Jumanne Lubela @ Saanane & ASnother vs Republic (Criminal Appeal No. 7 of 2022) [2024] TZCA 820 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. J.A., FIKIRINI, J.A., AND KENTE, J.A/l CRIMINAL APPEAL NO. 07 OF 2022 JUMANNE LUBELA @ SAANANE .... . ...................................... . 1 st APPELLANT MNENE MHUYUNGU @ PIUS ROBERT ....... ......................... . 2 nd APPELLANT VERSUS THE REPUBLIC ........... ............ . ........ . .......... . .................... . ....... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Bahati. J.V dated the 18th day of October, 2021 in Criminal Appeal NO. 39 of 2019 JUDGMENT OF THE COURT 5th & 23rd August 2024 LILA. J.A.: The two appellants, Jumanne Lubela and Mnene Mhuyungu (henceforth the 1st and 2n d appellants], together with one Saliboko Ntondo who is not a party in this appeal, appeared before the High Court of Tanzania sitting at Tabora to answer a charge of Murder contrary to section 196 of the Penal Code, Cap. 16 of the Laws. They were accused of unlawfully and intentionally causing the death of one Mary Lusaina (the deceased) on 17/8/2015 at night 1

hours at Iyombo Village, Kashishi Ward within Kaliua District Council in Tabora Region. At the closure of the prosecution case, Saliboko Ntondo was acquitted as he was found to have no case to answer. The appellants entered their respective defence evidences and, at the end, they were found guilty, convicted and each sentenced to death. The prosecution evidence was brief. Only four witnesses were summoned to testify in proof of the charge. They were Doctor William Benedict Kaijage (PW1) who certified that the deceased died an unnatural death caused by severe haemorrhage as a result of cut wounds on the head, neck and right hand. He found the body lying on a pool of blood outside her house. His finding was that the cut wounds were caused by a sharp object and endorsed so in Post-Mortem Report (exhibit PI). Chilemba Hassan Chikawe (PW2) and Monica Muhandika (PW3) are magistrates who were stationed at Ulyankulu Primary Court and Kaliua Primary Court respectively and the substance of their testimonies were that they respectively recorded extra-judicial statements of 2n d appellant on 14/5/2017 and that of the 1s t appellant on 13/3/2017 confessing the commission of the offence. Only the extra-judicial statement of the 2n dappellant was admitted as exhibit P2 while the extra-Judicia! statement of the 1st appellant was successfully objected to 2

for failure to adhere to the Chief Justice's Guidelines hence not admitted as exhibit. Last to testify was WP 10068 DC Angela (PW4). She recorded the cautioned statements of the appellants. Admission of the two statements as evidence was seriously objected by the defence counsel. The objections concerned being recorded out of time and being involuntarily procured. However, they were both admitted as exhibits P3 and P4 after an inquiry was conducted. We reserve to teil the detailed contents of these exhibits, including exhibit P2, for a reason to be apparent at a later stage of the judgment. On the evidence summed to them by the trial judge, all the assessors found the charge not proved and returned a verdict of not guilty to both appellants. Besides the assessors' unanimous opinion and the trial court being convinced that there was no eye-witness to the killing, but it found that the only evidence available was exhibits P2, P3 and P4 on which it relied on to arrive at the conclusion that the appellants were guilty and convicted them followed by the sentences of death by hanging. .3

The findings of the High Court disturbed the appellants who separately accessed the Court to challenge them. Whereas the 1st appellant was armed with a memorandum of appeal comprising five (5) complaints, that of the 2n d appellant had seven (7) grievances. Having realized that the appellants' conviction solely relied on exhibits P2, P3 and P4, Mr. Kamaliza Kamoga Kayaga, learned advocate, who prosecuted the appeal for both appellants, aligned the grounds of appeal such that they targeted at attacking them hence coming up with only three grounds abandoning the appellants' memoranda of appeals: - "1. That, the appellants cautioned statements, both recorded on 11/03/2017 tendered and admitted as exhibits P3 and P4, were wrongiy admitted in evidence and wrongly relied upon by the Honourable trialJudge in convicting them. 2. That, the extra-judicial statement o f the 2n d appellant PIUS ROBERT @ MNENE recorded on 14/05/2017t tendered and admitted in evidence as exhibit P2 was wrongly relied upon by the trialJudge in convicting the appellants. 3. That, the prosecution evidence is too shaky and shallow to prove the charge of murder against the appellants." 4

Mr. Kayaga, at first, abandoned ground three of appeal and then proceeded to argue the remaining grounds of appeal seriatim. He was brief but focused. In faulting admission of exhibit P3 and P4, Mr. Kayaga argued that the two statements were neither listed nor read out during committal proceedings as among the would be exhibits to be tendered by the prosecution during trial in terms of section 246(2) of the CPA. As a result, he argued, the prosecution was precluded from letting them into the record of evidence by the provisions of section 289(1) of the CPA which/ essentially, require they be preceded by a reasonable notice in writing to the appellants of the intention to produce them. Given that there is no evidence that the prosecution complied with the law, he concluded, they were wrongly admitted in evidence and Wrongly acted on by the learned trial judge to justify the appellants' convictions and are liable to be expunged from the record of appeal citing the case of Christian Mwinuka vs Republic, Criminal appeal No. 263 of 2018 (unreported) to fortify his assertion. Mr. Enosh Gabriel Kigoryo, learned State Attorney who represented the respondent Republic, joined issue with M r* Kayaga and referred the Court to page 31 of the record of appeal where that infraction is glaringly reflected. He found it not difficult to cite to us a Court decision, of Marwa Joel .5

Marwa and Others vs Republic, (Criminal Appeal No. 157 of 2021) [2024] TZCA 537 (10 July 2024) in supporting Mr. Kayaga's line of argument and the resultant effect. We have considered the concurrent views of both learned counsel and also read the two cited cases. We, indeed agree with them. This appeal has yet another disturbing feature of the trial court's failure to adhere with the imperative requirements of section 246(2) and 289(1) of the CPA. To avoid the anomaly repeating, we wish to recite the two provisions and show how they are related in issues of evidence to be produced by the Director of Public Prosecutions (the DPP) during trials in the High Court. Section 246(2) of the CPA provides a guidance to the inquiring court (subordinate court) on the procedure to be followed after receipt of the information (formal charge) from the DPP and summoning an accused person ready for committal proceedings, whereas it provides: - "246(2). Upon appearance o f the accused person before it, the subordinate courtshallread and explain or cause to be read to the accused person the information brought against him as weii as statements or documents containing the substance

o f the evidence o f witnesses whom the Director o f Public Prosecutions intents to call at the trial." The import and tenure of this provision is that ail evidence to be relied upon during trial be brought to the knowledge of an accused beforehand so as to avoid surprises to an accused person during his trial by a completeiy new evidence being brought to the fore by the prosecution. It puts an accused on guard and enables him to align his defence properly. This is not a privilege but a right accorded to an accused by law. The provision is couched in mandatory terms making its violation fatal as held in the two cited cases. Otherwise, exhibits P3 and P4 could only be admitted in evidence if there had been compliance with the provisions of section 28.9(1) of the CPA which provides that: - n 289.-(l) No witness whose statement or substance o f evidence was not read at the committal proceedings shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate Ofthe intention to caii such witness." The section, read together with section 246(2) of the CPA, is both restrictive in that it disallows introduction of new evidence be it a witness or document during trial and, is permissive of a new evidence including

production of a new witness and document during trial even they were not included in the list of prospective evidence and the substance thereof read out during committal proceedings if the requirements therein are adhered to. In the event of failure, such new evidence should be expunged as we did in The Director of Public Prosecutions vs. Sharif Mohamed @ Athumani and Five Others, Criminal appeal No. 74 of 2016 (unreported). In our instant case, our close examination of the record at page 31 of the record, it is vivid that the complaint is nothing but true. There is no indication that a notice to produce exhibits P3 and P4 was issued by the prosecution to the appellants thereby contravening the provisions of section 289(1) of the CPA. In view of this, we respectively agree that introduction of exhibits P3 and P4 into evidence was erroneous and we expunge them from the record of appeal. Moving to ground two, Mr. Kayaga's strong points were that, exhibit P2 referred to the killing of a completely different woman called Mwanashija who is not a subject of the present charge who is Mary Lusaina who was killed on 17/8/2015 and that it referred to an incident that happened in the year 2014 at Iyombo. He was firm that, to constitute a confession, a statement must reflect an accused's voluntary admission of all the

ingredients of the offence charged. Mr. Kigoryo agreed with Mr. Kayaga's arguments adding that exhibit P2 did not give details as to how the offence was committed and the appellants' participations. In the circumstances, he faulted the learned trial judge's finding that it could validly form the basis of a conviction. Both Mr. Kayaga and Mr. Kigoryo concurred that expungement of exhibits P2, P3 and P4 makes the prosecution case to collapse as they were relied on heavily by the learned trial judge to ground the appellants' convictions on account of absence of eye witness. Mr. Kigoryo added also that the factors to be considered before a conviction is grounded on a confession as spelt out in Hussein Malulu @ Elias Hussein and Others vs Republic, (Criminal Appeal No. 266 of 2021) [2023] TZCA 17939 (13 June 2021) were not observed. It is uncontroverted that exhibit P2 found at pages 129 to 131 of the record of appeal suffers from the anomalies explained by Mr. Kayaga. At page 130 of the record of appeal, it states: - "KUWAUA WACHAWI NI KAZI NGUMU SANA. NIMESHAENDA KWA WACHAWI WAWIU WAUNISUMBUA SANA, HIVYO NIKAFIKIRIA KUACHA KAZI HIYO. NILIFANYA TUKIO MNAMO 2014 HUKOIYOMBO NIKIWA NA JUMANNELUBELA, 9

TULIMUUA MWANAMKE ATTWAYE MWANASHIJA KWA TUHUMA ZA UCHAWI..." A closer look at this portion of exhibit P2, there is nowhere the 2n d appellant admitted killing Mary Lusaina (the deceased) and neither was there evidence establishing that Mary Lusaina and Mwanashija were one and the same person. It is crystal clear that, exhibit P2 referred to a completely different Incident committed in the year 2014. The present incident, as per the charge sheet occurred in 2015. The persons killed were different. In the circumstances, exhibit P2 cannot be taken to be a confession. For a statement to amount to a confession, settled position is that, it must be self- incriminating in that it must constitute admissions of all elements of the offence charged by an accused person out of which a conviction may be grounded. To put it right as to what constitutes a confession, we find ourselves highly persuaded by the definition we find in the holding by the High Court in the case of Mkareh v. R [1971] HCD no. 74 that: - "It is my view that a statement should be regarded a confession only when it contains an admission o f all the ingredients o f the crime with which the accused is charged so that an accused person could be properly convicted on his own plea had he in answer to the charge made the statement which is alleged 10

to be confession...We think the true test is whether the statement is such that in the absence o f any explanation or qualification and in the particular circumstances, it points deariy to the guilt o f the maker../' The excerpt above, in our view, is soiid and still remains to be a proper definition of a confession. Now, applying the above test in the instant case, it is obvious that exhibit P2 has no connection with the charged offence. We entirely agree with the learned counsel for the parties that exhibit P2 has no relevance to the instant murder. It is not a confession at all. We are certain that had the learned trial judge directed her minds to the contents of exhibit P2 and soberly examined it, she would have realized that it had no evidential value. We also agree with the learned counsel that, since exhibits P2, P3 and P4 formed the basis of the appellants' convictions, expungement of exhibits P3 and P4 and the finding that exhibits P2 bears no relevance to the instant case, the prosecution case undeniably crumbles. The above said, we are minded to allow the appellants' appeal, quash their respective convictions and also set aside the sentences meted against /ii

each of them. We hereby order that they should be set at liberty if nothing lawful holds them in prison. DATED at TABORA this 22n dday of August, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 23r d day of August, 2024 in presence of Mr. Kamaliza Kayaga, learned counsel for the appellant and Ms. Oresta Kemilembe, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. l