IN THE COURT OF APPEAL OF TANZANIA

AT DAB ES SALAAM

(OCBAM; KISMGA, 0 .A., LUBUVA, J .A. v And LUGAK1NGIKA, J.AC)

CRIMINAL APPEAL NO. 15*t OF 199^

BETWEEN

ROBINSON MWANJISI ............ 1ST APPELLANT

LAISON SIWALE .................. 2ND APPELLANT
SALUM ASAJILE .................. 3PD APPELLANT
DOMINIC EMMANUEL ............... kTR APPELLANT

AND
TKS REPUBLIC .................... RESPONDENT

(Appeal from the conviction of the

High Court of Tanzania at Mbeya)

(Mchome^ J_.)

dated the 11th day of March, 199^

in
Cr_ijajjaal_.Appeal. Nos. 63 and 71 of 1995

JUDCMENT OF THE COURT

LUGAKINGIRA, J.A.;

The four appellants, Robinson Mwanjisi, Laison Sivrale, Salum Asajile

and Dominic Emmanuel, who were at the trial first, third, fourth and

fifth accused, respectively, were before the District Court of Mbeya

convicted on one count of conspiracy to commit an offence and four counts

of robbery with violence. They were sentenced to three years imprisonment

each for the conspiracy and thirty years on each of the robbery counts, all

terms running concurrently. They appealed to the High Court which

dismissed their appeals. In doing so, the court also admitted in evidence

cautioned statements made to the police by Mwanjisi said Siwaie which had

been excluded by the trial court.

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There were seven accused persons originally. It is desirable to

mention the rest as it will be necessary to refer to them in the course

of this judgment. The second accused was Emmanuel Paramani. He was

similarly convicted and sentenced at the trial but was acquitted on

appeal to the High Court. 'The sixth accused was Greyson Mwakalinga.

His conviction at the trial was upheld by the High Court but he died

after instituting an appeal to this Court. The seventh and last

accused, Asajile Mwaijulu, the father of the fourth accused (and third

appellant herein), faced a separate charge of receiving stolen property.

He was acquitted at the trial.

'The robbery took place at Ifwekenya L>ANIDA Water Project Camp in

Chunya District on the night of 12/1J.2.92. Masked men armed with a gun

invaded the camp around midnight and made away with an Isuzu lorry T2

19810, a motor cycle TX 18*+91 and four mattresses, all properties of

DANIDA, as well as a Seiko watch, the property of PW3 Selemani Haisuru,

a driver at the camp, and two radios and an amount of cash, the property

of PW6 Abuu Mkungume, a foreman at the camp PV/3 and PW6 were severely

assaulted in the. process- a.nd a bullet was fired in the air to scare off

any intervention*

The first appellant (and first accused) is a brother of PW2 Job

Mwanjisi, the proprietor of a transport business at Mbalizi on the

outskirts of Mbeya municipality. He owned a Land Rover pick up MB 3^+59

with which the first appellant used to transport passengers for hire.

On the afternoon of 12 February the first appellant drove to Chunya with

passengers but although he v/as expected back the same day, he never

returned. On the night of 17 February some police officers based at

Invala police post -were patrolling along the Kbeya/Iringa road when they

came upon a parked Land Hover facing in the Mbeya direction. They passed

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it but then became suspicious and reversed, Vihen they drew closer to it,

the Land Rover took off at a tremendous speed. After a short chase it

stojjped and its occupants jumped out and disappeared into the night. It

was MB 3^59j the property of PW2. It was loaded with various motor vehicle

parts, later identified as of an Isuzu lorry. Under the driver’s seat was

a shotgun, a Greener No, 10318. The Mbeya police were informed and

collected the Land Rover and its load. Investigations led to the discovery

of more parts. On 1k March the investigating officer, PW1 DoC, Clemence,

recovered the engine block, mattresses, etc. at a house near the Mbeya

airport and the motor cycle from the seventh accused’s house. We will

come to the details later* On 19 March he recovered a chassis, cabin,

two doors, mudguards, fuel tank, etc,* from the bush near Nyololo village

at Sao Kill in Iringa region. Meanwhile, the first appellant surfaced at

Dar es Salaam where he conveyed himself at Magomeni police station and

was duly detained in custody. He was later collected by PW1. The other

accused were picked up at various places in Mbeya between March and May

and the entire group were accordingly charged.

