charles simbao msiliwa vs republic 2013 tzhc 2037 3 october 2013

IN THE HIGH COURT OF TANZANIA AT SUMBAWANGA DC CRIMINAL APPEAL NO. 9 OF 2012 (Appeal from the decision of the District Court of Sumbawanga in Original Criminal Case No. 230 of 2011) CHARLES SIMBAO @ M SILIKW A.............................APPELLANT Versus THE REPUBLIC............................................. ............ RESPONDENT 14th August & 3rd October, 2013 JUDGMENT MWAMBEGELE, J.: This appeal stems from criminal case No. 230 of 2012 at the District Court of Sumbawanga in which the Appellant Charles Simbao @ Msilikwa was arraigned upon the charge of unlawful possession of a firearm and one round of ammunition c/s 4 (!) and (2) of the Arms and Ammunition Act, Cap. 223 of the Revised Edition, 2002 as amended by sections 45 and 46 of the Written Laws (Miscellaneous Amendments) Act, No. 17 of 2010. It was averred in the charge sheet that on the 7th day of September, 2011 at about 1100 hrs at Majengo area within the Sumbawanga Municipality in Rukwa Region was found by the Officer in Command of Criminal Investigation Department (OC - CID) Sumbawanga ASP E.G. Kajala in unlawful possession of a pistol make Browning No. 3901 9mm CAR and one round of ammunition. The Appellant was convicted and sentenced to a fine of one million shillings or to ten years imprisonment in jail in default. Aggrieved, he has lodged an appeal in this court advancing, in a verbose Memorandum of Appeal, eleven grounds of appeal running through three typed pages. The grounds of appeal, essentially, attack both conviction and sentence. He has asked this court to quash the conviction and set aside the sentence imposed on him. I find it compelling to prelude this judgment with the facts of the case in a brief manner.. On 23.07.2011 Emmanuel Mabuye; an employee of TANROADS, who testified in court as PW1 learnt that a pistol make Browning with six rounds of ammunition he legally owned was missing. He realised that it had been stolen together with cash Tshs. 8,000/=. Subsequently, an informer tipped the Police that the Appellant was in possession of a firearm with which he used to rob people. The police, armed with a search warrant proceeded to the residence of the Appellant and mounted a search. The search was conducted by ASP Emmanuel Kajala; (OC - CID) Sumbawanga who testified as PW3 and No. E 3249 D/Sgt Whinjos who testified at the trial as PW2 in the presence of Tusekile Mwaikusi who testified as PW4. The accused person, who had jumped bail in a case not the subject of this appeal, 2 was found hiding- in a toilet. The search was conducted during which the Appellant, so the three witnesses testified, showed them a pistol make Browning which he had hidden in a bucket which was in the toilet. Upon further search, a round of ammunition was found in the pocket of the Appellant's clothes. On interrogation, the accused admitted to have been using the firearm to rob people. He admitted that when he stole the pistol it had six rounds of ammunition and that the rest had been used in thieving endeavours. On 07.09.2011, PW1 was called at the Police Station to identify the pistol and he indeed identified it to be his and that it was the one stolen on 23.07.2011 along with Tshs. 8,000,000/=. The Appellant was arrested and at the Police Station he made a cautioned statement which was tendered in evidence as exhibit. This appeal was argued before me on 15.08.2013 during which the Appellant appeared in person and argued the appeal by himself whereas the respondent Republic had the services of Mr. Mwashubila, learned State Attorney. At the hearing of this appeal, the Appellant, in addition to his prayer to rely on the Memorandum of Appeal, and having prayed to withdraw the third ground of appeal which prayer was granted by,the court and, consequently, the third ground of appeal was marked withdrawn. The learned State Attorney thought that the conviction of the appellant was well grounded and therefore did not support the appeal. The learned State Attorney opposed the appeal on two main 3 grounds. First, that the evidence for the prosecution at the trial was watertight in that it was the appellant himself, during the search, who showed where he had hidden the pistol and a round of ammunition was found in the pockets of the his clothes. The learned State Attorney added that the search was properly conducted in the presence of an independent witness. Secondly, that the Appellant was convicted on the strength of the cautioned statement which was tendered in court as an exhibit and the appellant did not object to its being tendered in evidence. In a short rejoinder, the Appellant submitted that the search conducted was not properly conducted in that neither his ten cell leader nor the mtaa chairman witnessed the same. In his view, the leaders of the area ought to have witnessed the search short of which, the search conducted was nothing but an illegal exercise. The learned trial resident magistrate correctly arrived at a conclusion that the evidence adduced before him was sufficient to prove the guilt of the Appellant. The evidence upon which the Appellant was convicted and upon which this appeal stands or falls, hinges, as the learned State Attorney rightly pointed out, on two categories. First, the testimony of witnesses and second the accused person's; the Appellant's cautioned statement. I will argue and decide on these grounds of appeal and in my view, thre two grounds summarises the Appellant's eleven grounds of appeal as appearing in the Memorandum of Appeal. I say so because the grounds of appeal, as already alluded to hereinabove, lengthy as they are, have been presented in a discursive manner. The four witnesses fielded by the prosecution to prove its case, were brief in their testimony but focused and to