A trial within a trial ― I.R.

Mandi

THE PROCEDURE OF A “TRIAL WITHIN A TRIAL”: THE NEED FOR A

STATUTORY INTERVENTION
[Published in the in the East African Law Review, Combined Issue, Vols
35-40, 2009].

By

IDD R. MANDI

INTRODUCTION
By and large, in criminal trials, the law has placed, on the shoulders of the
prosecution side, an onerous burden to prove its case against the accused person.
The burden (or duty) of proving the case is said to be „onerous‟ or a „heavy‟ one
because the standard required is that of proving the case beyond reasonable
doubts. The accused person on his part has no responsibility to prove his
innocence. He has only a right to defend himself (not an obligation of course),
and in so doing he can just infuse a reasonable doubt into the mind of the court.

In discharging its duty of proving cases, the prosecution might seek to produce
in evidence a statement made by the accused out of court (commonly referred to
as “extra-judicial statement”). Such a statement could be in a form of a confession
or otherwise. As it is well known, in law, confession is evidence against its
maker.1 But in order to be admissible in evidence the law requires that such
confession must have been voluntarily made.2

More often than not, accused persons tend to repudiate or retract confessions or
other extra-judicial statements in court. By “repudiation” it means the accused


LL.B. (Hons); LL.M. (Dar), Assistant Lecturer, Faculty of Law (UDSM).
1 Section 27 (1) and 28 of the Evidence Act, [Cap. 6 R.E. 2002].
2 Ibid.

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 A trial within a trial ― I.R. Mandi

person totally denies to have made such a statement whereas “retraction”

denotes that the accused person acknowledges to have actually made the
statement but it is flatly untrue because he was induced to make it by force,
threats, promise or any other prejudice perpetrated on him by the police or any
other person in question. The distinction between the “repudiated” and
“retracted” confession is to be found in the celebrated case of Tuwamoi v.
Uganda.3 This case is also an authority for the famous principle in East Africa
that a repudiated or retracted confession cannot be a basis of conviction unless
and until the court warns itself to its full and adequate satisfaction that such a
confession is nothing but be true.4

It follows that when the extra-judicial statement is repudiated or retracted, the

immediate necessity to determine its admissibility would arise. The main issue
ordinarily being whether that statement was actually made or, if made, whether
it was voluntarily made. In determining the admissibility of a disputed
statement, the common legal practice is for a court and parties to the case to
temporarily abandon the main trial and the main issue thereof and embark on
another “minor trial” or a sort of “interlocutory proceedings” commonly known
as a “trial within a trial”. Lugakingira, J. (as he then was) sought to introduce the
alternative nomenclature ― a “trial before the trial.”5 In the English
jurisprudence, there are other expressions as “ruling in absence of the jury”,
“withdrawal of the jury”, or “temporary retirement of the jury”6 which are
sometimes used in connection with the “trial within a trial.” On the other side of
the Atlantic, that is, in the United States, similar proceedings are called “Huntley

3 [1967] EA 84.
4 This principle has been affirmed in a number of reported cases in Tanzania: Ali Salehe Msutu v.
R. [1980] TLR 1; Laurent Joseph and another v. R. [1981] TLR 351; Hamisi Athumani v. R. [1993] TLR
110; Pascal Kalingwa v. R. [1994] TLR 65; Thadei Mlomo and others v. R. [1995] TLR 187; and Hatibu
Gandhi (Capitain Hatty Mcghee) and others v. R. [1996] TLR 12.
5 R.v. Nicas Lulenga [1983] TLR 434, (at p.438).
6 See Halsbury‟s Laws of England, 3 rd edn, Vol. 10, paragraph 782 (p.425).

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 A trial within a trial ― I.R. Mandi

hearing.”7 They are named after the case of People v. Huntley8 in which the court
in New York directed the holding of separate proceedings (in the absence of the
jurors) to determine the admissibility of a disputed extra-judicial statement. It is
important to note that the phrase “a trial within a trial” is sometimes used in
England to describe other interlocutory proceedings in criminal trials like
determination of disputes over admissibility of evidence, previous convictions,
similar facts evidence, etc.9 However, in East Africa courts seem to have mostly
associated the procedure with “retracted or repudiated statements.”10 It is on that
basis that the procedure is discussed here in reference to determination of
admissibility of disputed extra-judicial statements only.

The procedure of the trial within a trial is a rule of practice but not the rule of
law.11 The main statutes that govern criminal trials in Tanzania do not provide
for that procedure.12 Reliance has always been on case law for guidance. While
the position of the law is somewhat clear about the procedure of the trial within a
trial in the High Court, the position is not so in respect of subordinate courts. As
it would be demonstrated later on in this paper, there have been conflicting

7 See Black, H.C., (1990), Black’s Law Dictionary, 6th edtn, St Paul, Minnesota.
8 15 NY 2d 72 (1965).
9 See R. v. Thompson [1917] 2 K.B. 630 (a decision of the Court of Appeal); R. v. Thompson [1918]

AC 221 (Decision of the House of Lords); Tooley v. Metropolitan Police Commissioner [1965] 1 All ER
506 and Independent Publishing Co Ltd v. Attorney General of Trinidad and Tobago and another [2005] 1
All ER 499.
10 See Mwangi s/o Njeroge (1954) 21 EACA 377.
11 See Magayi v. Uganda [1965] EA 668, at p. 669 and Bakran v. R. [1972] EA 92, at p. 93
12 Interestingly, Regulation 102 (Disciplinary Jurisdiction) (G.N. No. 52 of 1968) in its paragraph

112.605 provides for an elaborate procedure of a “trial within a trial” to be followed in case an
accused tried for a service offence before the Military Court-martial retracts or repudiates his
confession. Service offences are created by the “Code of Service Discipline”, which is the 1 st
Schedule to the National Defence Act, [Cap 192 R.E. 2002]. Under that Code a serviceman can be
charged with such offences like “behaving in a cowardice way before the enemy” [sect c12 (j)],
“cowardly abandoning a vessel” [sect 42(c)], “improperly failing to pursue the enemy” [sect C11
(f) or “insulting a superior officer” [sect C21] etc. This law, however, is applicable to those
serving in the Army only although during the war (when different forces are mobilised for a
military combat or operation), members of the Police Force, the National Service and Prisons
Service may be tried and accordingly punished in accordance with the Code (see section C2 of the
Code).

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authorities on whether that procedure is equally applicable to subordinate

courts. Again, our superior courts have never been able to demonstrate with
sufficient clarity what sort of procedure subordinate courts should adopt when
extra-judicial statements are repudiated or retracted.

The main purpose of this paper is to explore, albeit briefly, the law relating to
trials within trials, and then endeavour to point out some problems of the law
especially in respect of subordinate courts in Tanzania. At the end of the paper, it
is sought to suggest that the law would be easily ascertainable if it is provided
for under the Criminal Procedure Act13 or the Evidence Act.14

THE PROPER STAGE OF THE PROCEEDINGS

One question that might immediately ensue is: at what stage of the criminal
proceedings the “trial within a trial” can be held? The now defunct Court of
Appeal for Eastern Africa15 supplied the answer to this question. This was in the
case of Hassan s/o Waliseme and Another v. R.16 It observed that the procedure
known as the „trial within a trial‟ should be adopted at trials before either a judge
sitting with jury or assessors, or before a magistrate when the issue of
admissibility of a statement is to be determined. It went on to say, “We see no

13 [Cap.20 R.E. 2002].