The appellants appeared in person before this Court, A ground of

appeal common, to all is that Mchome, J« on first appeal erred in law in

admitting in their absence the statements recorded by the police from the

first and second appellants. There is merit in this ground. At the trial

the prosecution sought to introduce the statements in evidence but the

trial magistrate, while remarking that the statements were voluntarily

made, declined to admit them on the ground that they were exculpatory,

Mchome, J, seems to have found them both inculpatory and exculpatory and,

taking the view that they were improperly excluded, went ahead and

admitted them on the strength of subsection (1 ) of section 33 of the

Evidence Act, 196?» However, he did so in the absence of the appellants

and their advocates, and had this to says

•*0//I•
 if

I called up this case in order to admit the

evidence which was improperly rejected. Neither
the appellants nor their advocates appeared on
that date when I admitted these confessions as
Court Exhibits 1 and 2 respectively. I found it
safe to do so in their absence because at the
trial the appellants were represented by learned
counsel who had all the opportunity to scrutinise
the confessions and argue against their admission
and convince the trial magistrate in their favour.
In their confessions the appellants confessed to
have participated in the commission of this crime
in different capacities and implicated the other
co-accused except the seventh accused.

Although the learned judge gives the impression that the appellants and

their advocates were required to appear but did not appear when headmitted

the statements, the original record gives quite a different picture.

Hearing of the appeal beforethe High Court took place on li+.9»93 when

judgmentwas reserved. Six months later, on if<>3*9^ to be exact,the record

has this;

k . 3.9^
Coram: L.B. He home, J.
For Appellantst Absent
For Respondent: Mr. Mwailolo

Courtt While I was preparing this judgment I

found that the 1st and 3^d accused
persons' cautioned statements to the
police were improperly rejected
admission by the trial courte I
hereby order the State Attorney to
produce them in court.

Mr. Mwailolos I hereby produce the cautioned

statements as exhibits„

<. / 5
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Court: Marked as Court Exhibits 1 and 2

respe ctivo iy.

Sgd. L.B. Mchome

Judge
^.3*9^

It is apparent from the foregoing that the learned judge never gave

the appellants or their advocates the opportunity to be heard before

admitting the statements. The statements amounted to additional evidence

and it seems that in dispensing with the presence of the appellants and

their advocates the judge relied on subsection (3) of section 3^9 of the

Criminal Procedure Act which states:

(3) Unless the High Court otherwise

directs, the accused or his advocate shall
be present when the additional evidence is
taken.

The basic rule in this subsection is, to our minds, that the accused or

his advocate has to be present where the High Court decides to take

additional evidence? in certain circumstances, however, the court may

proceed in the absence of the accused or his advocate. What are those

circumstances? To discover this, section 3^9 has to be read as a whole.

Subsection (*f) thereof provides that evidence taken in pursuance of the

section shall be taken as if it were evidence taken at a trial before a

subordinate court. One implication of this subsection is that when taking

additional evidence the High Court may dispense with the presence of the

accused or his advocate in the same circumstances as a subordinate court

may in a trial. Apart from warrant offences where under section 193 the

accused may plead guilty to a charge in writing, a subordinate court may

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dispense with the presence of the accused in two ways. First, under

section 19? (a), it may so dispense with the accused*s presence where

it considers that by reason of the accused's disorderly conduct before

the court, it is not practicable for the evidence to be given in his

presence. It should be emphasized that the accused lias to manifest his

disorderly conduct before the court in order to exclude his presence.

Under paragraph (b) of the same section a subordinate court may again

dispense with the presence of the accused if he cannot be present for

reasons of health but is represented by a counsel and has consented to

the evidence being given in his absence. A subordinate court may also

dispense with the presence of the accused in the circumstances set out

under section 226 (1). That is where following an adjournment the accused

does not appear for hearing or continuation of hearing. None of these

factors obtained in this case and we think the decision by the learned

judge to dispense with the presence of the appellants and their advocates

was an improper exercise of discretion.

There was yet another reason in thiscase for theappellants and

their advocates to be present when the statements were admitted. We think,

with respect, that although the trial magistrate considered the statements

to be voluntary, their volunteriness was in fact hotly contested, the

defence counsel contending that the first and second appellants were

“'strongly tortured. '■ This issue was not resolved in the appropriate manner

for as far as the record goes the trial magistrate did not hold any trial-

within-a-trial. He simply proceeded, to this surprising ruling:

Now reverting back to the case at hand, the

above named accused persons claimed to have been
severely tortured by the police when their respect­
ive statements were being extracted from them.
But to the surprise of the court, they did not
inform the court of the nature of the torture which

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the police levelled on them at the material

time# It doesn’t suffice, I venture to think,
for the accused persons to just allege that
they were tortured without further proof of
the matter. Their claim is therefore
rejected for that reason.

