Sungwa Mpelwa vs Republic (Criminal Appeal No. 136 of 2022) [2024] TZCA 1059 (6 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: MWANDAMBO. J.A.. RUMANYIKA. J.A.. And KHAMIS, J.A.^ CRIMINAL APPEAL NO. 136 OF 2022 SUNGWA MPELWA.......................................................................... APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Mkwizu, 3.) dated the 11th day of March, 2022 in Criminal Session No. 34 of 2017 JUDGMENT OF THE COURT 30th October & 6th November, 2024 KHAMIS, J.A.: This is a first appeal from the judgment of the High Court of Tanzania, Shinyanga in which the appellant was charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E 2019 (the Penal Code). The particulars of the offence were that, on 27th day of March, 2016 at or about 01.00 hours at Pugu Village, within Bariadi District, Simiyu Region, the appellant murdered his own blood sister, Mbula Mpelwa (the deceased). At the trial, the prosecution fielded five (5) witnesses after which the trial Judge (Mkwizu, J) found a prima facie case was established. The

appellant was placed on his defence and by the Judgment delivered on 11th March, 2022, he was convicted as charged and sentenced to suffer death by hanging. Dissatisfied with the whole judgment and sentence meted out by the trial court, the appellant preferred the instant appeal urging this Court to quash the conviction, set aside the sentence and acquit him on twin grounds, namely: first, that the learned trial Judge erred in law to rely on the extra judicial statement (exhibit PI) and cautioned statement (exhibit P2) which required corroboration; and; second, that the learned trial Judge erred in law in convicting the appellant while the case against him was not proved beyond reasonable doubts. Briefly stated, at the trial, PW1 Saka Nindwa, daughter of the deceased, was the centre of attention. On the fateful date, 27th March, 2016 she shared a room with her mother and was the only eye witness to the incident. At 01.00, she heard a bang on the door and two people stormed in holding a torch. The witness was ordered to take a cover to which she complied. As the duo men proceeded to cut the deceased with a panga, PW3 heard her scream in agony, saying: "Sungwa, nimekukosea nini unaniua / 7 / V / / 7 / V / " meaning, Sungwa, what wrong have I done? Why do you kill me?

The witness said, upon cutting the deceased, the assailants switched off their torch and left the scene. PW3 came out of the hiding and went to report the incident to her brother, Gesa, whose house was nearby. On cross examination, the witness said the two assailants were dressed in long coats which prevented them from identification. On further cross examination, she said, they shone the torch onto her face which blocked her to see their faces. Questioned about the appellant who is an uncle, PW3 said she did not hear his familiar voice during the incident. On further probing, she clarified that, until policemen arrived at the scene, she had no idea on who had attacked the deceased. She maintained that, the appellant was not in good terms with the deceased and that she named him during the attack. PW4 Tabu Dotto was the deceased's daughter in law. She narrated the nature of a quarrel between the appellant and the deceased, that, the appellant refused to repay TZS 600,000.00 borrowed from the deceased which was a bride price for her daughter. The witness said in scaring the deceased to stop demanding the money, the appellant sent her an anonymous letter with a picture of a machete drawn on it implying she was at the verge of an attack. The incident was reported to the hamlet

chairman. On cross examination, PW4 maintained that, during the incident, the deceased had shared a room with PW3 and some children. PW5 Coplo Aloyce, a police officer with force number E 8038, arrested the appellant at Nzela Village, Geita. According to him, the appellant was arrested twice, on 31st March, 2016 but admitted to bail on the same date and on 3rd April, 2016 after 22.00 hours. He said after learning the death, he became suspicious of the appellant who had previously threatened to kill his deceased sister. The early 2016 incident on the anonymous letter with a drawn picture of a machete on it was reported by the deceased at Nzela Police Station where PW5 was the Officer Commanding Station (OCS). Upon questioning, the appellant denied to kill the deceased and even claimed to have attended her burial at Pugu Village, Bariadi District, Simiyu Region. However, on 3rd April 2016 the Officer Commanding Criminal Investigation Department (OCCID) Geita, ASP Kiganja, instructed him to re-arrest the appellant in connection with a suspicious death of the deceased investigated at the Bariadi Police Station. Upon a re-arrest, the appellant was transported to Geita Police Station for onward transfer to Bariadi Police Station. On cross examination, PW5 said the deceased had shown him the anonymous letter allegedly written by the appellant when the deceased visited him in 2016. On re-examination, the witness said no formal

