Edger Jackson Lulemi @ Edger Jackson Lulemi vs Republic (Criminal Appeal No. 167 of 2023) [2024] TZCA 847 (2 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA ( CORAM: MWARIJA. 3.A.. KEREFU. J.A. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 167 OF 2023 EDGER JACKSON LULEMI @ EDGER JACKSON LULENI................APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) (Madeha. J.l dated the 9th day of February, 2023 in Criminal Sessions Case No. 52 of 2022 JUDGMENT OF THE COURT 7th August & 2n d September, 2024 MWARIJA, J.A.: This appeal is against the decision of the High Court of Tanzania at Songea (Madeha, J.) dated 9/2/2023. The impugned decision arose from Criminal Sessions Case No. 52 of 2022 in which, the appellant, Edger Jackson Lulemi was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. The particulars of the offence were that, on 18/8/2021, at Dar Pori area within Lunyele Village in Nyasa District, Ruvuma Region, the appellant murdered on Jofrey Filmon Mbepela (hereinafter "the deceased"). When the information was read over to the appellant, i

he pleaded not guilty thus impelling the prosecution to call a total of 10 witnesses with a view to prove its case. For the defence, the appellant relied on his own evidence without calling any other witness. The background facts giving rise to the trial of the appellant and subsequently, the decision from which this appeal arose, may be briefly stated as follows: The deceased was a minerals dealer having his business office at Dar Pori area in Nyasa District. The office was being guarded by two watchmen from a security company known as Commercial Coal Security Company owned by one Danroof Mbinga. On the date of the incident, the appellant was one of the watchmen who were on duty at the deceased's office. The other watchman was one Emmanuel Masosi Ngongi. On that night, the deceased arrived with his girlfriend, one Neema Kassian Komba (PW10) and went with her in his room. At some moment at night, the deceased went out in response to a phone call. He returned but a short time later, when he went out, he did not return. In the morning, he was found dead. His body was outside, near the door of his office.

The incident caused a gathering of people at the scene. The appellant was however, not at the scene, the fact which raised suspicion that he was involved in the killing of the deceased. He was later arrested at Shawtshi Village and consequently, charged as stated above. In her evidence, PW10 stated that, while she was asleep, she was awakened by a sound of a gunshot. According to her, although she heard a gunshot, she did not suspect anything bad because she was used to it as firing of a gun was usually done at the area to scare thieves. She testified further that, after the deceased had gone out for the second time, the appellant went into the room and asked for keys which he took from the pocket of the trousers of the deceased on the pretext that, the deceased had sent him to take them. She added that, the appellant tried to persuade her to leave in that night but refused telling him that, she would leave in the morning. When she woke up and got out in the morning, she found the deceased's body near the door of his office. She noticed that the appellant and his co-watchman had fled. The police received information about the incident from the Village Executive Officers of Kunganita and Nyunyele Villages, Alex Simon Malimi (PW9) and Yasinta Hyera respectively. On that information, G. 2749, D/C Elia (PW7) of Tingi Police Station together with other police officers 3

including F 6985 D/CPL Nyabwise (PW4), went to the scene. He found the deceased's body lying down as stated above. At the scene, he also found one bullet and three spent cartridges. He collected them and prepared a certificate of seizure. He also drew a sketch map of the scene of crime (exhibit P9). In his further investigation, he obtained a copy of the appellant's contract of employment and his license to possess a firearm. On 23/8/2021, he took the appellant together with the collected items and documents to Mbambabay Police Station. The arrest of the appellant at Shawishi Village was facilitated by Ditrick Flavian Ndunguru (PW3), a militiaman of that Village. It was his evidence that, on 22/8/2021, he received information that there was a stranger in the village who was alleged to have committed murder. He investigated on the matter and caused the arrest of the appellant. The police arrived at the village, arrested the appellant and seized his motorcycle, Registration No. MC 840 CNY, red in colour. The same was later tendered and admitted in evidence as exhibit P4. Upon being interviewed, he also led the police to where he had hidden the gun which was entrusted to him by his employer to use it in his duty as a watchman of the deceased's office. The gun with registration No. TZ

