nassoro bakari vs republic 2008 tzhc 179 29 august 2008

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CRIMINAL APPEAL No .31 of 2005 (Originating from Criminal case No.412/2004 Muheza District Court) NASSORO BAKARI............... ..................... APPELLANT VERSUS THE REPUBLIC...........................................RESPONDENT 17/6/08 & 29/8/08 JUDGEMENT Shayo, 3. In the District Court of Muheza the those appellants, namely, Nassoro Bakari (first appellant), Emanuel'Thomas @ Pesa (2nd appellant), and Shabani Seif @ Omari (3rd appellant), whose appeals Nos.31/2005, 39/2005 and 40/2005 are consolidated, were jointly charged and convicted of two counts of robbery with violence c/s 285 and 286 of the Penal Code. They were sentenced to 15 years jail each in each count, sentences to run concurrently. Dissatisfied by both their conviction and sentence they appealed in this court. The prosecution case can be summarized as follows. On 13/8/2004 at around 8.00a.m. PW.l Mariam Ramadhani had sent his son PW.2 Ramadhani Ally aged 12 years to fetch water from the river at Kichangani area. PW.2 went on a bicycle carrying two drums for water. After filling the two drums with water he carried them on his bicycle back home. On his way he was invaded by the 3rd appellant (original 3rd accused who threw away the two water drums and he together with another despoiled him of his bicycle and went away. PW.2 shouted for help to no avail as the 3rd appellant threatened him with a panga. One Halidi Hamisi and others went to the scene and assisted PW.2 carry home the two drums of water and reported to PW.2's father. Later on another date PW.2 was called to police station wtitre ne identified the 3rd appellant as among thosr. who robbed his bicycle who admitted to have stolen the bicycle and sold it to someone at Tanga. On 12/9/2004 at 12.00 noon PW.3 Athumani Hassani aged 15 years a Std.V pupil was going to a grinding mashine or his grandfather's bicycle. He was with his young brother Yusufu s/o - and they met the 2nd appellant (original 1st accused) who ordered them to get off from the bicycle. The 2nd appellant took the bicycle and went away accompanied by others on another bicycle. PW.3 reported to the village authority and on another date he went to police station Maramba where he identified the 2nd appellant. On 25/10/04 at 8.00p.m. PW.4 Omari Ramadhani the village Chairman was informed by his militiamen on patrol that some bandits/thieves were in the house of 2nd appellant. They went to that house where 1st and 3rd appellants attempted to run away but PW.4 and his men managed to arrest them and the 2nd"appellant. The three appellants were taken to police station where PW.5 WP.Cpl. Chema questioned them. The 3r" appellant admitted to have stolen from PW.2 and sold the bicycle at Tanga, while the 2nd appellant admitted that he used to steal bicycles together with 1st and 3rd appellants saying that, "tunatafuta riziki". The appellants were finally charged with the present offence. In his defence the first appellant opted to remain silent. The second appellant in his defence denied to have committed the offence claiming that he was arrested on 24/9/2004 by the village chairman and militiamen in the night at his house while asleep. He was taken to the village office and later, to police station and then to the court. The 3rd appellant in his defence averred that he was arrested on 24/9/04 by militiamen after he had stoped PW.l over a quarrel after PW.l's goats strayed to his shamba and destroyed/damaged his cassava plants. In their petitions of appeal the appellants have each impugned the decision of trial court on the ground that the was no cogent and .sufficient ' ' i * , evidence to prove the prosecution case beyond reasonable doubt, to. justify their conviction. They have each urged this court to allow their appeal. Mr. Massawe, learned State Attorney, supported both the conviction and sentence, arguing that the' prosecutio/i evidence was sufficient and strong 2 enough to prove the charges against the appellants. He thus urged this court to dismiss the appeal as it has no merit. I have seriously considered the recorded evidence and the arguments advanced by the appellants and the learned State Attorney. The central issue for determination is whether or not the charge was proved on the standard required by the law. Going by the evidence and the charge in count one, it is not clear when the offence was actually committed. The particulars of the offence in respect of the 1st count indicates that the offence of robbery with violence was allegedly committed on the 18 June, 2004 at unknown time. On the evidence, PW.l and PW.2 testified that the bicycle of PW.2 was actually robbed by the 3rd appellant on 13/8/2004 at around 8.00a.m. which is almost two months after the date mentioned on the charge sheet. This is rather ridiculous and unbelievable and it is hard to say if at all there was any offence. That is one. Two, the second count was alleged to have been committed on 12/9/2004 at Kichangani village while the 1st count was'alleged to have been committed at Machimboni village either on 18/6/2004 or 13/8/2004. There is no doubt that the two offences were committed at different places and on different dates extending over a very considerable period of time. There is nothing to suggest that they were continuous offences, they must not have been charged in the same charge sheet. Each of the charges should have been preferred separately and the trials of the appellants should have been conducted separately. For all purposes of intent the charge was bad for misjoinder of charges. Three, be that as it may, the prosecution case depended entirely on the credibility of PW.2 and PW.3 who were all children of tender years, as per section 127(5) of the Evidence Act. The evidence of PW.2 and PW.3 could only be received and relied upon if they each knew the nature of an oath or was., possessed of sufficient intelligence and understands the nature of speaking the- truth as required under section 127 of the Evidence Act, Cap.6 R.E. 2002. The trial court was duty bound to make a record of such findings. 3 The proceedings with regard to reception of'PW.2's evidence shows that the trial magistrate recorded:- "I have interviewed the witness he does not know the meaning of oath, unsworn he states:" As far PW.3 the following was recorded:- "He says I know the meaning of oath is to say the truth, Affirmed and states:" Under section 127(2) of the Evidence Act, it is clear that if the child of tender years does not understand the nature of an oath, his evidence may never -theless be received without oath or affirmation if two conditions are satisfied; The conditions are that he is possessed of sufficient intelligence and he understands the duty of speaking the truth. The trial magistrate was expected as a matter of procedure to have conducted a voire dire examination on the two crucial prosecution witnesses PW.2 and PW.3 by holding a question and answer sessions in order to establish the two conditions. Then he should have made a specific finding of these facts. On the face of the record of proceedings there was no such investigation as amply indicated herein above and as a result there was no specific finding by the trial court on the two conditions before receiving the evidence of PW.2 unsworn/unaffirmed and that of PW.3 upon affirmation. ' In the case of Kibangeny Vs. R.(1959) E.A.94 the Court of Appeal held:- ...... as we have seen, that where such a child does not in the opinion o f the Court understand the nature o f an oath his evidence may be received unsworn if the court is satisfied o f his intelligence and that he understands the duty o f speaking the truth. This necessarily implies that before the child can be allowed to give evidence upon oath (or affirmation) the court. must satisfy itself that he does understand the nature o f an oath, and if not, to satisfy itself that the child is possessed o f sufficient intellingence to justify the reception o f the evidence and understands the duty of speaking the truth." 4 ‘ In this present case, the proceedings do not indicate that the trial magistrate fully complied with the mandatory provision of the law and as a result the evidence of PW.2 and PW.3 was wrongly admitted and acted upon. There is no doubt that the evidence of these witnesses was crucial to the prosecution case regard being to the fact that they are the only witnesses who purported to have identified the 2nd and 3rd appellant as the persons who robbed them. There was also evidence by PW.2 - PW.5 that the 2nd and 3rd appellant had admitted to have stolen the bicycles from PW.2 and PW.3. In the circumstances therefore, regard being had to the misjoinder of charges and the failure by the trial court to conduct voire dire examination in respect of PW.2 and PW.3, their appeals are allowed. It is, however, ordered that there should be a retrial of the appellants before another magistrate with A competent jurisdiction. It is so ordered. 29/8/2008 CORAM -W .E. L E M A -D R . APPELLANT - All present RESPODNENT - M/S Lamwai (SA) C/C SARAH Court:- Judgement delivered in chamber this 29th day of August 2008 in the presence of both parties. Right of Appeal further explained to the parties. *4 W.E. L.O'l'A'—'DR. 29/8/2008.