HAMISI ATHUMANI AND TWO OTHERS v REPUBLIC 1993 TLR 110 (CA)

 HAMISI ATHUMANI AND TWO OTHERS v REPUBLIC 1993 TLR 110 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Kisanga JJA and Ramadhani JJA

B CRIMINAL APPEAL NO. 14 OF 1993

30 April, 1993

C (From the decision of the High Court of Tanzania at Tanga, Mrema, PRM, Ext.

Jur.)

Flynote

Evidence - Confession - Repudiated or retracted confession - Confessions found to be

true - Conviction may be based on them.

-Headnote

D The three appellants were jointly charged with and convicted of murder and

were each sentenced to death. They appealed against both conviction and sentence

complaining, inter alia, that the Trial Court admitted in evidence and convicted the

appellants on the basis of the alleged confessions of E the appellants which

confessions had been repudiated or retracted.

Held: (i) Although the appellants in their defences at the trial repudiated or

retracted their confessions once the Trial Court found those confessions to be true it

was entitled to base conviction on them;

(ii) Conviction of the appellants was right as it was based on the repudiated

or retracted F confessions of the appellants which the Trial Court found to be true.

Case Information

Appeal dismissed.

Case referred to:

1. Tuwamoi v. Uganda [1967] EA 84

G Mramba, for the appellants.

Miss A. Chinguwile, for the respondent.

[zJDz]Judgment

H Kisanga, J.A., delivered the following considered judgment of the court:

The three appellants were jointly charged with and convicted of murder contrary to s

196 of the Penal Code, and were each sentenced to death by Mr Mrema PRM

(Exercising Extended Jurisdiction) sitting at Tanga. They have now appealed against

both conviction and sentence. In this Court they I were represented by

1993 TLR p111

KISANGA JA

Mr Mramba, learned advocate, while the respondent Republic was represented by

Miss Chinguwile, A learned State Attorney.

Essentially the case for the prosecution was that the three appellants jointly planned

and killed the deceased. The third appellant Noti Mtachi, is the wife of the deceased;

the first appellant Hamisi Athumani is her lover and the second appellant Wambua

Mdhami is her cousin. It was alleged that B the motive for the killing was to save the

appellant Noti from matrimonial harassment by the deceased who had constantly

complained of her adulterous association with the appellant Hamisi. Thus in

execution of their joint criminal venture, while the deceased was sleeping in his hut

on the C material night, the third appellant who shared the hut with him opened

the door for the first and second appellants, and the three of them jointly killed the

deceased apparently by strangling him. The third appellant then supplied a gunny bag

in which the dead body was put after which the first and D second appellants took it

away and buried it in the bush.

During investigation of the case the third appellant made a disclosure of the incident

which led to the arrest of the first and second appellants who in turn showed the

place where they buried the deceased. E

The appellants in their defences at the trial vehemently denied the charge. The third

appellant claimed that on the day of the alleged killing her husband took leave of her

in the morning saying that he was going to Kenya to sell some precious stones. He

stated to her that he would return after some time but he did not, and she did not

know what happened to him. The first and second F appellants equally denied the

charge adding that on the material day they were each in different places away from

the village of the deceased.

In convicting the appellants, the learned Principal Resident Magistrate relied on the

evidence of G Monica (PW3), the third appellant's daughter, who testified to having

seen the three appellants in the hut of the deceased on the material night only shortly

after the deceased had called out saying that he was being killed. The learned

Principal Resident Magistrate also relied on the retracted or repudiated confessions of

the three appellants, and also on a finding of motive behind the killing, H namely,

the elimination of the deceased who had resisted the adulterous association between

the first and third appellants. He rejected the third appellant's assertion that the

confession attributed to her was concocted by the prosecution. He equally rejected

the first and second appellants' defences of alibi and their claim that the confessions

attributed to them were not voluntary. I

1993 TLR p112

KISANGA JA

A In this appeal Mr Mramba filed a total of seven grounds of complaint mainly

criticising the Principal Resident Magistrate for admitting in evidence the alleged

confessions of the appellants, and for accepting and acting on the evidence of PW3 to

convict the appellants. We propose to deal with the confessions first starting with

those of the first and second appellants.

B These two appellants had claimed that the police tortured them by beating and

starving them, and threatened to continue to torture, and even to injure them, if they

did not admit killing the deceased. Under those circumstances, therefore, they made

statements to the police, falsely admitting the killing, along the lines the police had

wanted. They repeated the same stories in their respective C extra-judicial

statements to the justice of the peace (PW2) for fear of more torture upon their return

to the police. They denied having led the police to the place in the bush where the

deceased had been buried and alleged that it was the police who were directing them,

as they marched along through the D bush, until they came to the place of burial.

The learned Principal Resident Magistrate having held a trial within a trial and, upon

believing the E evidence of the police officer (PW6) and that of the justice of the

peace (PW2) who testified that the appellants made their statements voluntarily,

accordingly admitted the confessions in evidence. We are unable to say that he erred

either on the procedure he followed or in arriving at his decision to admit the

confessions in evidence.

F Mr Mramba contended that the justice of the peace in recording the extra-judicial

statements of the appellant failed to comply with some important requirement or

requirements as set out in the `Guide for Justices of the Peace' when recording the

statement of an accused person. It is pertinent to point G out that at the time Mr

Mramba was making this submission he did not have a copy of the said `Guide for

Justices of the Peace' and none was available for our reference at the Tanga Registry.