14 [Cap 6 R.E. 2002].
15 The Court of Appeal for Eastern Africa was firstly established in 1902. Before early 1960s, it

had the jurisdiction to hear appeals from the High Courts of the Protectorate Territories of Kenya,
Uganda, Zanzibar, and Somali, the Trust Territory of Tanganyika, and the Colonies of Aden and
Seychelles. There were further appeals to the Privy Council (in UK) from this Court. After
independence in early 1960s, appeals to the Privy Council were abolished but the court remained.
It was re-organised and renamed as the “Court of Appeal for East Africa”. It served the three
sister countries of Kenya, Uganda and Tanzania under the East African Community. The court
suffered its natural and slow death with the collapse of the East African Community in 1977, and
consequently, Tanzania established her own Court of Appeal in 1979. The Court of Appeal for
Eastern Africa and the Court of Appeal for East Africa are regarded in this paper as one and the
same court. This is because the latter court was a mere continuance of the former but under
somewhat a different name.
16 [1959] EA 800.

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 A trial within a trial ― I.R. Mandi

necessity for resorting to any procedure similar to the „trial within a trial” in the
course of a preliminary enquiry.”17
It is thus clear from the foregoing that this procedure could only be undertaken
during the actual hearing of the case, that is, the stage where witnesses are called
to testify and other evidence is produced in court. It is neither applicable in
preliminary inquiries (or committal proceedings)18 nor allowable to be conducted
in the course of preliminary hearing of the case pursuant to section 192 of the
Criminal Procedure Act.19

THE TRIAL WITHIN A TRIAL IN THE HIGH COURT

Assessors in the High Court
For a better appreciation of the procedure of the “trial within a trial” before the
High Court, something needs to be said about “assessors.” Professor Fimbo once
remarked that courts have used these assessors since colonial days as experts of
customary law, and that their presence ensures participation of the public in
judicial proceedings.20 Currently, the law requires every criminal trial before the
High Court to be conducted with the aid of assessors.21 The law only fixes the
minimum number to two, and leaves it to the court to increase the number
whenever it deems fit.22 The Court also selects these assessors.23 During the trial
the assessors are entitled to put questions to the witnesses.24 After the closure of
the case on both sides (i.e. prosecution and defence), the judge may sum up, to
the assessors, the evidence for prosecution and defence. 25 After summing up the

17 Ibid, at p.803.
18 Section 243 et sequente of CPA.
19 [Cap.20 R.E. 2002].
20 Fimbo, G.M., “Public Participation in Judicial Proceedings in Tanzania”, in Eastern Africa Law

Review, (1990) Vol 17, No. 1, pp.18-33 (at p.19).

21 Section 265 of the Criminal Procedure Act, [Cap. 20 R.E. 2002].
22 Ibid.
23 Ibid., section 285.
24 Section 177 of the Evidence Act, [Cap 6 R.E. 2002].
25 Section 298 of the Criminal Procedure Act, [Cap. 20 R.E. 2002]. It has been held by the Court of

Appeal that although the law does not oblige the judge to do so, nevertheless the rule of practice

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 A trial within a trial ― I.R. Mandi

evidence, he would then require each of them to give his opinion on the general
or a specific issue.26

Before giving their opinions, the assessors have a right to retire for a brief while,
if they want to, and confer in a certain room (or elsewhere) to discuss. 27 They
may reach a unanimous opinion.28 Their role is, of course, only advisory29 in that
the judge is not obliged by law to conform to their opinions.30

The Procedure
The case of Kinyori s/o Karuditu v. R.31 is the locus classicus of the procedure of the
“trial within a trial” in East Africa. Although it appears that courts had adopted
such a practice even before this case32, it was in this case that the Court of Appeal
for Eastern Africa laid down in detail the procedure to be followed. In this case
the Court adopted the English practice of trials by jury as stated in the case of R.

would oblige him to sum up evidence for the assessors, - see Hatibu Gandhi‟s case (supra) and
Andrea v. R. [1958] EA 685.
26 Section 298(1) of CPA.
27 Section 298(4) of CPA.
28 This practice, it seems, is an imitation of the customary English practice of trial with a jury.

Lord Denning in his book, What Next in the Law (1982: 36-37), tells an interesting story about that
practice. In one case decided in the year 1367, the jury retired to discuss the case but one of the
jurors could not agree with others, eleven jurors were ready to return the verdict of “guilty”, but
the twelfth had adjudged the accused as “not guilty”. The discussion was very long. The judge
became impatient and lost his head; he threatened the juror: “I will cast you into jail unless you
agree with others!” On appeal, the threat was disapproved as improper but held that the proper
course would have been for the judge to “carry the jurors round the circuit with him from town
to town in a wagon until they agreed”. And the story goes on; in order to secure a unanimous
verdict quickly another practice had developed. When jurors retired to a room to discuss, “they
were kept without food, meat, drink, fire or candle”. It was thought that if there were fire to
warm them, light to see each other and meat to roast the discussion would have been unduly
long and hence delay of justice. Thus, it was a contempt of court (contemptus curiae) for a juror to
sneak any kind of food therein. The practice of keeping the jurors hungry and thirsty in the dark
for the noble sake of expediting justice has been discontinued for many centuries ago.
29 Fimbo, op.cit., p. 27.
30 Section 298(2) of CPA.
31 (1956) 23 EACA 480.
32 See M’muraira Karegwa v. R. (1954) 21 EACA 262, and Mwangi s/o Njeroge v. R. (1954) 21 EACA

377.

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 A trial within a trial ― I.R. Mandi

v. Murray.33 Again, the same Court, while sitting here in Dar es Salaam in 1972,
insisted on the necessity of holding the “trial within a trial” whenever an extra-
judicial statement is objected and reiterated the procedure thereof. This was in
the case of Ezekia v. R.34 The procedure as laid down in these two cases can be
paraphrased seriatim as follows:

(i) If the defence is aware, before the commencement of the trial, that such an
issue will arise; the prosecution should be informed of that fact.35 Having been
informed, the prosecution would refrain from mentioning anything in relation to
the statement in the presence of the assessors.

(ii) When the stage is reached at which the issue must be tried, the defence
should mention to the court that there is a point of law to be resolved and submit
that the assessors be asked to retire (withdraw from the court room). This must
be done before any witness testifies in relation to the statement. The insistence is
that it should be quite early before any such witness goes to the witness box.

(iii) The court will then order the lay members of the court (the gentlemen
or/and ladies assessors) to retire, i.e. to go out of the court and stay at a distance
long enough not to hear or even see anything in the courtroom.36

(iv) After the departure of the assessors, the prosecution (upon whom the
burden to prove the statement lies37) will call its witnesses including, of course,

33 (1951) 1 K.B. 391.

