JUDGEMENT ISIAKA BARAKA MUSA NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA CRIMINAL APPEAL NO. 27143 OF 2024 (Original from Criminal Case No. 58 of 2022 of Mpwapwa District Court at Mpwapwa) BETWEEN ISIAKA BARAKA MUSSA............................................................ APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT JUDGMENT 16/10/2023 & 11/12/2024 MANYANDA, J:. The Appellant, namely, Isiaka s/o Baraka Mussa is aggrieved by convictions of the offences of breaking into a dwelling house, contrary to section 294(1)(a) in the first count and stealing, contrary to sections 258(1) and 265, both of the Penal Code, [Cap. 16 R. E. 2022] and sentences of five (5) years on each count, both ordered to run concurrently. Page 1 of 26 He was arraigned before the District Court of Mpwapwa, hereafter referred to as "the trial court", on allegations that on 14/02/2022 at Mpwapwa Secondary School within Mpwapwa District in the Region of Dodoma broke into a dwelling house of Aron s/o Amos Mganga and stole from therein various chattels such as saucepans, Azam Television Decoder No. 25166563 0514, Singsung Video Deck, a Techno Smart Mobile Phone make Spark 5 and a gown, all valued at Tshs. 630,000/= property of the said Aron s/o Amos Mganga. The evidential background of this matter is that on 14/02/2022 an unknown person entered the house of PW1 - Aron Amos Mganga in their absence. That unknown person used a key that was hidden at the top frame of the door. After entering inside the house, that unknown person exited through rear door after stealing various items including Azam Television Decoder Number No. 25166563 0514 property of PW1. Subsequently, the Appellant approached PW3 Agency Nathaniel Kimambo, an electrical appliances technician, selling a decoder in pretence that it belonged to him, now that he was having a sick child, he decided to sell it. Page 2 of 26 Since PW3 was not dealing in decoders, he called PW5 - Izack Saimon Pamagila, a Television Decoders Technician who in turn found a client namely, Brian Baltazal Chimwanto (PW4), After testing and finding that it was working well, the latter purchased it at Tshs 80,000/= and PW5 fitted it for use at PW4 house. Things went well for the whole of February, 2022. However, it happened that PW1 reported the theft to police whereas the investigator PW6, G.4916 D/Cpl. Ramia advised him to report to Azam Television Head Office. The latter blocked the decoder thereby ceasing it from functioning, an act that necessitated PW4 to take it to Azam Television Head Office in Dar es Salaam in order to know what went wrong. As a result, PW4 ended up been arrested at Azama Television Head Office in Dar es Salaam and brough to Mpwapwa Police Station. Upon interrogation, PW4 implicated PW5 as a seller of the decorder, the latter implicated PW3 as an agent who brought the Appellant to him selling it. As a result, the whole chain became known and the Appellant was implicated as a person who broke into PW1 house and stole the items mentioned in the particulars of offence including the decoder. Page 3 of 26 In his defence, the Appellant denied all the allegations contending that there was a different person called Mchungaji who came to him selling the decoder. That, he directed the said Mchungaji to take the decoder to PW3 as he was a dealer of electrical appliances by giving PW3 mobile telephone number. The Appellant denied to have visited PW3 as alleged. The trial court found the prosecution evidence weighty versus the defence evidence and convicted the Appellant with both counts and sentenced him to 5 years imprisonment. He is aggrieved by both convictions and sentences, hence this appeal. He is armed with six grounds as follows: - 1. That, the tria l court wrongly convicted and sentenced the appellant basing on defective charge sheet which did not include therein the interpretation provision o f the alleged charger (sic) offence hence occasioned injustice to the appellant; 2. That, the learned tria l m agistrate wrongly proceeded to heard and determine this m ater especially the whole prosecution case without the charge being read over and rem inded to the appellant as required under the law; Page 4 of 26 3. That, the learned m agistrate o f the tria l court erred in law fact fo r failure to properly consider the principle o f reasons fo r the decision and fact fo r (sic) not considering the evidence o f the appellant; 4. That, it was not proper fo r the tria l court to handle this m atter crim inal (sic) taking account that there was fabricated by prosecution (sic) witness; 5. That, the tria l learned m agistrate erred in