Pius Robert @ Mnene vs Republic (Criminal Appeal No. 157 of 2022) [2024] TZCA 805 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA fCO RAM: LILA. J.A., FIKIRINI, J.A.. AND KENTE. J.A.^ CRIMINAL APPEAL NO. 157 OF 2022 PIUS ROBERT @ MNENE . .......... . ..................... . ............... . APPELLANT VERSUS THE REPUBLIC ................. . ..... . ............ . ............... . ........... RESPONDENT (Appeal from the Judgment of Resident Magistrate's Court of Tabora at Tabora) fNsana. SRM EXT-3.Y dated the 1st day of April, 2022 in Criminal Session Case No. 15 of 2019 JUDGMENT OF THE COURT 12,h & 22n d August 2024 LILA. J.A.: The appellant, Pius Robert @ Mnene, has been languishing behind prison bars since 1/4/2022 awaiting to suffer death by hanging. That was consequent upon his being charged and convicted of the offence of murder contrary to section 196 of the Penal Code in Criminal Session Case No. 15 of 2019. The trial proceeded before the Resident Magistrates' Court of Tabora sitting at Tabora and was conducted by a Senior Resident Magistrate with Extended jurisdiction (the Senior Resident Magistrate) whom the case was transferred to by the High Court in terms of section 256A(1) of the Criminal Procedure Act (the CPA). He is aggrieved hence this appeal.

The allegation levelled against the appellant, as per the information, is that, the appellant together with Kapan Nkuri, Mahalamba Kachina and Sandu Kiyungilo murdered one Ligwa Matemane on 7/5/2017 during the day time at Mpandamlowoka Village within Kaliua District in Tabora Region. Kapan Nkuri did not survive the trial as he passed away before conduct of committal proceedings on 30/8/2019. Passing away of Kapan Nkuri (then 2n d appellant), was revealed by Mahalanda Kachina (then 3r d appellant) on 8/11/2019 to both the trial court and Mr. Rwegira, learned State Attorney, who prosecuted the case. He was not believed leaving it to be a matter for verification by Mr. Rwegira. Ms. Mercy Ngowi, learned State Attorney verified the information and successfully moved the trial court to mark as abated the charge against Kapan Nkuri on 21/11/2019. On the same day, invoking her powers under section 91(1) of the GPA to terminate proceedings against an accused person, she also withdrew the charge against Mahalanda Kachina thereby making the charge remain with only two accused persons namely Pius Robert @ Mnene sometimes referred to as Ndamo (the appellant) and Sandu Kayungilo (then 4th accused). As luck would have it, at the close of the prosecution case, Sandu Kayungilo was acquitted for no case to answer, leaving the appellant as the sole accused person. Seven witnesses were lined up for the prosecution in a bid to prove the charge, while the appellant was the only defence witness. The

prosecution witnesses were fairly brief. Wiliam Benedict Kai’ jage (PW1), a doctor at Ulyankulu Health Centre, examined the deceased body on 8/5/2017 and found the cause of death was loss of blood resulting from deep cut wounds on various parts of the body such as the head, mouth and neck suggestive of a sharp weapon having been used. He endorsed the findings in a Post Mortem Report (exhibit PI). Madaha Masogaja (PW2), a ten cell leader of the area, Marko Madare (PW3) and Anthony Pauline Masarankanya (PW4) who were residents in that area, responded to the cry by the deceased's children and found the deceased with big cut wounds and reported the matter to the Village Executive Officer (VEO). They admitted not having seen the assailants and no one was suspected. PW4 reported the matter to the police. A policeman H. 980DC Alifa said, he was among the team of policemen who went to the scene on 8/5/2017. During cross- examination by Mr. Kilingo, he said that until 8/5/2017, the murderers were not known. While he initially said that he participated in arresting the appellant guided by an undisclosed informer, later on he said he did not know when exactly the appellant was arrested and that he found him at Kaliua police station and Police Ulyankulu. He alsb said that there was only one case about murder of Ligwa Matemani and it is not possible for an accused to commit an offence while he is already arrested.

Another witness is Chilemba Hassan Chikawe (PW6), a magistrate then stationed at Ulyankulu Primary Court, who told the trial court that he recorded the appellant's extra-judicial statement (exhibit P2) on 18/5/2017 and he was taken to him by one DC Zephania, a policeman. He said the appellant confessed and said he was arrested on 13/1/2017 at Ishihimurwa Uyui. When cross-examined by Mr. Kilingo, he said it was not the first time to see him and he had recorded his statements more than three times and could not remember if he recorded the appellant's extra-judicial statement in respect of the death of Mary Luciana. Lastly, he said, there is no way an accused person can commit an offence while in prison and that he records what an accused person tells him. Prudence calls for a need to pose here a bit and take note that Mary Luciana is the deceased person in Criminal Appeal No. 7 of 2022 in which the appellant is the 3r d appellant featuring by the name Mnene Mhuyugu @ Pius Robert. Other appellants are Jumanne Lubela (1s t appellant) and Saliboko Ntondo (2n d appellant). The appeal originated from PI No 16 of 2018 and later Criminal Sessions Case No. 39 of 2019. The appeal (Criminal Appeal No. 7 of 2022) came for hearing before us on 5/8/2024. We are therefore seized with the record of appeal. One E. 9348 D/SGT Edward's (PW8) appearance as a witness was successfully objected to by the defence advocates for not being listed as

among the prospective witnesses by the prosecution during committal proceedings in terms of section 289(1) of the CPA, hence he did not testify. The appellant's defence mostly constituted a protestation of innocent banking on the defence that at the material date of the fateful event, that is on 7/5/2017, he was in prison custody at Urambo prison facing Inquiry Case No. 16 of 2017 filed at Urambo together with Jumanne Lubela and Salibokd Ntondo. He said, he had already been convicted in that case. He further said, he was arrested on 5/3/2017 at Ishihimurwa and sent to court on 14/3/2017. He wondered how he was joined in this case on the offence which was committed when he was in prison. He being a resident of Uyui, he denied knowing the deceased as the offence was committed at Kaliua District, He lamented that, of the five prosecution witnesses, neither of them implicated him and he disowned the extra-judicial statement (exhibit P2) recorded by PW6 stating that he did not appear before him to record it and the thumb print on it was not his such that he demanded an ink pad be brought in court so as to compare his thumb print and the one on exhibit P2. He denied being arrested on 13/5/2017, a date indicated in exhibit P2. After summing up of the evidence for the prosecution and the defence, out of the three assessors, only one, namely Siasa Jumanne, gave her opinion returning a verdict of not guilty to the appellant. We halt a bit and interject a point that, in terms of section 298(1) of Criminal Procedure Act

(the CPA), each assessor is required to state his opinion orally and the trial judge has to record them. In her judgment, the learned Senior Resident Magistrate, took time to appraise herself with the law and principles governing burden of proof in criminal cases that It lies on the prosecution and the standard of proof is beyond reasonable doubt citing the cases of Said Hemed vs Republic [1987] TLR 117 and Mohamed Matula vs Republic [1995] TLR 3, and principles governing confessional statements made under section 28 of the Evidence Act Cap, 6 of the Laws, that, if voluntarily made they constitute the best evidence against the accused and may, on their own found a valid conviction and the duty to prove voluntariness of the cautioned statement is on the prosecution citing the unreported case of Twaha AM and Five Others vs Republic, Criminal Appeal No. 78 of 2004 (unreported) and Robinson Mwanjisj and Three Others vs Republic [2003] TLR 117. Applying those principles to the evidence, the learned Senior Resident Magistrate concluded that the extra-judicial statement was voluntarily made by the appellant in which he truly confessed because it was admitted without objection. With regard to the appellant's defence that he could not have committed the offence because the offence was committed at the time he was in prison custody, she treated it as a defence of alibi which she

disregarded for want of compliance with the provisions of section 194(4) and (5) of the CPA which mandatorily require an accused intending to rely on a defence of alibi to give, to the court and the prosecution, a notice of that intention before the hearing of the case, and in the event of failure to do so then, the accused should avail the prosecution with the particulars of the alibi at anytime before closure of the prosecution case. Otherwise, she held that the appellant ought to have tendered the charge sheet or remand warrant which would show that at the time the offence was committed he was in remand prison. She ultimately ruled out that failure to adhere with the procedure rendered the appellants' defence irrelevant and unworthy of consideration. She convicted the appellant and sentenced him accordingly. In further protesting his innocence, the appellant is before the Court armed with five grounds of appeal which, on reflection, Mr. Kelvin Kayaga, learned advocate representing the appellant, sought leave of the Court to abandon grounds one and two, remaining with grounds three, four and five. However, having seriously examined the evidence on record, we are convinced that the appeal turns on grounds three and five only. Those grounds, paraphrased, state that: - 3. That, the arrest of the appellant had no connection with the commission of the offence charged.

5. That, the extra-judicial statement (exhibit P2) was no confession at all. As hinted above, Mr. Kelvin Kayaga represented the appellant in this appeal and the appellant was also present in Court. For the respondent Republic, was Mr. Emmanuel Luvinga, learned Senior State Attorney. He did not resist the appeal. The first attack in ground three of appeal by Mr. Kelvin 'Kayaga on the decision by the Senior Resident Magistrate with Extended Jurisdiction was directed on the failure to consider the appellant's persistent and consistent contention that he was in remand prison at the time the charged offence was committed. It was his contention that no one prosecution witness testified that the appellant was arrested on 17/5/2017 and even PW4 did not tell when exactly the appellant was arrested. In view of this lacuna in the prosecution evidence, the appellant's evidence that he was arrested on 5/3/2017 should be believed and the trial Senior Resident Magistrate did not give reasons for disbelieving him, Mr. Kelvin Kayaga insisted. He argued that the appellant could not have committed the charged offence as on 7/5/2017 he was in Urambo prison facing a charge of murder in PI No. 16 of 2017. He was of the view that the learned Senior Resident Magistrate ought to have exercised due diligence to satisfy herself by checking with the court registry if the appellant's claim was true rather than outrightly disregarding

the appellant's defence and relying on exhibit P2 to convict him simply because it was tendered and admitted as exhibit without objection and also failure by the appellant to serve the prosecution with a notice to rely on the defence of alibi or provide particulars of that defence as required under section 194(4) and (5) of the CPA. He was also quick to fault the Senior Resident Magistrate for not distinguishing between admissibility and weight to be attached on an exhibit or evidence. Mr. Luvinga fully agreed with the contentions by Mr. Kelvin Kayaga. On our part, much as we agree with the learned trial Senior Resident Magistrate that the appellants defence constituted a defence of alibi for which reliance on it is conditional in terms of section 194(4) and (5) of the CPA which apparently the appellant did not comply With, the facts in this case presented peculiar circumstances which invited the learned Senior Resident Magistrate to approach them with a judicial mind and exercise her discretion under section 194(6) of the CPA to consider the appellant's lamentations (see; Charles Samson vs Republic, [1990] T. L. R. 39, Leonard Mwanashoka vs Republic, Criminal Appeal No. 226 of 2014 (unreported), Charles Samson v. Republic [1990] TLR 39; Mwita s/o Mhere & Ibrahim Mhere v. Republic [2005] TLR 107; and Marwa Wangiti vs Republic [2002] TLR 39 cited in Emanuel Mathias vs Republic, Criminal Appeal No. 132 of 2020) in which cases the Court

restated the position that, trial courts ought to consider the defences of alibi raised otherwise and in contravention of the provisions of section 194(4) ad (5) of the CPA, although they have discretion to disregard them consistent with section 194(6) of the CPA. The rationale for our view is not hard to find. The record bears out that the appellant's stand point that he was in prison on 7/5/2017 was first raised on 4/3/2022 when PW5 testified and on 9/3/2022 when PW6 testified. That was almost a week before the prosecution closed its case on 14/3/2022. To show seriousness with such defence, he sealed it on 14/3/2022 when he entered his defence evidence. Besides, the appellant had assisted the trial court by availing it with the case number he was facing - PI No. 16 of 2017 of the Urambo District Court which the learned trial magistrate properly directing her mind and for the interest of justice could have easily cross-checked with the relevant court registry for verification. Instead, the learned trial senior Resident Magistrate treated the appellant's defence of alibi casually and required him to prove it in these words: - 1 'If at all what the accused person said is true that on the date o f commission o f the offence o f murder in this case he was already in prison, he could have notified the court either on the date o f committal hearing, on the date o f piea taking and preliminary hearing or any time before the prosecution side dosed their case. Further to that, he could have 10

tendered the charge sheet or remand warrant which shows that on the said date he was in remand prison. The act o f the accused person o f failing to follow the procedure as per above cited provisions makes his defence irrelevant which cannot be considered." (Emphasis added) The bolded portion of the above excerpt, no doubt, required the appellant to produce a remand warrant or charge sheet to prove his defence of alibi, which act, in law, not only amounted to shifting the burden of proof, but also required the appellant to prove his alibi quite inconsistent with settled law. Trite law is that the appellant was under no legal obligation to prove the alibi (See; Sijali Juma Kocho vs Republic [1994] TLR 216). Not only that, proof in criminal cases is on the prosecution but also an accused is presumed innocent until proved otherwise through due process of law. It should be in mind that a somehow delayed investigated justice is far better than a hurried injustice. Administration of justice is not a mechanical and unguided process, but it is a smooth and streamlined process governed by law. In the due course and in an endeavour to search for justice, patience, tolerance and humility are key. Reserving some time to investigate over matters complained in the due course of administering justice cannot be avoided although it may cause a little delay.

Having noted the above non-directions on the part of the trial Senior Resident Magistrate, for the interest of dispensing justice, the Court is entitled to interfere and reconsider the evidence and arrive at its own findings. (See; DPP vs Jaffari Mfaume Kawawa [1981] TLR 149). This being a first appellate Court, we are therefore mandated to step into the shoes of the trial court and do what the learned Senior Resident Magistrate had to do (See, Standard Chartered Bank Tanzania Ltd vs National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 (unreported). We invoke such power so as to consider the appellant's complaint by examining the record of Criminal Appeal No. 7 of 2022 which emanated from PI No. 16 of 2017.' The appellant had actually urged the trial court to do so but his prayer fell onto deaf ear. During defence, he is recorded at page 79 of the record of appeal to have said: - "I pray that this court make an inquiry in order to find out when the murder case No. 16/2017 was filed at Urambo district Court involving one Jumanne Lubera and two (2) others. Iam getting surprised, as how l wasjoined in this case which occurred while I was in prison already. I did not associate (sic) in murdering the deceased as she was murdered when I was in prison..." 12

A closer look on the record of the inquiry court (PI No. 16 of 2017), it is evident at page 1 of the record of appeal that the appellant stood charged with murder of one Mary Luciana which occurred on 17/8/2015 and was first arraigned before the District Court of Urambo (the Inquiry Court) on 14/3/2017 as he claimed in his defence evidence. There is no indication that he was released on bail or that at any given time, the appellant happened to be a free person. He was tried In Criminal Session Case No. 39 of 2019, convicted and sentenced on 18/10/2021. It is obvious, therefore, that on 7/5/2017 when the death of Ligwa Matemani, deceased in this case, the subject of this appeal, occurred the appellant was in Urambo prison as he insisted in his defence. This fact is further enhanced by PW4 who was not certain whether he arrested the appellant and when. Such doubts ought to be resolved in favour of the appellant who gave the date of his arrest as being 5/3/2017 [see; Akwino Malata vs Republic, Criminal Appeal No. 438 of 2019 (unreported)]. We agree with Mr. Kelvin Kayaga's argument that, in the absence of another proven date of arrest, to the contrary, as is the case herein, the appellant's version ought to have been believed. It is invidious and preposterous that the appellant has been held responsible with the commission of the offence which even PW4 and PW6 were firm could not be committed by a person held in custody. We wish to associate ourselves with the sentiments expressed by the learned defence 13

and state counsel in this case which, had the learned trial Senior Resident Magistrate exercised a little diligence and applied a judicial mind to the appellant's lamentation, could be avoided. This, in our firm view, shall be taken as a lesson not only to the trial Senior Resident Magistrate but also other law enforcers not to treat accused persons in the manner it happened in this case. In view of the foregoing finding, resolution of the complaint in ground two poses no difficult at all. Apart from the extra-judicial statement (exhibit P2) not being explicit enough on how the offence was committed and the appellant's participation and not containing a confession of all elements of the offence of murder, as was rightly argued by Mr. Kelvin Kayaga and conceded by Mr. Luvinga, a fact remains that the appellant was in remand prison and no evidence was led by the prosecution tending to suggest that he was taken to PW6 to record exhibit P2 coming from the prison. Conversely, PW6 was forthcoming that the appellant was taken to him by a police officer No. G. 747 DC Zephania. As to how he was recalled from prison was not explained to PW6. This is a material falsehood that diminishes exhibit P2's credence. It is doubtful if, really, the appellant appeared before PW6 and recorded exhibit P2. Even assuming that the appellant made it, it still turns valueless as it refers to the offence committed while he was in Urambo prison.

In the end, we are of a strong view that, had the learned trial magistrate approached the appellant's defence of alibi judiciously, she would have not easily ruled out that it is irrelevant and treated the contents of exhibit P2 as true without even examining its contents to satisfy herself that it established the offence charged. On this, Mr. Kelvin Kayaga rightly complained that admission of evidence without objection is normally alien to the weight to be attached to it. Times without number, the Court has consistently pronounced itself on the distinction between admissibility and value of evidence tendered in court. For instance, in Ndaiahwa Shilanga and Another vs Republic, Criminal Appeal No. 247 of 2008 (unreported), the Court followed its pronouncement in the case of Hatibu Tengu vs Republic, Criminal Appeal No. 62 of 1993 which positively relied on an extract from the decision of the defunct Court of Appeal for East Africa in the case of Tuwamoi vs Uganda [1964] EA 84 in drawing a distinction between admissibility and weight/value of a confession, that after it is admitted in evidence: - "The second stage is to evaluation o f the confession, to determine whether it is true, including the need o f and whether or not there is corroboration. This stage determines the weight/value o f the confession. I f the court finds that there is corroboration it can convict. I f the court finds that there is no corroborationy it can sti/i convict if the 15

court finds that the confession contains nothing but the truthy and after warning itself o f the danger o f convicting without corroboration." Finally, the Court firmly held that: - "So, TUWAMOI's case dearly distinguishes between admissibility o f a confession^ and the weight to be attached to that confession. That case and all other cases following it, do not establish a rule that once admitted, a confession must lead to a conviction. The court 1 'might only found* a conviction, depending on its analysis o f all the circumstances o f the case, and upon reaching a conclusion that the confession must be true ." With respect, in the instant case, notwithstanding that exhibit P2 was duly admitted without objection, the learned trial magistrate was duty bound to consider the truthfulness of it and if there was corroboration after considering all the circumstances of the case. We agree with both learned counsel that treating exhibit P2 as true and relying on it entirely to ground the appellant's conviction without a thorough scrutiny and evaluation of its content, was erroneous. For the reasons stated above, we are convinced that the prosecution case was tainted with serious potholes rendering involvement of the appellant in the murder of Ligwa Matemani doubtful. The appeal has merit 16

and we allow it, quash the trial court's conviction and set aside the sentence rendered to the appellant. We hereby order that he be released forthwith if no other cause holds him behind the prison bars. DATED at TABORA this 21s t day 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 22n d day of August, 2024 in presence of Mr. Akram Magoti, learned counsel for the appellant and Mr. Steven Mnzava, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 0. H. KINGWELE^^ DEPUTY REGISTRAR COURT OF APPEAL 17