34 [1972] EA 427.
35 The court subsequently held in the case of Uganda v. Lwasa [1968] EA 363 that in case the

accused is unrepresented the rule of practice obliges the judge to see to it that the statement is
not mentioned in court before he asks the accused whether he wished to object it. And that he
(the judge) must take every possible step with a view to discovering whether the unrepresented
accused objects to the admissibility of that statement. This duty, however, does not exist when an
accused is represented by an advocate.
36The convenient way is perhaps for them to remain in a secluded place like a room until they are

called back.

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the person to whom the statement was made, the interpreter (if any) and any
other person acquainted with the fact in issue. These witnesses would be
examined-in-chief in a normal way, and then the defence will cross-examine
them.

(v) The accused has the right to give evidence or to make a statement from the
dock, and to call witnesses, whose evidence will be limited to the issue of the
admissibility of the statement. The accused and his witnesses (if any) will be
cross-examined by the prosecution on the issue of admissibility of the statement
and never on the general issue in the main trial.

(vi) Having heard both sides of the case, the judge will then make a ruling either
to admit the statement or to exclude it, and pronounce that ruling to the parties.

(vii) After the ruling, the lay members of the court (the assessors) would be
called back to retake their seats in the courtroom and the main trial would then
resume.

The Effect of Admission of the Statement

The ruling on the admissibility of the statement by the judge and pronouncement
of it marks the end of the “trial within a trial”, just as the return of gentlemen
or/and ladies assessors signifies the resumption of the main trial. If the
statement has been ruled inadmissible, it is the end of it; the assessors will hear
nothing about it. However, if the judge admitted the statement, the defence
would automatically acquire some rights.

37The principle that the onus proving that the statement was voluntarily made lies on the
prosecution side is now provided for under section 27(2) of the Evidence Act, [Cap. 6 R.E. 2002].

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 A trial within a trial ― I.R. Mandi

The first right is that of demanding the prosecution witnesses who testified in
absence of assessors to be recalled. The admission of the statement by the judge
would have the effect of “scotching the secret.” There would thus be no more
secrets. The assessors would have the right to know fully all the circumstances
that surrounded the making of that statement. One way of knowing about that is
to hear and view witnesses testifying before the court. So witnesses will be
recalled.

The Court directed in Kinyori‟s case that the prosecution witness, to whom the
statement was made, must produce that statement (if it was in writing) or testify
about what was actually said (in case it was made orally). After this witness
testifies, all other prosecution witnesses who testified in the absence of assessors
must go into the witness box to testify for the second time. All these witnesses
would, including the one to whom the statement was made, as of right, be cross-
examined by the defence. The prosecution would also have the right to re-
examine such witnesses in event something new crops up during cross-
examination.

It is stressed that witnesses must be recalled, and something like reading their
depositions made during the “trial within a trial” is not enough. In the case of
Bampamiyiki s/o Buhile v. R.38 the Court remarked that the procedure of reading
out the evidence instead of recalling witnesses is entirely irregular, and that “the
practice must cease.”39

One duty can be discerned here, the Court instructed in Kinyori‟s case that the
judge must always inform the defence of this right, that is, the right to demand
the prosecution witnesses to be recalled and the attendant right to cross-examine

38 [1958] EA 398.
39 See ibid., p. 399.

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them in the view and hearing of the assessors. This duty, it would appear, binds
the judge irrespective of whether or not the accused is represented by an
advocate.
One may ask, why recalling and re-grilling the witnesses with questions? Lord
Goddard, CJ, in the case of R. v. Murray40 eloquently stated the rationale for that
practice when he said:

This point [about the defence‟s right to recross-examine the witnesses]

had better be settled once for all. It is always, so far as this court is aware,
in such a matter as this being the right of counsel for the defence to cross-
examine again before the jury the witnesses who have already given
evidence in the absence of the jury, because, if he can induce the jury to
think that the confession has been obtained by some threat or promise, its
value is enormously weakened. The weight of the evidence and the value
of the evidence is always for the jury.41

In America, it appears, the practice is the same. The eminent American scholar,
Professor Wigmore, points out thus, “when a confession is ruled to be
admissible, the same evidence and all other circumstances affecting the weight of
the confession may be introduced for the jury‟s ultimate consideration.”42 It is
this reasoning that was adopted by the Court in Kinyori‟s case. Thus, although
the judge could have admitted the statement, the defence must be given another
chance to persuade the jurors or assessors, as the case may be, that the statement
was not made voluntarily or that it was not made at all. The jurors or assessors
(in our trials) must hear and view the witnesses in order to form their
independent opinion as to whether the extra-judicial statement in question was
voluntarily made. They may believe or disbelieve the prosecution story that the
statement had been made voluntarily. In case they disbelieve it a little weight
may be attached to the statement. It may thus be safely concluded in this part
that admission of the statement during the trial within a trial does not mean that

40 [1950] 2 All ER 925.

41 Ibid., at p.927.
42 See Sarkar, M. C., (1983), Sarkar’s Law of Evidence, 14th edtn., Vol.1, p. 395.

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the accused will thereby automatically be convicted. In the trial within a trial the
Court is concerned with a narrow issue of “whether the statement is admissible”
but not about its truth or otherwise.43 If admitted, the statement will have to be
weighed and reconsidered together with other evidence, if any.

The second defence‟s right which accrues in event of admission of the statement
is this: when the time comes for the defence to present its case, and the accused
decides to testify or make the statement from the dock, he will be entitled again
to speak about the statement and the questionable circumstances, which he
alleges about the statement. It would thus be untenable for the judge to turn
impatient and, for instance, say: “we have heard much about that, we are fed up,
proceed with other matters!” The Court must be prepared to rehear the story,
however monotonous it may sound. Again, if he testifies or makes a statement
from the dock, he would then be exposed to cross-examination (by the
prosecution) not only on the statement but also on the general issue. Further, the
accused will be entitled to recall his witnesses who testified in the absence of the
assessors.

The Purpose of the “Trial within a Trial”

The Court of Appeal for East Africa, in the case of Bakran v. R.44 , endeavoured to
explain the purpose of holding the “trial within a trial” as to be twofold.
According to it, the first purpose is, “in cases tried with a jury or assessors, to
avoid prejudice being caused to the accused person if the jury or the assessors
should hear evidence which will subsequently be held inadmissible.”45 The
second advantage, according to the court, “is to avoid prejudice being caused to
an accused person if the court subsequently holds, in coming to its decision, that

43 R. v. Liverpool Juvenile Court, ex parte R [1987]2 All ER 668.

44 [1972] EA 92.
45 Ibid., p. 93.

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the statement was improperly admitted.”46 While the first purpose focuses on the
possibility of prejudice likely to be caused by assessors in case they hear the
statement, the second one is directed against prejudice that might be occasioned
by the Court.

