Juma Tagambaga vs Republic (Criminal Appeal No. 326 of 2022) [2024] TZCA 1171 (2 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA, J.A., KHAMIS. 3.A. And ISMAIL. J.A T CRIMINAL APPEAL NO. 326 OF 2022 JUMA TAGAMBAGA ...... ............. ...... ................ APPELLANT VERSUS THE REPUBLIC............... .......... ........ ......... ...............RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) (KMekamaienqa. 3 1 dated 24th day of March, 2022 in Criminal Session Case No. 47 of 2020 JUDGMENTOF THE COURT 26th November & 2n d December, 2024 ISMAIL, J.A.: Juma Tagambaga, the appellant, was arraigned in court on a charge of murder. The victim of the heinous act was Fatuma Paul who met her demise on 8th May, 2019, at Rusenga village in Biraharmulo District, Kagera Region. The High Court at Bukoba before which the trial proceedings were conducted found that the testimony adduced by the prosecution witnesses had met the qualitative threshold requisite for

finding the appellant culpable of the transgression he was accused of. In the end, it convicted him of murder and sentenced him to death. Facts, as deduced from the record of appeal are to the effect that in December, 2018, the appellant lost his two-year old son, Mussa Juma, in a manner that made him believe that the death was unnatural. Several months later, the appellant's other child, Maria Juma, fell ill. Efforts to heal the child bore no fruits as her health was said to get worse by the day, prompting the appellant to seek the intervention of a certain Mr. Milembe, a traditional medicine man. He reviewed the ailment and returned the verdict that the appellant's step-mother-in-law, the deceased, was responsible for the miseries that afflicted the appellant's family. He resolved that a revenge was inevitable. He enlisted the services of his cousin, George Tagambana who, until then, resided in Mkuyuni village in Kasulu District, Kigoma Region. George was known to be a serial killer who had been previously convicted and jailed for killing the appellant's sister- in-law. According to the exhibits P3 and P4, the appellant's extra-judicial statement and cautioned statement, respectively, the appellant and his co-assailant, George Tagambaga, executed the plan at 20:04 hours of the

fateful night. Whereas George carried out the killing of the deceased who was in the kitchen preparing supper, the appellant stayed vigil at the door of his father -in-law who was in the next house with his first wife, the appellant's mother-in-law. According to the postmortem report (exhibit PI), carried by PW1, the deceased succumbed to death due to severe bleeding coming from multiple, serious cut wounds that she sustained in the attack. It was also alleged that PW6, the appellant's sister-in-law who was at the scene of the crime in the night, the attacks on the deceased were carried by the appellant who held a machete, while his co-assailant held a torch which emitted the light that brightened the moonlit environment and aided her ability to identify the assailants. When the incident was reported to the Police, a suspicion pointed to Dotto Elias, in whose house the killing was allegedly organized, and Tabiza Janies (Tabu), the first wife of Elias, the deceased's husband. The duo was arrested immediately, while the appellant was arrested three days later, following an investigation that held him to a blemished account. They were taken to Biharamulo Police Station where interrogation was carried out before they were arraigned in

court. The Police sifting saw the rest of the suspects dropped, leaving the appellant as the sole accused of the incident. Trial proceedings saw the prosecution marshal the attendance of six witnesses through whom four exhibits were also tendered. These were: the Postmortem medical examination report (exhibit PI), Sketch map of the scene of the crime (exhibit P2), the appellant's Extra-judicial statement (exhibit P3), and the appellant's Cautioned statement (exhibit P4). Defence testimony was composed of a sole witness, the appellant himself who protested his innocence, contending that he was not involved. He insisted that the confessional statements (exhibits P3 and P4) that the prosecution clung on to prove his guilt were extracted through torture and intimidation, making the confession involuntary. This defence did not faze the trial court which was convinced that the prosecution's version of story was credible and worth of belief. It went ahead and convicted the appellant of murder and sentenced him to death by hanging. This decision rattled the appellant hence his decision to institute the instant appeal. The memorandum of appeal raised 12 grounds of appeal. At the hearing of the appeal, the appellant was represented by Mr. Abel Eustad Rugambwa, learned counsel, whereas the respondent

Republic enjoyed the services of Ms. Wampumbulya Shani, learned Senior State Attorney, assisted by Mr. Enosh Gabriel Kigoryo, learned State Attorney. Before the hearing of the appeal got underway, Mr. Rugambwa informed us that he was abandoning grounds one, two, three, eight, nine, ten and eleven, leaving him with five grounds of appeal which he chose to cluster in three groups. Group one involved those that touch on procedural aspect and they involved grounds six and seven, whilst substantive items were covered under grounds four and five. Ground 12 was a general ground which concluded the discussion on whether a case was made out against the appellant. On the procedural aspects, Mr. Rugambwa argued that, one, the recording of an extra-judicial statement was flawed as the Justice of the Peace contravened the Chief Justice's Instructions, by not indicating that the recording officer asked the appellant if, at the time of recording the statement, he was a free agent and that he was ready to give his confession freely. Mr. Rugambwa argued that it was not enough to indicate that the recording officer read out the statement. He bolstered his argument by citing the decision of the Court in Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 (unreported).

