IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM:
LUBUVA, J.A., KAJI, J.A. AND KILEO, J.A.)
CRIMINAL
APPEAL NO 95 OF 2006
BETWEEN
JANTA
JOSEPH KOMBA
ADAMU OMARY
SEIF
OMARY MFAUME
CUTHBERT
MHAGAMA
AND
THE
REPUBLIC
(Appeal
from the decision of the Resident Magistrate’s Court at Kisutu [Hon N. P.
Kimaro, PRM.] Extended Jurisdiction)
Dated
the 17th day of July 2000
In
Criminal
Session Case no 8 of 1999
------------------
JUDGMENT
OF THE COURT
05 December 2006 &
KILEO, J.A.:
The appellants,
Janta Joseph Komba, Adamu Omary, Seif Omary Mfaume and Cuthbert Mhagama, were
charged with, and convicted of murder, and were sentenced to the mandatory
sentence of death by hanging.
According to the evidence that was led at
the trial, the deceased, Mwalimu Hamisi Omari, @ Teacher, was a driver who used
to drive a pickup for hire. On the fateful day, which was October 30th
1990, the deceased had parked his motor vehicle at Ilala Boma, Dar es salaam
There were no eyewitnesses to the commission
of the crime and the people who hired the deceased were not identified. The
conviction of the appellants was therefore based on their confessions, which
were retracted.
The case against the first appellant, Joseph
Janta is contained in the testimony of PW2. This witness arrested the 1st
appellant. His evidence is to the effect that the appellant was found in
possession of a motor vehicle that contained two shotguns. The arrest was made
on 5/11/1990. Pw2 handed this appellant over to Pw1, Senior Superintendent of
Police Paulo Kikoti. After interrogating him, SSP Kikoti directed that he be
charged with unlawful possession of firearms. It appears that he was charged as
directed by SSP Kikoti but he was absolved of the charges relating to
possession of firearms. It is also on record that he was taken to a justice of
the peace though this appellant’s statement to the justice of the peace was
never tendered in court. On 9/11/1990 PW7, Superitendent of Police Mwanzi
recorded his cautioned statement.
The second appellant, Adamu Omary, was
arrested on 16/12/1990. He and the fourth appellant, Cuthbert Mhagama, were,
according to the testimony of Pw4, arrested on suspicion of having killed the
driver of DAHACO. The witness testified further that the appellants told them
that they had some weapons, which they had hidden in a toilet.
The third appellant, Seif Omary Mfaume was
arrested on 16/12/1990. His cautioned statement was taken on 17/12/1990.
According to Pw3, D/Sgt. Charles, who is the officer who arrested this
appellant, the third appellant was pointed out to him by the second appellant.
At the hearing of the appeal Janta Joseph
Komba, first appellant Adamu Omary, second appellant and Seif Omary Mfaume,
third appellant were represented by Mr. Rweyongeza, learned advocate. Mr.
Kalolo Bundala, learned advocate, represented Cuthbert Mhagama fourth appellant
and Ms Neema Mwanda, learned State Attorney, represented the Republic.
The joint memorandum of appeal for the 1st,
2nd and 3rd appellants contained two grounds of appeal
while the memorandum of appeal of the 4th appellant contained three
grounds. All the grounds of appeal, as submitted by Mr. Rweyongeza, can be
condensed into one main ground; that the conviction was wrongly arrived at as
it was based on retracted confessions, which lacked corroboration.
Mr. Rweyongeza argued that in order for the
confessions of the appellants to be taken as a basis for their conviction it
was necessary for the prosecution to establish without any shadow of doubt that
the statements were voluntarily made. The learned counsel went on to argue that
the circumstances, which led to the making of the statements, rule out the
possibility of the statements having been made voluntarily. Submitting on
behalf of the 1st appellant, Janta Joseph Komba, he pointed out that
he was arrested on 5/11/1990 and stayed in custody for four days before his
statement was taken. The learned counsel submitted that the four days that the
first appellant spent in custody resulted in mental torture apart from the
physical torture that he was subjected to.
Mr. Rweyongeza submitted further that
because the statement of this appellant was taken contrary to the procedure
laid down for obtaining statements of suspects, then it ought not to have been
taken into account. Counsel referred to section 169 of the Criminal Procedure
Act in support of this argument. As for the second appellant, Mr. Rweyongeza
pointed out that there was no evidence tendered which connected him with the
commission of the crime apart from being mentioned in the cautioned statement
of the third appellant.
Regarding the third appellant, the learned
counsel argued that his cautioned statement was wrongly admitted. The finding
by the trial court that there were incidences where accused persons admit
commission of the offence notwithstanding the seriousness thereof, was
challenged as being a generality which cannot apply when it comes to the proof
of a particular criminal case.
Mr. Rweyongeza further argued that in order
for a court to find that a statement was made voluntarily on the basis of
details given in the statement, the details must be in relation to the commission
of the crime itself and not details relating to the life of the accused like
his date and place of birth, and the schools he went to.
The learned counsel made reference to the
book titled: Desai’s Law Relating to Confessions and Dying
Declaration by J.C. Desai at pg 273-274,281 in support of his argument that
the evidence of cautioned statement or extra judicial statement is generally
weak piece of evidence.
Mr. Kalolo Bundala for the fourth appellant
argued that the circumstances under which the extra judicial statement was
taken were such that it could not be said that the appellant was a free agent
when he made the statement. The learned counsel pointed out that his client was
kept in custody for 15 days before he was taken to a justice of the peace.
Counsel also argued that it was not proper to find that the retracted
confession of the 4th appellant was corroborated by the evidence of
Pw4 because the criteria for what constitutes corroboration was not met. The
learned counsel argued that in order for a retracted confession to be acted
upon it had to be corroborated by independent evidence connecting the accused
with the crime. In support of this submission Mr. Kalolo Bundala referred to
the cases of Makungu v.R [2002] 2 E A
482 and Waswa & Another v. Uganda [2002] 2 E A 667 decided by the Court of Appeal of Kenya and
the Supreme Court of Uganda
respectively.. The Supreme Court of Uganda agreed with the English case of Republic v Baskerville [1916-17] All. ER
rep 38 in which it was held that; “evidence in corroboration must be
independent testimony, which affects the accused by connecting or tending to
connect him with the crime. In other words, it must be evidence which
implicates him – that is which confirms in some material particular not only the
evidence that the crime has been committed, but also that the prisoner
committed it.”
The
learned counsel also made reference to the cases of Rex v. Aryato d/o Ochulura [1936] EACA, Vol.III, Part II, pg 120 and
Rex v. Opet s/o Erui, [1936]. EACA, Vol.III, Part II, pg.122. In these
cases it was held that a retracted confession cannot be corroborated by other
retracted and uncorroborated confessions.
Ms Neema Wanda for the respondent Republic
supported conviction and argued that the appellants’ confessions were so
detailed that they could be nothing but the truth. She referred to the case of Hemed Abdallah v. Republic [1995] T L R 172
in support of her argument.
Admittedly, the case for the prosecution was
largely based on the appellants’ confessions.
The main question before us is, given the circumstances of this case can
it be said that the cautioned and the extra judicial statements of the
appellants were voluntarily given?
In terms of section 27 of the Evidence Act,
1967 a confession voluntarily made to a police officer by a person accused of
an offence may be proved as against that person. The onus of proving that any
confession made by an accused person was voluntarily made by him lies on the
prosecution. Section 27 provides further that a confession shall be held to be
involuntary if the court believes that it was induced by any threat, promise or
other prejudice held out by the police officer to whom it was made or by any
member of the Police Force or by any other person in authority.
Dealing with the question whether the
statement of the first appellant was voluntary the learned trial Principal
Resident Magistrate with Extended Jurisdiction, held;
“In my ruling in the trial within trial I
said that the question of voluntariness of the statement was an afterthought.
Although the first accused said he was tortured for three consecutive days and
that he was given a PF.3 for treatment, the treatment, which he received, did
not match with the extent of the injuries he said he suffered. The statement
was recorded on 9/11/90. He was referred to hospital on 14/11/90 and the PF.3
shows that he was referred to hospital for treatment of a wound. The PF.3 shows
that the wound was only treated with spirit. This is an medication that it was,
just an injury which could as well have occurred after he recorded his
statement or it was a move taken for precautionary purposes after realizing the
effect of his confession.”
