19960605 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL N0.154 OF 1994 ORIGINAL CRIMINAL CASE NO. 85 OF 1993 . (OF THE DISTRICT COURT OF !LALA DISTRICT AT KIVUKONI) (BEFORE KAGANDA S. ESQ.,RESIDENT MAGISTRATE ) 1.CHARLES SIMON MZIRAY] 2 .ABDALLAH C. ATHUMAN ] ................. . APPELLANTS "VERSUS THE UNITED REPUaLIC ........................ RESPONDENT ·• . ( ORIGINAL PROSECUTOR) . . . KALEGEYA. PRM (Ext. Jurisd.) ·• JUDGMENT. On 1st December, 1993 the Appellants, Charles Simon Mziray and Abdallah C. At human, ( herein- - after styled 1st and 2nd Appellant respectively) found themselves together with one Raphael Peter Mapunda (who didn't appeal) being sent to jail upon conviction by Kisutu Rm's Court ,on a seven year term of imprisonment each for Robbery (snatching a Toyota Corolla saloon vehicle by force) c/s 265 and 286 of•the P~nal Code resulting from er. case No.BS of 1993 which had. jointly faced them (on a charge of Armed Robbery) as 1st accused (Rapha~l Peter Mapunda), 2nd accused ( Charles Simon Mziray - 1st· Appellant now) and 3rd accused (Abdallah Chikira@ Athuman-2nd Appellant). Dissatisfied with these convictions the Appellants have decided to try their luck by pre;f;erring the present appeal. ,' · · · •~ I ; • Although their memos of Appeals (additional grounds added thereto at the time of hearing of the appeax inclusive) detail lengthy arguments they can simply be summatised as follo~s~ Starting with grounds common to both Appellants, they ·contend that the contradiction between PWl and Sgt Boniface (Pw71 is , fatal for while the former says that the youngmen who took away his vehicle at gun point were three the latter falks of four explaining' that this was the recounting of the.event ~ to hdrn by the former and that therefore this shows ~hat he (Pwl) did not properly identify the culprits as much as he 2 failed to give their full description at the police station hence unreliable as a witness; that at Chalinze Road block the driver of the vehicle they were in escaped and that this proves that he was the owner and controller of the said vehicle; that no evidence was adduced to show that they were in anyway concerned with the changing of the figures on number plates or glasses, and finally that the prosecution did not prove the offence up to the standard required by law. On top of this, the 1st Appellant (Mziray), submitted that had he been one of the culprits PW1 would have described where and how he was seated in the vehicle upon being hired and naturally would have identified him at the identification parade; that in absence of any other corroborative evidence his defence that he had just been a passenger in the vehicle as he hiked a lift should have given him the benefit of doubt instead of the trial court convicting him on the basis of the doctrine of recent possession and more particularly after PWl had identified the culprits in the names of 2nd Appellant and one Rajabu (who was 1st ~ccused and who never appealed). He cited Salehe Seleman VR (1972) HCD N.23, that mere presence at the scene does not necessarily make a person a party to the offence. On the other hand, the 2nd Appellant cementing his arguments, added that he was framed up by police because he refused to bribe them with.shs.40,000/= they requested for, and finally that in any case there was no proof of armed robbery and if anything it was a mere offence of theft. Miss Mkwawa, learned State Attorney, for the Republic/ Respondent responded on all the Appellants' arguments cumulatively by advancing that their claims are baseless as the offence was proved beyond reasonable doubts as required by law; that PWl's evidence was clear as regards 4 people who hired him; that he even gave description of how they were seated in his vehicle; that they could not explain how they came to be in the vehicle while it was proved that Ayoub, who escaped was not the driver. Replying further, Miss Mkwawa stated that the allegation of a 40,000/= request for bribe is an after-thought; that while 2nd appellant was fully identified at the p.arade 1st appellant was found in the stolen vehicle and the explanations he gave of having been in a bar were contradicted by his (and others) failure to point out the places to the police when they were called upon to. She called upon the court to dismiss the appeals in entirety. Before venturing into the arguments I have this to say. In convicting the Appellants and Raphael, after MERELY summarising the prosecution and defence evidence including submissions (which were effected in writing) by both ACP E.T. Mahenge for the prosecution and Mr. Chacha, Advocate for the defence, the trial court simply concluded without the slightest analysis or comment on the evidence as presented! For clarity on what I mean let the () trial court's record speak by itself:- '\ 3 11 I have considered the good arguments from both the Public Prosecutor and the Advocate and their good research on the case cited. Having gone through them I see the issue on identification has been argued well by the Advocate but no substance argument was made on the issue of doctrine of Recent possession. The evidence given shows clearly that after the stealing the PWl became a suspect of course there are many such cases by police when drivers become victims. But then the accused were found two days later with the subject matter and when examined could not give good explanation on how they came into possession of it. To make it more worse the vehicle was given different identity by fixing new plate numbers ............... ~ I therefore agree totally with the prosecution side that being found with property which is not easy changeable from hand to hand like the car, the only inference is that the one found in possession is the one who committed the offence" With unfeigned respect to the trial Court the above quoted falls short of evaluating evidence as required by law for it leaves us in dark as to what finding was made on what submission including evidence. Although world wide over the "scale of justice" is the common symbol used to portray the role of a Court - that it has to stand in between, evaluate and balance two contending "parts'' before reaching a conclusion - it can't be applied mechanically as when weighing goods on a weighing machine as concluded by the trial court supra. And this is more so when the prosecution and defence, each, made strong submissions as contended by trial . court. Indeed this of fends the requirements under s. 312 CPA which among others clearly directs "Every judgement shall ...... . contain the point or points for determination, the decision thereon and the reasons for the decision ...... 