Fikiri Kalamji and Another vs The Republic (Criminal Appeal No. 163 of 2021) [2024] TZCA 864 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: MKUYE. 3.A.. KITUSI, J.A, And ISSA, J.A.: CRIMINAL APPEAL NO. 163 OF 2021 FIKIRI KALAMJI. ....... ..................... ........... 1 st APPELLANT SAMWEL KALAMJI.. ......... ................... .... ............... 2 nd APPELLANT VERSUS THE REPUBLIC.................................. . ............................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, (Geita Registry, at Geita) (Mahimbali, RM Ext. Jur.1 ! dated the 24th day of December, 2020 in Criminal Sessions Case No. 21 of 2017 JUDGMENT OF THE COURT 7th & 21s t August, 2024 MKUYE. J.A.: Fikiri Kalamji and Samwel Kalamji (the 1s t and 2n d appellants) were arraigned before the High Court of Tanzania (Geita Registry) for an offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 (the Penal Code). It was alleged that the appellants, on 24/4/2014, at about 20:00 hrs at Butegolumasa village within Chato District in Geita Region did murder one Pili d/o Ndulu. Upon the conclusion of the trial, they were convicted and each was sentenced to i

they were convicted and each was sentenced to death by hanging. Disgruntled by that decision, they have appealed to this Court. The brief background of this case goes thus: The deceased, Pili Ndulu was thematernal mother of both appellants. Their father passed away sometimes in March 2014. It would appear that, according to the prosecution, upon the death of the appellants' father and intending to take control of the properties he left behind, they found that their mother who was still alive was an obstacle to their move. According to the prosecution side, the two appellants hatched a plan to have their mother killed by sourcing the services of hitmen commonly known as "wakata mapanga" to do the job. On 24/4/2014 at about 20:00 hrs, the deceased was attacked while at her home and was hacked to death. The incident was reported to the police who upon conducting their investigation, it was revealed that the appellants were suspected to have been involved in the death of the deceased. As a result, the two were arrested and they recorded their cautioned statements to E.4119 D/Sgt Steven and F.52 D/Sg Bahati in which they are alleged to have confessed killing the deceased. They were arraigned before the court as alluded to earlier on. 2

In their defence, both appellants disassociated themselves from the crime. The 1s t appellant denied to kill the deceased or even that they sold a cow to get the money for paying the hitmen. The 2n d appellant also denied and contended that on the material day he was at his home village. That, it was on 3/5/2014 when he was called over a phone to report to the police station which he did. The trial court convicted the appellants on the basis of their cautioned statements (Exh P2 and P4). Although the trial court admitted that the said cautioned statements had anomalies, it relied on them as it believed that the appellants gave nothing but the truth of the matter. (See pages 348-352). The appellants lodged an appeal fronting both a substantive memorandum of appeal filed on 28/4/2021 and a supplementary memorandum of appeal filed on 7/9/2021. Nevertheless, on 31/7/2024, the counsel for the 2n d appellant lodged another supplementary memorandum of appeal on three grounds of appeal as follows:

1. That, the learned Resident Magistrate (with Extended Jurisdiction) erred in iaw by convicting the second appeiiant relying on the confessional statements which were illegally obtained and wrongly admitted during trial. 3

2. That ; the learned Resident Magistrate (with Extended Jurisdiction) erred in iaw by convicting the second appeiiant relying on uncorroborated confessional statements.

3. That, the learned trial Resident Magistrate (with Extended Jurisdiction) erred in iaw by failing to hold that neither direct nor circumstantial evidence were adduced by the prosecution to prove the case beyond reasonable doubt In relation to the 1s t appellant, his learned advocate on the day of hearing sought to abandon the memoranda of appeal which were self crafted by the appellants and prayed to present a new ground of appeal which prayer was granted to the effect that: "The conviction o f the 1st appellant wrongly based on cautioned statement (Exh P2) recorded in contravention o f section 57 and 58 o f the Criminal Procedure Act, Cap 20 and equally wrongly based on the cautioned statement of the 2n d appellant which did not adhere to section 58 o f the same A ct " At the hearing of this appeal, Mr. Constantine Mutalemwa appeared representing the 1s t appellant and the 2n d appellant had the services of Mr. Geofrey Kange, both learned advocates. On the other side, the respondent Republic was represented by Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney.