We say this is a surprising ruling for the accused were not given the

opportunity to be heard on the nature of the torture levelled at them.

Moreover, the burden of proving the voluntariness of the statements was

upon the prosecution and no onus lay on the defence to prove their

involuntariness, Section 2? (2) of the Evidence Act, 196? is clear on

that. Neither the prosecution nor the defence was heard on the question

and we think it correct to say that the ruling of the learned resident

magistrate vjas without legal basis.

In view of this state of affairs, it is equally surprising that the

learned judge on first appeal regarded the statements as voluntarily made.

We think, with respect, he would not have taken that view had he correctly

directed himself on the record. If upon doing so he was still intent on

admitting the statements, he could do so only after holding a triai-within-

a-trial and establishing their admissibility. As it is now, the admission

of the statements was illegal and not authorised by any law.

One other matter requires to be put right. It is noted that the

statements were read out before the trial court although they were

subsequently rejected, a practice unfortunately common in trials before

subordinate courts. Whenever it is intended to introduce any document

in evidence, it should first be cleared for admission, and be actually

admitted, before it can be read out. Reading out documents before they

are admitted in evidence is wrong and prejudicial. If the document is

ultimately excluded, as happened in this case, it is difficult for the

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court to be seen not to have been influenced by the same.

In the light of the foregoing, Court Exhibits 1 and 2 are expunged

from the record and there will be no further reference to them.

A ground common to the first and third appellants only is that the

trial was unlawful, it having taken off contrary to the provisions of

subsection (k ) of section 225 of the Criminal Procedure Act. Subsection

(^)declares unlawful the adjournment of a case for an aggregate exceeding

sixty days except, on each aggregate, upon a certificate by theRegional

Crime Officer, a State Attorney and the Director of Public Prosecutions.

The question was raised before and considered by the High Court where

Mchome, J. had this to says

My interpretation of this section is that

what is not lawful is not ;,to hear'1
' a case after
sixty aggregate days have expired but what shall
not be lawful is "to adjoum:; a case after the
expiry of sixty days if the exceptional
circumstances have not been complied with.

The judge then cited subsection (5) of section 225 and continued;

Nowhere in this section is it implied or

expressed that a hearing after the expiry
of the sixty days is a nullity. Otherwise
subsection (5 ) would have been useless as
it does not bar subsequent charge on the
same facts.

We agree with the learned judge. The two subsections mean that an

adjournment should not be granted to the prosecution after the elapse of

an aggregate of sixty days in the absence of the requisite certificate,

but the court should press on with the hearing. If the prosecution is
unable to proceed with the hearing, e.g. for investigations being incomplete

or witnesses being unavailable, the court should discharge the accused.

Our view, however, is that the omission to discharge the accused where he

ought to be discharged is only an irregularity but it does not affect the

jurisdiction of the court to try the case or, as Mchome, J. put it, what

is unlawful is to adjourn but not to hear the case. We think, moreover,

it is an irregularity of little or no consequence since discharging the

accused would not operate as a bar to subsequent proceedings against him

for the same offence„ The purpose of section 225 generally and subsections

(if) and (5) in particular is to expedite trials but not to clear accused

persons from criminal liability. We find no merit in this ground of

appeal.

We will now turn to consider the cases of the individual appellants*

The first appellant claimed at the trial that after dropping his passengers

at Chunya he decided to sleep there. While still there he v/as pounced

upon by four armed bandits who forcefully took his ignition keys, tied

his hands and legs, blindfolded him and drove him for a long time in a

Land Cruiser until 5 a.m. when they released him at Mburahati in

Dar es Salaam. The courts below did not believe this story and we think

rightly so. It does not make sense at all for carjackers to burn fuel

for hundreds of kilometres just for getting the victim out of the way.

There was, on the other hand, sufficient evidence to connect the first

appellant with the crime. He was the driver of MB 3^59 and drove to

Chunya on the material day. lour days later the vehicle is found loaded

with dismantled parts which were definitely identified by PW3 as of the

stolen lorry. Indeed there was no dispute about the ownership of all

the parts as well as the motor cycle which were restored to DANIDA very

early in the trial with the unanimous agreement of the defence. Thirdly,

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this appel?j_ant never reported back to his brother, PW2, about any

misadventure for all the period he went missing. To crown it all, he

virtually admitted to some aspects of the offence. On 31 March he told

PV/1 that there was a person at Nyololo village who saw all the accused

when they were engaged in. dismantling the lorry. He took PYJ1 to the

village at a tearoom run by Fatuma Nziku and Chiku Nziku who both

remembered him. Of course it would have been better to conduct an

identification parade and to summon the two women or one of them to

testify, but we still think this was a significant and relevant episode.