11 • Now, what should this court do in the cirmstances? Generally it has been held that "every judgement should state the facts of the case establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding (citing Amirali Ismail v R 1 11 TLR 370, REX v Lulakomba 3 E.A.C.A. 43 and William Msaka v R (1968) HCD 216 this was observed and approved in R v Suna (1971) HCD 208). ' In all these cases the courts held that there existed, in the respective judgements, inadequency which led to failure of justice and the solution was to allow the appeals and ordering retrial in some. Also, in R v Hezron s\o Magari (1970} HCD 148 where the Court among others, held, "I must say at the outset that the judgement of the () trial Magistrate is unsatisfactory. One cannot stress too strongly the importance of subjecting evidence to 4 analysis before arriving at any conclusion upon it. It is not enough merely to set out conclusions without setting out the process of reasoning which has led to them. There was no analysis of the evidence in this case" a retrial was ordered. However in John s\o George and another (1971) HCD 390 wherein was observed, "The judgement neither contained the point or points for determination nor the reasons for the decision. Where there is conflicting evidence or where the evidence tendered by the prosecution is denied by the defence and the defence gives a different version, it is the duty of the trial court to assess and evaluate the evidence and give some indications why it accepted· one piece of evidence in preference to the other", the court concluded that though this offended s.171 (1) of CPC (present Section 312 (1) CPA) it did not cause any failure of justice. The court referred to s.346 of the CPC (then) nows. 388 (1) CPA where it is provided that "no ommission or irregularity in the judgement is fatal unless it occassions failure of justice". I have cautiously and carefully looked at the circumstances of this particular case and in relation to S.312 (1),. s.388 (1) CPA and the various authorities on a similar issue and I have but concluded that the present failure by the trial court to analyse the issues and evidence has not occasioned the failure of justice to warrant declaring the decision a nullity. In fact, apart from the fact that most of the cases cited were unique in themselves, like R v Suna where not even a line of judgement was written ( ! ) it is my considered opinion that courts on appeal should tread carefully on this question as in an attempt to cure injustice may end up committing more injustice. Imagine a situation where the evidence produced glaringly establishes an offence but merely because the trial court simply jumped on conclusion without analysis and convicted, the finding is declared a- nullity and possibly due to lapse of time or related retrial is not a proper order to make or retrial is ordered but then ·the ··p"rosecution can't take off either because relevant exhibits have disappeared, stolen or can't be trace·d or witnesses have died. On the other hand, it is an open secret that in most cases ordering a retrial, surely re-subjects an appellant to the very known ordeal of a trial which in many a time may be far from doing him justice. In my view therefore; unless the ommission or irregularity in the judgement is of the nature as the one committed in R v Suna case (supra) where actually no judgement was written a Court ( / I on first appeal should resort to its own analysis of the evidence in order to arrive at a proper finding. Moreover, this duty is not a new one - as law dictates, the first appellate court has 5 to make its own consideration and views of the evidence tendered in the trial court as whole and make its own decision thereon {Dinkerrai Pandya v R (1957) E.A. 336 cited with approval in Emma d\o Mwaluko & 2 others v R (1976) TLR. 50}. This is what I propose to do in this case. Now for the evidence tendered. PWl (Matheo Thobias) deposed that on 1st February 1993 between 2.30 and 3.00 pm he was hired by 3 youngmen from NBC Foreign Branch Taxi stand within Dar es Salaam city, to a place along Shekilango Road at shs. 1200/= but upon reaching this destination they threatened him with a pistol, temporarily tied him with a rope across his neck and was dropped off the Vehicle after the hirers had discussed and decided not to kill him. They run off with the Vehicle. He shouted for help but only PW3 (Dora), a lady, who resided nearby came to his help. PWl was the driver of m\v Reg.No. TZA 326 Toyota Corolla Saloon belonging to PW2 (Atilo Kisapi) and which was plying for hire as Taxi though not so licenced. PW1 immediately reported the incident to the nearby Urafiki police station. Suspicious of the manner the vehicle was said to have been stolen, the police, as is commonly done, landed PWl in remand and charged him. Nine days later he was released only to find that the stolen vehicle had been recovered and on 10\2\93 was called upon to attend an identification parade at which he identified 2nd Appellant and Raphael as having been among the three youngmen who hired him and subsequently snatched away the vehicle. PW3 deposed that she simply came to the aid of PWl when he shouted but did not see the vehicle nor the occupants but heard a sound of a speeding vehicle as she was inside the house then. As to how the Vehicle was recovered, PW5 (C.5107 Cpl. Ally) testified how on 2\2\96 he and other police officers at Chalinze they were commanded by their boss to mount a road block along the highway from Dar es Salaam as there were reports of theft of a Toyota landcruiser Reg.No. TZC 141 which they did. At midnight