Lukas Samson and Another vs Republic (Criminal Appeal No. 15 of 1999) [1999] TZHC 289 (22 November 1999)

""i•, m..vJA- IN TIIB tnm-1 COURT OF TANZANIA AT FEsEYA 'CR]}JINAL APPEAL NO. 15 OF 1999 (From Ebey-a District Court Criminal Case No6413 of 1998 Before;; N .. S. Lwabutiti District Magistrate) 1 • ••·· 'LUKAS SAMSON ) 2. YBSTO BONIFASI) ocoociooooooooo,ei,o Versus AI-1:•E;LLANTS THE REPUBLIC •••••••••••••• , • • • • • • • • . •. RESPOl'l'Dl:i"'NT JUDGMENT· On 15.11 ~ 99 I all:9wed the appeal, quashed the convictions, set aside the sentence:, and ordepd the immediate release .of b_oth appellants ':rrl"\m prison/:- unless otherwise lawful,ly held. I reserved myrE;)asons which I now give. ' The first and second appellants, Lukas Samson and Festo.Boniface, and JAseph Linus, who is yet to appeal, were jointly arraigned before the district court of Nbeya as the .f.ir1, _th:i£. and ~~~-nd accuseds respectively, on an - indictment which carried two counts: First count: ..--...--,..,...,.__.,.,..c House breaking, con-'rary to section 294( 1) of th~ Penal Code. Second_s_o.: Stealing, contrary; :o section 265 of· the Penal Gode. . ! . '· ·:' , ,if::. j, ,1 , , The three were convicted as charged. The appellants were·each ,~~~ten9d to • I :, : •• ' ' ~ .:• ; ; '• l :.1: five years imprisonment on the fin:\t count and tJelve n1bnths imprisonment on • ' ! ' ·:' :: . ' . ·•·, fj~-,- .. <,;·:' ' the second count. The sentence was ·orderipo. :to run 6on6urrently •. •. . • ' . ' ;;,'. ·:-'.= :i' •.. ' . Tbe second accused, Joseph Linus , - who was r;• ·~~ c ondary school s tude~ t aged 15 years, was • '·!'.: ~ . ' , , .. discharged Li:r1der s-ec;tJop, 38(1) of the Pen:11 Code on condition that he con1mits no offenct ·f'or twelve-mqnths and six months respectively. He was represented -:: ! .. , I • : : , at th~ ifial by"Mr,..,Kayange,, learned advocat~, •while the appellants were, there and here., .. "4nreyresented by learned consel The• convictions and sentences aggr:i:e;.;. ' ,. .. , C • • • ved the appellants, hence this appeal wbir::h was unresis~ed by the Republic in the-. presence of the appellants who argued. the matter themselves .. /2 I

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• 2 - On 24e5o98 at 10 .. 00 AN Terezia I ✓ ibwarnbo (PW1) left her house for Church· service. It was on a Sunday. 3he had locked'. a1,l the doors 6f' ·.lier _ house c She returned ·at 1.00 pm and found tbe front d66f.6f the house and the doors to.the rooms broken. 'I'be thieves had not been se,e11. An assortment of her property was stol_en. Its estimated value was shs.246,800/=• s;rrihoi both appllants were arrested that same day on what as_ termed suspicion. They were n.ot found with any of the stolen property. · '.Phey were the neighb.ours · of PW1. 0 26:5. 98 D/Cpl Faschal (PW3) recorded their cautined -tatements in \it1ich they I allegedly • .J• ' confessed to the crimese 'rl1e statement were tendered in evidence despite objections from, and protests by, the appellants. The appellants denied complic.:i,ty in the offences 3.n ther defences at the trial. ~ .. The first appellant c_laimed to .. bave beeri at the airport area constructing a business kiosk from 7.00 AM to 4.00 pm on the day of the theft. His brother, ,,. Os cur Samson ,~,~vJ5) ,. asisted him, and their father, Lugard (DW4), supported ., ',')' the story. -. Re:. claimed he was beaten anct.'"for'ce·d td sign the statemento ·lThe . ·' ·.:.,...!. t·: ->'; ::.···-:,~'"; ··,,,: )(:·;:Y, , . . . . : : . , '. ... ,' .L, : .. ·: \• . second appellant ::S.:J':'.;}pi.p- to have been at" hwanjelwa ·:selling - second hand clothes ·· ::', ...... ,,. - ·.:/\··:~ .. ,: ... , , /·:••t: r.:-,~1:· from 7 .. co run to 6.oo pm on the materil:~::1.j- .-:/He s''\vll claimed to have b'een. ' . ..,.---e·::;· beaten and forcect·ft> sign the statement9 • !,, ( ,.:',

• I agree with the learned state attorney that the convictions:.:.,d.f the appeliant;q- were founded n · iU:i3-ilt ficieritue:viden~~ a The onl_y evidence against . . r . - - -- :_· ·.1,:: the·appell?tnts was the allg'ed confessiqi:;i <;:optained in their cautioned ·- - statei;nents ... Assuming that the stateme:t,J..t,s were properly admitted in evi(ience, . .. .. ' : ,·:.-, tl-i:°ey .vlere, however, epuditd' or ret,rq-cted at the trial. In ali Salehe Msutu ' . . . . .. . ~ . .. ' 'T v} 'Repll,blic ( 1980) TLR I, the Court 0f- Appeal held: i ;. ·, i .,' ··r .-\ repudiated con'fession, thoupas a matt~; of law . may sup~ort' a convi9tion, generally,req_u}res as a

• ·- m;tter ,,of p;r,udence co:rrobortiori- as i~:.ino.rg_ially the :. ' .• . -: In other words, a trial court should acbept any confe·ssfo~ ,()hich. has._p.en retracted or repudiated with caution and mu.st- before founding a ,9cmviction on i=;uch a confession be fully satisfied after considering all the.;material points • • • • • • o • • a~- /3

• 3 - and all the circumstances of the case that the confession cannot but be true. In all the circumstances of this case, I am satisfied that the confessions of the appellants, properly considered, fell sh0rt of meeting that test, and that corroboration in material particular by other evidence, which was wanting in this case, was required. There were, besides, the defences of alibi raised. by the appellants. In all the circumstances of this case, it does not occur to me that the trial court accorded those defences the attention they deserved. In the same case (supra) the Court of Appeal held: As a matter of law, an accused person is not required to prove his alibi; it is sufficient for him if the alibi raises a reasonable doubto In this case, the appellants did not only raise those defences of alibi but brought evidence in their supporto In my view, those defences, properly considered, were quite plausible and capable of raising reasonable doubts as to the complicity of the appellants in the crimes. It was the foregoing reasons that I allowed the appeal,

• C quashed the convictions, set aside the sentences, and ordered the immediate release of the appellants from prison~ AT r-rnEYA. 22 N ovember 1999 • ' ~ . - - •.. ._ I CBHTJF.X:-THN_r'':'THL3 IS ' ,, E.Po l½OSHI JUOOE A TRUE COPY OF THE ORIGINAL. c-- . '\ ------- .--. / _.i_f-I(· DISTRICTRfilISTRAR.