omary juma nkane vs bakari saidi kalembo 2007 tzhc 216 25 february 2007

IN THE HIGH COURT OF TANZANIA AT MTWARA PC. CRIMINAL APPEAL NO. 15 OF 2005 IN THE MATTER OF LINDI D/COURT CR. APPEAL NO. 12/2004 ORIGINAL CRIMINAL CASE NO. 343 OF 2003 RUANGWA PRIMARY COURT OMARY JUMA N K A N E ................APPELLANT VERSUS BAKARI SAIDI KALEM BO------ RESPONDENT Date of Last Order: 4/5/2007 Date of Judgment: 25/5/2007 JUDGMENT SHANGALI, J . This is a second appeal originating from the decision of the Ruangwa Primary Court in the Criminal Case No. 343 of 3003. In that Criminal case, the appellant OMARY JUMA NKANE and two others were charged with the offence of Robbery with violence c/s 285 and 286 of the Penal Code. They were all Convicted and sentenced to serve fifteen years imprisonment. In their consolidated first appeal in Criminal appeal No. 11 of 2004 before Lindi District Court, the appeals by the two others namely AHAMADI MUSSA KIMOJA and JAFARI MUSSA were allowed and both set free; but the appellant’s appeal was dismissed. In that first appeal the appellant was referred to as the third appellant while Jaffari Mussa was the first appellant and Ahmadi Mussa Kimoja was the second appellant. In this appeal I shall refer the third appellant Omary Juma Nkane as the appellant and retain the references o f the other two as first and second appellants respectively. 1 Following the dismissal of the appellants’ appeal he has now come to this Court to impugn and challenge the decision of the lower courts. The background giving rise to the case is that during the midnight of 22/10/2003 at Liwilu Village, Ruangwa District the house of the complainant Bakari Saidi Kalembo (SMI) was invaded by a gang of armed bandits. The door was broken and sixteen (16) bags of Cashewnuts were stolen by the bandits and loaded in their Motor vehicle Lorry Reg. No. TZJ 536. Fortunately the bandits did not attack and injure SMI nor any member of his family but managed to threat and intimidate them to the tooth. Immediately after the incident SMI’s neighbours including SM2 responded to assist him and SMI and his grandson SM3 rushed to the Police Station to report the matter. In the cause of following-up and investigations the searching party including the Detective Coplo SAMWEL (SM5) managed to find a motor vehicle, Lorry packed along Nachingwea Road full of Cashewnut bags. On seeing the approaching Police vehicle, several people who were attending the said motor vehicle, which had suffered mechanical problems took to their heels leaving behind the first appellant who was a driver of the Lorry. The Police arrested both the first appellant, and his Lorry and on the following morning the complainant was able to identify both the Lorry as the one which was involved in the robbery incidence and the cashewnuts to be his own 16 bags property. During interrogations at the Police Station and later during his defence at trial the first appellant confessed that he was the driver of the said Lorry Reg. No. TZJ 536. That on the material date he was approached by one Fatuma Chitanda (SU4) who informed him that there were some people intending to hire his Lorry. The first appellant stated that, later on the appellant Omary Juma Nkane appeared in person and informed him that he was intending to hire his Lorry in order to fetch his Cashewnuts at Ruangwa. The first appellant claimed that since the appellant had no money to purchase diesel he, the first appellant decided to borrow some money from one Amir Ismail (SU 5) and proceeded to fetch the load of Cashewnut. The first appellant claimed that they started their journey in the company of the appellant and his tumboy and on reaching at a certain house at Ruangwa the Cashewnuts were loaded in the Lorry in the midnight by the appellant and his colleaques including the second appellant Ahmadi Mussa Kimoja who were found at the scene. 2 It is the story of the first appellant that after loading the Cashewnuts they started their journey back to Nachingwea but while on the way their motor vehicle Lorry suffered mechanical defects. He claimed that, while they were busy rectifying the defects the Police motor vehicle appeared and the appellant and his colleaques managed t run away. In his defence before the trial Court the second Ahmadi Mussa Kimoja who is said to be the complainant neighbours at Liwilu village categorically denied to have participated in the alleged offence and claimed that on the material date he was completely soaked after having some local liquor and retired home to sleep early at 8.00 pm. Later in the midnight he was awaken by his neighbour and informed that their neighbour, the complainant had been robbed by bandits. The second appellant decided join other villagers at the house of the complainant where they lit fire outside and stayed till the next morning. The second appellant claimed that he was supprised to be arrested on 29/10/2003 and connected to the alleged offence. In his defence before the trial Primary Court the appellant Omary Juma Nkane claimed that he heard about the robbery on 23/10/2003 when he was proceeding to Ruangwa to collect his medicine, and that there were rumours in the village that he was involved in the commission of that offence. As a result he decided to report at the Police Station to inquire about the matter but on reaching there he was arrested and charged along with others. After hearing the appeal the first appeal District Court found that there was no cogent evidence to connect the first and second appellants with the offence and allowed their appeal. The question now is whether the appellant’s conviction was based on cogent and credible prosecution evidence. It is pertinent to state here that I am quite aware that this being the second appeal, this count is required to venture mostly on the point of law unless there is a clear misdirection non-direction on the evaluation of evidence by the Lower Courts. To be precise, it is a rule of practice that a second appellate Court will not lightly interfare in the lower court’s findings on credibility of witnesses unless the evidence reveals fundamental factors of a vitiating nature to which the lower court did not address an address properly - see the case of PIA JOSEPH Vs. R. (1984) TLR 161. 3 Now, if we go by the evidence on record it is obvious that the conviction of the appellant was highly based on the evidence o f the co­ accused, the first appellant who happened to narrate in his defence on how he was approached and later hired by the appellant to fetch cashewnuts at Ruangwa area. He further stated clearly how he borrowed to purchase diesel from (SU5) although the same SU5 denied categorically before the trial court to have advanced any money to the first appellant. It is also not clear as to why the first appellant should have taken all initiatives to borrow money for purchasing diesel in order to fetch the appellants Cashewnuts in that night. Is it true that the appellant was intending to hire the Lorry without having any money to pay? Furthermore, why did the first appellants tumboy took to his heels on seeing the Police vehicle and why was he not arrested nor testified as a witness. Despite of all those questions, the most crucial issue is the legal position of the evidence of a co-accused when attempting to discriminate himself from the offence and incriminate others. In the case of R. Vs. Bira s/o Kusa and another (1944) 11 EACA it was held that where the accused elects to give evidence and implicates his co­ accused whilst exculpating himself, that is not straight and clear evidence against his co-accused. The Court is supposed to use such evidence with extreme caution before acting upon. Again in the case of Bushiri Amini Vs. Republic (1992) TLR 65 it was emphassed that the evidence of a co-accused is on the same footing as that of an accomplice, that it is admissible but must be treated with caution and as a matter of prudence, would require corroboration. In the relevant case one can not say with impunity that the clothes alleged to be found in the lorry belongs to the appellant as claimed by SM5 without reliable and tenable evidence to prove so. In general it is absolutely unsafe to base a conviction on uncorroborated evidence of the co-accused. Even a confession by an accused person which is not substantially corroborated with other independent evidence can not be outright used against co-accused person. As a matter of practice a confession by an accused person can only be used as lending assurance to other evidence against the co-accused but not to be used as the basis for prosecution case-see the case of SELEMANI RASHIDI AND OTHERS Vs. R (1981) TLR 252. That position of the law is also relevant where an accused person in his defence decides to implicate and incriminate a co-accused while attempting to distance himself from the offence. To sum-up on this issue, let me say that it is a rule of practice that before a court proceeds to convict the accused entirely on the basis o f the 4 evidence of a Co-accused, it must warn itself o f the dangers of convicting sonely on the evidence of a co-accused-see R. Vs. SITTA JOSEPH & TWO OTHERS (1977) LRT 62. In practice and as a matter o f prudence such evidence requires corroboration. The position in the relevant case is that apart from the words of the co- accuseds there was no evidence to suggest that the appellant was seen and identified during the commission of the offence and was neither arrested with the stolen Cashewnuts. His contention stand to be that he was connected with the offence when he voluntarily went to inquire at the Police Station about the source of rumours against him. Regarding to the procedure employed during the trial before the Primary Court it is not quite clear how far the assessors were involved. The assessors opinions are no where to be traced in the record o f the trial court file but two signatures supposedly to be those of assessors appears at the end of the judgment and sentence, meaning that they were requested to sign the same after the composition of the judgment by the trial Primary Court Magistrate. In practice the assessors should have separately given an opportunity to air their views/opinions before the composition of the Judgment. Such views/opinions should have been clearly recorded and the judgment should have appeared to be that of the majority decision as required by the law. Rule 3 of G.N N. 2 of 1988 provide clearly that the trial Primary Court Magistrate should consult the assessors and record their opinion before preparing the judgment. See Fadhili V. Juma (1970) EA - 227. Let me take this opportunity to call upon and remind the Primary Court Magistrates to adhere by the requirements of the procedural laws. One more observation in this case is that I failed to understand as to why this case was not prosecuted by the Police at the District level. The record indicate that the Police were involved thoroughly in the investigation and preparation of the charge sheet but the matter was later taken before the Primary Court and prosecuted by the complainant in person. All in all, I am satisfied that this appeal must succeed. The conviction against the appellant is hereby quashed and sentence imposed against him set aside. The appellant should be released from custody forthwith unless lawfully detained on some other reasons. 5 It is so ordered. M . S jj ngali JUD E 25/5/2007 Judgment delivered todate 25/5/2007 in the presence of the appellant in person and in the absence of the respondent. M.S. JUDGE 25/5/2007 V , " •* • ; . w 6