Two, that the cautioned statement, exhibit P4 was recorded outside the four-hour period, thereby contravening the provisions of sections 50 (1) and 51 (1) (a) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (the CPA). He argued that, from the day of his arrest on 11th May, 2019 to the time of recording the statement at noon on 12th May, 2019, 23 hours had elapsed, yet the distance from the point of arrest to the police station was a paltry 30 kilometres. Three, that, whilst section 57 (3) of the CPA requires that the recording officer should read the statement to the suspect, the certification which appears at page 128 of the record of appeal does not show that this requirement was followed. The learned counsel's conclusion was that these exhibits were discrepant and that they should be chalked off. On matters of substance, the appellant is critical of the testimony adduced by PW6 on the visual identification. Mr. Rugambwa argued that there is no mention of intensity of the light that enabled her to identify the assailants. He decried the variance in PW6's testimony on where exactly she hid during the incident and who, between the appellant and his co- assailant, attacked the deceased. He wondered how possible it was for

her alone to identify the assailants while her parents were within the compound in which the incident occurred. On ground 12 of the appeal, the contention is that, after expunging exhibits P3 and P4 and casting away the testimony of PW6 all of which were the basis for the trial court's finding of guilt, the residual testimony, if any, is too insufficient to ground a conviction. It was his contention that conviction of the appellant was not based on any solid ground hence his prayer that the appeal be allowed and the appellant be set at liberty. On her part, Ms. Shani was in full support of the appeal. She narrowed her arguments to two areas of complaint. On the confessional statements, the learned Senior State Attorney joined hands with her counterpart and faulted their legitimacy owing to their non-adherence to the law. In the case of exhibit P4, her further criticism resided in the irregular conduct of PW5 speaking about its content before it was tendered in court. She urged us to expunge the confessional statements. In her submission in support of ground 12 of the appeal, Ms. Shani argued that PW6's testimony failed to disclose the intensity of the light, casting doubts on her ability to identify the assailants. She pointed out

contradictions she spotted in the witness's testimony, found at page 86 of the record of appeal, on who attacked the deceased. Overall, she prayed that the appeal be allowed. From the counsel's unanimous contentions, the broad question for our determination is whether the case against the appellant was proved beyond reasonable doubt. We will determine this issue by delving into each of the arguments raised by the counsel. With regard to exhibit P3, we wish to begin by remarking that the recording of an extra-judicial statement is not without any statutory guide. It is a matter that is regulated by the Chief Justice's Instructions, and this Court has accentuated, many a time, that applicability of these instructions is imperative, underscoring the settled position that these instructions operate cumulatively. Failure to adhere to any of those means that the statement bred out of such failure is discrepant and no evidential value can be attached to it. One of such prescriptions is that which requires the Justice of the Peace to ask the confessor if he was ready to make his confession on his free will. We underscored this aspect in the case of Japhet Thadei Msigwa (supra) in which it was held as follows:

"So, when Justices o f the Peace are recording confessions o f persons in the custody o f the police, they must follow the ChiefJustice's Instructions to the letter. The section is couched in mandatory terms. Before the Justice o f the Peace records the confession o f such person, he must make sure that all eight steps enumerated therein are observed. 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 (Hi) The place he slept before the date he was brought to him (iv) Where any person by threat or promise or violence has persuaded him to give the statement (v) Whether he really wishes to make the statement on his own free will (vi) That if he [makes] a statementm , the same may be used as Evidence against him. We think the need to observe the Chief Justice's Instructions [is] twofold. One, if the suspect decided to give such statement~r he should be aware o f the implications involved. Twor it will enable the trial Court to know the surrounding 9

