20090323 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM:- KILEO, JA.; BWANA, JA. AND MANDIA, JA.) CRIMINAL APPEAL NO. 34 OF 2006 PATRICK JEREMIAH ................................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT I (Appeal from the decision of the High Court of Tanzania at Dar es Salaam ) (Massati, J.} dated the 13th day of October, 2004 ) in j Criminal Appeal No. 47 of 2003 JUDGMENT OF THE COURT 4th & 26 th March, 2009 BWANA ,J.A: The Appellant, Patrick Jeremiah, was one of ten accused ( : persons before the Temeke District Court (in criminal case No. 73 of 2001). They were charged with the offence of Armed Robbery contrary to Sections 285 and 286 of the Penal Code. A~'alternative count of Receiving Stolen Property contrary to section 311(1) of the Penal Code, was preferred against the then first accused, one Ibrahim Yusufu. We pose here and ask ourselves: Why was a similar 1 i· offence not preferred against the present Appellant? We ask this question so early in this judgment because the evidence on record that tends to implicate him is similar to that of Ibrahim Yusufu. Or to make things worse, the trial magistrate convicted him of armed robbery although there was no iota of evidence suggesting that the present Appellant did participate in the robbery that took place at Tundwi - Sangani Village within the Municipality of Temeke, on 21 January 2001 at about 22.00 hours. The watchman on duty and who (:: was the victim of the robbery - Kondo Bombei, Pw3 - did clearly inform the trial court thus: ....... " yes, we were invaded. I did not ! identify ' any, I could not see anybody ... " Likewise, the attendant on ' duty at the time of the robbery - Hamis Kitwana, Pw4 - did admit in cross examination thus: .... " I did not identify anybody I .... " Massati, J. (as he then was) may have seen this impropriety of convicting the Appellant of armed robbery although the little evidence trying to implicate him led elsewhere. It led - if one has to believe it - to an offence of being found in possession of stolen property. Thus in his judgment, Massati, J, seems to have "modified" the offence against the Appellant from that of armed robbery. He spent a 2 considerable time in an attempt to justify the criminal liability of the Appellant using the doctrine of "recent possession". We will revert to 1 that in due course. A number of items are said to have been stolen from the scene of crime on that fateful night. These included the following as listed in the charge sheet:- 1. Seven hundred hens valued at 3 mill/= (-:·. 2. A generator machine, valued at 1.5 mill/= 3. Ten pieces of pachttin, valued at 200,000/= 4. Two hydraulic tractor pump, valued at 500,000/= 5. One compressor, valued at 150,000/= 6. One roll of copper cable, valued at 250,000/= 7. Two pieces of motor, valued at 300,000/= 8. Two rolls of water pipe, valued at 52,000/= 9. One PC of jack, valued at 70,000/= 10. Four pieces of barine, valued at 120,00Q/= 11. Two rolls of motor wring wire, valued at 35,000/= 3 . The total value of the above listed stolen items is given as Shs. 6,177,000/= the property of AMADOR company. It is also stated in ' the charge sheet that machetes were used to wound the watchman during the robbery. Following the robbery, the police managed to arrest several suspects and searches were conducted at suspected places. One such search was conducted at a house belonging to 10th accused who is also the father of the Appellant. That search was conducted nine days after the robbery. It was carried out during the night. Both the 10th accused (who was subsequently acquitted by the trial court) and the Appellant were asleep in the said house, at the time. I The Appellant was sharing a room with two other persons. According to the evidence of Pwl0, Detective Constable Haji, an investigating officer, and as supported by Pw12: - Saidi Kamithon, a village executive officer of the area, the following items were recovered from the room where the Appellant and the other two people were sleeping:- 4 • 1. Seven tins of paint r, 2. Two horse pipes 3. One pump 4. One jack 5. Two rolls of wire 6. One compressor Those items were identified during the search, by Petro Stealla, (·. Pw2, the director of AMADOR! Company as being part of the stolen items. It is also pertinent to reconsider a question raised in cross examination that if these items were recovered from the Appellant's room (apparently hidden under the bed), why were they not listed in the charge sheet? Or significantly - why was the ,search warrant or certificate of seizure not tendered in court? The said search warrant and/or certificate of seizure would have listed the said items and signed/ countersigned by the relevant parties to the search. Again, we will revert to this issue at an appropriate place in this judgment.· In his Memorandum of Appeal to this court, the Appellant essentially raises the following issues as we paraphrase them. 5 1. That the two courts a quo wrongly convicted him of armed robbery while there was no sufficient evidence implicating him. 2. That the provisions of section 38 (1) . of the Criminal I Procedure Act (the CPA) 1985, were not complied with and that the said items were not properly identified let alone proved to be part of the items stolen on 21 January 2001. 3. That there was no proof of the Appellant being found in possession of the stolen items. Before we consider the three paraphrased grounds of appeal we find it opportune to revisit briefly some well settled principles of law as they appear to have become apparent in th;is case. Three of those principles are:- 1. The role of an appellate court in rexamining issues of fact as seen from the record. 2. The principle of recent prossession. 