stayoo kundai vs republic 2007 tzhc 150 29 june 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 20 OF 2006 (Original Criminal Case No. 229 of 2002 of the District Court of Iringa District at Iringa) Before: J. 5. Kagine - H.D.M. STAYOO KUN D AI..................................APPELLANT VERSUS THE REPUBLIC................................ RESPONDENT JUDGMENT WEREMA. 3. The appellant, Stayoo Kundai, a maasai residents of Nyamihana village within Iringa Rural District here in Iringa region, was arraigned in the District Court of Iringa District. He was charged together with three other people. Those-were Shepei Ning'ining'i who was the first accused; Metri Kalinga, the second accused; and Patrick Martin Mpogole was the 4th accused. The appellant was the 3rd accused. They were all charged with the offence of armed robbery contrary to section 285 and 286'of the Penal Code [Cap. 16 R.E. 2002]. The facts leading to the arraignment of the four are briefly as follows. On the midnight of 28th May, 2002, the homestead-of Mr. Augustino Nyalusi, a senior citizen at 66 years, was intruded into. 18 herds of cattle were stolen. Together with the cattle, 22 goats were also stolen at the same transaction. The livestock were taken from the cowshed or kraal where they were" being kept. The owner, the said Augustino Nyalusi raised the distress »• alarm. This was answered favourably by his neighbours, including TITUS MBILINYI, a Village Executive Officer (VEO). A search for the livestock was mounted on the same night. The search team went as far as Mlambalasi area. At Mlambalasi area, the team apprehended the second accused in possession of 22 goats. He was arrested and later charged. The appellant was apprehended together with his father KUNDAI KISAMBARA. They were found with two cows out of the stolen livestock. Those two cows had fresh marks. The father acknowledged that his son was an accomplice to the theftr He gave a clue to TITUS MBILINYI as to where those livestock were and also mentioned other accomplices. According to TITUS MBILINYI testimony, the appellant upon his arrest admitted to have committed the crime he was charged with. Information provided by the appellant led to the apprehension of the first and implicated the second accused. The first accused SHEPEI NING'INING'I mentioned the appellant as his accomplice to the commission of the crime. That is in a nutshell the particulars of the offence. The District Court (Hon. J. S. Kagine, HDM) convicted the first, second and third accused (the appellant). The 4th accused Patrick Martin Mpogole was acquitted for lack of evidence against 2 him. The first and second accuseds who were on bail,-jumped bail and were convicted in absentia. It is only the Appellant who is serving an imprisonment term. The term of imprisonment is 30 years. The court also ordered the convicted persons to compensate, the complainant, Augustino Nyalusi for unrecovered livestock. 'A warrant of arrest against the first and second accused was issued. The issue for determination is whether or not the District Court decision is sound in law so that it can be upheld. The appellant, through his advocate, has attacked this decision as follows:- (a) that the evidence of identification against the appellant does not meet the standard set in law. The case of RAYMOND FRANCIS V R [1994] TLR 100 was cited to support the defence argument; (b) that the court erred to act on the evidence of co-accused and accomplice suspects to convict the appellant and that evidence against the appellant was hopelessly weak to support the conviction. (c) That the court did not accord due consideration to the defence case and in any event there was neither direct nor circumstantial evidence to implicate the appellant. These arguments arises from three grounds of appeal. The 3 first ground out of the four was abandoned. The grounds are:- 1. The alleged identity of the appellant, made under unfavourable conditions, was very unsatisfactory to justify his conviction; 2. The trial court erred to act on the evidence of co-accused and accomplice/suspects to convict the appellant; and 3. The defence case was not accorded due consideration. The appellant is praying that the conviction be quashed and sentence meted against him be set aside. The Republic does not support the conviction and are in one with the appellant that the conviction be quashed and sentence be set aside. To be fair to the Republic, they have justified th e ir' position with a-legal opinion as follows: (a) That the alleged identification of the appellant was made under unfavourable conditions and was very unsatisfactory to justify conviction; NUHU SELEMANI V REPUBLIC fl9841 TLR 93 was cited to me as an authority to support their argument; (b) That the Appellant's father story to PW.6 (Inspector Hery) was hearsay and unreliable. The prosecution did not call the appellant's 4 father to testify and that it was unsafe to rely on such evidence to convict the appellant. I agree with them but ought to have gone out of the box to see whether conviction of the appellant was solely based on those grounds. It is a cardinal principle in Criminal law that the onus of proving that the accused person is guilty lies on the prosecution side. That principle is supported by another which is that the standard of proof in Criminal trials is proof beyond reasonable doubts. To revise or reverse the obligation of the prosecution and place it on the shoulders of an accused person has and will cause an adverse effect not only on the fairness of criminal proceedings but credibility of courts of law, in equal measure. It is a travesty of justice which must be avoided judiciously, fiat justitia et roant coeli. We have to consider this appeal in light of these principles. The finding of the District Court in respect to the Appellant is on page 5 of the judgment. That is where the issue of appellant's identification is alluded to. The conclusion is on page 7 where the court states on the second paragraph: "I am satisfied and driven to the conclusion that on the prosecution side there have been ample substantial material evidence which have sufficiently supported the charge against these accused persons to sustain conviction upon them to the stand point of the Republic", (sic) Unfortunately, the District Court's decision is narrative. It is not analytical to explain in logical terms the basis for the finding based on evidence adduced. The evidence on record was not analysed at all. The contents of a judgment is a matter regulated by law. Section 312 of the Criminal Procedure Act, [Cap. 20 R.E. 2002] provides that it shall contain the point or points for determination; the decision thereon and the reasons for the decision. Section 42 of the Magistrate's Courts Act, [Cap. 11, R.E. 2002] clearly provides that the powers of District Courts and Courts of a resident magistrate shall be limited, and their practice and procedure regulated — a) in the exercise of their original criminal jurisdiction, by the Penal Code and the Criminal Procedure Act; . b) ................... The point being made here is that the District Court in this case did not fully comply with the requirements of S. 312 of the Criminal Procedure Act. I do find the conclusion of the court wanting for lack of analysis expected by S. 312. In the upshoot, and in the interest of justice, I have to review evidence that was tendered at the District Court. On the issue of identification, PW .l Augustino Nyalusi, who was the complainant and who got out of his house on the fateful night did not identify the appellant. His evidence is that it was dark. PW.2 JOVITHA NYALUSI, a child of 14 years is the only witness who testified to have identified the appellant by voice. 6 She testified to the effect that she was familiar with the appellant and that the latter used to frequent the home of Mr. Augustino Nyalusi. It is dangerous to rely on this evidence. PW.2 evidence is governed by S. 127 (2) of the Evidence Act, [Cap. 6 R.E. 2002]. There is Vo evidence that a " Voire dire" was conducted as Y O v required by S. 127 (2). We cannot ascertain whether or not this child understood the nature of oath or was possessed of sufficient intelligence to justify reception of her evidence. It was wrong therefore for the Court to rely on her evidence. That notwithstanding, the witness did not disclose in her testimony what words were spoken that enabled her to identify the appellant sufficiently. On this issue, I agree with both counsel that the identification of the appellant was not sufficient. The ground therefore succeeds. On the issue of the court relying on the evidence of an accomplice/suspect, the law is settled. Section 142 of the Evidence Act which was cited to me by the Appellant's advocate is relevant. It provides that:- "An accomplice shall be competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". Both counsel in their submissions unexpectedly did not come up with a solid analysis as to who was the co-accused who mentioned the appellant, and whether or not the presiding learned Magistrate dealt with the issue squarely as complained in 7 the ground of this Appeal. According to TITUS MBILINYI, VEO who testified as PW.3 and whose evidence has not been challenged, his testimony was that when the Appellant was arrested on 20th June, 2002 he admitted to have been responsible for the theft of cattle. He mentioned the names of Matobo Selemani and Patrick Mpogole and the first accused. These were people mentioned by the Appellant. The version of the appellant was that he was mentioned by the first accused SHEPEI NING'INING'I. There are two sets of evidence here. On one hand, there is a testimony of Titus Mbilinyi (PW.3) having heard the admission by the Appellant. On the other hand, there is evidence of SHEPEI NING'INING'I. The latter is evidence of an accomplice. What PW.3 testified in respect of the Appellant is relevant. What the appellant said and heard by PW.3 is an expression of his conduct which corroborates what SHEPEI said about the role of the appellant in the. theft. Corroborative evidence may be circumstantial and may well come from the words or conduct of the accused. The conduct of the appellant as narrated by PW.3 who was not an accomplice or suspect is relevant. There are numerous decided cases on this point. FANUEL JOSEPH MBEDULE v. R [1989] TLR 221, cites the development of this theory starting with the case of R v MEDCRAFT (23 Cr. A dd. R 166 and R v GONGOLO IBALWE f 19371 EACA 66 which held that:- "Evidence in corroboration of evidence of an accomplice need not be direct evidence, it is sufficient . if it is circumstantial evidence connecting the accused with the offence". I am pursuaded that the correct position is that if an accused person makes a statement, whether it amount to a confession or not, such a statement in a proper case may amount to corroboration of accomplice evidence. It seems to me that this is the*case here. There is the evidence of Mr. Chelestino Nziri fPW.4^. The witness was among 8 villagers who accompanied the four Police Officers to the village where the appellant was apprehended. According to his evidence, the appellant had admitted to have been involved in the theft and that they had sold the cattle to one person identified by one name only as MATOBO. This evidence has not been discredited. It is a glaring evidence. It corroborates, consistently the statement of SHEPEI. Let us look and analyse the evidence of Inspector Hery (PW.6). He was an investigator of this case. At Nyamihuhu Village, they found two cows among those stolen fastned and with fresh marks. The marks were traced to the marks of the herds of the Appellant father, KUNDAI. Upon interrogation, the appellant's father spilled the beans. He admitted to have been aware of the theft and that his son, the appellant was involved. Let me say upfront that the statement by the appellant's father is hearsay. The prosecution did not call him to testify. I think the position in law is that any statements made by' a person or persons not testifying before the court must be excluded whatever the circumstances in which they were made are. These should be excluded *on the rule of hearsay. To accept it would be 9 a travesty of justice. However, that is as far as the rhetorics of Appellant's father are concerned. PW.6 testified that:- (a) Upon interrogation the appellant named his colleague SAKANAI, PATRICK MPOGOLE and Mdoe. He also disclosed that a gun was borrowed from Patrick Mpogole; (b) It was the appellant who led them and facilitated the apprehension of the first accused who told them that seven cows/cattle were sent there by the Appellant; The cautioned statements of the Appellant recorded by PW.6 were not admitted in evidence on the ground that were made out of time contrary to 5. 50 of the C.P.A. However, I am settled in a view that interrogation made at the village before villagers was not tainted and is credible evidence on record. I find that the facilitation by the appellant to locate the first accused is relevant to his involvement. It is on this basis that I do disagree with the Appellant submission that there is no direct evidence nor circumstantial evidence to connect the appellant with the offence. I have read the proceedings and judgment of the lower court to my fullest comprehension and it seems to me that conviction of the appellant was not solely based on identification. It was based on circumstantial evidence from his accomplice and his own statement/conduct. Before vacating from the issue of 10 evidence of an accomplice, I wish to refer to the case of PASCAL KITIGWA v R [1994] TLR 64. The ratio decidendi of this case is that:- "The Court may convict on accomplice's evidence without corroboration if it is convinced that the evidence is true and provided it warns itself of the dangers of convicting on uncorroborated accomplice's evidence" or to put it in a different perspective "Although the law does not say that conviction on uncorroborated accomplice's evidence is illegal, it is still unsafe, as a matter of practice, to uphold a conviction on the uncorroborated evidence of a co-accused". This is relevant in cases of uncorroborated accomplice's evidence. In the instant appeal, I am holding that the evidence of an accomplice is corroborated by the conduct and statement of the Appellant which I have decided amount to sufficient corroboration in law on the strength of KITIGWA'S decision- and FANUEL JOSEPH MBEDULE's case. The last point is in respect of whether or not the offence of robbery was committed. There seems to be no dispute that violence was used to steal the livestock. i A gun was fired and , PW .l was injured in the process. 11 On the basis of review and analysis made here, I do therefore uphold conviction of the appellant and a sentence o f 30 years meted against him by the District Court. The Appeal against conviction and sentence thereof fails. r Mr. Mmbando, State Attorney for the Republic Mr. Onesmo Francis, Advocate for Appellant - absent Mr. Charles - C.C. Later: Mr. Mushokorwa, Advocate appears. He appears for the appellant. The Judgement l.a.c. is read in the absence of the appellant but in the presence of his Advocate, in the presence of Mr. Mmbando learned State Attorney and Charles, the Court Clerk. Right of Appeal explained to the Appellant.