CRIMINAL APPEAL NORAMADHANI MUSA MGAYA MSHAM NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 76 OF 2023 (Originating from Criminal Case No 94 of 2022 in the Resident Magistrate's Court of Mtwara at Mtwara) • . ’ RAMADHANI MUSSA MGAYA MSHAM........ .......APPELLANT VERSUS THE REPUBLIC ............ ...... .J.....O......... RESPONDENT JUDGMENT Date of Last Order 01’- November2023 Date ofJudgement; 2fffr November2023 LA LTAIKA, J. The appellant herein RAMADHANI MUSSA MGAYA MSHAM was arraigned in the Resident Magistrate's Court of Mtwara at Mtwara charged with one count of Stealing by Agent c/s 258, 265 and 273(b) of the Penal Code Cap 16 RE 2022. The prosecution story was that on 10/8/2022 at UBOBE Village in Mtwara, the appellant stole a motorcycle with registration Number MC 876 DBS Make TVS Star blue in colour with Chassis Number MD Page 1 of 12 625AF40MIH01448 and Engine Number DF 4HM1001830 valued at TZS 2,600,000 property of one TWAUB SELEMANI who had entrusted it to the appellant for one day. When the charge was read over and explained to the appellant (then accused) he denied wrongdoing. This necessitated the conducting of a full trial. On completion of the trial and upon being convinced that the 'X prosecution had left no stone unturned in proving the allegation, the learned ,.:^p Magistrate convicted the Appellant as charged,and sentenced him to serve 4 years in prison. Dissatisfied, the appellant has appealed to this Court by way of a petition of appeal containing eight (8) grounds. Irrespective of grammatical and typographical errors, I take the liberty to reproduce them as hereunder: 1. The learned trial Magistrate erred in law and fact by relying on the caution statement (exhibit P6) adduced by PW5 to convict i ■ and sentencing the Appellant while the exhibit P6 was procured . - - contrary to the requirement of the law for the following facts. 2. The learned trial Magistrate erred in law by convicting and sentencing the appellant relying on the contradictory, inconsistence and uncorroborated evidence adduced by the witnesses of the prosecution side (PW1, PW3 and PW4) Page 2 of 12 3. The learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant while the prosecution failed to prove the case against the Appellant to the required standard of law which is beyond reasonable doubt. 4. That, the learned trial Magistrate erred in law and fact in retying on defective charge sheet to convict and sentencing the Appellant. 5. That the learned trial Magistrate erred in law and fact by convicting the Appellant while prosecution failed to call material/important witness to prove the Appellant's apprehension in connection to thisincident of stealing. 6. That, the learned trial Magistrate erred in both law and fact by convicting the Appeilant without taking into cognizance the defense raised by the Appellant and accord no weight of any kind of such defense as it was held in the case of CHARLES SAMSON vs Republic[1990] T.LR39. 7. That, the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant while the exhibit register/ PF 16 was not tendered to prove that the said exhibit -/ ■ -PI was found with the Appellant's hand. ; 3. That the defense e vidence was not considered as required by the % law as per section 235(1) of the Criminal Procedure Act Cap 20, RE 2019). Page 3 of12 When the appeal was called on for hearing, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney, 'The appellant indicated that he had nothing substantial to add to his grounds of appeal citing ignorance of legal issues. Reserving his right to a rejoinder, he asked that counsel for the respondent be allowed to proceed with his counterarg uments. . s Submitting against the first ground, Mr. Hurubano pointed out that the complaint was about the trial court's error in relying on the cautioned statement allegedly obtained in violation of section 50(1) of the Criminal Procedure Act Cap 20RE 2022. He expressed the view that the ground lacked merit. Heargued that the trial court's decision was not solely based on the cautioned statement. • Moreover, Mr. Hurubano reasoned, during the presentation of the cautioned statement in court, the appellant did not object to its admission, indicating agreement with PW5's testimony that the appellant admitted to committing the offense. The prosecution also emphasized that the appellant Page 4 of 12 never raised concerns about rights violation or any form of torture during the statement's acquisition. Regarding section 50(1), which mandates recording a statement four hours after an arrest, he asserted that the appellant was not prejudiced by the delay, given the circumstances of his arrest in Ndanda while traveling from Masasi. The learned State Attorney prayed for the dismissal of the ground. v On the second ground regarding alleged contradiction among prosecution witnesses on his name, Mr. Hurubano acknowledged this and stated that PW1 identified the appellant as ALLY MGAYA, PW3 as RAMADHANI MFAUME MUSSA, and PW4 correctly as Ramadhani Mussa Mgaya. Mr. Hurubano explained that the appellant informed PW3 of his name as Ramadhani MfaumeMussa, and PWl's mention of ALLY MGAYA was considered without merit because the appellant did not cross-examine. Additionally, Mr. Hurubano asserted, during the Preliminary Hearing, the appellant admitted that PW1 had entrusted him with the motorcycle in question. He dismissed the colour contradiction, asserting that a motorcycle is not identified by colour. He emphasized that, even during the Preliminary Hearing, the appellant admitted receiving the motorcycle. Counsel for Page 5 of 12 respondent strongly believes that the contradiction if any did not significantly impact the case. On the third ground of appeal centred on the assertion that the prosecution failed to prove the case beyond reasonable doubt, Mr. Hurubano argued that the ground lacked merit. Citing sections 258 and 273(b) of the Penal Code to outline the prosecution's requirements, he pointed out that PW1 had proven ownership of the stolen motorcycle $ith a receipt (Exhibit P2) and a registration card (Exhibit P3). The learned State Attorney argued that the appellantfraudulently took the property without any claim of right, intended to permanently deprive PWl of the motorcycle, and had been entrusted with it. He prayed for the dismissal of this ground due to a lack of merit. On the fourth ground that the trial court based the conviction on a defective charge, specifically lacking a punishment section, Mr, Hurubano believes this ground has no merit, attributing it to a misinterpretation of section 273(b) ofthe Penal Code, which, upon reading, provides punishment. He prayed for the dismissal of this ground. Page 6 of 12 On the fifth ground, that the prosecution failed to call a material witness, namely the informer, Mr. Hurubano acknowledged that PW2, a mgambo, had informed the court about a person selling a motorcycle without a registration card. While admitting this as a material witness, the learned State Attorney argued that the omission did not weaken the evidence, as the appellant was convicted based on the overall weight of the evidence, including the cautioned statement. ^5,:. On the sixth ground that the lower court erred in law and fact for failing to consider the appellant's evidence, Mr. Hurubano argued that this ground had no merit, referring to the judgment’s record on pages 4 and 5, where the learned trial magistrate had considered the defence. On the seventh ground of appeal that the trial court erred in convicting without the prosecution producing the exhibit register, Mr. Hurubano argued that this ground had no merit, emphasizing that the appellant could not demonstrate how he was prejudiced. Additionally, Mr. Hurubano asserted, ’■A. the intention was to establish the chain of custody, and the appellant did not object to the motorcycle’s seizure, and the seizure certificate was admitted as Exhibit P4. Page 7 of 12 On the eighth ground where the appellant complained that the lower court failed to evaluate the defence evidence, Mr. Hurubano argued that this ground had no merit, referring to pages 4 to 7 of the lower court's judgment, where the learned magistrate had evaluated the evidence. However, acknowledging this as the first appellate court, he prayed for a re-evaluation of the evidence and the court's own findings. \ The appellant, in his rejoinder, stated that there had been an agreement between himself and the owner ;Of the motorcycle. They had agreed that he could take the motorcycle with him and return it later. However, he faced an emergency where one tire burst, making it impossible for him to travel from Ndanda to Libobe as planned. Consequently, he decided to spend the night in Ndanda. When he attempted to return the next day, the appellant recalled appearing, honest, he was arrested, interrogated, and subjected to physical abuse. This interrogation process, he recalled, lasted several days, during which he had no one present with him, and a justice of the peace was not in attendance. Page 8 of 12 He continued by explaining that he was later arraigned in court, where the charges were read. During the proceedings, a witness claimed that there was an agreement with ALLY MGAYA, despite the appellant's name being Ramadhani Mussa Mgaya. The court adjourned the case, and the motorcycle owner expressed the intention to teach him a lesson," aliahidlkunikbmoa. The appellant clarified that he and the Owner of the motorcycle were neighbours in Libobe Village. The appellant asserted that he had no intention of depriving the owner and highlighted the challenges they both faced as young individuals. He revealed that the owner's motorcycle had been returned, and he believed that they could have resolved the matter amicably to live peacefully had it not been for the interference of the police who were ill informed. X " He emphasized that the entire incident was an unfortunate event and that, as members of the community ("raia"), they had no grievances against ■1-- each other. The appellant prayed for the court to accept his grounds of appeal. Page 9 of 12 1 have dispassionately considered the rival submissions and the grounds of appeal. I have also taken a rather keen interest in examining the trial courts records especially after hearing the appellant in his rejoinder explaining in simple terms what exactly transpired. I see no reason to go back to the technical issues raised. \ v ' The appellant consistently asserted that there was an agreement between him and the motorcycle owner, PW1. This agreement allowed the appellant to take the motorcycle with the understanding that it would be returned later. The appellant explained that a delay in returning the motorcycle occurred due to an emergency—-a tire burst—which made it impossible for him to travel as initially planned. Given these circumstances, the delay in returning the motorcycle should not be construed as an intention to commit a criminal offense. Rather, it was a reasonable and honest response to an unforeseen situation. ■ The; appellant's account of the events suggests that there was no malice or intent to permanently deprive the motorcycle owner of his property. The appellant and the owner were neighbours, and the situation could have been resolved amicably within the community. The involvement Page 10 of 12 of the criminal justice system in this matter appears to have escalated what was essentially a misunderstanding or a breach of a personal agreement. Criminalizing such a delay, especially in the context of an emergency, would be unjust and contrary to the principle of fairness. In the upshot, I allow the appeal. I hereby quash conviction and set aside the sentence. Furthermore, I order that the appellant RAMADHANI MUSSA MGAYA MSHAM be released from prison forthwith unless he is 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 29.11.2023 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 12 of 12