Hussein Hassan @ Antiti vs Republic (Criminal Appeal No. 541 of 2021) [2024] TZCA 1070 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: KEREFU, J.A., KIHWELO. 3.A And MDEMU, 3.A.) CRIMINAL APPEAL NO. 541 OF 2021 HUSSEIN HASSAN @ ANTITI..... J ...... . .............. . .... ................ .APPELLANT VERSUS THE REPUBLIC.................... . .... .v ............... . ............ ...............RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Sumbawanga) (Nkwabi. J.) dated the 28th day of October, 2021 in Criminal Sessions Case No. 53 of 2018 JUDGMENT OF THE COURT 1st & ,7th November, 2024 MDEMU. J.A.: In this homicide case, the appellant stood in the High Court of Tanzania sitting at Sumbawanga for the murder of unknown person. He was booked with that murder allegedly to have been committed on 7th June, 2017 at Makanyagio area within Mpanda District. The charges were preferred in terms of the provisions of sections 196 and 197 both of the Penal Code, Cap. 16 (the Penal Code).

Before we determine the substantive part of the appeal, we wish to provide a brief factual background as follows: In the morning of 7th June, 2017, H.577 D/C Faisal (PW1) reported as usual at his work station in the OC/CID's office at Mpanda. Upon arrival, he was informed by F. 2241 D/Cpl. Celcius (PW5) that, an unknown person has been killed around the residence where he (PWl) was also a tenant. PW1 obeyed and upon reaching at the scene, he found the room of his co-tenant, allegedly to be the appellant, open. He also saw some blood stains On the wall, all over the room and on the ground heading to the direction where the deceased body was. PWl then went back to the office only to be informed by one Mosha that the appellant is responsible for the homicide. Given such state of affairs, H.4119 D/C Ainea (PW2) and other police detectives rushed to the scene of crime, drew a sketch map (exhibit PI) and took the deceased's body to the morgue. The appellant was subsequently arrested on 9thJuly, 2017 by H.311 D/C Emmanuel (PW3). It is alleged that, upon being interrogated by PW5, the appellant confessed in his cautioned statement (exhibit P3) to have terminated the life of that unknown person, so was in his extrajudicial statement (exhibit P2) recorded by David Daniel Mbembela (PW4) on 15th June, 2017. The

autopsy to the unknown deceased's body was conducted on 13th June, 2017 by Dr. Teopista Eliza (PW6) whose report (exhibit P4) indicates severe blood loss as the cause of death. As said, it is against this background the appellant was arraigned for the murder of that unknown person. The appellant dissociated his involvement in his defence and maintained that, on the alleged incident date, he was at Sumbawanga. He tendered a bus ticket (exhibit Dl) in defence of that alibi. That notwithstanding, the High Court (Nkwabi, J.) convicted the appellant for the murder of that unknown person and sentenced him to suffer death by hanging. This was on 28th October, 2021. Aggrieved by that conviction and the capital punishment, the appellant filed a memorandum of appeal to this Court on 24th January, 2022 comprising of five grounds of appeal. Later, on 7th February, 2022 another memorandum of appeal containing six grounds of appeal was filed. The buttle of his rights continued to 25th October, 2024 through his assigned counsel one Peter Kamyalile by filing a supplementary memorandum of appeal comprising of one ground only. For reasons to follow soon, we will not be able to reproduce all the grounds of appeal in the foregoing memoranda.

The hearing of the appeal was on 1s t November, 2024. The appellant was ably represented by Mr, Peter Kamyalile learned advocate whereas Mr. Deusdedit Rwegira, learned Senior State Attorney appeared to represent the respondent/Republic. He outrightiy resisted.the appeal. At the inception of the hearing of the appeal, Mr, Kamyalile abandoned the entire memorandum of appeal filed on 7th February, 2022 and also grounds 2 and 5 (ii) in the memorandum of appeal filed on 24th January, 2022. We therefore reproduce the remaining grounds of appeal in the latter memorandum of appeal as follows:

1. That, the learned trial Judge erred in law and fact to convict and sentence the appellant on the basis o f the prosecution evidence which do not prove beyond reasonable doubt the information/charge o f murder against him.
2. That, in absence o f proof o f death o f the allegedly deceased, the learned trial Judge o f the High Court erred in law and fact to convict the appellant on the charge/information o f murder.
3. That, in absence o f the local leader and or neighbours to the scene o f crime called to testify in court, the learned High Court Judge erred in law and fact to convict and sentence the appellant as charged.
4. In the alternative;

