Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL APPEAL NO. 000017445 OF 2024 BARAKA ZABRON .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J 10 & 13/02/2025 In a charge sheet, the appellant was charged with three offences. The first one is unlawful possession of firearm contrary to section 20 (1) (b) and (2) of the Firearms and Ammunition Control Act No. 2 of 2015 read together with paragraph 31 of the 1st Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 20 R.E. 2022. The firearm allegedly is sub-machine gun namely AKM with serial number “TV- 28101996” and one muzzleloader without a licence the appellant possessed the same. The 2nd offence is unlawful possession of ammunition contrary to section 21 (b) and 60 (1) of the Firearm and Ammunition Control Act, Act No. 2 of 2015 read together with Paragraph 31 of the 1st Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 20 R.E. 2022. On this count, it was alleged that the appellant was in possession of one magazine of a submachine gun namely AKM with serial number TV-28101996, twenty-one bullets of a sub-machine gun namely AKM with serial number TV-28101996 and three bullets of muzzleloader without having a licence. Lastly, the appellant was charged with a 3rd count of unlawful possession of weapon in a game reserve contrary to section 17 (1) and (2) of the Wildlife Conservation Act, Cap. 283 R.E. 2022 read together with Paragraph 14 of the 1st Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 20 R.E. 2022. It was alleged that the appellant was in possession of the firearm sub-machine gun namely AKM with serial number “TV-28101996”, one muzzleloader, too was in possession of one magazine of a submachine gun namely AKM with serial number TV-28101996, twenty-one bullets of a sub-machine gun namely AKM with serial number TV-28101996 and three bullets of muzzleloader without having a licence in a game reserve. Page. 1 Hon... JOHN NKWABI In the trial court, the appellant pleaded not guilty. The trial ensued which ended in conviction and sentences over all three counts. The trial court heavily relied on the caution statement which according to him led to discovery. He relied on the decision of the Court of Appeal in Tumain Daudi Ikera v. Republic, Criminal Appeal No. 158 of 2009 where it was held that: “Confessions that are otherwise inadmissible are allowed to be given in evidence under section 31 of the Evidence Act, and only if, they lead to discovery of material objects connected with the crime, the rationale being that, such discovery supply a guarantee of the truth of that portion of the confession which led to it.” The appellant was sentenced to an omnibus sentence of 20 years imprisonment for each count and the sentences were ordered to run concurrently. The appellant was aggrieved with both convictions and sentences. He appeals to this Court praying the appeal be allowed, the convictions be quashed while the sentences be set aside. He has three grounds of appeal which are: 1. That the trial magistrate erred in facts and law by wrongly acting on the caution statement that was illegally obtained. 2. That the trial magistrate erred in facts and law as the prosecution side did not prove his case beyond reasonable doubt as there was a contradiction of the prosecution witness. 3. That the trial magistrate erred in law and facts by basing his judgment and conviction on the weakness of the prosecution side and not the strength of defence side. When the appeal was called on for hearing, the appellant appeared in person, fending for himself. The respondent was duly represented by Mr. Fortunatus Maricha, learned State Attorney. When the appellant started addressing the Court, on the 1st ground of appeal, he told the Court that he complains about the recording of the caution statement. He said he was beaten up and other words, in the cautio statement, were not given by him. He questioned why he was not sent to the Justice of Peace to repeat the confession. On his side, Mr. Maricha, who had initially supported the appeal explained his stance on this ground of appeal that regarding the caution statement, the evidence of PW4 at page 27 of the proceedings says the appellant was arrested on 09/06/2023 and PW6 the caution statement was recorded on 13/06/2023. There is no explanation for the delay of recording the caution statement. It is also stated that on 12/06/2023 is when they went for seizure of the firearms and ammunitions. Mr. Maricha opined that there is uncertainty as to when the appellant confessed and sending the police to seize the firearms. He added that on inquiry, the recorder stated that he was alone with the accused person when recording, but PW4 said at page 25 “we interrogated him and informed us he had weapons in Moyowosi game reserve.” The discovery is questionable, underlined Mr. Maricha. Further, Mr. Maricha held the view that PW.1 did not also inform but did not say that person had gone to arrest a person who was suspected with what offence. Page. 2 Hon... JOHN NKWABI I have considered the arguments of both parties and I accept what they say. I add that the witness (PW4) who tendered the caution statement narrated the contents of the caution statement prior to it being cleared for admission and indeed admitted. That is contrary to the law. That contravention of the law has the effect of expunging the caution statement from the record. I am