Selemani s/o Mpona vs Republic (Criminal Appeal No. 180 of 2014) [2014] TZCA 2165 (26 June 2014)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: MBAROUK, J.A.. MASSATI. J.A.. And MUSSA. J J U CRIMINAL APPEAL NO. 180 OF 2014 SELEMANI S/O M POM A..................................................... APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania atTabora) (Kaduri, J.) dated the 28th day of September, 2009 in Criminal Appeal No. 209 of 2008 JUDGMENT OF THE COURT 24th & 26th June, 2014 MASSATI. 3.A.: The appellant, who appeared as the second accused person in the trial court, was charged with Armed Robbery, along with six others. It was alleged at the trial court that, on the 29th day of November, 2007 at about 20.00 hours at Pan Plant, Mwadui Mine, in Kishapu District, Shinyanga Region, he and the others stole 50 carats of diamonds valued at Tshs. 15,000,000/= the property of WILLIAMSON DIAMOND LTD, and immediately thereafter threatened one JACKSON s/o HASSAN @ MGANGA, with a fire arm in order to retain the said diamonds. i

The factual background is this. JACKSON MGANGA (PW3) was employed by Mwadui Mine plant as a bin operator. On 28/11/2007, at around 10.00 p.m. he reported for duty with other workers, at his place of work. But, contrary to the usual routine and to their suprise there were no watchmen around. But they went on with their duties until 2.00 a.m. when they were invaded by bandits. At that time the bin he was operating was loaded with sand believed to contain diamonds. The bandits ordered him to disembark from the plant, and lie down. He obeyed and was rewarded with a heavy blow of a club on the back. The bandits were about 30 in number. Then the bandits sent for a low loader, with which they broke what is known as a recovery room, where it is believed was used for sorting out diamonds. Some bags of sand were taken from the sorting room. Thereafter PW3 and the others were locked up in a container, and the bandits disappeared. They were rescued after one hour. PW4 D. 3421 D/SGT SOPPY was assigned to investigate the case, and following tips from informers, he started rounding up the suspects. PW1 MARY MGANGA, who was then posted at Shinyanga, as a primary court magistrate took the Extra Judicial Statement of the appellant, which was admitted Exh. P2.

PW2, D. 225 D/CPL THOMAS also took the appellant's cautioned statement, and tendered it as Exh. P3. It is on the basis of that evidence, that the appellant was convicted as charged and sentenced to 30 years imprisonment, with 12 strokes of the cane as corporal punishment. The High Court dismissed the appeal in its entirety. The appellant has now crossed over to this Court to impugn the findings of the two courts below. In this appeal, the appellant has appeared in person with a memorandum of appeal containing four grounds of appeal, but basically they boil down to three. The first is that the High Court erred in law in proceeding with the hearing of the appeal in his absence. The second is that the two courts below wrongly received and relied on his extra judicial statement (Exh P2) and the cautioned statement (Exh P3). The last one, is that the two courts below erred in finding that the prosecution case was proved beyond reasonable doubts. He fully adopted his said memorandum of appeal and opted to let the respondent start, reserving his right to reply if need be. 3

The respondent/Republic was ably represented by Ms Upendo Malulu, learned State Attorney who did not resist the appeal. She was strongly of the view that, as the only evidence on which the appellant's conviction was based, was that of his extra judicial statement (Exh P2) and the cautioned statement (Exh P3), and since they were not properly received in evidence after being admitted without an inquiry as to their voluntariness, the prosecution case was not proved beyond reasonable doubt. She also pointed out that, contrary to section 312(2) of the CPA, the trial court did not specify the provisions of the law for which the appellant was convicted. She cited to us the decision of the SAMWEL s/o BATROMEO V. R., Criminal Appeal No. 72 of 2013 (unreported) to buttress her argument and urged us to allow the appeal. This is a second appeal. The principle is that this Court should rarely interfere with concurrent findings of fact of the lower courts, unless it detects a serious misapprehension of the nature, quantity and quality of the evidence, or a breach of some principle of law. (See SALUM MHANDO V R. (1993) TLR 170). 4

The conviction of the appellant in the present case rests on the only evidence on record, that of the appellant's purported "confessions" (Exhibits P2 and P3). However, there are serious problems with these pieces of evidence. First, as Ms. Malulu has rightly submitted, the appellant having objected to their admisabillity on account of involuntariness, the trial court admitted them without an inquiry. This is a violation of the principle of law that where an accused objects to the admission of an alleged confession, a trial court must first make an inquiry or go through a trial within trial to establish its voluntariness before accepting it as evidence. The burden of proving such voluntariness is on the prosecution (See section 27(2) of the Tanzania Evidence Act Cap 6 R.E. 2002), Those statements were not properly received and should be expunged from the record. But secondly, even if the alleged confessions were properly admitted, the duty of the trial court does not end there. It must in the judgment, analyse the contents and quality of the alleged confession, and satisfy itself that it is nothing but a true confession. (See TUWAMOI v UGANDA (1967) EA. 84. In this case, with regard to Exh P3, PW2 noted that:-

"Mshitakiwa ana vidonda kwenye goti la mguu wa kulia na wa kushoto na kidole kimoja cha mkono wa kushoto kimevimba ambavyo vilisababishwa na kupigwa na maaskari wakati wanakamatwa." Even the next part of the statement contains allegations of being beaten by the police and being forced to admit that he went to commit the offence. Any trial court reading this part of the evidence should have been on alert as to the voluntariness of the statement. In the cautioned statement (Exh P3), the appellant claims that the operation was prearranged and smooth; and no weapons were used. This information is contrary to what PW2 told the trial court that the bandits had clubs and other weapons; although they did not use them. If the two courts below had carefully adverted to the contents of these statements, which were retracted anyway, they would not only find that there was need to approach them with caution, but also possibly look for corroboration. The lower courts did not warn themselves of the danger of acting on the uncorroborated evidence of the appellant's retracted

confessions, which as it turned out were not wholly true. (See TUWAMOI v UGANDA (supra). That is a misdirection on the part of the lower courts as to the nature1 and quality of the evidence. Due to the above, we are forced to intervene. We find that the findings of the trial court and the High Court do not rest on a strong evidential foundation. The appellant's conviction is therefore unsafe. We therefore allow this appeal. We quash the conviction and set aside the sentence. We order his immediate release from custody unless he is otherwise held there for some other lawful cause. DATED at TABORA this 25th day of June, 2014. S.A. MASSATI JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. COURT OF APPEAL 7