a Toyota Corolla Saloon, which was the orte subsequently proved to be the one stolen from-PWl, pulled at the road block and among the occupants were Raphael as driver, the Appellants and another youngman. PWS went on to say that they became suspicious of the vehicle as the driver claimed to have left the driving licence and Registration card at Dar es Salaam; the Insurance cover revealed scrubbing\scratches though Reg.No. of the vehicle indicated was TZB 1192; the plate number was not at its usual position on the vehicle but placed besides the driver while another one covered with red selotape revealed Reg.No. TZA 326 when the said selotape was removed. Appellants and Raphael were duly arrested, sent to Chalinze police station though on the way due to overcrowding in the vehicle and as the vehicle slowed down at a curve the youngman escaped. ( ) PW4, Asst. Inspector Anne, testified how she organised and supervised an identification parade at which only·Raphael and 2nd Appellant were identified by PWl. PW6 was the officer i\c at ;·.··.•.•. 6 · Chalinze Police station when Appellants were arrested. Both PW6 and 5 emphatically stated that Raphael attempted to escape at the police station after switching off the lights but was over powered. PW7 is a police officer who investigated the case. He testified that upon receiving a report concerning a stolen vehicle he interviewed PWl and decided to charge him as usually in such cases drivers must be made suspects. His further investigations took him to TIZO guest House where reports had it that, one Raphael who works there had been seen in possession of a strange vehicle though his whereabouts then were unknown. On 5th February 1993 he proceeded to Chalinze on receipt of reports of police interception of a suspicions vehicle. Indeed he found Raphael and Appellants under custody and he brought them together with the vehicle to Dar es Salaam. This vehicle snatched from PWl and intercepted at Kibaha having been identified by the owner, PW2, he released PWl. In defence Raphael and Appellants claimed that they were mere passengers as they had hiked a lift from Kibaha. 1st Appellant said that he had gone to Kibaha to see a friend who had promised to show him a shamba on sale but that when he arrived there his (friends') wife advised him to follow him at Chalinze where the shamba was situated. He got a lift in a saloon car together with 2nd Appellant only to be arrested at the Road Block. The 2nd Appellant sailing in the same boat as 1st Appellant said that he had asked for a lift as did 1st Appellant in the same vehicle and at the same time and place, Kibaha. He further stated that though a resident of Dar es Salaam he had arrived at Kibaha from Morogoro in search of his mentally ill brother, and that having missed him he decided on searching for him at Chalinze. As did 1st Appellant, the 2nd Appellant insisted that he was just a passenger and that the driver of the Vehicle was not Raphael as deposed upon by PWS but Omary who was released by PW5 himself. Regarding the alleged escape of Omary they maintained that PW5 told lies for he released him himself having gone with him to unknown destination from the arresting point. Raphael's defence was launched along similar lines. He had deposed that he had been picked up by one Omary who was driving the Toyota Corolla saloon on representation that they were going to Chalinze to collect his bundle of kanga from his (Omarys') wife who conducts kanga selling business and to whom he (Raphael) had pressed an order for the same; that at Kibaha, including 1st Appellant, he had asked for a lift only to be arrested at Chalinze road Block. As to PWl's identification at the parade they argued that this was prompted by the fact that he had seen them at CID's office. In the submissions by the prosecution and defence, which t ) submissions were merely appreciated by the trial court by just a stroke of a pen but not discussed at all, the following was presented. 7 Mr. Chacha learned Advocate for defence submitted that PWl had not produced witnesses allegedly present at the scene of crime hence corroborative evidence missed; that PWl is a hostile witness as he was proved by PW2 that he was once unfaithful in his day to day duties; that as was held in the· cases of Andrea v R (1971) HCD 141 - (wrongly cited as 41), Ludovico Kashaku v R (1967) HCD 194; Chande Said v R er. Appeal No. 216\83 (unreported). R v Chamtigiti (1970) HCD 343 - (wrongly cited as 340), Eliya & others (1972) HOC 101 and Kibonge Ramadhani v R. _{1969) HCD· 28 before conviction is found on evidence of identification by a single witness that evidence should be_ absolutely water tight, conclusively exclude the possibility of mistaken identity by disclosing marks as other features of identification and exclude the possibility of the victim's confused state of mind during identification. Lastly for defence, Mr. Chacha > learned Advocate> quoting Davies vs OPP page 195 of Evidence in East Africa by H. F. Morris, argued that PWl having been charged as first suspect though later the charge was withdrawn is an accomplice and therefore his evidence requires corroboration, and as for 1st Appellant, that as he was not touched at all by PWl's evidence his defence should entitle him to acquittal. The prosecution responding to the defence submission on the other hand maintained that PWl 's testimony does not require corroboration and it could not be expected to have witnesses around as the incident was sudden; that PWl's identification of Raphael, and 2nd Appellant at an identification parade was untainted and not as alleged by defence that it was just by design as otherwise 2nd accused (1st Appellant) would have been identified as well; that the requirements and precautions regarding evidence of a single witness do not apply in this case as the incident took place at day time; that as is the case with other persons who were charged, notwithstanding failure of PWl to identify 2nd accused at the parade, having been apprehended red handed in company of others including Raphael who was the driver of recently stolen vehicle, under the doctrine of recent possession (cited Michael Mhuto v R (1975) LRT 18 and Naftali Ngalya v R (1976) LRT 45) his guilt is a concluded affair as he failed to explain how he came by, the same. The prosecution went on to submit that the Appellants explanations had conflicted as they failed to point out the places and persons they visited at Kibaha when giving their statements to the Regional crimes officer and that this coupled with their failure to call those persons as witnesses do not take them an inch away from the doctrine of recent possession. As I have already pointed out above the trial court did not analyse the evidence and submissions. This duty I have now to do but in so doing I will also discuss the grounds of Appeal as ~resented by the Appellants .. The evidence of PWl as regards the incident stands out 8 : uncontradicted throughout. It is not disputed that the car was snatched away from him. The only question is whether it was Raphael and Appellants who did so. The incident took place in a broad daylight - he estimates the time when he was hired as being between 2.30 and 3.00 pm. Hirers of a car naturally have to face the person to be hired, have to negotiate the terms and conditions of hire including charges and destination before they even embark unto a vehicle. All this time, hires and hired are in close visual proximity. Then there follows entry into the hired vehicle - again in close proximity and in the present case- moved for a considerable distance. Indeed it would be a surprise, and can only surf ace in existence of conspiracy to conceal something if the hired was, within a short span. of time like 10 days, to be shown the people who hired him and he claimed that he didn't recall them. The identification of Raphael and 2nd Appellant by PWl at the identification parade can't be anything else but a natural sequence of visual recollection. As rightly submitted by the prosecution the defence's claim that PWl required corroboration by other witnesses present at the scene is baseless. 1st, invariably, in most cases, criminals do perpetrate their crimes where they feel that they won't be easily identified by public. In this case only PW3 was at hand and even then she was inside her house ·although she heard sound of a speeding vehicle and PWl's cries. To insist that in order to hold PWl as credible there should be other witness in the circumstances would be incredible. This is the case also with the defence' s direct attack on the prosecution case aided by a string of cited cases that PW1 's evidence required c·orroboration as evidence of a single witness, that he should have given description of how the culprits were seated and their apparel; that as he was charged he is an accomplice and last that he was a hostile witness! With respect to the defence's homework in preparation of the submission which highly impressed the trial court, while all the authorities cited indeed pronounce the law as it exists now they are not relevant to the present case. To start with the need for cort·oboration and . warning oneself when evidence of a single witness is involved. As I have stated above the offence was committed in a broad day light and the Appellants, Raphael and PW1 were in close proximity for a considerable time. The cases cited were dealing with incidents which took place when powers of vision were impaired - Andrea v R (1971) HCD 141, the incident took place at 10.00 p.m. and there was just a torch light; in Ludovika Kashaku v R the incident was at night as well and witnesses merely asserted that they had recognised the accused without explaining how they so concluded in that darkness; in ~l!and~ said v R, the court warned of possible ·honest mistaken ·..... identity of the accused by a witness but again it was at night; in Rv Chamtigi ti ( 1970) HCD 343 again the victim was shot to ) death with an arrow at night and there was established that there was no moonlight at the time; in El1ya & others {1972) HCD 101 ·,•.·: " 9 for the confused state of mind of witnesses it was also at night and were being guided by moonlight and torch flash having been assaulted with sticks and panga on head and in Kibonqe Ramadhan v R (1969} HCD 28 the evidence involved was that of a child of 10 years on an incident which took place at night). While still on this I should respond to the joint Appellants' complaint that while PW1 talked of hirers being 3 PW7 said 4 and that therefore this shows that he was unreliable, didn't properly identify them coupled with his failure to describe what clothes they put on and how they looked like. Apart from the fact that the number of hirers is not relevant, PW7's testimony regarding this would merely be heariay and in any case the leading evidence is that of the eye witness, PWl. For that matter the learned State Attorney's submission on appeal that PWl's assailants were named by him: to be 4 is not correct. At · the sametime PWl clearly testified on how the incident took place in a broad daylight and that he fully identified the people who hired him. He was able to identify that it was the 1st accused, Raphael ( who didn 1 t appeal) who was holding a pistol and seated besides him while the 3rd accused (present 2nd Appellant) was th~ one who tied him with a rope around his neck as they deliberated whether or not to kill him. He described all this in his testimony. In any case at an identification parade he identified the 2nd Appellant and Raphael •without hesitation. If he was just a mere guessing individual he would have proceeded and identified any other person provided the number tallied with that he had mentioned. On the question of identifying their clothes and their features none of the witnesses claims that at any given time, before identifying them at the parade, he was asked and failed to so explain or that he so explained contradictorily. While not subscribing to the prosecution's submission that "such an identification would be required on a disputable chattel and not a human being before the court II as time and again such descriptions form basis of contentions in court and in many cases have led to acquittals and convictions where relevant, in