MASANJA MAZAMBI v REPUBLIC 1991 TLR 200 (CA)

 MASANJA MAZAMBI v REPUBLIC 1991 TLR 200 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Ramadhani JJA and Mnzavas JJA and Mapigano Ag JA

23 December, 1991

Flynote

G Evidence -Recorded statement of accused - Objection to its being tendered -

What court to do.

Headnot

H The appellant who was convicted of murder appealed to the Court of Appeal.

One of the arguments he raised on appeal was that his recorded statement was

admitted in evidence notwithstanding his objection to tendering of the name.

I Held:(i) A trial within a trial has to be conducted whenever an accused person

objects to the tendering of any statement he has recorded.

1991 TLR p201

RAMADHANI AND MNZAVAS JJA NAD MAPIGANO AG JA

(ii) Even without the recorded statement the evidence of P.W.1 and P.W.2 is

enough to support the A conviction.

Case Information

Appeal dismissed.

Matata, for the appellant B

Mussa, for the respondent.

[zJDz]Judgment

Ramadhani, and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: Before us came Mr Matata,

learned counsel, on behalf of the appellant, Masanja Mazambi, who was convicted of

the murder of Deha d/o Malaba at Mitindo C Misungwi, Kwimba District, on or

about 13th May, 1988. The learned advocate had four reasons for challenging the

judgment of Masanche, J. who presided over the trial before the High Court of

Tanzania at Mwanza.

First, Mr Matata said the learned trial judge was wrong to admit the cautioned

statement of the appellant as Exh. D P.3. Then, he maintained that the testimonies of

P.W.1 and P.W.2 ought to have been rejected as the appellant made an involuntary

confession to them. Yet, the learned advocates argued that the learned judge erred in

holding that the appellant was an aider and abbetor. Lastly, Mr Matata contended

that the defence of compulsion was E available to the appellant.

The respondent/Republic was represented by Mr Mussa, learned Senior State

Attorney, who supported the findings of the learned judge as being firmly grounded

on the properly received evidence before him. F

The learned trial judge believed Paulo Fita Kasambale, the chairman of Misungwi

village (P.W.1) and Paulo Ruhumbika, the Secretary of the same village (P.W.2) who,

in the main, said that the deceased was found dead at her house after having been

slashed by a panga by unknown persons. Somehow the sungusungu got wind of who

G the assailant was and so they netted one Jagi Magangana who isolated the appellant

as his associate. It is a pity that Jagi died before the trial. The appellant was then sent

to the C.C.M. Branch where, under interrogation of the Sungusungu, owned the

killing. The appellant told P.Ws 1 and 2 that he was taken to the house of the

deceased by H Jagi without knowing the purpose. While there he was given a stick

and a torch. His assignment was to hit the iron sheet door of the deceased's house

and bark orders of lying down to the inmates of the house and to prohibit neighbours

from coming out of their houses. The appellant did that obediently while Jagi I

1991 TLR p202

RAMADHANI AND MNZAVAS JJA NAD MAPIGANO AG JA

A broke into the house and, after dragging the poor lady to the door, hacked her

with the panga he was carrying. Jagi and the appellant then swiftly abandoned the

scene. The appellant made a cautioned statement before the Police and that was

admitted as Exh. P3 and now forms the first ground of this appeal.

B Mr Matata had three reasons in attacking the admissibility of that statement.

First, he said that it was a hearsay piece of evidence since it was made through an

interpreter who was not called to testify. He said that in R v Mabara Festo (1936) 3

E.A.C.A. 119 it was held that such statement was inadmissible. Then he said that the

C provisions of section 57(4) of the C.P.A. were not complied with. Lastly, he

pointed out that there was not a trial within a trial. On the other hand, Mr Mussa

said that the statement was admissibly despite the fact that the interpreter was not

called to testify. He cited D.P.P. v Regina Karantini and Another Criminal Appeal

No. 110 D of 1988 (unreported) at p.5 which held such statement to be admissible

but not reliable.

We agree with Mr Matata that the statement was inadmissible for the failure to hold a

trial within a trial. When E A.S.P. Mohamed Maganda (P.W.3) wanted to tender

the statement, Mr Magongo, the defence counsel at the trial, objected and prayed for

a trial within a trial but he withdraw with prayer upon being asked a few questions

from the bench. The was must unfortunate. That prayer should not have been

refused or even objected to by the F prosecution. A trial within a trial has to be

conducted whenever an accused person objects to the tendering of any statement he

has recorded. We do not find it necessary to go into the non-compliance with section

57 of the C.P.A. or the two authorities that were cited to us.

G Mr Matata submitted that once Exh. P.3 is excluded then there is no evidence left

on which to base a conviction because of the inconsistencies in the testimonies of

P.Ws 1 and 2. He then said that the Sungusungu are notorious for torture and that is

the treatment the appellant claimed to have received while in their custody. The

learned counsel said that the learned judge brushed off that claim on grounds that the

scars which the appellant exhibited to H support his claim were insignificant. Mr

Matata submitted that the learned judge viewed the scars in 1991 while the injuries

had been inflicted in 1988 and that the scars had faded away.

We agree with Mr Mussa that even without Exh. P.3 the evidence of P.W.1 and

P.W.2 is enough to support the I conviction. Mr Matata did not quote to us any

example of contradictions between P.W.1 and P.W.2. Admittedly there were minor

variations in what

1991 TLR p203

RAMADHANI AND MNZAVAS JJA NAD MAPIGANO AG JA

they said which are due to the lapse of time and are healthy sign that they had not

rehearsed the evidence. Besides A that, the learned judge who tried the case heard

and observed the witnesses when testifying and believed them.

The third ground of appeal is baseless. Mr Matata conceded that if P.Ws 1 and 2 are

believed then the appellant was aider and abbetor. B

As for the last ground, with respect to Mr Matata, it is hopeless. The defence of

compulsion is not at all available to the appellant. Even assuming that there was

compulsion, then it was not "during the whole of the time" the offence was

committed. We thus dismiss the appeal. C

Appeal dismissed.

1990

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General's Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General's Chambers,

Zanzibar

Dr. S. BWANA, Registrar, Court of Appeal of Tanzania (Co-opted)

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel, Tanzania Legal Corporation

Mr. S. MCHOME, Lecturer in Law, Faculty of Law,

University of Dar es Salaam, Assistant Managing Editor

Administrative Assistant,

Ms. M. SHANGALI

Special Assistant, Dr N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of

Tanzania and the High Court of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1990] T.L.R.

Judges of the Court of Appeal of Tanzania in 1990

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.Z. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

Judges of the High Court of Tanzania in 1990

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A.Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

12. The Hon. Mr. Justice M. Mwakibete Puisne Judge

13. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

14. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

15. The Hon. Mr. Justice C. Mtenga Puisne Judge

16. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

17. The Hon. Mr. Justice A. Bahati Puisne Judge

18. The Hon. Mr. Justice H.A. Msumi Puisne Judge

19. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

20. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

21. The Hon. Mr. Justice B.P. Moshi Puisne Judge

22. The Hon. Mr. Justice L.A. Kyando Puisne Judge

23. The Hon. Mr. Justice W.H. Sekule Puisne Judge

24. The Hon. (Madam) Justice E.N. Munuo Puisne Judge

25. The Hon. Mr. Justice J. Masanche Puisne Judge

26. The Hon. Mr. Justice L.B. Mchome Puisne Judge

27. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

Judges of the High Court of Zanzibar in 1990

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1990 TLR 1

A