Marwa v Republic (Criminal Appeal No. 78 of 1998) [2000] TZHC 701 (29 November 2000)

370 TANZANIA LAW REPORTS[2002]T,L.R. A 1 claims to the property in dispute but, subject to the result of such suit, if any, the order shall be conclusive. Because the objection proceedings under Order 21, rule 57 are not appealable, the present appeal is incompetent. The appellant can, as B stipulated under Order 21, rule 62, sue for title of the property he is contesting. In view of the above, the appeal is struck out with costs. c _________ _____________ MWITAMARWA v. REPUBLIC D HIGH COURT OF TANZANIA (Mwanza District Registry} ATMUSOMA e (Mroso, J.) CRIMINAL APPEAL No. 78 OF 1998 F (From the judgment of the District Court of Tarime at Tarime, Kurwijila, Esq, in Criminal Case No. 426 of 1997) Criminal Practice and Procedure - Trial within a trial - Trial within a trial to determine admissibility of a repudiated confession - Whether trial within G a trial may be conducted by a District Court. The appellant was convicted of armed robbery in the District Court. In convicting the appellant the trial magistrate took into consideration a cautioned statement in which the appellant confessed to committing the offence. The appellant had repudiated the TT ” statement, upon which the trial magistrate conducted a trial within a trial to determine the admissibility of the statement. The appellant ’ s appeal to the High Court against his conviction was dismissed. In the course of his Judgment the judge considered whether the trial magistrate was required to conduct the trial within a trial. I

MWITAMARWAv. REPUBLIC 371 Held: (i) There was no need for the trial magistrate to conduct a trial within a trial; (ii) The practice of a trial within a trial is used only in High Court criminal trials when a judge sits with assessors. Appeal dismissed Mr Mcamanga, for the Respondent JUDGMENT (Dated 29 November 2000) Mroso, J.: The appellant, MwitaMarwa, who was the second accused before the Trial Court, was prosecuted in the District Court of Tarime along with four others for offence of armed robbery. He was found guilty and convicted as charged and sentenced to thirty years imprisonment. He has been aggrieved by the conviction and sentence and appealed to the High Court. In his petition of appeal he listed nine grounds intended to show that he was wrongly convicted. Most of those grounds of appeal relate to conflicting dates of the commission of the offence and on the number of the stolen head of cattle which were recovered from a cattle market in Kenya. Grounds 7 and 8 relate to a supposed confession made by the appellant and ground number 9 is a complaint that an identification parade was not mounted and that no Kenyan police or Kenyan Chief or civilians were called as witnesses at the trial. It was not disputeithat on the night of 26 November 1996 six head of cattle belonging to one Samwel Geweno were stolen and that in the course of the theft gunshots were fired and threats were made to the cattle owner. A young man aged 15 years, Mang ’ era Busena , was temporarily abducted by the bandits. They took him a distance away and kept him for about 30 minutes then set him free. On 2 December 1996 the stolen cattle were seen at a cattle market in Kenya and the people who were intending to sell them took to flight when they saw the owner together with police.

372 TANZANIALAWREPORTS[2002]T.L.R. A According to his own evidence, the appellant was arrested on 17 January 1997. PW4 - page C. Bahati who arrested him did not give the date of arrest. At any rate the appellant was charged along with others with robbery. T> It must be said that the evidence was not well recorded and the blame must go to the trial magistrate who did not appear to be very attentive and consequently recorded clearly wrong dates. For example, when recording the evidence of PW1 - Samwel Gimeno, he refers c to 8 December 1996 and 8 December 1997 interchangeably, as the date he collected his cattle from Kenya. So, the confusion on dates is merely a result of inattention on the part of the trial magistrate and it does not, in my view, affect the credibility of the witnesses D or detract from the weight of the evidence. I accord no significance to that discrepancy which I consider innocuous in the circumstances of the case. I think the one important issue is the one of identification of E the appellant as one of the bandits. Was there adequate, credible evidence to show that he was party to the robbery? With respect, I think there was such evidence. In the first place, it is apparent that the appellant and the complainant were not strangers. The appellant F himself said he heard that the complainant ’ s cattle had been stolen. A stranger would not bother with such information. It must be that the two knew each other. Secondly, the young man Mang ’ era Busena said he was under G the custody of the appellant and the other bandits for 30 minutes when they abducted him temporarily. There was moonlight and during that time he was able to identify the people who took him temporary prisoner. H At the cattle market in Kenya complainant saw appellant and his colleagues take to flight when they approached them, page C Bahati who tried to pursue the appellant and the other bandits said he identified the appellant. He was unable to apprehend any of them. When all

