20080421 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM·: KAJI; J.A., KILEO, J.A And KIMARO, J.A.) .CRIMINAL APPEAL NO. 87 OF 2004 1. ABUBAKAR HAMISil . . . ~: ~c~~A~~~ALLAHJ ................................................... APPELLANTS VERSUS THE REPUBLIC. ... ;............................................................. RESPONbSENT (Appeal from the decision of the High Court at Arusha) (Msoffe, J.) th dated 16 October, 2003 in Criminal Appeals No. 8,9 & 10 of 2003 . JUDGMENT OF THE COURT 15th & 23 rd April 2008 . KIMARO, J.A. The three appellants; Abubakar Hamisi, Rashid Abdallah and Ally Hamisi were jointly charged in the District Court of Babati , at Babati with the offence of armed robbery contrary to sections 285 1 and 286 of the Penal Code. They were all convicted and sentenced to thirty years imprisonment. · Their appeal to the High Court was dismissed. Still aggrieved, the appellants preferred this appeal. In the trial court the appellants' conviction was founded on the doctrine of recent possessioA and was upheld by· the High Court. The evidence upon which the appellants' conviction was founded was to the effect that; a tractor with registration No. ART 574 belonging to John Ibrahim Mnyagatwa(PW2) was, on 4th August, 1999 under the custody of Richard John (PWl), his son. PWl had kept the tractor in his farm, under the ·guard -of Hu~ein Said (PW3). PW3 testified that, himself and Bosco Jaffet(PW4) were on that date at 10.00 p.m. invaded by a . group of thugs estimated to be around 10 in number. The thugs had their faces covered to hide their identity and were armed with various weapons including a firearm, pangas, swords, spears and clubs. PW3 and PW4 were threatened with death if they raised any alarm, their arms were tied backwards with elastics and they were ordered to go in their- ·camp, where they remained until after the thugs had disappeared with the tractor. 2 On 7th August, 1999, three days after the tractor was stolen,. the 3rd .appellant is said to have approached one Antelim Paulo (PWS), a garage owner, with tractor spare parts for sale and asked PWS if he vyas interested to buy them. PWS, ·who had already been informed by PWl that his tractor was stolen, showed a positive response .in pretence that he was interested to buy the spare parts. In order to give PWS time to ·inform PWl about the transaction so that PWl could go and inspect the spare parts to ascertain whether they could be that of his tractor, PWS ·suggested to the 3rd appellant to leave the spare parts there and return for payment lateL The 3rd appellant agreed. In the meantime, PWS went to inform PWl who had put up in a nearby guest house about the transaction. PWl went and inspected the spare parts. He confirmed that they were that of his tractor. As PWl was under cover at the garage of PWS, he saw the 3rd appellant who was known to him before, coming to · collect payment. The payment was agreed at T, shs 80,000/- and it was PWl who had given the money to PWS for paying the- 3rd appellant. 3 Further testimony of PWS was that PW1 had suggested to him that they should lay a trap. It was on this basis. that PWS asked the 3rd appellant if they had more spare parts for sale, of which the respOnse by the 3rd appeUant was positive but he suggested that PWS_ should use his motor vehicle to collect them. PWS agreed and they settled at a price of T.shs. 250,000/- and the spare parts to be collected at night. At 7.30 p.m. the 1st appellant went to PWS and told him that it was time to go and collect the spare parts. The impression which PWS got from the 1st appellant was that he was in the same group with the 3rd appellant. Using PWS's motor vehicle, with the 1st appellant leading the way and PW1 following behind closely, in accordance with the arrangement~ made between him and PWS, the 1st appellant took PWS to the place where the spare parts were. According to PWS, he saw a tractor that had been dismantled into parts. PW1 identified the tractor to be his property that was stolen on 4th August 1999. While they were there, the- 3rd appellant and one Omary Juma joined them. As they were loading the parts of 4 the tractor in the motor vehicle, PWl and a group he had arranged to a~sist him, ambushed them. The 1st appellant was arrested on the spot, while the· 3rd appellant is reported to have escaped. As the 1st · appellant was interrogated, he mentioned the 2nd appellant as being . . a·mong the persons involved in th~ commission of the offence. · On the basis of the above evidence the appellants were charged with the offence of armed robbery, and as stated before, they were con·victed on the doctrine of recent possession. The tractor was stolen on 4th August, 1999 and on 7th August the appellants were found with 'the tractor, dismantled. The trial magistrate was satisfied that the appellants failed to · give a reasonable account of their possession of the spare parts. This finding of the trial court was upheld by the first appellate cou·rt. The first appellant filed three grounds of appeal. These are conviction on insufficient evidence, improper evaluation of the evidence of PWl and PWS and failure to consider the defence evidence. The second appellant has two grounds; conviction on 5 . contradictory prosecution evidence and failure to take the necessary .. caution on accomplice evidence. As for the last. appellant he. has · three grounds;. conviction for an. offence which was not proved by concrete evidence, ignoring defence exhibits and improper evaluation of the evidence of PWS. At the hearing of the appeal the appellants appeared in person. The respondent Republic was represented by Mr. Henry Kitambwa, learned State Attorney. In arguing their appeal the appellants. added other grounds· of appeal; all of them faulting the first appellate court for upholding their conviction on insufficient prosecution evidence. The learned State Attorney on his part supported the conviction claiming that PWS, their key witness, was a credible witness and it was proper for the first appellate court to uphold the conviction of the appellants. He supported his argument by the case of Twaha Elias Mwandungu Vs The· Republic Criminal Appeal No. 87. of 2004 6 (CAT)( Unreported). -In the said case, Samatta, J.A as he then was, cited section· 122 of the Law of Evidence Act, 1967 and said: "The presumption under this section embodies inter alia the well .known doctrine of recent possession which is to the effect that a man who is: found in- possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless · he can account for his possession by at least giving an explanation which may reasonably be true. The presumption can extend to any penal ,, charge ... In upholding the conviction against the appellants the learned - High Court Judge Msoffe, J, as he then was, said: 7 "Orie, there is no doubt that PWS was a very crucial witness in ·the case. . This witness• testified positively and actually uncontradicted~ that he knew the appellants quite well even before the date of the incident. . Two, a close look of the testimony of PWS will show that all appellants were involved in one way or another in the whole transaction beginning from the offer to sell the spare parts to the time when PWl's. tractor was found . dismantled. Three, it should not be forgotten that the appellants surfaced with the offer to sell the tractor spares. Needless to say, these were the spares which were duly identified by PWl as having been dismantled from his tractor-. At the scene PWl and PWS could, actually see 8 the exact positions in the tractor from where · the spares ·were taken out. With respect to the learned first appellate judge, we agree with his findings fully, only in as far as the 1st appellant, is concerned. There is no doubt that the first appellant was arrested on the spot as the process of. loading the dismantled tractor into parts was going on. In his defence· he never gave any account on· how he came to possess the tractor of PWl which was found dismantled to parts, he being the one who led the way to the place where the tractor was .found. Instead, he denied commission of the offence, claiming that he was an employee of PWS and on the date of his arrest, he was driving the motor vehicle of PWS which he believed contained sun- flower, but. he was surprised that when it was uncovered it had a tractor. We do not hesitate to say that his defence was a concoction because his employment with PWS never featured in his cross examination when PWS gave evidence in court. In this respect we are satisfied that he was properly convicted under the doctrine of recent possession. The facts of this appeal squarely fit in the remarks 9 made on the doctrine of recent possession by Samatta, J. A as he then was, in the . case of Twaha Elias Mwandungu ·supra. The . offence of robbery was committed on 4th August, 1999 and the 1st appellant was found with the tractor in a dismantled form three days after the commission of the offence and he did not account for his · possession. There was· no way in which he could escape conviction under the circumstances. The trial court properly convicted him and the first appellate court rightly upheld the conviction. The sentence meted out was the statutory minimum prescribed for the offence by the law. We dismiss his.appeal in entirety. As regards the 2nd and 3rd appellants we are mindful that this is a second appeal. For such appeals the established principle is that the Court rarely interferes with concurrent findings of facts by the lower courts, except where there are mis-directions and non- directions on the evidence by the first appellate court. See Director of Public Prosecutions Vs Jaffari Mfaume Rashid[1981] TLR 149. 