the present case I find the same not relevant at all on·the facts adduced. The other facet of the case of Kibonge Ramadhani vs R (1969) HCD 28 cited by Mr. Chacha, learned Counsel, on the need for description of the particulars in identification, is not relevant for the same reasons expressed al.iove. As for the defence arguments that PWl was an accomplice; hostile witness, while with due respect I fail to understand what was meant by "hostile" here for a "hostile witness" in law is clearly known and at no given moment did PWl come even closer to its defining boundaries, I have to clearly state that PWl could not be called an accomplice in this particular case simply because he was charged before the recovery of the vehicle and ) arrest of Raphael and Appellants. There is not even the slightest element connecting him with the theft of PW2's vehicle save that he was the victim due to his being its driver when it was stolen. Due to prevalence of car thefts and at times to connivance '. . 10 between drivers and thieves the police have devised this mode of operation which indeed in most cases is unjust to honest drivers like PWl. To show the reality behind this let u~ hear PW7 as to why he charged PW1 upon reporting the theft, "We did not believe of the driver's story so we framed a charge and took him to court. That is because it is a common habit for drivers to cheat the police - anyhow we continued with investigation". What is in the above quoted to make PWl an accomplice? Nothing. It is surprising that the learned defence counsel having cited the case of Davies vs DPP and indicated the definition of an accomplice thus, "Persons are accomplices who are participes criminis in respect of the actual crime charged, whether as principals or assessories before or after the fact", went on to insist that PW1 falls under that definition! It is true that in cross examination PWl's employer, PW2, did say that in 1992 he (PWl) did not keep pro~er accounts with an explanation that it was due to non payment by clients which he later reimbursed but this is a different matter and don't make him an . accomplice in this particular case. Whether an accused is an accomplice or not can be gathered from the circumstances surrounding the commission of the alleged offence, in-particular his relationship with the other accused persons {AMANYISYE MWANDAGA AND 3 OTHERS V. R, (1976) LRT NO. 14}. As for the identification parade, a part from PW4 admitting that she didn't inform the Appellants and Raphael that they could call relatives\friends or advocate to witness it, was conducted properly. PWl deposed how he moved from the CID's office only to find the parade already arranged. If it were true that they were together in the CID's office before, defended as they were, they could not have failed to raise this in cross examination. I find that PWl identified Raphael and 2nd Appellant not because of any· other influence but upon recollection of having seen them as they hired him, during the course of driving them and during the theft of the vehicle he was driving. Concerning the stoppage of the stolen vehicle at Chalinze road block and the finding of Raphael and Appellants in the said vehicle this is not disputed at all. However one of the disputed features is who was the driver. PW5 testified that it was Raphael while the defence maintains that it was the youngman who escaped under the aid of PW5. Raphael and appellants said that PW5 moved with the driver, leaving others behind, to unknown place and after a while returned alone with the keys and a police officer _; drove them to the police station. PWS says that the youngman escaped when the car slowed down at a curve as they were fully parked ( seven of them) . I have the disadvantage of not having seen PWS depose, and as pointed out before, the trial court did 11 not analyse the evidence, but a thorough analysis of the evidence on record leaves me convinced that he is a credible witness. His evidence runs systematically, on how they were two police officers at the Road block, how they stopped and interviewed Raphael and Appellants and the fourth person, how they checked the Toyota vehicle discovering suspicious marks, how shortly after they were joined by 3 other police officers; how Raphael and Appellants pleaded with them to accept money and release them and how the youngman who had claimed to be a student escaped on the way. His evidence that Raphael attempted to escape at the police station as their particulars were being recorded is fully supported by PW6, who was on duty as an officer i\c of shift. I hold that it was Raphael who was driving the said vehicle. With all this in place let us now turn to the particular question, that is the guilty or not of the Appellants ( and Raphael). The trial court simply said that it was satisfied with defence submission on id~ntification. Although it did not say so in so many words (which led to uncertainty to the extent that the. Appellants in this appeal still argue on it) the trial court seems to have concluded that there is in-sufficient evidence of identification of Raphael and 2nd Appellant by.PWl but proceed to convict them on the principle of recent possession alone. However, as I have already demonstrated, it was sufficiently proved that Raphael and 2nd Appellant were among the three youngmen who hired PWl and subsequently snatched the Toyota Vehicle from him. What about the 1st Appellant (Mziray)?. As the evidence goes he was not identified by PWl as having been among the people who hired him. He did not identify him at the identification parade although surprisingly in his (2nd Appellant) defence but not in appeal he seems to say that he was! It is not surprising therefore that in his individual grounds of appeal he argues that had he been one among the thieves PWl would have identified him; and on the question of recent possession he says that his explanations of having asked for a lift is sufficiently put to entitle him to acquittal and cited Salehe Seleman case (supra). While I am convinced, that Selemani's case cited is irrelevant because the crime was committed at Shekilango and not at Chalinze road block there is substance in the other argument regarding the sufficiency of his defence. Before we go into it however, let us turn to what the law says on the doctrine of recent possession. In Michael Mhuto v Republic {1975) LRT 18 an exposition of this doctrine in Shedi Sheweji v R (HC of Tanzania Cr. Appeal No. 69 of 1974\0 was quoted with approval. ·... ·.. . 