The third purpose, which we think is the most important of all, is to resolve the
issue of admissibility of the objected extra-judicial statement. Temporary
abandonment of the main trial and its main issue enables the Court to easily
dispose of the dispute over the admissibility of the statement. It serves to dispel
confusion likely to be caused by mixing up the general issue and the
interlocutory issue of admissibility of the statement.

Withdrawal of the Assessors

Another puzzling question likely to be posed by a common man who attends
court proceedings is: why the assessors should be disengaged from the court
proceedings during the trial within a trial? The assessors are normally ordinary
citizens who are not knowledgeable in law. To put it rightly and of course to be
fair, they lack an in-depth knowledge of our “foreign-oriented law”, for they are
experts of customary law. When any issue arises under the customary law, they
are “learned” in that area and the judge might, in that respect, be no better than a
layman.

Owing to this nature of the assessors, that is, of being untrained in law, they
might fail to separate grain from the chaff. If they hear a statement that someone
had confessed and it sinks into their minds, and subsequently the judge says that
confession is inadmissible, they might still base their opinion on that confession.
It might not occur possible to them to disregard something they have just heard.
To those learned in law, as usually said, it is different. In this connection, the

46 Ibid.

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Court had this to remark in Bakran’s case: “It has always been held and
considered that a judge or a magistrate, by virtue of his legal training, will be
able to divorce his mind from any inadmissible evidence when considering that
verdict.”47

Arguing in the same lines, the most famous English judge of the twentieth
century,48 Lord Denning, once commented that unlike a layman, no judge could
be influenced, in arriving at his decision, by what he watched on TV or read in a
newspaper.49 And in the case of The Attorney General v. BBC50 the same judge
had this to say about a lawyer,

A lawyer is, or should be by his training and experience better able than
others to keep to the relevant and exclude the irrelevant; to decide
according to evidence adduced and not to be influenced by outside
information…

The difference between lawyers and others lies in the training and experience.51
On account of this fundamental difference, the gentlemen and/or ladies
assessors are normally disengaged from the trial within a trial. They are not
required to hear anything about the disputed statement unless it has been
admitted. It is a prudent practice aimed at avoiding prejudice which may be
caused to the accused person.

47 Ibid.
48 Reid, J., “Justice on Appeal: A Century Plus of Appeal Courts and Judges in Tanzania”, Paper
presented at a Seminar in Commemoration of 25 Year Anniversary of the Court of Appeal, Dar es
Salaam (15th – 17th September, 2004), p.16.
49 Lord Denning, (1980) The Due Process of Law, Butterworths, London, pp. 51-52.
50 [1979] 3 WLR 312.
51 Blackstone writing in the year 1800 had said, “They [the judges] are depositaries of the laws;

the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide
according to the law of the land. Their knowledge of that law is derived from experience and
study”. (See Blackstone‟s Commentaries on the law of England, Vol.1, p.68, Para 69).

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The case law, however, does not give guidance on what should be done
subsequent to the trial within a trial (but before judgment) to keep the assessors
ignorant of what transpired in the trial within a trial. For instance, the assessors
may read the coverage of the proceedings in a newspaper before the conclusion
of the trial. They may also hear the story from persons who attended during
court recess. In our view, there is a need for the law to empower the judge to
make orders to prohibit publication of the proceedings until the trial is
concluded the breach of which will be contempt of court. Also, it is our fervent
wish that a person who indulges in an unlawful gossip and thereby informs the
assessor of what transpired in the trial must be proceeded against for contempt
of court. Statutory provisions are more suitable to cover such eventualities.

Failure to Conduct the Trial within a Trial

The position of the law is that the trial within a trial must always be conducted
whenever admission of an extra-judicial statement is disputed. There is no
known legal exception to that requirement. The Court of Appeal of Tanzania has
deprecated the failure to conduct the trial within a trial in a language that is, as
Megarry writes “so trenchant and strong, which is likely to bewilder the printer
of the Law Reports.”52 In the case of DPP v. Tesha & Tesha,53 it described such a
failure as an “offensive departure” and a “fundamental error”. In another case,
Morris Agunga and two others v. R.,54 the Court was even harsher. It retorted:

…Paulo Luhende‟s conviction was based solely on the alleged confession

contained in the extrajudicial statement (exh.P4) made by him before the
Justice of the Peace (PW 5). The admissibility of that document in
evidence was objected to on the ground that the alleged confession in it
was not voluntarily made. However, for the reasons which are totally
unintelligible the objection was overruled. … [T]here can be no doubt that

52 Megarry, R.E., (1955), Miscellany – at – Law: A Diversion for Lawyers and Others, Stevens & Sons
Ltd, London, p. 89.
53 [1993] TLR 237.
54 Court of Appeal (at Mwanza), Criminal Appeal No. 100 f 1995 (unreported).

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the trial judge grossly misdirected himself. For, upon the objection being
raised the proper procedure was for him to hold a trial within a trial and
then rule on the matter.

The effect of these cases and other authorities is that the judge cannot dispense
with the holding the trial within a trial once the extra-judicial statement is
objected to. Once such objection is raised, the judge cannot refuse, he/she must
steer the Court and all parties to the process of the trial within a trial. The
objection may be overruled after that interlocutory trial and not prior to it. The
reason for this is that any decision by the Court, to admit or displace the
statement, must be based on evidence. Such evidence is properly adduced
during the trial within a trial. This could be the reason why the Court of Appeal
has always been strict and has entertained neither lenience nor slight
compromise for the failure to conduct that trial.

One pertinent question in this regard is, what is the effect of failure to conduct
the trial within a trial when admission of the extra-judicial statement is objected?
And, it could still further be asked: is that failure fatal to the conviction? The
effect of failure to hold of the trial within a trial renders the statement
inadmissible. In the case of Masanja Mazambi v. R.55, it was argued by the
appellant‟s Counsel that the objected extra-judicial statement is inadmissible in
case the trial within a trial is not held. The Court of Appeal of Tanzania acceded
to that argument when it said, “we agree with Mr. Matata that the statement was
inadmissible for failure to hold the trial within a trial.”56 The usual and proper
course is thus for the appellate court to exclude that statement during the
determination of the appeal.

55 [1991] TLR 200.

56 Ibid., p. 202.

15
 A trial within a trial ― I.R. Mandi

As to the conviction, whether it will be quashed on appeal or not depends on

whether the accused had been prejudiced by that statement. In other words, the
test is whether such statement was instrumental in founding a conviction. As
already hinted, the appellate court is bound to exclude that statement. On one
hand, if the remaining evidence after such exclusion of the erroneously admitted
statement is abundant, the appellate court will not interfere with conviction.57 If,
on the other hand, there is no other evidence to sustain conviction the effect of
exclusion will be to quash the conviction.

In a unique recent case, the Court of Appeal was confronted with the issue of
legality or “probative value” of a statement, which was admitted by the High
Court after the trial within a trial which was actually conducted without
ordering the assessors to retire. The assessors thus witnessed everything and
ultimately the objected statement was admitted. This was in the case of
Ramadhani Salum v R.58 The Court of Appeal could not exclude the statement on
the ground that although the assessors heard evidence during the trial within a
trial, the evidence was eventually admitted and therefore, as it concluded, “there
was no prejudice to the appellant.”59 Actually counsel for both sides were also agreed
that no prejudice had been caused to the appellant.