charges were made against the appellant because the deceased preferred to resolve the issue within the family. PW2 D/SSGT James, was in the investigation team that visited the scene of crime in the morning of 27th March, 2016. At the scene, he witnessed a post mortem examination of the body and recorded witness statements. On 5th April, 2016 he travelled to Geita and transported the appellant to Bariadi Police Station where he recorded his cautioned statement. After a trial within trial, the statement was admitted as exhibit P2. In the statement, the appellant confessed to team up with his son, Msafiri Sungwa, to kill the deceased. The post mortem report admitted as exhibit P3 showed the deceased had multiple deep cut wounds on the head (fractured skull) and left wrist separated from the left fore limb. The cause of death was severe bleeding. After recording the cautioned statement, the appellant was taken to a justice of peace at Somanda Primary Court where PW1 Liberata Muhagama, reduced his confession to writing. The appellant was so presented by one Idd, a policeman who made the usual introduction and placed him in the custody of the justice of peace. PW1 ensured the policeman had walked away from the court premises before she sat down to record the statement. Satisfied there was no one else in the office, she introduced herself and educated the appellant on his rights as per the

Chief Justice Guide for the Justices of Peace (CJGJP). The appellant voluntarily recorded the statement and confessed to kill the deceased following which the extra judicial statement was read over to him and he signed to verify its correctness. The confession statement countersigned by PW1 was admitted in evidence as exhibit PI. On cross examination, PW1 said the change of dates on the statement was suggested by the appellant himself. On re-examination, she maintained that, the statement was recorded on 5th April, 2016 and not 8th April, 2016. When put to his defence, the appellant testified on oath stating that, he recorded a statement before afande James (PW2) at Bariadi Police Station on 5th April, 2016 and denied to kill the deceased whose burial he did not attend. Although he was arrested after her burial at Itubukilo, he was not aware if any member of his household had attended the ceremony. He never visited the deceased whose children were not acquainted to him. Due to lack of interaction, he did not know names and number of the deceased's children. He admitted the deceased had reported him at the police station in respect of the letter of threats but disassociated himself from its contents.

At the hearing, Mr. Augustino Michael Ijani, learned advocate, appeared for the appellant who was also present in person. Mses. Suzan Masule and Violeth Mushumbusi, learned Senior State Attorneys, joined forces to represent the respondent Republic. In support of the appeal, Mr. Ijani submitted that exhibits PI and P2 could not stand alone without corroboration. He contended that although the two confession statements were allegedly made by the appellants, their contents sharply differed making it hard on which one to trust. He drew our attention to pages 103, 104, 105, 106 and 107 of the records thereby contending that contents of the two documents did not match. The learned counsel for the appellant advanced that, whereas in exhibit P2, the appellant allegedly said he committed the offence with his son, Msafiri Sungwa, in exhibit PI, he was alone. Another cited difference was on the dates. He contended that, in exhibit P2 the appellant was arrested on 31st March, 2016 while in exhibit P2 the date of arrest was 3rd April, 2016. He added that exhibit P2 showed while at Nzela, the deceased stayed with the appellant but in exhibit PI, it was written that the deceased stayed elsewhere.

The learned counsel forcefully argued that, the other remaining witnesses, including PW3 who shared a room with the deceased at the time of the incident, failed to corroborate the confession statements. On the second ground of appeal, Mr. Ijani asserted that, during the trial, the prosecution witnesses failed to lead evidence to prove that the appellant committed the offence charged. He reasoned that, the appellant did not run away after the incident but submitted himself to the police when called upon to do so, a conduct which suggested his innocence. He invited us to find that the evidence of PW3, PW4 and PW5 was insufficient to establish commission of the offence by the appellant and hence allow the appeal. Ms. Masule energetically opposed the appeal and supported the appellant's conviction and the sentence. She submitted that, the grounds raised by the appellant were sufficiently addressed by the trial court and drew our attention to pages 128, 129 and 130 of the record which show findings of the trial court on the issues in dispute. She enunciated that, the confession statements were corroborated by other pieces of evidence although the extra judicial statement (exhibit PI) did not require any corroboration as it was not objected to during trial.

The learned Senior State Attorney cited the case of Umalo Mussa v. Republic, Criminal Appeal No. 150 of 2005 (unreported) where we opined that, when a statement is voluntarily made, truthful and properly admitted in evidence, it does not require any further corroboration. Pointing out the incidents of corroboration, the Senior State Attorney referred us to the testimonies of PW3 at pages 51 and 107 of the record; PW4 at pages 59 and 103 of the record; and the post mortem report (exhibit P3) at pages 109 to 111 of the record. She invited us to find the two cases that were listed down by the appellant were distinguishable from the facts of this appeal, namely: Ally Bakari & Pili Bakari v. Republic [1992] T.L.R 10; and; Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013 (unreported). She expounded that in Ally Bakari (supra) no confession statement was tendered but the prosecution relied on the doctrine of recent possession while Mashimba Dotto (supra) involved an allegation of torture which is not the case in this appeal. On the alleged contradictions of the dates shown on the confession statements, Ms. Masule was adamant that no such contradiction existed as alleged or at all. She referred us to pages 32, 34 and 101 of the record and argued that, the prosecution proved its case beyond reasonable doubts. She maintained that the evidence adduced by the five prosecution

witnesses was unshaken throughout and that, on account of his own confession, the appellant had undoubtedly committed the offence. The learned Senior State Attorney was of the view that ingredients of the offence of murder were clearly brought out by the prosecution. There was no rejoinder from the learned counsel for the appellant. As this is a first appeal, we are obliged to subject the evidence on record to our own re-appraisal and draw inferences of fact and come up with our own decision on the issues on record. We shall also pay attention to the findings and determinations made by the trial Judge who had the advantage of physically seeing and listening to the witnesses who testified before her. Having regard to the grounds of appeal, the following appear to be the issues for our determination: first, whether the extra judicial statement (exhibit P i) and the cautioned statement (exhibit P2) were wrongly relied upon by the trial court to convict the appellant for lack of corroboration; and; two, whether the case against the appellant was proved beyond reasonable doubts. On whether exhibits PI and P2 were wrongly relied upon to convict the appellant for lack of corroboration, the learned counsel for the appellant is adamant that, the trial court misdirected itself in convicting

the appellant for lack of corroboration of the two confessional statements. The appellant recorded the extra judicial statement (exhibit PI) and the cautioned statement (exhibit P2) before PW1 and PW2 respectively. The law on this area was well stated by this Court in Ali Salehe Mrutu v. Republic [1980] T.L.R 1 thus: "It has long been established as a rule o f practice in East Africa, including in this country, that a repudiated confession , though as a m atter o f law may support a conviction , generally requires corroboration as a m atter o f prudence, as is the case with a retracted confession . " In Bombo Tomola v. Republic [1980] T.L.R 254 we upheld the appellant's conviction and approved the trial Judge's findings that the testimonies of PW2 and PW3 provided ample corroboration of the repudiated confession. We also reasoned that, since the appellant had made an earlier similar confession to her cell leader, PW4, the conviction could have based entirely on the repudiated confession without looking for corroboration since, under the circumstances, the confession could not be anything but true. In Emmanuel Joseph @ Gigi Marwa v. Republic, Criminal Appeal No. 57 of 2002 (unreported), we applied the above legal principles

and took the view that it is highly unsafe to sustain a conviction of the appellant on the basis of the retracted confessional statements which were not corroborated. We spelled out that it is always desirable to look for corroboration in support of a retracted or repudiated confession but the court may convict on such confession if it warns itself of the danger of convicting without corroboration and it is satisfied that the confession could not be but true. In this appeal the extra judicial statement (exhibit PI) was neither repudiated nor retracted by the appellant when it was introduced into evidence. The record shows that when PW1 sought to tender the confessional statement in evidence, Mr. Martin Sabini, learned counsel for the appellant, stated: V e have no any o b je c tio n That means, the appellant who was fully represented throughout trial did not deny the truth or validity of the document which incriminated him. Therefore, we are satisfied that exhibit PI required no corroboration. As for the cautioned statement (exhibit P2), the record shows that when PW2 sought to tender it in evidence, Mr. Sabini raised an objection that the document was not made by the appellant. That objection necessitated the trial court to go for a trial within trial. At the end of the mini trial which involved one prosecution witness and one defence witness in the absence of assessors, the trial Judge found the statement was truly

made by the appellant and overruled the objection. In the circumstances, the question is whether this confession statement was corroborated. From the onset, it should be noted that this issue was addressed by the trial court at page 130 and 131 of the record, thus: "Apart from finding that the accused confession statem ents contain nothing but truth , the accused's two confession statem ents are not without corroboration. PW 3's evidence on how the deceased was attacked, the attire o f the accused on the m aterial time. PW 4's evidence on the status o f the deceased im m ediately after the incident and the details o f the post mortem report (exhibit P3) supports what is stated by the accused in his confession statements." Having scrutinized the record, we are in agreement with the trial court that exhibit P2 was sufficiently corroborated by other pieces of evidence as we shall demonstrate soon. At page 107 of the record, the appellant was recorded in the cautioned statement (exhibit P2) describing how the deceased was invaded in her house, thus: "Baada ya kufika pale tulipiga miango na kuingia ndipo nilipom m ulika tochi na kukuta dada yangu huyo wamelala wawiii ndipo yule binti nilipomwambia kwamba lala chini. Huyu kijana wangu M safiri akamkata mapanga Mbula D/o

Mpe/wa alipom aliza kumkata tukaondoka usiku huo hadi Bariadi m jini na kesho yake nikaondoka kurudi huku k ijijin i." Literally, the above passage can be translated to mean, when the appellant and his son, Msafiri Sungwa, invaded the deceased, they bang the door and stormed in the room where the deceased and another lady were sleeping on a bed. The appellant switched on a torch which he had to see the room. It was Msafiri Sungwa who slashed the deceased with a machete after the appellant ordered the lady (PW3) to take cover. This confession was corroborated by PW3 who at page 50 of the record said, she heard a bang on the door before two people entered the room holding a torch. They told her to take cover which she did and proceeded to cut the deceased with a machete. On cross examination at page 51 of the record, PW3 said she shared a bed with the deceased when the two men entered the room and ordered her to take cover. She testified that both men were dressed in long coats which corresponds with the appellant's confession at page 107 of the record that both Msafiri Sungwa and him were dressed in long coats during the attack. Describing the scene immediately after the incident, PW4 said she found the deceased profusely bleeding having been cut on the head and

the hands which made her speechless and snoring. This corroborated the appellant's confession in exhibits PI and P2 that the deceased was cut with machete until she died. On the second issue, we are called upon to determine whether the prosecution proved its case beyond reasonable doubts as found by the trial court. The appellant's counsel contends that the prosecution failed to establish the offence of murder stipulated under the Penal Code. The learned Senior State Attorney asserted that, the well corroborated confession statements proved the elements of murder and exhibited the appellant's role in the gruesome incident. The offence of murder under section 196 of the Penal Code requires proof of the key elements that: an unlawful act or omission that causes death; with malice aforethought. It is trite law that the act or omission must be deliberate and without any lawful excuse. In its decision, the trial court found the deceased was murdered by a machete and the cause of death as per the post-mortem report (exhibit P3) was severe bleeding. Describing the extent of injuries on the body, exhibit P3 showed the deceased had multiple cut wounds on the head and left wrist which was separated from the left fore limb. Having regard to the conduct of the appellant before and after the incident as testified by

PW5, the trial court found the killing of the deceased was with an ill intention and therefore malice aforethought established as required under section 200 of the Penal Code. Admittedly, we did not find any area to fault the trial court in its findings. Our scrutiny of the contents of exhibits PI and P2 in which the appellant confessed to kill the deceased, show his admission to the elements of murder as listed above. In our view, these statements qualify as conclusive proof of the commission of the offence under section 3 (1) (c) of the Evidence Act, Cap 6 R.E 2019. Next for our consideration is the allegation that the prosecution evidence was contradictory. The learned counsel for the appellant contended that there was confusion as to which date the appellant was arrested and recorded the extra judicial statement. This issue should not detain us as it was sufficiently covered by the trial court in its decision imaged at page 130 of the record, thus the inconsistencies are not material and did not twist the accused's confession of the ingredients of murder. In our considered view, the same fate befalls the counsel allegations that the dates were altered or cancelled and not countersigned by PW1. Such omission to countersign the corrected date of arrest which was

volunteered by the appellant himself is by no means fatal as the said date was corroborated by other pieces of evidence in the testimonies of PW1, PW2, PW5 and DW1. For the reasons stated, we dismiss the appeal in its entirety. DATED at SHINYANGA this 5th day of November, 2024. L. 1 S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 6th day of November, 2024 in the presence of the appellant in person, Mr. Augustino Michael Ijani, learned counsel for the Appellant and Mr. Goodluck Saguya, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL