jira ramadhani vs republic 2009 tzhc 195 9 january 2009

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 2 OF 2008 (Originating from D/C Handeni Cr. Case No.152 /06) JIRA RAMADHANI............................... APPELLANT VERSUS THE REPUBLIC.................. RESPONDENT 28 / 1 0 /0 8 & 9/ 1 /0 9 JUDGEMENT K.M. MUSSA, J. In the District court of Handeni, the appellant and two others were arraigned for armed robbery. The particulars alleged that on the 25th day of April,2006 at Nderema village, Handeni District, the appellant and company stole two bicycles, a bag of maize and 40 bicycle spokes; properties of a certain Hussein Mohamed. It was further alleged that immediately before such stealing, the perpetrators employed violence upon theperson of Hussein in order to overcome resistance. The appellant stood trial as second accused whereas his co-accused persons were, namely, Mohamed Nassoro and Kambona Marama, respectively, the first and second accused. At the conclusion of the contested trial, it was the appellant alone who was convicted and sentenced to fifteen years imprisonment. Rather paradoxically, consequent upon-finding, the case for the prosecution proved, as against the appellant; more particularly, during sentencing, the trial court went out its way to suggest that armed robbery was not constituted on.account of non­ production of a machete allegedly used during the commission of the ► offence. Presumably, such was justification of the sentence of fifteen years in lieu of the required thirty years. I should express at once that this was an unfortunate aspect of the proceedings below. Having convicted the appellant for armed robbery, it was not competent of the trial court to go behind its own finding and substitute the conviction to one of simple robbery during sentencing. Where,as here, the view is to the effect that the available evidence would only support a conviction of a lessor offence; more appropriately, the presiding officer should in the first instance substitute the conviction in the course of the judgment rather than embark on the exercise belatedly during sentencing. But for reasons that will, become apparent later in my judgment, I need not belabour on the effect of the impropriety. In the meantime, let it be said that the appellant is at odds with both the conviction and sentence. As it turns out, he seeks to impugn the decision below upon a leagthy and verbose petition of which he fully adopted at the hearing. The respondent Republic was represented by Miss Msoffe who fully supported the conviction but; ahead of a consideration and determination of the points of contention, let me first explore the factual setting. The case for the prosecution was'founded upon five witnesses from whom it came into picture that on the fateful day, around 7.30 pm; two men, namely Hossen Hamza (PW.l) and Bakari Hossen (PW.3) were cycling from chanika to Bangu village. They had gone shopping for provisions at chanika and after they were through, the two some set upon towards their native Bangu. Each was riding a bicycle of his own not knowing what was immediately in store. Upon reaching Nderema village, the two riders were suddenly waylaid by a group of three of four bandits. Just as they emerged, the crime busters grabbed hold Hamza's bicycle and dealt him a hefty blow with an iron bar from which he fell unconscious. Bakari , his company, would not just passively watch, rather, he attempted to assist his colleague but; no sooner had he dared than the bandits snatched away his own bicycle. Apprehensively, the man gave them chase but; it was to no avail. At the conclusion of the turmoil both Hamza and Bakari were without their revered properties as itemized on the indictment. Neither of them could identify, any of the bandits and; all they did was to report the occurrence to village authorities. In the immediate aftermath, nothing of any significant consequence came about. A good deal later, more specifically, on the 21st day of May, 2006 a certain Hossen Bakari (PW.4), incidentally, Bakari's son, had traveled by bicycle to the chanika Market. Just as he arrived, Hossen realized that he had encountered a misfortune of having one of his tires punctured. That being the predicament, Hossein had no option but to pay a visit to a repairer to have the problem fixed. He .took it to a man called Hossen Mohamed(PW.2), a bicycle repairer. Hearing the name again, I’ cannot help art interjection that "Hossen" is a household name in the locality of the occurrence. But more pertinently, just as Hossen arrived at the repairer's place, he saw a bicycle of which he figured was the property of his father; the very one stolen at the scene of the occurrence. Naturally, he enquired of the repairer as to how he came by it to which Mohamed replied that the bicycle belongs to a customer of his who left it there for repair. Hossen felt he should rather inform the police about the finding which he actually did. Mohamed, for his part, told a colorful tale of what he knew about the bicycle. His evidence was to the effect that he set eyes on the bicycle , for the first time, the 7th May,2006. The first accused, that is, the appellants co - accused had paid a visit at his place with the bicycle saying it was his and that it was on sale. Mohamed had then connected the first accused to a buyer, namely, Bakari Zuberi who eventually bought the bicycle for a sum of shs.45,000/=. The sale was signified in a written agreement into which Mohamed was witness. The prosecution, nonetheless, did not deem it opportune to avail the agreement for the courts viewing but; more significantly, the appellant did not feature as he was not mentioned at all in the account related to by Mohamed. Given the backdrop, it was the buyer, Zuberi, who had taken the bicycle for repairs the day it were sighted by Hossen. Consequent upon Hossens' report, the matter was now in police hands and; from-here, it is constable Samwel (PW.5) who picks the tale. The constable was the one assigned to handle investigations of the case and; according to him, the first accused admitted possession of the disputed bicycle although he qualified it by a claim that the same was given to him by the appellant with instructions to put it on sale. The appellant was thereafter arrested and evidence was to the effect that he conceded having given the bicycle to the first accused in order to have it sold. But then, he also claimed that the bicycle was secured by him from the third accused, another of the appellant's co-accused persons. It seems the law enforcers were in a quandary about who to believe and the decision was to hurl aboard all the three suspects in a joint indictment which was the subject of the proceedings below. Speaking for myself, it was not quite a decision well worth, much as one can hardly secure a conviction in the wake of an indiscriminate indictment. One would have then put a prosecution to chance and; more often than not, a significant prospective prosecution witness would feature on the defence side. B u t , that was, as it were, the reality of the moment in the matter presently under my consideration. Reverting to the factual situation and; back to Bakari, he gave testimony to the effect that the bicycle in dispute was bought of him at a Dar es Salaam shop way back on the 15th day of August,2005. He produced a receipt to that effect and; additionally, he indicated to the trial court some of its distinctive marks. There can be little doubt that the bicycle found at the repairers place is; actually, the very one snatched by the bandits at the scene on the day of the occurrence. The dispute is, rather, centered on the question as to who should be tied with possession of the' bicycle. As one would have expected and; owing from the decision to put the prosecution to chance more surprises were in store from the respective defence testimonies of the persons accused. In reply to the storm raised as against him, the first accused was glued to the account as earlier told of at the police station. He said, the appellant had called at his place May 7th ,2006 to inform him of a sickly mother and that he was desirous of selling his (appellant's) bicycle, presumably , to face the difficulty. The appellant was disinclined to accept a sum of shs. 30,000/= offered by a prospective buyer, incidentally, the first accused's landlord, in the immediate after-math and; so, the first accused took him to Mohamed, the repairer, whereat word had circulated that there was someone in need. Indeed , the repairer told them of someone who was desirous but; on that particular day, nothing of material significance came about. Upon his testimony, it was not until the 10th May, 2006 when a certain Pengo, the prospective buyer, showed up. That was when the disputed bicycle was sold for a sum of shs. 45,000/=. It was not made certain, though, whether Pengo is the same Zuberi referred to by Mohamed but; no fuss was raised over it and, I take the liberty to assume he is. More significantly, whoever this buyer was, did not feature as a witness for some obscure reason. According to the first accused, the alleged sale was sealed off at his residence in the presence of his wife, a ten cell leader and the bicycle repairer, Mohamed. The agreement was reduced into writing but; rather astonishingly, the presumed property owner, the appellant, that is, was not in attendance and the first accused represented as if he was the owner thereof. Again, the prosecution would not produce this document, unto which first accused nabbed himself as the owner of the disputed bicycle. Justification for the first accused proceeding in the absence of the appellant was, apparently, a document adduced into evidence (exhibit DE) not by him; rather by his wife Sophia Mbelwa (DW.4) against an unattended protest from the appellant. I should intervene here to clearly express that the provisions of section 173(1) of the evidence Act are not a nicety; unto which the requirement to .decide upon the validity of an objection as to the production of a document is anchored. The document, allegedly, authored by the appellant, purported to entrust the disputed bicycle unto the first accused with instructions to sell it for a sum of shs.45,000/=. At the close of the bargain, the first accused and the repairer were said to have divided between, themselves a sum of shs.5,000/= as commission for work done, whereas , the remainder sum of shs. 40,000/= was handed over