Ndayuwundi Ntikahera vs Republic (HC Criminal App. No. 28 of 1998) [1999] TZHC 354 (6 September 1999)

f ' ' μ{c_ AT Tf~ORA. APPELLATE J1ffiISDICTION (HC) CRIM!NAL APP. NO. 28 OF 1998 ORIGIW,L CRIMINAL CASl!: Nb. 5 OF.19_98 OF DISTRJCT COURT Ot KIBONDO DISTRICT AT K!BONDO

BEFORE: P.Y. MAUMBJL SE;IO DISTRICT MAGISTRATE NDAYUWUNDI NrIKAHERA •·• •• , ••••• ; •• , ••• APPELIJ,Nr (Original Accused) VERSUS THE REPUBLIC • ••••• • • , • •,. , ~ ., • •••• • , ,RE.SPONDENI' .· ( Original Prosecutor) J U D G M E N T On the night of 24/12/97 the reaiJ,mce of El..iPkim Samekele ai tuated at Bukililo Villge t Kibond<> l)istrict waa burgled and one bicycle, make phoenix, the proper:, of one Eliud Ntakimazi was stolen. At the time of the burglary. ,'J.iakim Samekele was not at home. He was attending Xmass eve maas. On .:,/12/1997 Eliud Ntakimazi met Ndaragavya Mbanje ( th 1st accused):,arid narrated to him what had f ha,,:pened. Ndaragavya Mbanje request( the frame number of the stolen . bicycle. He was given the said numbe1:: arid was promised a reward in case he was able to trace the stolfn bicycle After three days Ndaragavya Mbaje reported back to Nta1'5ma.zi to the effect that he (Mbanje) knew where the bicycle wa1: and he would show where the bicycle was on being given Shs.10 1 )()0/=. He was given the money as requested whereupon he led Ntakima '7 :: e_nd 4 other people to the bush where the bicycle was hidden. Nte.kimazi identified it by frame number as the bicycle that was stolen during the burglary at the residence -e.f E1iakim Samakele on the night of 24/12/1997• The matter was reported to village authorities4 On being questioned, Mbartje

confessed to have stolen the bicycle accompanie,d by Nd~~urtdi Ntakahera • ·'.t•·. • • •' (the appellant} •. -T.h,e _matter was then reported to the police~-- lje and "' .... Ntikaherf,3. were arrested and charged jointly with two ceunts; burglary 9 contary to section 294 (1) of the Pel'lal Code and the:tt:contary to secioh 265 of the Penal Code., They were convicted as charged. Mba,nje as sentenced to 4 years imprisonment on the 1st count and one ye itJJprisonment on the second count.- Ntikaher~ was aentenced te three years imprfoonment on the first count and six months impr:· Je::Onll!P,nt on the second count. Dissatfaified with both convict: c ,n and sente"nce Ntikahera has appealed to this cour:t.· At the hearing of this appeal tb:>. Appellant did not ap,,ear. He had · pted not to be present at the heari J. of his a-ppeal. The Rel)ublic was represented by Mr. Mwampoma, lee. ~"1ed State Attorney. Mr. Mwampoma declined to support· •~onviction. He appears to have been right. The conviction of the A ~ellant was based on the alleged confession of a co-accused. Section 33 of the evidenc-e Act 1 1 6? as amended by Act No. 19 of 1980 provides, inter alia: "(1) When two or more persona a:e being tried jointly for the same offence or fo1 different offences arising out of the same transa.ctior 9nd a eon:fession ·,,.f the offence or offences· cha.rgec: made by one of those persons is proved, the cow t may ·take the.t confession into consideration aga:in.st that other person. (2) Notwithstanding sub-aectior (1) a cinviction fan acdused person shall ot bf·. based solely bn a cinfesion by a co,.;accdn : In the instant case the alleged c, ,nfession by Mbaje implicating the appellant was rtot proved in court, It should have been established by evidence whether the statement by Mbaje was 5 ust a statement nat amounting to confession or whether it was a confession, and if a confeaaion, \olhether it was valuntarily given or it was induced by

,. " ) ( ··3 ) torture or·thr.eats. Only if it wa~ · a voluntary confession could . . . 1.· . , .. ,. it be taken into considera.tio~ against-the:appellant.: In SBI3l.'3TIAN SWAI AND OTHERS V. RET1Bt!C (1973) LRI' R. 75 it was held that a statment·hich does not am unt to·a confession is only evidence against n . . 'the makor;. and that when extra-Judicial. statnrents,. whether retraceted ,.,.... . . .. . . .. ,, l, . ~ or not, are sought to be· sed:--ai'.nst.accused persons other than their makers under sec.ti on 33 of thE! -Evidence Act, te following .,•., requirements must be applied: (i) (ii) (iii) Whether such a statemen m,una to a confession. The e::-tra-judicial statemt1:ot must be proved in court. . ' . The statement must be_cO?"roborated in some material particular unless the court· is otherwise satisfied of its truth. At P.316 Mfalira Ag. J (as he then was) quoted with approval a passage from GOPA S/0 DIBANYIBf,NGA and Others V .R. (1953) 20 EACA 318 as follc,ws: 11 It is a fa.lacy to say that the confession of a co-accused can bP- dealt with on the same basis as the evidence of an accomplice. The ordinary way of dealing with accom)l..ice evidence is to treat the evidence of an accomplice the fwdation of the prosecution story• • ' • j. and then to see how far there is c~·oboration of-matters hich affect the ac.,.uaed and tend to show that th':' evidence is 1r:-ue against him. But we cannot take the ·confession of a co-accued as the basis of the rosecutions case. : I of cross-examjnation". .. ·. ' . It is ot g:'··en on oath and there is no right ~ In GOPA!S case it was held that confession by a co-accused can only be used as lending assurance fo~ other evidence against the co-- . } accu.'::P.d, evidence "'hich only falls s'.'rl by a very narro'l,7 margin of the standar"'. 0-f' pror--1: :'.'l.ecessary for a co1viction. . . , . . In SELEMAN R{;SHID AND Ol'HERSV. :Rt!?UBLIC (198l)TLR 252 it was hel that ·., ' . i' the wo:-:-ds" take into consideration" in section 33 of the Evidence Act, 1967

SJIC) CRIMINAL APP •. NO. 2.§/98 mean that such evidence is Of the weakest kind and can oply be used as lending assurance to other- evidence against a co-aflcused. Hence oTin.if the alleged confestion by Mbanje could be proved in court, such evidence by itself can not sustain conviction. There is no other · evidence on record ag8:inst the appe:; hnt appart from the alleged confession. For the above reasons the aripea:1 is allowed. Conviction is quashed and sentence is set aside. The a-p-p :·.lent is to be releaaed unless otherwise lawfully detained .• JUDGE 6/9/199~ Belivered in Chambers in the pre; E,nce of Mwamp.oma, State Attorney this 6th day of Seftember, 1999• .. ( ·- i \ .~~-·7 r·~ '\ . >. -s·-" :...· ·- - -- D.M.MW:i 1-A JUDGE