Jackson William & Another vs Republic (Criminal Appeal No. 327 of 2022) [2024] TZCA 1150 (28 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A.. KHAMIS. 3.A. And ISMAIL, J.A.^ CRIMINAL APPEAL NO. 327 OF 2022 JACKSON WILLIAM............................................I st APPELLANT JAMES OBED.................................................... 2 n d APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) fKilekamaienaa. J.^ dated the 1s t day of April, 2022 in Criminal Session No. 88 of 2022 JUDGMENT OF THE COURT V 25th & 28th November, 2024 MUGASHA. J.A.: In the morning hours of the 24/1/2014, two youngsters found a lifeless body of Gabriel Martine, with severe wounds on different parts of the body lying nearby the kraal. This resulted into the arraignment of the appellants for the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws before the trial court. It was alleged by the prosecution that, on 24/1/2014, at Ngarambe hamlet within Biharamulo District in Kagera Region, the appellants did i

murder Gabriel Martine, the deceased. The appellants denied the accusations. In order to establish its case, the prosecution featured a total of eight (8) witnesses and five (5) documentary exhibits namely; the sketch map (exhibit PI), the post-mortem examination report (exhibit P2), the cautioned statement for the second appellant (exhibit P3), the cautioned statement for the first appellant (exhibit P4) and, the extra-judicial statement for the second appellant (exhibit P5). On the other hand, the defence evidence came from three witnesses including the appellants. From a total of five witnesses and four documentary exhibits, briefly, the prosecution sought to establish the following: The deceased was a herdsman who was employed by Samwel Kopyolo (PW3). On the fateful day, at around 7.30 am, two youngsters including Elias Mussa (PW2) were sent by their parents to take some essentials to the deceased but found the cattle missing and nearby the kraal the body of the deceased who was found lying lifeless. PW2 informed his parents about the missing cattle and what had befallen the deceased. 2

Coincidentally, on the same day at Midaho during night time, three persons who were driving cattle were apprehended by local militia (Sungusungu) led by Almasi Luswetula (PW6). Upon being interrogated, they claimed to have purchased the cattle at Mushia market in Burundi and were heading to Lusahunga. Upon being demanded to produce a permit, they had none and claimed that it was with their boss. When given a chance to communicate with their boss, two of them escaped leaving behind one Abubakar. ASP Kusaya Mayala (PW7) who happened to be a lead investigator, visited the scene crime and the place where the cows were recovered and found the suspect, one Abubakari Dionis already arrested by the Sungusungu. According to PW6, the recovered 36 cows were marked as PS and NK respectively, PW7 recalled that, the suspect and the recovered cows were taken to Nyakahura Police Post and Abubakar mentioned the appellants to be the suspects who escaped and narrated their involvement in the killing incident and stealing of cattle. On the same day, the 1s t appellant was arrested by villagers at Mihongora village and taken to Nyakahura Police Station. It is alleged that upon being interrogated by PW7, the 1s t appellant confessed to 3

have been involved in the killing of the deceased as per the cautioned statement which was exhibited in evidence as P4. On the part of the 2n d appellant who was arrested two years later that is, on 19/1/2016 at Kiruruma village in Biharamulo District, it was also alleged that upon being interrogated by PW5, he confessed to have murdered the deceased in collaboration with other persons as per the cautioned and extra judicial statements admitted at the trial as exhibits P3 and P5 respectively. PW3 who claimed to be the owner of the recovered cattle, besides testifying that he informed the police about the killing incident, recalled to have been informed by the police about the recovered cattle. He went at the Police Station and identified 36 cows with marks PS and NK. He added that, at the Police Station he found Abubakar, the suspect who besides being the 1s t appellant's friend happened to have earlier on worked with the deceased in the cattle grazing. According to the autopsy report exhibited at the trial as P2, the cause of death was injury of the brain tissue and severe bleeding from multiple wounds caused by a blunt object. 4

The appellants denied each and every detail of the prosecution account in respect of the killing the deceased and stealing the cattle. The 1s t appellant claimed to have been arrested by the Game Officers on 23/1/2014 at Kasenga Game Reserve while fetching firewood and that he was taken to the police station where he was tortured. As for the 2n d appellant who was arrested two years after the fateful incident, he told the trial court that between 24th and 26th January, he was throughout preparing his farm for planting beans while being assisted by his relative one Alistides Obedi. He added that on 14/1/2016 he was apprehended at Biharamulo market while selling maize after he denied knowing the 1s t appellant and Abubakar @ Abuba. That apart, he recalled, besides being tortured and forced to make a confessional statement on the fateful incident which he declined, on 20/1/2016 the police took him to the Justice of Peace where he forced to sign documents he was unaware of. At the end of the trial, the evidence was summed up to the assessors who returned a verdict of guilt against the appellants. On the whole of the evidence the learned trial Judge was satisfied that the appellants killed the deceased with malice aforethought. In the 5

aforegoing finding, the learned trial Judge relied on the prosecution oral account and the confessional statements of the appellants. The appellants were both convicted and sentenced to the mandatory death sentence. Before us, the appellants who seek to demonstrate their innocence initially canvassed a total of six grounds of complaint contained in the memoranda of appeal faulting their convictions by the trial court. However, before the commencements of the hearing, all six grounds were abandoned and instead, the appellants fault the trial court on two main grounds as hereunder:

1. That, the trial Court erred in law and fact to convict and sentence the appellants relying on erroneous cautioned and extra judicial statements which were wrongly admitted in evidence.
2. That, the trial Court erred in law and fact to convict and sentence the appellants on the basis o f the evidence which did notprove the charge beyond reasonable doubt. At the hearing, Messrs. Josephat Rweyemamu and Seth Niyikiza, learned counsel represented the 1s t and 2n d appellants respectively

whereas the respondent had the services of Ms. Wampumbulya Shani, learned Senior State Attorney and Mr. Enosh Gabriel Kigoryo, learned State Attorney. In addressing the procedural irregularities, the learned counsel for the appellants faulted the conviction of the appellants which relied on the appellants' confessional statements which suffered a number of ailments including: One; the person who tendered the extra judicial statement of the 2n d appellant was not listed at the committal stage and that he adduced evidence without prior notice to adduce additional evidence contrary to the provisions of section 289 (1) of the Criminal Procedure Act [ Cap 20 R.E. 2019] (the CPA); two, after the Ruling to determine the voluntariness of the confessional statements, PW7 and PW5 were not recalled to produce such documents at the main trial; three, the police who recorded the cautioned statements of the appellants did not verify if the such statements were read to the respective appellants as prescribed under the provisions of section 58 (3) and (4) of the CPA; and four, given that the 1s t appellant was arrested by villagers at Rugese hamlet in Mihongora village at around 20.00 hrs and taken to the police, it is doubtful that, his confessional 7

statement was also recorded at 20.00 hrs as per testimony of PW5. It was thus argued for the 1s t appellant that, it is doubtful if the respective statement was recorded within the prescribed four hours which entitles the 1s t appellant to the benefit of doubt. To bolster this stance the appellants' counsel cited to us the case of ESTER JOFREY LYIMO VS REPUBLIC, CRIMINAL Appeal No. 123 of 2020 (unreported). On account of the pointed out ailments in the cautioned statements of the appellants, their learned counsel urged us to expunge them from the record that is, exhibits P3, P4 and P5. It was further submitted that, if the confessional statements are expunged, the remaining prosecution account is weak and cannot sustain the conviction of the appellants. On this, it was submitted, in the absence of Abubakar who mentioned the appellants and their involvement in the fateful incident, the evidence of PW6 and PW7 is purely hearsay with no evidential value as it remains uncorroborated. In this regard, it was argued that, the oral account of PW6 and PW7 does not in any way connect the appellants with the charged offence. With the said submission, the learned counsel for both appellants

implored on the Court to allow the appeal and set the appellants at liberty. On the other hand, Mr. Kigoryo who addressed the Court on behalf of the respondent Republic initially did not support the appeal. However, on a reflection, he conceded to the appeal and urged us to allow it. Besides submitting that the irregular confessional statements were wrongly acted upon to convict the appellants, he added that, the remaining prosecution account does not link any of the appellant with the charged offence. On being probed by the Court, he conceded that the extra judicial statement was not read out to the maker by the Justice of Peace thus contravening paragraph 9 of the Chief Justice Instructions to the Justices of the Peace (the G Guide). Having considered the record before us and the submissions of the learned counsel, the issues for determination are one, whether the trial was flawed with procedural irregularities and; two, if the charge was proved to the hilt against the appellants. We begin with the cautioned statements of the appellants. The time of recording the cautioned statements is regulated by the 9

provisions of sections 50 (1), 51 (1), (2) and (3) of the CPA which stipulate as follows: 50.-(1) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. 51.-(1) Where a person is in lawful custody in respect o f an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge o f investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may— 10

(a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration o f the original period or that o f the extended period, make application to a magistrate for a further extension o f that period. (2) A police officer shall not frivolously or vexatiously extend the basic period available for interviewing a p erson bu t any person in respect o f whose interview the basic period is extended pursuant to paragraph (a) o f subsection (1), may petition for damages or compensation against frivolous or vexatious extension o f the basic period, the burden o f proof o f which shall He upon him. 3) Where a magistrate to whom application has been made by a police officer under subsection (1), after having afforded the person, or a lawyer acting on his behalf, an opportunity to make submissions in relation to the application, is satisfied- (a) that the person is in lawful custody; (b) that the investigation o f the offence by the police officer has been, and is li

being carried out as expeditiously as possible; and (c) that it would be proper, in all circumstances to extend the relevant period, the magistrate may extend thatperiod for such further period as he may deem reasonable." As stated in the cited provisions, it is a mandatory requirement of the law that a suspect must be interviewed within four hours after restraint or arrest. Where the statement is not recorded within the prescribed four hours, there is room for seeking extension before a magistrate. A follow up question in this matter is whether the law was complied with to the letter. We do not think so and shall give our reasons. On the part of the cautioned statement of the 1s t appellant, at pages 102 and 103 of the record of appeal, it is evident that PW5 recounted that, the 1s t appellant was on 25/01/2014 at around 0.8.00 pm arrested by the villagers at Rugese hamlet in Mihongora village and was taken to Nyakahura police station where his cautioned statement was recorded at 08.00 pm on the same day. Besides the record being silent on the distance between Rugese hamlet and Nyakahura police 12

station, it was not practicable for the arrest of the 1s t appellant and the recording of the cautioned statement to be effected in different places and at the same time. Such circumstances raise doubt as to the time of recording the cautioned statement. On account of the prevalent uncertainty as to when the arrest was affected, it cannot be safely vouched if the 1s t appellant was interviewed within the prescribed four hours. It is also probable that, the cautioned statement was recorded beyond the prescribed four hours which is contrary to the law. See - ESTER JOFREY LYIMO VS THE REPUBLIC (supra), JANTA KOMBA AND THREE OTHERS VS REPUBLIC, Criminal Appeal No. 95 of 2006; JOSEPH MKUMBWA AND ANOTHER VS REPUBLIC, Criminal Appeal No. 94 of 2007 (both unreported). Therefore, since the cautioned statement of the 1s t appellant was wrongly admitted and acted upon by the trial court it is hereby expunged from the record. Next is the propriety or otherwise of the cautioned statement of the 2n d appellant which is faulted on among others failure by the police who recorded it to verify if such statement was read to the maker as prescribed under the provisions of the cited section 57 (3) and (4) of the CPA which stipulates as follows: 13

" 57 (3) A police officer who makes a record o f an interview with a person in accordance with subsection (2) shall write, or cause to be written , at the end o f the record a form o f certificate in accordance with a prescribed form and shall then, unless the person is unable to read— (a) show the record to the person and ask him- (i) to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make; (ii) (iii) to sign the certificate set out at the end o f the record; and if the record extends over more than one page, to initial each page that is not signed by him; and (b) if the person refuses, fails or appears to fail to comply with that request, certify on the record under his hand what he has done and in respect o f what matters the person refused, failed or appeared to fail to comply with the request (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 shaII- 14

(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; statement" According to the law, it is incumbent on the police officer who records the statement of a suspect to read it out to the maker and verify so at the end of the statement. The essence of reading out the statement is to enable the maker to exercise his right to make additions or vary the contents of the statement if he so wishes. In the matter under scrutiny, the purported verification by the police officer who recorded the respective cautioned statement is evident at page 217 of the record of appeal as hereunder: "UTHIBITISHO: Mimi G1846 DC SALUM nathibitisha kuwa maelezo haya yameandikwa kwa usahihi /eo tarehe 19/01/2016 kuanzia muda was aa 20.00 hrs na kumaiizika muda wa saa 21.45 chini ya kifungu cha 10 (3) cha CPA cha mwaka 1985 (R.E2002)". 15

According to the unofficial English rendering, the police officer merely verified to have recorded the statement correctly on 19/1/2016 commencing from 20.00 hrs to 21.45 hrs. He did not verify if the cautioned statement was read out to the 2n d appellant. The omission denied the 2n d appellant opportunity to know the contents of the statement and the right to make whatever variations if he so wished. Therefore, the cautioned statement of the 2n d appellant was wrongly acted upon to ground the conviction of the appellants and we accordingly expunge it from the record. Next is the extra judicial statement of the 2n d appellant. The manner of recording extra judicial statement is regulated by the Guidelines of the Chief Justice. According to paragraph 9 of the Guide, after the statement is recorded, it must be read out to the maker and be so verified in writing by the Justice of the Peace. At page 226 of the record of appeal the extra judicial statement was verified as hereunder: "Uthibitisho: - Mimi E Samaraye nathibitisha kuwa nimeandika mae/ezo ya James Obedi kama

alivyoelekeza na sijapunguza wa/a kuongeza neno lolote" According to unofficial English translation, the Justice of Peace verified to have recorded the statement in accordance with what was stated by the maker without any subtraction or addition. This does not meet the threshold envisaged under paragraph 9 of the Guide which requires the statement to be read out to the maker. Failure to read out the statement is an omission which incapacitated the 2n d appellant to know the contents of the statement. Moreover, the purpose of reading out the extra judicial statement after it is recorded was emphasized in the case of MANOJA MASALU AND ANOTHER VS REPUBLIC, Criminal Appeal No. 143 of 2020 (unreported) as the Court observed thus: "Our careful reading o f the OGJP as reproduced above, particularly at paragraph 9 thereof, unveil that, it is a mandatory requirement for the Justice o f Peace, to certify under his hand and signature that, the recorded statement was read over to the suspect making it and agreed by him (the suspect) to be correct and contains a full and true record o f the statement made by him." 17