law fo r (sic) and fact to convict the appellant w th (sic) his identity while the identification parade was not adhered; 6. That, the prosecution side failed totally to prove this case against the appellant beyond reasonable doubt. At oral hearing of the appeal, the Appellant was unrepresented while the Republic was represented by Ms. Mwilongo Tenge, learned State Attorney. When this Court allowed the parties to make their submissions, the Appellant started to present arguments on grounds which were not filed in this Court. Hence it called upon them to address it on propriety of grounds not on record. Upon the Appellant realizing that he was submitting on grounds that were not formerly presented through the Page 5 of 26 petition of appeal or supplementary petition, he chose to withdraw them and argued those formerly presented in the petition of appeal. He submitted by adopting his grounds in the petition of appeal and added that the prosecution's evidence was fabricated and untrue because what he did was only to give a person called Mchungaji a mobile phone number of PW3. He did not sell the decoder himself, but it was that Mchungaji. He had no rejoinder. Replying to the grounds, Ms. Tenge chose to combine ground 4 and 6, then argued the rest seriatim. I will start with determining grounds 4 and 6 as they generally question whether the prosecution proved the case beyond all shadow of doubts, which is in line with the main issue in this appeal, that is, whether the same is meritorious. Submitting in opposition to grounds 4 and 6, the State Attorney argued that both counts of the offences were proved to the standard provided by the law per the case of Malik George Ngendakumana vs. Republic, Criminal Appeal No. 353 of 2014 at page 6. Where the Court of Appeal of Tanzania stated as follows: - Page 6 of 26 "The principle o f law is that in crim inal cases the duty o f the prosecution is twofold. One, to prove that the offence was committed, and two that the accused person is the one who com m itted it." The State Attorney was of the view that through the testimonies of six (6) prosecution's witnesses and one exhibit, the two counts were dully proved. She gave account of the evidence briefly that PW1, Aron Amos Mganga, the complainant who owned the Exhibt PE1, a decoder number 25166563 reported to police that it was stollen along with other items listed in the particulars of offence, PW2, Atukuzwe Pila, the complainant's wife was the one who discovered the breaking of their house and the items in issue stollen. PW3, Nathaniel Kimambo, electrical appliances technician met the Appellant selling the decoder in issue on pretence of being the owner and that he was selling it under emergence to get money for treatment of his sick child. PW3 called PW5 who got PW4 the purchaser. PW4, Brian Baltazal Chimwanto, a decoder purchaser who was arrested in Dar es Salaam at Azam Television Head Officer where he sent it for fixing, but that was a deliberate trap laid by blocking it in order to get its user. Page 7 of 26 PW5, Izack Saimon Pamagila a Television dishes and decoder technician, witnessed the selling of the decoder between the Appellant and PW4 through PW3 at price of Tshs. 80,000/=, whereas Tshs. 50,000/= was transferred to the Appellant through mobile money transfer and the remaining Tshs 30,000/= shared by PW3 and PW5 as commission. PW6 G.4916 D/Cpl. Ramia, the investigator of the offence arrested PW3, PW4, PW5 and the Appellant. Whereas, upon PW5 interrogating them, found the liable person to be the Appellant. The defence evidence that the Appellant only sent a person called Mchungaji to PW3 in order to sell the decoder, did not shake the prosecution's evidence. Hence, the State Attorney concluded that evidence proved the offences beyond all reasonable doubts. Without reiterating what the State Attorney said in her submissions which basically is a summary of the evidence, I agree with her. In this matter, there is no witness alleging to eye witness the Appellant breaking PW1's house and stealing therefrom the items listed in the particulars of offence. PW2 evidence is short that she witnessed the front door which she had closed and placed its keys at the top frame Page 8 of 26 of the door, was open and the items in issue stollen, the rear door was also open. PW1 reported the incident to police whereas PW6 was assigned to investigate the case. It was the police who advised PW1 to report to Azam Television Head Office about theft of the decoder. Then, there followed a string of arrest, setting itself from arrest of PW4, the user of the decoder which was blocked as a trap to get him, to the arrest of the Appellant as a seller of the decoder and PW3 and PW5 as witnesses of the sale. As it can be seen, this kind of evidence is termed as circumstantial evidence. In this land, the law relating to circumstantial evidence has long been settled that an accused person may be convicted on the strength of circumstantial evidence without any other type of evidence to corroborate it. In fact, circumstantial evidence has been described as the best evidence as was aptly articulated by Sir Udo Udoma, the then Chief Justice of Uganda, in the case of Republic vs. Sabudin Merali & Umedali Merali, Uganda High Court Criminal Appeal No. 220 of 1963, where he stated the law on circumstantial evidence in the following words: - Page 9 of 26 " .......... it is no derogation to say that it was so; it has been said that circum stantial evidence is very often the best evidence. It is the evidence o f surrounding circum stances which by undesigned coincidence is capable o f proving a proposition with the accuracy ofm athem atics" The above law was cited with approval by the Court of Appeal of Tanzania in Hilda Innocent vs. Republic, Criminal Appeal No. 288 of 2019. See also the cases of Julius s/o Justine & Four Others vs. Republic, Criminal Appeal No. 155 of 2005, Georgina Masala vs. Republic, Criminal Appeal No. 128 of 2014 (both unreported), and Samson Daniel vs. Republic (1934) 1 EACA 46. In the latter case it was held that circumstantial evidence may be not only as conclusive, but even more conclusive than eye witness. As to the quality of circumstantial evidence to base a conviction, it was held by the defunct Court of Appeal for East Africa, in the case of Simon Musoke v. Republic [1958] 1 EA 715, as follows: - "In a case depending exclusively upon circum stantial evidence, the court m ust before deciding upon a conviction fin d that the inculpatory facts are incom patible with the innocence o f the accused and incapable o f Page 10 of 26 explanation upon any other reasonable hypothesis than that o f g u ilt." The same Court also cited with approval a decision of the Privy Council in Lezjor Teper v. Reginam [1952] A.C 480 in which, as far as quality of circumstantial evidence for holding a sound conviction is concerned, it was stated as follows: - "It is also necessary before drawing the inference o f the accused's g u ilt from circum stantial evidence to be sure that there are no other co-existing circum stances which would weaken or destroy the inference." It also relied on an excerpt from a book, Taylor on Evidence 11th Edition, at page 74, where it is written that the circumstances must be such as to produce moral certain, to the exclusion of every reasonable doubt. A question I am enjoined to answer, at this juncture, is whether the circumstantial evidence in the matter before this Court was with no other co-existing circumstances which would weaken or lower its probative value, but was sufficient to prove the case against the appellant to the hilt. Putting it otherwise, can the said circumstantial Page 11 of 26 evidence be held that was incapable of any other explanations than irresistibly pointing to the guilt of the appellant? From the prosecution's evidence, it all started with PW4, Brian Baltazal Chimwanto, a resident of Mpwapwa who in February, 2022 purchased a functioning decoder with number No. 25166563 for Tshs. 80,000/=, from a person called Izack Saimon Pamagila (PW5) a Television Decoders Technician who fitted it at his house. Initially, the decoder worked properly, but later on in March, it ceased. PW4 reported to PW5 who advised him to contact Azama Television Head Office in order to have its problem fixed. Unknowingly that the decoder was deliberately blocked by the Azama Television Head Office as a trap in order to get a person who was operating it, he got arrested when he took it there for allegations of stealing it. However, when he narrated the story on how the decoder got into his hands, that he was just an innocent purchaser after purchasing it from PW3 and PW5, the police started hunting for both PW3 and PW5, who sold and fitted it for him. PW6, the investigator of the case arrested PW5 at Mpwapwa, upon his explanations that it was sold by a person Page 12 of 26 known to PW3, police started to look for PW3. When the latter was arrested, he said that the decoder was brought to him by the Appellant. As it can be seen, according to PW1 and PW2 their house was broken on 14/02/2022 and some properties stollen including the decoder in issue. It is the Appellant who was first seen, soon after the breaking, in possession of the stollen decoder of which ownership is not disputed and is established conclusively to be property of PW1. It was stolen from PW1. It was therefore incumbent for the Appellant to give explanations on how it landed into his hands. In his defence, apart from failure to dispute the fact that the decoder was stolen from PW1, stated that it was brought to him by a person called Mchungaji who was known to him after been accused together in another case. That, the said Mchungaji was selling it because he had a sick person. He just connected the said Mchungaji to PW3 by supplying him with a mobile phone number of PW3 believing that since he was dealing with electrical appliances, he might need the decoder. The evidence by PW3 in the trial court was that the Appellant told him that he was selling the decoder because he had an emergence of treating his sick child, hence he needed money? The Appellant did not Page 13 of 26 challenge PW3 evidence but, merely allegations that PW3 told lies to the trial court. However, looking at the evidence, it points a finger at him as a liable person right from the beginning. Then why didn't the Appellant tell PW6 about the story implicating the alleged Mchungaji, in the same way PW4 implicated PW5, and the latter did to PW3 who implicated the Appellant? He did not even wish to ask the trial court to summon the alleged Mchungaji to testify for him. In my view, the inculpatory story told by the Appellant at defence stage of the case that the decoder was in hands of a person called Mchungaji, is an afterthought. It remains as truth that the Appellant was a first person to be found in possession of the stollen decoder. He did not give reasonable explanations on how he came into its possession. The circumstantial evidence in this matter is with no other co-existing circumstances which would weaken or lower its probative value, but it is sufficient to prove the case against the appellant to the hilt. In this matter the facts are inter-connected just like the reversal sequential events in the famous story of a naughty boy called Karumekenge, who had refused to go to school. A dog was asked to bite him so that he gets scared and go to school, but it refused, a stick Page 14 of 26 refused to beat the dog, fire refused to burn the stick, water refused to put off the fire, a goat refused to drink the water. When the Sultan agreed to slaughter the goat, a reversal sequence happened leading to the last liable person, Karumekenge. The goat agreed to drink the water, the water agreed to put off the fire, the fire agreed to burn the stick, the stick agreed to beat the dog, the dog agreed to bite Karumekenge who was liable to go to school. In this case, when PW4 was nabbed implicated PW5, who named PW3, who implicated the Appellant who failed to bring the fictitious Mchungaji, hence, he became the last liable person to have the stollen decoder. Grounds 4 and 6 have no merit. In ground one, the complaint is that the charge sheet is defective for want of interpretational facts. The State Attorney, relying on the authority in Mussa Mwakunda vs. Republic [2006] TLR 387, opposed this ground arguing that the charge is correct in law because it contains both the statement of offences and particulars of offences which disclose all ingredients of offences in both counts. Page 15 of 26 Legally, a charge sheet is divided into two parts, namely, statement of offence and particulars of offence. Section 132 of the CPA provides for contents of a charge. It reads as follows: - "132. Every charge or inform ation sh all contain, and shall be sufficient if it contains, a statement o f the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged. " (emphasis added) The first count of offence of house breaking is provided under section 294(1)(a) of the Penal Code which reads as follows: - "294(1) Any person who- (a) breaks and enters any building, tent or vessel used as a human dw elling with intent to com m it an offence therein; or (b) NA; is guilty o f housebreaking and is liable to im prisonm ent fo r fourteen years." In this case the charge in the 1st count reads as follows: - "Statement o f Offence: House breaking, contrary to section 294(1(a) o f the Penal Code, Cap. 16 Vol. 1 o f the Laws [R.E. 2019] Page 16 of 26 Particulars o f Offence: That Isiaka s/o Baraka Mussa, charged on I4 h day o f February, 2022 a t about 11:00 Hours a t Mpwapwa Secondary School area within Mpwapwa D istrict in Dodoma Region did break and enter into a dw elling house o f one Aron s/o Am os Mganga, 54 years, Kaguru, Christian, Teacher o f Mpwapwa Secondary School, Mobile Number 0757-397636, with intent to com m it an offence therein." The second count of stealing is provided under section 258(1) and 265 both of the Penal Code, [Cap. 16 R. E. 2022] which read as follows: "258(1) A person who fraudulently and without claim o f rig h t takes anything capable o f being stolen, or fraudulently converts to the use o f any person other than the general or special owner thereof anything capable o f being stolen, steals that thing. 265. Any person who steals anything capable o f being stolen is guilty o f theft, and is liable, unless owing to the circum stances o f the theft or the nature o f the thing stolen, some other punishm ent is provided, to im prisonm ent fo r seven years." The charge in the second count reads as follows: - Page 17 of 26 "Statement o f Offence: Stealing, contrary to sections 258(1) and 265 o f the Penal Code, Cap. 16 Vol. 1 o f the Laws [R.E. 2019] Particulars o f Offence: That Isiaka s/o Baraka Mussa charged on 14h day o f February, 2022 a t about 11:00 Hours a t Mpwapwa Secondary School area within Mpwapwa D istrict in Dodoma Region after breaking and entering a dw elling house o f one Aron s/o Am os Mganga, 54 years, Kaguru, Christian, Teacher o f Mpwapwa Secondary School, Mobile Number 0757-397636 did steal therein eight saucepans valued a t Tshs. 45,000/=, one Azam TV decoder Id No. 251665630514 valued a t Tshs 210,000/= one deck make Singsung black in colour valued a t Tshs 70,000/=, one sm art phone make Techno Sparks5 valued a t Tshs 260,000/=, one gown valued a t Tshs 45,000/=. A ll valued a t Tshs 630,000/= property o f Aron s/o Am os Mganga." As it can be seen, the charge sheet contains the two counts of offences each with its specific particulars. The offence parts show the law contravened as section 294(1)(a) of the Penal Code in respect of the first count. Sections 258(1) and 265 of the Penal Code in the second count. These provisions of the law tell the provisions of the contravened law. Page 18 of 26 The second part tells the particulars of offence which show, who committed the offence, the Appellant. When the offence was committed, it is on 14/02/2022 at 1100 Hours. Where the offence was committed, it was at a dwelling house of one Aron s/o Amos Mganga at Mpwapwa Secondary School area within Mpwapwa District in Dododma Region. And, what are circumstances of commission of the offence, in respect of the first count, by breaking into a dwelling house of one Aron s/o Amos Mganga, a teacher at Mpwapwa Secondary School, with intent to commit an offence therein. In the second count, having broken into a dwelling house of one Aron s/o Amos Mganga, a teacher at Mpwapwa Secondary School, stole there from the items listed in the particulars. Stealing is defined by the law in section 258(1) of the Penal Code to mean fraudulently and without claim of right, taking a thing capable of being stollen. The property stollen is mentioned to be a decoder and the owner mentioned to be Aron s/o Amos Mganga. In my firm view, the charge particulars contained all the ingredients of offences in a very clarity as required by section 132 of the CPA. In other words, the particulars of offence contain all the necessary ■age 19 o 26 4W's, that is, Who, When, Where and What. They are informative enough for the accused to know the nature of the offence. The purpose of particulars of offence was explained by the Court of Appeal of Tanzania in the second holding in the case cited by the State Attorney of Mussa Mwakunda (supra) as follows: - "It is always required that an accused person m ust know the nature o f the case facing him and this can be achieved if the charge discloses the essential elem ents o f the offence charged;" Moreover, as rightly submitted by the State Attorney, more description of the facts came from the evidence which the Appellant heard, understood and manned his defence, there was no miscarriage of justice. This ground has no merit. The complaint in ground two is about failure to read over the charge to the Appellant. The State Attorney fiercely opposed this ground basing on the record of the trial court. She argued that the record rebuts this complaint in that it is very clear that a charge was read over to him and it dully entered a plea of not guilty following his denial to the allegations. Moreover, at page 8, before preliminary hearing, the Page 20 of 26 Appellant was reminded his charge to which he maintained his plea of not guilty. He was so reminded before commencement of adduction of prosecution evidence. The State Attorney concluded that the provisions of Section 228 of CPA were adhered to. She cited the case of Aman Ally @ Joka vs. Republic, Criminal