20140320 TZCA Arusha 2

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: OTHMAN, C.J; MANPIA. J.A; And ORIYO, J.A.) CRIMINAL APPEAL NO. 288 OF 2013 ABDALLAH BLACK RITE ....................................................................APPELLANT VERSUS THE REPUBLIC................................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (MygashaJJ dated the 5th dayW April, 2013 in PC. Criminal AppealANo. 43 of 2009 JUDGMENT OF THE COURT 18th & 21st March, 2014 MANPIA, J. A.: On 18/7/2008 at midnight PW1 Andrew Peter Munishi, a carpenter living at Kibosho Manushi village in Moshi District, went out of his house for a short call. Apparently the toilet facilities are separated from the main house. Just outside his house, PW1 met a group of five persons. He tried to run away. One of the five persons called out to him "Andrew, Simama tutakupiga chuma. " PW1 testified in the trial court that he identified the voice of this person who called out his name as his neighbor, the appellant. The five persons caught up with him, cut him with a machete and beat him with a club. While he shouted for help the five persons entered the house and took from therein cash shs. 300,000/=, a mobile phone of Nokia make valued at shs. 320,000/= and a motor cycle of Honda Jinchang make red in colour (Exhibit. P2) whose registration number PW1 did not mention when giving evidence in the trial court. Neighbours responded to the cries for help from PW1 which made the bandits run away, dragging the motor cycle with them. The neighbours tried to follow the drag marks of the motor cycle but did not succeed in finding either the bandits or the motor cycle. Another neighbor PW3 Aloyce Mathew Munishi who was one of the persons who responded to the cries of help from PW1 and took him to Mawenzi Hospital for treatment. On the following day 19/7/2008 at 4 p.m in the afternoon PW2 Aloyce Severin, a motor cycle mechanic in Moshi town, was approached by the appellant who was offering to sell a motor cycle to him (PW2) for shs. 300,000/=. The appellant had the motor cycle with him. On seeing it, PW2 recognized the motor cycle as one which PW1 Andrew Peter Munishi used to send to him for service, but did not give any identifying marks on the motor cycle. During re-examination, PW2 told the trial court that when the appellant brought the motor cycle to him for sale it had no registration number. All the same, after "recognizing" the motor cycle as the property of PW1 Andrew Peter Munishi, he telephoned the latter. Together, PW1 and PW2 reported the matter to the Police. A trap was arranged in which PW3 Aloyce Mathew Munishi participated. During the trap, arranged by PW5 Inspector Alfred Kyebe of Moshi Police Station, the appellant was arrested while trying to sell the motor cycle. PW5 Inspector Alfred Kyebe did not tell the trial court whether the motor cycle had a registration number at the time of the arrest, or not. The same goes for PW3 Aloyce Mathew Munishi. He was a witness to the trap but did not tell the trial court whether the motor cycle had a registration number at the time of the arrest, or not. The appellant was arrested by PW5 Inspector Alfred Kyebe at the trap and searched by the latter. During the search PW5 seized mobile telephone lines with numbers 0717 - 605644 and 0765- 382391 which he tendered as Exhibit P4. No mobile telephone was seized from the appellant, but PW1 Andrew Peter Munishi alleged that the telephone line 0717- 605644 belonged to him. On 23/7/2008, four days after the arrest, PW4 C 458 Detective Sergeant Halid recorded a confessional statement from the appellant and tendered it in evidence. The appellant objected to the tendering of the statement as evidence, saying that the statement was obtained from him after a beating in which the Police broke his hand. The court overruled the objection and admitted the statement as Exhibit PW3 without holding an inquiry on the voluntariness of the statement. The last witness for the prosecution was PW6 Marko Francis Munishi, a businessman residing in Dar es Salaam who testified in the trial court that he sold a motor cycle of Jinchang make, red in colour to the appellant in 2007. The motor cycle had registration number T.584 APE. PW6 tendered in evidence the registration card for motor cycle T 584 APE which was still in his name and a sale agreement showing PW6 had sold the motor cycle to PW1 Andrew PETER Munishi. The record does not, however show that on the date he testified in the trial court PW6 was shown the motor cycle for the purposes of identification. It is on the basis of the above facts that the appellant was charged with Armed Robbery in the District Court of Moshi at Moshi. In his defence the appellant denied any knowledge of the offence and alleged he was arrested while going about his business of selling decorations. He denied that there was a trap in which he was arrested while trying to sell a motor cycle. Despite his protestations of innocence, the appellant was convicted