However, upon our return to Dar es Salaam we have since secured one, and on

perusing it we are satisfied that there was substantial compliance with the

requirements thereof by the justice of the H peace when recording the extra-judicial

statements of the first and second appellants. Again in view of the evidence of PW1,

PW3 and PW6 the Principal Resident Magistrate was quite entitled to reject the

appellants' claim that it is the police who were directing them as they walked through

the bush to the place where the deceased was buried.

I Turning for the moment to the third appellant, she completely

1993 TLR p113

KISANGA JA

denied to have made any statement to the police or to the Justice of the Peace (PW2).

According to A her, after the deceased had gone missing from their home the

villagers mounted a search for him. In the course of doing so they consulted a local

witchdoctor who announced at a meeting of the villagers that the deceased had been

killed by the three appellants following which she (third B appellant) was arrested

and taken to the police. She added that the person who handed her over to the police

repeated to the police what the witchdoctor had told the villagers. She claimed that

the confession attributed to her must have been a fabrication originating from the

witchdoctor's allegations as announced at the meeting of the villagers. That is to say,

following such C announcement the villager who took her to the police told the

police that she and her co-appellants were responsible and the police in turn, based

on this information to the Justice of the Peace who accordingly took it down and

attributed it to her. D

Following a trial within a trial on the issue, the Principal Resident Magistrate rejected

the appellant's story. He found that it is the third appellant herself, not the alleged

witchdoctor who made a disclosure of her involvement, and indeed that of her coappellants,

in the killing of the deceased. He E accepted the evidence of the Justice

of the Peace who testified that the third appellant made a confessional statement

before him and that she did so voluntarily. The Principal Resident Magistrate ruled

that the extra-judicial statement of this appellant was admissible in evidence and we

can see no ground for faulting him. For, to say the least, we could find no conceivable

reason why the Justice F of the Peace would go all the way to fabricate a confession

implicating this woman.

Upon his evaluation of the evidence before him the Principal Resident Magistrate

held that the appellants' confessions were true, and we think that he was amply

justified to so hold. For one thing G the appellants' confessions were confirmed in

some material particular by subsequent events. Thus the confession of the third

appellant implicating herself as well as the first and second appellants, and leading to

the arrest of the latter, was confirmed by the confessions of the first and H second

appellants who not only implicated themselves and the third appellant but also led

the police to the place where they had buried the dead body of the deceased.

Furthermore, the first and second appellants in their confessions stated that after the

deceased was jointly killed by the three of them, his dead body was put in a gunny

bag which they tied with a rubber band and then took it away for I burial. Indeed

this was

1993 TLR p114

KISANGA JA

A confirmed when upon exhuming the dead body of the deceased, it was found to

be placed in a gunny bag which was tied with a rubber band. In the gunny bag also

was found the trousers of the deceased which confirms the confession of the second

appellant that they also put the clothes of the deceased in the gunny bag before taking

it away for burial.

B Thus the Principal Resident Magistrate took the view that although the appellants

in their defences at the trial repudiated or retracted their confessions. Once he had

found those confessions to be true he was entitled to base conviction on them, citing

as his authority the case of Tuwamoi v Uganda (1). C There can be no doubt that he

properly directed himself in the matter.

The other piece of evidence relied upon to convict the appellants was the evidence of

PW3, and as intimated before, Mr Mramba criticised the Principal Resident

Magistrate for accepting an acting on D it; the thrust of his submission being that

PW3 was an unreliable witness. The Principal Resident Magistrate reviewed the

evidence of PW3 at great length, and duly considered the various criticisms levelled

by Mr Mramba both at the trial and before in respect of that evidence. At the end of

the day he came to the conclusion that PW3 was a credible witness. He went further

and said that although E the defence doubted the credibility of PW3, her evidence

was sufficiently corroborated by the repudiated or retracted confessions of the

appellants which he found to be true. We can find no fault in all this. Indeed on the

issue of corroboration we might go further and say that even if the evidence F of

PW3 were to be disregarded, which of course it should not, conviction could still be

safely based on the repudiated or retracted confessions of the appellants which were

found to be true.

The learned Principal Resident Magistrate also found the existence of motive behind

the killing and G there was abundant evidence to support such finding. The first and

third appellants were lovers, and the deceased had all along resisted and complained

about it. Indeed following one such complaint the first appellant was adjudged by

village elders to pay the deceased Shs 2,000/= compensation in H respect of the

adultery. In our view that provided the basis for a grudge against the deceased by the

first appellant, and ample motive for the first and third appellants to eliminate the

deceased for being an obstruction or obstacle in their love affairs. The second

appellant, as stated in his own extra-judicial statement, participated in the criminal

venture out of sympathy for the third appellant, I his cousin, who had appealed to

him for help to kill the deceased who was torturing her.

1993 TLR p115

In the light of all this incriminating evidence the learned Principal Resident

Magistrate, rightly in our A view, rejected the defence of each appellant consisting

of a denial of the charge. He further rejected the defences of alibi put forward by the

first and second appellants in the light of their own confessions and that of the third

appellant, and also on the strength of the evidence of PW3 who B testified to seeing

the appellants at the home of the deceased on the material night. It is noted that the

appellants did not give any notice or particulars of their alibis at the trial in terms of s

194(4) and (5) of the Criminal Procedure Act; that would provide an additional

ground for the decision to attach C no weight on the said alibis.

After a careful study of the record we are of the view that the appellants' convictions

were well founded and we could find no reason to interfere. In the result the appeals

of all the appellants fail and are accordingly dismissed in their entirety. D

1993 TLR p115

E