Republic vs Christian J. Ndeule & Another (Criminal Sessions No 22 of 1987) [1991] TZHC 2013 (19 July 1991)

,·· .,_ t.:j IN THE HIGH C0Ui1T OF l'l'.NZANIA AT DAR ES SALAAM ORIGINl'.L JURISDICTION Ci.UlvUNAL SESSIONS C/,SE NO!" 22 OF 1907 REIUBLIC versus l. CHRISTIAN J. NDEULE 2. JUM/, SAIDI SHIJA JUDGI"1ENT BiJiA'l'l, J. 10· • .s. . · · · The two accused pers..:,ns in this c:ase, namely, Christian Jh•.n ., Neule and JUrna Saidi Shij a, to be ·referred to as first accus.ed an4 second accused .respe-ctiv-ely,· -are -ehargect With·-- .offe-nce-.C-Of r -contrary to secticn 196 :of; tho P·enal Code. ·' • I The evidence from the prosecution sie is tha~ thereJwa~·a "°bbery_ by the use of a pistol at Mawenzi Bar Dar es Salam. The • . I robbers managed to hreaten everyone and to take money an to leave after $hooting the deceased Shaaban Mohamed on the wa.y. ;eople in ' the bar simply heard a 9un shot and soon· after they .. saw the deceased lying on the ground, dead. That inc1~~nt. occu.red in baries Salm . . . ! on 5/7/0?• But before that date on 16/6/82, OC CID Ferdinand . , 1 . ·Mchembe of Ifakara Police had g8t a report concerning a Lf.bbery.at Ifakara. Op 16/7/02 he arreste the robbers at the Kilomro rivlr ferry. He found the 1st accused with a pistol with 7 rounds of aJ'IUl?Uni'tion. After sending rolice messages. all over Tanza:-iia, . . , police Magomeni replied to the message that those arrested we. wanted· at Magomeni Police station. rolice from Magomeni went to I£akara with the identifying witnesses,. an<l the identliication. parade was condUcted, and th~ accu.sed··-td-ent..i.iied' without any he.sitation from the identi.fying witness. The inentification parade register ~as tendered as exhibit F3. The accused had ·. ti,clcet& showing that they had been travelling all over Tanzania. They were handed over to Police Magomenic. . The accused were eventually taken be.fore J\lsti.cei= ·of the Peace • . _.P•Jl!::4- j{Wege Mketo- ,recar(1ed th.e statment of Juma iaidi Sh.lja a:f~ ~, ' ,. ... 20 30. . ! ~ ."··

going through all the formalities to satisfy herself that the accused was a free agent. The 2nd accused told her that the fresh wound which he had was due-to an injury-during his arrest. The etaternen.t which the.2nd accused mede said; inter alia, .that ' on S/7/82 at around O p.m. he with his companion went to Mawenei bar and ordered everyone to lie down. Then his companion went inside the building and took money. As he was going out, he met the deceased who held on the companion and would not listen to orders to let him go. .Then the 2nd accused shot him with a pistol ' Whieh they had robbed one. Jackson. The money robbed was shs. 6., 600/=. 10 i,.fte that the 2nd accused nd his companion escaped to Ifeka.ra at the home of the companion. The ot.her accused-ChJ'.'1stian John Ndeule was taken before Jamila Juabe p.w.s, who also took his statement, after going .through the jlities to satisfy herself that the accus.ed- was a free· agant .. : ?n his statement the 1st accused said that he was injured during hi.• arest._ He then gave his statement which states inter ali& that he was with Ray Kamanga, Ju.ma Saidi Shija, Chopa 1 Njili and Salum irr···a landrover. He parked the vehicle at the verandah of his house. Then the 1st accused and the second accused entered the 20 iirst accus€d·•·s house and they took an s. f-'1- G. Then he hJard someone I say, "Hands· upJ 11 He jumped the wall ann ran away. conce·rn.ing· this gun (s.;M.G .• )· it was of his other friend one Kimaro who stole it i £rom a National serviceman on guad who was asleep~ concerning the incident in this case, the first accused said that he aJd 2nd accused went to Mawenzi Bar. They managed to stage a htjld up and the 1st accused jumped into the counter and took the money. Then as he was running outside the bar one person ambusr.d him and held on him. Then the 2nd accused hot him with a pistol- ... The two accused then left running up to Ki·gogo. The pistol used was 30 of jackson Lumala make-star. Then the two travelled from •-r es salaam. _he accused persons gave their defen.ce on oath. The"first accused Christian Ndeule said that he was in Shinyanga on 5/7/02 namely a, N andekwa village Kb,:..ma D; strict. O!. l ·1/7 /;-, 2 he w·a~ C going to Tabora. on 15/7/02 he proceeded to Morogoro wh~re .he arrived at night. Then next day on 16/1/02 ~ travelled to Ifakara. He ini::.el>ded to go to .Mal.inyi. When he got to the ,ferry, ..

