20120513 TZHC Dodoma

IN THE HIGH COURT-OF TANZANIA·

AT DODOMA (APPELLANT JURISDICTION) (DC) CRIMINAL APPEAL NO. 3 OF 2012 (Original Criminal Case No. 13 of 201.0 of the District Court of Kondoa District at Kondoa) ' 1. ATHUMANI MUSSA @ FRANCIS }.

2. HIM ID I HAMADI..... .. ... . . . .... .. . ..

VERSUS . ....... . APPELLANTS ,, THE" REPUBLIC . .......................................... .

RESPONDENT JUD G M·E NT 23/5/2012 & 13/6/2012. '\ KWARIKO, J: ,, . it 'i The facts of this case which led to .this appeal can briefly be accounted as follows: On the morning hours of 3 rd January, 2010 one SHAMILA D/0 ABUU MAJALA, PWl found her house door broken and various properties stolen. These properties were mentioned to be one television set make Philips, one mobile phone charger one night torch and one cloth. PWl reported the matter to her local area (street) Chairman one STUMAI D/0 1 •. IBRAHIM, PW4 who visited the scene and advised PWl to report • the matter . to the police where she. complied. Later on, through investigation, on 29/1/2010 the Police received information that at one Said Ndombolo's home there were two television sets suspected of being stolen or unlawfully obtained. When the Police went to the Said house one ASHURA D/0 YUSUFU, PW3 the wife of SAID NDOBOLO and 1 st appellant's ,.. .. ~ sister-inlaw was there. PW3 informed the police that the television sets· had been brought in the house by the 1 st appellant who was living with them and had brought the same in the house while· they were on safari. PW3 also said that the 1st appellant informed her that the property belonge-d to him and the 2 nd- appellant. The 1st appellant was arrested and admitted that he had kept the televisions in his home after he had stole the same being in the company of the 2

nd appellant. A s~arch of the 1st appellant's "home was conducted where two television sets were • found in t~e 1st appellant's room. One No. D 7347 Detective Corporal KICHONGE, PW2 carried out this exercise in the presence of PW3 and PW4. A record of search Exhibit PE2 was- prepared and duly signed by these witnesses. Thereafter, the 1st appellant was sent to police station where on interrogation he admitted the allegations of being found with 2 ---·--·------·--·---··---··----·-·------------------- the televisions and his Caution · Statement'' .was written. In his Caution Statement, Exhibit PE3 the i st appellant explained that the televisions had been kept with him by the: 2 nd appellant as a_ pawn after he had given him Tshs. 80,000/= which he had promised to return on 29/1/2010 and take away the televisions. Before that was done the· 1st appellant said, was arrested. The 1 st appellant was sent to court with the offence of Burglary contrary· to section 294 (2), Stealing contrary to section 265 and Receiving Stolen ·or unlawfully acquired property contrary to secfion 311 ~ ,. both of the Penal Code Cap. 16 Revised Edition 2002 and later was joined with the 2 nd appellant in the 1 st and 2 nd counts. · The two denied the charge where in his defence the 1st appellant testified that whilst was in his usual errands in Kondoa town on 03/1/2010 was arrested by a drunk policeman

who could not compret,end anything. He finally said the case against him · was not prayed by the prosecution. 'f On his part the 2 nd appellant wondered in his defence as to the reason for his arrest by the police since the 1st appellant unreasonably implicated him with the allegations. He_ complained that the police officers there- usually effect unnecessary arrests in order to get money. Lastly, that, he was not found in possession of any stolen property. 3 In its judgme~t the trial court found that the offence of Burglary was· proved beyond· re~son·able doubt against both appellants since this offence cannot be committed by one person.·_ However, the offence of Stealing was struck out on account of wrongly preferred as the same had been incorporated in the offence of Burglary. Also, the offence of Receiving Stolen pr Unlawfully Obtained Property against the 1 st appellant was found not to have been proved by the prosecution. -. ' The appellants were thus convicted and sentenced to ten (TO) years imprisonment each. The sentence was ordered to run concurrently with another ten (10) years term of sentence meted out against· the appellants in another Criminal Case No. 12 of 2010 of the same court. . Having" been dissatisfied with the trial court's decision the ' appellants filed this appeal. In their joint Memorandum of Appeal . the appellants raised about eight grounds of appeal which raise six essential grounds of appeal as follows; 1. That, the alleged stolen property was not sufficiently identified by the complaint.

2. That, the 1st appellant's house was illegally searched as there was no any search warrant. 4 . .! I st 3. That, the 1 appellant's confession contravened section 53 ( c} (i) (ii) of the Criminal Procedure Act, Cap. 20 Revised Edition 20.02. nd 4. That, the 2 appellant was illegally convicted on the confession of co-accused contrary to section 33 (2) of Tanzania Ev.idence Act, Cap. 6 Revised Edition 2002.