However, the Court seized an opportunity to restate the procedure to be adopted

by the High Court in the following terms:
“… the established practice is that, in a trial with the aid of assessors, as soon as
it is apparent that the admissibility of a piece of evidence will be contested, the
trial court asks the assessors to retire until the question of admissibility of that
piece of evidence is decided one way or the other. If the court decides that that
piece of evidence is inadmissible then the assessors will not have heard
prejudicial, inadmissible evidence. In the event, however, that piece of evidence

57 See Magayi v. Uganda [1965] EA 667 (at p.669); M’murairi s/o Karegwa v. R. (1954)21 EACA 262
(at pp.264-5); Lakhani v. R. [1962] EA 644 (at p.646); Lamambutu v. R. [1958] EA 706 (at p.709); and
Kinyori’s case (at p.483).
58
Court of Appeal (at Mwanza), Criminal Appeal No 5 of 2004(unreported).
59
Page 15 of the Court’s judgment.

16
 A trial within a trial ― I.R. Mandi

is found admissible, then it will be given in the presence of the assessors after
they have been called back to court. Trial judges are enjoined to observe this
practice.”60

Thus, in particular circumstances of this case, there was no harm to the appellant
though the assessors heard about the statement which was ultimately admitted.
Curiously, it may be asked, what would have been the position if such a
statement had been held inadmissible? Would have the Court of Appeal nullified
the whole trial or acquitted the accused altogether? No opinion was expressed by
the Court on this point and our research could not find any authority on it. In our
view, the Court of Appeal has two options in such a scenario: to acquit the
accused or order a re-trial before the same or another judge but in either case
with a different set of the assessors.

It is also to be noted that the Court of Appeal did not hold that what was
conducted was not a trial within a trial because the assessors were not
withdrawn. All the same it was the trial within a trial although it was conducted
irregularly. As it will be argued later on in this paper, the trial within a trial is not
all about the withdrawal of the assessors from the proceedings. It is chiefly about
temporary abandonment of the general issue in the trial and hearing of evidence
on the specific issue of the admissibility of a disputed statement. It may thus be
concluded that such a trial could be conducted even if there are no assessors.

TRIALS WITHIN TRIALS AND SUBORDINATE COURTS

As already noted, the procedure to be adhered to in subordinate courts when
admission of extra-judicial statement is opposed is not clearly outlined. Such
state of affair renders the law problematic in so far as criminal trials in
subordinate courts are concerned. In order to discuss the problem of the law, it
is better to follow up different positions held by courts in a chronological way.

60
Ibid.

17
 A trial within a trial ― I.R. Mandi

After brief remarks about assessors in subordinate courts, a discussion starts

with positions as held by the now defunct Court of Appeal for Eastern Africa,
then the High Court of Tanzania and lastly, the Court of Appeal of Tanzania.

Assessors in Subordinate Courts

Probably the dissimilarity of the law between the High Court and subordinate
courts stems from fundamental differences in the way criminal trials are
conducted in these courts. At this juncture, for better comprehension, a few
observations on these differences, in so far as the assessors are concerned, are
desirable.

In the High Curt, as already observed, criminal trials are held with the aid of the
assessors.61 Similarly, all trials in primary courts, be criminal or civil, are to be
held with the aid of not less than two assessors.62 Unlike the situation in the
High Court where opinions of the assessors are not binding on a judge, opinions
of the assessors in a primary court are binding on a magistrate and, of course,
form part of the Court‟s decision or any other finding.63 It is the majority vote of
the assessors and a magistrate that carries the day. Even if he finds himself in the
minority, a primary court magistrate has no power to overrule the opinions of
the assessors. That is so even though such opinions appear very perverse to
him.64 Any decision made by a primary court magistrate with the exclusion of
opinions of assessors is legally null and void.65

61 Section 265 of the Criminal Procedure Act, [Cap. 20 R.E .2002]

62 Section 7 (1) of the Magistrates’ Courts Act, [Cap. 11 R.E. 2002].
63 Ibid., section 7 (2).
64 Chipeta, J. in Ali Nyembwe v. Mwanaidi Rashidi [1987] TLR 131. In order to mitigate the rigours

of this law, a practice has evolved in these courts for primary court magistrates to forward the
relevant files to the district court magistrates for revision in line with the provisions of section 22
of the Magistrates’ Courts Act, [Cap.11 R.E. 2002].
65 Nyembwe’s case, ibid.

18
 A trial within a trial ― I.R. Mandi

The position of the law is vastly distinct in respect of the two sister courts ― the
district court and the resident magistrate court. In these two courts there is no
general legal requirement that the relevant magistrates should sit with the
assessors. The law, however, allows magistrates in such courts to sit with the
assessors in case any rule of Customary or Islamic law is in issue or relevant and
when directed to do so by a superior court.66 Again, opinions of assessors are not
binding on magistrates of these courts.67 In real practice, however, it is very rare
to see the assessors sitting in a district or resident magistrate court. Probably on
the basis of this practical reality, there have been several pronouncements of
courts that there are no assessors in subordinate courts. The term “subordinate
courts” in this respect is used in restrictive sense of referring the district and
resident magistrate courts to the exclusion of primary courts.

The Court of Appeal for Eastern Africa

The Court of Appeal for Eastern Africa was always cognisant of the notorious
fact that most of the accused persons in subordinate courts are normally not
represented by advocates. On the basis of this fact, the Court made some judicial
directives to subordinate courts with a view to salvaging such persons from
prejudice. The first directive was that a subordinate court, and indeed the High
Court, must always inform the un-represented accused person before it of his
right to object the admission of extra-judicial statement intended to be
introduced in evidence. In Lakhani’s case,68 for instance, the Court held that a
magistrate has a duty to ask the accused person whether he wishes to object the
extra-judicial statement sought to be introduced into evidence by the
prosecution. This Court repeated this directive in other cases.69

66 Section 7(3) of the Magistrates’ Courts Act, [Cap.11 R.E.2002].

67 Ibid
68 [1962] EA 644.
69 See Waliseme’s case [1959] EA 800, (at p.803) and Bakran’s case [1972] EA 92, (at p.93).

19
 A trial within a trial ― I.R. Mandi

The second judicial directive made by this Court to subordinate courts was that
whenever confession or any other extra-judicial statement was objected, the trial
within a trial had to be conducted to resolve the issue of its admissibility. In this
regard, the Court observed in Israel Kamukolse and others v. R.70
The procedure to be followed by all courts where an issue of admissibility of such
a statement is raised was recently considered at length by this Court in
Kinyori v. The Queen, C.A. 551 of 1955 (unreported). Although in a
magistrate‟s court there is neither a jury nor assessors the onus is still on
the prosecution to show that any statement was made by the accused and
tendered in evidence was voluntarily made and the court must satisfy
itself on that issue before admitting the statement. [Emphasis added].

