Republic vs Saidi Abiwala @ Jombi and Others (Criminal Sessions Case No. 4 of 1998) [2000] TZHC 607 (7 June 2000)

" • .i'-iOSHI 1 J ~ IN 'fiili HIGH, COUfiT UF 'l'ANZANlA j:,T l'-':Bi;YA ORIGINAL JUl-1ISDICTION 1'181::i'YA REGISTRY THE REHJBLIC 1 ~ ,Sill ill A.Bil'IALi-t @ JOi-'iBI !+" LU.Sf:liliLO MiJ;frJJASE @ BOTU :Mv:A..XIBINGA BONGO @ GWEBUKE H'tJ,'..i(IBINGAo RULING The four accused persons are charged with murder 1 it being alleged that on or about the 30th day of Ncvember 1995 at Itigi area within the District of Mbeya, Mbeya :i:"<egion, murdered one Edward Viasolio 'l'hey denied the chargeo At the close of tl1~ case for the p1·osecution learned advocates I•-iwangole and Magafu for the defence· submitted that the four accused persons had no case to answer. 'l'he learned advocates argued that there was no evidence that the accused persons committed the offence charged" In reference to the first and fourth accused perso11.s the acivocates sub1i1itted that there v1as absolutely no evidence which implicated them i.n the crime. '.['hey argued further that the star prosecution witnesses, namely, P:J1 and hi3, were inconsistent, contradictory and liars. They asked the court to attach rio weight to the evidence of PW3 that the second accused confessed the crime to him and implicated the third accused. •rhe learned advocates then invited the court to acquit the four accusec;i persons without requiring them to enter any defence. . . .· - ~ ~ . Nr. Nulokozi, :i earnerl benior State Attorney for the Republic, countered that the accused persons snould be put_on thetr defence, The learned attorney askd the court to act o the confession of the second acGused as reported by ' s PW3. He conceded, bow,ver, that they brought no evidence against the first and fourth accused persons. 00000000@00 /2

2 Under sub--section ( 1) of section 293 of the Criminal Procedure Act· 1985, as amended by Act 1foo 13 of ,19813, the court is required to c,cquit an accused person if, after hearing coL<nsel on ::iotl, sides , it considers that there is no evidence that the 2.cc1Aaed c11;nrnitted trie offence charged or some other ,ffence for which he iIIight b2 liatl0 to be convicted ill the alternativeo 'rhe standard envisaged under this pr9vi;,ion is higher than the co:cresponding stclndard under section 230 which applies to tr:ials in s1..1.bo:cdinate cou..rts o Under the latter the court is obliged. to acquit if it considers that a case haB nwt been made out sufficiently to require the 2<CCU8Pd. to make a defenceo 'Ihe requirement under So 230 is for mers::ly a prima :facie ca,se. Under So 293, howe'ver' _it is not a prima facie case tnat the covrt has to look for, The court has actually to consider whether there is evid.(:mce that the accused committed the offence charged or some other offence or :J.ot, This goes beyond the stage of a prima facie case a.no. involves the i:;uilt or innocence of the accused such that if no defence were forthc:oming he would be liable tv conviction. I will therefore turn to the 1.-1itnesses who testified for tl18 prosecution, who were three, to see if they furnished evid0nc,3 fro:n wnicn the oow't can hold that the accused persons cowrnitted the offence churged or some othC:;T offence fo:r which they could be convictedo I sTunmed up the matter to the g;entleraan and lady assessers. I explained to them the pcsition in law, and what th.2 law expects -'f them, when the defence submits that there is no case for an accused pcrson to answer. I asked them to consider the evidence of the thcee prosecution witnesses, and tell me whether it shows that the accused p,?rsens committed the offence charged. They were both •f a unar""lirnous '>pinion that theTe was no such evide_nce and that the accused persons had no case to answer. I ,would, with respect, agree with themo 1:s rightly subrJitted by both defei1ce counsel, and conceded by the prosecutit attorn2y, the case at this stag3 is absolut0ly devoid of any eviden implicating the first and fourth accused p€rsons with the offence charged or with some other offence for which they could be convicted. None of the three prosecution witnesSl .,aoooooP,ooo /3 ) i j