When called upon to amplify his ground of appeal, Mr. Mutalemwa argued that basically the SRM Extended Jurisdiction (SRM Ext. Jur.) convicted the 1s t appellant on the basis of his cautioned statement which he found to have complied with section 3 (1) of the Evidence Act, Cap 6 and was corroborated by the 2n d appellant's cautioned statement. However, he contended that during trial, the tendering of the 1s t appellant's cautioned statement was objected for contravening the provisions of sections 57 (5) and 58 of the Criminal Procedure Act, Cap 20 (the CPA) which require the suspects to be given their rights before recording their statements. He added that even the provisions of section 53 (c) of the CPA requiring the police officer to inform the suspect that he he is not obliged to respond on anything were not adhered to. He emphasized that, compliance with such provisions was crucial as was stated in the case of Petro Sule and 3 Others v. Republic, Criminal Appeal No.475 of 2020 [2023] TZCA 17777 (25 October 2023). Mr. Mutalemwa submitted further that, although Exh. P2 does not show that the appellant was given such statutory rights, the learned SRM Ext. Jur. dismissed the objection raised against its admission in court under section 169 (1) and (2) of the CPA as shown at page 84 of the record of appeal and relied on it to convict the appellant. As to the effect 5

of non-compliance with sections 57 and 58 of the CPA, the learned advocate referred us to the case of Juma Nyamakinana and Another v. Republic, Criminal Appeal No. 138 of 2011 (unreported), where the Court emphasised the police officers to comply with both sections 57 and 58 of the CPA when recording the suspects' cautioned statements under such provisions. He concluded that, since the record is silent on the compliance of the said provisions, the remedy is to expunge the Exh P2. He added that if Exh. P2 is expunged, the conviction of 1s t appellant would be based on the 2n d appellant's cautioned statement which according to section 33 (2) of the Evidence Act, an accused person cannot be convicted solely on confession of a co-accused without corroboration which in this case is lacking. The learned advocate went on to assail the 2n d appellant's cautioned statement in that, even if it were to be relied on, it was marred with anomalies. He mentioned such ailments including; one, it was taken in contravention of section 58 of the CPA as the police officer who recorded it did not discharge his obligation of explaining to the 2n d appellant the suspect's rights such as asking him if he was willing to give his statement. Two, he said, the certification of the cautioned statement 6

was wrongly done under section 10 (3) of the CPA instead of section 58 of the CPA. So, the certificate was defective. Mr. Mutalemwa winded up his submission in that, if the two cautioned statements are expunged, there remains no other evidence to sustain the conviction. He therefore, implored the Court to find that the appeal by the 1s t appellant is meritorious and allow it, quash the conviction, set aside the sentence and release him from custody. In relation to the 2n d appellant's appeal, Mr. Kange, basically, agreed with what was submitted by Mr. Mutalemwa and adopted the two grounds of appeal in the supplementary record of appeal lodged on 31/7/2024 while abandoning the third ground thereof and the self-crafted joint memorandum of appeal. He went on submitting that much as the learned SRM Ext. Jur. admitted that the appellant's cautioned statement suffered in defects on the basis of uncertainty of the time the appellant was arrested as was conceded by PW2 who recorded the cautioned statement, he still admitted it as Exh. P4, He was of the view that, that uncertainty ought to be translated that the said statement was recorded in contravention of section 50 (1) of the CPA which requires it to be recorded within four hours from restraint. At any rate, he contended, the fact that the 2n d appellant said that he was arrested on 3/5/2014 and interrogated on 8/5/2014 then his cautioned statement was taken out of