Appeal No. 353 of 2019 where the Court of Appeal said that reminding an accused of a charge is not a legal requirement, hence, non adhering to it is not prejudicial. She argued that reading of a charge to the accused in the rest of the proceedings after adherence to section 228 of the CPA is just a matter of practice not backed by any law. I agree with the State Attorney wholesomely on this position of the law. The record is self speaking that section 228 of the CPA was followed to the letter. There is no need of repeating what she submitted. It is trite law that records of the court are taken to be authentic and cannot be easily impeached. In the case of Alex Ndedya vs. Republic Criminal Appeal No. 207 of 2018, the Court of Appeal held at page 12 that: - Page 21 of 26 "It is a settled law in this jurisdiction that a court record is always presum ed to accurately present what actually transpired in court. This is what is referred to in legal parlance as the sanctity o f the court record." The Court further quoted with approval its previous decision in Halfani Sudi vs. Abieza Chichili, [1998] TLR 527 whereby it again followed its previous decision in Shabir F. A. Jessa v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported) where it held that "a court record is a serious document; it should not be lightly im peached." See also: Paul Osinya vs. Republic [1959] EA 353, This ground has no merit. In ground three, the Appellant challenges the trial court about failure to consider the defence evidence. The State Attorney opposed this ground arguing that at page 11 of the judgement, the trial court analyzed the evidence of both sides, prosecution and defence evidence and found the prosecution's evidence was relative stronger that the defence evidence. The State Attorney pointed out that at page 14 of the judgement, the trial court convicted the Appellant partly basing on his defence evidence that it corroborated the prosecution evidence. Page 22 of 26 I have taken pain to navigate through the evidence and found, as rightly submitted by the State Attorney, the trial court dully considered the defence evidence. The trial court narrowed down the evidence to that part of controversy which the Appellant was denying involvement to be at a point of sale of the decoder that he just connected Mchungaji to PW3, therefore a seller was the Mchungaji. The rest of the prosecution's evidence was unchallenged. After evaluating the evidence of both sides, the trial court concluded at page 14 as follows: - "When looking a t the series o f the evidence before this court, the evidence by the prosecution is so strong against the accused person. H is defence that he did not bring the decoder to PW3 but rather connected him with Mchungaji is ju s t mere words with no sufficient prove (sic) to shake the strength o f prosecution's evidence." This ground has no merit. In regard to ground five, the Appellant raised an issue of absence of identity parade. This ground should not detain me. I agree with the State Attorney who submitted that since there was no eye witness, then there was no need of identification parade. Page 23 of 26 The purpose of identification parade is to enable a witness who purports to identify a suspect stranger to him or her at the crime seen. It has bee now and then held by the Court as it did in the cases of Joel Watson @ Ras vs. Republic, Criminal Appeal No.143 of 2010, the Court of Appeal stated the purpose of identification at page 5 as follows: "The purpose o f an identification parade is in ter alia, to enable a witness identify his/her assailant whom he/she has not seen or known before the incident" See also the cases of Abdul Farijalah and Another vs Republic, Criminal Appeal No. 99 of 2008 and John Paulo @ Shida and Another vs. Republic, Criminal Appeal No. 335 of 2009 (both unreported). Since in this matter there was no any eyewitness of the incident, the identification parade would have no use. This ground has no merit. The sentence of five (5) years imprisonment on each count ordered to run concurrently imposed on the Appellant is discretional, I find no reason for interfering with it. Page 24 of 26 In the upshot, I find the appeal as barren of fruits. Consequently, I do hereby dismiss it in its entirety. Order accordingly. Dated at Dodoma this 11th day of December, 2024. F.K. MANYANDA JUDGE Delivered at Dodoma this 11th day of December, 2024 in the presence of the Appellant Isiaka Baraka Mussa and Ms. Mwilongo Tenge, State Attorney for Republic. Appeal is dismissed in its entirety. Right of appeal dully explained. F.K. MANYANDA JU D G E Page 25 of 26 Page 26 of 26