It is clear from the above quotation that even if there are no assessors in
subordinate courts as in the High Court, the trial within a trial is nevertheless to
be held in such courts. The purpose of that trial is to resolve the issue of
admissibility of the statement at issue. In Waliseme’s case, the Court noted some
differences of trials in subordinate courts and the High Court and then restated
the same direction. It also cited therein the English case of R. v. Thompson,71
which indicates that even in England it is the practice in trial before justices at
quarter sessions for the issue of the admissibility of a confession to be
determined when objection to its admission is taken by the defence.72 In this
connection, it was remarked in a recent English case73 thus, “It had already been
established prior to 1994 that, when magistrates conducting a summary trial74
were faced with objections to the admissibility of evidence under ss 76 and/or 78
of PACE75, they were obliged to determine the objections forthwith by holding a
trial within a trial.”76 Again, in Bakran’s case the Court of Appeal for East Africa

70 (1956) 23 EACA 521.

71 [1893] 2 QB 12.
72 See Hasani s/o Waliseme and another v. R. [1959] EA 800, (at p.803).
73 Re Poulx R. v. Bow Street Magistrates’ Court and another, exparte Proulx [2001] 1 All ER 57.
74 The phrase “summary trial” in English jurisprudence means a trial conducted without the jury

or the assessors. (See Smith, J. C. and Hogan, B., (1969), Criminal Law, 2nd edtn, Butterworths,
London, pp.25-25.
75 Police and Criminal Evidence Act, 1984 (England).
76 Re Poulx R. v. Bow Street Magistrates’ Court and another, exparte Proulx [2001] 1 All ER 57(at p. 69).

20
 A trial within a trial ― I.R. Mandi

was straightforward when it said, “we agree that the procedure of holding the
trial within a trial should always be adopted in a magistrate‟s court.”77

The effect of these and other cases decided by the Court of Appeal for Eastern
Africa is that although there may be no assessors in subordinate courts the trial
within a trial must always to be conducted whenever extra-judicial statement is
objected. The Court was in effect saying that the trial within a trial should not be
equated with “withdrawal of assessors.” It is all about calling of witnesses and
production of evidence, if any, to resolve a dispute over admission of the extra-
judicial statement.

The High Court of Tanzania

At least until 1982, the law was very settled that the procedure of the trial within
a trial in the High Court was equally applicable to trials in subordinate courts.
For reasons that are not apparent, the High Court of Tanzania opted to depart
from that well-established legal position. It introduced the so-called “inquiry.”
The case of Masasila s/o Mtoba v. R.78 is indicative of that departure. In that case,
Katiti, J., partly held,

Where the admissibility of a confession comes about in the magistrates‟

courts, where a trial within a trial is not strictly applicable, the magistrate
should take up the matter, and inquire into the circumstances leading up
to the taking of the statement…79

This decision raises three important points. Firstly, it adopted the previous
position that a magistrate is duty bound to ask the accused, who is not

77 Bakran v. R. [1972] EA 92, at p.93.

78 [1982] TLR 131.
79 Ibid., p.132.

21
 A trial within a trial ― I.R. Mandi

represented by advocate, whether he wants to object the extra-judicial

statement.80 Secondly, it declares that the procedure of the trial within a trial is
not applicable to the magistrates‟ courts. Thirdly, it shows that the role of the
parties to the case in proving or disproving the authenticity of a disputed
statement is very limited. That is so because the process of calling witnesses or
production of evidence is not envisaged at all. Instead, huge responsibility is
placed on a magistrate to inquire into the circumstances under which that
statement was made. As to how such an inquiry is to be made, the Court said
that the magistrate should make sufficient inquiries from the prosecution ad then
the accused person. It seems, by “making inquiries” probably the Court meant
“asking questions.” After such an inquiry the court would then make a finding
on whether to admit the statement or exclude it.
It is submitted, although for a magistrate to conduct an inquiry may be in line
with the Tanzania‟s modified adversarial system of dispute settlement,81 the
procedure thereof is prejudicial. Because the parties to a case have no
opportunity to call witnesses and present evidence in a formal way the
magistrate may erroneously admit or reject the statement. An injustice so caused
would not easily be rectifiable on appeal due to lack of evidence. The appellate
court would assume that the trial magistrate‟s finding was correct which is not
usually the case.

The Court of Appeal of Tanzania

The Court of Appeal, like the High Court, has taken a different stand from that of
the Court of Appeal for Eastern Africa. It has declared that the procedure of a
trial within a trial is inapplicable in subordinate courts. However, the same
Court has never been all along consistent in that stand, for, at least in one case it
suggested that a subordinate court ought to have conducted a trial within a trial.

80 This point is not covered in the above quotation but elsewhere in the same judgment.
81 DPP v. Peter Vogel [1987] TLR 100; John Magendo v. N.E. Govan 1973, LRT n. 60.

22
 A trial within a trial ― I.R. Mandi

This was in the case of Robinson Mwanjisi and 3 others v. R.82 in which the Court
noted:

We think, with respect, that although the trial magistrate considered the
statements to be voluntary, their voluntaries 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.83
[Emphasis added].

The Court thus clearly indicted that the trial within a trial was necessary to
resolve the admissibility of the contested statements. In the same judgment, the
Court went on to quote the trial magistrate‟s judgment part saying that the
accused persons had offered no proof to support their allegations that the Police
had tortured them. The Court of Appeal roundly disapproved that comment for
it denoted shifting a burden of proof to the accused persons, the shift of which is
against the law.84 The magistrate‟s comment was, however, important in one
respect – it recognised the importance of proof. Even the police ought to have
proved their allegations that they never tortured the accused persons. Both the
accused and the prosecution witness should have been subjected to cross-
examination, which is, as John Wigmore contends, “the greatest legal engine ever
invented for the discovery of truth.” 85

After making some observations, the Court rightly concluded thus, “neither the
prosecution nor the defence was heard on the question and we think it is correct
to say that the ruling of the learned resident magistrate was without legal

82 Court of Appeal (at Dar es Salaam), Criminal Appeal No. 154 of 1994 (Unreported).
83 Ibid., p.10.
84 Section 27(2) of the Evidence Act, [Cap.6 R.E. 2002].
85 Wigmore, J., (1940), A Treatise on Anglo-American System of Trials at Common Law, Vol. I, Little

Brown & Co., Boston, p.29.

23
 A trial within a trial ― I.R. Mandi

basis.”86 That means that all parties to the case should have the opportunity to
present their cases and the best way that could be done is through a trial within a
trial. In our opinion, this decision was very correct and of course it stands out as
a good law. It emphasised the importance of production evidence upon which
admission or rejection of the disputed extra-judicial statement would be based.

In a subsequent case the Court recanted its previous holding that magistrates‟
courts should adopt the procedure of a trial within a trial whenever extra-judicial
statements are contested. It took the view that the procedure of a trial within a
trial is not applicable to subordinated courts. This was in the case of William
Shimba v. R.87 in which the Court of observed, inter alia:
As we understand it, a trial within a trial is conducted in a trial with the
aid of assessors (in our jurisdiction) or with a jury (in jurisdictions in
which juries are used) in order to protect them (the assessors or members
of the jury) from hearing evidence which may possibly be inadmissible.