time. As to the effect of such anomaly, he cited to us the case of Manoja Masalu and Another v. Republic, Criminal Appeal No. 143 of 2020 [2024] TZCA 409 (6 June 2024) where the Court stated that such irregularity was fatal and expunged the respective cautioned statement from the record. He urged the Court to follow suit. Apart from that, the learned counsel, on the same cautioned statement, contended that the record of appeal at page 180 shows that the 2n d appellant was asked if he needed anyone to be present when recording his statement and he replied that he did not wish. However, he said, the record shows that a certain Geofrey signed as a witness. It was argued that, this raises doubt because even the learned SRM Ext. Jur. admitted that the said witness was not known by the accused (see: page 351 of the record of appeal). In this regard, he insisted that the 2n d appellant's cautioned statement be expunged from the record. Amplifying the 2n d ground of appeal in which the complaint is that the 2n d appellant's conviction based on cautioned statements which were not corroborated, Mr. Kange submitted that much as the SRM Ext.Jur. admitted that both appellant's cautioned statements were retracted and that such confessions ought to be corroborated while making reference to the case of Alex Ndendya v. Republic, Criminal Appeal No.207 of

2018 [2020] TZCA 202 (6 May 2020), he wrongly convicted the 2n d appellant on the basis of such confessions without any corroboration. For these reasons, he implored the Court to allow the appeal of the 2n d appellant, quash the conviction, set aside the sentence and release him from the custody. In reply, Mr. Ndamugoba prefaced his submission by declaring his stance that he was not contesting the appeal. In essence, he conceded to what was submitted by the appellants' learned advocates. He argued that the appellants were convicted on the basis of cautioned statements which were marred with shortcomings which render their evidential value questionable. In the first place, he pointed out that the cautioned statements were recorded out of time. The learned Principal State Attorney said, though PW2 recorded the statement of the 1s t appellant and tendered also the 2n d appellant's cautioned statement, he did not state when the appellants were arrested or brought to the police stations. He was of the view that, failure to know the time the appellants were arrested raises doubts on whether or not their statements were recorded within time. On the other hand, he acknowledged that the SRM Ext. Jur. relied on section 169 (1) of the CPA which was cited by the prosecution, however 9

he was categorical that, such provision is applicable on justifiable situations which would normally be minor matters but not on issues touching time limit. So, the learned Principal State Attorney contended that it is crystal clear that the issue of time limit was not determined as shown at pages 83 - 84 of the record of appeal. He therefore argued that, the statement of the 1s t appellant ought not to be admissible. As regards the 1s t appellants' cautioned statement the learned Principal State Attorney argued that it was admitted as Exh PE2 as shown at page 98 of the record of appeal. However, it is not clear if it was admitted during trial within trial or after the main trial had resumed as there is no order of resuming the main trial. He elaborated that, if it was admitted during trial within trial, it means it was admitted in the absence of the assessors; and if that is the case, the said cautioned statement was not admitted in the main case as there is no order for resuming the main trial. He argued that the same shortcoming applied to the 2n d appellant's cautioned statement and the statement of D/Ssgt Bahati (Exh PE3) as shown at page 113 of the record of appeal. Mr. Ndamugoba went on to submit that, the 2n d appellants cautioned statement which was recorded by D/Ssgt Bahati who passed away was tendered in court by PW2 after having issued a notice under section 289 (1) (2) and (3) of the CPA which was inapplicable to that 10

situation. It was argued that the proper provision was section 34 B (2) (a) to (e) of the Evidence Act. He said, apart from the 2n d appellant not being afforded opportunity to object to its being tendered, the SRM Ext. Jur. did not make any determination on it. Still on the statement of D/Ssgt. Bahati, Mr. Ndamugoba argued that looking at his statement (Exh. PE3) it was certified by the author himself to have been written faithful which means that since it was not recorded by PW2, he had no competence to tender such a statement. As the respondent registered no objection to the appeal, both counsel for the appellants had no rejoinder thereafter. We have anxiously examined and considered the memorandum of appeal, record of appeal and the submissions from both side and, we think, we are now in a position to deliberate on the matter. Our starting point is that, it is without question that the determination of conviction of the appellants was based solely on the retracted cautioned statements of both appellants Exh. PE2 and Exh. PE4. The learned counsel from both sides are at one that the said cautioned statements have shortcomings. Incidentally, even the trial SRM Ext.Jur. observed the same at pages 350 to 351 as hereunder: l i

'7 am in agreement with Mr. Rwabuhanga learned counsel for defence that the said cautioned statements suffer some legal defects such as no time of arrest is stated ie. when were these accused persons arrested so as to know the timing o f the recorded cautioned statements, that the witnesses o f the said recorded statements are not those known by accused persons.../' [Emphasis added] Regarding non-compliance with the provisions of section 50, 51, 57 and 58 of the CPA, we are in agreement with all counsel that the said provisions were not complied with. In relation to the first limb of complaint based on the time when the cautioned statements were taken, we note that PW2 who recorded the 1s t appellant's cautioned statement in his testimony did not know the time the 1s t appellant was arrested or even when he was brought to the police station. As alluded to earlier on the basic time available for interviewing the suspect under section 50 of the CPA, is four hours from the time of arrest to the time of interviewing such person who is under restraint. However, such period may be extended by the officer in charge investigating the offence for further period not exceeding eight hours or on application to the magistrate for further period which may be deemed necessary. This is as per section 51 of the CPA. 12

In the matter at hand, much as PW2 did not know the time the 1s t appellant was arrested, the 1s t appellant testified to have been arrested on 3/5/2014, his cautioned statement was recorded on 8/5/2014 which was five days after his arrest. Basically, this testimony was not contested. In the absence of any other evidence to the contrary or that extension of time was obtained under section 51 of the CPA, we agree with Mr. Kange and Mr. Ndamugoba that the 1s t appellant's caution statement cannot be said to have been recorded within time under the circumstances. We now move to the second limb of complaint particularly for the 1s t and 2n d appellants on non-compliance of section 57 and 58 of the CPA. The said sections, basically, govern the recording of interviews and statements by the police. They are geared towards protecting the rights of common man, the illiterates and other person of the like. Among the conditions, which the police officer has to comply include: informing the suspect about the right to record his caution statement in the presence of a friend, relative or advocate; informing him that his statement may be used in evidence; and his right to respond or not to respond on anything or asking the suspect if the statement has been taken properly. In the case of Juma Nyamakinana and Another (supra), in considering the purpose of sections 57 and 58 of the CPA the Court relied 13

on the case of Mussa Mustapha Kusa and Another v. Republic Criminal Appeal No. 51 of 2010 (unreported) and stated as follows: 'We should quickly point out that these elaborate provisions were not superfluously added to the Act, They had a specific purpose. Having been enacted after the inclusion of the basic right o f equality before the law, in our Constitution , they were purposely added as procedural guarantees to this right For this reason, therefore, police officers recording suspects cautioned statements under both sections 57 and 58 o f the Act, have an unavoidable statutory duty to comply fuiiy with these provisions. They cannot at the risk o f rendering the statement invalid, choose and pick which requirement to comply with and which ones to disregard. The conditions stipulated in these two sections are cumulative and the duty imposed is mandatory." In this case, as was submitted by Mr. Mutalemwa and supported by his colleagues, such requirements were not complied with as the record is silent on that. As was stated in the above cited case, we think, the police officers who recorded the appellants cautioned statements ought to have complied with the statutory conditions under section 57 and 58 of the CPA cumulatively. In the case of Petro Sule and 3 others v. Republic, Criminal Appeal No. 425 of 2020 [2023] TZCA 17777 (25 14

October 2023), the Court discussed the import of sections 57 and 58 of the CPA and concluded that as the said provisions were imperatively couched their violations are fatal and vitiated the statements. In the end, the Court expunged the statements for non-compliance with the mandatory provisions of sections 57 and 58 of the CPA. Basing on the above cited authorities in this case, we find that the infraction of failure to comply with section 57 and 58 of the CPA was fatal and vitiated the 1s t and 2n d appellants cautioned statements and hence, are liable for expungement. The other area of complaint on the cautioned statement relates to the certification in 1s t appellant's cautioned statement which is wrongly made under section 10 (3) of the CPA which is not applicable. Admittedly, the provision invoked does not deal with recording or interviewing suspects. It deals with investigation by the police officer which involves examining orally any person who is acquainted with the facts and circumstances of the case in which case the police recording the witness' statement is required to append at the end of the statement recorded a certificate declaring that he has faithfully and accurately recorded the statement of such person and require such person to sign the certificate set out at the end of the statement as per section 58 (6) of the CPA. 15

We therefore agree with Mr. Mutalemwa that section 10 (3) of the CPA was wrongly invoked. Instead, the certification ought to have been under section 58 (2) or (6) of the CPA. Hence, by certifying the cautioned statement under section 10 (3) of CPA the same was rendered defective with the same effect of being expunged. However, despite such defect, it is our considered view that, the certification having been taken under section 10 (3) of the CPA, it did not prejudice the 1s t appellant. We now move to the complaint relating to the involvement of strangers during the recording of the cautioned statement. We note that at page 180 of the record of appeal, PW6 inquired from the 2n d appellant if he wished to give his statement in the presence of someone. Such question and answer are reproduced hereunder: "SWALI: Ungependa narti awepo kushuhudia ukitoa maelezo yako? JIBU: SIHITAJI MTU YEYOTE Sgd: RTF. SAMWEL" Literally translated: QUESTION: Whom do you like to he present when you give your statement ANSWER: IDONTNEED ANYBODY. Sgd: RTF. SAMWEL" 16

As it is the 2n d appellant categorically denied the presence of anybody when recording his caution statement. However, on the right hand of that piece of paper there is a signature of a certain Geofrey as a witness dated 8/5/2014. It would appear from the excerpt that despite the fact that the appellant declined to have a witness but the police officer (PW6) procured a witness whom it is not known if he was familiar to the appellant. Be it as it may, we think the law is very clear as to who can be present or be called when recording a caution statement as per sections 53 (1) (c) (ii) and 54 (1) of the CPA. See also; Ramadhani Salum v. Republic, Criminal Appeal No. 5 of 2004 [2003] TZCA 178 (16 March 2007). It was, therefore, wrong to invite a person other than those provided under the law to witness the recording of the statement of the 2n dappellant as that would amount to intimidation. On the complaint that the issue of time limit within which to record the cautioned statement was not determined, we agree with Mr. Ndamugoba that it was not determined. The record bears out that in dealing with such issue the learned SRM Ext. Jur. deferred it to a later stage as depicted at pages 83- 84 when he stated: "I have considered both arguments, lam satisfied those complexities involved in the former cases cited above (supra) there is no one mentioned in the current case. 17

We are not told as to when the accused person was arrested. I have read even the facts o f the case (PH), this fact is silent. However, as this Pw2 is not the oniy remaining witness out o f the five listed, iet it be assumed that the same is still a good moment to comment. By the way, admission is one thing, weight accorded to it is another. By virtue o f s. 169 (1) (2) o f the CPA the objection raised are dismissed." We think, the procedure that was adopted by the learned SRM Ext. Jur. in dealing with such issue was not proper. It seems to us that he was overwhelmed by the provisions of section 169 (1) of the CPA. In our view that provision is applicable where there is proof of public interest of which there was no such proof in this case. It does not deal with issues involving time limit within which to do something. Besides that, why did he not consider the option of dealing with it in trial within trial more so when taking into account that in the same finding he ruled out that there would be a trial within trial to deal with the issue of involuntariness. It was prudent if this issue would have been dealt together with that of involuntariness after hearing the evidence from both the prosecution and the appellant as it would have been in tandem with the well-established principle for the court to first rule on the admissibility of document before relying on it - See: Revocatus Stephano v. Republic, Criminal Appeal No 278 of 2021 (unreported). 18

The other issue is on the admission of the statement of D/Sgt Bahati (now deceased) who recorded the cautioned statement of the 2n d appellant. Both D/Sgt Bahati's statement and the 2n d appellant's cautioned statement were tendered by PW2. The argument is that PW2 was not a competent witness to tender them under the gist of section 289 (1) of the CPA. Indeed, the cautioned statement of the 2n d appellant was recorded by D/Sgt Bahati who was reported to have passed on at the time when the case was on trial. As such, the said 2n d appellant's statement was tendered by PW2 who also recorded the statement of the 1s t appellant. But again, the same PW2 tendered D/Sgt Bahati's statement. However, his statement was attested by Bahati himself in his personal capacity as he recorded it himself and not by another police officer who could have recorded his statement and attested it. This applied even to the 2n d appellant's statement. The issue here is that how was PW2 connected with those statements. We found no connection because, ordinarily, documentary evidence is tendered by a person who has knowledge of its contents by virtue of being the author or recorder which is not the case in this case. 19

The importance of familiarity with the document to be tendered in evidence was emphasised in the case of DPP v. Shariff Mohamed Athumani and 6 Others, Criminal Appeal No.74 of 2016 [2016] TZCA 635 (5 August of 2016), where it was observed that, in tendering an exhibit, familiarity with the exhibit must sufficiently be established as a foundation for the witness's ability to authenticate that particular exhibit. In our considered view, PW2 being not familiar with the 2n d appellant's cautioned statement, was not a competent witness to tender it in court. But again, it is notable that the statement of D/Sgt Bahati was tendered under section 289 of the CPA which is used to produce the evidence of a witness or document not listed before. We think, it was not proper to rely on that provision because they did not fall within those circumstances. Perhaps the witness could have tendered the D/Sst Bahati's statement under section 34 B (2) of the Evidence Act then produce the 2n d appellant's caution statement. As such, tendering that statement by a person who did not record it rendered the same valueless. The other issue relates to the stage of the proceedings when the 2n d appellants cautioned statement was admitted in court as to whether during the trial within trial or at the trial of the main case. We note that when the prosecution prayed to tender it in court, the defence side objected it on among others that it was recorded out of time. Then, trial 20

within trial was conducted as shown at pages 84-85 of the record of appeal. However, at page 98 of the record which is the end of the ruling to the trial within trial, the SRM Ext. Jur, concluded by admitting it as Exh P2 without determining the issue of time limit. As was submitted by Mr. Ndamugoba, Exh P2 was admitted in the purported ruling on the trial within trial on the voluntariness of the statement. Ordinarily, the ruling on trial within trial is supposed to be delivered in the absence of the assessors who are normally discharged until the trial within trial is concluded. However, in the case at hand, it is not clear from the record if at the time of delivering the ruling the assessors had resumed or not. This uncertainty, as was submitted by Mr. Ndamugoba leads us to a dilemma in two fronts; one, if it was admitted in the ruling of the trial within trial, meaning in the absence of the assessor, and the same was not read over to them. Two, if it was admitted in the ruling to the trial within trial while in the presence of the assessors as we see no order of the court for resuming of the proceedings. At any rate, in all scenarios it is not clearly shown if the same was read over in court. With these infractions we agree with all learned counsel that both cautioned statements were wrongly admitted and hence deserves to be expunged as we hereby do. 21

That said and done, if the two cautioned statements are expunged, there remains no other evidence to sustain the conviction. Consequently, we allow the appeal, quash the conviction entered against the appellants and set aside the sentences meted out against them. We further order » for their immediate release from custody unless otherwise are held for other lawful cause(s). Order accordingly. DATED at MWANZA this 21s t day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the presence of the 1s t and 2n d Appellant who appeared in persons, and Ms. Jaines Kihwelo learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.