CAR 89319, serial No. 05068026 was recovered at Mtungulusi Village where the appellant had hidden by burying it underground. As stated above, on 23/8/2021 the appellant was taken to Mbambabay Police Station. At the police station his cautioned statement was recorded by ASP Zabron Msusi (PW8). The statement was admitted in evidence as exhibit P ll. The witness, who stated that the appellant confessed to have committed the offence, tendered also the certificate of seizure of the gun as exhibit P8 as well as the contract of employment of the appellant and his license to possess a firearm as exhibits P10 collectively. Testifying further, PW8 stated that, he took the gun, a bullet and three spent cartridges to the Forensic Investigation Bureau, Dar es Salaam and after examination, he returned and handed them to the exhibits keeper, WP 11520 D/C Teddy (PW1) who tendered them in court as exhibits PI, P2 and P3 respectively. The gun and the ammunition were examined by H 4225 P/C Elisha Timoth (PW2). It was his evidence that, upon his examination, he concluded that the cartridges were fired from the gun (exhibit PI). He tendered his examination report as exhibit P5. The other prosecution witness, Kamilius Wilfred Lupembe (PW6), a watchman who was on the material night on duty at another office, the office of Senk Mkwama,

testified that, he heard a gunshot at the scene and when he went to inquire from the appellant, he replied that he killed a thief. When he went to the scene however, he saw the body of the deceased and found that none of the two watchmen was there. In his defence, the appellant, who testified as DW1, did not deny that he shot and killed the deceased. His defence was that, the shooting occurred in the course of a fight between him and the deceased. He did not also deny that, on the material date at night, he was on duty at the deceased's office premises having been posted there by his employer, Commercial Coal Security Company. He testified that, while on duty, at about 9:00 p.m the deceased arrived at the office and asked to be handed a gun so that he could go and open the door to take a gas cylinder. He handed the deceased the gun but shortly thereafter, he saw the deceased with another person and since the deceased was pointing the gun at him, a scuffle ensued. According to DW1, he saw that the deceased's finger was on the trigger and suddenly, fired a bullet which hit him (DW1) on his cheek and fell down. While on the ground, he saw the images of four persons who had covered their faces. They told him to take the gun from the deceased but when he went and struggled to take it, he turned the gun on the direction of the deceased and

accidentally fired a bullet which hit and killed the deceased. It was his further evidence that, after the incident, he became worried and therefore, fled to Kingunita Village using his motorcycle. He added that, on 22/8/2021, his mother in law reported the matter to the police. He admitted that, after his arrest, he led the police to where he had hidden the gun, the property of his employer and the one from which, he fired the bullet which killed the deceased. At the conclusion of the trial and after having considered the evidence, the learned trial Judge found that, the prosecution had proved its case beyond reasonable doubt. She relied on the appellant's cautioned statement and the conduct of the appellant of fleeing from the scene of crime after the incident. She found that, the appellant's defence did not raise any reasonable doubt against the prosecution evidence, rather, she was of the view that, it was an afterthought. The appellant was aggrieved by the decision of the High Court hence this appeal in which he had initially filed two memoranda of appeal consisting of fourteen grounds of appeal. Later however, his advocate filed a supplementary memorandum containing five grounds.

On the date when the appeal was called on for hearing, the appellant was represented by Mr. Eliseus Ndunguru, learned counsel while Ms. Hellen Chuma, learned Senior State Attorney represented the respondent. At the outset, Mr. Ndunguru informed the Court that he would argue the five grounds contained in the supplementary memorandum of appeal. He explained that, the supplementary memorandum was filed in substitution of the two memoranda filed by the appellant in person. He intimated thus that, he had abandoned the fourteen grounds previously filed by the appellant. In his substituted memorandum of appeal, the learned counsel raised the following grounds: "l.That, the trial court erred in law when it conducted the trial while ignoring the right o f representation to the appellant. 2. That, the trial court erred in taw when it recorded evidence contrary to the dictates o f the Criminal Procedure (Record o f Evidence) (High Court) Rules, 1953 G.N. 28 o f1953. 3. That, the trial court erred in law when it admitted exhibits which the witness did not pray to be admitted. 8

4. That, the trial court erred in iaw in convicting the appeiiant [while] the prosecution [had] failed to prove [its] case beyond reasonable doubt
5. That, the trial court erred in law and in fact when it admitted exhibit P ll which was recorded contrary to the requirement o f section 57 o f the Criminal Procedure Act Cap. 20 R.E. 2019" Starting with the 1s t ground of appeal, Mr. Ndunguru submitted that, the appellant was not afforded the right of being properly represented by an advocate. The basis of the complaint is the act of the learned trial Judge of asking in turn, the appellant and his advocate whether they had any objection to the prosecution's prayers to tender exhibits. He referred the Court to the proceedings of the trial court where the procedure complained of was adopted by the learned trial Judge. On page 37 of the record of appeal for instance, when the prosecution sough to tender the motorcycle (exhibit P4), it was only the appellant who responded to the prosecution's prayer. The record shows as follows: "PW1 ...I pray to tender the motorcycle [as] exhibit in court.

Accused: I have no objection to the tendering of the motorcycle. Court: The motorcycle with Registration Number MC 840 CNY [make] Haojue is admitted and marked as exhibit P4". Again, at page 73 of the record of appeal, the following transpired: "PW8... I pray to tender the contract o f employment and the license which shows the type o f shotgun the accused took from the company. Accused: I have no objection. Mr. Alex Nyoni - the accused's advocate: I have objection... I pray that the employment contract and the license on the shotgun not to be accepted in court as evidence". Another example is on page 79 of the record of appeal on which the following transpired: "PW8... I pray that the cautioned statement o f the accused ...be received as exhibit Accused; disputed. Mr. Alex Nyoni - the accused's advocate: I dispute the admission o f the accused's cautioned 10

statement as exhibit I pray that the cautioned statement not to be received as an exhibit". The objection was overruled and the statement was admitted as exhibit P ll. Having gone through the record. We agree with Mr. Ndunguru that since the appellant was represented by an advocate, the procedure which was adopted by the learned trial Judge was, with respect, improper. It placed the learned counsel in a difficult position as regards the representation of his client, particularly so when he had to differ with his client to object the prayers for admission of exhibits which his client, had raised no objection against their admission. The trite procedure is that, once an accused person is represented by an advocate, subject to the accused person's instructions, except for the plea, all matters relating to the conduct of the trial are to be handled by his advocate. It is thus the advocate who is supposed to be addressed by the court on all matter pertaining to the trial and not otherwise. Where therefore, any exhibit is sought to be tendered, it is the advocate and not the accused person who should be asked as to whether there is any objection to its admission. 11

From the nature of the procedural irregularity, however, we asked Mr. Ndunguru whether, taking into consideration that the appellant was represented by an advocate, he was caused to suffer any prejudice. On reflection, Mr. Ndunguru readily conceded that the irregularity did not occasion any miscarriage of justice on the part of the appellant. On her part, Ms. Chuma submitted that, the appellant was properly represented by an advocate and so, even where the appellant had raised no objection to the prayer for admission of an exhibit, his advocate had the right to objection notwithstanding the appellant's response. She supported her learned friend that, the irregularity did not prejudice the appellant. After having considered the nature of the irregularity and the fact that the appellant was represented by an advocate, we agree with both Mr. Ndunguru and Ms. Chuma that, the appellant was not prejudiced by the procedure adopted by the learned trial Judge. In the circumstances, we do not find merit in the 1s t ground of appeal and thus hereby dismiss it. On the second and third grounds of appeal, the appellant's complaints are on the recording by the learned trial Judge, of part of 12

PWl's evidence in a reported speech and admission of an exhibit without being prayed by the witness. With regard to first complaint, in the proceedings at page 35 of the record of appeal, the learned trial Judge made the following statement: "PW1 continues to state that he was handed one bullet and three bullet casings and one o f them is red in colour". It is a correct position, as stated by the appellant's counsel that, as observed in the case of Sabasaba Enos @ Joseph v. Republic, (Criminal Appeal No. 411 of 2017) [2.021] TZCA 142, recording of evidence must be in a narrative form, not in a reported speech. On second limb, the learned counsel argued that, since the witness who testified in respect of exhibit P2 did not pray to tender it the same should not have been acted upon because it was improperly admitted in evidence. However, as was the case with the irregularity in the 1s t ground of appeal, we probed Mr. Ndunguru as to whether the transgressions complained of were fatal. The response by the learned counsel was that, the irregularities weakened the prosecution evidence. On his part, Ms. Churna opposed the arguments that, the irregularity in recording of that part of PWl's evidence and the admission

of exhibit P2 without having been prayed by the witness prejudiced the appellant on account of having rendered that exhibit inadmissible. With regard to the cited case of Sabasaba Enos (supra), she averred that, the same is distinguishable. She argued further that, since exhibit P2 was admitted in evidence without objection and because the appellant admitted that he killed the deceased by shooting him with the gun, the form on which the recording of that part of PWl's evidence did not taint the admissibility of the said exhibit. Having considered the arguments, we are, with respect, unable to agree with the learned counsel onthe effect of the irregularities. With regard to the recording of the evidence, even if the statement complained of is expunged, thesubsequent statements in PWl's testimony is sufficient to lay the foundation for admissibility of that exhibit. After that statement, PW1 was shown the bullet for identification and thereafter, even though the record is silent on whether or not he prayed to tender it, the appellant's advocate stated that: "We have no objection to the receiving o f the buiiet as an exhibit". The trial court then admitted it in evidence as exhibit P2. In our considered view, the improper recording of the statement complained of 14