12 : "Although this doctrine of recent possession has been variously expounded, there is no mystic about it. Simply stated all the doctrine is, that finding of property recently stolen in the possession of a person raises a presumption of fact, not of law, that the possessor either stole it himself or received it knowing it to have been stolen or unlawfully obtained, depending on the particular cirmustances, and this presumption can be rebutted by such person giving an explanation of innocent possession, which may reasonably be true, and it is not necessary for him to satisfy the court that his possession was innocent''. As has been insisted upon time and again by Courts regarding -this doctrine of recent possession the accused is required to "· give just what could reasonably be true in the circumstances in relation to how he came in possession of the stolen ~rticle. In the present case the 1st Appellant, Mziray, maintained that he had been given a lift from Kibaha to Chalinze after being told that his friend at Kibaha who had promised him a shamba to purchase was at Chalinze. Although this kind of explanation is highly suspicious, especially when one considers the time (midnight) when he was arrested at the road block, the fact that the burden on him is just a sli~ht one gives it feet to stand upon. He need not prove its truth. This is more so when PW7's evidence is considered as well for he (1st Appellant) seems to have given a similar explanation (shortly after arrest) when he was interviewed by the Regional Crimes Officer, Pwani, although the witness (PW7) at another stage says that he changed and said that he had been asked by Raphael to accompany him to Moshi to assist in getting a customer for the stolen vehicle. PW7's evidence on these statements to the RCO seem to be hearsay for he doesn't clarify as to whether he was present also when they were being made. In the premises, however much suspicious, I find that the 1st Appellant ( Mziray) gave, in law, a sufficient explanation as to how he came to be in the stolen vehicle and hence can't be found guilty under the doctrine of recent possession. The same would have been the case with the 2nd Appellant (Abdallah C. Athuman) and Raphael, though again, very suspicious for no one would search for a sick brother in the dead of the night nor transact lawful business at that hour. Unfortunately for them however there is clear identification of them by PWl as having been among the people who hired him and subsequently forcefully took away the Vehicle. This clear identification together with their being found in possession of the Vehicle they had stolen just a day or two later can't require any louder declaration of Raphael and 2nd Appellant's guilt beyond doubt. Though having concluded as above it becomes unnecessary, let me briefly comment on the other joint complaint that there was no evidence that they were concerned with defacing of the Reg.· numbers and those numbers appearing on window glasses of the • : 13 : Toyota Corrolla. Here it suffices to say that this is inclusive in the general principle of recent possession. Once it is established that an accused is guilty of a particular offence under the doctrine of Recent possession, and the offence itself involves property he will be taken to have effected any changes on the said property and when particularly the said changes clearly show that they were intended to disguise or make the subject matter not easily identifiable by the owner or anyone searching for it. For the 2nd Appellant, the above stated makes discussion of the other ground of complaint allegedly of being framed up as he refused to bribe the police shs. 40,000/= ask~d for superflous although, for the sake of argument, I am on all fours with the learned State Attorney who said that this is just an after- .. thought hatched on appeal and as it was discounted by evidence :,. on record. However, for him (2nd Appellant) there is yet another complaint concerning the nature of the offence committed. He said that if anything the offence committed is simple theft and not Robbery with violence. In concluding paragraph, when convicting appellants and Raphael, basing on the doctrine ·of recent possession, the trial court said and for clarity I quote:- "On the issue of use of arms, I find that there has been no sufficient evidence as the use of the said Pistol if at all there was one. The same was not found later on mention by any other witness other than PWl. Having said so I remain with the evidence on the offence of Robbery with violence. That is from the PWl evidence that the culprits had tied(?) just before they made away with the vehicle. For those reasons I hereby convict all the three accused for the offence of Robbery with violence is lesser offence than the armed Robbery". The 2nd appellant has argued that in the absence of production of the alleged pistol or rope with which PWl alleged to have been threatened and tied the trial court misdirected itself in finding a conviction on the offence of even Robbery with violence instead of simple theft. In the above quoted statement by the trial court I am made to infer that it did believe PWl that he wasn't threatened with a pistol but that he was tied with a rope! I find no basis in arriving at this conclusion. It is unfortunate that we would have been able to know what led to this conclusion if the evidence had been analysed but it was not. So we are left in the dark. However as I have already held and indicated I have analysed the said evidence. I can't see how the trial court could find PWl credible on the story concerning a rope and discredit him on the pistol. As I have already demonstrated there is no way PWl's evidence can be discredited. I do concede that a trial court