circumstances under which the statement was taken and decide whether or it was given voluntarily. In our case, the Justice o f the Peace merely stated that "he observed the appellant who had no bruises and that he was not tortured" That was not enough. The Justice o f the Peace ought to observe all steps enumerated in the Chief Justice Instructions. Since that was not done, the evidence o f PW6 is inadmissible. We expunge Exht P6 from the record. .." See also: Manoja Masaju & Another v. Republic, Criminal Appeal No. 143 of 2020 [2024] TZCA 409 (6 June 2024, TANZLII). Our review of exhibit P3, the appellant's extra judicial statement, found on pages 117 and 118 of the record of appeal, confirms the counsel's shared worries that the making of the said exhibit was a step away from what the Chief Justice's Instructions prescribe. None of the questions raised in that statement intended to find out if the appellant was a free agent from whom a confession would be extracted. Thus, while other questions were posed and answered with relative ease, it did not cross to PW4's mind that establishment of the appellant's free will was a ID

matter that ought to have been evident before reliance on it was to be placed. We are in agreement with the learned counsel's arguments that, owing to the shortfall pointed out above, exhibit P3 was rendered discrepant and inadmissible. The resultant consequence is to expunge it from the record. Another set of testimony that the trial court premised its conviction on was the appellant's cautioned statement. On this, the question that should feature is whether the procedural aspects that guide its recording were adhered to. Both counsel are in convergence, and their unanimous call is that, one, time for recording exhibit P4 was exceeded in contravention of section 50 (1) of the CPA, and that there is no evidence that the leeway provided under section 51 (1) (a) for extension of the four-hour period was exercised. Two, that section 57 (3) of the CPA was also infracted as the statement by the recording officer was not read to the appellant. Three, that the said exhibit was read and testified on before the same was actually admitted into evidence. In their shared view, exhibit P4, bred out of the irregular recording and admission, should be chalked off. 11

As stated above, the first gravamen in a raft of the counsel's complaints is on the compliance with the time prescription set out under section 50 (1) of the CPA. As alluded to earlier on, time set out for recording a statement is four hours from the time the suspect is put under restraint. In terms of section 5 of the CPA, a person is said be under restraint if he is in the company of a police officer for a purpose connected with the investigation of an offence and that such person would not be allowed to leave the police officer if he wished to do so. The testimony on record clearly shows that, whereas the appellant was put under restraint by police officers at 13:00 hours on 11th May, 2019, his statement was recorded at noon, the following day. PW5, the recording officer, has banked on what the appellant allegedly told him to contend that the recording of the statement was timeous and consistent with what section 50 (1) of the CPA stipulates. Part of his testimony, as found at page 57 of the record of appeal states as follows: "The accused further told me that on 11/05/2019 at around l pm he was arrested by the Police and he told them about the persons who were involved in the murder. The police continued to search for other suspects. Therefore, the interview was 12

delayed. From Lusenga village to the Police Station is a distance o f 30 Kilometers and there is a forest The police searched suspects until the next morning but they did not arrest him. The accused arrived at the Police Station at around 12 noon and I immediately commenced the interview..." What we discern from the passage is that PW5 was not an arresting officer and that none of the arresting officers testified on this pertinent question. Not even PW3, Assistant Inspector Yoya Matala, who led the investigation and visited the scene of crime. This means that PW5 used a hearsay statement of the appellant, if he indeed made that statement, to gauge his compliance with the law. We do not find this as an acceptable conduct, especially where the defence testimony clearly indicates that upon arrest, the appellant was immediately taken to the police station, without any indication that his conveyance to the police station, some 30 kilometres away from the scene of crime, was delayed on account of further investigation or any lawful cause that would allow reckoning of time under section 50 (2) (a) of the CPA. Evidently, therefore, the recording of exhibit P4 was done after the passage of a whopping 23 hours from the time the appellant was put 13

under restraint. By any standards, this jaw dropping lethargy by the police renders the statement evidentially worthless for want of statutory compliance. In Pambano Mfilinge v. Republic, Criminal Appeal No. 283 of 2009 (unreported), an akin situation arose, and this Court was called upon to pronounce itself on the regularity or otherwise of admitting the statement whose recording did not comply with sections 50 and 51 of the CPA. Guiding on the consequence of the contravention, we held: 'The period available for custodial interview by the police is regulated under sections 50 and 51 o f the Criminal Procedure Act.... Upon numerous occasions, this court has been confronted with situations similar to the one at hand.... In ail these decisions the court held that non-compliance vitiated the particular cautioned statement To this end, we are left with no other option than to expunge the cautioned statement from the record." It follows that, on the basis of this contravention of the law, the tendering of exhibit P4 was a mere charade that must be abhorred. With regard to the second issue, the narrow question is whether the certification done by the recording officer complied with the import of 14

section 57 (4) of the CPA. To be able to address this issue, it is apposite, we think, that we should reproduce the substance of the said provision which stipulates as follows: "(4) Where the person who is interviewed by a police officer is unable to read the record o f the interview or refuses to read, or appears to the police officer not to read the record when it is shown to him in accordance with subsection (3) the police officer shall - (a) read the record to him, or cause the record to be read to him; (b) ask him whether he would like to correct or add anything to the record; (c) permit him to correct, alter or add to the record, or make any corrections, alterations or additions to the record that he requests the police officer to make; (d) ask him to sign the certificate at the end o f the record; and (e) certify under his hand, at the end o f the record, what he has done in pursuance of this subsection, "[Emphasis is added]. 15