(} ) That, while the death o f the deceased was a result o f fight between the deceased and the appellant who was drunk by then, and being provoked upon being hit by the deceased who was suspected to be a thief, coupled with the appellant's self-defence, the learned High Court Judge erred in iaw and in fact to find the appellant guilty o f the offence o f murder instead o f manslaughter (if any)" In the supplementary memorandum of appeal, the sole ground fronted by the appellant's counsel reads as hereunder: "The learned trial Judge erred in law and facts by basing its con viction and sentence on extra judicial statement and caution statement which were wrongly admitted in evidence and wrongly relied upon by the honourable trial Judge in convicting the appellant" In support of the appeal. Mr. Kamyalile argued all grounds of appeal in the memorandum of appeal filed on 24th January, 2022 as one. The supplementary ground was argued separately. Beginning with the former, his main thrust in challenging the conviction and sentence was in the following areas: One, that, the death of unknown person was not proved. In his argument, as the deceased was identified by relatives (page 81 of the record of the appeal) prior to the conduct of autopsy and the institution

of the charge, then the charge and the autopsy report should not have contained unknown person. In his argument, this led to multiple interpretation and the existence of two dead bodies, that is the one identified by relatives on 7th June, 2017 and the unknown one whose autopsy was conducted on 13th June, 2017. Surprisingly to the learned counsel, as the appellant was charged with the murder of unknown person on 7th June, 2017, then, to him, the appellant may not be connected with that death because the autopsy report shows that the body was fresh and the death was estimated to have occurred within twenty-four hours. According to the learned counsel, the dead body cannot remain fresh as from 7th June, 2017 when the incident occurred to 13th June, 2017 when the autopsy was conducted, Two, since the evidence on the death of the deceased leads to multiple interpretations, it was wrong for the trial court to base conviction on that evidence as stated in the case of Hassan Fadhili v, Republic [1994] T.L.R. 89. Three, as the conviction was also based on the confessions in the cautioned and extra judicial statements, then the appellant would not have been convicted of murder because the evidence in the two documents indicates that the appellant was drunk, there was

fight between the appellant and the deceased, thus the appellant acted in self-defence. These facts are incompatible with malice aforethought. He urged us to hold so banking on the case of Minani John and Others v. Republic (Criminal Appeal No. 435 of 2018 [2019] TZCA 666 (10th December 2019, TanzLII), Four, there are contradictions in the prosecution case as to the place the dead body was found. Whereas in the sketch map (exhibit PI), the unknown dead body was between Katavi Resort and Nuru Msomali, PW3 at page 80 of the record of appeal testified to have found the body in the back yard of the rooms. Five, is on failure to call material witnesses such as the area leaders and one Kombe who appeared to have knowledge of the dead body at the crime scene. In his submission, it was important to call such witnesses in evidence because they would have explained the place the dead body was and also if the appellant was a tenant in the house where PW1 was also a tenant. He cited the case of Hemed Said v. Mohamed Mbilu [1984] T.L.R. 112 inviting us to draw inference adverse to the prosecution case for that failure. Six, is in respect of the residence of the appellant at the time the offence was committed. In this one, it was his submission that, according

to PWl, by July, 2017 the house in question had two tenants, that is, PWl and one Ally Mzenji. To the learned counsel, this offers an interpretation that, at the commission of the offence, the appellant was not a tenant in that house. In it therefore, he argued, the appellant could not have committed the offence as alleged in the prosecution case. Last, in these grounds of complaint, is the credibility of PWl, which the learned counsel thought is questionable because; first, the information on the occurrence of the incident was supplied to him by another person, second, being a tenant to the place the deceased's body was found, it was highly improbable for him to have no any clue regarding the incident. Third, it is not possible as per the sketch map that, it is only the police detectives, and no one else, witnessed the dead body at the place it was. He thought such evidence creates doubts in the prosecution case which should be in favour of the appellant. He referred us to the case of Suleiman Dago @ Swalehe v. Republic (Criminal Appeal No. 59 of 2022) [2024] TZCA 280 (29th April, 2024 TanzLII) in reinforcing that argument. Submitting on the supplementary ground of appeal, the learned counsel drew our attention that, PW4 and PW5 explained the contents of those confessions, that is, the extrajudicial statement (exhibit P2) and

cautioned statement (exhibit P3) before they were admitted in evidence. He said, such a procedure is uncalled for. He thus cited the case of Paschal Ndalanhwa v. Republic (Criminal Appeal No. 262 of 2020) [2023] TZCA 17400 (12th July 2023, TanzLII) urging us to expunge the two confessions. He finally submitted to have knowledge that, the two documents were not objected when they found their way in evidence. He however invited our intervention so as to ensure subordinate courts heed to the law. He, in the end, cited in this respect, the case of Evarist Arbogust v. Republic (Criminal Appeal No. 60 of 2021 [2024] TZCA 348 (1.0th ' May, 2024, TanzLII) imploring us to find the argument meritorious. In reply, Mr. Rwegira submitted that, the evidence on record do not prove the offence of murder as charged but rather the cognate offence of manslaughter. He thus submitted that, the cause of death was proved by the pathologist during autopsy and not merely through identifying the dead body by relatives. He added that, there was only one dead body and the fact that in the autopsy report dated 13th June, 2017 the body was fresh, in itself is not evidence that the appellant is not connected with the murder of unknown person occurred on 7th June, 2017. He found this contradiction a minor one.

