Nicholaus Paul vs Republic (Criminal Appeal No. 279 of 2021) [2024] TZCA 1212 (5 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO. J.A.. KENTE. 3.A. And MGONYA. J.A .^ 1 CRIMINAL APPEAL NO. 279 OF 2021 NICHOLAUS PAUL.................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Geita) (Rumanvika, J.^ dated 19th day of March, 2021 in Criminal Session Case No. 132 of 2016 JUDGMENT OF THE COURT 25th Nov & 5th Dec, 2024 KENTE, JA.: The appellant Nicholaus Paulo was convicted for murder by the High Court of Tanzania, sitting at Geita in Criminal Session Case No. 132 of 2016. It was alleged that, at about 9.00 p.m, on 30th December, 2013 at Nyambogo "B" Area in Makuruvi village within the District of Chato in Geita Region, the appellant together with one Sabina Sasia (not a party to this appeal), murdered Madeni Lusuga @ Etongo. Upon conviction, the appellant was sentenced to death. His co-accused was cleared of the charges and subsequently acquitted for lack of evidence. Two witnesses appeared and testified for the prosecution. These were No. F. 3766 Corporal Taifa (PW1) and No. E4119 Detective

Sergeant Steven (PW2). PW1 testified in brief, that, he arrested the appellant who was at the time demanding to be paid TZS 2,000,000.00 being the outstanding balance of the consideration for murdering the late Madeni Lusuga and recorded his statement. In the said statement, the appellant allegedly confessed to have committed the offence of which he was convicted. For the reasons that will soon become apparent, we will not delve any deeper into the testimony of each of the two prosecution witnesses. We note that, when PW1 sought to introduce into evidence the appellant's cautioned statement (Exhibit P3) which was central to his conviction, its admission was strongly objected to by Mr. Paul Mwanzalima and Ms. Flora John who were respectively the first and second accuseds' defence counsel. We find it pertinent to mention here for purposes of clarity that, before the trial court, the present appellant was the second accused, and, as already stated, he was then represented by Ms. John learned Advocate. The defence counsel's objection to the admissibility of the appellant's cautioned statement as appearing on page 32 of the record of appeal, was made on the premise that, the said statement was recorded beyond the period of four hours after the appellant was taken into restraint in connection with the charged offence and that, the

statement was involuntarily made as, according to the appellant's counsel, the appellant was not a free agent. In response, Mr. Hezron Mwasimba a learned State Attorney appearing for the respondent, Republic maintained that, there was no substance in the two-pronged objection taken by the defence counsel. In a clear indication that Mr. Mwasimba had missed the point of the argument raised by the defence counsel, he submitted casually and very briefly that, PW1 did not mention the exact time he started recording the appellant's statement and that the law did not bar PW1 from procuring another person to witness the making of the statement by the appellant. The learned State Attorney also contended rather inadvertently that, the law allowed PW1 who was the arresting officer to interview the appellant and record his statement. After hearing the learned counsel on the admissibility or otherwise of the appellant's cautioned statement, the learned trial Judge rendered his decision as follows:- "Order: Preliminary objection overruled. Reasons to be incorporated in the ruling on case to answer or judgment whichever comes later. Copy o f the 2n d accused's cautioned statement admitted as Exhibit "P3". That's all."

However, the above commitment by the learned trial Judge was inadvertently reneged upon and the objection consigned into oblivion. Instead, the trial Judge went on ruling that the appellant had a case to answer and, after hearing him in defence, he proceeded to convict him without reverting to the objection raised by the defence counsel and assigning reasons to his decision to overrule it. Looking at the evidence in totality, the learned trial Judge found that, indeed the appellant had confessed to have been involved in the unlawful killing of the deceased. He therefore concluded that there was sufficient evidence which showed that the appellant was guilty of murder of the deceased. The appellant was accordingly convicted and sentenced to death as earlier indicated. Before us, the appellant through his learned counsel Mr. Deocles Rutahindurwa, has advanced three grounds of appeal, two of which are closely related. In the first ground, it is contended that the learned Judge erred both in fact and in law when he convicted the appellant basing on the wrongly procured and admitted cautioned statement. In the second ground which equally attacks the appellant's confessional statement, it is contended that, the appellant was denied a fair trial because, not only that his alleged confessional statement was not read over to him after it was admitted in evidence but also the ruling by the trial court that a prima facie case had been made out against him for 4

which he was required to enter his defence, did not disclose the nature of the evidence which was contained in his statement which implicated him in the charged offence. Finally, as a general complaint, it is contended in the third ground of appeal that, the case against the appellant was not proved to the required threshold to warrant a conviction. For the reasons which will soon become apparent, in so far as this appeal is concerned, we will deal with ground one which essentially faults the trial Judge for basing the appellant's conviction on the cautioned statement which according to the appellant, was wrongly procured and irregularly admitted in evidence. In arguing, the two grounds which, as already pointed out, are closely related, Mr. Rutahindurwa submitted that, the learned trial Judge strayed into error when he overruled capriciously the objection raised by the defence counsel and went on admitting in evidence the appellant's cautioned statement without conducting a trial within trial to determine among other things, if it was voluntarily made. The case of Paulo Maduka and Four Others vs. Republic, Criminal Appeal No. 110 of 2007 [2009], TANZLII was cited to underscore the long established position of the law that, where any objection is taken by the accused person or his counsel against the admissibility of a confessional statement on the grounds that it was not voluntarily made or that it was 5

