Akiba Daudi v. Republic, Cr app no 81 of 2004 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:      NSEKELA, J. A., MSOFFE, J. A., AND KIMARO, J. A.)

CRIMINAL APPEAL NO. 81 OF 2004

AKIBA s/o DAUDI ………………………………..…………..APPELLANT

VERSUS

REPUBLIC………………….………………………………..RESPONDENT

(Appeal from the decision of the High Court

of Tanzania at Dar es Salaam)

(Manento, J.)

Dated the 10^th day of April, 2000

in

Criminal Appeal No. 103 of 1997

REASONS FOR THE JUDGMENT OF THE COURT

MSOFFE, J. A.:

        On 14/3/2007 after hearing the erudite submissions by Mr. Boniface, learned Senior State Attorney for the respondent Republic, we allowed the appeal, quashed the conviction, set aside the sentence imposed upon the appellant and ordered his release from prison unless lawfully held therein.  We reserved our reasons which we are now set to give.

        The District Court of Morogoro (Lugaziya, RM.) convicted the appellant of the offence of Armed Robbery contrary to sections 285 and 286 of the Penal Code and sentenced him to the statutory thirty years term of imprisonment.  The appellant was also sentenced to corporal punishment of twelve strokes of the cane.  He made a first appeal to the High Court of Tanzania at Dar es Salaam where Manento, J. (as he then was) dismissed the appeal. Still dissatisfied, he preferred this second appeal.

        At the trial it was alleged that on the night of 21^st December, 1996 at Mlulu Village, Morogoro, the appellant, and three others, shot at one Ally Salum and in the process they stole from him a sum of shs. 40,000/= and bundles of cigarettes worth shs. 21,500/=.  The appellant’s conviction was based on the confession of a co-accused and his own cautioned statement.  The courts below were satisfied that the two pieces of evidence established the appellant’s guilt and hence that a conviction was fair in the matter.

        As already stated, this is a second appeal originating from the District Court of Morogoro.  Being a second appeal the court rarely interferes with concurrent findings of fact by the courts below.  In the case of Mussa Mwaikunda V R, Criminal Appeal No. 174 of 2006 (unreported) this court quoted the following passage from the case of Director of Public Prosecutions V Jaffari Mfaume Kawawa (1981) TLR 149 at page 153 where it was stated;-

“The next important point for consideration and decision in this case is whether it is proper for this court to evaluate the evidence afresh and come to its own conclusions on matters of facts.  This is a second appeal brought under the provisions of S.5 (7) of the Appellate Jurisdiction Act, 1979.  The appeal therefore lies to this court only on a point or points of law.  Obviously this position applies only where there are no misdirections or non-directions on the evidence by the first appellate court.  In cases where there are misdirections or non - directions on the evidence a court is entitled to to look at the relevant evidence and make its own findings of fact.

(Emphasis  supplied)

        The crucial question in this appeal is whether there were any misdirections or non - directions on the evidence by the court of first appeal to warrant interference by this court.  With respect, we are in agreement with Mr. Boniface that this is a fit case for interfering with the concurrent decisions of the courts below in their evaluation of the evidence against the appellant.

        The appellant filed a memorandum of appeal containing three grounds.  The first and second grounds refer to the cautioned statement while the third one is on identification.

        The complaint in the first and second grounds of appeal is that no enquiry was made to ascertain that the cautioned statement of the appellant was made voluntarily.  In order to provide an explanation to this complaint it is necessary to look at the circumstances in which the statement was taken.  In doing so, we wish at the outset to quote the following passage from this court’s decision in Emmanuel Joseph @ Gigi Mwita V R, Criminal Appeal No. 57 of 2002 (unreported) cited to us by Mr. Boniface thus;-

“… that unlike the practice applicable in the High Court, where a trial within a trial is held in order to establish the voluntariness of a disputed statement, in the subordinate courts, no such practice is applicable.  In that case, where a situation arises say, in the District court as happened in this case, an enquiry on the voluntariness or otherwise of the statement can be ascertained from the evidence on the record   and what the trial magistrate did at the trial.

(Emphasis supplied)

       

In this case, it is clear from the record that on 28/1/1997 the 1^st accused told the trial District Court that on the day of the arrest he, and the other accused persons (including the appellant) were “roughened” up such that their statements to the police were not voluntary.  On 17/7/1997 PW5 C5109 D/Sgt Ramadhani tendered the appellant’s cautioned statement, and the same was admitted in evidence, without giving the appellant an opportunity to or not to object to its admission.  And in his defence in court the appellant stated that he was forced to sign an already prepared statement.  Surely, in the light of all this, the admission in evidence of the appellant’s cautioned statement was not free from error.  Indeed, as submitted by Mr. Boniface, and we agree with him, in terms of S.27 (1) and (2) of the Evidence Act, 1967 only voluntary statements are admissible in evidence. And the onus is on the prosecution to prove that a confessional statement was voluntarily made by an accused person.  In other words, it is also pertinent to say here that in a criminal trial the voluntariness of a statement has to be resolved first before it is admitted in evidence.

        At any rate, we may point out here in passing that when we look at the cautioned statement we do not get the impression that the appellant truly admitted committing the offence in question.  He is recorded to have said as follows;-

“Ni kweli nilishiriki lakini nimelazimishwa na hao wenzangu kuwa niwapeleke au wataniua pamoja na familia yangu…aliyekuwa akinitishia hivyo ni George Bush…”

Incidentally, George Bush was George Said Mondo, the first accused at the trial.  As already stated, we do not read anything in the above   statement to show that the appellant admitted to have participated in committing the offence in issue. In fact, in saying so the appellant was actually raising the defence of compulsion under S.17 of the Penal Code, which reads:-

A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.   

Be as it may, in the light of what we have stated above we are satisfied that the appellant’s cautioned statement was improperly admitted in evidence.  Once the statement is expunged from the evidence we are left with the statement of the co-accused, that is the statement of the first accused at the trial.

        In the statement of the first accused it was alleged by the prosecution that he implicated himself first before implicating the appellant. Of course we may point out here in passing that in his evidence in court the 1^st accused did not implicate the appellant, contending in effect that he did not even know him.

        In an ideal case, under S. 33(1) of the Evidence Act, 1967 if a confession of the offence or offences charged is made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person.  However, under subsection (2) thereto, a conviction of an accused person shall not be based solely on a confession of a co-accused.

        The trial Magistrate and the judge on first appeal dealt with the position of the law regarding retracted confessions and the evidence of a co - accused person.  In the process, both stated that although it is desirable to look for corroboration in support of a retracted confession before acting on it, the court may convict on a retracted confession without corroboration, after warning itself of the danger of doing so and after being satisfied that the confession could not but be true.  The judge on first appeal cited the case of Michael Luhiyo V R (1994) T.L.R. 181 on the above proposition.  We may add here that in the more recent decision of this court in Emmanuel’s case (supra) the court cited the following passage from Pascal Kiligwa V R (1994) T.L.R 65 that:-

“Although the law does not say that conviction on uncorroborated accomplice’s evidence is illegal, it is still unsafe, as a matter of practice to uphold a conviction on the uncorroborated evidence of a co-accused.”

        Having dealt with the law on retracted confession and the evidence of a co-accused the judge on first appeal then stated:-

“Furthermore, the corroboration of this retracted confession could also be said that it had been corroborated by the cautioned statement of a co-accused”. 

 With respect, we think in saying so, the judge was in error.  We say so because under S. 33(2) of the Evidence Act, the evidence of a co-accused needs corroboration.  In other words, the sub-section does not allow a conviction based solely on a confession by a co-accused.  So, generally speaking, evidence which needs corroboration cannot, in our view, corroborate other evidence.  We are supported in this view by the following passage by H.F. Morris in his book Evidence in East Africa at page 174:-

“Where corroboration of one witness’s testimony is required, the evidence of another witness which itself requires corroboration cannot, as a general rule, effectively corroborate the evidence of the first witness.”

        Nonetheless, in view of the position we have taken on the appellant’s cautioned statement it will follow that the evidence of the first accused which needed corroboration could not corroborate the cautioned statement.  So, having expunged the evidence of the first accused it will be clear that there is no other evidence left, or remaining, to support the conviction.

        As earlier observed, the complaint in the third ground is that the appellant was not identified on the particular day and time.  With respect, we do not have to discuss this ground because no prosecution witness ever testified to have seen and identified the appellant on the fateful day.

        For the above reasons we allowed the appeal.

DATED at DAR ES SALAAM this 27^th day of March, 2007.

H. R. NSEKELA

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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