identified any of the two accused persons with the offence" 'l'hey did not even mention any of the two accμsed persons in connection with the o:;fence chargedo It would alJpear that these two accused persons were arraigned on no evidence at at all. It is indeed very" r.ad to rcote tha.t it is to the Republic I shall have to say this time that it ta2rns evidence ·to convict a person •Of crime. It takes far more than me1'.""' !trns.s\•mr,: r-·-· r.onjectw"r>. -I'lierP. ha,;, to be evidence which. is legally admissible in a court of la,;, and\ moreover, Guch evidence has to prove the gui::).t of the accused beyond. alJ. reasonable doubt. I a.'11 next to consider a purported confession to the crime by the second accused made to PJ3 reported by HJ3 in which he aJ.legedly implicated the third accused as wello This was the only semblance of evidence on the crime. PW3 said it was in the course of recording a Gautioned statement fro;n the second accusedo But no such statement_ was put in evidencec Such a statement did not even feature anywhere in the Prelimj_nary Inquiry (F. L) record. £-.n effort was made by the throw Republic to a blame on the High Court negtstry clai..1ing that the statement was presented but failed, for unk::iown l'eason, to appear in the P.L recordo However, be th.at as it r:;j_ght, the 1,csiticn remained the ·s.ame 1 , that is, the statement was not part of the L l, rE:conL 'l'rue, as said by [Vl.r. Mulokozi a confession might be verbal or vrritteno B1.:.t it is· the law that where a confession is the only eviLlence again.st an accused •e:rson, and the prosecution seeks to rely on it, the burden is enti:rc·ly on t.i:ie pr0f:''. ➔ cution to prove affirmatively that the confession was voluntary and it hac.. no·:: _ :oen obtained by improper or unlawful ;., me::_ BEE section 27(2) c,f the Evidencn Act '1967, and. the decision of the Court cf Appeal· for EastP.rn Africa in .E5ki ~-n i3i,:;barnkaJ.i v.R'.:.. reported in (1972) HCD at page zl+O, and t.i:1e decisi.on of the Cou,,- o:f .-ppeal for East Africa in Rashid lr-1 ti1is case, tl1e Repu1Jlic did not discharge tl:1is burdeno All that PW3 said was that the secorcd accus,.,o.. confessed to l}im of his own free wilL He did not elaborate., i-le did not explai11 the circumstances in which the confession was made for the coi:.rt to ·:onclude whet>,.-r c:...' not the second accu:;ed was a free age:nt, His word on the pu:.'porteci confession cf the second accused• therefore, is

• ". !· u_nreliable, and no court of lo.w would Br;:; on it and hold t.ciat there was such a confr<esion. •,.·. .,) U .., 0 o ~ 0 0 ~ C /4

Even assuming, without deciding, that ·cl_ cc nfession ~as there, it could not have sufficed as evidence against the thiJ:c acci.::sed persono The only evidence against tne third accused would have bcer1 ~ 1,] confession of the second accused inrpl:i.ca.ting him~ Ur1der sect on }3( 1) of t 2 :iv· dence Act that confession, if proved, could be taken :into c:onnideratj_on ;;.,'sair ,t tt1e third 3.ccused. But as a matter of law a r -wv~,:t-i or , ·ou i nci: be 1 : .c ... c;.=:0, · olcly on the confession of a j( '.) :f t1.>: ,'..i.ct 'i'hr;- words :take into consideration'· in sect ion 33 ( 1) :nust b -i- ·1; ,n , o m00.n t: .. • ,. su., ·, evidence is of the weakest kind ,, and can only be ,sed as len/ing assurance co ot'1er evidence against a co=accused, which was wanting in thrn cnse., On the basi.s of h1e fr,i·egoing; thi::; ,.:;ou..rt fiHds no evidence that any of the four accused perso:r1-.s ··corc 1 ,ni·c-ced. the c.: "::'.,nee charged or some other offence for which they could be convictc::l. I n;Je, ';:':?rei'ore, that the four ac_cused persons have no case to answer. lr; co;::sequence; record a finding of .not guilty in terms of section 293( 1) of the CPA as amended ;,; 1 Act Ho" /13 of 198/J, and hereby acquit al-1 the four accused persons, who are tc ~ e se ~ at ::Liberty forthwith unless otherwise lawfufiy. helcL . ··- - -. ' <:., ••-, b ,j. '• •,:.. AT MBt'yA~----"- __ ;• 7 June 2000. Court .... -...,=--- . ''° !; ' j'. :'· I· , .... ··-: ... ' .. .,/ ____ ,:::: :-:,-~~ -:.{ .. ::·:- - ·,, __ B.?" HOSBI -r:? 3 ::--e th.ed and dischargedo B.P. fv!OSHI