Shjja Sosoma vs Republic (Criminal Appeal No. 300 of 2020) [2024] TZCA 1145 (26 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: SEHEL, 3.A.. KIHWELO, 3.A. And MDEMU, J.A.^ CRIMINAL APPEAL NO. 300 OF 2020 SHIJA S O S O M A .............................................................................. APPELLANT VERSUS THE REPUBLIC .................... ...................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (Mranqo, 1 .) dated the 30th day of June, 2020 in Criminal Sessions Case No. 18 of 2016 JUDGMENT OF THE COURT 22n dOctober & 26th November, 2024 MDEMU, J.A.: The appellant, Shija Sosoma was arraigned in the High Court of Tanzania at Sumbawanga for the murder of his senior wife one Ng'washi Nkuba (the deceased). It was on the 23rd January, 2012 at Kabunde area within Mpanda District when the appellant was alleged to have committed that homicide. The story behind the homicide begins this way. On the material night, Kaselelo Shija (PW1) was awakened by one Mtogwa, a ten-cell leader and the appellant that the latter had killed his senior wife. It was l

alleged that, when inquired by PW1, the appellant admitted his involvement because the deceased had previously bewitched to death his son one Luhende Shija, born by his junior wife. The appellant, PW1 and the said Mtogwa, went to the crime scene where they found the body of the deceased with multiple cut wounds. Other neighbours such as Kulwa Shija (PW2) who heard a child crying at the crime scene and Jiganda Masanja (PW3) who was informed by Luchembela Kayuke, responded to the alarm. Besides witnessing the deceased body, it was their testimony that, the appellant admitted to have killed the deceased. The appellant was thus apprehended by fellow villagers for that matter. In the course, PW4 one Paulo Mipawa reported the matter at Mpanda Police Station following the information he received through telephone from one Sikenia Buhimilo that his sister (the deceased) was brutally killed. The police detectives responded to that information, rushed to the crime scene for the commencement of investigation. In the course, the autopsy was conducted whose report (exhibit PI) registers haemorrhagic shock to be the cause of that unnatural death. Thereafter, D. 1772 Sgt. Thomas drew a sketch map (exhibit P2). Later at the police station, the appellant was interrogated by PW5 one D. 6592 D/Cpl. Yohana and

confessed in his cautioned statement (exhibit P3) to have taken part in the demise of the deceased. In his defence, the appellant disassociated himself with that homicide and denied to have confessed before PW5. He alleged to have equally been informed of the deceased's demise in that material night while at his junior wife's premises. Nonetheless, the trial court found the prosecution evidence to have proved the case beyond reasonable doubt. Accordingly, the appellant was convicted of the offence of murder and sentenced to suffer death by hanging. This was on 30th June, 2020. Professing his innocence, the appellant filed a memorandum of appeal on 30th September, 2020 comprising of five (5) grounds of appeal. Before the appeal was heard on those grounds, which we are not reproducing for reasons soon to follow, another memorandum of appeal containing six (6) grounds of appeal was duly lodged on 24th January, 2021. Again, for reasons to be explained later in due course, we find it unnecessary to reproduce such grounds of appeal. When the appeal was called on for hearing on 22n d October, 2024, Mr. Peter Kamyalile, learned advocate who represented the appellant, abandoned two sets of memoranda of appeal filed on 30th September, 2020 and on 24th January, 2021, save for ground 5 in the memorandum

of appeal filed on 24th January, 2021. The remaining ground 5 in the memorandum of appeal filed on 24th January, 2021 reads as hereunder: 5. That, the learned trial Judge o f the High Court erred in law point and fact to convict and sentence the appellant without considering why they failed to bring the knife, if it was true that they found the knife at the house o f junior wife to corroborate their evidence if it were a true allegation. As regards to the supplementary memorandum of appeal filed on 15th October, 2024, the grounds of appeal are reproduced as follows:

1. That, the trial court erred in law and fact by receiving the evidence o f witnesses and exhibits contrary to the law since the statements and documents containing the substance o f the evidence and witnesses were not read and fully explained or caused to be read at the committal court.