guided by the decision of the Court of Appeal in Paschal Ndalahwa v. Republic, Criminal Appeal No. 262 of 2020, CAT where it was held that: “Next on our list is the appellant’s confession statement (exhibit P2) which was admitted in evidence after its contents were narrated in court by PW7, the recording police officer, contrary to the established norm. Upon a careful reading of the applicable law, we are left with no doubt that it was quite wrong for PW7 to narrate the contents of the appellant cautioned statement to the trial court before it had been cleared for admission. See Robson Mwanjisi and Three Others v. The Republic [2003] T.L.R. 218, Ntobangi Kelya and Three Others v. Republic, Criminal Appeal No. 256 of 2017 and Omari Said @ Mami and Another v. Republic, Criminal Appeal No. 99/01 of 2014 (both unreported).” The caution statement indicates that the appellant was recorded on 13/06/2023 while he was arrested on 09/06/2023. So, it was recorded after the expiry of 4 hours required by the law without any extension sought and obtained. The appellant criticized PW.4 in cross-examination about saying for long time in police lock-up. In the inquiry as to the admissibility of the caution statement, the appellant claimed to have been beaten up severely while being accused of possessing guns. He signed the caution statement (exhibit P.7) after being afraid of being killed. This caution statement would have required corroboration, which was wanting. In Kulwa Bunzari @ Bodo v. Republic, Criminal Appeal No. 583 of 2021, CAT which quoted with approval the decision in Morris Agunda & 2 Others v. Republic, Criminal Appeal No. 100 of 1995 (unreported) where it was observed that: “There is no explanation or apparent reason for the delay, in our view, an alleged confession made after such considerable and unexplained lapse of time is not consistent with the view that the confession was made voluntary.” See also Ndorosi Kudekei v. Republic, Criminal Appeal No. 318 of 2016, CAT, (unreported): “The question we ask ourselves on the glaring contradictions above was, as to why there was a change of mind by PW4 and PW5 in their testimonies before the court, from the statements which they had earlier on made at the Police Station? For whatever reasons that might have occasioned it, the situation could not fail to let one raise eyebrows and be tempted to think that there was something sinister. Such situation did give credence to the doubt raised by Mr. Materu, in regard to the cautioned statement of the appellant that, the last sentence which reads “nipo tayari kwenda kuonyesha mwili huo na simu”, was most probably added at a later time for a purpose”. I too accept that since the caution statement is allegedly recorded on 13/06/2023, it cannot be said that it led to discovery which discovery was done on 12/06/2023 prior to recording the caution statement. As such, the trial magistrate wrongly relied on the caution statement when it convicted the appellant. The caution statement is expunged from the record. Page. 3 Hon... JOHN NKWABI On the 2nd ground of appeal, the appellant lamented that there were contradictions between the testimonies of the witnesses. The appellant highlighted that the evidence of the prosecution was fabricated. He was of the view that, had the trial court considered the contradictions it would have not convicted him based on the evidence. In response, Mr. Maricha conceded the ground of appeal. He recounted that the two firearms were seized, one AK 47 and a muzzleloader (gobore). According to exhibit P.4, there was only AK 47 firearm (exhibit P1) and Home-made gun (gobore), the muzzleloader was admitted as exhibit P.3) but to the ballistic expert only one firearm was sent with ammunitions. I find favour in the stance of both parties. The oral evidence of the seizing officers is contradicted by the oral testimony of the ballistic expert and the ballistic examination report which only makes reference (state) about the AK 47 firearm with its ammunitions without mentioning the muzzleloader firearm with its three rounds of ammunition. All these signify variance between the charge and evidence which must be resolved in favour of accused as stated in Vumi Liapenda Mushi v. The Republic, Criminal Appeal No. 327 of 2016, CAT (unreported) in which the conviction was quashed and sentence set aside and therein it was underscored that: “Another thing we note in the charge sheet at page 1 of the record is that, it alleges that on different dates in the month of December 2013, February and March 2014 the victim was sodomized by the appellant, however, in his evidence PW3 mentioned the incident to have happened only in the year 2013. It is clear that there is variance in the charge and the evidence of PW3 which should be resolved in favour of the appellant.” The same position of the law was held in Frank Charles @ Sumbuka v. Republic, Criminal Appeal No. 678 of 2020, CAT which quoted with approval the decision of Said Musa Soweni v. Republic, Criminal Appeal No. 93 of 2020, CAT where it was held that: “The law is settled that, a charge which is in material conflict with the witnesses’ testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard.” See also Abeid Masikiti v. Republic, Criminal Appeal No. 24 of 2015, (unreported) where it was stated that: “If this (amendment of charge) is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal.” Secondly, Mr. Maricha