to the appellant. Every material bit of the account related to by the first accused was recounted in the testimony of Sophia , the wife, save for some variations, material though, but not quite of relevancy here. Not without significance, if f should repeat, she was the one who produced exhibit DE of which she was witness and placed her signature unto it. As will be seen, the alleged written instructions by the appellant were issued on that very date of the sale transaction, that is, May,10th ,2006. The first accused did not end there and, the way it appears, he is a real good fighter. In an effort to clear his name, he sought.the support of his son, namely, Nassoro Mohamed (DW.5), a child of tender age, then aged only ten but; the presiding officer properly availed his testimony. The boy spoke of an incident that occurred May,7th ,2006 pertaining to the appellant whom he referred to as his uncle. Young Nassoro testified to the effect that on that date, the appellant called at their residence in possession of a bicycle, greenish in colour. Moments later, the appellant in the company of his father left the residence with the bicycle heading townwards. Later, when they made it back home, the twosome were without the bicycle. Then , finally the first accused solicited the support of his landlord, namely, Timotheo Mganga(DW.6),if anything, to confirm the bit about his .failed attempt to purchase the bicycle. More significantly, was the account as related to by the boy, Nassoro,' that eventually the appellant in the company of the first accused and the bicycle departed town wards. So much for the defence offered by the first accused. The appellant for his part, gave a brief account and, in some respects, a quite an inelegant one. If I understood him well, upon arrest the first accused advised him to frame up Kambona the- third accused, that is, as the person who had taken the bicycle to him. The appellant was apt to as detailed irrelevancies such as; that the irst accused allegedly told him of a plan to bribe off court officials so .hat the third accused faces the music alone. Again, he would nsinuate to having been told by the first accused that the third accused was intent upon setting ablaze his(appellant's) mother's- house. Armed with all this, the appellant then relayed the information to a police officer called saidi and the third accused was hurled aboard the indictment. Whether the appellant was more concerned with laundering the character of the third accused than he was to himself is , to me , puzzling. He did conclude, quite pertinently though, that he was not the one who sold the bicycle and that the case for the prosecution was all about how the first accused was possessed of and sold the-bicycle. The, other of the appellants' co-accused third accused, did not have much to tell apart from recounting that he was arrested belatedly and joined on the indictment much later. Indeed, a lot of ground work had been cleared for him by the appellant and; all he needed say was that he had been fabricated into a matter he knew nothing about. Quite significantly, none of the prosecution witnesses or even those called by the first accused; made any meaningful reference of him. This being the whole of the evidence and; as already hinted, the learned trial Magistrate was inclined to the view that the prosecution had proved its case to the hilt. But of particular interest are her reasons for so finding and, to this, I will let an extract of her conclusion to speak for itself:- "In this case, there is evidence o f how Jira (2?d accused) went to the first accused's place with a phoneix bicyde green in colour and claim ed to be in need o f selling it as his m other was sick and he ■needed money to m eet hospital expenses. The issue o f selling the bicyde was first talked with Thimoth Mganga and at this juncture, 1st accused was inside the house, he didn't even heard (sic) the lalks. This proves that 1st accused had no inform ation that the bicyde to be sold was a stolen one. He acted on good faith in looking for a buyer to assist his brother who claim ed to have a sick person. As is patently obvious from the extract, the presiding officer was at pains to deduce the conviction from the defence case. The appellants petition is , as I said, lengthy and verbose, as is quite understandably the case with the majority of petitions by lay persons. But, somewhere, in ground No. 9, I think, he complains of there being no reference to him, at all, in the case for the prosecution and that's it. As it were, he was nailed entirely upon the implication of the first accused, his co-accused, along with the army of witness he featured to support his account. Miss. Msoffe was cautious not to suggest that the case for the prosecution tended more towards drawing strength from the defence case than were standing on its heels. Her submission was, rather, the appellant got himself entangled within the netting of the doctrine of recent possession and that the case for the prosecution was somewhat enhanced by the sworn testimony of the first accused inclusive those of his witnesses;’ Sophia, Timotheo and young Nassoro. Compellingly refreshing a submission, on the face of it but; if I may ask. Is it not