As we grapple with the question, it behooves us to look at exhibit P4, found at page 128 of the record of appeal in which, PW2, the recording officer, made a certification with regard to the recording of the statement. He stated as follows: UTHIBmSHO: H3140 PC DANIEL nathibitisha kuandika maefezo ya JUMA s/o TAGAMBAGA bila ya kuongeza wala kupunguza neno loiote chini ya K/F10 (3c) CPA Cap no. 20 chamwaka 1985 (R.E. 2002). R/o H3140 PC DANIEL " What comes out of the quoted excerpt is that, certification made by PW2 fell short of addressing the purpose enshrined in the law as the appellant was kept oblivious of what the statement, his purported confession, contained and whether it factored in what he narrated during the recording. It, quite obviously, denied him the opportunity to make corrections or alterations to what was recorded and that, when he was called upon to append his signature, he did so against what he knew nothing about. We find this to be a fundamental flaw which we cannot casta blind eye on. We are, therefore, inclined to accept the invitation by the learned counsel for the appellant and censure the abhorrent conduct 16

exhibited by PW2 and hold that exhibit P4 was irregularly recorded and had its evidential value significantly eroded. We are fortified in our position by the recent decision of the Court in the case of Jackson William & Another v. Republic, Criminal Appeal No. 327 of 2022 [2024] TZCA (28 November 2024, TANZLII) wherein we held: "... He did not verify if the cautioned statement was read out to the 2Pd appeiiant The omission denied the 2n d appellant an opportunity to know the contents o f the statement and the right to make whatever variations if he so wished. Therefore, the cautioned statement o f the 2n d appellant was wrongly acted upon to ground the conviction o f the appeiiant and we accordingly expunge it from the record." The appellant's other consternation on exhibit P4 resides in the contention that PW5 testified on the content of exhibit P4 before it was cleared for admission. We have reviewed the testimony of PW5, mainly at pages 57 and 58 in which such testimony is found. In the entirety of page 57, the witness was led to narrate the facts that he extracted from his interview with the appellant and recorded in exhibit P4. Ashe did that, he had not been led to pray to tender the said exhibit. He did that at the foot 17

of page 58. This, as we have stated in numerous decisions, is irregular and it is tantamount to smuggling the cautioned statement through the back door, and it renders the evidence of that witness of no evidential value, deserving nothing but crossing it off the prosecution evidence. We held so in the case of Director of Public Prosecutions v. Festo Emmanuel Msongaleli & Another, Criminal Appeal No. 62 of 2017 (unreported); and Ntobangi Kelya & Another v. Republic, Criminal Appeal No. 256 of 2017 (unreported). Significantly, the position in the just cited cases was an emphasis to what the Court held in Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R. 218. It Was held: "Whenever it is intended to introduce any document in evidencef it should be first cleared for admission, and be actually admitted, before it can be read o u t" As we wind down on these grounds of appeal, we wish to remark that we are aware of the fact that the provisions of section 169 of the CPA permit the trial court to admit an illegally obtained evidence subject to meeting the key precondition which is that doing so must be in the absolute interest of the public and without prejudicing the rights and 18

freedoms of the accused person -see: Rashid Omary v. Republic, Criminal Appeal No. 106 of 2020 (unreported); and Ntobangi Kelya & Another (supra). We respectful take the view that the circumstances of this case do not suggest that public interest, in the realm stated in section 169 of the CPA, existed. The totality of this is to hold that exhibit P4 which was wrongly admitted should and it is hereby expunged from the record. Next for our determination are grounds four and five which convey one grievance. This is to the effect that the evidence of visual identification which was adduced by PW6 and relied upon by the trial court to find the appellant culpable was wanting. The contention is that conditions for correct identification were not established as the intensity of the light was not described. As we delve into this complaint, we wish to reiterate what is otherwise the settled position. It is to the effect that a court may convict based on visual identification evidence for the offence committed at night if conditions for identification are favourable and leave no possibility of mistaken identity. This would, therefore, entail establishing, among others, the source and intensity of the light that aided the witness to identify the accused. This was accentuated in Ally Mohamed Mkupa v.