In light of above position of the law, failure to read out the statement to the maker that is, the 2n d appellant was a fatal omission and as such, it was wrongly acted upon by the trial court to ground the conviction of the appellants. Thus, as correctly submitted by the learned counsel, the extra judicial statement deserves to be expunged from the record as we so do. Having expunged all the confessional statements, the remaining pertinent issue for our determination is whether the remaining oral account of the prosecution account did prove the charge to the hilt against the appellants. Our answer is in the negative and we shall give our reasons. Prior to that, we restate that in determining this appeal, sitting as a first appellate court, it is incumbent on us to reconsider and re-evaluate the entire trial evidence. And, if need arises, draw our own conclusions where there is no evidence to support a particular conclusion; or if it is shown that the trial Judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong. See: OKENO VS REPUBLIC [1972] E.A.32 and PETERS VS SUNDAY POST LIMITED [1958] E.A 424). 18

The decision of the trial court is based on the circumstantial evidence having leaned on the confessional statements of the appellants and oral prosecution account given by PW3, PW5, PW6 and PW7. The totality of prosecution account is to wit, that Abubakar who was found driving the cattle to Lusahunga, was a close friend of the 1s t appellant and that, Abubakar had disclosed to PW3 that he was together with the first appellant when driving the cattle on the fateful day. In the circumstances, Abubakar was the sole source of information on the alleged involvement of the appellants in the killing incident and the cattle stealing. Unfortunately, the said Abubakari who was indeed a material witness was not paraded as a prosecution witness. Although he was initially charged together with the appellants, the prosecution dropped the charges against him as indicated at page 60 of the record of appeal. However, this was not a bar on the prosecution to parade Abubakar as a witness at the trial. Failure by the prosecution to line up Abubakar as a witness adversely impacted and weakened the prosecution case. We are fortified in that regard because in terms of section 143 of the Evidence Act, Cap 6 R. E. 2019, a party is not compelled to parade a certain 19

number of witnesses to support his case. However, this is not always the position in every case as we earlier on observed in the case of SEPARATUS THEONEST @ ALEX VS. THE REPUBLIC, Criminal Appeal No. 135 of 2003 (unreported). We made a similar emphasis in the case of AZIZ ABDALLAH VS. THE REPUBLIC [1991] TLR 91 where the Court stated thus: "Where a witness who is in a better position to explain some missing links in a party's case is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a permissible one". See also the decision in KIKUYU MONDI VS. THE REPUBLIC, Criminal Appeal No. 99 of 1991 and MT 7479 SGT BENJAMIN HOLELA VS. THE REPUBLIC [1995] TLR 121. In the matter under scrutiny, it is Abubakar who would have clarified to the trial court about the appellants' involvement in killing the deceased as alleged by PW3, PW6 and PW7. Thus, failure to summon Abubakar who was a material witness entitles the court to draw adverse inference against the prosecution case. In the premises,

the evidence from PW3 and PW7, PW6 against the appellants which is hearsay has no evidential value. In addition, we have also gathered that the defence evidence which poked holes on the prosecution account was not given a deserving attention by the learned trial Judge. Likewise, the manner in which the appellants were arrested leaves a lot to be desired. According to what is evident at page 179 of the recorded of appeal, the 1s t appellant testified that he was arrested on 23/1/2014 by Game Officers while collecting firewood, taken to the police lock up and landed before the subordinate court on 29/1/2014. This piece of evidence was not controverted by the prosecution. Secondly, the unexplained delayed arrest of the 2n d appellant effected two years after the fateful incident, in the absence of evidence that he was at large, rendered the prosecution account highly suspect. In view of our evaluation of the entire trial evidence, it is our considered opinion that, had the learned trial Judge subjected the entire trial evidence to scrutiny, he would not have disregarded the defence evidence and rely on the uncorroborated hearsay prosecution account to convict the appellants. In a nutshell, the charge against the 21

appellants was not proved beyond reasonable doubt and we find the appeal merited and it is allowed. The appellants should be released forthwith unless if held for other lawful cause. It is so ordered. DATED at BUKOBA this 27th 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 28th day of November, 2024 in the

• presence of Mr. Seth Niyikiza, learned counsel for the 1s t Appellant, Mr. Josephat S. Rweyemamu, learned counsel for the 2n d Appellant and Mr. Enosh Gabriel Kigoryo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. 22