2. That, the trial court erred in law and fact by convicting and sentencing the appellant basing on exhibit P3, cautioned statement, which was recorded out o f time and its certification was contrary to the law.

3. That, the trial court erred in law and fact by convicting and sentencing the appellant while the case was not proved beyond reasonable doubt since the trial court based its decision on the alleged oral confession which lacked legal basis to be termed as oral confession and without any corroboration.

4. That, the trial court erred in iaw and facts by convicting and sentencing the accusedperson while the key material witness, namely Mtogwa Jiyabo was not called at the trial. As we said above, the appeal came before us for hearing on 22n d October, 2024. The appellant had the services of Mr. Peter Kamyalile, learned counsel. On the part of the respondent/Republic, Mr. Calistus Kapinga, learned Senior State Attorney ably represented it. He outrightly resisted the appeal. Submitting on ground 1 in the supplementary memorandum of appeal, Mr. Kamyalile referred us to page 54 of the record of appeal arguing that, what is in the record of appeal is a list of statements and documents which were not read as required under section 246 (2) of the Criminal Procedure Act, Cap. 20 (the CPA). He added that, he would have urged for a retrial in terms of the principles stated in the case of Alfan Apolinary @Kyarubota and Others v. Republic (Criminal Appeal No. 164 of 2021) [2023] TZCA 17579 (31 August 2023; TanzLII), but he declined to do so on account that, on 7th November, 2019 this Court had once ordered a retrial following improper summing up to assessors as it appears at page 170 of the record of appeal. He thus argued, another retrial, though on different irregularities, would not be in the interest of justice.

Mr. Kapinga, in reply, conceded on the anomality in the committal proceedings because the statements of witnesses and documents placed for trial were not read as required under section 146 (2) of the CPA. As to the way forward, his argument was that, since the proposed retrial will be the second one, then in the interest of justice, he invited us to consider the irregularities in the committal proceedings curable under section 388 of the CPA. In resolving this ground, we have taken note of the principles stated in Alfan Apolinary @Kyarubota and Others v. Republic (supra) and many other decisions of the Court that, failure to comply with the provisions of section 246 (2) of the CPA makes the evidence taken at trial to be of no evidential value and liable to be expunged. We do not think if such omission in failure to read the statements and documents at the committal proceedings stage, as dictated under section 246 (2) of the CPA, is curable under section 388 of the CPA as urged by the learned Senior State Attorney. That being the legal position, the issue is whether there was noncompliance of section 246 (2) of the CPA. Our perusal in the record of appeal, particularly at page 54, is evident that, the statements and

documents were read to the committing court before they were listed. The record speak of itself regarding this complaint as hereunder: "State Attorney: The Republic will call a total o f eleven witnesses at the trial o f the accused, whose statements, I pray to read out to the accused person . " After this opening statement of the prosecution, what followed is a list of names of witnesses. Our interpretation of the above excerpt is that, the statements, whose iist was recorded by the committing court, were duly read out to the appellant as prayed by the prosecutor. An omission made by the committing court in not recording that the statements were read out following the prayer made by the prosecution, in the circumstances of this case, did not occasion miscarriage of justice. This, in our view, it was an inadvertence of the trial Judge as we take that, the statements were read out to the appellant as dictated under section 246 (2) of the CPA. This ground therefore fails. Submitting in ground two of the complaint, Mr. Kamyalile stated that the cautioned statement of the appellant was recorded out of time thus he prayed for it to be expunged. He submitted so on account that, the appellant was arrested on 23r d January, 2012 whereas his cautioned statement was recorded on 25th January, 2012. Thus, section 50 (1) of

