CRIMINAL APPEAL NOATHUMANI SAID CHAMPUNGA NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 73 OF 2023 (Originating from Criminal Tandahimba District Court at Tandahimba in Criminal Case No 76 of 2022) ATHUMANI SAID CHAMPUNGA @TETE APPELLANT VERSUS THE REPUBLIC ...................... ........ ........ ......... RESPONDENT JUDGMENT Date oflast Order: November2023 : Date ofJudgment: 2SP November 2023 LALTAIKA, J, The appellant herein ATHUMANI SAID CHAMPUNGA @TETE and 4 others not a part of this appeal were arraigned in the District Court of Tandahimba at Tandahimba charged with four counts of: 1. Burglary contrary to section 294(1) (a)(2) of the Penal Code Cap 16 RE 2022. 2. Stealing contrary to section 258 and 265 of the Penal Code (supra). 3. Receiving stollen property contrary to section 311 (only for the appellant) Page 1 of 12 and 4. Receiving stollen property contrary to section 311 for the appellant and 2 others. The story of the prosecution was that, on 5/5/2022 in the night hours, at Matogoro Village, Tandahimba District, in the Region of Mtwara, the appellant and another did unlawfully break into the house ofone Hamis s/o Mussa Matala with intent to commit an offence. On the same day and place, the appellant and others, after breaking the said house, stole therein a TV set Make Phillips size 32 inches valued at TZS 370,000/= a bicycle valued at TZS 160,000/= and a mattress make Quality Foam Dodoma valued at TZS 350,000/= making the value in total 880,000/= property of the said Hamis Mussa Matala. When the charge was read over and explained to the appellant, he denied wrongdoing. This necessitated the conducting of a full trial. Having been convinced that the case had been proved beyond reasonable doubt, the appellant was convicted as charged and sentenced to 5 years imprisonment for the first and second counts each because he was a habitual offender who was threatening peace in the society. The sentences were ordered to run concurrently. Page 2 of 12 Dissatisfied, the appellant has appealed to this Court by way of a Petition of Appeal containing five (5) grounds. In spite of the grammatical and typographical errors, I take the liberty to reproduce them, for record purposes. 1. The trial Court erred'in jaw and fact by convicting the Appellants, while the Doctrine of recent possession was partially (sic!) applied. Z The trial Court erred in both Jaw and fact by convicting the Appellant while prosecution failed to call the materia! witness. 3. The trial Court erred in both law and fact to convictingAppellants basing on the evidence produced by the prosecution which contradicted themselves at large. jri 4. The trial Court erred in both law and fact by convicting the Appellants while the prosecution failed to prove the ownership of the property alleged to be stolen. 5, The trial Court eped in both law fact by convicting the:Appellants while the prosecution side did notprove the offence beyond reasonable doubt as per section 3(2) ofTEARE2022. [The Evidence Act Cap 6 R.E 2022] When the appeal was called on for hearing bn the 8th of November 2023, the appellant appeared in person unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. The appellant indicated that he had nothing to add to the petition but reserved his right to a rejoinder if the need arose. This Page 3 of 12 paved the way for the learned State Attorney's rival submission as summarized below. Mr. Kondoro stated that he had grouped the grounds of appeal into three categories. He explained that the first group pertained to the first ground, the second group related to the second ground, and the third group encompassed the third, fourth, and fifth grounds. Mr. Kondoro emphasized that the primary complaint revolved around the proof at the required standard. ;, ■ Regarding the first group, he pointed out that the complaint centred on the application of the doctrine of recent possession. He asserted that they were confident that the doctrine had been correctly applied. Referring to the evidence of PW2, PW3, and'PWl, Mr. Kondoro argued that it was established that the appellant was found with a mattress and a TV set. He referred to pages 9 and 10 of the trial court's proceedings, where PW2 stated that, after interrogation, the appellant claimed that the mattress and the TV belonged to a person named Mwalimu, who was the victim in the case. Additionally, Mr. Kondoro argued emphatically, PW3, the victim, was summoned to the police, identified the items, and produced receipts proving Page 4 of 12 ownership. Mr. Kondoro cited the famous case of WAZIRI AMANI V. REPUBLIC (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980), emphasizing the importance of identification in determining the alleged stolen property. Exhibiting mastery of the case file and thorough preparation before submission, Mr. Kondoro cited the case of ALLY BAKARJ & PILI BAKARI v. REPUBLIC [1992] TLR15, outlining the elements ofthe offense of recent possession. He also referred to the case of SELEMANI MKUBWA & Another V. REPUBLIC Crim Appeal No .94 of 2007 CAT, which specified the ingredients to be proved for the offense of recent possession. He concluded this part of his.argument by praying for the dismissal of the ground of appeal. Moving on to the second ground, Mr. Kondoro addressed the complaint about the failure to call a material witness. He argued that this ground was equally unmerited, stating that it was the prosecution's prerogative to decide which witnesses to summon, as provided for under section 143 of the Evidence Act Cap 6 RE 2022. He pointed out that the omission to call a material witness was not fatal if those who were called were able to prove Page s of 12 the case. To bolster his argument, he referred to the case of AZIZ ABDALLAH v. REPUBLIC [1991] TLR 71 and prayed for the dismissal of this ground. Finally, on the last group comprising the third, fourth, and fifth grounds, Mr. Kondoro addressed the complaint about the failure to prove the case beyond a reasonable doubt. He asserted that the prosecution was duty-bound to prove the case at the required standard, citing section 3(2) of Cap 6 RE 2022. Disagreeing with the appellant, Mr. Kondoro argued that the prosecution had presented three witnesses