20120917 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: BWANA, J.A., MJASIRI, J.A., And MANDIA, J.A.) CRIMINAL APPEAL NO. 15 OF 2010 SILVANUS ANSIGALI @ MBILINYI ..................................·APPELLANT VERSUS THE REPUBLIC ............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Nyangarika, J.) dated the 08th day of February, 2010 in Criminal Appeal No. 83 of 2009 JUDGMENT OF THE COURT 13th & 17th Septemb~r, 2012 MANDIA, JA.: PW1 Omari Zaidi of Mwaloni area of Mwanza city is the owner of a motor cycle with registration number T953 ARV. On 18/10/2007 a person whom PW1 identified to be the appellant hired him to Misungwi for an agreed fare of sh. 15,000/=. When the _two .reached Misungwi, the .• ·appellant led PW1 to a se,cluded place where the appellant, with the help of ~~ two other persons who emerged from the bush at the scene, at gunpoint, 1 ,. pounced on him, tied him to a tree and rode off on the motor cycle after robbing PWl of cash sh. 21,000/=, a mobile telephone and a helmet. Five minutes after the robbers left, rescue came to PWl in the form of two old men, one of whom was PW3 Hamisi, Msabila. The old men declined to untie PWl from the tree, but nevertheless reported the matter to the Police who came to the scene and untied PWl. From his "temporary open jail" PWl was taken to Misungwi Police Post where he reported the robbery. At Misungwi Police Post the report of robbery was received by PW2 D 6580 Detective Corporal John who circulated a radio message to all Police Stations that a motor cycle with Registration number T953 ARV of Watco make black in colour has been robbed and should be seized on sight. At 3 a.m. on the morning of 19/10/2007, six hours from the robbery which was committed at 9 p.m. on the night of 18/10/2007, PW4 Detective Corporal Erick was manning the road barrier at Tinde when he saw a motor cycle along the Shinyanga Highway with three riders on it. PW4 testified that the three persons on the motor cycle tried to circumvent the barrier but stopped when they saw that he (PW4) had a gun. The motor cycle had 2 .;: registration number T953 ARV and the rider had no registration card or licence when PW4 asked for the same. PW4 decided to take the three persons to the local Police Post. On the way the three persons tried to bribe him with sh. 10,000/=, which was increased to sh. 50,000/= when the first offer was refused. When they failed in their bribery attempt the three persons fled. PW4 concentrated in capturing the rider, who is the appellant, and made him drag the motor cycle to the Police Post. On the next morning 20/10/2007 PW4 saw a police message circulated which showed that the motor cycle he had intercepted at Tinde road barrier was stolen property. In the evening of 20/10/2007 PW2 D 6580 Detective Corporal John, the one who circulated the police message of theft to all Police Stations in the country, went over to Shinyanga Police Station where the appellant was held, and took delivery of the appellant and the motor cycle T953 ARV and sent them to Misungwi Police Post. The appellant was subsequently charged with Armed Robbery. In his defence the appellant claimed he was arrested in Shinyanga in the company of one woman called Lilian as the two were taking tea at Half 3 -.~ London Hotel and claimed the allegations of robbery were mere fabrications. On the strength of the above evidence, the appellant was convicted of Armed Robbery and sentenced to thirty years imprisonment with six strokes of the cane. The appellant was dissatisfied with the conviction and sentence and preferred an appeal with the High Court of Tanzania at Mwanza. His appeal was dismissed in its entirety, hence this appeal. The appellant's memorandum of appeal which he filed in this court raises the following salient points:- · 1) that Exhibits P2, P4 and PS were irregularly tendered in the trial court and were shown to PWJ, before being described by him as to assert their identity 2) that the appellant was convicted on the basis of visual identification without a prior description of 4 him which amounted to a dock identification which is contrary to law and procedure 3) that the first appellate court erred in its failure to observe that exhibit P6 ( cautioned statement) was tendered unprocedurally. The respondent Republic was represented in this appeal by Mr. Pascal Marungu, learned State Attorney assisted by Mr. Hemed Halid, learned State Attorney. The appellant had nothing to add in argument or explanation to the memorandum of appeal he filed. On his part, Mr. Pascal Marungu declined to support the conviction entered by the trial court and affirmed by the first appellate court, as well as the sentence passed. The learned State Attorney conceded that the record shows that the appellant was not convicted on the basis of evidence of visual identification or cautioned statement Exhibit P6, evidence which the trial court discounted. He contended that the evidence upon which the conviction against the appellant is based hinges 5 :i: on the doctrine of recent possession. We would tend to agree with the learned State Attorney and find that the basis of the appeal before us is the doctrine of recent possession. As for the application of the doctrine in the subordinate courts, the learned State Attorney contended that the trial court wrongly applied the doctrine, and the first appellate court wrongly upheld the findings of the trial court. He contended that the basis of the charge against the appellant is a motor cycle with registration number T953 ARV which was seized from the owner PWl Ziadi Omary by unknown persons