JOSEPH DONATI KWEKA vs REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI CRIMINAL APPEAL NO. 19488 OF 2024 JOSEPH DONATI KWEKA @ RAJABU ......................... APPELLANT VERSUS THE REPUBLIC........................................................RESPONDENT JUDGMENT O5/11/2024 & 10/12/2024 SIMFUKWE, J. Before the District Court of Moshi at Moshi (the trial court) the appellant was charged with the offence of armed robbery, contrary to Section 287A of the Penal Code [Cap 16 R.E. 2022]. It was alleged that on 18th May 2023, the appellant did steal one Mobile phone make Infinix Note 7 value at 150,000/= the property of one Selemani Abdi and immediately before and after stealing did use a knife to threaten Selemani Abdi in order to obtain and retain that stolen property. 1 The appellant pleaded not guilty to the charge. To prove the charge against the appellant, the prosecution procured a total of five (5) witnesses and tendered seven (7) exhibits while defence case had no witness to call except the appellant himself. Briefly, the prosecution's evidence was to the effect that on the fateful night of the incident, PW3, the victim, was speaking on the phone when two individuals approached him on a red motorcycle. The appellant dropped from the motorcycle, threatened PW3 with a knife, and forcibly took his mobile phone. The complainant pursued the robbers on the motorcycle while raising an alarm. It was alleged that the chase ended near KCMC Ushirika wa Neema Highway, where the robbers encountered a bump, causing an accident. One of the robbers fled, while the appellant sustained a leg injury and was apprehended by civilians. It was alleged that, at that point, PW3 identified the appellant with the aid of street lighting and recognized the motorcycle used in the robbery, which had registration number MC 638 DEM, make Sinoray, red in colour. The incident of the accident was reported at the police (PW4) by the VEO, one Ignas Ernest Chalamila. Police officers proceeded to the accident area and found the appellant with a broken leg. PW3 was also present at the 2 scene and informed the police that the appellant had stolen his phone. Upon search, they found the accused with the alleged stolen phone, which was identified by the victim and other phones, one knife in his trouser with a red handle, and the motorcycle. The certificate of seizure was filled, and the exhibits were handed over to the exhibit keeper. The motorcycle, three mobile phones (including the victim’s phone), one knife, the certificate of seizure, and the exhibit handling form were admitted in court as exhibits P4, P2, P3, P6, and P7, respectively. In his defence, as expected, the appellant denied the charge and informed the court that he was involved in an accident and was surprised to find himself charged with an offence of armed robbery. After the full trial, the trial magistrate found that the charge against the appellant was proved beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to serve 30 years' imprisonment. Aggrieved, the appellant preferred the instant appeal, raising the following grounds of appeal: 1. The learned trial magistrate strayed into error of law when he failed to note that there was variance of the charge, and the evidence adduced. 3 2. The learned trial magistrate erred in law and factual analysis when he failed to note that there was no proof of ownership of the alleged stolen property as it was not positively proved to be the property of the complainant. 3. The learned trial magistrate erred in law and factual analysis when he believed that the appellant was positively identified at the scene of crime while the circumstances and conditions favouring a proper and correct identification were not conducive. 4. The learned trial Magistrate erred in law and factual analysis when he failed to note and appreciate that the conditions prevailing at the crime scene might appear ideal, but that is no guarantee against untruthful evidence. 5. The learned trial Magistrate erred in law and factual analysis when he failed to note that PW3 made dock identification against the appellant. 6. The learned trial Magistrate erred in law and factual analysis when he failed to consider the defence evidence of the appellant at all. 4 7. The learned trial Magistrate erred in law and factual analysis when he failed to note that there was no proper chain of custody of the items seized from where they were found up to the point when they were tendered in court as exhibits. 8. The learned trial Magistrate erred in law and factual analysis when he relied on weak, contradictory inconsistency, with material discrepancies and uncorroborated evidence. 9. The learned trial Magistrate erred in law and factual analysis when he failed to consider that the charge against the appellant was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant was unrepresented, whereas the respondent was represented by Ms. Wanda Msafiri, the learned State Attorney. The appellant submitted on the grounds of appeal randomly. He explained that, although there was nothing expressly stating the doctrine of recent possession, in essence, the doctrine of recent possession was invoked in determining his guilt. The trial magistrate relied on the evidence that it was the same mobile phone stolen from PW3 which was alleged to have been found with the appellant. In respect of the factors 5 that govern the application of the doctrine of recent possession, he made reference to the case of Joseph Mkumbwa and Another vs Republic, Criminal Appeal No. 94 of 2007 (unreported) where the Court of Appeal held that: "Where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as basis for conviction it must be proved, first, that the property was found with the suspect second that the property is positively proved to be the property of the complainant, third that the property was recently stolen from the complainant and lastly that the stolen thing constitutes the subject of the charge against the accused." In respect of the second ground of appeal, the appellant averred that