Ally Fundi v Republic 1983 TLR 210 (HC)

ALLY FUNDI v REPUBLIC 1983 TLR 210 (HC)

Court High Court of Tanzania - Mtwara

Judge Samatta J

June 13, 1983

CRIMINAL APPEAL 110 OF 1981

Flynote

Evidence - Confession - Admissibility of confession made to a police officer before enactment of s. 4 of Evidence (Amendment) Act. 1980; and lamination imposed by s. 31 of Evidence Act, 1962.

-Headnote

This is a consolidated appeal of Ally Fundi and Hassani Hokororo against conviction and sentence for the offence of attempted robbery, a decision of the District Court of Mtwara. In arriving at the decision the learned magistrate heavily relied on the confession he found Hassani Hokororo to have made to the police team. 

Held: (i) The only way in which a confession can be taken into account is as evidence; under section 33 (1) of the Evidence Act, 1967 the confession by the accused person can only be used to lend assurance to other evidence against his co-accused, evidence which falls short by a very narrow margin of the standard of proof necessary for a E conviction;

(ii) a mere opportunity to commit an offence cannot be the basis for convicting an accused; suspicion, however grave it may be, cannot be a substitute for proof in a court of justice.

Case Information

Order accordingly.

Cases referred to:

1. Kenyarithi s/o Mwangi v Regina (1956) 23 E.A.C.A. 422.

2. R. v Tomu s/o Ngulombe (1943) 10 E.A.C.A. 54

3. Gopa d/o Gidamebanya & 5 Others v Regina (1953) 20 E.A.C.A.318. G

4. Karaya Njonji & Others v Regina (1953) 20 E.A.C.A. 324

5. Rex v Wadingombe bin M. Kwanda alias Anton & Two Others (1941)8 E.A.C.A. 33

6. Mussa Luinda v R. [1960] E.A. 470 H

[zJDz]Judgment

Samatta, J.: Mr. Murtaza Karatela is a businessman. He resides at Mahuta. On July 9, 1979, he left the village for Mtwara. He was accompanied by two men, Mr. Mohamed Bakari and Mr. Rashidi Ntegula. The trio travelled in a landrover. It was being driven by I Mr. Karatela, who was sending Shs. 20,000/= to the bank in Mtwara town. On reaching very near a village called Ngorongoro the trio A heard four gunshots. Suspecting that some robbers had waylaid them, Mr. Karatela pressed the accelerator further. They succeeded to reach Mtwara without being harmed or robbed. There Mr. Karatela reported the unusual incident to the police. Led by Inspector Kussaka, a team of policemen left for Ngorongoro. Before reaching its destination the team met four men. It was at Mdui village. The men were going in the direction of Mtwara. Suspecting them of being the persons they were looking for, the guardians of the law arrested them. During interrogation which followed, one of the arrestees, Hassan Hokororo, told Inspector Kussaka, in the presence of the other policemen, that he (Hassan Hokororo) and his fellow arrestees were the persons who had shot at Mr. Karatela's motor vehicle. According to the police inspector, Hassan Hokororo led the police team to a bush, near Ngorongoro village, where he said they had hidden the firearm. There a rifle was found, buried in the ground. In the same area were found four spent cartridges. Later the cartridges, together with the rifle, were submitted to a ballistics expert for examination. The expert's report revealed that two of the cartridges had been discharged from the rifle.

Basically this is the evidence which E was laid before the District Court of Mtwara district by the prosecution against the four arrested persons: Hassan Hokororo, Alli Fundi, Hamisi Abdarahamani and Athumani Bwatama. The last accused died after the case for the prosecution had been closed and before the first defence case had opened.

Hassan Hokororo's defence was, briefly, this: on the material day, at about 7.30 a.m., he went to his radio repair workshop. About one and a half hours later some policemen came to the area. They searched Athumani Bwatama's house. They said they recovered some bullets from it. On searching his workshop they found a radio which they suspected to be stolen property. His explanation that the radio belonged to one of his customers proved to be of no avail. He was arrested and charged with attempted robbery. Ally Fundi's story was that on the night of July 8, 1979, his father-in-law died at the Ligula hospital. On the following day he left for a place known as Mbawale to H report the sad event. He did not reach that place; he was arrested by the police, who suspected him of having participated in an attempted robbery at Ngorongoro. Hamisi Abdarahamani asserted that on the material day he had left his home (at about 7.00 a.m.) for Maili-kumi village to buy some cassava.

