SHIHOBE SENI AND ANOTHER v REPUBLIC 1992 TLR 330 (CA)

 

SHIHOBE SENI AND ANOTHER v REPUBLIC 1992 TLR 330 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Ramadhani JJA, Mnzavas JJA

22 October, 1992

Flynote

Evidence - Confession - Whether a village chairman is a person in authority - Section

B 27(3) Evidence Act.

Evidence - Discrepancy with respect to dates - Witnesses illiterate - Whether to take

them literally on the dates they mention.

Evidence - Confession - Repudiated Confession - Repudiation during defence stage -

C What court to do.

-Headnote

The appellants were convicted of murder and sentenced to suffer death by hanging.

They appealed against both conviction and sentence attacking the evidence on the D

basis of which they were convicted. The appellants were said to have made

confessions which they later repudiated. Some of the confessions were made to the

village chairman.

Held: (i) A village chairman is a person in authority under section 27(3) of the E

Evidence Act and so a confession made to him is involuntary if the Court believes

that it was induced by any threat, promise or other prejudice. There is not a thread of

doubt that the confessions to the village chairman were not induced by threat,

promise or other prejudice; F

(ii) As the confessions were repudiated then there was a need for ascertaining

their reliability and/or seek corroboration but the learned trial judge did not even

warn himself of that requirement;

(iii) on the evidence, the repudiated confessions cannot be anything but true

and a G conviction can be grounded on them - Tuwamoi v Uganda [1967] E.A. 84;

(iv) in case of illiterate witnesses, it is not fair or desirable to tie them down

too closely to estimates of time. On a careful review of the whole of the evidence the

discrepancies relied upon by the defence were apparent rather than real. H

Case Information

Appeal dismissed.

Matata, for the appellant.

Boaz, for the respondent. I

1992 TLR p331

[zJDz]Judgment

Ramadhani, Omar and Mnzavas, JJ.A.: The appellants, Shihobe Seni and Jisinza A

Samwel, were convicted of the murder of Kasanga Kabadi at Nsana Village in Kahama

District, Shinyanga Region. The killing was on 19/4/1987. They have been aggrieved

by that decision of Korosso, J. and the punishment of death passed on them and so

have come with this appeal before us. B

The deceased disappeared as from 19/4/1987 and on 23/4/1987 his wife reported that

to appellant 2, their ten cell leaders, who, in the company of the deceased's son,

contacted the village Chairman, Mabala Dali (PW.1). A search was mounted

involving villagemates among whom were the appellants; PW.1; the commandor of

Sungusungu, C Robert Nonga (PW.1) and one Lusuka Salama (PW.4). After three

days the putrid corpse was located some two miles away at Mulidobo Village in

Urambo District, Tabora Region.

PWs 1, 2 and 4 ascribed the discovery to the confessions of the appellants who then

D led the villagers to that location. Indeed the appellants are also said to have

confessed to D/Sg. David (PW.3) to the fact of killing and that of being ushers to the

search party. These statements were produced as Exh. P.1 and P.2.

The appellants, however, at the trial repudiated the statements as well as the E

confessions to PWs. 1 and 2. They denied having taken the searchers to the dead

body. In fact they claimed that there were two search parties and that the one which

stumbled on the corpse did so because of birds which flocked over the spot and a dog

of the deceased's son which was attracted by the foul smell. F

Mr. Matata, learned Counsel, represented both appellants while Mr. Boaz, learned

State Attorney appeared for the respondent/Republic. Mr. Matata had four grounds of

appeal which were: first, that the verbal confessions to PWs. 1 and 2 were

involuntary and should not have been relied on; second, that the discovery of the

dead body was G a result of the combing of the area by the villagers and not because

of the action of the appellants; third, that the confessions to PW.3 were also not

voluntary; and lastly, that the repudiated confessions required corroboration which

was wanting.

As for the first ground Mr. Matata said that the confessions to PWs. 1 and 2 were H

extracted by torture. He lamented that though the learned trial judge acknowledge

the notoriety of the Sungusungu on the question of torture, yet accepted them hook,

line and sinker. The learned advoate pointed out that PW.1 testified that the

confessions were given at 2 a.m. He submitted that this fact was pregnant with

significance. However, I Mr. Boaz countered that by

1992 TLR p332

saying that it did not mean that the interrogation was conducted throughout the

night. A

All we can say is that the evidence of PW.1 is not clear on whether the interrogation

was continuous or not. In any case PW.2 said that it was adjourned to the next

morning when the appellants let the cat out of the bag. Be it as it may, PWs. 1 and 2

were B resolute that torture was not administered and they were not controverted.

Tortue was only alleged by the appellants in their defence.

Then Mr. Matata argued that those confessions were not admissable for another

reason. C He pointed out that PW.2 was a member of the Sungusungu and as such

under the provisions of section 3 (1) of People's Militia Laws (Miscellaneous

Amendments Act, 1989 No. 9 of 1989) he was equated to a Police Constable. then,

Mr. Matata added, under section 27 (1) of the Evidence Act, 1967 a confession

voluntarily made to a D police officer is admissable. However, he cautioned, a police

officer is defined in section 3 of the Evidence Act to be a member of the Police Force

of or above the rank of Corporal. The learned Counsel then submitted that PW.2 was

not a Police Officer under the Evidence Act and hence a confession made to him,

even if voluntarily, could E not be proved against the appellants under section 27.

We agree with Mr. Matata in this contention. However, Mr. Boaz replied that the

confession was made to the village assembly and not to PW.2.

That is not clear from the record. PW.2 kept referring to "we" throughout and also F

admitted that the members of Sungusungu were around in their attire. There is no

evidence that there was a village assembly. There were just villagers who had

responded to the alarm and were participating in the search of their colleague. In any

case if there is reasonable doubt then it is resolved in favour of the appellants. G

Mr. Matata also argued that PW.1 as the village Chairman was a person in authority

and so under section 27 (3) of the Evidence Act a confession made to him is

involuntary if the Court believes that it was induced by any threat, promise or other

prejudice. In this case, he argued, they were induced by threats and tortures. Mr. Boaz

submitted H that a village Chairman is not a person in authority under section 27.

He referred us to Masasila Mtoba v R [1982] T.L.R. 131.

Again we agree with Mr. Matata that PW.2, as the village Chairman, was a person in

authority. In Mtoba's case the High Court of Tanzania (Katiti, J.) held that a Ward I

Secretary was not

1992 TLR p333

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

such a person in authority. But as properly pointed out by Mr. Matata in the case of

A Mayaya Ngolela v R Cr. App. 130 of 1990 (CAT) (unreported) we held that a

village Secretary was such a person in authority. So PW.1, the village Chairman, was

even more so. However, there is not a shred of doubt that the confessions were not

induced by threat, promise or other prejudice. Therefore we cannot fault the learned

trial judge B for not holding them involuntary.

In the second ground Mr. Matata contended that the corpse was found because of the

perseverance of the searchers and not the work of the appellants. He said that PW.1

C had deposed that the dead body was come upon on 25/4/87 whereas PW.2 said that

the confessions were obtained on 28/4/87. He submitted then that the body could not

have been found because of the confession. He beefed up this submission by pointing

out that appellant 2 in his defence was very emphatic that the interrogations were

after D the discovery. In any case, Mr. Matata argued, if the appellants had

volunteered to take the villagers to the corpse then there was no need of there being

two search parties.

Mr. Boaz, on the other hand remarked that PWs. 1, 2 and 4 were mere peasants who

would ordinarily not be in a position to refer to dates with precision and so the E

discrepancy was to be expected.

It is true that there is discrepancy with respect to dates. We, however, agree with Mr.

Boaz that the witnesses should not be taken literally on their dates. Indeed PW.2

himself proved this. He said: "I got the report of his death on 24/4/87 ... We set about

looking F for the deceased, but in vain. On the following day we again went about

searching for the body of the deceased. That was on 27/4/87". If PW.2 got the

information on 24/4/ then the next day must have been 25/4 and never 27/4. It is

unfair to take such a person literally on his dates. The case of Mohamed Shah s/o Lal

Shah v R. [1939] 6 EACA G 97 has relevance here. The Court held that "in case of

African and Asiatic witnesses it is not fair or desirable to tie them down too closely to

estimates of time ... on a careful review of the whole of the evidence the discrepancies

relied upon by the defence were apparent rather than real". H

We do not subscribe to the blanket and racist generalization of "African and Asiatic".

We agree with the preposition but would correct it and refer to illiterate people of

whatever race. Thus PWs. 1 and 2 being illiterate peasants the discrepancies relied

upon by Mr. Matata were apparent rather than real. I

1992 TLR p334

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

We again agree with Mr. Boaz that what was vital was the information by all the

three A witnesses that the search took three days and that it was after the

confessions that the appellants took the villagers to their discovery. This was not

controverted.

Admittedly, the question of Mr. Matata that if the appellants had volunteered to act as

B guides, then there was no need to have two search parties, is very valid. However,

the existence of two groups was the story of the appellants only. It must be pointed

out, though, that they were not contradicted on that just as they had not also crossexamined

PWs. 1, 2 nd 4 on that point. However, there are their confessions to PW.1

and PW.3. C We shall discuss their reliability later on.

Mr. Matata then attacked the confessions to PW.3 to have been involuntary. He

contended that the record does not show that the defence was given an opportunity

to object to the production of Exhs.P .1 and 2. Here again Mr. Boaz is right. PW.3

gave D his evidence, offered to tender the statements as exhibits and the learned trial

judge recorded "Admitted and market Exh. P. ....". That was the time for objection

and from the record it is abundantly clear that the defence did not raise a finger.

However, the observation of Mr. Matata that once the statements were repudiated, E

albeit during the defence stage, the learned trial judge should have suo moto checked

on the voluntariness, is valid and we shall deal with it in due course.

The last ground was that as the confessions were repudiated then there was a need for

F ascertaining their reliability and/or seek corroboration but the learned trial judge

did not even warn himself of that requirement. Mr. Boaz conceded that but added

that as this is a first appeal then we could step into the shoes of the learned trial judge.

That is so.

Could the confession have been false? We fail to answer that in the affirmative. The

G details are such that they could not have been concocted. Mr. Matata cautioned

that the sort of details were obtainable even from the villagers and that they were not

privy to the appellants alone. Let us have a look at them.

Appellant 1 stated that the deceased was a local medicineman to whom he had sent

H his wife to be treated for infertility but then the deceased befriended the wife. One

day, appellant 1 continued, he found them in flagranto delicto. That was the genesis

of appellant 1's hatred against the deceased. So on 18/4/87 appellant 1 disclosed the

plot I to kill the deceased to appellant 2 and his father. Appellant 2 gave a very

similar account. That information cannot be the

1992 TLR p335

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

property of every Tom, Dick and Harry. Then both appellants talked of the use of a A

"gobore". That was supported by PW.4 who heard an explosion that very day from

the direction of the paddy plot of the deceased.

We are of the firm opinion and we entertain no flicker of doubt in our minds that the

confusions cannot be anything but true and under the authority of Tuwamoi v. B

Uganda [1967] EA 84 a conviction can be grounded on them. We so find.

For the avoidance of doubt we must say that their reliability is in addition to our

conviction that the confessions were voluntarily given. Appellant 2 had this to say in

cross examination "The members of the 'Wasalama' assaulted us by means of sticks. C

I was injured all over the body. I cannot show the injuries on my body because it was

1987 ... I didn't complain to PW.3 because I was confused and also because I knew I

would be acquitted in the long run (sic) ..." This explanation is unintelligable and it

only confirms that the confessions were voluntary but as an afterthought they sought

to D repudiate them.

In fact to be fair to the learned trial judge, he had this to say "I don't believe,

however, that the accuseds were subjected to physical torture or else one of the

accuseds or all of them would have told the Court how each of them was hurt, injured

or in any way E harmed". That in our opinion was an appropriate observation.

We have one comment before we finish. The defence Counsel at the trial, one Mr.

Ruta, did not impress us to have been diligent enough in the execution of his duties.

He very superficially cross-examined PW.1, one of the crucial witnesses. But worse

still, he let F other key witnesses like PW.2 and 3 go unsearched. For those two and

also for PW.4 the record shows simply "XXD Mr. Ruta: NIL", We feel duty bound to

remark that advocates on dock briefs would see the importance to the Courts of the

benefits of their G full assistance. We therefore dismiss the appeals in their entirety.

Appeal dismissed.

1992 TLR p336

A