and two exhibits, namely Pl (the stolen properties) and a Certificate of seizure, indicating the appellant's ’■'■K ■' confession. He referred to page 4 of the trial court's proceedings, where DW1 accepted working with four others in executing the offense. He claimed that the evidence was sufficient to prove the case at the required standard and invoked section 8 of Cap 6, asserting that the res gestae principle was established. Mr. Kondoro concluded by praying for the dismissal of the grounds and the entire appeal. Page 6 of 12 In his rejoinder submission, the Appellant expressed his hope that his grounds would be accepted, asserting that they were well articulated. He stated that he was a resident of Tandahimba, had not attended school, and had previously worked as a farmer and a mason. The Appellant mentioned that all his co-accused had been released by the magistrate, but he was the only one incarcerated based on the allegation of possessing stolen property. He informed the magistrate of his defence, but it was not understood. The Appellant recounted that he had been arraigned in court, sentenced to 10 years imprisonment, and subsequently acquitted on appeal in 2014. He had originally been charged with burglary and had served three years in prison. Ten years later, a new incident occurred in Tandahimba, and he was the first to be suspected even though he had not committed the said str offence. " The Appellant suggested that perhaps the magistrate remembered his previous imprisonment. He pointed out that the police officer involved was the. same one who had arrested him in 2013 and had been stationed in Tandahimba for 16 years, being married to his niece. Page 7 of 12 The Appellant revealed ongoing conflicts with the police officer, (name withheld) stating that he (the police officer) had cut his hand in a fight at a Pombe Shop. He also mentioned that a colleague had been beaten to death for refusing to implicate him, as there was an attempt to establish; his involvement in a gang group. Despite being threatened, the magistrate allegedly did not address the issue. In a sincere but bitter tone, the Appellant expressed bitterness, attributing it to the police officer labelling him. as a habitual offender. He claimed to have attempted to escape from this situation without success, emphasizing that his lack of formal education might have contributed to his inability to defend himself. I have dispassionately considered the grounds of appeal and the rival submissions. I have also examined the lower court records especially the reasons advanced by the learned Magistrate in acquitting the rest of the accused persons. To kick start my analysis, I am inclined to state dearly that for the doctrine of recent possession to be fully applicable, certain elements must be met: the possession must be recent, the items must be stolen, and the accused must fail to provide a satisfactory explanation for Page 8 of 12 possession. In my capacity as the first appellate court, empowered to re­ evaluate the entire evidence, I should thoroughly review the evidence to determine if these elements were fully and correctly established. The respondent relied on the case of WAZIRIAMANIV. REPUBLIC (Supra) which emphasized the importance of identification in determining the stolen property. However, the question arises whether the identification of the stolen items was sufficient and beyond doubt. The appellant on his part, argued that the trial court did not conclusively prove that the items found in his possession were indeed stolen or that the doctrine was not appropriately applied, leading to a miscarriage of justice. I find merit in this argument. <...V" I should add herealbeit in passing, that it appears the learned Magistrate, in acquitting the co-accused and convicting the appellant, not only misapplied the doctrine of recent possession but also, in my opinion, constructed his own facts to fit his own findings. On failure to summon a material witness, the respondent cited Aziz Abdallah v. Republic (supra) to argue that the prosecution has the prerogative to decide which witnesses to call and that the omission to call a Page 9 of 12 material witness is not fatal if the evidence of those called is sufficient. However, in this case, the appellant argues that the failure to call a specific material witness to prove ownership of the alleged stollen goods weakened the prosecution's case. In AZIZ ABDALLAH (supra) the court may not have considered the omission fatal, but each case must be judged'pn its own facts. If the missing witness's testimony was crucial to clarifying the ..... V*- circumstances surrounding the possession of the alleged stolen property, the omission could indeed be fatal in this case, raising doubts about the integrity of the prosecution's evidence. 'j; As alluded to, the appellant's claim that his previous conviction influenced the trial court's decision is a serious allegation. If the trial court allowed the appellant's criminal history to influence its judgment in this case, it may have failed to provide a fair and impartial trial. I took keen interest in observing the demeanour of the Appellant while addressing me on this matter. He appeared honest but bitter. I think nobody should be labelled a permanent sinner. The appellant's suggestion that the police officer involved had a personal vendetta against him further complicates the case. The trial court Page 10 of 12 should have considered whether these factors unfairly biased the proceedings. Court has a duty to ensure that justice is administered impartially, without being swayed by a defendants past or by extraneous factors such as personal conflicts with law enforcement officers. Premised on the above, I allow the appeal. I hereby quash the conviction, set aside the sentence and order that the appellant ATHUMANI SAID CHAMPUNGA @TETE be released from prison forthwith unless he is being held for any other lawful purpose. It is so ordered. E.I. LA LTAl KA JUDGE 29.11.2023 Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney, and the appellant who has appeared in person, unrepresented. Page 11 of 12 E.I. LALTAIKA JUDGE 29.11.2023 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 29.11.2023 Page 12 of 12