geofrey lucas and 5 others vs the republic 2011 tzhc 2096 15 august 2011

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NUMBER 03 OF 2010 (ORIGINATING FROM CRIMINAL CASE NUMBER 90 OF 2009 OF THE DISTRICT COURT OF SINGIDA AT SINGIDA) 1. GEOFREY LUCAS---------------------------------------1st APPELLANT 2. IDD RAMADHAN------------------------------------- 2nd APPELLANT 3. YUSUPH MOHAMED-------------------------------- 3rd APPELLANT 4. JUM AOM ARY-----------------------------------------4th APPELLANT 5. BAKARI JUM A----------------------------------------- 5th APPELLANT 6. SELEMANI ZAHARAN--------------------------------6th APPELLANT VERSUS THE REPUBLIC--------------------------------------— RESPONDENT JUDGMENT 2 0 -0 6 -2 0 1 1 & 15,- 08 - 2011 S. S. MWANGESIJ.: On the 09rd day of March 2009, at the District Court of Singida, about fifteen accused persons stood arraigned with the offence of armed robbery contrary to section287A of the Penal Code Cap 16 Volume 1 of the Laws Revised Edition of 2002 as amended by Act No. 4 of 2004. Those accused persons did go by the names of Juma Athumani, Mtamaa Hussein, Mohamed Hamisi, Idd Ramadhan @ Mzee Issa, Yusuph Mohamed, Richard Lucas @ Mjomba, Elfasi Marko Makunenge, Richard Charles, Godfrey Lucas, Madanka Gedion, Juma Omary @Abeid, Bakari Juma, Charles Makala, Sylivester Mkumbo and Selemani Zaharan. It was the case for the prosecution that on the 05th day of November 2008 at about 0200 hours, at Minga area within the Municipality District and Region of Singida, all the accused did jointly and together steal 45 crates of beer valued at Tshs. 2,000,000/=, 30 crates of Coca Cola valued at Tshs. 600,000/=, one Television make Panasonic valued at Tshs. 500,000/=, one radio cassette make Panasonic valued at Tshs. 50,000/=, the property of one Evarist Kulaya and immediately before and/or immediately after the time of such stealing, they did use actual violence by threatening one Shabani Patiu with a panga and an arrow in order to obtain and/or to retain the said stolen properties. When the charge was read over to all the accused persons, they did all plead not guilty. In order to establish to establish the commission of the offence r by all the accused, the prosecution did summon nine (9) witnesses. And after those witnesses had finished to give their evidence in Court, the learned Resident Magistrate who presided over the matter, did rule out that a case had been established against all accused save Mtamaa Hussein, Juma Athumani and Maanka Gedion. The trio were thus discharged and set at liberty while the remaining accused, were invited to enter their defence evidence. All of them did give sworn/affirmed evidence and there were no additional witnesses called for their defence. 2 After the trial learned Magistrate had evaluated the evidence laid before her, she was of the view that the charged offence of armed robbery had not been sufficiently established against all the accused, instead thereof, she was of the view that the offence that had been satisfactorily established was that of stealing, and that it had been established against Mohamed Hamisi, Idd Ramadhan, Yusuph Mohamed, Richard Lucas, Elfasi Marko Makunenge, Godfrey Lukas, Juma Omary, Bakari Juma and Seleman Zahran. And Richard Charles was found to have committed the offence of being in unlawful possession of properties suspected to have been stolen or unlawfully acquired. The remaining duo, that is Sylivester Malumbo and Charles Makala, were acquitted and set free as the evidence against them was shallow. Consequent to their conviction, those convicted to the offence of stealing, each was sentenced to go jail for a period of five (5) years, while the one convicted of the offence of receiving stolen property, was sentenced to go to jail for a period of one (1) year. The conviction and the sentences imposed by the trial Court, did aggrieve the current appellants who have preferred their appeals to this Court challenging the said decision of the District Court. Geofrey Lucas did prefer a separate petition of appeal while the other five appellants did lodge a joint petition of appeal. Upon goingthrough the grounds of appeal raised by all the appellants, it is my view that they all hinge on the evidence that was tendered to establish the commission of the offence of theft. It is the contention of the appellants that they 3 After the trial learned Magistrate had evaluated the evidence laid before her, she was of the view that the charged offence of armed robbery had not been sufficiently established against all the accused, instead thereof, she was of the view that the offence that had been satisfactorily established was that of stealing, and that it had been established against Mohamed Hamisi, Idd Ramadhan, Yusuph Mohamed, Richard Lucas, Elfasi Marko Makunenge, Godfrey Lukas, Juma Omary, Bakari Juma and Seleman Zahran. And Richard Charles was found to have committed the offence of being in unlawful possession of properties suspected to have been stolen or unlawfully acquired. The remaining duo, that is Sylivester Malumbo and Charles Makala, were acquitted and set free as the evidence against them was shallow. Consequent to their conviction, those convicted to the offence of stealing, each was sentenced to go jail for a period of five (5) years, while the one convicted of the offence of receiving stolen property, was sentenced to go to jail for a period of one (1) year. The conviction and the sentences imposed by the trial Court, did aggrieve the current appellants who have preferred their appeals to this Court challenging the said decision