10 · In this appeal there was a mis-direction on the evaluation of the evidence of PW1 and .PWS in respect of the 2nd and 3rd appellants and this gives us a justification to look at the evidence afresh and make· our own findings. Starting with the 2nd appellant, the evidence by Pws· is contradictory. In his examination in chief he at one point testified that it was the 3rd appellant and one Omari Juma who had initially approached him on ih August 1999 at 1.30 p.m with spare parts for sale. 'At another point he said it was the 1st appellant who after his· arrest, mentioned the 2nd appellant as being among the culprits who committed the offence. During cross examination by the 2nd appellant he said it was the 2nd appellant· who approached him, with a cylinder head and gasket for sale. At the same time PW1 said as the 1st appellant led the· way to the place where the tractor was, the 2nd and 3rd appellants were also present in the motor vehicle of PWS. However, PWS did not mention the 2nd and 3rd appellants as being among the persons who were with him. He was categorical - that he was with the 1st appellant only. This being the position, it means that the. sole evidence upon which the conviction of the 2nd appellant was based was that of the 1st appellant. This was 11 accomplice evidence, which as a matter of practice required corroboration arid in this case it was lacking. See Mwinyi · Mohamed Abdalla Vs S.M.Z. [1988] T.L.R.37. Th~ trial court was duty bound to resolve the inconsistencies and contradictions in the evidence of PW1 and PWS. · This was not done;, as a result the 2nd appellant was wrongly convicted. The duty of proving the charge against the 2nd appellant was that of the prosecution and. the standard was that of proof beyond reasonable doubt. See the case of Mohamed Said Matula Vs Republic [1995] T.L.R. 3. · As the prosecution did not prove the charge against the 2nd appellant · beyond reasonable doubt he was wrongly convicted. In ~·view of what. we have .. shown above, the first . . ·. appellate court mis-directed itself when it upheld his conviction. His appeal has merit. We allow his appeal, quash the conviction, set aside the sentence, and order his immediate release from prison unless he is held for any other lawful cause. 12 As. for the 3rd appellant his position is equally the same in the . . sense that the evidence against him creates doubt as to whether he ·was really involved in the commission of the offence. In arguing his . . ·appeal, he vehemently challenged the evidence of PWS in various respects. First, his statement at the police was recorded on 14th October, 1999 while the tractor was recovered on ih August, 1999.· Second, the 3rd appellant was charged in court on 4th October, 1999 · ahd the statement of PWS was recorded ten days after he was charged. Third, he wondered why the spare parts. which PWS said he sold to him on 7th August 1999 were not tendered in court as exhibit. We also pointed out ai:,other contradiction in the evidence of PWr and PWS on who rode with PWS in his motor vehicle to the place where the spares were. There is yet another important question lingering in our minds. Why was the 3rd appellant not arrested on ih August 1999 while PWS said that PWl confirmed that the spares parts were that· of his tractor and he had given Tshs 80,000/- to PWS to pay the 3rd appellant for the spare parts? 13 .. ft According to the testimony of PWS the money was paid· to the 3rd . . appellant while PWl was in the garage ·of PWS and PWl said he saw . the 3rd appellant receiving the money. In our considered view, that · was the best opportunity for his arrest. With all these doubts, we are settled in our minds that it was unsafe to convict the 3rd appellant. He was entitled to an acquittal on a benefit of doubt. The first appellate court misdirected itself ·in upholding his conviction. We allow his appeal, quash the conviction, set aside the sentence,· and order his immediate release from prison unless he is held for any other lawful cause. DATE.[? at ARUSHA this 21 st day of April, 2008 S. N. KAJI JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL 14 I - I certify that this is a true copy of the original. PS (F_- L. K. WAMBALI) IOR DEPUTY REGISTRAR ,, . i 15