Republic, Criminal Appeal No. 2 of 2008 (unreported) wherein we observed: "Where one claims to have identified a person at night there must be evidence not only that there was light, but also the source and intensity o f that light This is so even if the witness purports to recognize the 5i/5pect"[ Emphasis added]. In the instant appeal, PW6's testimony which is found at pages 85 through to 88 of the record of appeal, gave an account of how she saw the appellant and his co-assailant storm in the scene of the crime, invade the deceased, and inflicted her with multiple cuts. The witness, who scampered for safety, left the assailants to continue with their attack on the deceased and came back when the deceased had died and the assailants had run away. In all this, the scene of the crime was lit by the moonlight and a torch which was worn by the appellant's co-assailant. Whilst the witness has described the source from which the light that illuminated the scene of the crime came, what has drawn the appellant's ire is that the intensity of such light was not explained. We subscribe to the contention by the appellant's counsel and hold that PW6's 20

inability to describe the intensity of the light was a significant omission which turned her factual account inadequate and incapable of supporting the contention that the conditions for identification were favourable. Further credence to our reasoning is added where PW6 contended that the appellant is the person who attacked the deceased while testifying later that it is the other assailant who was cutting the deceased while the appellant held the door shut to prevent people from coming out of the house. Matters were not helped when the witness testified that she ran to the bush where she hid as the assailants executed their killing mission. This creates an impression that there is a possibility that, from where she hid, it was difficult, if not impossible, for her to identify the assailants and assign roles that each played in the incident, unless it is stated that the scene of the crime was luminant enough as to allow an unmistakable identification of the perpetrators of the offence. Such absence was a recipe for possible mistaken identity and it does not matter if the witness was familiar with the appellant. Putting PW6's testimony to further scrutiny, it comes out that it carries with it some incoherences and disharmonies. These, as alluded to above, reside in the role that the appellant and his co-assailant played in 21

executing the killing. The witness appears to reverse roles to each of the assailants, sharply contradicting what she stated earlier in her testimony. There is also incoherence on the place from which she sought refuge. Whereas she stated that she hid under a tree, exhibit P2, the sketch map of the scene of the crime, indicates that there were several trees scattered in the compound and with varying distances from one another. It would be difficult to state, with any semblance of precision, under which of the nearly a dozen trees did PW6 hide as she observed the happenings at the scene of the crime. More interestingly, the sketch map does not indicate that a goat's kraal beside which PW6 said she hid existed in the vicinity. Our take on PW6's testimony is that her account of facts presented a less than convincing and consistent account of events from which a credible story can be coined. It is not lost on us, as well, that in law, discrepancies and inconsistencies in the witness's testimony, if material, can corrode the credibility of a party's case and render the testimony worthless -see Luziro s/o Sichone v, Republic, Criminal Appeal No. 231 of 2010 (unreported); and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (unreported). Such is the fate that PW6's testimony should suffer as we think the 22

contradictions were quite fundamental, capable of denting PW6's credibility. In consequence, we find grounds four and five meritorious and we allow them. Ground 12 takes an exception to the trial court's finding of guilt against the appellant while the prosecution had not proved its case beyond reasonable doubt. As we get to the heart of counsel's contention, it is worthwhile to point that the testimony that the trial court had at its disposal in concluding that the appellant was guilty is as described at page 133 of the record of appeal. It included the appellant's confessional statements (exhibits P3 and P4) and an eye witness account narrated by PW6. These were the tools that enabled the learned trial judge to hold that ''the prosecution evidence has discharged the onus o f ensuring that the offence is proved to the required standard.” While we agree that this testimony constituted the foundation which would bring the appellant to a culpable role, it is quite clear that nothing is left of the prosecution's case after the entirety of what the prosecution's case hinged on was chalked off and the documentary account was discredited. The testimony of witnesses other than PW1 is a bunch of hearsay evidence which cannot be used to ground a conviction. This justifies our decision to join hands

with both learned counsel and hold that the case against the appellant was not proved to the hilt. We allow this ground of appeal. In consequence, we allow the appeal, quash the conviction, set aside the sentence and order the appellant's immediate release, unless he otherwise held for a lawful cause. DATED at BUKOBA this 30th day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 2n d day of December, 2024 in the presence of Mr. Abel Eustad Rugambwa, learned counsel for the appellant and Ms. Evaresta Kimaro, Ms. Matrida Assey, both the learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original.