While he was at the village's  bus stand four policemen came there and arrested him on a charge of attempted robbery.

The learned trial magistrate reviewed the evidence before him at some length. In the upshot he came to the conclusion that the guilt of the three accused persons had been demonstrated beyond reasonable doubt. He accepted as a fact that Hassani Hokororo had confessed that he and his co-accused had attempted to shoot at Mr. Kartela's vehicle. He also believed the policemen's evidence that accused showed them a rifle hidden in a bush on the outskirts of Ngorongoro village. Upon the evidence the learned magistrate saw no reasonable conclusion other than that the accused persons' (common) intention was to rob Mr. Karatela and his companions. He accordingly convicted them as charged. In arriving at that decision the learned magistrate heavily relied, even in the case of Ally Fundi and Hamisi Abdarahamani, on the confession he found Hassani Hokororo to have made to the police team.

Hassan Hokororo and Ally Fundi are aggrieved by the learned magistrate's decision; hence the present consolidated appeals. Hamisi Abdarahamni has elected to prefer no appeal.

This case is not without some difficulty. Inspector Kussaka gave his testimony on June 9, E 1980, that is to say, before s. 27 of the Evidence Act, 1967, was amended by s. 4 of the Evidence (Amendment) Act, 1980. Although it was enacted on May 21, 1980, the latter Act did not come into force until December 1 of that year, see Govt. notice No. 172/80. Before the amendment, save as provided for in s.31 of the Evidence Act, no confession made to a police officer could be proved against a person accused of an offence. The testimony of Inspector Kussaka touching upon the alleged confession could be admissible, if at all, only under s.31 of the Evidence Act. By the section it is enacted that:

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as related distinctly to the fact thereby discovered, H is relevant (the emphasis is mine).

Save as for the addition of the words "provided that", this section is in pari materia with its predecessor, s. 27 of the Indian Evidence Act, 1872, which was the subject of discussion in several cases. In Kenyarithi s/o Mwangi (1956) 23 E.A.C.A. 422 a case originating from the Supreme Court of Kenya, the Court of Appeal for Eastern Africa held that the section operated as provision to section 24,25 and 26 of the same Act,

i.e, the Indian Evidence Act. It seems to me that there is no reason for taking a different view with regard to s.31 of the Evidence Act, 1967, when read in relation to s. 27, 28 and 29 of the same legislation before the Evidence (Amendment) Act, 1980, came into force. If what I have just expressed is correct, it follows that the confession allegedly made by Hassani Hokororo could, subject to the limitation imposed by s.31 of the Evidence Act, be admitted in evidence. What is that limitation? The answer would appear to be, that it is not the whole of the statement made by the accused in consequence of which the fact is discovered which is admissible; it is only so much of the statement which distinctly relates to the fact discovered. In other words the information and the fact alleged to have been discovered should be connected with each other as cause and effect. Any portion of the information which does not satisfy this test should be shut out of the case. It should be pointed out, for the avoidance of doubt, I think, that the word "discovered"

is used in the section to mean physically discovered and not mentally discovered. The rationale behind the section is that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence: see R. v Tomu s/o Nuglombe (1943) 10 E.A.C.A. 54. Applying the test I have described in this judgment, it must be correct to say that the portion of Hassani Hokororo's statement that he and his co-accused shot at Mr. Karatela's motor vehicle F was not admissible in evidence since it did not lead to the discovery of the firearm. It is the other portion, that is, the one to the effect that he had hidden a firearm at some place which led to such a discovery.