of the District Court. Geofrey Lucas did prefer a separate petition of appeal while the other five appellants did lodge a joint petition of appeal. Upon going through the grounds of appeal raised by all the appellants, it is my view that they all hinge on the evidence that was tendered to establish the commission of the offence of theft. It is the contention of the appellants that they 3 were convicted basing on very weak evidence. It is on those bases that all appellants are requesting this Court to quash the findings of the trial Court and set them all at liberty. During the hearing of the appeal, all appellants did appear in person to prosecute their appeal. And when required by the Court to expound their grounds of appeal, they were all of the view that the grounds contained in their petition of appeal were sufficient. On the other hand, the respondent - Republic was represented by Ms Haonga who declined to support the conviction that was entered against all appellants by the trial Court. It was the contention of the learned State Attorney that, according to the records contained in the case file, the conviction of all appellants was founded on the ground that they were named by their co-accused one Richard Charles who named them as the ones who send the items to him. It was after this accused had been found with the stolen properties that, he did name the appellants in his r caution statement as well as in the extra-judicial statement that, he had received those items from the appellants. The learned State Attorney did argue that, it was misdirection on the part of the trial Court to found conviction to the appellants without there being any other evidence to corroborate such contention by the co-accused. The Court has been referred to the provisions of section 33 (2) of the Law of Evidence Act, as 4 well as the decision in the case of Selemani Rashid and Others Vs Republic [1981] TLR 252.. On those bases, the learned State Attorney has requested this Court to find merit in the appeal by the appellants and therefore, it be allowed and they be set at liberty. On the bases of what has been argued abbve, the question that stands for consideration by this Court is whether the appeal by the appellants is found on any sound grounds. As earlier pointed out, the basic ground of the appeal by the appellants is founded on the fact that the evidence tendered against them during the trial of the case did not justify conviction. This contention has been supported by the learned State Attorney. For my part, after having gone through the evidence of the nine (9) witnesses who testified for the prosecution, I have faced no any difficulties in finding the merit in the contention by the appellants, as well as the submission by the learned State Attorney. Of all the witnesses who testified for the prosecution, thfe only evidence that did touch the appellants in relation to the offence which they stood charged with, is that of Richard Charles alone who happened to be the eighth accused person. This accused, after being suspected to possess properties that might have been acquired through illegal means, his house was searched by Police Officers, a search that led to the recovery of the items some of which were identified by the complainant in the matter at hand to be among his stolen ones. 5 It was in the course of trying to establish as to how he came by those items that, the eighth accused did name the othenaccused as the ones who had taken the items to him. The question that arises from such situation is as to whether such evidence by the eighth accused could solely form the basis for the conviction of his co- accused. As submitted by the learned State Attorney, the learned trial Magistrate did grossly misdirect herself to rely on such evidence alone. According to the testimony of PW6 one D. 6967 Detective Corporal Bwire, that is the Police Officer who conducted the search at the house of the eighth accused, a number of items which had no explanation as to how they had been obtained were recovered. Those items, included those that were identified by the complainant in the matter at hand, that is Edward Kulaya as among his stolen ones, and others, were identified by Corporal Gabriel as among his robbed items in another different case, and there were other items which were not identified by the two. The implication one gets from such recovery of items, is that the house of the eighth accused, was some sort of a warehouse of robbed properties. And if that was the case, his uprightness must have been questionable. As such, the possibility for him to name any person after the stolen items had been recovered in his house, for the sake of saving himself and his interest could not be belittled. Although under the provision of section 33 (1) -of the Law of Evidence Act, Cap 6 of the Laws Revised Edition of 2002, the confession of an accused can be used to found conviction on his co-accused, the Court can only do so after having 6 warned itself as to the dangers of relying on such evidence. Such dangers are very looming in the matter at hand, regard being made to the integrity of the one making the confession. It is thus the opinion of this Court that, the trial Court erred in founding conviction to the appellants on the bases of the evidence that was laid before it. Such finding of the trial Court is thus hereby quashed, and the sentence of imprisonment for five years that was imposed to all appellants is set aside. It is ordered that, all appellants.be set at liberty forthwith unless lawfully held for any other justifiable cause. Order accordingly. 7