In a trial which assessors are not sitting, the magistrate or judge alone
decides both on facts and on the law, a trial within a trial is not usually
conducted because it would be highly artificial.

It is noteworthy that this decision, when compared to Mwanjisi’s case, is a horse

of an entirely different colour. Amazingly, in coming to a totally different
principle the Court never referred Mwanjisi’s case at all. It is to be pointed out
that the Court adopted a very narrow view of what the procedure of a trial
within a trial is all about. It only associated that process with the withdrawal of
the assessors or jurors. To it, if there are no assessors or jurors in a trial then
there is no need to hold the trial within a trial. It is submitted, with respect, that
such a narrow view does not reflect the fundamental purpose of that procedure.
The procedure is not all about withdrawal of assessors; it is something more than
that. As it is decipherable from various decisions of the Court of Appeal for

86 Page 7 of the Court‟s judgment.

87 Court of Appeal (at Mwanza), Criminal Appeal No. 10 of 1998 (unreported).

24
 A trial within a trial ― I.R. Mandi

Eastern Africa, the chief aim of the procedure of the trial within a trial is to
“determine the admissibility of the objected extra-judicial statement.” Such
determination must be based on evidence. Witnesses would be called to testify
on the interlocutory issue and real evidence, if any, would be produced.
Witnesses will not mix up the main issue and the interlocutory issue. To say that
the procedure is useless when there are no assessors tantamount to saying
evidence is not required when there are no assessors or that witnesses will not
mix up the two issues when the magistrate is sitting alone. Logic refutes such
conclusion.

In a recent case, Emmanuel Joseph @ Gigi Marwa Mwita v. R.88, the Court reiterated
its position that there is no need to hold the trial within a trial in a subordinate
court with no assessors. Remarkably, again in this case the Court never referred
its previous authorities touching on the issue under discussion. But, the
significance of this decision lies in the fact that it touches, though in an
inadequate way, on the crucial aspect of what sort of procedure is to be adhered
to in a subordinate court when the extra-judicial statement is retracted or
repudiated. In that case, the defence Counsel had argued that a confessional
statement was wrongly admitted in evidence at the trial without proper inquiry.
The Court responded in part thus,

…it is to be observed at the outset that unlike the practice applicable in

the High Court, where a trial within a trial is held in order to establish the
voluntariness of a disputed statement, in the subordinate courts, no such
practice is applicable. In that case, where a situation arises, say in the
District Court as happened in this case, an inquiry on the voluntariness or
otherwise of the statement can be ascertained from the evidence on the
record and what the trial magistrate did at the trial.89

88 Court of Appeal, (at Mwanza), Criminal Appeal No. 57 of 2002 (unreported). The author
thanks Mr. Magoiga of Kabonde Law Chambers in Mwanza who generously sent him a copy of
the Court‟s judgment all the way from Mwanza to Dar es Salaam.
89 Ibid., page 9 of the Court‟s judgment.

25
 A trial within a trial ― I.R. Mandi

It would seem that in the above quotation the Court intended to state how an
inquiry is to be conducted in a district court. But, it ended up by saying such an
inquiry could be ascertained from the record and what the trial magistrate did.
This is not an inquiry in a district court but by an appellate court say the High
Court or the Court of Appeal. It is surprising for the Court to talk of “evidence
on record.” If witnesses were not called to testify about the statement where that
evidence would stem from? May be the only evidence on record will be from the
prosecution witness who actually tendered the statement. To base a decision on
the evidence of prosecution witness alone is unfair and would be prejudicial to
the accused.
The Court also noted in the same judgment that the trial magistrate had believed
the prosecution witness (PW 5), a police corporal, who told the district court that
the accused voluntarily made the statement. As the Court observed, the
magistrate believed that witness because he watched his demeanour. In the
upshot, the Court concluded: “This, we are satisfied, was an inquiry which,
unlike the procedure of trial within a trial in the High Court, is expected in a
subordinate court.” 90 By the way, it is doubtful whether the magistrate could
correctly gauge the demeanour of a professional witness like a police officer who
may skilfully feign sincerity. Cross-examination would have been a better test.
But, at least what is important about this decision is that observation of a
witness‟ demeanour is one aspect of inquiry.

Observations and Recommendations

From the foregoing discussion it is evident that while the procedure of
determining the admissibility of contested extra-judicial statements in the High
Court is relatively clear, the situation is not so in respect of subordinate court for
a number of reasons. In the first place, as it appears from decided cases, in
subordinate courts, only a simplified sort of inquiry is to be done by a trial

90 Page 10 of the Court‟s judgment.

26
 A trial within a trial ― I.R. Mandi

magistrate. How that inquiry is to be carried out is far from being clear. The
High Court indicates something like the trial magistrate asking questions to the
pertinent prosecution witness and then the accused. The Court of Appeal on its
part talks of watching of witnesses‟ demeanour and looking at evidence as part
of that inquiry. This, it is submitted, is not a healthy state of the law. For, as
Pollock says, “certainty [of law] is among the first objects of systematic justice.” 91
Those serving in subordinate courts need to know for certain what the law is or
what is the procedure of doing that inquiry. It is thus recommended that the
Court of Appeal must clear up this situation by lying down that procedure in
detail.

In the second place, our superior courts have placed the whole responsibility of
conducting the inquiry in a subordinate on the trial magistrate. Because
presentation of evidence is not envisaged in that process, a magistrate is likely to
occasion a miscarriage of justice. He may admit in evidence the statement which
is otherwise inadmissible and prejudice the accused person. By the same token,
he may wrongly exclude the statement and thereby unfairly mar the prosecution
case. For any decision taken by the magistrate to appear just, it is submitted, it
must be based on evidence. As Keeton Correctly asserts, “a trial is a competition
of inconsistent versions of facts and theories of law.”92 The prosecution is duty
bound to prove the authenticity of a disputed statement by calling witnesses, if
they want to. Likewise, the accused person ought to be afforded an opportunity
to give evidence in rebuttal by calling witnesses or otherwise. Another
significant aspect about such a suggested procedure is that even the appellate
court will easily resolve any complaint about the statement by looking at the
evidence on the record.

91 Sir Frederick Pollock, (1974), The Expansion of the Common Law, Rothman Reprints Inc., New
Jersey, p.107.
92 Keeton, R. E., (1954) Trial Tactics and Method, Little, Brown ad Company, Boston, p. (ix).

27
 A trial within a trial ― I.R. Mandi

In the third place, there are conflicting decisions of the Court of Appeal on the
issue under discussion. As noted, in one case it required the procedure of a trial
within a trial to be adopted in a subordinate court. But, later on it decided to
abandon that position and declare that such a procedure is not applicable in
subordinate courts. Those contradictions are at best likely to confuse the lower
courts in the judicial hierarchy. It is recommended that the Court of Appeal
should rectify that undesirable situation or alternatively a legislative step must
be resorted to.