the CPA mandating such statements to be recorded within four hours of the suspect's arrest, was wholly violated. As the statement was not objected when it was being tendered in evidence, the learned counsel urged us to follow our earlier decision in Majaliwa Ernest v. Republic (Criminal Appeal No.465 of 2022) [2024] 77CA 313 (7 May 2024; TanzLII) to determine the anomaly in favour of the appellant applying "the best interest of the accused principle/' In reply to this ground of complaint, Mr. Kapinga was very brief and to the point. He readily conceded that, the cautioned statement of the appellant was recorded out of time. He, in the end of all, urged us to expunge the cautioned statement from the record. On our part, we are in all fours with the learned counsel that, section 50 (1) of the CPA which generally requires the statement to be recorded within four (4) hours from the time the suspect was arrested to the time his cautioned statement was recorded, was violated by PW5 who recorded the appellant's cautioned statement. It is clear in the record of appeal that, the appellant was arrested on 23rd January, 2012 and the impugned cautioned statement was recorded on 25th January, 2012. The evidence of PW5 is silent as to what was all up to the appellant from his arrest to the time his cautioned statement was recorded. We need not to

speculate on anything, but it be sufficing for us to expunge the cautioned statement of the appellant (exhibit P3) from the record. This ground is found meritorious. We now move to the oral account of the prosecution witnesses that, the appellant orally made statements admitting to have taken part in the demise of the deceased. In this, the immediate issue that comes before us is whether the appellant was a free agent at the time the said oral admissions were allegedly made. This forms the basis of grounds three and four of the supplementary memorandum of appeal and ground five of the memorandum of appeal filed on 24th January, 2021. Mr. Kamyalie submitted in threefold on those grounds. One, the appellant was not a free agent, two, some independent witnesses were not called and three, the knife allegedly used for the commission of the crime was not tendered in evidence. Beginning with the ground that the appellant was not a free agent in making the alleged oral admissions, the learned counsel submitted that in terms of the principles stated in Director of Public Prosecutions v. Orestus Mbawala @ Bonge (Criminal Appeal No.119 of 2019) [2020] TZCA 1728 (18 August 2020; TanzLII), such confessions are only admissible in evidence if the maker was a free agent at the time. In the

instant appeal, the learned counsel made reference to the following pieces of evidence in the record of appeal intimating that the appellant was not a free agent: First, the evidence of PW1 at page 82 of the record of appeal is silent as to the circumstances in which the appellant confessed orally to PW1 on his involvement in the murder of the deceased. Second, at page 84 of the record of appeal, PW2 testified that, a number of people were present and that the appellant was handcuffed when making such oral confession to PW2. Third, at page 86 of the record of appeal, PW3 told the trial court that, at the time he inquired to the appellant, many people were present at the crime scene. Fourth, on his part, PW4 testified at page 86 of the record that, while in the company of police detectives, found the appellant handcuffed, and that many people were at the crime scene when he confessed to him orally to have taken part in the demise of the deceased. Basing on that evidence, his argument was that, the appellant was not a free agent. He thus urged us to hold so and disregard that evidence. Regarding failure by the prosecution to summon independent witnesses, his argument was that, much as PW3 was an independent witness, failure to call one Mtogwa, a ten-cell leader affected the

prosecution case. In his argument, Mtogwa's evidence would have corroborated the evidence of the prosecution witnesses on whether or not the appellant was a free agent during the making of such oral confessions. As to failure to tender a knife as an exhibit, the learned counsel's argument was that, if at all it was true that the appellant showed the knife he used in killing the deceased, then the reason for not tendering that knife is not apparent on the record. By the way, he argued, the said knife as indicated at page 55 of the record of appeal, was listed as part of real evidence. Given such misgivings in the prosecution case, the learned counsel argued that, the prosecution case was not proved beyond reasonable doubt thus, urged us to hold so and allow the appeal. Replying to grounds three, four and five, Mr. Kapinga commenced his submission on the complaint raised by the appellant's counsel that, the appellant was not a free agent at the time he made the alleged oral confessions to the prosecution witnesses. He argued that, the appellant was a free agent, on the following reasons: First, at page 82 of the record of appeal, the appellant confessed to PW1 when the latter was with two other people and there is no evidence that the appellant was under restraint. Second, at page 84 of the record of appeal, the appellant confessed orally to PW2 before the arrival of the police at the crime scene.

