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
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
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.
________________
