerated in the Guidelines are strictly adhered to, and non-compliance of the same will render the statement not to have been recorded voluntarily. Basing on the above stated general significance of the Guidelines, it is our firm conviction that the importance of abiding with the requirements in the Guidelines, cannot be overemphasized. In this case, the Justice's of Peace's failure to record the time and date of the appellant's arrest, raise suspicions regarding to the appellant's surrounding circumstances during his arrest and before he was taken to the Justice of Peace to confession. The irregularity renders the statement recording highly suspicious as we cannot ascertain if the appellant was a free agent when it was recorded.

Looking at the extra judicial statement in question, we have noted that in the entire statement, the appellant confessed to have been involved in the offence only in one paragraph. The rest of the contents in the entire statement are crimes alleged to have been committed by the appellant in many other different events not related to the offence at hand. For ease of reference, the said relevant paragraph reads as herein below: "Tukio jingine ni la KIZIBA. AHyeuwawa jina simjui. Yeye tufimkuta kwake ameiala. Tukavunja mlango na kuanza kudai pesa za mpunga lakini kusudi fetu hafikuwa pesa . Baada ya kumaliza tukamtoa mke wake nje na kuanza kumbaka, Ha mimi sikuhusika na sua/a la kubaka. Kwenye tuklo hilo, nllikuwepo mimi, Emmanuel Misungwi, wa tatu slkumjua kwa sababu tullkuwa tumekutana siku hiyo tu. Ha Emmanuel alinlambla allkuwa analshl Runzewe" From the above excerpt, we have noted that, it seems the Justice of Peace who was recording the appellant's confession, gave the appellant a wide range to confess to many other incidents apart from the one for which he was brought to confess. In the case of Jumanne Lubela @ Sanane & Mnene Mhuyungu @ Pius Robert v. The Republic, Criminal Appeal No. 07 of 2022, it was stated that:

"For a statement to amount to a confession, settled position is that, it must be self- incriminating in that it must constitute admissions o f all elements o f the offence charged by an accused person out o f which a conviction may be grounded " To put it right as to what constitutes a confession, we find ourselves highly persuaded by the definition we find in the holding by the High Court in the case of Mkareh v. R [1971] HCD No. 74 that: - "It is my view that a statement should be regarded a confession only when it contains an admission o f all the ingredients o f the crime with which the accused is charged so that an accused person could be properly convicted on his own plea had he in answer to the charge made the statement which is alleged to be confession...We think the true test is whether the statement is such that in the absence o f any explanation or qualification and in the particular circumstances, it points clearly to the guilt o f the maker..." While we acknowledge the fact that there cannot be a standard form of a confessional statement by a criminal suspect before a Justice of Peace, we are of the settled opinion that, apart from all the essential elements of the offence, such a statement must be comprehensive,

containing the necessary information and details related to the charged offence such as the name of the place where the offence was committed, the date and time it was committed, against who (if the criminal suspect can name or describe the victim) and in the context of the present case, the items or property stolen, to mention but a few. Upon a plain reading of the above quoted paragraph from the statement in issue, we are of the view that, the appellant's extra-judicial statement when read within the context of a confession in a criminal trial, cannot support a conviction under the circumstances. For, it is apparent that it did not reflect the anatomy of the charged offence as particularised in the information. Having gone through Exh. P2 and analysed the same as seen above, we entertain no doubt whatsoever that, by any standards, it did not satisfy the requirements of the law. Obviously, it disclosed neither the time and date the appellant was arrested contrary to the Guidelines and the essential element of the offence charged, addressing various offences committed broadly. It is upon the above short comings that we find that it was wanting. From the above defects, we have come to the conclusion that: One, that in recording the statement of the appellant, PW2 did not

follow the Chief Justice's instructions as required by law; and two, the said statement was not a confession in the eyes of the law. In the event, we therefore find Exh. P3 to have been recorded contrary to the dictates of the law, and we accordingly expunge it from the record. Thus, the second ground has merit. The fourth ground is that the appellant was not identified during the commission of the offence. As the identification was not an issue during the trial, neither the base of the appellant's conviction, this ground will not consume our time and energy. From the same it is our conclusion that this ground has been misplaced, hence, baseless. The last ground is on whether the prosecution case was proved beyond reasonable doubt. According to PW4's testimony, it is an undisputed fact that the deceased in this case died, and his death was unnatural. The only contentious issue remained is who killed the deceased. After expunging both the appellant's cautioned and extra judicial statements, of which were relied on the appellant's conviction, we remain with no evidence to support the appellant's conviction. In the event therefore, in the absence of any other tangible evidence to support the appellant's conviction, it is our firm view that the case was not proved beyond reaspnable doubt. That being the case,

the appeal is found to have merit and is accordingly allowed. We are therefore constrained to quash the conviction and set aside the sentence meted to the appellant. Having done so, we order for the appellant's immediate release from prison unless he is otherwise lawfully held for some other cause. DATED at MWANZA this 6thday 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 M r. Deogratius R. Rumanyika, learned State Attorney for the respondent/Republic and also took brief for Mr. Alex Lwoga, learned Counsel is hereby certified a true copy of the original.