THADEI MLOMO AND OTHERS v REPUBLIC 1995 TLR 187 (CA)

THADEI MLOMO AND OTHERS v REPUBLIC 1995 TLR 187 (CA)

Court Court of Appeal - Mbeya

Judge Ramadhani JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal No 53 of 1994 G

June 16, 1995

(From the conviction and sentence of the High Court of Tanzania at Mbeya, Mchome,

J) H

Flynote

Evidence - Confession - Repudiated - Allegation of threats in extracting confession -

Whether such confession admissible - Section 29 Evidence Act 1967.

Evidence - Corroboration - Confessions of co-accused - Must be corroborated before

founding a conviction. I

1995 TLR p188

RAMADHANI JA

-Headnote

A Three appellants appealed against conviction of murder by the High Court. In

convicting two of the appellants the court relied on retracted confessions which had

been made involuntarily but which the court admitted under s 29 of the Evidence

Act, 1967. The third appellant was convicted on the basis of the statements made by

the co-accused. On appeal two of the appellants challenged the trial court's admission

of the repudiated confessions. The third appellant attacked his conviction which was

based of the repudiated confessions of the co-accused. B

Held:

(i) Under s 29 of the Evidence Act 1967 an involuntary confession is

admissible if the court believes it to be true;

C (ii) While s 29 cannot be invoked where actual torture was applied, in this

case there was no proof of torture but only threats;

(iii) On the evidence the confessions of appellants 1 and 2 were true;

(iv) There was corroborative evidence to support the conviction of the

third appellant on the basis of the repudiated confessions of his co-accused.

Case Infomation

D Appeal dismissed.

Cases referred to.

(1) Tuwamoi v. Uganda [1967] EA 84

E (2) Marcus Kisukuli v. R Criminal Appeal No 146 of 1993 (Unreported).

Mkumbe for the appellant.

Mbise for the respondent.

[zJDz]Judgment

F Ramadhani, JA, delivered the following considered judgment of the Court:

On 3 August 1988, Martin Mhenga, deceased, was on duty guarding a bridge on the

Uhuru Railway at Mgololo, Mufindi District in Iringa Region. His company included

Abdallah Selemani, PW7. They were attacked and robbed of their two G semiauthomatic

machine guns (SMG) each with a magazine containing 30 rounds of

ammunition. The deceased was killed in the process of the attack while PW7 was left

seriously wounded.

H Four people were charged with the murder of the deceased. Three of them, the

appellants here, Thadei Mlomo, Charles Nyimbo and Ben Sanga were convicted by

the High Court of Tanzania at Mbeya (Mchome, J).

The learned judge was satisfied with the evidence before him. Somehow Charles

Nyimbo, appellant 2, was arrested at Makambako on 3 October 1988 and that

information was sent to the police in Iringa. ASP Kisika (PW1) in the company of

S/Sgt I

1995 TLR p189

RAMADHANI JA

Zakayo (PW2) went to Makambako to interrogate him. He admitted having A

participated in a number of robberies including this one of the two SMGs which

caused the death of the deceased. His camaraderie spirit broke down and we

mentioned his co-participants. Appellant 2 said that he slashed PW7 with a panga and

got hold of his gun. As the deceased emerged to give assistance to PW7, he was shot

by Thadei Mlomo, appellant 1, and they took deceased's gun too. B

PW1 travelled to Dar-es-Salaam with appellant 2 who pointed out the houses of Ben

Sanga, appellant 3 and that of appellant 1. Appellant 3 was arrested in his house but

appellant 1 was not found in the indicated house. After that, PW1 returned to Iringa

with appellants 2 and 3. C

The team of investigators, apart from PW1 and PW2 included

S/Sgt Semu (PW3), Inspector Gregory (PW4) and D/Sgt Jonathan (PW5). D

Appellant 3 in interrogation disclosed another participant at Matanana, Mufindi.

PW1 failed to arrest that other person but he was told of a guest of that person from

Dar-es-Salaam who happened to be appellant 1. So he was arrested. Appellant 1 led

the investigators to the place where he had buried his gun and it was recovered.

Appellant 3 failed to locate the place he had buried his gun. E However, appellant 1

pointed out that place which was very close to where he had hid his, and appellant 3

owned the unearthed gun. Both appellants 1 and 2 recorded extra-judicial statements,

Exh P5 and Exh P6 respectively, before F Stephen Mbungu (PW6), a primary court

magistrate. Appellant 2 also recorded a police caution statement, Exh P4. All three

statements narrated the events as summarised above. Appellant 3, however, did not

record any statement.

These statements were repudiated and the learned judge held a trial within a trial.

The appellants alleged to have been tortured into making them. The learned judge

relied on s 29 of the Evidence Act, 1967 and admitted them. G

In their defence the appellants flatly denied everything, even knowing one another.