I can see no reason on the record of the case why Inspector Kussaka should have manufactured evidence against the appellant. It is not without significance that the inspector's evidence dovetails with that given by one of the policemen who accompanied the inspector, Det. Constable Richard (PW7). Like the learned trial magistrate, I am satisfied beyond reasonable doubt that the appellant Hassani Hokororo did tell the H inspector that he and his co-accused had hidden the firearm was somewhere and that he did lead the police team to the spot where the firearm was discovered buried in the ground. According to the ballistics expert's opinion, which the learned magistrate accepted - and in my view rightly accepted - two of the spent cartridges had been I discharged from the firearm. Taking all this evidence into consideration, and bearing in mind that the attempted attack on the occupants of Mr. Karatela's vehicle took place only some hours before the hounds of justice discovered the firearm, the conclusion that the appellant Hassani Hokororo must have been a party to the attempted robbery is, in my judgment, ineluctable. It is not possible, in my view, to entertain any reasonable doubt on that point.

I turn now to the appeal against conviction lodged by the other appellant, namely, Ally Fundi. In arriving at the opinion that this appellant was also guilty of the attempted robbery the learned trial magistrate brought s.33 (1) of the Evidence Act, 167, into play. C Certain rules regarding the application of this section are, I think, now fairly well-settled. The only way in which a confession can be taken into account is as evidence: see Rex v Wadingombe bin Mkwanda alias Anton and two Others (1941) 8 E.A.C.A. 33. Under the section the confession by accused person can only be used to lend assurance to other evidence against his co-accused, evidence which falls short by a very narrow margin of the standard of proof necessary for a conviction. It cannot be used as the basis of the prosecution case: see Gopa s/o Gidamebanya and 5 others v E Regional (1953) 20 E.A.C.A. 318; Karaya Njonji and Others v R. (1953) 20 E.A.C.A. 324. The justification for the principle underlying the section is that the fact of full-self-implication by an accused person serves as some sort of guarantee for the truth of the accusation, contained in the confession, against the other or other's: see Mussa F Luinda v R. [1960] E.A. 470. But I will, I hope, be excused for stating the obvious, namely, that the section can be brought into play only if the accused's statement amounts to a confession. Hassani Hokororo's statement to the effect that he and his co-accused (which term includes Ally Fundi) had hidden the firearm somewhere cannot by any stretch of imagination be described as a confession. It follows naturally as day follows night that the appellant's (Hokororo's) statement could not in law be taken into consideration against Ally Fundi or the other accused person, Hamisi Abdarahmani, for that matter. It is true that the two accused persons were found in the company of H Hassani Hokororo only a few hours after the evil event. But, as has been stated many times before by this court, a mere opportunity to commit an offence cannot be the basis for convicting an accused person. If the law were otherwise, no one in this country would have been safe. There was a grave suspicion that the two accused persons were I parties to the attempted robbery, but suspicion, however grave it may be, cannot be a substitute for proof in a court of justice. For the reasons I have given, I allow Ally Fundi's appeal, quash the conviction A and set aside the sentence imposed thereon. Unless his personal liberty is otherwise lawfully assailed, he should be set at liberty forthwith. Exercising my revisional jurisdiction, I quash Hamisi Abdarahamani's conviction and set aside the sentence imposed thereon. He should be released from custody forthwith unless he is otherwise lawfully detained.

I turn now to Hassan Hokororo's appeal against sentence. The learned trial magistrate, in sentencing the appellant, held that the minimum sentence prescribed by law for the offence of attempted robbery is seven years' imprisonment. With unfeigned respect, I disagree. The correct proposition is that the minimum sentence is three years' imprisonment: see s. 4(a) of the Minimum Sentences Act, 1972, which should be read together with the twelfth paragraph of the First Schedule to the said Act. Seven years' imprisonment is the minimum sentence for robbery and not for attempted robbery. Taking into consideration that the use of firearms in the perpetration of robberies is on the alarming increase in the country and that it was by sheer luck that none of those who were in Mr. Karatela's vehicle was physically harmed, I think a sentence of five years' imprisonment would have met the justice of the case. The sentence of seven years' E imprisonment is reduced accordingly. Save as to this reduction, the appeal lodged by Hassani Hokororo is dismissed.

Order accordingly.

1983 TLR p215

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