he met people who ordered him to surrender by poi:ting a gun at him. He was a+l this time with the sec-.md accused as the two were doing business together. At Dar es Salaam accused used to $tay at Magomeni Mapipa and -Mawenzi bar was near his home. ,The ac:cused knew even the owner of the. bar •. When they were arrQsted at the ferry they hud nothing contnwen4ial. Their tick.et.& and heu: w.sine$6 p-ermit ware taken away and they were taken to ;ifakara Pulice Stativn and asked ab.,ut g-:wernment trophies.- 'Then they were arraigned before· Ifekara District Court for robbery-, After a week Polle& off'icers came fr,;;m Dar es Salaam and an $.4enU£1cat1on parade was prepared. .Ndeul-e was identified by one ..).lliu• --ChipundU as a pers,_,n with wh,:m he was living in Dar es ·salaam. ,Alsv one Seidi Salum identified th-e fi.rst . accused. Nd.e'-lle. - ,,.,- Ndeule knew Saidi Salum who lived in Ufipa street. These 2 persons ·· .entifi.ed t.h0 1st aocused because of an incident in Dar es Sala1tiu. ... fl:'C)ll1 If akara the accused pers,ms were taken tv oar es Salaam and a•ke about the Mawenz.i incidento The accused wer tortured -a£te.r denying any knoWl-e-dge 0f the Mawenzi incident. .The P,)lic at ,Magomeni Police Station wuuld tie heavy things to the first accuse•••·, 10 usticles and he w0uld _ be made to carry the -same using his testicles •. ~ I· . In the process of this j:orture the first accused adrn.1.tted the. murder I • -· • I ause he was afraid to die. The olice told him what o say in h etatement which he was forced tc make to the Police-. Heiwas warne4 '° :N1e•t bl!l•a1'le statement to the Justice of the Peace/lest he be I , • killed. Then when he was taken before the Justice of th Peace he lied about ·his injuries on his body for fear of the Felice. He also> lied ·that he wanted to make a $tatement. He then made his statement and the Police took him back into custody. The c.r.n. Chief cheeked the statement to see if it complied with what he wanted. The accus~-':le" -· , denied being arrested with a pistol· and challenged the roice to produce such pistol. He· denied being identified in co'nnection with the murder .. 1'he second accused person Juma Saldi Shij.a said that 0n 5/7/82 he was at Nyandekwa villge Kahama.. He was doing maize business, but his normal residence was at Ufip-a street.Dar es salaam.· He had .gone. to Nyandekwa si~e 10/6/82 •. The rest of his defenoe is

substantally the same as that of the first accused. He too, made a statement before a Justice of the Peace in conditions similar to those of the 1st accused. He was asked about Clean Heart Hotel by his advooate. He said that he knew it as it was in Magomeni just a few s from Mawanzi Bar. In-crosam.ination~ he said that he an~ tne ·•.U.Nt accus&d went, to Tab<>ra in ·order to s.a.e hia ~ fatbel'• The~ there was the evidence of Saidi Salum sif to the effect that he worked at Clean Heart Hotel in 1981 to 1903. There-wa.; a obbe.c-y at; Clean He=art Hotel involving the use of firearms. .T de Jnontione-d for the robbery is 27/7/02 which is also the date when the iantification parade was conoucted in which he picked tbe two ae,used as thG robbers. He s'aid that the i,jentification paade . . W't'/J wa, . mae not long after the robbery and that the parBde./at If.ra, The .tJ'.1-eP&. 4J,0Uld idntJ.y--the -ACCU-£ed because he knew them b.e.fo-,e the t1ay o-F the rpbberyo .After eumm.ing up to the lady ass.es so.rs the fl.J:-st &ssess.o~ held "· · thQ f!eww hat th0 accused persons were guilty.as charged. She re\ied on the evidence of the Justices of the Peace to arrive a tl'4• •oeelon, because th accused dmittect their <.if.fence.. The 10 sTn.d' a_:;essor was of the same opinion. 20 In this case we have the following evidence against the acc:uted · pef:suntJ Against the first accused Christian Ndeule, thE!re is hJ., onffssion to the Jusice cf the Peace. Then. there is the ienti:Eic·afion parade register (exhibit r3) which shows that SaidJ Sal\lm identified him and that Julius Chipundu also identified him., Next is the evidence of Saidi Salum that he identified him in '1QJ'Ul,8Ction with a obbery which occured at clean Heart Hotel involving the use of armso Finally we have the confession of the 2nd accused Juma Saidi Shija which mentions the first accued o have been involved in the Mawenzi robbery. Against thG sec1..,nd accused Juma Saidi Shija is first his CC>nfessiun to the Justice .. o:t' -tha Peace. Then there is the identification parade register showing that Saidi Salum identi- fied him.. Next there is the evidence of Saidi Salum that he identified the 2nd accusQd in connectivn with a robbery at Can Heart Hotel involving the use of a firearm. P:inall.y there is the 30

confssivn of the first accused -which mentioned him to have be,e??, ivolved in the Mawenzi robberyo I will now examine the case of each accused person_individually. l have stated above whet the evidence againt the first accused is• His evidence in defence consisof his denial un oath of ever beig :involved -in this offence and his alibi. As! said .to the lady assessors in my summing up, the defnce of alibi did not comply with / ' : the provisions relating to the procedure where the accused intends to rely on the defence of an alibi (vide section 94 (4),(S) and (6) of the Criminal Procedure Act)o since there was no notiee of tke ~ intention to rely on such defence, I have a discretion-to M~~ no weight to the defence of alibi.. What we hav·e here is a repudiated confession; In the cas cf Ali Salehe Msutu v. Republic (1~) TLR 1 1 it was held that a repudiated confession, though as a matter of law may support a·conviction; generally requires as a matter of prudence c_Qrroboration as is normally the case where a confession is retracted. The Court· of Appeal went on to observe thus: 11 We would summarise the position_ thlls • a trj..al court should accept any confession which has been retracted or repudiated with caution, and must before founding a conviction on suh a confession be fully satisfied in all, the · ci,rcumstance of the case that the confess:i n is true. The same standard of proof is relired in all. cases and usually a court will only /act . . r on the confession if corroborated in some tiaterial . part:icular by independent evidence accepte.; by the court.. B.ut c9rrobora'l:ion is not necessary in law ard the court may act on a confesion alom,_ 1f it is ful]y satisfied after considering all -.he mat,&fial circumstance~ but/the trutbo" that the confession cnnot The accusd has repudiated the confession on the g.rouz,.-s - •h_at he was.forced to make ito In t;._ .. <i)ndhi • Captain HattyMeghee ' and .others v. Re;2ublis., _c.~:.1.Jnin.al Appeal Noe 3 of 1986 ( unreportet!) 1 < Nyalali, c.J. had this to say at page 40 of the typed judgmE:;nt: I "Since tl1e appellants who made the extra judici"l statement ade it known to the Nagistrates that:,, ,• :r:he.y were :free._ ag_en.t.s.---n.<>-..re.aS!lnabJ..a...t.ribun.al .i 10 . ·. 20 30 ' 1

can find otherwise unless there was something in their appearanc~or conduct which was inc.on•iatent with being a free agent or unless there is cogent evidence to show ths.t they 1'1ad n t.o.ctu:: wh.Ue in -oustody before being taken to the magistrates ... Al X ,a1• !n my .wli.ng in tbQ. trial -with.in .a u.iu .cd. a thJ.• •aM to <fut.ermine the. adl'Tli.a&ib-ilH:!f W otherwise of the ~ ,. rnfe .. !ont of both accuse persos_, there was n•Jthing to ah tha• -~ aoeused had beQn io!!'tut.ed Ar 'tb.a.t he -was nt a free isge-a - .ace axpl.aioed the ecar•. which he had to naye bee11 rs e4 by falling on arrest. '1'here was nothing in the app!it~~ of the- accused or his eon{1ucc whi<!h waa- ~q. wi\~ being a fiee agent nor was there cogent evi~ence to •h~ tha, .l\e hsd bQ.a.n ~~-- 1'hi1~ .in .OUff<,d'y -~1:a ~J.~g ~ake:Q. f(>· the r-e. oi the Peace. ltto,witns-tancling the abo•e obse.rtation~ · I fin~ 1. i:>au11en, '"'· J,oalc fott~~~J.~ ol the repUt1'1~~~~~-. l-"obQAtion . ia \o bQ found j.n the: identii'i•ation parade r-egister <exhih&• •FIJ-· .i:-· whif\ fW"'' that the: accused was it1entif.ie'1 by .Jul..tu.. ..cl,..1.pqi; u~?lcq Seldl Snlum (o.w.3) JUl!..u& Odpun& t1"lij, not give evtf .. $V\ -e e¢ birAQeJ.t' ad that he was identified by .J\lll .. (:hJp\U\41ij ~~l.though. he says that the iden-ti.t'1-oati1Jn was not. !n rl~Q..wj.th this c: ase •. This is what the :t'i~ aeo.i.sed •ay:.,- f'?o.a .Julius. Ck.i.u identified me as a pe• with horn I was living at Dar es Salaam. I was also identified t,y saidi. Sal.urn. I kne Sa:L<li Salum. He knew me as he was 'Stnying ln Ufipa Street and I knew h!m too •. They identified me because o~ an 1neient at Dar cs salaam •. They told me so •••• 11 elJul.ius Chipundu cuuld not have been called to J.!1entify t.he y.,ed because he simply knew him.• Further_ mnre the adfilae4 •oa'5eii.Q.ta himself when he gos 0n to sa'y that the two wi tn~ .... idents.(J.ed him because cf an incit1ent (tukio) in Dar es Salaal. wnei tn1• latter sentence means is that c+u.p~ ierrtified tti -4: b$ct6U&a o€ an inei in Dll» ~. sa1..am.. · .Wh.at in<:irieu\ t., ' J) 20

was this if it was nc,t t:1e Mawenzi inci"'ent? After all the accused gves on t0 say later on 1.:hat it is the P,.:•lice fr,-'m Mag,,meni who came with these witnesse~ an~ after the accuse~ were identified they were asked about the Mawenzi murder. :.We were not tolct why Chipundu di!"l. not came to ·ive evi'1ence al though his statement was produced at the Preliminar·; Inquiry al,ing with the statement of saii Salum o.w.3. All thE same, espite all that which I have said above we cannut eliminate tl::! possibility that Chipundu identified the accused ln c<m11ecti.:.;n wi .:h sc,mething else other than the murder incident. After all even Sa.,.di Salum was. simply listed in the l) 1dentificatiun parade re;ist•, :- as having identified b-Jth af!euseii. But after giving evidenc,::? it •4as pr0vert that it was n,t an identification in cunnec..:i,m ·-rith the mur,..er but in cc-nnecti,;n with a robbery by the use vf f•ire-1:niso rt fclls:·.ws, theref0re, that this evi1ance does not cor:co'.) ·rate anything. Next is the evidence 0f , :aidi Salum.. It is clear that this .evidence 0es not corrub0ratf anything material in the c0nfessiun apart from showing thut the n, cused had a gun which they •)nee used in a robbery. Lastly, there j_: the cunfession Gf the 2n'1 accuse • which mentions the first accv,ed. Alth :-ugh this is evience in 20 acc:vrdinance with secth,n 33 1 .I.) ann ( 2) '.)f the EVir'lence Aet, it cannot be effective because tr·.,· c,nfessi,,n ·.>f the 2nd accused itself needs corroboration as c.1 matter of prurience. Therefore I find no c-:..rr ··· • :ation l'f the c•.>nfessi,,n of the first accused. In view ,lf the l-!clcUng in Ali alehe Msutu .case . - ·supra,. ana in view of its reas,,nlng, I would be reluctant to fund a conviction on the confe ·:=;ion alone because I am not fully satisfied in all the circumstanc "s •:"Jf this case that the confession is true. With due respect to th,, lady assess0rs, I wish to differ from their opinion which the)' ex,, -:-esseri because of the reasons 30 have given aboveo I, conseqhent)Jy fin that there was no sufficient evidence adduced tv pruve the ca .;e against the first accused beyond all reasonable doubto I fin0 th, first acc;used not guilty of the charge and I acquit h.i.rn "~-:--,-::-rU.ngl y. The accused sh-·,ul<l be released forthwith unless otherwise lawfully held.

• With regard to the 2nd accuse~, the same reasoning app11et, z ~ do not find suffieient evin.ence.to rove the ease beyon eaeo•. able doub. I, consequently, do find the second accuse1 not gui~•, of l\e etharge d- · .:'!.'.j.t ::f r. ;- C-' ·'.· I t. h,UB' ;qoedin9'1'• · iie i ~ ~ l.eas.ed £rvrn cust"Y fJ.t-1- ui,Jo,- othetae 1~ held, ... . . ... - -· ·--··• ··- ,.~ -.~~·-·,;--· ---··,~~~-•- .. , JUDGE :'.9/7/91 De1.W,eed - Mr Mwen·;}ele f1 r Repub.li-e 7 ~. ~ ~ ~ accused. ACC\sed present. . . . . - . . . . . .. - ...... .

,1Ul'JG8 
19/7/91 
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A. BAHA'l't··\ 
JUDGE 
· 19/7/91