who used a gun to effect the seizure of the motor cycle. The learned State Attorney also contended that the motor cycle registration number T953 ARV was tendered in evidence by the owner PWl Ziadi Omary from whom it was robbed. He contends that since the motor cycle was seized by the Police at a road barrier, and was tendered by the owner, the chain of custody has been broken. It is therefore not possible to tell if the motor cycle seized from the appellant is the one tendered in evidence, citing James Kasobo @ Mirango v Republic, Criminal Appeal No. 261 of 2006, and Majid John Vicent @ Mlindamgabo & Another vs Republic, Criminal Appeal No. 264 of 2006 (all unreported). In the lames Kasabo @ Mirango case (supra) this Court cited ALHAJ AYUBU 6 1 @ MSUMARI & ANOTHERS vs REPUBLIC, Criminal Appeal No. 136 of 2009 (unreported) where it held that:- "... before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case... It must positively be proved, first that the property was found with the suspect; secondly that the property is positively the property of the complaint; thirdly that the property was stolen from the complainant, and lastly that the property was recently stolen from the complaint. " It is our view that the authority cited by the learned State Attorney is authority of support of the conviction rather than the opposite. We form this opinion that the appellant was arrested at a r(?adblock at Tinde while riding a motor cycle which was stolen from the complainant six hours earlier. He was taken into custody on that day and has been in custody ever since. There is therefore no doubt that the person arrested at Tinde Road barrier in possession of a stolen motor cycle is the appellant in the dock. In his evidence, PW1 Ziadi Omary tendered a registration card as 7 ,ft -r well as a loan form for the motor cycle T953 ARV which showed that he had to borrow money in order to purchase the motor cycle. There was also evidence that the appellant hired PWl, Ziadi Omary from Mwanza City to an isolated place at Misungwi, and that at the appointed place two more persons emerged from the bush, tied up the appellant to a tree and made off with the motor cycle. The robbers used a gun to cow the complainant into submissiveness, which proves the offence of robbery. Lastly, only six hours elapsed between the robbery and the arrest of the appellant. Rather than help the appellant, the lames Sasabo case (supra) in fact cements the case against him. The learned State Attorney also saw doubts in handling of the motor cycle and wanted the benefits of the doubt to be resolved in favour of the appellant. He cited Majid John Vicent @ Mlindamgambo case (supra). In this case, we had occasion to observe thus:- "While there are no hard and fast rules as to who should produce an exhibit in the trial of a case it baffles us as to why the pistol was not produced by PW4 D 7457 DC Simon, the arresting officer. If PW4 had produced it in evidence, we think, he 8 I would have been better placed to tell the court whether this was the same pistol seized from the appellants on 16.3.2006. Indeed, that would help in allaying fears about the "chain of custody in handling the exhibit before its production in evidence at the trial. " As we said earlier, the appellant was arrested while in possession of the stolen motor cycle at Tinde road barrier. The appellant has been in custody ever since because he was taken from Tinde to Misungwi police post by PW2 Detective Corporal John. In court the owner PWl Ziadi Omary proved ownership of the motor cycle and then asked to be given possession of the motor cycle after it stayed in the hands of the court from 1/8/2008 to 31/10/2008. The record of the request by the complainant as recorded by the court goes thus:- "COURT. The complainant prays for the motor cycle to be handled over to him whereas he will being (sic) it on the hearing of the case. C.J. KANYATA PDM I 31/10/2008 9 I ACCD. I also has no objection since it is not mine. CJ. KANYATA PDM I 31/10/2008 Order. The exhibit (motor cycle) be handed over to complainant Omari Ziadi who is conditioned that he must bring the same on the fixed hearing date 20/11/2008. C.J. KANYATA PDM I 31/10/2008. This extract shows that when the owner asked to be given possession of the motor cycle the appellant said categorically he had no objection as the motor cycle did not belong to him. Since there was no rival claim of ownership up to the time of tendering of the motor cycle as an exhibit, and since there is evidence that the owner has proved ownership, and since there is evidence that the appellant is the principal actor in the robbery of the motor cycle at gunpoint, there is no break in the chain of custody as suggested by the State Attorney. It is a principle of law 10 , that where doubts arise in a factual situation, the benefit is given to the accused person. The doubts must, however, be reasonable. Courts should not, and cannot, give benefit to a situation where the doubts raised are ' irrational. We are satisfied that. the findings of the two courts below that the appellant was found in possession of property recently robbed, did not account for such possession, and is therefore presumed to be the robbed are correct in the circumstances of this case. The appeal lacks merit and is dismissed in its entirety. DATED at MWANZA this lih day of September, 2012'. S. J. BWANA JUSTICE OF APPEAL ./ . ~: p--- p if;;· ' . ... (. . S. MJASIRI . ) JUSTICE OF APPEAL W. S. MANDIA -·-··-- JUSTICE OF APPEAL I certify that this is the true copy ofthe original. Z.A.M~t DEPUTY REGISTRAR COURT ·of APPEAL 11