5. That, the prosecution case was not proved beyond reasonable doubt.

6. That, the defence evidence was not considered by tAe trial court. During the hearing of the appeal at first the two appellants shortly implored the court to considerer their grounc.;1~ of appeal and allow the same. In -reply to this appeal Ms. Mbunda learned State Attorney did not support the 2 nd appellant's .conviction since he was convicted solely on the 1st appellant's evidence that he was his accomplice. That, no any corroborative evidence was " the 2 nd appellant as required under section 33 (2) brought against . ' of the Evide~ce Act. As for the 1st appellant Ms Mbunda contended that the charge against him had been proved beyond reasonable doubt '~ since he admitted his guilty. That, the 1st appellant first admitted the allegations before the local area leader and secondly in his Caution Statement before the police which he did not object when 5 I - - - - - - · -·-- i i the same was tendered in court. And further, the stolen p~operty was found in his house which corroborated his confession. However, Ms. Mbunda submitted that the tri.al court erred to have held that the offence of Stealing was incorporated in the offence of Burglary since these are two distinct offences and;thu:5 t the 1s appellant ought to have been convicted separately in that respect. In his further reply to the foregoing the 1 st appellant charged that he never confessed these allegations an·d

·that the stolen items were ·not found in his home as he does not own a -house because he lives with -his· parents. It was the 1st appeila·n,t's further submission that the trial court erred to have ordered the sentence to , run concurrently with that in Criminal Case No. 12/2010 and. at a latter stage brought another commitment 'l warrant to separate the two terms of .sentences. He said this order prejudiced them. This contention was also supported by the 2 nd appellant and also the learned State Attorney who was given leave by the court to respond. Ms. Mbunda prayed the court to rectify th is error .. 6 ------------·----- ----'------~----- ... Now, the appellants' grounds of appeal can be answered in their chronological order as follows: - In the first gr-ound of appeal which the respondent's counsel did not address, this court is of· the opinion that the stolen property exhibit PEl, a television set make Phillips· was sufficiently identified by the complainant PW1. The evidence by -. PW 1 shows th_9t when she got to the police she was asked to describe her stolen television and did so as she said it 'had a scratch mark. The description marched the one the police had in their custody. Hence the .matter was taken to court where PWl described her property in detail before the same wa-s adm·itted as evidence. This procedure was correct and the trial cotH~t,did not err. Thus this

ground of appeal is non-meritqrious and it is rejected. As for the second ground of appeal which also was not responded to by the le9rned State Attorney, the court finds the same baseless. This is so because the police had gone to investigate the matter as they had been informed and fortunately the information proved to be true. A search. was thus conducted where a record of search was filled and dully signed by witnesses including the local area leader, the 1st appellant and the house's 7 .,J , I occupier, PW3. No any injustice had been committed in' _that respect._ This ground of appeal is also' rejected. In the third ground of appeal which the respondent's counsel did no"t address, the court, does not agree that section 53 (i) (ii) of the Criminal Procedure Act had been violated. This •is so because the 1 st appellant indicated in his caution statement that ... ' he was ready to be interrogated in his own presence. He did not indicate that he wished his advocate, relative or friend to ~itness the fnterrogation. After all, if the 1st appellant had any reservation about the caution statement or interrogation he should have raised the same during the trial when- the court afforded him opportunity to say anything in that respect. The trial court asked the 1 st appellant twice if the statement was his and he replied that it was really his own statement. Why the objection at this

appellate stage? The answer t9_ this question is . '.t • that this is) an afterthought. This ground of appeal · is also rejected. As for the fourth ground of appeal this court agrees with both parties that the 2 nd appellant was convicted solely on the co-accused's evidence contrary to section 33 (2)\ of the Evidence Act, (supra). There was no any corroborative evidence against 8 nd the 2 appellant as· per the requirement of the cited law, (see - also PASCAL KITIGWA VR [1994] T.L.R. 65) .. st After all, the 1 appellant denied the ,charge and his evidence in court did not say that he committed the offence and nd . the 2 appellant was his accomplice. If anything it is the 1st appellant's confession that the court could have relied upon which .... .., q/f'), st unfortunately Glid not say that the 1 appellant committed the alleged burglary and stealing and the 2 nd appellant was his ·accomplice. The statement by the 1st appellant is to the effect that the 2 nd appellant had pawned the two television sets for Tshs 80,000/= ~rom him which he was waiting to be:refunded before he was arrested. If any, the 2 nd appellant ought t·o have been convicted in that line. This ground of appeal is allowed . • As for Jhe fifth ground of appeal that the prosecution case was not proved against the appellants oeyond reasonable doubt, I have already herein above decided the matter in respect of the 2