elaborated that the chain of custody too was broken. It was his contention that PW.2 at page 23 sent the firearm to PW3. PW3 took the firearms from Makele to Kibondo police station to a police officer called Alinda. Alinda did not come to testify. The evidence does not show how it moved from Alinda to the ballistic office, but PW.5 says he was handed the gun by Sgnt. Alex while even sgnt. Alex was not called to testify. It is clear on the evidence that is on record that while PW.7 Alinda claims, as opposed to the submission of Mr. Maricha, to have received two guns and their ammunitions from Cpl. Juma, whereas he handed the same to PW.8 D/sgnt. Alex who finally handed the same over to Afidhi, Afidhi did not talk about the muzzleloader and its ammunitions instead talked only about the AK 47 firearm with its ammunitions and spent cartridges, which he in Page. 4 Hon... JOHN NKWABI turn handed back to Alex together with the ballistic report. PW.5 Afidhi, the ballistic expert, tendered the examination report (exhibit P.6) which however did not include the muzzleloader and its rounds of ammunition. I am aware that the chain of custody may be broken but still the exhibit may be used to ground conviction. That is the stand view held in Chacha Jeremiah Murimi & 3 Others v. The Republic, Criminal Appeal No. 551 of 2015, CAT, (unreported) and in Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015 CAT (unreported) it was stressed that: “… it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. We are certain that this cannot be the case say, where the potential evidence is not in the danger of being destroyed, or polluted, and/or in any way tampered with. Where the circumstances may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of custody may have been broken. Of course, this will depend on the prevailing circumstances in every particular case.” That position of the law can be also gleaned from other jurisdictions like in The People of the Philippines v. Susan M. Tamano & Another, G.R.N 208643, December 16, where it was held that: “However, while the procedure on the chain of custody should be perfect and unbroken, in reality, it is almost always impossible to obtain an unbroken chain. Thus, failure to strictly comply with section 21(1), Article 11 of R.A. No. 9165 does not necessarily render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. The most important factor is the preservation of the integrity and evidentiary value of the seized item.” But in this case, the exhibits (the firearms and ammunitions) which are at the center of the charge sheet cannot be said that their integrity was preserved. This is because, some are missing in the report of the ballistic expert without any explanation. I conclude that the 2nd ground of appeal is merited and succeeds. On the 3rd ground of appeal, the appellant disputed to have sent the police and game officers to show them the firearms and ammunitions. He queried why were the village leaders not involved, e.g the village chairman and the VEO. He insisted that the seizure certificate is fictitious because there is no signature of the local leaders. Mr. Maricha did not comment on the criticism levelled by the appellant on their case which implies that he concedes to it. But it is trite law that where seizure of exhibits is done without the presence of independent (local leaders) like in this case for such witness(es) to go with the police when the accused went to show, the exhibits would be treated with suspicion like what happened in the case of Chaali Kiama v. Republic [1979] L.R.T. 54 where it was decided that: “Discovery of the alleged bait money in the toilet by a police officer in the absence of a civilian called for the purpose of witnessing the search casts doubt as to whether the alleged bait money was not planted there.” Page. 5 Hon... JOHN NKWABI See also Hussein Hassan @ Antiti v. Republic, Criminal Appeal No. 541 of 2021, CAT. Truly, as lamented by the appellant in the 3rd ground of appeal, the trial court convicted the appellant on the weaknesses of his defence rather than the strong respondent’s case, that is, the respondent’s case proved beyond reasonable doubt. Apart from the above, the appellant may also validly challenge the decision of the trial court based on the fact that the charge sheet was lodged in the trial court on 28/07/2023 while the appellant was arrested on 09/06/2023. There is no explanation as to why, if the appellant had showed the police and confessed, it took so long to charge him before the court of law. It should be remembered that the investigation remained incomplete until on 10th January 2024 when the trial court was informed that investigation was complete, so the respondent cannot claim that the police remained with the appellant in their custody for completion of the investigation of the case. Why did they delay to arraign the appellant to the trial court? There is no answer from the record. In view of the above findings of this Court, the conviction and sentence of the appellant cannot be left intact. I allow the appeal. I quash the convictions and set aside the sentences. The appellant is to be released from prison unless held therein for other lawful cause(s). It is so ordered. Dated at KIGOMA this 13th of February 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 6 Hon... JOHN NKWABI