fulgence fortunatus mayunga vs republic 2006 tzhc 222 19 january 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 17 OF 2004 (ORIGINAL DC MOSHI ECONOMIC CASE NO. 1/2001 FULGENCE FORTUNATUS M A Y U N G A - APPELLANT VERSUS THE R E PU B LIC ------------------------------------RESPONDENT JUDGMENT HON. JUNDU. J. The Appellant, one Fulgence Fortunatus @ Mayunga, in the trial court was charged with two (2) counts. In the first count, he was charged with being in unlawful possession o f firearms without a licence c/s 13 (1) o f the Arm and Ammunition Ordinance Cap. 223 o f the law read together with paragraph 20 o f the First Schedule and Section 59 (2) o f the Economic and Organized Crime Control Act No. 10 o f 1989. The particulars o f the offence were that the Appellant on the 17th day of January, 2000 at about 08.00 hours at Kambi ya Raha area within Hai District, Kilimanjaro Region was found in unlawful possession o f one fire arm to wit Pistol o f Browning without licence or permit. In the second count, the Appellant was charged with unlawful possession o f Ammunition c/s 13 (1) of the Arms and Ammunition Ordinance Cap. 223 read together with para 20 o f the First Schedule to and Section 59 (2) o f the Economic Act No. 13 o f 1984 as amended by Act No. 10 o f 1989. The particulars o f the offence were that the Appellant on the same date, time and place above mentioned within Hai District, Kilimanjaro Region was found in unlawful possession o f 15 rounds of ammunition o f Pistol gun without a licence or permit. In the trial court, the trial magistrate found that the crucial issue to be determined as per the evidence adduced by the parties before her was whether the Appellant was found in unlawful possession o f firearm namely the pistol and the 15 rounds o f ammunition. She was satisfied with the evidence o f the prosecution witnesses that a pistol (Exh.Pl) and 15 rounds o f ammunition (Exh.P2) were discovered and found underneath a wooden hut/kiosk situated inside the compound o f the Appellant during the search conducted by the Police and witnessed by a ten cell leader. She disagreed with the testimony and submission o f the Appellant that: there were contradictions in the evidence o f the prosecution witnesses; two searches were conducted by the prosecution witnesses; some police officers from Moshi who took part in the search were not called to testify in the trial court; the hut/kiosk where ammunition were found was in an open place whereby anyone could come and leave without the Appellant’s knowledge; he was not involved in the search that had lead to the discovery o f the said items and that he was not found in possession o f the said items. The trial magistrate based on the evidence o f the prosecution witnesses found the Appellant guilty as charged, convicted him and sentenced him to a term o f 15 years imprisonment on the first count and to a term o f 2 years imprisonment on the second count. Both sentences were to run concurrently. Having been aggrieved by the said conviction and sentence imposed on him by the trial magistrate, the Appellant has appealed to this court listing the following grounds o f appeal in his amended Memorandum o f Appeal namely: 1. That, the learned trial magistrate erred in both law and in fact by convicting the appellant with a charge that was not proved beyond reasonable doubts as required by law. 2. That, the learned magistrate failed to note that the alleged Exhibits PI and P2 collectively found at the compound o f the Appellant after the second search that was conducted in the absence o f the ten cell leader during the first search thus finding the Exhibits after the second search. This shows irregular procedures in the mode o f searching thus bringing doubt. 3. That, the learned magistrate ought to have found that after the first search was conducted the Appellant was arrested and taken to Boma N g’ombe Police Station and his family was left under the custody o f the Police who took cover at the Appellant’s compound. The second search was conducted after the arrival o f the Appellant from the Police Station. This clearly proves that the prosecution witnesses clearly show they were the ones concerned in planning the alleged weapon in order to convince the R.C.O. that indeed they found the alleged exhibits from the Appellant’s house which was not true. 4. That, the learned magistrate erred in both law and fact for believing the prosecution evidence without warning himself that the evidence adduced before him had a lot o f doubts, hence the prosecution side failed to call the house boy o f the Appellant by the name Mushi who was said to have confessed to ASP Christopher that the weapons were taken to the house o f a person by the name o f Elisamia Onesmo. Failure in doing so shows evidently that the prosecution failed to prove its case. 5. That, the learned Magistrate failed to consider that at the conduction o f the second search, the ten cell leader was contacted and was amongst the eye witnesses who saw the exhibits being fished from the bottom o f a wooden kiosk. The question remains that why wasn’t he present during the first search. The prosecution side claimed they did not contact him fearing gun shorts from the Appellant’s compound on entering, bearing in mind that the ten cell leader was a retired army person. This brings out the picture o f fabricated evidence for reasons known by the prosecution. 