6 3. Essential elements governing the offence of armed robbery. We start with number one above. The principle was discussed en extenso in the case of Benmax vs Austin Motors Company Ltd I (1955) All ER 326 et seq thus:- " An appellate Court, on appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial judge on a question of fact. But distinction in this respect must be drawn between the perception of facts and the evaluation of facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge.· ..... " 7 This Court has on various occasions applied the principle in several of its decisions on the subject. In essence it is now settled that when there is no question of a misdirection on the part of a trial judge or there is no perversity, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge, by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion. Massati, J, seems to have adopted the above principle and proceeded to agree with the trial court's finding on factual issues. He then dismissed the appeal. This Court has - on several occasions - taken the unusual steps by interfering with the concurrent findings of facts by the trial court and first appellate court (The High Court). See for example the decisions of this Court on the subject in the following cases - (1.) Edwin Isidori Elias vs Serikali ya Mapinduzi Zanzibar (Criminal Appeal No. 145 of 2002, unreported) (2) Salum Mhando vs Republic (1993) TRL 170 (3) DPP vs Jaffari Kawawa (1981) TLR 148 8 ( 4) Dickson Luyana and Another vs Republic (Criminal Appeal No. 1 of 2005 - unreported). The Court has departed from the general principle on occasions where it is satisfied that there are glaring irregularities on the face of ' the record or where there is obvious perversity. Going through the record of this case and the address by both the Appellant and Angaza Mwipopo, learned State Attorney, assisted by Ms. Msabila who () appeared for the Respondent it is obvious that this is a fit case for interfering with the findings and conclusions of the courts below. We have arrived at this conclusion after considering the following. First, there is nothing on the record which directly links the Appellant with the offence committed so as to lead the trial court to arrive at the conclusion as it appears at P.89 of the record that - " The evidence for the prosecution side has I proved an offence beyond reasonable doubt (sic) for ........ 8th accused, Patrick Jeremiah .. ... . that all accused persons committed 9 an offence of armed robbery. ..1 ••••• " ( emphasis provided) There is no nexus between the robbery that took place on 21 January 2001 and the subsequent arrest of the Appellant. There is · no evidence suggesting that he was present at the scene of crime. As stated earlier, both the watchman and the attendant stated clearly that they did not identify anybody from the group that attacked (> them. The only link is the alleged recovery of stolen goods hidden under the bed, in a room that the Appellant was sharing with two other people when the search took place. We will shortly revert to the doctrine of "recent possession". In the absence of clear evidence implicating the Appellant with the robbery, we fail, to see how the trial magistrate could have satisfied himself "beyond reasonable doubt" that the Appellant committed the offence. In brief therefore, we hold that the reasoning of the trial magistrate (and that of the first appellate judge) on this aspect, is faulty. His statement of facts on the occasion and on the role played by the. Appellant in the commission of the armed robbery, is regrettably inaccurate. His approach to the evaluation of the evidence before him is seriously i wanting in judicial objectivity. As a consequence thereof, the trial magistrate arrived at conclusions unacceptable, given the evidence available with respect to the Appellant's role in the commission of the offence. Second, we now turn to the issue of non - compliance with the provisions of section 38 of the CPA. That section states:- "S. 38 (1) If a police officer incharge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building .... (a) anything with respect to which an offence has been committed; (b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of the offence; (c) 11 (3) Where anything is seized in pursuance of the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, bearing the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any ..... " (emphasis provided). Subsection (3) of Section 38 is relevant to the contested issues before us. The Appellant claims that nothing was recovered from the search. But the trial court was made to believe that some items (as listed above) were recovered, hidden under the Appellant's bed. The trial magistrate decided to agree with the prosecution version. However, there are lapses which have come to our attention and I which the learned State Attorney appearing before us provided no plausible clarification. One such lapse, is the failure to comply with 12 the requirements of sub-section (3) supra. There, was no "receipt r.~\ acknowledging seizure" tendered in court, listing the items seized during the search. We believe the production of such receipt was crucial since the Appellant had been denying all along that the search led to the seizure of certain items hidden under his bed. We are of the considered view, therefore, that failure to produce the receipt was a fatal omission in proving the prosecution case. Third, it is on record that at the time of the search, the room was occupied by three people. The owner of the house who is also the father of the Appellant, was charged as accused number 10. In his evidence he appears to have shifted the responsibility of possession of the items to the occupants of the room. Accused number 10 was an accomplice whose evidence, should have therefore, been taken with due care as required under the law. Further and without prejudice to the foregoing, there was need on the part of the prosecution to prove that the items allegedly recovered from the room belonged or were kept there by the Appellant. This is particularly important considering the fact that the other occupants of the room were never charged. 