the point. Except for the first, all witnesses were positive that the Appellant was found in possession of a pistol make Browning which was shown to the Police officers conducting the search by the Appellant himself. The search was conducted by the Police officers; PW2 and PW3 in the presence of an independent witness; PW4. The pistol in question was identified by PW1 that it was his property he legally owned and was the one he realised was stolen on the night of 23.07.2011. The appellant has complained that the search ought to have been done in the presence of a ten cell leader and the mtaa Chairman. This issue will not detain me. The search conducted cannot be said to be invalid just because it was not witnessed by a mtaa leader. In my view, the search mounted in the present case was but lawful. It was conducted by police officers who were armed with a search warrant which search was conducted in the presence of an independent witness. The search in the present case had the hallmark of a valid search before the eyes of the law [see: the decision of the Court of Appeal in S e/em an i A b d a lla h & 2 O th e rs Vs R, Criminal Appeal No. 384 of 2008 (unreported) and the decisions of this court in EU ad K a y u n i Vs R, Criminal Appeal No. 65 of 1999 and R Vs O m ary P a tric k & an o th er, 5 Criminal Sessions case No. 158 of 2001 (both Mbeya Registry unreported)]. I now turn to the issue regarding the cautioned statement. The Appellant has attacked its admissibility on the ground that the trial magistrate ought to have considered the circumstances in which it was made. He has complained in the first ground of appeal to the effect that the provisions of section 57 (1) & (2) (d) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 were not complied with. On this point, I think the Appellant is raising this issue at this point in time in a fruitless attempt to save his otherwise sinking boat. It is on record that the cautioned statement referred to by the Appellant was received in evidence after being tendered by PW2 on 23.11.2011 and the Appellant was asked by the court before the same was tendered and he replied "no objection" to its being received in evidence. If at all the Appellant had in mind what he has averred in the first ground of appeal, he would have objected to its being tendered in evidence in which case, the prosecution would have prayed for an inquiry; a procedure akin to a trial within a trial obtaining in criminal proceedings in the High court which procedure aims at ascertaining whether or not the cautioned statement was voluntarily made or simply put, if it was made in accordance with guidelines provided by the law more especially the provisions of the law part of which has been referred to above by the Appellant. This was not done and in my view, this complaint by the Appellant at this stage is but an afterthought. 6 I must state at this juncture, that I have read the cautioned statement between the lines. I have examined its features as well. It was tendered in evidence as Exhibit P3. To say the least, it was perfectly written following the guidelines prescribed by the law. The Appellant was warned and signed the warning and signed on each page of the statement to endorse its authenticity. In addition to the signature, the Appellant wrote his name adjacent to his signature on each page of the document. The statement was read to him and he himself read it and admitted it to be correct and signed at the end of it.The story contained in the statement is hair rising. It is narrated insuch a way that one believes that it is but true. In it, the Appellant recounts how he, in company of three others, used to rob people in and out of Sumbawanga and used to sell the loot to their counterparts in Zambia from which th e y . used to take stolen items and sell them in Sumbawanga. Items mentioned include radios, television sets, motor cycles and clothes. He narrates how in 2007 he was prosecuted, found guilty, convicted and sentenced to imprisonment for twenty years. He was granted bail which bail he jumped. But the relevant part in connection with the present appeal reads: "Siku ya tarehe 07/07/2011 nikiwa nyumbani kwangu nilikamatwa na Polisi nikiwa nimejificha chooni na nilipopekuliwa katika mfuko wa suruali niliyokuwa nimeivaa walikuta 7 risasi moja ya bastola. Nikaambiwa nionyeshe bunduki na niliwapeleka chooni sehemu nilipokuwa nimeficha katika ndoo ya maji rangi ya kijani na kuitoa bastola hlyo. ... Bunduki hiyo bastola tulienda Chanji nyumba tusiyoifahamu na kuvunja nyumba na kumkuta. mtu amelala tulinyata na kuchukua mkoba tukijua ni fedha na tulipoufungua ndani tulikuta bastola ilikuwa na risasi sita. Sisi sote tulikuwa hatujui kutumia tulimtafuta mtu mmoja aitwaye DEO S/O MWAKABOKA anayeishi Malangali na kuanza kuungana naye kufanya ujambazi. Bunduki hiyo tulikuwa • tukiitumia kufanya ujambazi..." To say the least, the cautioned statement is quite incriminating of the appellant. The testimonies of PW2, PW3 and PW4 left no stone unturned in incriminating the Appellant that he was found in possession of the round of ammunition and the stolen pistol; the property of PW1. The cautioned statement shows how the pistol with six rounds of ammunition was stolen from PW1. It also shows how the pistol was being used in robbery activities. In my considered view, the evidence adduced at the trial was quite overwhelming to ground the conviction of the appellant. As for the sentence, I think a sentence of a fine of one million or imprisonment of ten years in default on a habitual offender, a confirmed convict who had jumped bail, met the justice of this case. I do not see any reason of disturbing it. This appeal is accordingly dismissed in its entirety. DATED at SUMBAWANGA this 3rd day of October, 2013. J. C. M. MWAMBEGELE JUDGE