Responding to the credibility of PW1, which is pegged on his failure to have knowledge on the presence of the dead body in circumstances where he spent a night at his rented room, and also by his averment that, the appellant was not his co-tenant, Mr, Rwegira argued that, the witness is credible. He assigned two reasons. One, PW1 did not spend his night in his rented room, as such he may not be blamed for his ignorance on the occurrence and two, the appellant was a tenant, a fact which is corroborated by the appellant himself in his uncontradicted extrajudicial and cautioned statements (exhibits P2 and P3 respectively). Regarding failure to call material witnesses, his argument was that, the complaint is baseless because the alleged uncalled witnesses, Kombe inclusive, were neither landlords: nor witnessed the incident. As to the contradiction complained by the appellant on the place the dead body was, the learned Senior State Attorney submitted that, the said contradiction is resolved by the evidence of the appellant contained in the cautioned and extra judicial statements. In the said confessions, according to Mr. Rwegira, the appellant stated to have shifted the dead body to another place from the crime scene.

Submitting on the propriety in the admission of the cautioned and extrajudicial statements, he submitted that, the complained narrations of the contents of the cautioned and extrajudicial statements before their being admitted in evidence is not among the requirements in Ronbinson Mwanjisi and Three Others v. The Republic [2003] T.L.R. 218. What is important to be observed regarding the procedure to tender documents is the clearance of the document for admission and further, the reading it after it has been admitted. He concluded that, •the cautioned and extrajudicial statements were properly admitted in evidence. He added that, since in the two confessions the evidence of fight and self-defence is prevalence, then section 300 of the Criminal Procedure Act, Cap. 20 be invoked to hold the appellant criminally responsible for the cognate offence Of manslaughter for want of malice aforethought. The case of Chausiku Nchama Magoiga v. Republic (Criminal Appeal No. 297 of 2020) [2023] TZCA 17810 (9th November, 2023 TanzLII) was cited to us by the learned counsel for that purpose. Having heard from the parties' submissions and upon our glance to the entire record of appeal, what comes for our immediate consideration is whether the appellant is linked with the death of unknown person. Our

approach for that matter takes the course which the two learned counsel took in their respective submission by responding to aspects instead of submitting to the grounds of appeal chronologically. We will therefore resolve two issues. One is whether the trial court property based a conviction on confessions (exhibits P2 and P3) whose contents were narrated prior to their being admitted in evidence and two, whether there is other evidence, besides the confessions within which the conviction would base. Beginning with the manner through which the extrajudicial statement (exhibits P2) and the cautioned statement (exhibit P3) found their way in the trial court, the learned counsel faulted the trial Judge to allow witnesses to narrate the contents of such statements before they were tendered in evidence. Is this what happened in the trial court? Let the record speak by itself as at page 83 of the record of appeal in the evidence of PW4 who tendered the extrajudicial statement: "In his statement he said he had been struck by the deceased and the accused bit him with a brick. In the room, he hit the deceased to his death. He went to sleep in Makanyagio Mosque...."

Having narrated the contents of the extrajudicial statement, PW4 at page 84 of the record of appeal went on testifying as hereunder: n PW4: This is the extrajudicial statement I recorded from Hussein Hassan. I pray the court to admit the same as an exhibit" Regarding exhibit P3, that is the appellant's cautioned statement, the record speaks as follows as at page 87 of the record of appeal: "In his statement he confessed that it is true that on 07/06/2017 at 00’10 am when he was from walk near his home near Katavi Resort, he met a man who was carrying a blue large bucket (jaba). That person beat him up on the leg. He took a brick and beat the thief with the brick on the head. The bandit fell down. He questioned the bandit where he took it The bandit took him to where the accused was residing ..," Having narrated that story, PW5 continued to testify as follows: "PW5: This is the very cautioned statement I recorded from the suspect. I pray the caution statement be admitted as an exhibit ." After this narration, at page 88 of the record of appeal, the said cautioned statement was admitted as exhibit P3, so was the admission in 13

evidence of the extrajudicial statements as exhibit P2. We find it clear that, both PW4 and PW5 made narrations of the contents of the appellant's confessions in the cautioned and extrajudicial statements before they were able to tender them as exhibits. Mr. Kamyalile faulted that procedure and invited us to take the position we took in Paschal Ndalanhwa v. Republic (supra) and proceed to expunge the two confessions following the impropriate. Mr. Rwegira was flabbergasted on the invitation because what is required, as we did in Robinson Mwanjisi (supra) is the clearance of the document before admission and the reading it after being admitted as an exhibit. To him, the issue of narration of the contents of the statements before being admitted as an exhibit is not among the principles laid down in Robinson Mwanjisi (supra). He thus implored us not to heed to the invitation. With due respect to Mr. Rwegira, we think that line of thinking missed the letters of the law. We did consider and had in mind the principles stated in Robinson Mwanjisi (supra) when dealing with the case of Paschal Ndalahwa (supra) regarding the modalities of admitting in evidence the cautioned and extrajudicial statements. We then held at page 10 through 11 of the judgment in Paschal Ndalahwa (supra) that:

"Next on our list is the appellant's confession statement (Exhibit P2) which was admitted in evidence after its contents were narrated in court by PW7, the recording police officer, contrary to the established norm, upon a careful reading o f the applicable law, we are left with no doubt that it was quite wrong for PW7to narrate the contents o f the appellants cautioned statement to the trial court before it had been cleared for admission. See Ronbinson Mwanjisi and Three Others v. The Republic [2003] T.LR. 218, Ntobangi Ke/ya and Three Others v. Republic, Criminal Appeal No. 256 o f 2017 and Omari Said @ Mami and Another v. Republic, Criminal Appeal No. 99/01 o f 2014 (both unreported)." Guided by the above settled legal principle, we proceed to expunge exhibits P2 and P3 from the record. Having expunged both the extrajudicial and cautioned statements, next is what we reserved for consideration as to whether there is other evidence on record, besides the confessions, within which to base conviction. We will go with Mr. Kamyalile along the points he submitted to us. First, we entirely agree with the learned counsel that the deceased was identified by relatives prior to the conduct of autopsy and the

institution of the charge. It was therefore improper, as argued by Mr. Kamyaiile, for both the charge and autopsy report to contain unknown person. The record of appeal at page 81, in the evidence of PW3 speaks this way: "PW3, I arrested the accused person on 09/06/2017. The relatives o f the deceased came and identified the body o f the deceased." Second, it is not known if the body identified by relatives on 7th June, 2017 is the same dead body whose autopsy was conducted on 13th June, 2017. Third, is the appellant connected with the unknown dead body as per the charges on 7th June, 2017 or as per the autopsy report Which was conducted on 13th June, 2017. Fourth, how many dead bodies are involved in this homicide? As argued by the (earned counsel for the appellant, the foregoing evidence not only leads to multiple interpretations, but also creates doubts which, in our respect view, should benefit the appellant. We have also considered complaints of the appellant on failure to call material witnesses. We demonstrated above that; the deceased body was identified by relatives. The record of appeal is siient as to who are those

relatives and their whereabouts. It is in evidence further that one Kombe had knowledge regarding the dead body at the crime scene. Again, his whereabout is unknown. As if that was over, given the nature of the offence, none of the local leaders testified, at least on account of witnessing the dead body in their locality. Again, PW1 saw some blood marks and blood stains in the walls and floor of the appellant's room. This remained in the words of PW1 alone. The sketch map (exhibit PI) indicates some blood marks signalling someone dragged the deceased body from point "B" where the deceased was murdered to point "A" where the body was found. All these remain unproven, but the learned Senior State Attorney argued to be unnecessary. We think, he slipped. The local leaders of the area, neighbours, one Kombe and the relatives were material witnesses. Their evidence would have cleared the doubts on; one, the identification of the deceased body, two, the place the deceased body was found, three, if the appellant and PW1 were co- tenants and four, what happened to the deceased body from 7th June, 2017 when it was found, as alleged, to 13th June, 2017 when the autopsy was conducted.

Such witnesses were not called. Mr, Kamyalile invited us to draw inference adverse because it is silent in the prosecution case what prevented the prosecution machinery to have the evidence of those witnesses in court. We think he is right, We are aware that under section 143 of the Evidence Act, there is no particular number of witnesses required for proof of a particular fact, This one is settled. However, as a general rule, the prosecution are charged with the duty of calling material witnesses who are able to testify on material facts in connection with the transaction in question. At any rate, if such witnesses are not called and there is no explanation for not calling them, the court may draw an inference adverse to the prosecution case. See Azizi Abdallah v. Republic [1991] T.LR. 71. Guided by the above principle, we accordingly draw an inference adverse to the prosecution case for want of plausible explanations and reasons on the record of appeal which prevented the procurement of those material witnesses. Having expunged the. appellant's confession and having drawn inference adverse to the prosecution case, there remain no evidence on

record to consider for the determination of ground 4 (i) of the appeal argued in the alternative. In the final analysis, we find merit in this appeal and we allow it. The conviction of murder is thus quashed and the capital punishment is accordingly set aside. We order release of the appellant from custody unless there are other compelling lawful causes to keep him in custody. DATED at SUMBAWANGA this 7th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 7th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL