DIRECTOR OF PUBLIC PROSECUTION v OPHANT MONYANCHA 1985 TLR 127 (HC)

DIRECTOR OF PUBLIC PROSECUTION v OPHANT MONYANCHA 1985 TLR 127 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

June 15, 1985

CRIMINAL APPEAL 10 OF 1985 B

Flynote

Evidence - Admissibility - Admissibility of Statements made to the Police -

Admissibility of Statement tendered in court in the absence of their makers -

Evidence Act, 1967, s 34B(2) C

-Headnote

The respondent was charged with two offences of corruptly soliciting and receiving a

bribe c/s 3 of the Prevention of Corruption Act 1971. The prosecution sought to rely

on Police statements made by two witnesses but the two witnesses were not in court.

The trial magistrate held that the statements were inadmissible in evidence. In the

event the D prosecution failed to prove its case beyond reasonable doubt and the

respondent was accordingly acquitted. The Director of Public Prosecutions appealed

to the High Court arguing that the trial magistrate erred in rejecting the statements

because the conditions for admitting them had been fulfilled according to s.34B(2)(a)

of the Evidence Act, 1967. E

Held: The correct interpretation of s.34B(2) of the Evidence Act, 1967, is that in

order for a statement to be admissible under that section, all the conditions laid down

in all the paragraphs, that is from (a) to (f), of the subsection must be met. As the

conditions laid F down in some of the paragraphs were not met in this case, the trial

magistrate correctly rejected the admission of the two statements.

Case Information

Appeal dismissed. G

Case referred to:

1. R v Hassan Jumanne, High Court, Dodoma

Criminal Revision 2 of 1983 (unreported)

S. Kidela, for the appellant H

Judgment

Mwalusanya, J.: The D.P.P. is appealing against the acquittal of Police Constable No.

C.4458 Ophant s/o Monyancha who was acquitted by the Mwanza District Court for

two offences of corruptly soliciting and receiving a bribe c/s 3 I (1) and 3 (a) of the

Prevention of Corruption Act ,No. 16 of 1971. It was alleged at the trial that

respondent

1985 TLR p128

MWALUSANYA J

solicited and received Sh.400/= from one Omar Aden as an inducement to him for A

releasing the said Omar Aden on police bail. The said Omar Aden had been in police

custody in connection with the contravention of the provisions of the Immigration

Act.

The said Omar Aden could not be procured as a witness for the prosecution at the

trial B as he had apparently already gone back home to Somalia. The prosecution, in

the circumstances, sought to produce as evidence the police statement of Omar Aden

under s. 34B (2) of the Evidence Act No. 6 of 1967 as amended by Act No. 19 of 1980.

The trial magistrate held that the police statement was inadmissible in evidence, as

was C the other similar police statement of one Philip Joseph Tarimo. In the final

analysis the learned trial magistrate held that in the absence of the police statement of

Omar Aden or his oral evidence, the prosecution could not succeed to prove its case

beyond reasonable doubt. So the respondent was accordingly acquitted.

At the hearing of the appeal the State Attorney Mr. Kidela conceded that in the

absence D of police statement of Omar Aden or his oral testimony, the prosecution

could not succeed to prove its case beyond any reasonable doubt. However he argued

that the trial magistrate erred in rejecting the police statements of Omar Aden and

Philip Joseph Tarimo under s. 34B (2) (a) of the Evidence Act, as all the conditions for

its admission, E were fulfilled by the prosecution. So he concluded by submitting

that had the trial magistrate not misdirected himself, a conviction would have been

entered.

In my judgment I find that there appears to be a misconception looming large with

the F Republic, as regards the correct interpretation of s. 34B (2) of the Evidence Act

(as amended). The State Attorney thinks if any of the conditions (a) to (f) of s.34B (2)

are fulfilled then the Police statement is admissible in evidence. Pursuant to that

reasoning, the second ground of appeal in the Memo of Appeal reads: G

That having made a finding that Omar Aden was out of the country, the trial

magistrate should have admitted the same Omar Aden's statement under s.34B(2) (a)

for the Evidence Act, 1967.

However the view held by the State Attorney is clearly wrong. In order for a

statement H to be admissible under that section, all the conditions laid down under

s.34B (2) that is from (a) to (f) must be met. That is the correct interpretation of that

section. On delving into the law reports and other materials I note that this legal

point is not virgin soil as Lugakingira, J. had occasion to deal with the matter and he

holds a similar view. In the I unreported case of Dodoma High Court Crim. Revision

No. 2 of 1983

1985 TLR p129

MWALUSANYA J

of R. v Hassan s/o Jumanne, Judge Lugakingira had this to say: A

The provisions of s. 34B (2) are cumulative and all the paragraphs (a) to (f)

have to be satisfied. Hence to admit the statement, it must be reasonably

impracticable to call the deponent; the statement must have been signed by him; it

must contain a declaration of the B person who read it to the effect that it was so

read.

So that is the position in law, and not what the State Attorney wanted the court to

believe.

Now in the present appeal, the trial magistrate held that the police statement was not

C admissible because the condition under s.34B (2) (c) was not fulfilled in that the

statement did not contain a declaration on liability for perjury. During the hearing of

the appeal the State Attorney Mr. Kidela produced the police statement for this court

to peruse. On perusal I was satisfied that no such declaration on liability for perjury

was D made. The derelict was crucial as it is the one which at least lends assurance

to the fact that the maker would speak the truth to escape prosecution for perjury.

Therefore the absence of the declaration was definitely fatal. If we were to hold

otherwise, a miscarriage of justice might result. So I hold that the trial magistrate

rightly rejected the admission in evidence of the two police statements. E

It would also appear that the condition laid down under s.34B (2) (d) was not fulfilled

in that a copy of the police statement was not served on the accused before the

hearing of the case. It was only produced in the course of the trial when the

prosecutor sought to F tender it in evidence. That was clearly wrong and I think

that irregularity was also fatal. And the condition laid down under s.34B (2) (e)

stipulates that the accused may object to the admissibility of the police statement

within ten days of its service. In this case as soon as the prosecutor applied to court to

have the police statements admitted, the accused objected in the following terms: G

The taxi driver (Philip Joseph Tarimo) has not left the country. Omar Aden is

not dead. Let the prosecution make efforts to trace him so that he can come and say if

I received the money H from him as alleged. The statement of the witness may be

false.

The objection to the admission of the two police statements could not have been

clearer if the above abstract is anything to go by. And as there was objection, the two

statements could not be admitted in evidence. I

From the foregoing I am of the considered view that the trial

1985 TLR p130

magistrate correctly rejected the admission of the two police statements. It would

have A been a travesty of justice if the two statements were admitted in evidence

contrary to the rules of evidence.

Like the learned State Attorney I hold the solid view that without the testimony of

the witness Omar Aden or his police statement, the prosecution could not succeed to

prove B its case beyond any reasonable doubt. This is because anything attributed to

Omar Aden would be hearsay evidence which is inadmissible in evidence and cannot

be the basis for a conviction.

In the event I hold that the trial court correctly applied the law in acquitting the

respondent. The appeal by the D.P.P. is hereby dismissed.

C Appeal dismissed

1985 TLR p130

D