D.P.P. V Ophant Monyancha Case

DIRECTOR OF PUBLIC PROSECUTION v
OPHANT MONYANCHA [1985] TZHC 18;

(15 June 1985)
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
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
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
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
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

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DIRECTOR OF PUBLIC PROSECUTION v

OPHANT MONYANCHA [1985] TZHC 18;

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

Mwalusanya, J.: The D.P.P. is appealing against the acquittal of Police

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

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

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