not made at all, the trial court must conduct an inquiry or a trial within trial as the case may be to determine the making or the voluntariness such a statement. Mr. Rutahindurwa strongly criticized the learned trial Judge for not conducting a trial within trial to determine the voluntariness of the appellant's cautioned statement and, as a result of the above misapprehension of the law, accepting and relying on it to find the appellant guilty as charged. For this reason, the learned counsel implored us to discount the wrongly admitted statement and further submitted that, as the matters stand, in the absence of the evidence of confession by the appellant, the charge against him could not be sustained as there was no other evidence linking him to the commission of the offence. The second point that counsel for the appellant raised is that, upon admission, the impugned statement was not read out in court to apprise the appellant of its material contents. Counsel therefore urged us to hold, in line with our decision in the case of Anas Omari vs. Republic, Criminal Appeal No. 05 of 2022 and many others, that: "... where the nature o f a given criminal case necessitates that a relevant documentary exhibit must be read out to the accused person but for any reason the trial court fails or omits to read or

cause it to be read out and, in the consequence o f such failure, the accused is seriously prejudiced because the nature o f the evidence which was relied on by prosecution to implicate him was not brought to his knowledge, the omission by the Court will invariably operate in favour o f the accused and result in an acquittal." On his part, Mr. Magige, learned Senior State Attorney who appeared to represent the respondent, had no qualms with Mr. Rutahindurwa's focused submissions. The learned Senior State Attorney entirely subscribed to the defence counsel's argument that indeed, the appellant's cautioned statement was admitted in evidence without conducting a trial within trial to ascertain its voluntariness as required by law and that, after being admitted in evidence, the statement was not read over to the appellant to apprise him of its material contents. With regard to the way forward, likewise, Mr. Magige urged us to disregard the wrongly admitted confessional statement. He further submitted that, in the absence of the said statement, there was nothing to connect the appellant with the charged offence. In the like manner, Mr. Magige implored us to allow the appeal, quash the conviction and set aside the capital sentence meted out on the appellant. Having gone through the record, we are satisfied that there is a grain of truth in the appellant's complaint. Quite clearly, the learned trial 7

Judge strayed into error when he went on dismissing at whims the objection raised by the defence counsel and admitting the contested cautioned statement without firstly conducting a trial within trial to determine its voluntariness. Once it was shown that on being informed of his rights, the appellant through his counsel had indicated that he was opposed to the admission of his confessional statement into evidence on the ground that it was not made freely and voluntarily, it was incumbent upon the trial Judge to stay the proceedings in line with our decision in Twaha Ali and Five Others vs. Republic, Criminal Appeal No. 78 of 2004, and: "... proceed to conduct an inquiry (or a trial within trial) into the voluntariness or not o f the alleged confession." Because of the way the appellant's confessional statement was irregularly admitted in evidence, we deem it necessary to emphasize as we did in the case of Twaha Ali (supra) that, such an inquiry or trial within trial, should be conducted before the confession is admitted in evidence. In this connection, it would be pertinent to observe that, voluntariness is a condition precedent to the admissibility of a confessional statement and that, the onus to prove voluntariness once it is raised, rests on the prosecution.

With regard to the effect of the omission by the trial court to conduct an inquiry or trial within trial in the case where an objection to the admissibility of a confessional statement is raised, the Court held both in Twaha Ali and Paulo Maduka (supra) that, that is a fundamental and incurable irregularity. On this score, and as it is in the present case, the Court reasoned in Paulo Maduka that: "This is because, if the objected confession is the only crucial and/or corroborative evidence, an accused would be convicted on evidence whose source is not free of doubt or suspicion." Upon the above discourse of the law, we agree with both Mr. Rutahindurwa and Mr. Magige that, as the case against the appellant solely rested on his cautioned statement without any other evidence to implicate him, his conviction was, for all purposes and intents, unfounded. The learned trial Judge should have conducted a trial within trial and decided on the voluntariness or otherwise of the appellant's confessional statement before he went on to admit it into evidence and rely on it to found a conviction. We thus adopt our approach in our earlier decisions and accept the arguments proffered by the learned counsel. Consequently, we hold that, since no trial within trial was conducted to decide on the voluntariness of the appellant's confessional statement which was

retracted, the same was wrongly admitted in evidence, and we accordingly discount it. After discounting the cautioned statement, and, there being no any other evidence whatsoever to link the appellant with the charge he faced, we allow the appeal, quash his conviction and set aside the death sentence passed on him. We order for his immediate release from custody unless he is detained on some other lawful cause. DATED at MWANZA this 3r d day 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 5th day of December, 2024 in the presence of Ms. Jackline Kadashi, learned Counsel who took brief for Mr. Deocles Rutahindurwa, learned Counsel for the appellant and Mr. Benedicto Luguge, learned State Attorney for the respondent/Republic,