AZIZA JUMANNE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 202405022000011614 (Arising form Criminal Case No.320 of 2022 before Kahama District Court) AZIZA JUMANNE ....................................................................APPELLANT VERSUS REPUBLIC .............................................................................RESPONDENT JUDGMENT 28 May & 14thJune 2024 F.H. MAHIMBALI, J The appellant here in was arraigned before the trial Court for the offence of breaking into a building and committing an offence contrary to section 296 (a) and (b) of the Penal Code, Cap 16 RE 2019, theft contrary to section 258 (1) and 265 of the Penal Code (supra) and Possession of Goods Suspected of having been Stolen Contrary to Section 312 (b) of the Penal Code (supra). It was further alleged that the appellant on diverse dates and times between 1st June 2022 and 19th August 2022 at Shunu area within Kahama District in Shinyanga region being employee of Sekepa Security 1 Company employed to guard and keep security of the warehouses of one Deus William Mageme rented by one Sundeep Sigh Bachu did break and enter into the said warehouse and committed offence therein. Meanwhile, thereat, the appellant being an employee of Sekepa Security Company employed to guard that warehouse stole 5671.228 tons of rice worth of Tshs 4,500,000,000/= the property of Sundeep Sigh Bachu, Karanveer Singh Bachu and Francis Fernandez (complainants). However, on 19th August 2022 at Nyihogo area in Kahama district in Shinyanga region she was found in possession of 1200 kilograms of rice worth Tshs 952,213 which were suspected to be stolen. The trial Court after a full determination, found the appellant guilty with the offences charged and sentenced her to be placed under community service for a period of three years and was ordered to keep peace and be a person of good behaviour. Aggrieved by the said decision, the appellant has approached this Court armed with four grounds of appeal which all fall under the question of evidence that the prosecution failed to prove their case on the required standard and there was no tangible evidence incriminating the appellant with the offence charged. 2 During the hearing Dr. George Mwaisondola learned advocate appeared for the appellant and the republic/respondent had legal representation of Mr. Kadata learned State Attorney. Arguing on appeal Dr. Mwaisondola submitted that, the appellant is aggrieved by the verdict of the trial court vide Criminal case No. 320 of 2022. The judgment was delivered on 25th March 2023. The appeal is against both, conviction and the resulting sentence. The conviction is based on three offences: Breaking into the building, theft and possession of goods suspected to have been stolen. With the first and second grounds of appeal, Dr. Mwaisondola stated that all the three charged offences were not proved to the required standard of criminal law. With the first count, it was not disputed that the appellant was security guard at the godown in which the alleged break in was done and it was also not in dispute that the appellant was a guard duty on day times. But traversing the whole of the trial court's findings, there was no any break-in established to make one liable for the alleged offence of break in. At page 13 of the judgment of the trial court, the trial magistrate highlighted the elements of break - into the building. The trial magistrate as per his judgment, reasoned that according to the evidence in record, the said appellant was to guard the premises from morning to evening/night, it was 3 strange that despite the said guard and the said warehouse being intact from break -in, then automatically the appellant might have stolen the goods there from. However, going by record; there is no such alleged proof. Reading the testimony of PW8 (at page 28), when police had gone to the scene, they found the said ware house was intact from any break-in. Thus, so long as there is no evidence implicating the said break in as alleged, the alleged offence is not legally established, reasoned Dr. Mwaisondola. On the charge of stealing, Dr. Mwaisondola submitted that there is nothing tangible evidence established that the said stealing was done. He averred that by way of reasoning, tons 5671 is equivalent to Kg 5,671,000/=, which if were packed in bags of 100kg, was equivalent to 56,710. As the whole of this cargo was said to be in the said Warehouse, for the said cargo to be taken at once by a vehicle of 30 tons (semi trailer tracks), it needed a total of 189 vehicles to transport the whole cargo at one. Leave alone the casual labourers to assist carrying them. All the 9 witnesses by prosecution including PW2, Pw3, PW4, PW5, PW6 and PW7 stated in their evidences that for the said ware houses to be opened, there were to open a total of pad locks. And upon ordering the break in, they could find nothing in the said warehouse, and it looked unattended for a long time. PW5, when giving 4 his testimony, stated that when they opened the said warehouse, there was no any evidence suggesting the said stealing nor the alleged break in. The only evidence used by the trial court to mount conviction against the appellant was being found in possession of 12 bags of paddy/rice (see seizure certificate - exhibit P.1). Worse of the matter, the said exhibit was not read over upon it being admitted. He thus prayed that it be expunged from court record as it is legally value less. This then suggests that there is nothing tangible implicating the appellant with the said charge. According to the court record, none of the PW2, PW3, PW4 and PW5 had testified complaining the alleged stealing. The Pw6 on the other hand, who was the in charge of the whole security there, testified not to have seen anything of the alleged theft and that was just ordered by PW2 to go and report the matter at police. Dr. Mwaisondola arguing on the third count, stated that equally, there was no evidence adduced that the appellant was found in possession of the alleged cargo. Because there was no any positive identification. What was allegedly recovered from the appellant had not been positively identified as it was part of ton 5671 stolen. That amongst the recovered cargo, their bags had marks such as: SB, KB and FF (six bags, four bags and two bags respectively). That was not sufficient positive identification in law for the charge of possession to be 5 effective. That said, the third count was not proved beyond reasonable doubt. Interestingly to this, is the fact that just after giving his testimony, the appellant was handed over with the said paddy for her own uses. On the third ground of appeal Dr. Mwaisondola fortified that essentially is for the third count, that the said possession was not positively identified. He thus reiterated his earlier submission. With the fourth ground of appeal, Dr. Mwaisondola submitted that the appellant is challenging the fact that her evidence was not considered by the trail court. He finally prayed for the appeal be allowed with costs. On the side of the respondent, Mr. Kadata supported the appeal on the basis of all four grounds of appeal. He also alluded that in essence, the prosecution's case at the trial court was not established beyond the reasonable doubt standard as per law. He therefore joined hand with the appellant's counsel that the offences in the charge sheet were not established. He added that the first count, the offence of house breaking and committing an offence therein, there was no any credible evidence by the prosecution that the warehouse was broken and the alleged stealing committed. With the second offence - 6 theft/stealing, there was no such proof of theft of the whole cargo of 5671 tonnage. In normal circumstances, the appellant as she looks here in court, could not be implicated with the alleged stealing as charged just by her looking. In this case, there are many questions than answers as to the prosecution's evidence leading to the alleged conviction. Equally, on the third count of being found in unlawful possession of the alleged goods suspected to have been stolen, it was not established as required by law. For this charge to be established, there ought to have been positive identification of the alleged goods suspected to have been stolen. Positive identification of stolen properties is an important ingredient in the establishment of this offence as stated in the case of Joseph Mkumbwa and Another V, Rep, Criminal Appeal No. 94 of 2007 at page 7. In this case, PW2, PW3 and PW4 had materially failed to discharge that legal duty. What all these three had testified is on the fact that the said recovered bags of paddy cargo had some resemblances in marks with the alleged stolen cargo. There was no such recognition by colour, size or the claimed initials, how they belong to them. However, the documentary evidence to be valuable, after it has been admitted, it must be read over to the court. Thus, the certificate of seizure which was admitted as P1, warehouse renting contract (at pages 13 and 15 of the 7 typed proceedings) all were not read over. The report from Airtel, was also not read over in court. Not reading the said exhibits, it was a fatal irregularity which prejudiced the appellant from knowing its contents in connection to the charge. Thus, the resulting effect is expunging the same from the court record as stated in the case of Ahmad Salum Hassan @ Chinga V. Rep, Criminal No. 386 of 2021, CAT at DSM. When all this is done and expunged, there will be no further meaningful evidence in record to hold the appellant's conviction. Mr. Kadata also averred that, the trial court failed to consider the defence testimony. Failure to consider the defence testimony is fatal procedural irregularity. At page 35 of the typed proceedings, the DW1 stated how she was on day guard, thus there was no prosecution's evidence that the appellant was the only guard person at the said warehouse. The trial court ought to have asked how could it be possible for the appellant to be on full guard consecutively from day one to the date of the alleged stealing without being relived from her guard place. These doubts ought to have benefitted the appellant. Having heard both parties to the case, I have critically digested the evidence in record, the grounds of appeal and the submissions of the both learned counsels and in order to determine this appeal the 8 major issue for consideration is whether this appeal has been brought with sufficient cause. It has been alluded that the appellant was arraigned before the trial Court for the offences of; breaking into a building and committing an offence therein, theft and possession of properties alleged to have been stolen. Now, to gather the truth, I will deal with each particular offence visa vie the evidence established at the trial court. To the best, I find the major contention between the parties is on the burden of proof and standard of proof. In this point, it is a trite law that, prosecution bears the burden to establish and prove the offence beyond reasonable doubt. Section 3 (2)(a) of The Evidence Act provides the standard of proof in the following words: Section 3 (2) "A fact is said to be proved when (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' Likewise, section 110 of The Evidence Act, also provide in a clear manner as quoted hereunder: Section 110 (1) 9 "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person” These sections received health legal breath by our Court of Appeal in the case of Anthony Kinanila Enock Anthony Vs. R, Criminal Appeal No. 83 Of 2021 when it held: "As to the standard of proof which we shall also have the opportunity to consider in the instant case, the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt and here, one should not waste time trying to invent a new wheel as that is exactly what was stated by the House of Lords in England way back in 1935 in Wilmington Vs. DPP [1935] AC 462 from where our present general principles of criminal law and procedure emanate." In Magendo Paul & Another Vs. R, [1993] T, L.R. 219 the Court of Appeal had the opportunity of giving an interpretation on what constitutes "proof beyond reasonable doubt" in the following wording: 10 "If the evidence is so strong against a man as to leave only a remote possibility in his favour ... the case is proved beyond reasonable doubt” Now, glaring with the principles cherished herein above, I will therefore respond to contentious issues, to start with the offence of breaking into the house and committing the offence and the offence of theft. In my digest to the evidence of the case, for the first issue to be resolved positively, there ought to have been evidence that there was the said house breaking as alleged. According to the facts of the case and the evidence adduced before the trial court, it appears there is no dispute on the existence of the contractual relationship between the Deus William Mageme (land Lord) and Sundeep Singh Bachu (tenant of the warehouse) and contractual relationship existed between Sekepa Security Company Ltd to which the appellant was an employee (guard) which provided security service to the warehouse rented by the Sundeep Singh Bachu. The dispute is whether there was the said breaking into building and the alleged stealing. According to law, breaking into the building and committing an offence is an offence provided under section 296 (a) and (b) of the penal code which defines it as breaking and entering in a school house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling 11 house and occupied with it but is not part of it, or any building used as a place of worship and committing an offence therein. So as per evidence in record, was there breaking into the said building as per law? PW1, PW2, PW3, PW5 none testified on breaking into the building, instead their tale was all about the information of rice suspected to have been stolen and found to a different place apart for the godwon as stated by both learned Counsels. PW4, PW6 testified that when they got information about stealing, they went at the ware house and found that their padlock is not the same. They did not open the godown but they were informed that one of the security company guards is the one who committed the alleged stealing. I have traversed the whole evidence in record, none of the witnesses testified to have seen breaking into the building by the appellant, instead what I grasp from prosecutions’ witnesses is the availability of rice suspected to have been stolen. There is no any evidence established for that proof. Since this an offence, I had expected there to be proof from police or other investigative machinery that actually there was break in as per law. In the absence of police report or evidence in respect of the happening of the said criminal act, it can hardly be accepted that the said fact of house break in has been 12 established as per law. No police evidence, no neighbours who testified to that effect and no even a photograph describing the housebreaking. A mere mentioning that some properties there in were stolen to wit: tons of paddy is not sufficient. There ought to have been sufficient explanations, first that there was the alleged rice in the said warehouse and that how the said rice was stolen from the said warehouse. Definitely, what can be gathered from what the prosecutions’ witnesses had testified; is a mere mentioning but not offering sufficient explanations for it to be evidence. What was supposed to be established in court was evidence which means an alleged matter of fact, the truth of which if submitted to investigation, is proved or disproved; and without prejudice to the preceding generality, includes statements and admissions by accused person. In the present case, what was expected to be established by the respondent are three important things: that there was warehouse, that the appellant had a legal obligation of provision of security services to that warehouse, the warehouse had been broken. Save for the fact that the appellant had the contractual obligation of providing security services to the designated warehouse. However, the fact of house breaking and stealing have remained virgin. In Mathias Erasto Manga Vs Ms. Simon Group (T) Limited, Civil Appeal No. 43 of 2013 13 (unreported) for instance, while reversing the finding of the trial High Court, the Court held that: "The yardstick of proof in civil cases is the evidence available on record and whether it tilts the balance one way or the other. Departing from this yardstick by requiring corroboration as the trial court did is going beyond the standard of proof in civil cases. " The issue for consideration in this appeal would still be one, whether on the available evidence at the trial court, the prosecution established the case against the appellant beyond reasonable doubts. As stated above, the yard stick proof has not been met. With this finding, the offence of breaking into the house and committing the offence and that of theft were not proved. With the offence of possession of goods suspected of having been stolen, for the doctrine to apply as a basis of conviction, it must positively be proved, first that the property was found with the suspect, second, that the property is positively the property of the complainant; third that the property was recently stolen from the complainant; and lastly that the stolen thing in possession of the accused constitutes the subject of a charge against the accused. It must be the one that was stolen/obtained during the commission of the offence charged. The fact 14 that the accused does not claim to be the owner of the property does not relieve the prosecution of their obligation to prove the above elements See Ally Bakari and Pili Bakari v. R. (1992), TLR. 10 which was followed in Salehe Mwenya and 3 Others v. R. (Criminal Appeal No. 66 of 2006 and Alhaj Ayub @ Msumari & Others v. R. Criminal Appeal No. 136 of 2009 (both unreported). It was the appellant testimony that the alleged stolen rice was of herself, she bought it after had harvested cotton. Then the question cricking my mind is that how the prosecution witnesses managed to identify the stolen cargo of rice were the same with that found in possession by the appellant. PW1 alleged that after had received information he went to the scene, found the appellant in possession of the alleged cargo of rice, but the appellant told him that the said cargo is of her own. PW2 testified that he was told by someone Lemmy that he saw bags with mark “SB” after that he sent some one to satisfy the same, that person went also to the godown and found the stored rice were stolen estimated to 4005.018 metric tons. He was also informed that the accused/appellant was the one arrested while with rice kept in bags with initials “SB” at the Miling machine. PW2 being the owner of the alleged stolen rice did not see he was just informed and he did not go to the scene. Mindful that this amounts to hear say evidence which 15 is not admissible. PW3 asserted that his rice bags had “SB” initials. He was also informed that their rice was stolen and the PW2 had made follow up, he informed him that there were bags of rice which were seized, and he was informed that those initials of him were four marked “KB”. With this piece of evidence there are discrepancies of testimonies between PW2 and PW3 who both had claim of right to be owners the alleged cargo. While PW2 witnessed to have been informed that the cargo found to the appellant was marked “SB” the PW3 versed that his bags of rice were marked “KB” something not altered by PW2, similarly PW4 identified different mark to wit “FF”. PW6 identified the stolen bags of rice had their mark which is “SB”, “K”, “FF” see page 23 of the trial court’s proceedings. Exhibits P1, the seizure certificate of the alleged bags of rice provides none of any mark or initials to be found in the alleged bags found in possession of the appellant. Apart from this piece of evidence, there was no any other positive identification of the alleged stolen property which deemed to have found in possession of the appellant as correctly argued by both learned counsels when referred to the case of Joseph Mkumbwa and Another V, Rep, Criminal Appeal No. 94 of 2007. 16 However, in Said Ally Ismail Vs. R, Criminal Appeal No. 249 of 2008 (unreported), categorically the Court held that; “It is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution case will be dismantled.” See also Sylivester Stephano versus Republic, Criminal Appeal No. 527 OF 2016 It is also well versed with the principle of the law of evidence that every witness is entitled to credence and must be believed and his testimony accepted, unless there are cogent reasons for not believing the witness as per the case of Goodluck Kyando v. R [2006] T.L.R. 363. According to Mathias Bundala v. R, Criminal Appeal No. 62 of 2004 and Aloyce Maridadi v. R, Criminal Appeal No. 208 of 2016 (both unreported), good reason for not believing a witness includes where the witness gives improbable or implausible evidence or where the evidence of the witness materially contradicts the evidence of another or of other witnesses. In such circumstances, the principle in Goodluck Kyando, (supra) does not apply, the evidence cannot be accorded any credibility. I had indicated above that, one of the reasons of not believing a witness, is when his evidence is materially contradictory with the 17 evidence of another witness or of other witnesses as per Mathias Bundala (supra). I am therefore of the firm position that the setbacks highlighted above, take away credibility of PW2, PW3, PW4 and PW6, such that no valid conviction can be based or their evidence. The contradiction that marred their evidence and the quality of the evidence that was adduced by these witnesses including the P 1, is to say the least, poor. I cannot accord credence to such evidence and that gives me mandate to interfere with the findings of the trial Court. Briefly, I agree with the appellant that the case against her was not proved beyond reasonable doubt. In regards to the admissibility of exhibits, the law requires that, the documentary evidence to be read out in order to ascertain and make clear understood to the parties as correctly argued both learned counsels. In the case of: Robinson Mwanjisi and Others versus Republic, (2003) TLR, where the Court stated among other things that, “whenever it is intended to introduce any document in evidence, it should first be cleared for admission and be actually admitted, before it can be read out” 18 See also the case of Mbaga Julius versus Republic, Criminal Appeal No.131 of 2015, Jumanne Mohamed and two others versus Republic, Criminal Appeal No.534 of 2015 (unreported) and the case of Nkolozi Sawa and Another versus Republic, Criminal Appeal No.574 of 2016 (CAT) at page 7. In the case of Nkolozi (supra), the Court observed that “Failure to read out the documentary exhibits was irregular as it denied the appellants an opportunity of knowing and understanding the contents of the said exhibits” I also subscribe the argument by Mr. Kadata that exhibit admitted without being read to the either party, ought to be expunged from the court records as it was in Ahmad Salum Hassan @ Chinga V. Rep, criminal No. 386 of 2021, CAT at DSM which was referred by Mr. Kadata. Now, in the case at hand, exhibits P1 Certificate of seizure, P2 the Copy of renting contract of warehouse, were not read before the Court when cleared with admission, see page 13 and 15 of the trial court’s proceedings. The shortcoming to that effect is that such exhibits are to 19 be expunged from the court records as I hereby do, since they were wrongly admitted. Having expunged them, the prosecution case remains without any documentary evidence to prove the offence arraigned against the appellant. By so speaking no other independent evidence which incriminate the appellant with the offences charged. As the rest of witnesses’ testimonies contradict each other and some are hearsay evidence not credible to ascertain its truthiness’. Whereas, it has been complained that the defence evidence was not considered during composition of the impugned judgement. It is trite law that considering both the prosecution and the defence cases is an implied essential ingredient of a judgment in a criminal case under section 312(1) of the Criminal Procedure Act (Cap. 20 - R.E. 2022) (the CPA) Section 312(1) of the CPA provides: "Every judgment under the provisions of section 311 shall except as otherwise expressly provided by this Act be written by, or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate, in the language of the Court and shall contain the point or points for determination the decision thereon and the reasons for the decision.” 20 Commenting on this provision, the Court said in Amiri Mohamed v R (1994) TLR 138 that: "Every magistrate or judge has got his or her own style of comprising a judgment, and what vitally matters is that the essential ingredients shall be there, and these include critical analysis of both the prosecution and the defence." In Leonard Mwanashoka v R, Criminal Appeal No. 226 of 2014 (unreported). The Court directed that considering the defence, was not all about summarizing it because: “It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. It is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis." I have carefully scrutinized the trial court's judgment. The appellant's case is summarized on page 10 to 11 of the impugned judgment. When it came to analysis and evaluation, which followed the said summary the trial court devotes none of the defence testimony 21 even to negate it in its findings. This implies the contentions by both Learned Counsels that the defence evidence was not considered during scrutiny of the findings of the Court. Had it been considered, reasonable doubts would have arisen including the alleged stolen bags of rice, the security services offered by the appellant and their general routine in guarding the warehouse, etc, which I also associate with it. I am much gripped by the reasoning of Dr. Mwaisondola that tons 5671 of paddy is equivalent to Kg 5,671,000/=, which if were packed in bags of 100kg, was equivalent to 56,710 bags. As the whole of this cargo was said to be in the said Warehouse, for the said cargo to be taken at once by a vehicle of 30 tons (semi-trailer tracks), it needed a total of 189 vehicles to transport the whole cargo at one. Leave alone the casual labourers to assist carrying them. None of the witnesses stated in court seeing even a tractor trailer carrying any cargo from the said warehouse leave alone a donkey led trailer. This is a laughable theft for sure. Looking at the appellant’s stature, Aziza looks like Zena of a Sani tabloid in those old days with her best rival opponent Betina. I wonder, just by looking Aziza, if she can carry even a half bag on her head or shoulder back! For sure, it is a laughable theft if not a plotted theft incidence – “wizi wa mchongo” to procure a certain purpose may be. 22 In the case of Director of Public Prosecutions vs Josephat Joseph Mushi and Another, Criminal Appeal No.471 of 2019 (CAT) at page 9 the Court held that: “We agree with the first appellate court that failure to consider defence evidence of an accused person, on the authorities cited and many others, is a fatal irregularity and, oftentimes, vitiates the ultimate conviction and sentence.” Guided with that principle in Josephat Joseph Mushi (supra), I am of the firm position that failure to consider defence evidence by the trial court vitiates the conviction and sentence meted against the appellant. As hinted earlier herein, the respondent Republic supported the appeal. Mr. Kadata did not mince words that he was at one with the appellant that the evidence on record could not support her conviction. He entirely agreed with the appellant’s contentions that there were apparent contradictions in the prosecution evidence on what was actually found in the appellant and as to what transpired the charging. The prosecution evidence before the trial Court cannot be weighed accordingly for lack of evidence as it was held in the case of Republic Vs. Kerstin Cameron [2003] T. L. R. 85. 23 With all these observations, I find this appeal to have been brought with sufficient cause, I allow it and quash the conviction, sentence and all orders meted out against the appellant. Right of appeal explained. DATED at SHINYANGA this 14th day of June, 2024. F.H. Mahimbali Judge. 24