13 Fourth, is the identification of the items allegedly recovered during the search. It is on record that Pw2 identified them as being part of the stolen articles. We think the identification was not sufficiently done. We say so ostensibly because :the list of stolen ; items stated in the charge sheet does not tally with the one alleged to have been recovered during the search. For example the "seven tins of paint" are not listed in the charge sheet. Likewise are the ,f'_,r.,\ \. .. > hose pipes, and the compressor (was it part of the generator?). The pump and the jack are not clearly identified to march with what is stated in the charge sheet. It was held in the case of Nassoro MohamediVR (1967) HCD n. 446 thus: " The proper procedure of identification of property in Court is that the claimant should describe the item before it is shown to him, so that it can be clear to the Court when the item is eventually tendered whether or rot he was able to identify it. .. " 14 With due respect, we are of the settled view that Pw 2 never identified those items sufficiently in Court, as expected by the requirement enunciated in the Nassoro case. Fifth, is the application of the doctrine of "recent possession." The law on this aspect, fortunately is also well settled. It evolves around proof that an accused was found in possession of property recently stolen (see Rex vs Bakari Abdallah- 1949 - 16 EACA 84). () Therefore where property .has been stolen and soon thereafter a person is found in possession of the stolen items, necessary inference may be drawn implicating that person with the affence committed. Archbold states (2004 Ed. At p. 1924 para 4): "The doctrine of recent possession is where it is proved that premises have been entered and property stolen therefrom and that very soon thereafter defendant was found in possession of the property. It is open to the jury to convict him for burglary and the jury 15 should be so directed " ( emphasis provided) This Court has further held (in the case of Ali Bakari vs Republic (1992) TLR 10 that:- " .... as a matter of law and logic, it is essential for the proper application of the doctrine of recent possession, that the stolen thing in the I possession of the accused must have a reference to the charge laid against the accused ... the presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged .. .Also pertinent to this matter is the rule that in a case where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to 16 the accused is sought to be drawn, must be proved beyond all reasonable doubt and must be clearly connected with the fact sought to be inferred from ...... " ( emphasis provided) That is not the position in this case. It is on record that the items allegedly found in a room where the Appellant was sharing with two ('_:' other people, were recovered nine days after the robbery. We do hold that the nine days are still within a reasonable period to invoke this doctrine. However a crucial point has not been proved - that is, the possession. Three people occupied the room. There is no sufficient material on the trial court record to implicate the Appellant with possession to the exclusion of the other two roommates. His father's evidence (Accused No. 10) cannot be wholly relied upon in the absence of other independent evidence. This is in addition to the other four points discussed above. Therefore all the five points considered, we are of the settled view that the recovery and identification of the stolen items were not 17 f' sufficiently proved so as to remove doubts. Possession of the said items was not proved to the satisfaction of this Court. There is no evidence suggesting that it was the Appellant, and not the other two occupants of the room, who was in possession of those items. We would therefore, fault the two courts aqua on this point as well. This being a criminal case, we would like to remark in conclusion, that the prosecution was duty bound to establish the guilt ("'1 , · of the Appellant beyond reasonable doubt. This is a settled principle of law and there is no dearth of authorities on the subject (see for example in the case of Woolmington vs OPP - 1935, AC 462), which we fully subscribe to. Proof beyond reasonable doubt - this cardinal phrase - simply means - " proof which precludes every reasonable hypothesis except that which it tends to support and which is wholly consistent with the defendant's guilt and inconsistent with any other rational conclusion" (Black's Law Dictionary - 6th Ed). 18 c;') Having considered all the issues raised in this appeal and going by the contents of the record of the appeal, we are of the settled view that the prosecution did not prove its case beyond reasonable doubt against the Appellant. As a consequence of this, the said Appellant - Patrick Jeremiah's appeal must succeed. Therefore his conviction is quashed. The sentence as imposed by the trial Co~rt and upheld by the first appellate Court, is set aside. We do further order that unless Patrick Jeremiah is otherwise lawfully held, he should be set free forthwith. rd DATED at DAR ES SALAAM this 23 day of March, 2009 E. A. KILEO JUSTICE OF APPEAL ' S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL that this is a true copy ofi he original. /' P.B. DEPUTY REGISTRAR / 19