is always the 14 better judge when it comes to the demeanour of the witness but as I have already shown and so are various authorities, a first· appeal court is entitled to make its own evaluation of the evidence and make its findings and views and particularly in a case like this where the trial court never bothered to analyse the evidence and where the victims narrative is straight forward and uncontradicted. He demonstrated that the 1st accused (Raphael) at the trial held a pistol to him as he was seated besides him while the 2nd Appellant tied a rope around his neck and then deliberated whether or not to kill him. It could not be expected that in those circumstances this saga could be witnessed by someone else for purposes of testifying on the same as trial. court seems to say in the 2nd line of the above quoted paragraph. In the circumstances, contrary to the 2nd Appellants' contention, the issue here should be whether it was Robbery with violence or Armed Robbery and not Robbery or simple theft. In the present case the Appellant and his friends from the time they acted and pretended to hire him ( PW .1) till they reached Shekilango road they had not exhibited their violence at all. In their mind they were sure that they were luring PW1 to what they considered to be safer place for their intended crime. As to what happened at the scene (Shekilango) let PW1 give the story, " ... The passenger on my left ordered me to stop at gun point. I stopped .... Then someone sitting behind me pul a rope around my neck and tied me to the car seat. It was sisal rope. The passenger on my left ordered me to drop out under gun point .... I saw a black pistol. They bargained to kill me but the passenger on my left asked the other two not to kill me. They did not shoot at me but they drove off the vehicle after pulling away the rope from my neck". I don't see how this set of facts can escape the definition of aggravated robbery that is armed robbery whibh is defined under ss. 285 and 286 of the penal code as follows:- (s.285) .... stealing anything, and at or immediately before or immediately after the time of stealing it, uses or threatens to use violence to any person or property in order to obtain or retain the thing stolen'or to be ~revent or over-come resistance to its being stolen or retained ..... " Under s. 286 it becomes an aggravated robbery if among others the "offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons., ... ,or uses violence to other persons", 15 Applying the above definition on the disclosed facts clearly demonstrates the fallacy of the 2nd Appellant's argument that it was simple theft, and with respect to the trial court, that it was simply Robbery with violence. The offence disclosed is robbery but of an aggravated nature as charged·- armed Robbery ·and this is the offence with which Raphael and Appellants should have been convicted. Had the trial Court analysed the evidence and properly directed itself it should have come to this obvious finding. It is a pity that for one reason or another the Republic\Respondent didn't cross appeal on thi& matter. Under s. 366 (1) CPA the court may ..... (a) in an appeal from a conviction - (i) ........... (not relevant) (ii) alter the finding, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence; or (iii) with or without such reduction or increase and with or without altering the finding, alter the nature of the sentence. ( b) ( C) (2) (a) ( b) (3) Nothing in this section shall be construed as precluding the court from inflicting a greater punishment than the pufrishment which might have been inflicted by the court ......... which imposed the sentence" In the light of this clear section of the law and in view of the evidence as already analyzed both finding and sentence have to be altered. I should hasten to add that even if the finding (that is conviction on Robbery with violence) was to be maintained invariably the sentence should have been varied because the seven years imprisonment passed by the trial Court is illegal as the minimum sentence for Robbery is 15 years vide Act 10 of 1989. 16 In arriving at the conclusion as exemplified in the preceding paragraph, convinced that it is the only proper course in the circumstances, apart from the above quoted section of the CPA, I have been fortified by guidance of the Court of Appeal pronounced in the case of Mussa Alobagast Mtalemwa v R (1990), Tanzania Court of Appeal Cr. Appeal No. 172 of 1990 (unreported) almost on a similar situation. And indeed for their case, their lordship's situation was a bit complicated for they didn'thave the aid of an all round provision of the law as S. 366 (1) CPA which is at my disposal; the appellant had not complained of the nature of the offence with which he was convicted as it was a lesser offence unlike in this case where he made it an issue though like in this case the Republic\Respondent hadn't· cross appealed. In the above cited case like the present one, Mussa Albogast Mtalemwa, Appellant was found in possession of a stolen vehicle which he had snatched at gun point 2 days b~fore. The trial Court convinced of the obvious evidence tendered convicted on Robbery but on appeal the High Court substituted the same with Receiving stolen property c\s 311 (1) of the Penal Code. The High Court reduced the sentence from 15 y~ars to 8 years. Mussa Albogast Mutalemwa thinking that there was injustice on his heels appealed to the Court of Appeal. The Court of Appeal faced by the glaring evidence of Robbery on one side and the naked error by the High Court on the other, all crad in the absence of non existence of a cross appeal by the Republic\Respondent, after discussing Rule 36 of the Court of Appeal Rules which among others states, "The Court (Court of Appeal) may in dealing with any appeal, so far as its jurisdiction permits, reverse or vary the decision of the High Court ... ", in relation to its earlier decision in Godfrey James Ihuya and 3 others v R (1980)TLR 197 which decided that the court had to increase or decrease the sentence when either the prisoner or the Republic appeals" went on to hold, "So here we go further to say that when a party appeals to this court then we are not just limited either to uphold the appeal and grant the reliefs prayed for or to dismiss the appeal and leave intact the decision appealed from. The party who appeals lays himself bear and gives the Court the power it would not have had if he had not appealed. Thus there is a third alternative. This is where the Court says: 'Yes, the lower Court has indeed erred but not in the way the appellant contends that injustice has been done· to him but rather that the appellant ought to have been found guilty of a more serious offence or that he deserved a stiffer sentence ·.