a rule of the thumb that recent possession necessarily flows from the culprit being found in possession upon evidence? And , where is the evidence with respect to the appellant possessing the bicycle if not wholly derived of his co-accused and the defence witnesses?. To be sure, there is none from the prosecution's end and; the appellant was actually right in his formulation that the prosecution case was all about the first accused possessing and selling the bicycle. As for him, he does not feature anywhere in so far as the case for the prosecution is concerned. This being the position, I may have to re- affirm on how the law stands given the situation as there is to the present case where the prosecution seeks to rely, not on the evidence as adduced by its witnesses, rather, on an incriminating statement by a co-accused and, additionally, by defence witnesses. First and foremost is the so- called golden rule of criminal jurisprudence, elementary though, that it is always the duty of the prosecution to prove an accused persons guilt subject to any statutory exception that may impose certain obligations upon the accused, not quite applicable here. Going by this rule alone, the Burden is not discharged if; instead of adducing evidence in support of its accusation, the prosecution looks well beyond its case to speculate and specifically capitalize on whatever conceivable evidence there is from the defence that tends the scale its way. As is often said, the case for the prosecution stands or falls -11 - i its own and; for that matter, it cannot be erected on the tatters of le defence case. Quite apart, it was improper for the trial court to avaid itself on he incriminating account of the first accused for use as evidence mplicating the appellant. To be sure, the first accused cannot be •anked as and accomplice much as he was not testifying for the prosecution. To my understanding,'section 142 of the Evidence Act invariably presupposes a participes crim inis being featured for the prosecution to testify against the accused. Likewise, the account by the first accused will not qualify to such statements as may be proved against a co-accused in terms of section 33(1) of the evidence Act. As is abundantly clear from the tone of the provision itself, in order for the statement of an accused to be taken into consideration against a co-accused tried jointly for the same offence; such statement must as well implicate the maker as fully as it does to the co-accused. Perhaps the wisdom underlying is that if the maker incriminates himself/herself as fully as he/she does to the co­ accused; such would amount to a sort of safeguard that the statement affords elements of truthfulness. I think the account by the first accused was, at best, an incriminating statement by a co­ accused to which the correct position of the law is meticulously formulated in SAKAR ON EVIDENCE (10th Edn) at P.295:- "If the statement criminates the maker partially or in a lesser degree, or throws the main burden of the blame on others, it cannot be used against his co-accused. Statements however criminating made in self- exculpation or in mitigation of guilt are self- serving statements and are not admissible." Coming closer home, the application of the rule is to be found in Halidi Athumani VR(1967) HCD n.93; wherein it was held, the statement of one accused which implicates another is admissible only if it incriminates the speaker as well. Where the statement is self- exculpatory, it cannot be admitted as against a co-accused. In the matter presently under my consideration the substance of the account by the first accused w hilst, gravely incriminatory, it is just as \ ' well an embroidered tale spun out with the object of clearing himself or reducing his own status of blameworthiness at the expense of the appellant. His was, so to speak, nothing but an explanation of an exculpatory nature or self-serving statement of which the trial court ought not to have availed itself as against the appellant. Without the incriminating account by the first accused, there still remains, as against the appellant, claims by Sophia, Timotheo and Nassoro to the effect that he was the one in possession of the bicycle. They were all defence witnesses specifically enlisted by the first accused to beef up his account. As I said whilst there may be instances where the defence case may be availed to lend assurance to a relatively strong prosecution case; the prosecution cannot be allowed to wholly depend on the defence case to sustain its accusation. To this end, the conviction cannot be allowed to stand - 13 - and is, accordingly, quashed. The sentence crumbles with it, the result of which, the appellant is to be released from custody forthwith unless held there for some other lawful cause. The appellant did not go so far as to counter-claim ownership of the bicycle in dispute and, in fact, he was trying to distance himself from it. Much as I found little doubt as to the same being the property of Bakari, the trial court order restituting the property in him is left undisturbed. It is so ordered. 08/01/2009 CORAM: K.M. MUSSA, J. APPELLANT: PRESENT REPUBLIC: MR. MFINANGA Judgment delivered in chambers in the presence of the parties.