6. That, the learned magistrate gravely erred in law and in fact for not considering that this Offence occurred at Hai District, but what is surprising is that the appellant was charged at the Resident Magistrate (RM) Court. W asn’t there a court o f law at Hai District? Why weren’t Police Officers from Moshi Police Station called to testify then? These were tricks played by the prosecution side in order to hide the truth. 7. That, the learned magistrate ought to believe that the prosecution side conducted this case in their own interest and benefit. Refer to the copy o f Judgment on page 4, Paragraph 3, the cross-examination o f PW.3 by the Appellant, it shows that the Appellant was arrested on the 17th day o f January, 2000 but what brings doubt is PW .3’s testimony o f recording his statement on the 27th day o f October, 2000 which was after the completion o f the investigations. If this was so, how long did it take police to complete their investigations while exhibits were found during my arrest if this evidence was not framed up? 8. That, the trial magistrate ought to have noticed the contradiction between evidence given by the prosecution side witnesses because it was uncorroborative. Take for instance j PW.3 testified that the Appellant was ten steps from where exhibits were found, while PW.2 who is the Police Officer who drew the occurrence diagram said I was only two steps from the exhibits, among others who should we believe. \ 9. That, if the trial magistrate took note o f the diagram drawn o f the scene o f arrest, he ough to have noticed that where exhibit I was found was outside my house near a wooden kiosk. This brings the picture o f planted evidence a way from the Appellant. The police left me at my house, went to the wooden kiosk and came back with the exhibits. Refer to the diagram o f the occurrence scene annexed herewith. Based on the aforesaid grounds o f appeal, the Appellant in his Memorandum o f Appeal, prayed to this court to allow the appeal, quash and set aside both convition and sentence imposed on him by the trial magistrate and order the release o f the Appellant from the prison. The Appellant was unrepresented while the Republic/Respondent was represented by Ms. Makala, learned State Attorney. On the date o f hearing 15/11/2005, the Appellant stated that what he had stated in the above grounds o f appeal sufficed to argue and dispose off the appeal on his part. On the other hand, Ms. Makala resisted the appeal. She supported conviction and sentence passed by the trial magistrate against the Appellant. Ms. Makala, in her submission contended and I quite agree with her that in this appeal, the Appellant main challenge is that the prosecution did not prove its case beyond reasonable doubt as required by law. That is vividly put in the 1st ground o f the appeal by the Appellant. Further, the Appellant, as submitted by Ms. Makala challenges the legality o f the search(es) done by the investigation officers who went to search his premises. This touches grounds 2, 3, 5, 8 and 9 o f the Amended Memorandum o f Appeal filed by the Appellant. The Appellant further challenges the prosecution side for failing to call some witnesses involved or who were present during the search conducted at his premises. This touches ground 4 as well as 6 o f the appeal. He further challenges why the case was heard in the Resident Magistrate Court and not in the Hai District Court in the jurisdiction where the crime occurred. This also touches ground 6 o f the appeal. He also complains o f contradictions in the prosecution witnesses as contended in ground 8 o f the appeal. The list o f complains is not exhaustive but in effect the main contention is that the prosecution did not prove its case beyond reasonable doubt as earlier stated. On the legality o f the search exercise conducted by the investigation officers, the Appellant contends that two searches were conducted at his premises. He contends that on the date he was arrested, he was arrested during the night and the police who arrested him conducted a search inside his house during the same night. But nothing was found. He was thereafter taken to police station where he was locked up and at 8.30 hours the police came and told him that the search they had conducted during the night had not satisfied them so they took him back to his house where he met his family under arrest in the same place he left them before he was taken to the police station and locked up during the night. He alleged that he was put in a comer o f his house and was left there while the policemen went to search around the compound o f his house. He had requested that the ten cell leader (PW.2) be called and by the time the search began he had not yet arrived. He contended that by the time he (PW.2) arrived, search was continuing and he was just informed by the policemen who were conducting the search that what they had already found (pistol and 15 rounds o f ammunition) and that they simply took him behind the hut/kiosk and showed him the area they had found the items. He contended that the ten cell leader (PW.2) had argued the police officers why they had conducted the search before he had arrived and they replied that they had just discovered the firearm and the ammunition. He further contended that the ten cell leader (PW.2) demanded that the search should begin inside the house o f the Appellant so the house was opened and they entered inside it but the ten cell leader (PW.2) was surprised to find goods scattered inside the house which forced the police officers conducting the search to inform the ten cell leader that they had already conducted the search inside the house and that they did not find anything. The Appellant contended further that he was not involved in the second search because by the time the police officers were conducting the said search he was under arrest and at a distance o f about 17 metres from the search area though in the sketch map (Exhibit “P.4”) tendered and admitted in the trial court it was shown that he was 10 metres away which he alleged that it was not true. Other points taken up by the Appellant as regards the alleged search is that the house boy o f the Appellant by the name o f Moshi who was said to have confessed to ASP Christopher that the weapons were taken to the house o f Elisamia Onesmo was not called by the prosecution to testify in the trial in the lower court so were the police officers from Moshi Police Station who were involved during the search. Ms. Makala, as far as the issue o f legality o f the search is concerned, she contended in her submission that it was conducted according to the laid down procedures and that the weapons (pistol and 15 rounds o f ammunition) were found about or around 08.30 hours in the presence o f an independent witness, the ten cell leader (PW.2). She contended that the said witness witnessed the entire search exercise outside the Appellant’s house whereby the weapon (Exhibit P I) and the 15 rounds o f ammunition (Exhibit P2) were found under the Kiosk within the compound o f the Appellant. The said items were tendered by the prosecution in the trial court and admitted thereto including the search certificate (Exhibit “A3”) and the Sketch plan (Exihibit P4) showing the scene of the crime. Ms Makala further contended that Exhibit “P I ” and Exhibit “P2” were found underneath the kiosk within the compound o f the Appellant and that in law citing the decision o f the Court of Appeal in Moses Charles Deo V. Republic [1987] TLR 134 the said items found were in constructive possession o f the Appellant as he had control over them and was aware o f their presence underneath the kiosk/hut in his compound. Ms. Makala, on the said basis, argued that there was no need on the part o f the prosecution side to call other people who the Appellant alleged that were not called to testify on the prosecution side at the trial including one Mushi, the alleged houseboy o f the Appellant and the police officers from Moshi Station who took part in the search conducted at the Appellant’s house. As regards the contention o f the Appellant that the case was heard by the Resident Magistrate Court instead o f the Hai District Court in the area > which the offence was committed,7Ms. Makala submitted that there was no violation o f any law because the Hai District is within the jurisdiction o f the Resident Magistrate Court o f Moshi which heard the case. She submitted further that even the consent which the Director o f Public Prosecutions issued for prosecution o f the case he had directed the case to be heard by a Resident Magistrate. In any case, she argued that hearing o f the case by the Resident Magistrate Court o f Moshi did not occasion any injustice to the Appellant. Based on the aforesaid submissions, Ms. Makala argued that the conviction and sentence imposed on the Appellant were proper and valid and she supported them and prayed to this court to dismiss the appeal filed by the Appellant. I have carefully considered the submissions o f both parties in respect o f the grounds o f appeal filed by the Appellant. I have also read the record o f the trial court and the Judgment o f the trial magistrate appealed against. I will now proceed to consider and determine the various grounds o f appeal or issues arising in this appeal. In his first ground o f appeal, the Appellant has contended that the trial magistrate had erred in law and fact to convict him on a charge that was not proved beyond reasonable doubt by the prosecution as required by law. The Appellant was charged with being in unlawful possession of firearm and ammunition. I have already set out the details o f the charge and the particulars o f the offence at the beginning o f this Judgment. The issue to be determined and which in my considered view was also the issue that was considered and determined by the trial magistrate was whether in view o f the evidence adduced before the trial court the Appellant was found in possession o f a firearm namely a pistol and 15 rounds o f ammunition unlawfully as charged. Ms. Makala, learned State Attorney in her submission argued that the prosecution had proved its case beyond reasonable doubt judging from the evidence adduced by prosecution witnesses in the trial court, that is the firearm (pistol) in Exh. PI and the 15 rounds o f ammunition in Exh. P2 all found underneath the kiosk o f the Appellant during the search conducted in the Appellant’s compound. Other exhibits were the search certificate in Exh. “A3” and the sketch plan for the scene o f the crime in Exh. P.4. She submitted that the said search was witnessed by the ten cell leader (PW.2) o f that area. The trial magistrate evaluated and analysed in depth the evidence o f the prosecution witnesses in respect o f the said items and how they were found and those who witnessed the search. I am satisfied that the trial magistrate had correctly evaluated and analysed the evidence on record as regards the search conducted and the discovery o f the above named items underneath the kiosk/hut in the compound o f the Appellant. It left no doubt that the prosecution had proved its case beyond reasonable doubt. The evidence on record is very clear that the Appellant was found in unlawful possession o f the pistol (Exhibit P I) and the 15 rounds o f ammunition (Exhibit P2) underneath the said kiosk. It should be taken that he was aware actually or constructively o f the presence o f those items in the said place as was held by the Court o f Appeal in the case o f Moses C harles Deo Vs. Republic [1987] L.R.T No. 134 cited to me by Ms. Makala and referred by the trial magistrate in her Judgment (P.8). In grounds 2, 3 ,4 , 5, 6, 8 and 9 o f the appeal, the Appellant has challenged in various ways the search conducted at his place interalia that the search was conducted twice, he was not involved in the second search, the search was conducted in the absence o f the ten cell leader (P.2) the police officers planted, the items discovered during the search, he was kept at a distance o f 17 metres from the searched area, there were contradiction’s in the evidence o f the prosecution witnesses as regards the said search and that one Mushi, his houseboy present at the search and the police officers from Moshi Police Station involved in conducting the search were not called by the prosecution to testify in the trial in the lower court. Ms. Makala in her submission contended that the search was properly conducted by the police investigation officers according to the laid down procedures leading to the discovery of the pistol (E xh.Pl) and the 15 rounds o f ammunition (Exhibit P.2) underneath the kiosk in the compound o f the Appellant witnessed by the ten cell leader (PW.2). In my considered view, the issue to be addressed at and determined is whether the various alleged attacks to the conducted search raised by the Appellant in the named grounds o f appeal can invalidate the decision o f the lower court. The record shows that the Appellant had raised some o f these matters when he was adducing evidence in the lower court and in his final submission he made in writing in the said court. My proper reading o f the record o f the lower court and the Judgment thereon clearly shows me that the attacks raised by the Appellant lack legal footing to stand on or have no basis at all. For example the Appellant contends that he him self was not involved in what he calls the second search and that the ten cell leader was not present during the said search. However, the evidence o f the said ten cell leader (PW.2), Salvatory Suhusi Makongo on record stated clearly that he and the Appellant were present during the said search and present when the items in Exhibit PI and P2 were discovered underneath the Kiosk in the compound o f the Appellant ( P. 17 o f the typed proceedings o f the lower court). This also discounts the allegation o f the Appellant that he was about 17 metres away from the place where the search was conducted. The trial magistrate in her Judgment (P.6) had time to consider the points or attacks raised by the Appellant in this appeal as follows:- “— Accused further submitted that, where the kiosk is, is an \ open place whereby anyone can come and leave without the accused person’s knowledge. The accused person in his long submission strongly objected the whole o f prosecution evidence submitting that the witnesses evidence contradicts each other as one witness stated search was conducted twice, while another states that •_A ' search was conducted once.In short the accused person tried to evaluate the contradictions in prosecutioncase. He lamented that Police Officers from Moshi who were alleged to have taken part in arresting him at his house and who took part in search exercise none o f them testified in court so accused person concluded his submission asking this court to give fair justice to both parties. Despite the fact accused person tried very much to create doubts in the prosecution case the crucial fact remained that a pistol make browning was found underneath a wooden hut situated inside the compound o f accused person. As stated by all witnesses who testified here in court the search which led to the recovery o f PISTOL and 15 ROUNDS OF AMMUNITION were witnessed by all who were present i.e Accused person himself, his ten cell leader PW.2, OC C.I.D. HAI ASP. HENJEWELE, P W .l, PW.3 D/SGT. BARNABAS, PW.4 D/CPL RAJABU all are eye witnesses. The allegations that accused person was not involved in that search had no slight truth in it. Even his witness DW.2 Michael Raphael Mushi, admitted that, they were all outside the house o f accused person together with accused person. They were surprised to see a PISTOL found in a Malboro Plastic bag.” It is clear to me from the above quoted paragraphs in the Judgment o f the trial magistrate that she had applied her mind to some o f the inconsistencies raised by the Appellant in respect o f the search conducted by the police investigators at his place but the trial magistrate held that the crucial fact remained that a pistol and 15 rounds o f ammunition were found underneath the kiosk in the compound o f the Appellant in the conducted search and the same was witnessed fully as stated in the said quoted paragraph in her Judgment. I fully subscribe to the findings o f the trial magistrate on the said inconsistencies and I have no reason to disturb them. What about the Appellant’s complain that the search was conducted twice and that the police officers from Moshi did not testify? This matter was also considered by the trial magistrate in her Judgment (p.7). She stated as follows - ; “This court is convinced beyond doubt that, the prosecution has managed to prove that the accused person was found in possession o f a PISTOL together with 15 rounds o f AMMUNITIONAL at his home in a wooden hut which is a property o f accused person. This court placed little weight on defence case because and as agreed by accused person that his ten cell leader witnessed the search and he has no grudges with him this was a very crucial witness in this case; concerning search being carried twice PW .l ASP. Henyewele explained clearly why he had to conduct a minor v search as soon as they entered inside the house o f accused person i.e because accused person was suspected to have kept weapons Guns and Pistol illegally, they had to make sure the the same was not within reach to avoid, the danger o f being shot. Further more, when PW. 1 testified he stated that, after failing to see the weapons he asked one Mushi who was * \ referred as accused person’s house boy who answered him that, if the weapons are not at home, they might be Elisamua’s house, this is accused person’s friend. This piece o f evidence clearly proves that accused person had weapons only that there were not in his house; A search at Elisamua’s house was not fruitful as no weapon was recovered. Instead Pistol and 15 rounds o f Ammunition were found underneath a wooden hut/Kiosk at accused person’s house. Again at the preliminary hearing the prosecution gave the names o f four witnesses and some o f them are the ones who testified in court. There’s nothing in law which requires that all witnesses should come and testify. The allegation that prosecution has failed to call Moshi Police Officers who were present or rather who took part in the whole exercise o f arresting accused person as well as conducting search in the house o f accused person, this failure does not occasion any injustice on the part o f accused.” In my considered view, the trial magistrate had properly applied her mind as regards the evidence and the complains o f the Appellant that the search was conducted twice and that some police officers from Moshi Police Station who took part in his arrest and the conducted search were not called by the prosecution to testify during the trial in the lower court. This in my view also applied to one Mushi, the alleged house boy o f the Appellant who was also not called by the prosecution to testify in the trial court. I need not disturb the position stated or held by the trial magistrate. \ From the foregoing paragraphs, I find and hold that the complains set forth by the Appellant in grounds 2, 3, 4, 5, 6, 8 and 9 o f the Appeal have no merit. Therefore cannot invalidate the decision o f the trial court. As regards ground No. 7 o f the appeal, the Appellant contends that it was improper for the case to have been tried at the Resident Magistrate Court in Moshi instead o f the Hai District Court .'•I ' where the offence was allegedly committed. This is disputing the jurisdiction o f the trial court. However, I fully agree with the submission o f Ms. Makala, learned State Attorney that the Hai District is within the jurisdiction o f the Resident Magistrate Court o f Moshi and that the consent which had been given by the DPP was for the case to be tried by the Resident Magistrate Court. The record so bears. I find and hold that ground No. 7 o f the appeal has no merit. In the upshot, I find and hold that the appeal filed by the Appellant has no merit. I hereby dismiss it in its entirety. I uphold the conviction and the sentence passed by the trial magistrate against the Appellant. It is so ordered. F.A.R. JUNDU, JU D G E, 19/1/2006 Right o f Appeal Explained. F.A.R. JUNDU, JU D G E, 19/1/2006 19/1/2006 Coram: F.A.R. Jundu,. J. For the Appellant - present in person For the Republic - Ms. Makala, State Attorney C/C;- Matiku C ourt:- Judgment delivered in the presence o f the Appellant and in the presence o f Ms. Makala, learned State Attorney for the Republic/Respondent. & "T V \ , ' >Vl\ F.A.R. JUNDU, U .; . \ " / ;•.// JU D G E, \ - ~ 19/1/2006 V. • AT M O SH I.