We think that a
lot of what is stated as above by the learned trial Principal Resident Magistrate
with Extended Jurisdiction was speculation. There was no basis for thinking as
she did, that the injury, which was sustained by the appellant, could as well
have occurred after he recorded his statement or that it was a move taken for
precautionary purposes. Conviction in a criminal matter must be based on good
ground and speculation has no room. The burden is on the prosecution to prove
beyond reasonable doubt, that the accused committed the offence with which he
is charged.
We agree with
learned counsel for the appellants that being in police custody for a period
beyond the prescribed period of time results in torture, either mental or
otherwise. The legislature did limit the time within which a suspect could be
in police custody for investigative purposes and we believe that this was done
with sound reason.
The relevant
provisions dealing with the time under which a suspect may be held in police
custody for investigation purposes are sections 48-51 of the Criminal Procedure
Act, Cap 20 of our laws [2002 RE].
Section 48
provides as hereunder;
(1)
Where a person is, or has been, under restraint in respect of an offence, a
police officer may–
(a) ask the person questions; or
(b) take other investigative action,
in connection with the investigation of the
offence, during a period available for interviewing the person but not
otherwise.
(2)
The provisions of this Act relating to a period available for interviewing a
person shall not be taken–
(a) to make lawful the holding of the person
under restraint during any period during which it would, but for those
provisions, be unlawful to hold him under restraint; or
(b) to authorise the asking of any questions or
the taking of other investigative action in relation to the person during a
period during which it would, but for those provisions, be unlawful to hold him
under restraint.
Section 50
provides for periods available for interviewing persons and it states as
follows;
(1)
For the purpose of this Act, the period available for interviewing a person who
is in restraint in respect of an offence is–
(a) subject to paragraph (b), the basic period
available for interviewing the person, that is to say, the period of four hours
commencing at the time when he was taken under restraint in respect of the
offence;
(b) if the basic period available for
interviewing the person is extended under section 51, the basic period as so
extended.
Where custodial investigation cannot be
completed within four hours the law allows extension of the time under
certain circumstances as provided for by section 51, which states thus:
(1) Where a person is in lawful custody
in respect of an offence during the basic period available for interviewing a
person, but has not been charged with the offence, and it appears to the police
officer in charge of investigating the offence, for reasonable cause, that it
is necessary that the person be further interviewed, he may–
(a) extend the interview for a period not
exceeding eight hours and inform the person concerned accordingly; or
(b) either before the expiration of the original
period or that of the extended period, make application to a magistrate for a
further extension of that period.
It is apparently
clear from the above provisions that the first and fourth appellants were held
in investigative custody for much longer than the time that is provided for by
the law. The first appellant was held in custody for four days. No application
was made to a magistrate for extension of the period of twelve hours under
which the police could hold him in custody. The fourth appellant was held in
police custody for 15 days. In the circumstances, the appellants having been
held in police custody for such long period it is doubtful that the appellants
were free agents when they finally made their statements. The legislature must
have had good reason for limiting the time under which a suspect could be held
under police custody for investigative purposes and the police are obliged to
abide by the law like every one else. The obtaining of the statements of the
appellants while still in custody outside the time provided under the law for
investigative custody, contravened the provisions of the law. Section 169 of the Criminal Procedure Act
provides for exclusion of evidence illegally obtained. It provides:
(1)
Where, in any proceedings in a court in respect of an offence, objection is
taken to the admission of evidence on the ground that the evidence was obtained
in contravention of, or in consequence of a contravention of, or of a failure to
comply with a provision of this Act or any other law, in relation to a person,
the court shall, in its absolute discretion, not admit the evidence unless it
is, on the balance of probabilities, satisfied that the admission of the
evidence would specifically and substantially benefit the public interest
without unduly prejudicing the rights and freedom of any person.
(2)
The matters that a court may have regard to in deciding whether, in proceedings
in respect of any offence, it is satisfied as required by subsection (1)
include–
(a) the seriousness of the offence in the course
of the investigation of which the provision was contravened, or was not
complied with, the urgency and difficulty of detecting the offender and the
urgency or the need to preserve evidence of the fact;
(b) the nature and seriousness of the
contravention or failure; and
(c) the extent to which the evidence that was
obtained in contravention of, in consequence of the contravention of or in
consequence of the failure to comply with the provision of any law, might have
been lawfully obtained.
(3)
The burden of satisfying the court that evidence obtained in contravention of,
in consequence of the contravention of, or in consequence of the failure to
comply with a provision of this Act should be admitted in proceedings lies on
the party who seeks to have the evidence admitted.
(4)
This section is in addition to, and not in derogation of, any other law or rule
under which a court may refuse to admit evidence in proceedings.
The prosecution
did not show how the admission of the appellants’ statements in the
circumstances of this case would “specifically and substantially benefit the
public interest without unduly prejudicing the rights and freedom of any
person.”
We believe that if the learned trial
Principal Resident Magistrate with Extended Jurisdiction had considered the
import of the above provisions she would have found, not only that the
statements were obtained without adhering to the procedure laid down by the
law, but also that the statements of the appellants were not voluntarily given.
She would therefore have found the statements inadmissible.
The other reason that the trial court gave
for finding that the statement of the first appellant was voluntary was that it
was a detailed one that could only be given by the appellant. Details of date
of birth, village, schools attended were among the details that were found to
be only to the knowledge of the appellant. The learned trial Principal Resident
Magistrate with Extended Jurisdiction also made reference to the explanation on
how the motor vehicle with registration no TZA 2442 Toyota Corolla was
acquired. This motor vehicle was allegedly found to contain two shotguns.
It is common knowledge that in order for a
confession to be found voluntary on the basis of having contained detailed
information, such detailed information must be in relation to the particular
crime itself and not to the history of the accused person. In the instant case
it is our view that details relating to how the motor vehicle registration no
TZA 2442 was acquired is not directly connected to the commission of the crime
in issue.
It
is also our view that the learned trial Principal Resident Magistrate with
Extended Jurisdiction misdirected herself when she found that the evidence of
PW4 corroborated the testimony of the fourth appellant who was the second
accused at the trial. She was of the
view that the evidence of Pw4 corroborated the confession of the fourth appellant
because he arrested them and they led to the recovery of the weapons. It is to
be noted that the weapons that were allegedly found at Majumba Sita were not
proved to have been used in the commission of the crime that the appellants
were faced with. There was also undisputed evidence that the second appellant
Adamu Omary was charged with possession of the weapons but was subsequently
acquitted. In her judgment the trial magistrate observed that, “the mere fact
that he was charged with possession of firearms and acquitted does not mean
that he did not participate in the commission of the offence he is charged
with.” This observation may generally be fine, however the trial magistrate had
also earlier on found corroboration in the fact that the appellants had led the
police to the recovery of the weapons. There is, we think, a contradiction in
the approach that was adopted by the trial court.
We have stated earlier that the weapons that
were allegedly recovered were not proved to have been the murder weapons. For
this reason it follows that even if it is granted that the appellants led to
the discovery of the weapons, this would not reinforce the case against the
appellants, the weapons had nothing to do with the crime, the subject of the
charge. Moreover, in view of the acquittal of the 2nd appellant of
unlawful possession of firearms, the evidence of Pw4 that the 2nd
appellant led them to the recovery of the weapons is doubtful. The second
appellant appears to have been charged because he was mentioned in the 4th
appellant’s extra judicial statement. The 4th appellant’s extra
judicial statement, which was retracted, could not be relied upon because it
needed corroboration itself.
As held by the Supreme Court of Uganda in
the case of Waswa, (supra) we agree with the test for corroboration laid
down in the English case of Republic v. Baskeville [1916-17] All. ER rep 38
(supra). When put to the test, the evidence of Pw4 does not stand. We find that
it was not proper, in the circumstances, to hold that the evidence of Pw4
corroborated the retracted confessions.
In the light of the above
considerations we are constrained to
agree with M/S Rweyongeza and Kalolo Bundala, learned counsel for the
appellants that there is merit in this appeal. Consequently we allow the
appeal, quash the conviction and set aside the sentence of death imposed. We
order the release from custody of the appellants forthwith unless otherwise
held lawfully.
DATED
AT DAR ES SALAAM this …..…day of………………2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
S.
N. KAJI
JUSTICE
OF APPEAL
E.A.
KILEO
JUSTICE
OF APPEAL
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