sungare toponya vs republic 2009 tzhc 276 7 january 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 117 OF 2007 (Originating from Monduii District Court Criminal Case No. 43 o f2005) SUNG'ARE TOPONYA.............................................. APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT (Appeal from the decision of Monduii District Court (J. J. MUTAHYABARWA, RM) Dated 27th day of August, 2007 In Criminal Case No. 43 of 2005 JUDGMENT N.P.Z. CHOCHA, J. The appellant in this case one Sung'are Toponya was convicted against the offence of cattle theft he had been charged with at Monduii District Court. He was sentenced to five years' jail with. Besides custodial sentence, the trial court imposed corporal punishment of 3 strokes on each accused. The appellant had been prosecuted jointly with three others namely Tobiko Londa, Papaya Ngoli and Kimiri Orpuluo. All four were convicted, but it is Sung'are alone who appealed against conviction and sentence. Sung'are whom I shall hereinafter refer too as the appellant challenged the trial court's judgment saying it was built on an inadequate identification of the assailants, inadequate consideration of the confession of the co-accused and an error in disbelieving the appellants defence of alibi. The trial court's judgment is essentially based on two factors, one, that the culprits were properly identified by the herdboy one Kababu s/o Menyika and PW 2. Secondly, the court was moved by Tobiko Londa's conduct of running away from the group of people who were otherwise found in the search of culprits. After his arrest he is alleged to have confessed that he was involved in the theft together with others whom he disclosed. On the basis of his disclosure the police apprehended and subsequently prosecuted other accused persons including the appellant. The respondent supported conviction. It should not be over emphasized that the test upon which to base conviction is the strength of the prosecution's case, and never the weakness of the defence line. As matters stand on the record, the crucial issues were not sufficiently addressed too, as a result of which the case was not properly organized. It is indeed appreciated that Kababu Menyika who was a herdboy, was among the key witnesses in this case. For reasons which I consider to be inadequate, he was not found to testify. The prosecution was left with an option of depending on the statement which he made at police. The procedure is accepted under sec. 34B of the Tanzania Evidence Act. The provision outlines the circumstances under which a written statement may be admissible. The law is not clear on the status of extra judicial statements, procured from a child of tender years, which must be produced and admitted in place of a direct oral evidence, like Kababu's case. Under section 127 (1) of the Tanzania Evidence Act, Kababu's oral evidence would not be admitted on account of his tender age, unless he had been certified to be competent by the trial court. The law is in my view, double standard on this, in that as regards direct oral evidence, the witness who is of or under 14 years, must be screened under a very special procedure, but the restriction is waived to the same witness when making an extra judicial statement. There must be a uniformity on this. Since the Tanzania Evidence Act, particularly Sec. 34 B is applicable by the police when recording extra judicial statements, I will argue that the police should also be vested with powers to certify the witness' competency like those vested to court under section 127 of the Tanzania Evidence Act, so much that in the event the maker of the statement is not found, the statement substituting his oral evidence should bear similar quality. In that same vein, I find that the extra judicial statement of a witness who is a child of tender years who is not tested in terms of section 127(1) of the Tanzania Evidence Act, who cannot be found, is not admissible under section 34B of the Tanzania Evidence Act. Kababu's statement forming Exhibit P 1 was therefore illegally admitted. It is expunged from evidence. PW 3 Vitalis Silayo met the 2nd to 4th accused persons leading the cattle. This necessarily included the appellant who featured as the 3rd accused. The witness suspected that the cattle might have been stolen on account of the speed they were led. The cattle included 11 black and 1 red, which description the complainant made. PW 3 learnt, upon arrival at home that PW 1 had his cattle stolen. He concluded that the cattle he had come across in the bush, must have been the ones taken from PW 1. The northern part of the country bisected by the Central Railway line is occupied mainly by pastoralists. One thing is very apparent, that is, it is very common to find more than 20 cattle in a group of 50 which are alike in colour, stature etc. Similarities multiply ensuite the size of the group. You would think the cattle you left in Arusha are the same you now see in Magu, Mwanza, etc. In view of the prevailing similarities of cattle, identification by colour is not enough. It is important to have special identification marks on the cattle. It does not appear that PW 1 had branded his cattle with any special marks. If he had any, he did not describe them to court. Eventually it was not proved that the cattle PW 3 found the appellant and others leading, necessarily belonged to the complainant. As already noted, it is out of the unrecorded statement of Tobiko Londa that the rest of the accused persons, including the appellant were arrested. Under Sec. 33 of the Tanzania Evidence act confessions may be taken into consideration against the co-accused if they are proved. The fact that the 1st accused escaped and was arrested and that he named others including the appellant was narrated by PW 3 Vitalis and PW 4 E 1373 DC Gooshack. The two witnesses' evidence is unfortunately inconsistent on some of the fundamental issues. Whereas PW 3 for instance says that the 1st accused was arrested and interrogated on the following day i.e. 17/05/2006 after his escape on the 16th May, 2006, PW 4 says he was arrested and interviewed on the same day (16/05/2006). This implies that either two different people were arrested or that the 1st accused was interviewed on two different days. Therefore PW 3 and 4 did not hear the same thing from the same person at the same time. The said confessions were therefore not proved and cannot be considered within the ambit of Sec. 33 of the Tanzania Evidence Act. All that said, it was unsafe for the trial court to convict any of the accused persons. Convictions against all accused persons including those who did not appeal are quashed. Sentences are set aside. If the accused persons are not otherwise lawfully held, they are hereby ALL declared free. They must be released forthwithly. Appeal allowed. N.P.Z. CHOCHA JUDGE 07/01/2009 Date: 16/01/2009 Coram: N.P.Z. Chocha, J. Appellant: Absent Respondent: Ms. Kyara - State Attorney. Registry Assistant: Lucy Ivor Court: Judgment delivered in the appellant's absence. The clerk reports to us that the appellant has, according to the prison authority report, been released on presidential amnesty. Order: Right of Appeal explained. ------ &ssf N.P.Z. CHOCHA JUDGE 16/ 01/2008 /VM