MWITAMARWAv. REPUBLIC this evidence is considered together one is left in no doubt that the appellant was one of the band of robbers. His belated alibi that on 26 November 1996 he was honeymooning is a mere desperate attempt to escape the long arm of the law. The trial magistrate took into consideration a cautioned statement in which the appellant is supposed to have confessed to committing the offence. However, the appellant repudiated it saying it was written by the police and he was forced to sign ii. The magistrate conducted a trial within a trial with a view to deciding on the admissibility of the statement. The practice of a trial within a trial is used only in High Court trials because a trial judge (in criminal trials) sits with assessors who are lay people and are not conversant with the rules of evidence on admissibility of evidence. So, in order to avoid inadmissible evidence from being heard by the lay assessors the judge conducts a trial within a trial in the absence of the assessors with a view to ascertaining the admissibility or otherwise of a piece of evidence. If the trial within a trial shows that the evidence is inadmissible, then the evidence will be excluded and the assessors will not hear it, lest it prejudices their minds. If, on the other hand, it is clear from the trial within a trial, that the evidence is admissible, then it may be given in the presence of the assessors. Since the trial District Magistrate was not sitting with assessors there was no need for him to conduct a trial within a trial. The trial magistrate found the confession admissible evidence but the appellant having repudiated it, there was need to look for corroborative evidence?But the magistrate does not appear to have realized of such need. Had he done so, however, he would have foun d such corroboration in the evidence of PW2 - Mang ’ era Busena and that of PW4 - page C. Bahati, to which I have already referred. Let me finally say that the prosecution did not have to call the Kenya Police, or a Kenyan Chief or Kenyan Civilians to prove their case if they considered they had enough witnesses from Tanzania. Also, an identification parade was unnecessary in the circumstances.

374 TANZANIA LAW REPORTS [2002]T.L.R. For the reasons which I have attempted to give, this appeal is dismissed in that the conviction was well founded and the sentence imposed is the minimum under the law. KASH IN DYE MELI v. REPUBLIC C COURT OF APPEAL OF TANZANIA ATMWANZA (Kisanga, Lubuva and Lugakingira, JJ. A.) D CRIMINAL APPEAL No. 12 OF 1996 (From the decision of the High Court of Tanzania at Tabora, Mackanja, J., dated 20 November 1995, in Criminal Sessions Case No. 64 of 1990) E Evidence - Extra-judicial statement - Statement made to a Justice of the Peace in the presence of a court messenger and police - Whether statement was true and freely made. Evidence - Extra-judicial statement - Uncorroborated extra-judicial statement

• Appellant retracts the confession in the extra-judicial statement - Whether court may act on the retracted confession. The High Court convicted the appellant of murder contrary to section 196 of the Penal Code, and sentenced him to death. He appealed against conviction and sentence. In the appeal he argued, firstly, that the trial judge erred in convicting him for murder on insufficient evidence and, secondly, that proper procedure was not followed in recording the extra -judicial statement made to the Justice of the Peace. At the trial H the appellant had retracted the confession made in the statement given to the Justice of the Peace. Held: (i) By the nature of the statement, the extra-judicial statement was true and freely made by the appellant, and it is now settled law that although it is dangerous to act upon a repudiated or retracted confession unless such confession is corroborated,