Appellant 1 said he only knew appellant 2 because they were both in the business of

selling maize. H

The appeal was argued by Mr Mkumbe, learned advocate. He had four grounds of

appeal. In the first ground the appellants complained that the learned Trial Judge

erred in admitting the statements of appellants 1 and 2 since they were not

voluntarily made. Grounds two, three and four objected the admission of a copy of a

judgment of this court as evidence against the appellants. I

1995 TLR p190

RAMADHANI JA

A We shall deal first with the last three grounds. A judgment of this court (Exh P8)

was used to secure the conviction of the appellants. In that judgment we consolidated

a number of appeals and we upheld the district court of Iringa which convicted the

appellants and other persons on their own pleas of guilty to certain charges of

robberies. Mr Mkumbe submitted that it was not proper to do so while B Mr Mbise,

learned senior State attorney, contended that it was proper.

It is our considered opinion that we do not have to resolve that issue. There is

sufficient evidence to support the conviction even without Exh P8. So we leave that

matter to be determined one way or the other in an appropriate appeal. C

The first ground of appeal challenges the statements which were produced at the trial.

Admittedly, and as pointed out by Mr Mkumbe, appellants 1 and 2 repudiated their

confessions at the trial. The learned Trial Judge found that the confessions D might

have been obtained involuntarily. Nevertheless, he admitted them under s 29 of the

Evidence Act, 1967. However, we agree with Mr Mbise that that was proper.

E May we start with s 27 of that Act which provides:

'27 (1) A confession voluntarily made to a Police Officer by a person accused

of an offence may be proved as against that person.

(2) The onus of proving that any confession made by an accused person was

voluntarily made by him shall lie on the prosecution. F

(3) A confession shall be held to be involuntarily if the court believes that it

was not induced by any threat, premise 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.' G

This section provides for the admission of a voluntary confession against the maker in

a trial. It also prescribes when a confession is and when it is not voluntary. The onus

of proving voluntariness is on the prosecution. H

However, an involuntary confession is also admissible if the Court believes it to be

true. That is under s 29 which provides:

29. No confession which is tendered in evidence shall be rejected on the

ground that a promise of threat has been held out to the person I

1995 TLR p191

RAMADHANI JA

confessing unless the court is of the opinion that the inducement was made in

such circumstances and was on such nature as was likely to cause an untrue admission

of guilt to be made. A

It is doubtful that the legislator intended it to be 'a promise of threat' and not 'a

promise or threat'. We think it is the latter and that the former is a typographical

error. This section appears to us to encapsulate the principle enunciated in the B

Tuwamoi's case (1). This is the section which Mchome, J used to admit the

confessions of appellants 1 and 2.

Under s 27 once a confession has been proved to be voluntarily made then it C

would appear a court will accept it as the truth. However, if a confession was

involuntary, then it will be accepted under s. 29 if the court is of the opinion that the

confession constitutes the truth. So, in the former section the truth of the confession

is presumed by the court while in the latter the truth has to be conceived by the

court. We may point out that this holding is not in conflict with our D previous

decision in Marcus Kisukuli v R (2). There we said that s 29 cannot be used where

there is actual torture. Here there was no proof of torture but only threats thereof.

The question for us is to determine whether the inducement was such as 'to E cause

an untrue admission of guilt'. We have to determine whether the confession is true or

not. First of all, what is contained in the statements as to what happened that fateful

night at the bridge at Mgololo tallies with the evidence of PW7, the guard who

survived the onslaught. Secondly, appellant 1 led the investigators to F the discovery

of the two guns which were robbed from the deceased and PW7. The serial numbers

of those guns (Exh P1 and Exh P2) are the same as the guns which were issued to the

deceased and PW7 per the armoury register (Exh P3). So, the confessions of

appellants 1 and 2 must be true. G

Mr Mkumbe pointed out that appellant 3 did not make a statement so he should not

be convicted solely on the confessions of co-accused persons. We concede that. In

such a case, the law requires corroboration. However, we say that there is

corroboration. Though appellant 3 failed to pinpoint where he had buried his gun, he

led the investigators to the same area where appellant 1 had buried his and H where

later, appellant 1 unearthed the gun which had been in the possession of appellant 3.

That cannot be coincidental. He actually possessed the gun, hid it and knew the

location of hiding. Either genuinely or by pretence he failed to point out the exact

spot he had buried it. When it was unearthed, I

1995 TLR p192

RAMADHANI JA

A appellant 3 owned it. He denied to have done that, but the learned Trial Judge

believed the investigators. We have absolutely no reason to differ with him.

B So we dismiss the appeal in its entirety.

1995 TLR p192

C