Third, much as the appellant confessed to PW4 in the presence of the police detectives, yet the appellant was a free agent the reason why he repeated the confessions he made prior to the arrival of the police detectives. His last argument was that, the appellant's advocate did not cross examine the prosecution witnesses during trial regarding that component of a free agent. He thus urged us to treat such argument as an afterthought. Responding to failure to call one Mtogwa in evidence, Mr. Kapinga argued that, his evidence was not key because, one, he did not witness the incident and two, that the appellant is the source of evidence in this homicide, through his oral confessions. He thus urged us to decline from drawing adverse inference to the prosecution case on account that, the courts are entitled to do so when the omitted evidence is material. In dealing with oral statements of admission made by the appellant to the prosecution witnesses, we have gathered from rivalling submission of the parties that, having expunged the cautioned statement, the evidence to consider is the oral admissions of the appellant to the prosecution witnesses that he killed the deceased. The issue we raised above is whether the appellant was a free agent at the time he made such statements. See also in Martin Manguku v. Republic, Criminal Appeal

No. 194 of 2024 (unreported). We raised that issue because, one, it is settled law that ora! admissions made by a suspect before reliable witnesses or in the presence of reliable witnesses, be they civilian or not, is sufficient to ground conviction against the person who made it. See Posolo Wilson @ Mwalyengo v. Republic (Criminal Appeal No. 613 of 2015) [2018] TZCA 635 20 February 2018; TanzLII) and two, such statements would only be valid, and therefore admissible provided the suspect was a free agent when he made such statements orally to those reliable witnesses. See Chamuriho Kirenge @ Chamuriho Julias v. Republic (Criminal Appeal No. 597 of 2017) [2022] TZCA 98 (7 March 2022; TanzLII). Having that settled legal principles regarding relevancy of the evidence of oral statements of admissions by the appellant in this case, it is clear as at page 84 of the record of appeal that, the appellant made such incriminating statements to PW2 in presence of a number of people and while being handcuffed. This is also the case in the evidence of PW3 at page 86 of the record of appeal. It is clear also that, PW4 at page 86 of the record of appeal, while in the company of police detectives, found the appellant handcuffed, at the crime scene, in presence of many people. It is said that the appellant admitted orally to PW4. At this time, besides

presence of many people/ the police detectives were also present. We think, under the circumstances, the argument of the learned Senior State Attorney to the effect that, the appellant was a free agent, may not sail without difficulties. If at all there were oral admissions made, then as stated in Chamuriho Kirenge @ Chamuriho Julias v. Republic (supra) at page 22, then the trial court should have gone extra miles in determining their voluntariness and, as we explained above, the appellant was not a free agent. We note at pages 134 through 136 of the record of appeal that, the learned trial Judge based his conviction on the cautioned statement (exhibit P3) and oral confessions. As demonstrated above, we expunged exhibit P3 for being recorded in contravention of section 50 (1) of the CPA. We have subsequently found that, the appellant was not a free agent when the alleged oral admissions were made to the prosecution witnesses. This evidence, again, is a suspect one. We think the two grounds suffices to dispose of the appeal. We thus, find it unnecessary to deliberate on grounds relating to failure to call material witnesses and that one in respect of failure to tender in evidence a knife deployed in the homicide.

In the end of it all, we find merit in the appeal which is accordingly allowed. The conviction is thus quashed and the sentence is hereby set aside. We order immediate release of the appellant from custody, unless there are other lawful causes to justify his remaining in custody. DATED at DAR ES SALAAM this 19th day of November, 2024. Judgment delivered this 26th day of November, 2024 in the presence of Appellant in person and Mr. Jerinus Nzanila, learned State Attorney for the Respondent/Republic connected through video conference from High Court Sumbawanga, js hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL