Ndocha Samwel

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MQROGORO CRIMINAL APPEAL NO.7142 OF 2024 (Originating from Criminai Case No. 40 of 2023 in the District Court Morogoro at Morogoro) NDOCHA SAMWEL APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order:15.05.2024 Date of Judgement: 14.06.2024 JUDGEMENT MAGOIGA,J The appellant, NDOCHA SAMWEL aggrieved with the decision of Morogoro District Court (the trial court) in Criminal Case No. 40 of 2023 appeal to this court armed with 4 grounds of appeal couched as follows: 1. That trial magistrate erred in iaw and fact by convict the appellant on uttering false documents without the proof from the maker of the forged documents. 2. That, the trial magistrate erred in iaw and fact by considering the evidence ofthe PW3 who was the key witness for the prosecution side while his evidence carry great contradictions. 3. That, trial Magistrate erred In law and fact by falling to consider the evidence ofthe appellant and his witness during the evaluation ofthe evidence. 4. That, trial magistrate erred In law and fact by convicting the appellant with the wrong provision ofthe law, which the prosecution side fall to prove during the hearing ofthe case. When this appeal was called on for hearing,the appellant appeared In person and was represented by Mr. Derick VIcent and Ms. Charity Joshua Mzlnga, learned advocates. On the other hand, the respondent, the Republic, was represented by Mr. John Mkonyl and Ms. Monica Matwe, learned State Attorneys. Mr. VIsent, representing the appellant, requested to drop the first ground of appeal. The learned counsel chose to start with the 4^^ ground of appeal, asserting that the appellant had been wrongly convicted under an Incorrect provision of the law. However, upon being shown the record of the trial court, Mr. VIcent withdrew as well the 4^*^ ground of appeal, acknowledging that the appellant was. Indeed, properly charged and convicted. In the second ground of appeal, the learned advocate contended that the trial court overlooked the Importance of PW3's testimony as the primary 2 witness, was full of contradictions. Referring to pages 4 and 5 of the judgment, the advocate highlighted that PW3 referred two motorcycles, MC 374 CWX and MC 374 CVW, yet MC 374 CWX was not proved. This discrepancy led the advocate to assert that the charges against the accused were not adequately proved to the standard required in criminal cases i.e beyond reasonable doubt. In the third ground of appeal, Mr. Vicent argued that the trial court neglected to take Into account the testimony of the appellant and his witnesses when assessing the evidence. He emphasized that DW5 explicitly stated that the appellant purchased the motorcycle from a person who has since passed away, and furthermore, that the appellant facilitated the introduction to the seller. Therefore, Mr. Vicent asserted that it was implausible for the appellant to have forged any documents related to the purchase. In response, Mr. Mkonyi, learned State Attorney, acknowledged without objection the withdrawal of the first and fourth grounds. However, he vehemently opposed this appeal. In reply to the second ground,the learned Attorney argued that the testimony of PW3 did not contain any significant contradictions, and was quick to point out that, contradictions, if any, were minor and inconsequential to the core of the case. The learned Attorney emphasized that, PW3 specifically testified about MC 374 CVW and claimed no knowledge of the other motorcycle. Therefore, he requested for this ground to be dismissed. In reply to 3'"^ ground appeal, as to DW5' evidence, the learned Attorney reviewed page 13 of the typed Judgment but found no significant oversight that could weaken the prosecution's case. DW5 failed to provide specific details about the motorcycle sold to the appellant or offer any supporting documents. The learned Attorney concluded by urging this court to reject the appeal due to its lack of merit. Having carefully considered the rivaling arguments by learned advocates for parties regarding the 2"*^ ground of appeal, I revisited pages 4 and 5 of the judgment by trial court. The trial magistrate initially mentioned that PW3 purchased MC 374 CVX on 10/05/2021, but later referred to it as MC 374 CVW. Upon further examination of the court proceedings on page 33, PW3 testified that he bought MC 374 CVW, with no mention of MC 374 CWX. The discrepancy in the judgment, in my considered opinion, was typing error, and considering the key details of the case, it's evident that the main motorcycle in question was MC 374 CVW, which PW3 adequately proved his ownership. Therefore, there Is no merit to this argument as PW3 did not provide any contradictory evidence. That said and done, ground number 2 has to fail and is dismissed. Regarding the 3^^ ground of appeal, in the appellant's testimony stated that he purchased the motorcycle on 12/08/2021, with DW5 claiming to have facilitated the transaction with a deceased seller, while the payment was made by the appellant's wife. However, DW5 failed to present evidence such as the seller's death certificate or a contract, neither was the transaction witnessed by any government official. Moreover, the alleged forged card of MC 608 CWX lacked a name. It's evident that the appellant didn't provide sufficient evidence to prove the legal acquisition of MC 608 CWX. The defense's case contained significant inconsistencies that the appellant didn't address, as per Section 110 of the Evidence Act,[CAP 6, R.E 2019]. After reviewing the records and the trial court's judgment,I find that the trial court was right that the second count was proved beyond reasonable doubt. In the circumstances, I find this ground devoid of any useful merits as well and is dismissed. Therefore, the entire appeal is disnhissed in its entirely for want of merits. It is so ordered. Dated at Morogoro this 14^^^ Day, 2024. o o s.m:'magoiga ILD JUDGE 14.06.2024 \ COURT: JudgerheTTtrdelivered to day In chambers at Morogoro in the presence of the appellant and his advocate Mr. VIcent, learned advocate and Ms. Edna Aloyce, learned Attorney for the respondent OF c S.M.^AG01GA JUDGE 14.06.2024 COURT: Right of^pReal-fully explal OiS* OF S.M.'MAGC^IGA O c ID JUDGE X > UJ 14.06.2024 ■5: