20120924 TZHC Dodoma

S V IN THE HIGH COURT OF TANZANIA AT DODOMA DC. CRIMINAL APPEAL NO. 90/2011 (Originating from the District Court of Man yoni District at Man yoni, Criminal Case No. 137120 10) HOSEA PETROCHINDIE ....................... APPELLANT VERSUS THE REPUBLIC .................................... RESPONDENT JUDGMENT 19/9/2012 & 24/9/2012 KWARIKO, J. The appellant Hosea c/s Petro Chindie and one Stanley sb Mdula who was the 2nd accused at the trial jointly and together stood charged with the offence of Stealing by Agent c/s 273 (b) of the Penal Code Cap. 16 Vol. 1 R.E. 2002. It was alleged by the prosecution that the two jointly and together had on the 7th day of June, 2010 at about 10.O0hours at Sasilo Village within Manyoni District in Singida Region stolen oneTricycle Reg. No. T154 BAA made BAJAJI valued at Tshs. 2,000,000/= the property of one Laurent s/o Ramadhan which had been entrusted to them by the said •Ramadhar--ta- use for one hour only irstead they left to Kintanula village to sell it. The tWOdëI1.iëd i:r ire hëëtfté prosecuffbft böllftã total of five witnesses to prove the same. Apparently, at the middle of the trial the second accused jumped bail hence the case against him was heard in his absence, though no ordertiad been made by the trial caud to that ffet. 1 t Thus, the prosecution case reveal that on 7/6/2010 the appellant herein borrowed a tricycle, BAJA..J! from Laurent Ramadhan, PW1 to go to see his cattle at Mpandepande area and the duration of the borrowing was only one hour from 10.00am. However, at the end of the borrowing period PW1 did not see the appellant or the BAJAJI. He started to trace the appellant where he met one Thomas Singo, PW2 who told him that the appellant had also disappeared with his money he promised to bring him cattle in return. Thus, PW1 become anxious and the two went on to look for the appellant. At Mitundu area they met one Bernard Stephen, PW4 who revealed that the appellant and the 2nd accused had taken the BAJAJI to his workshop for repair and offered it to him for sale but they could not reach a consensus as far as the price was concerned hence they left. PW1 then reported the matter to police and the appellant and his colleague, 2nd accused were arrested with the BAJAJI at Kiwele area. They were thus accordingly charged. During the trial the said BAJAJI was admitted in court as exhibt P1 while the 2nd accused's caution statement was admitted and marked exhibit P2. In his defence the appellant did not dispute the fact that he had borrowed the BAJAJI from PW1 for his own business. However, stated that the BAJAJI had sustained mechanical defects and took it to a mechanic and before he accomplished his mission he was arrested along with his passenger the following day.. He said he had borrowed the BAJAJI on 8/6/2010. After arrest PW1 demanded to be paid shs. 3,000,000/= as costs of the borrowing but he had none and even when he reduced the same to 2,000,000/= he could not pay the same hence he was accordingly charged. 2 • At the end of the trial the court found that the appellant and another really were guilty of the offence charged since the appellant had disappeared with the BAJAJI contrary to the borrowing agreement of using it for one hour only. Instead, the appellant kept the BAJAJI form 7/6/2010 to 13/6/2010 and that PW3, PW4 and PW5 proved that the appellant and another had offered to sell the same. They were convicted and sentenced to seven (7) years imprisonment each. The appellant has thus brought this appeal against conviction and sentence where he raised about five grounds of appeal. The appellant's grounds of appeal boil to one major complaint that the prosecution case did not prove the offence charged. When this appeal was called for hearing the appellant did not have anything to say or clarify as he told the court that he could respond after he heard the submission from the State Attorney in respect of his grounds of appeal. Thus, Ms. Shio, learned Senior State Attorney made the appellant's life easier when she supported his appeal. She gave reasons for his stance and I will refer to them shortly. This court has gone through the trial court's record, the evidence from both sides, the decision thereon, the grounds of appeal and the submission made by Ms. Shio learned Senior State Attorney and it is of the opinion that this appeal has merits. The following are the reasons for my stance: Firstly, as complained by the appellant and submitted by Ms. ' evidence did not Shio learned Senior State Attorney, the prosecution il prove the offence of stealing. That, a fraudulent intention which is necessary componeril Ia prove stealing had not been proved in this case as defined under section 258(1) of the Penal CodeCap. 16 RE. 2002,itsays; • 3 "A person who fraudulently and without claim of right takes anything capable of . being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing". As rightly submitted by Ms. Shio, the appellant's act of wondering with the PW1 's tricycle in the villages .did not amount to stealing it. And also that act did not amount to permanently depriving the complainant of his BAJAJI. At most the appellant may have caused anxiety to PWL The foregoing is cemented by the fact that PW1 did not prove that he had lent the BAJAJI to the appellant for one hour only. No any evidence was brought to support PW1 's evidence to that effect. The evidence which says that the appellant had intended to sell the BAJAJI has not been sufficiently proved. The same ought to have been supported by another evidence to that effect. Thus, PW4's assertion that the appellant had offered to sell the BAJAJI to him is not enough in the absence of any supporting evidence. Secondly, the court finds as submitted by both parties that the lrial court erred in law when he used the 2nd accused's caution statement as one of the evidence to convict the appellant. Firstly, that statement did not belong to the appellant and it was not proved against him. The appellant denied that statement and it was legally wrong to fender and admit if irthè absenãé of the maker and against a person who did not make it. The appellant's objection did not even need any, inquiry to ascertain the admissibility of the caution statement since the same related to another - person. An inquiry could have.involved two opposing sides and there was only one side, the prosecution The maker of th 4 statemenfwas not in court to contest or admit the same. Thus; the statement, exhibit P2 was not good evidence and the same is hereby expunged from the record. Also, while the appellant was jointly charged with the 2nd accused but no proof of their common intention had been tendered. Lastly, though the appellant did not raise in his petition of appeal but this court agrees with Ms. Shio learned Senior State Attorney that the trial court erred in law when it failed to consider the appellant's defence before a final decision was reached. The trial magistrate after he had summarised evidence from both sides, he considered and analysed the prosecution evidence only before a decision was reached. This amounted to violation of a principle of law of fair hearing which is one of a person's basic rights. This right is also enshrined in our Constitution. Article 13 (6) (a) of the United Republic of Tanzania Constitution says; "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned". In the case at hand the appellant was not accorded a fair hearing since his defence had not been considered in line with the prosecution case. This was fatal error and it vitiated the judgment. Be it as it may, the prosecution case was not proved to the standard required in law. This appeal is thus allowed, conviction against the appellant is quashed and the sentence, is set aside. Consequently, the appeild nt is ordered to be released: from custody unless his continued incarceration is related to other lawful cause. It is ordered accordingly. T.T. • (M. A. ARIKO) JUDGE 24/9/2012 AT DODOMA 24/9/2012 Appellant: Present For Respondent: Ms. Magesa State Attorney. C/C: Ms. Komba. - A- ARIKO) JUDGE 24/9/2012 -