·, .·.·-··•··. 17 : than the one that was administered to him'. Thus if a party appeals against conviction then instead of dismissing the appeal or of allowing it and acquitting him, this court could find him guilty of of a more serious offence of which he was charged but acquitted by the lower court and consequently enhance the sentence. Likewise, if the appeal is against sentence only, then in appropriate case, this court could enhance it instead of reducing it as was pleaded by the appellant or leaving it intact" The court then declared (citing an East African Court of Appeal case, Merali and others VR Reported in ( 1971) in HCD No.145, and insisting on its powers under s.4 (2) of the Court of Appeal Act, 1969) " once we ..... have come to the opinion that the lower court has erred we then can step into the shoes of the lower court and make the necessary corrections .... " ( emphasis mine). The High court finding of conviction on Receiving stolen property was quashed and substituted with one of Robbery and so was the sentence of 8 yrs which was enhanced to the minimum sentence of 30 yrs as per Act 10 of 1989. As I already said, though facts of the Mtalemwa case are almost the same as those in the present case, the court which made the decision is ditf~rent (Highest court of the land) and was dealing with powers provided under a different Act BUT surely powers provided to the present court under s.366(1) CPA are wider and more specific hence adoption of the Tanzania court of Appeal reasoning as expressed above, even if for guidance, is legally befitting. In conclusion therefore the Appeal by 1st App~llant, Charles Simon Mziray is hereby allowed. Conviction is quashed, sentence set aside and should be set at liberty forthwith unless otherwise lawfully held. As for the Appeal in respect of 2nd Appellant, Abdallah C. Athuman it is hereby dismissed with a variation that armed Robbery is substituted for Robbery with violence with which he was convicted and the sentence of seven years is set aside and substituted therefor is a sentence of 30 years imprisonment which 1s the bear minimum under Act 10 of 1989. That said, my mind has been greatly exercised by what I should do with Raphael, who was the 1st accused at the trial and who did not appeal. In such cases the courts usually treat the matter as having come up before it on revision hence application of revisional powers (Bachuba Amerika and others v R (1979) LRT NO. 8). And in cases of enhancement of sentences the practice is to call upon the accused\convict by notice to show cause why the sentence should not be enhanced but this is only applicable in situations where the court will have discretion to pass ·:-:-.·.- 18 appropriate sentence pertaining to the circumstances and not in ~ases wher8 mini1num sentences are prescribed and there is no room for discretion. The High Court clearly demonstrated this in th?. case of Rv. Abraham Hassan (1977) LRT No. 22, where among others, it held, the general procedure in the enhancement of sentences is that the accused must be served with an enhancement notice to enable him appear in court to clefend himself". The Court then went on, " .... when dealing with notices of enhancement to an accused person one must differentiate three categories of conviction, firstly, of offence falling out of the Minimum sentences Act, secondly, those within the Act but still the courts are empowered to exercise some discretion to award sentences less than the minimum if there are special reasons and circumstances, and lastly there are those convictions on offences for which the legislature has given no discretion to award a sentence less than the minimum . . . . . for the l~st category of offences ..... it is futile and indeed unnecessary exercise to insist that the accused'be heard before his sentence is ~orrected from the il1egal sentence of the lower ,I - \ I court to the minimum mandatory sentence". In the present·· case using revisional powers, I hereby set aside the conviction for Robbery with violence· and substitute therefor a conviction for armed Robbery. As regards sentence, as earlier on explained, even if the findirig had not been varied the sentence of seven years meted out on Raphael and Appellants was illegal -obviously, I would have corrected it to 15 years imprisonment. ·As cle~rly put in Rv Abraham's case it would be a futile exercise to serve a notice of enhancement to Raphael as the court cannot reauce even an hour on the prescribed minimum ~nd does not intend to pass any sentence in excess of the said minimum prescribed. How, in view of this variation in conviction, to armed Robbery, the only proper sentence as per Act 10 of 1989 is 30 years imprisonment which is hereby substituted for the illegal seven year term of imprisonment passed by the tria1 Guurt. Sen Lf:rnce to :-:; li:lr t running from the date of conviction. 19 AT DAR ES SALAAM L. B. Kalegeya) ( 0 PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION 5TH MAY, 1996. . De 1 ivere ffe <iv..v...1'116in d on t h e ........... . th e presence of ~- f!'!.u/.'!/(.ff . . State Attorney, for the Republic\Respondent and presence\aeeeaee of Appellant. (L. B. Kale eya) AT DAR ES SALAAM PRINCIPAL RESIDENT MAGISTRATE' WITH EXTENDED JURISDICTION £/{19 6 ;----.....-· ' j I .:r,1f'.W 11111 ,hi, ,s 4 1rue 11nJ Co•:c.::r ·:,,p:,, I ,,1 ;t,c 01titr••I 1JcJc1/Judt('fl!Ofi..CuJw~. I . I ~ S,-,:,,, , / ~,.•~·.,,ii !~,·.J··'t••tr U,'JII ( · .,, ••._._; 1:,,.: '"", Ill L.4 ...... - - - - - - - - - - - ~ - - - - -