nd appellant. As for the 1st appellant; this court is of a different opinion from the trial court and the learned State Attorney as far · as his conviction is concerned. · The following answers my contention: 9 There is no any .evidence by the prosecution . which is to the st effect that the 1 appellant was found. breaking_ the complaint's house at night and stealing the said property.· The prosecution witnesses testifi~d that the 1st appellant admitted the allegation of breaking at night and stealing but there is no any proof-to that ·effect. d st One would !)ave expected that, if at all the 1 appellant had admitted the allegations he must have explained how the breaking and stealing had been committed in his Caution Statement (Exhibit ·PE3). To the contrary the 1st appellant's , --.➔-{~-~-~-~-,.·o;:,-~_;·~~,, ~ .• :·~~-.-- >_,._ ... ··'-:<·· ..: • -. ·"statement ·shows that the stolen property was brought to him by the 2 nd appellant as a pawn (rehani) for Tsh. 80,000/= which _he gave him. This evidence was far from proving the offence of burglary or stealing. Because the said property ( exhibit PE2) was ~ . proved to t,e a stolen property which was found in possession of cl the 1st appellant more than three week:; later after the same had been stolen, a doctrine of recent possession could not have been - applied as a long time had passed where such_ property could have

changed hands from the burglar and thief to the 1st . appellant. Therefore, the 1 st appellant ought to have been convicted of the offence of Receiving Stolen or Unlawfully Obtained Property 10 .... contrary to section 311 of the Penal Code. He is hereby convicted as such. Thus, the fifth ground of appeal succeeds to that extent. In the last ground of appeal the appellants complain • that their defence evidence was not considered by the trial coy rt. ,Again, this complaint was not addressed by the learned . 9 State Attorney. I have gone through the trial court's judgment i • and found that it is true that the defence evidence was not c6nsidered . especially that of the 2 nd appellant who complained that he was unreasonably arraigned before the court for being mentioned by his co-accused. This fact was not considered by the trial. court. It amounted to a denial of fair hearing which is a constitutional right enshrined also in our United Republic of Tanzania Constitution (Article 13 (6) (a) it is fortunate that the .. " 2 nd appellant's appeal has succeeded otherwise this omission "- , " ·, was a fat~I one which vitiated the decision in his· respect. As . for the 1st appellant, his defence had no substantive issue for consideration though the same as a matter of right ought to have been considered; nonetheless, the omission did not prejudice his case. This ground of appeal is

answered in the affirmative. 11 ... - . - --+- The other issue that was not raised in the grounds of appeal but both parties had an opportuntty to canvass it during the hearing of the appeal . is the trial Magistrate's order that the sentence in this case to run concurrently with the other sentence in Criminal Case No. 12 of 2010 of the same Court and same parties·. As rightly submitted by the lear·ned State Attorney, such order could only be legally tenable if the' two cases had been in the same case file and same charge albeit "" . . different cou~ts before the same Magistrate (see Secti'6n 168 ~ of the Criminal Procedure Act, Supra). Thus, this order was illegal and it is hereby quashed. The tdal Magistrate did not end there. As the record shows, he rectified the said error suo mottu when he cancelled the same thus separating the sentences at a latter stage. This rectificatiCAn could only be done by a higher court as I have herein ab1ve done. Thus, this order is quashed and set aside. Finally, I agree with the learned State Attorney that it was an error on the part of the trial Magistrate to have ruled that the offence of Stealing was wrongly prefe~red separately since the same is incorporated in the offence of Burglary. These are two distinct offences which should be preferred differently. The offence of Burglary only explains the act of illegal breaking a 12 dwelling house

at night and comm_itting an offender therein. It does not specify or mention any offence which may have been ;! committed after the breaking in. If a breaking is committed the offence can commit any offence not necessarily stealing. Thus, the offence committed after the breaking should be preferreq separately as it was in this case. The trial Court's order thus to . consolidate the two offences is hereby quashed. Also, cdhvittion of the 1 st appellant in relation to the off~nce of ' Burglary is quashed and sentence set aside. Consequently, the 1st appellant has been convicted of the offence of Receiving Stolen or Unlawfully Obtained contrary to section 311 of the Penal Code which carry a maximum of ten years imprisonment. The appellant being . very young is sentenced to the time already served since his conviction '1 before the, trial court on 12/8/2010. . .., Therefore, the 1st appellant's appeal has succeedeq to the extent explained above whereas the 2 nd appellant's appeal is entirely allowed. His conviction quashed and sentence set aside. 13 Thus,. ·th~ appellants are ordered to be set at liberty unless otherwise lawfully held. It is so ordered. Court: Rights qf Appeal fully explained. (M.A.·

JUDGE 13/6/2012 DELIVERED AT DODOMA. 13/6/2012. Appellants: "All Present. ii • i For Respondent: Mr. Kyando State Attorney. C/c: Miss Komba. 14