brown stivin sanga vs republic 2024 tzhc 255 16 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IR1NGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 38262 OF 2023 (Original Criminal Case No. 5/2023 o f the District Court ofMufindi at Mafinga before Hon. S.E Kyungu, RM) BROWN STIVIN @ SANGA................ .......... ................ APPELLANT VERSUS REPUBLIC ............. ..................... ......... RESPONDENT JUDGMENT 02* *S 18h February, 2024 I.C. MUGETA, J: The appellant was convicted of reckless and negligent acts contrary to section 233 (c) and 35 of the Pena! Code [Cap. 16 R.E 2022]. The particulars of the offence reads: 1 1 Brown Stivin @ Sanga, on the 28h day o f October, 2022 at Ilala area Nyoioio village Nyololo ward, Mlangall Division within Mufindi District and Iringa Region, unlawfully omit (sic) to take precaution against any probable danger from fire he set at his shamba an act which led 15.3 acres with pinner(sic) trees to be burnt by the said fire Z These particulars have attracted the complaint in the first ground of appeal that the charge was defective. After hearing this appeal, on 2/2/2024, I pronounced an order quashing the conviction and setting aside the sentence. I ordered Page 1 of 7 immediate release of the appellant from prison and reserved my reasons. This judgment conta ins the reason s. The learned trial Resident Magistrate was satisfied that the appellant started the fire at his farm which escaped and burnt other persons' tree farms including 15.3 acres of pine trees property of Morice Lazaro Chaula (PWl). She relied on the evidence of Daniel Vahaye (PW3) to reach that conclusion as the person who saw the appellant starting the fire. At page 4 of the judgment she stated: "... accused was the one who started the fire was proved by Daniel Vahaye (PW3) who is among victims o f the said fire. On materiaI day, the witness (PW3) saw the accused cleaning his farm by making fire lines around his farm by using fire, eventually the accused failed to control the fire as a result fire spread out". The appellant has filed 4 grounds of appeal. One of them (ground 4) is that there is no direct evidence on record that the appellant started the fire. He is represented by Maurice Mwamwenda, learned advocate who submitted that according to the proceedings, none of the prosecution witnesses saw the appellant starting the fire. Herbert Ishengoma, learned State Attorney, conceded that the learned trial magistrate misdirected herself to find that PW3 saw the appellant starting the fire. He, however, hastened to submit that the appellant Page 2 of 7 confessed at a meeting at the village office on 7/11/2022 that he started the fire. This evidence of confession, he submitted, is sufficient to sustain the conviction. He relied on Chamuriho Kirenge @ Chamuriho Julias v. Republic, Crimnal Appeal No, 597/2017, Court of Appeal - Mwanza (unreported) at page 21 where it was stated: "It is settled that oral confession o f guilty made by a suspect before or in the presence o f reliable witnesses, be they civilian or not, may be sufficient by itself to ground conviction against the suspect", I agree with both counsel that none of the prosecution witnesses testified to have seen the appellant starting the fire. The said PW3 refered to by the trial magistrate did not say so in his evidence in chief. His evidence closer to that fact reads: "Brown Sanga did admit to other villagers to have caused the fire. Brown Sanga admitted after there was evidence which proved that he was the one responsible On cross examination he testified: "One person saw you starting the fire and also you came with your aunt and admitted to have caused die fire ". Page 3 of 7 I hold that from his evidence, PW3 did not testify that he the appellant starting the fire. The learned trial magistrate just misapprehended the evidence. On confessing at the meeting held on 7/11/2022 at the village office, I find that no true confession was made by the appellant. Herbert Ishengoma submitted that Tabea Mwakalinga (PW4) and Subira A. Chaula (PW5) testified that the appellant confessed at that meeting and they ought to be believed as they are independent witnesses. Are these witnesses reliable? PW5 is caretaker of the complainant's (PW1) farm which was burnt. Therefore, she has interests to save. PW4 is the Ward Education Coordinator. She is, hence, an independent witness. Her evidence can be acted upon if held to be credible. Four prosecution witnesses attended the said meeting. These are Morice L. Chaula (PW1) (the victim of the fire), Ernest James Manga (PW2), Tabea Mwakalinga (PW4) and Subira Chaula (PW5). PW1, PW4 and PW5 said the appellant confessed to have started the fire. In my view, PW1 and PWS's evidence cannot be relied upon due to their interest in the matter. On his part, PW2 is the village Chairman. At page 13 of the typed proceedings he testified that after the incident, Daniel Vahaye (PW3) told him that the fire was started by Brown Sanga. This Page 4 of 7 was on 28/10/2022. The said suspect was summoned at the office on 29/10/2022 and denied the allegation. At page 14 he testified that on 7/11/2022 he convened another meeting. This is the meeting the said prosecution witnesses attend. His evidence on what the appellant said is as follows: "... Morice Chau!a told us that his people has investigated, they discovered Brown Sanga was responsible- Then Brown Sanga was asked and talked to his family. Then Faines Sasamala who was the Brown Sanga's aunt asked to be punished to be given a chance to dean the farm and plant trees" The chairman 'who, presumably, also chaired the relevant meeting did not testified about any confession from the appellant in both the 29/10/2022 and 7/11/2022 meetings. The evidence of PW1 and PW5 who have interest in the matter could have been corroborated by PW4 as an independent witness but the evidence, in my view, ought to be approached with circumspection considering that the chairman did not hear any confession from the appellant. Further, if the appellant denied the allegation on 29/10/2022, any confession made on 7/11/2022 cannot be said to have been freely made. In the same vein, the appellant's aunt volunteering to be punished on behalf of the Page 5 of 7 appellant cannot be regarded as appellant's confession. The fourth ground has merits. It is allowed. As I have stated, hereinabove, the first ground of appeal is that the charge was defective while the second ground is that after the appellant gave his evidence the trial court did not comply with section 210(3) of the Criminal Procedure Act. The complaint in the 3rd ground is that the trial court delivered the judgment in chamber instead of open court as required by section 311(1) of the Criminal Procedure Act. All these complaints are on procedural aspects. Since the offence centres on starting the fire and in the 4th ground I have held that there is no evidence that the appellant did it, discussing the charge's defects in form would be for academic purposes. The same applies to the alleged procedural violation of section 210(3) and 311(1) of the Criminal Procedure Act. On that account, I shall not deal with those complaints. For completeness, I shall deal with the sentence imposed even if no ground of appeal challenges its legality. Page 7 of the judgment shows that the appellant was sentenced to four years imprisonment under section 35 of the Penal Code. The learned trial magistrate rightly resorted to section 35 because the charged offence section does not prescribe sentence. Section 35 of the Penal Code provide: Page 6 of 7 "When in this Code no punishment is expressly provided for any offence, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both". No doubt the learned trial magistrate exceeded not only the lawful punishment provided by the law but also her sentencing powers under section 170(2)(a)(ii) of the Criminal Procedure Act [Cap. 20 R.E 2022]. The sentence of four years was, therefore, unlawful. In the event, I allow the appeal. The foregoing are the reasons for which I quashed the conviction, set aside the sentence and ordered the release of the appellant immediately after hearing the appeal. 16/ 2/2024 Court: Judgment delivered in open court in the presence of Baton Mayage and Majid Matitu, learned State Attorneys, Maurice Mwamwenda, learned advocate for the appellant and the appellant in person. Sgd: I.C. MUGETA JUDGE 16/ 2/2024 Page 7 of 7