The first appellant contended that PW1 should not have been believed

because he was the investigator and had an Interest in the outcome of the

trial. There is no merit in this. The purpose of investigation is to

collect facts and later to give evidence. There is no lav; or authority

which declares an investigator incompetent to testify. The case of

Kotnanya v. Republic, (1971) HCD n. 278, to which the first appellant

referred, is not such authority. Apart from being a criminal proceeding

involving some aspects of circumstantial evidence, it says nothing about

investigators as witnesses. We think on the whole there is no merit in

the first appellant's case.

The case of the remaining appellants may be taken together as the

evidence against them was interwoven and came from PW1, P¥3, PW^, PW5,

PW9, PW10 and PVi13• PV^i Bosco Peter Lukuhi and PW5 Upendo Lukuhi,

husband and. wife, were resident at the airport area in Mbeya municipality.

Their premises consisted of two houses, one in front and another at the

back. They occupied the back house. We shall terra the front house the

'•Airport house.1- In February 1992 the second appellant and the sixth

accused rented the Airport house consisting of two rooms and a sitting

room at 1,200/"- p.m. On one occasion PW5 sav/ the two bring mattresses

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there. Then on 'Ik March she saw heavy raetal objects being unloaded into

the house from a white pick-up. There was indeed more evidence that the

Airport house was being used as a transit point and appears to have been

rented in fact for that purpose. PW9 Buka Mwasalemba, driver of a Fiat

pick-up MB k060 was in February hired by the third and fourth appellants

as well as the sixth accused to ferry various Isuzu components, which

included a gear box, from the third appellant's house at Ilemi to Iwarobi

at the seventh accused's house. As stated earlier, the seventh accused

is the third appellant's father. On another occasion PW9 was hired by

the same persons to transfer the gear box from the seventh accused's

house to the Airport house. On all occasions he was paid by the third

appellant. Then came 1^ March. On that day the third and fourth appellants

as well as the second and sixth accused hired PW10 Christopher Mwakalinga,

driver of a Toyota pick-up TZ 88766, to ferry from the seventh accused's

house to the Airport house an engine block, differential, cylinder head,

air cleaner and other components which he recognized as Isuzu parts.

They found the second appellant standing outside the Airport house and

unloaded. the items into the house. That was the occasion witnessed by

FW5 . In the afternoon of the same day the police arrived at the house.

The second appellant and the sixth accused were inside as well as the

third appellant who used a frequent the house. PW5 was also at home.

Apparently the three saw the police in good time and PW5 saw them run in

different directions. The police arrived only to find the doors ajar and

they do not appear to have taken notice of FW5 because PV/1 said: ‘-Nobody

was at home." In one room the police found three mattresses (Exh. P?),

a blanket and two bed sheets and in the second room they found the engine

block and other accessories (Exh. P9). Earlier on the same day they had

gone to the seventh accused's house and recovered the motor cycle (Exh. ~Pk) .

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At the trial PW3 identified in Exh. P7 the mattresses taken from his

room as well as Exhs. Pl+ and P9i pointing to the service number on the

engine block. The fourth appellant was arrested on 2k May after a

chase in which he was shot in the leg* He was then found with a Seiko

watch (Exh. P H ) which was identified by PW3 because of his initials

inscribed at the. l>ack and the glass.

The courts below believed the prosecution witnesses that the

eecoadj third and fourth, appellants- were in possession of the various

items either at the Airport house or at the seventh accused's house.

In the light of the evidence just reviewed, we have no cause to differ.

It W ® « * t o ms tiiea** was -any mis dire®"tlon or

non-direction as would have ledto a perverse finding. The matters

raised by these appellants are so trivial as not to deserve attention.*

•We are I that those aygollcuatc wr-a similarly properly

convicted for the robberies and that, all the -appellant® rcre properly

convicted on the conspiracy charge,

•>-‘3 A ifxiv Jj3»odL i n . i t w <»*Ltijse-*vy«

DATED at DAR ES SALAAM this “l^th -day -of July* 200%

R.H. KISANGA
JUSTICE OF APPEAL

D.Z. LUBUVA
JUSTICE OF APPEAL

K.S.K.LUGAKINGIRA
JUSTICE OF APPEAL

I certify that this is a true copy of the original,

fir t /
* (5 ' • '• - > i-’ s i ... y
( F.L.K. WAMBALI )
DEPUTY REGISTRAR