by the appellant and the omission by the learned trial Judge to record that PW1 had prayed to tender the exhibit is a minor irregularity which did neither affect the appellant nor the evidential value of exhibit P2. This ground is thus also dismissed for lack of merit. The 5th ground of appeal has two limbs. The first limb is based on the provisions of section 57 of the CPA. Mr. Ndunguru submitted that, the recording of the appellant's cautioned statement (exhibit P ll) breached the provision of the above stated section of the CPA. In the course of his submission however, he added one more ground, that the statement was recorded out of the prescribed period of four hours from the time when the appellant was taken under restrain contrary to section 50 (1) (a) of the CPA. He could not however, specify the time at which the recording of the statement should have commenced. It was his argument that, the prosecution had the duty of proving its case beyond reasonable doubt by specifying that time but since it did not do so, the doubt should operate in favour of the appellant. The second limb of the learned counsel's complaint in this ground of appeal is that, the appellant was not properly informed of the offence with which he was charged because "MAUAJI" recorded in the statement as the offence which the appellant was informed that, he was charged

with could be murder or manslaughter. It was contended also that, it was not shown in the statement whether the appellant read it or the same was read out to him. The basis of the learned counsel complaint about the reading of the statement, is the omission by the recording officer to delete one of the words; " nimesoma/nimesomewa" literally translated as "I have read/has been read out to me". In her reply submissions, starting with compliance or otherwise of section 50 (1) (a) of the CPA, Ms. Chuma submitted that, the appellant's cautioned statement was recorded within the prescribed time and in accordance to the law. With regard to the points of objection on the validity of the statement, the learned Senior State Attorney contended that, the same are new points which were not raised at the trial. In any case however, she went on to argue, the same are without merit because the appellant signed the statement after the same had been read out to him. With regard the offence, she argued that, the statement shows he was charged with murder because the word used is MAUAJI. She relied on the case of Tumaini Yared Mtoro v. Republic (Criminal Appeal No. 218 of 2022) [2024] TZCA 23 to bolster her contention that, the objection on admissibility of the statement ought to have been raised

at the time when the same was sought to be tendered, not at this appellate stage of the case. To begin with the second limb of this ground of appeal, we agree with the learned Senior State Attorney that the alleged irregularities on the appellant's cautioned statement, which are based on the contents thereof, were not raised, argued and determined by the trial court. Since these matters have been raised for the first time in this appeal, the Court lacks jurisdiction to entertain them. In the case of Amour Mbaruck @ Aljeb v. Republic for instance, guided by our earlier decisions in, among others, the cases of Damiano Qadwe v. Republic, Criminal Appeal No. 317 of 2017 and Karim Seif @ Slim v. Republic, Criminal Appeal No. 161 of 2017 (both unreported), we stated that: "...matters not raised and determined first by the High Court or Court o f Resident Magistrate with extended jurisdiction should not be raised before the court unless they raise points o f law". In the circumstances, we will only consider those issues which raise points of law.

As shown above, one of the points of law raised in the 5th ground of appeal is that, the cautioned statement was not recorded within the prescribed time. As submitted by Mr. Ndunguru, a cautioned statement of an accused person is required to be recorded within the period of four hours commencing from the time when he is taken under restraint. That complaint is based on a point of law and was thus properly raised at this appellate stage of the case. Section 50 (1) (a) of the CPA provides 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". When a cautioned statement is recorded outside the period of four hours contrary to the above cited section of the CPA, the statement is taken to have been recorded involuntarily. The position was aptly stated by the Court in the case of Janta Joseph Komba and Three Others v. Republic, Criminal Appeal No. 95 of 2006 (unreported). In that case, 18

in which the cautioned statements of the appellants were obtained outside the prescribed period of four hours, the Court stated as follows: "We agree with the learned counsel for the appellants that, being in police custody for a period beyond the prescribed period o f time results in torture, either mental or otherwise. The legislature did limit the time within which a suspect could be in police custody for investigative purpose and we believe that this was done with sound reason" The Court then proceeded to hold as follows: "The obtaining o f the statements o f the appellants while still in custody outside the time provided under the law for investigative custody contravened the provisions o f the law. Section 169 o f the Criminal Procedure Act provides for exclusion o f evidence illegally obtained" The above being the position of the law, the issue which arises from the submissions of the learned counsel for the parties is whether or not the appellant's cautioned statement was recorded out of time. The appellant's counsel contended that, the same was recorded outside the prescribed time while Ms. Chuma submitted to the contrary. 19

According to the evidence of PW9, the appellant was arrested on 23/8/2021 and on the same day, was sent to Mbambabay Police Station where he was interviewed by PW8. In his testimony, the said witness did not specify the time at which the appellant was received at the police station. The cautioned statement shows that the recording commenced at 16:00 hours. We have also gone through the evidence of all the other prosecution witnesses with a view to ascertaining the time at which the appellant was received at Mbambabay Police Station but we could not find it anywhere in their evidence. Failure by the prosecution to establish that fact, raises a reasonable doubt as regards compliance with section 50 (1) (a) of the CPA. As submitted by Mr. Ndunguru, failure by the prosecution to establish the time at which the appellant was taken under restraint casts a reasonable doubt that the cautioned statement was recorded within the prescribed time. The effect thereof is to expunge the cautioned statement from the record, as we hereby do. Turning now to the 4th ground of appeal. It was Mr. Ndunguru's submission that, the case was not proved beyond reasonable doubt against the appellant. He based his arguments on the fact that the deceased was referred to by different names in the post mortem and in the charge. He also challenged the evidence to the effect that, the bullet 20

which was found at the scene of crime was part of the ammunition issued to the appellant together with exhibit PI. Responding to the arguments made by the learned counsel for the appellant on the 4th ground of appeal, Ms. Chuma opposed the contention that the case was not proved beyond reasonable doubt. She argued that, in her judgment, the learned trial Judge did not rely only on the evidence of the appellant's cautioned statement but also on the evidence of other witnesses including PW3, PW4, PW6, PW7 and PW10. The learned Senior State Attorney argued further that, from the testimonies of the prosecution witnesses, there was no suggestion that there had erupted a fight between the deceased and the appellant. On those submissions, she urged us to dismiss the 4th ground of appeal and in effect, also dismiss the appeal. We have duly considered the rival submissions of the learned counsel for the parties on this ground of appeal. We have found above that, the appellant's cautioned statement was recorded in breach of the law and thus expunged it from the record. The complaint that the same was wrongly recorded by the interviewing officer under section 57 of the CPA instead of being recorded by the appellant and the arguments challenging its validity are therefore, redundant. 21

The issue arising from this ground is thus a narrow one. The appellant's contention in this ground is that, the prosecution evidence did not prove the case against the appellant beyond reasonable doubt because it did not establish that, the bullet which killed the deceased was from one of the cartridges found at the scene and that the same was fired from exhibit PI. The contention is, in our view, without merit. The appellant admitted in his defence that he shot and killed the deceased using the gun (exhibit PI) which was entrusted to him by his employer to use it in guarding the deceased's office. His defence was that, he was fighting with the deceased and accidentally killed him. With respect, therefore, the argument on whether or not, it was a bullet from one of the spent cartridges which killed the deceased after being fired from exhibit PI is an afterthought. That said and done, the remaining issue for our determination in this ground of appeal, is whether the killing of the deceased was accidental, that is to say; without malice aforethought. We hasten to answer the issue in the negative. As submitted by Ms. Chuma, there is no evidence on record to the effect that there was a fight between the appellant and the deceased or at all. 22

After the incident, the appellant fled from the scene of crime and went to Shawishi Village. He also tried to conceal that, the killing was done using the gun (exhibit PI) which was entrusted to him for use in his duty of guarding the deceased's office. The gun was found hidden underground. That conduct of the appellant of disappearing immediately after the incident and absconding from duty was inconsistent with his innocence in respect of the murder of the deceased. - See for instance, the cases of Crospery Ntagalinda @ Koro v. Republic, Criminal Appeal No. 312 of 2015, Omary Kijuu v. Republic, Criminal Appeal No. 39 of 2005 (both unreported) and Masalu Kayeye v. Republic (Criminal Appeal No. 120 of 2017) [2020] TZCA 302. In the latter case, the Court observed as follows on the appellant's conduct of disappearing from his home after the offence with which he was charged had been committed: "Moreso, his conduct of putting the bicyde in the house and disappearing into the bush was inconsistent with the conduct o f an innocent person". In this case, the fact that the appellant did hide the gun (exhibit PI) by burying it under ground is another proof of his guilty mind. On the basis 23

of the foregoing reasons therefore, we similarly do not find merit in this ground of appeal. In our considered view the case against the appellant was proved beyond reasonable doubt. In the event, we find that, this appeal has been brought without sufficient grounds. We thus hereby dismissed it in its entirety. DATED at DAR ES SALAAM this 29th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 2n d day of September, 2024 in the presence of appellant in person via Video Conference linked from Songea Remand Prison and Mr. Elipid Tarimo, learned State Attorney for the respondent from High Court Songea, is hereby ce^ified as a true copy of the original.