PW3 failed to provide any special marks on Exhibit P2, either before or after its admission in court, to confirm if it was indeed his phone. He argued that special marks should have been described even before the exhibit was tendered in court, emphasizing the importance of providing such descriptions. To support his submission, he cited the case of Mustapha 6 Darajani v. Republic, Criminal Appeal No. 242 of 2015 (unreported). The appellant submitted further that, although the charge sheet refers to a mobile phone make Infinix Note 7, it was insufficient as a description of the stolen property. He criticized PW3 for failing to provide a detailed description of the stolen phone, particularly its serial number, or for failing to produce a purchase receipt as evidence. On the third ground of appeal, the appellant asserted that evidence used to identify him was insufficient, as it failed to provide sufficient details of identification, such as the distance of the light from where the witness was located and the size of the illuminated area, to rule out the possibility of mistaken identity. He reminded the court of the principle that it should not rely on evidence of visual identification unless all possibilities of mistaken identity are eliminated. He emphasized that visual identification is a class of evidence that is particularly vulnerable to error. To support his contention, he cited the case of Omari Iddi Mbezi and 3 Others v. Republic, Criminal Appeal No. 227 of 2009 (unreported). The appellant continued to submit that, apart from PW3 claiming that the culprits were armed, PW3 did not explain the kind of light that aided him 7 to identify the appellant at Nakumatt area where the incident occurred, nor did he state the distance from where he observed the appellant or whether he had seen him before. The appellant argued that the generalizations made by PW3 were extremely deficient, rendering his evidence unreliable. Moreover, the appellant contended that, since the incident occurred at 20:00 hours, it was insufficient for PW3 to make bare assertions about identifying the appellant without providing sufficient details of identification, including the distance of the light, its intensity, and the size of the illuminated area. On the sixth ground of appeal, the appellant faulted the trial magistrate for failing to consider his defence evidence. He supported the contention with the case of Moses Mayanja @ Msoke v. Republic, Criminal Appeal No. 59 of 2009 (unreported), in which the court held that failure to consider the defence evidence is a fatal error that vitiates the conviction. Based on the above submission, the appellant argued that the noted discrepancies, omissions, irregularities, and deficiencies in the prosecution’s case entitle him to the benefit of doubt. He asserted that there is no cogent evidence to sustain his conviction and sentence. 8 Therefore, the appellant, implored the court to find merit in his appeal and allow it. In response, Ms. Wanda did not support the appeal. She stated that the doctrine of recent possession could not carry weight in the proceedings due to the circumstances surrounding the commission of the offence. She referred to the case of Joseph Mkubwa & Samson Mwakagenda v. R (2011) TZCA 118, which outlined the principles for applying the doctrine, including the need to prove that the stolen property was found with the suspect, belonged to the complainant, was recently stolen, and was found in the possession of the accused. The learned State Attorney highlighted that the victim (PW3) testified that the appellant was immediately apprehended after the commission of the offence and found in possession of the stolen mobile phone, make Infinix Note 7. However, she asserted that the immediate arrest at the crime scene rendered the doctrine of recent possession inapplicable. Ms. Wanda further explained that PW3 identified the phone as his property and described how the robbery occurred, with the appellant using a knife to threaten him before taking the phone. 9 Ms. Wanda emphasized the visual identification evidence provided by PW2 and PW3, who testified that they chased the appellant from the scene to KCMC area, where he was involved in an accident and arrested. She cited the case of Waziri Amani vs Republic [1980] T.L.R. 250, which set principles for reliable visual identification, and argued that the identification of the appellant was credible, as he was chased and apprehended immediately after the incident. Ms. Wanda supported the appellant’s grievance that the magistrate relied solely on the prosecution’s evidence without analysing the defence. She referred to the case of Jafari Musa v. DPP (Criminal Appeal No. 234 of 2029) [2022] TZCA 29, which held that: “…in the past failure to consider a defence case used to be fatal irregularity. However, with the wake of progressive jurisprudence brought by case law, the position has changed. The position as it is now, this Court is entitled to step into the shoes of the first appellate court to consider the defence case and come up with its own conclusion.” 10 Ms. Wanda urged the court to appraise the appellant’s defence evidence and weigh it against the prosecution's evidence and come to its own conclusion. Finally, Ms. Wanda prayed for the dismissal of the appeal for lack of merit and sustain the conviction and sentence imposed by the trial court. Having carefully examined the available records, the grounds of appeal raised, and the rival submissions by both parties, I proceed to resolve the grounds of appeal with a focus on determining whether the prosecution discharged its burden of proving the case beyond reasonable doubt. Starting with the first ground of appeal, the appellant lamented that the trial court did convict him despite there being the variance of the charge and evidence on record. It is unfortunate that the appellant did not address this ground to show the alleged variance. I have read the entire evidence vis-à-vis the impugned charge sheet, and I find no material variance between the charge and the evidence on record which is fatal. Regarding the second ground of appeal, it was the appellant’s complaint that the alleged stolen property was not positively proved to be the property of the complainant. He asserted that the victim failed to give any special mark on Exhibit P2 to confirm if at all, it is his property. Ms. Wanda, 11 on the other hand, replied that PW3 identified the phone as his property and described how the robbery occurred. It is trite principle of law that in stealing cases, among the components to prove is ownership; that is, the complainant must prove that the stolen property belonged to him/her. In the present matter, a thorough examination of the victim’s evidence at page 14 of the typed proceedings shows PW3 testified that his phone which was stolen is Infinix Hot 7. He further identified the same as being black in colour, with a power button covered with rubber, and with the words ‘Infinix Hot 7’ on the back. At page 17 of the proceedings, when PW3 was shown the said phone, the court noted that he managed to identify it with the narrated features being present. Therefore, the contention by the appellant that the complainant did not identify the robbed phone is misplaced. Respectfully to the appellant, the grievance that the appellant did not give the serial number is far-fetched since the circumstances surrounding this case, as noted in the brief history above, show that after stealing the said phone, the victim chased the appellant until he got into an accident and was found red-handed with the said phone. 12 On the third ground of appeal, the appellant complained that the circumstances and conditions favouring a proper and correct identification were not conducive. He noted that PW3 did not explain the source of light he used to identify the appellant at Nakumatt area. In response, Ms. Wanda explained that the visual identification described by PW2 and PW3 was enough. I acknowledge the position of the law as cited by the appellant that evidence of visual identification is of essence and the court is warned not to act on visual identification unless all possibility of mistaken identity is eliminated. However, with due respect to the appellant, the surrounding circumstances of this case show that there was no mistaken identity of the appellant. This is due to the fact that, after the appellant robbed the said phone, PW3 chased him while raising an alarm until the appellant encountered an accident. When he was searched, he was found with the said phone, and the certificate of seizure was filled, which was admitted as an exhibit. Had it been the case that the complainant did not chase the appellant and catch him or that the certificate of seizure was not filled after the appellant was apprehended when he sustained the accident, this court would have called for further scrutiny, particularly regarding the aspect of visual identification. 13 Having said so, it is the finding of this court that the circumstances of the present case do not suggest any possible mistaken identity of the appellant. The above findings also relate to the claim that the appellant was identified only in the dock as contended under the fifth ground of appeal. It is the opinion of this court that apart from dock identification, PW3, the complainant, also identified the appellant when he encountered the accident and, upon search, as I have repeatedly said, the appellant was found with, among other properties, the said phone which belonged to PW3. The findings above resolve the fourth ground of appeal that the conditions prevailing at the crime scene might appear ideal, but that is no guarantee against untruthful evidence. With due respect to the appellant, PW3 explained how the incident occurred until the appellant was apprehended. With all due respect to the appellant, the issue of untruthful evidence is without merit since it is an established principle of law that every witness is entitled to credence and must be believed unless there are convincing reasons not to believe the evidence. It was the appellant’s duty as the defence to raise doubts in the testimony of PW3. Therefore, the findings 14 above point to the conclusion that the third, fourth, and fifth grounds of appeal are devoid of merit. On the sixth ground of appeal, the appellant further submitted that the trial magistrate did not consider his evidence. Ms. Wanda supported the ground and urged this court to step into the shoes of the trial magistrate and consider the defence evidence. I have gone through the entire judgment and noted that the trial magistrate did not consider the evidence of the appellant at all. The irregularity is very fatal to the conviction. The remedy, as suggested by Ms. Wanda, is for this court to consider the same to see whether it raised any doubt. I have perused the printed proceedings and noted that the proceedings are partly found in the typed form and in the E- Case Management System (e-CMS). According to the typed proceedings, the defence evidence was taken in the electronic system. However, when I checked in the system, there is no defence evidence of the appellant, even in the typed proceedings. The remedy and way forward whenever there is missing evidence of a witness, is retrial. In the case of Aliki Falanga vs The Registered 15 Trustees of St. Elizabeth Sisters & Another (Civil Appeal No. 256 of 2020) [2023] TZCA 17562 (30 August 2023) Tanzlii, when the Court found that some part of the evidence of a witness was missing, it ordered a retrial. It is from the findings on the sixth ground of appeal that I hereby invoke the revisional powers under section 366(1)(a)(i) of the Criminal Procedure Act [CAP 20 R.E. 2022] and proceed to nullify the trial court's decision and sentence. I accordingly remit the case to the District Court of Moshi to be tried afresh. In the interest of justice, the trial de novo should be conducted by another magistrate of competent jurisdiction. It is so ordered. Dated and delivered at Moshi this 10th day of December 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 10/12/2024 16