In the fourth place, there has been a blanket declaration by the Court of Appeal
that there is no need to hold the trial within a trial in subordinate courts in that
there are no assessors. Perhaps the courts in contemplation are the district and
resident magistrates‟ courts. It would seem that the Court of Appeal has attached
much weight to the process of the withdrawal of assessors than determination of
the admissibility of the objected statement. Arguably, in Tanzania there is no
great danger of prejudice being caused to the accused person even if the
assessors hear about a statement, which would otherwise be excluded. That is so
because unlike in England where the jurors are the judges of facts and ultimately
decide the crucial issue of guilt or innocence of the accused, the role of the
assessors in the High Court of Tanzania is more peripheral than central. In the
High Court of Tanzania, the role of the assessors is relegated to giving opinions
that are not even binding on a judge. Thus, even if the excluded statement
influences their opinions, the judge may still disregard them. The significant
aspect in so far as the procedure of the trial within a trial is concerned is not
withdrawal of the assessors but settlement of a dispute over the voluntariness of
the disputed extra-judicial statement. Lamentably, the highest court of the land
has missed this important point.

28
 A trial within a trial ― I.R. Mandi

If withdrawal of assessors is any important, instead of generally saying there are

no assessors, the Court should have addressed itself to a scenario where
assessors are sitting in a district or resident magistrate‟s court. For, as noted
earlier, the law sanctions the two courts to sit with the assessors whenever there
is a question under Islamic or customary law to be resolved. Probably, because
Islamic and customary criminal laws have been legally abolished93 then there
would never be assessors in a criminal trial before those two courts. The real
complexity, however, lies in a primary court. There, a magistrate sits with
assessors who unlike their counterparts in the High Court cannot be withdrawn
from a trial. That is so in that any decision or finding for any issue before that
court is to be made jointly by assessors and the magistrate.94 One would have
thus expected our superior courts to address this question ― what is to be done
when the extra-judicial statement is disputed in a primary court?

All these complications and other legal problems would have been avoided if
our two superior courts could have followed the well-meaning decisions of the
Court of Appeal for Eastern Africa that trials within trials should apply in all
courts. Whenever the extra-judicial statement is objected, it is recommended; the
court and the parties should temporarily abandon the main trial and issue
thereof, and concentrate on the issue of admissibility of the contested statement.
Evidence would then be tendered on this specific issue and the magistrate would
thereafter make a ruling to admit or exclude the statement. In a primary court,
after completion of the process of hearing evidence, the court would be
temporarily adjourned to allow the magistrate and the assessors to vote before
resumption of the main trial.

93 Customary criminal law was abolished by section 66(1) of the Magistrates’ Court Act, 1963;
Islamic criminal law is also outlawed by section 2 of the Islamic Law (Restatement) Act [Cap 375
R.E. 2002].
94 Section 7 (2) of the Magistrates’ Courts Act, [Cap.11 R.E. 2002].

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 A trial within a trial ― I.R. Mandi

CONCLUDING REMARKS
The procedure of a trial within a trial is not a rule of law but rule of practice.
Courts have adopted it in order to settle disputes over objected extra-judicial
statements as well as to prevent prejudice being caused to the accused person.
According to the Court of Appeal for Eastern Africa that procedure is applicable
in the High Court as well as in subordinate courts. The High Court and the
Court of Appeal of Tanzania have taken a distinct stand. To them, a trial within a
trial is restricted to the High Court only and in subordinate courts a procedure
called “inquiry” is applicable.

The law on the procedure of inquiry, however, is beset with some serious
problems. There are some conflicting decisions on the applicability of a trial
within a trial in subordinate courts. That state of affair makes the law unclear.
Again, the trial magistrate performs that inquiry in a way that is not clearly
outlined. Further, that procedure gives too much power to the trial magistrate to
reject or admit the statement. Moreover, the law dos not say how such inquiry
would be carried out under peculiar circumstances pertaining to a primary court.
Unfortunately, although the law in this regard has some problems and it is only a
rule of practice, subordinate courts must nevertheless follow it under the
doctrine of precedent. As Lord Devlin said when he was comparing a rule of law
and practice: “a rule of practice is in my opinion different. When declared by a
court of competent jurisdiction, the rule must be followed until that court or
higher court declares it obsolete or bad or until it is altered by statute.”95

The Court of Appeal for Eastern Africa had a very commendable tradition,
whenever there were legal problems, it had the tendency to review its previous
authorities, put the law aright by laying down the procedure or otherwise, and
give directions to lower courts and other institutions. There are many such good

95 Connelly v. Director of Public Prosecutions [1964] 2 All ER 401, (at p. 446).

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 A trial within a trial ― I.R. Mandi

authorities but one need to read the case of Pius Jasunga s/o Akumu v. R.96 to
appreciate that it was the Court of its own class. Jurisprudence developed by
that court would be admired by many generations of lawyers to come.
Conversely, the Court of Appeal of Tanzania, which is the successor of the Court
of Appeal for East Africa, has never been able to emulate that good tradition or
even live up to the standards of its predecessor. It frequently decides cases
without even referring to its similar previous authorities and very seldom takes
trouble to clear up ambiguous legal points as its predecessor used to do. Those
who serve in it could perhaps tell what has befallen our highest court. In this
regard, Justice Lubuva makes an interesting revelation: “Justices of Appeal being
overburdened by the increasing workload coupled with lack of support research
assistants, barely get time to render analytical judgments.”97

There is no indication that problems presently besetting the Court of Appeal will
be solved in a foreseeable future. The hazy state of the law on the determination
of admissibility of disputed extra-judicial statements in subordinate courts is
thus likely to persist unabated. It seems, even in the High Court all in not well
with the law. For, the Court of Appeal of Tanzania remarked in Dawido Qumanga
v. R.98 that the procedure of the trial within a trial as laid down in Kinyori’s case
is complex even to a lawyer. These and other problems coupled with poor law
reporting call for a change. To do away with all such problems the procedure of a
trial within a trial and inquiry should be codified in a statute like the Evidence
Act99 or preferably the Criminal Procedure Act.100 Codification would ensure
certainty of the law on a rather sensitive issue of admissibility of the extra-

96 (1954) 21 EACA 331.

97 Hon. Justice Damian Lubuva, “The Court of Appeal Structure and the Need for the
Establishment of an Appellate Court above the Court of Appeal”, Paper presented at a Seminar
in Commemoration of 25 Yeas Anniversary of the Court of Appeal, Dar es Salaam (15th – 17th
September, 2004). p. 15.
98 [1993] TLR 120, at p. 123.
99 [Cap. 6 R. E. 2002].
100 [Cap. 20 R. E. 2002].

31
 A trial within a trial ― I.R. Mandi

judicial statements. It is a sensitive issue because admission of such a statement

in evidence in a serious case like capital offence may directly carry the accused to
the gallows. Perhaps it is the grievous nature of that evidence which impelled
Holt, CJ, to make this famous old remark ― “confession of the party is evidence,
but the worst sort of evidence.”101

101 Case No. 998 (Anonymous) 88 ER 1548.

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