as charged. The conviction was based on the doctrine of recent possession. The trial court sentenced the appellant to imprisonment for thirty years. Aggrieved by the conviction and sentence the appellant preferred an appeal to the High Court of Tanzania at Moshi. The first appellate Court upheld the finding of the trial court that the appellant was found in possession of a motor cycle recently stolen, and dismissed the appeal in its entirety. Further aggrieved the appellant preferred this second appeal to this Court. The appellant has lodged a memorandum of appeal containing eight grounds of appeal but the only ground which raises any substance is ground three, where the appellant complains that both the trial court and the first appellate court erred in finding that the appellant was found in possession of recently stolen property and thereby basing the conviction on this erroneous finding. At the hearing of the appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Ms Ellen Rwijage, learned State Attorney. The appellant adopted his memorandum of appeal and written submissions lodged in support of his memorandum of appeal and had nothing to add to them. On her part, Ms. Ellen Rwijage for the respondent Republic did not support the trial court's conviction and sentence which were upheld by the first appellate court. Her reasons for taking this stand is that PW1, who claims ownership of the motor cycle alleged to have been stolen on the night of 18/7/2008 did not describe the motor cycle when he reported the theft to the Police, and did not describe the motor cycle when he gave evidence in the trial court. The same goes for PW2 Aloyce Severin, the motor cycle mechanic, and PW3 Aloyce Mathew Munishi, the neighbor who responded to the cries for help by PW1, and also attended the trap during which the appellant was caught. The same situation also goes for PW5 Inspector Alfred Kyebe. He arranged for the trap but did not describe the motor cycle in Court to distinguish it from any other motor cycle. We take note that both the trial court and the first appellate court based their decisions on the doctrine of recent possession. The trial Court cited the decision of SAIDI MKUYU V R (1972) H.C.D. 41, while the first appellate Court cited the decision of Mkumbwa & Samson Mwakagenda Vs R, Criminal Appeal No. 94 of 2007 (unreported). Both courts below based their opinions on the finding that the motor vehicle in question belongs to PW1, Andrew Peter Munishi, which means they answered the question of ownership in favour of the latter. The question is whether the findings are based on the facts on record. We think not. The record shows that all witnesses who testified in court made reference to a motor cycle of Jicharng make, red in colour, but none of them, including PW1, Andrew Peter Munishi, the purported owner, gave the registration number of the motor cycle which is shown in the charge sheet as T 584 APE. It was only PW6 who gave the registration number of the motor cycle when he was giving evidence in court showing that he had sold the motor cycle to PW1, Andrew Peter Munishi. Even then, the motor cycle was not put before PW6 for him to identify. The situation as it stands is that the witnesses before whom the motor cycle was shown for identification did not give the registration number, but only referred to its red colour, while the only person who gave the registration number, that is , PW6 Marko Francis Munishi, was not shown the motor cycle in court for identification. As correctly pointed out by the learned State Attorney, proof of ownership included a detailed description of the property by the owner so as to give the particular identifying marks proving ownership. A motor cycle is registrable property. One motor cycle is identified from another through the registration number, not through colour. There can be many motor cycles of Jichang make which are also red in colour, but only one motor cycle can have the registration number T 584 APE. Andrew Peter Munishi and the other prosecution witnesses who apprehended the appellant did not care to mention the registration number quoted above. They also did not give any peculiar identifying mark which was particular to the motor cycle tendered in court. The finding that the motor cycle found in possession of the appellant belongs to PW1 is not supported by the facts on record. This is the finding upon which the conviction entered against the appellant is based. It is unfortunate that the two courts below made this concurrent finding of fact which is not supported by the record. We are a second appellate Court. Ideally, a second appellate court should rarely disturb concurrent findings of fact made by two courts below. A second appellate court can interfere only in circumstances where the findings of fact made are perverse and have caused miscarriage of justice. We are of the opinion that the failure by both courts below to establish ownership of the stolen motor cycle through PW1, Andrew Peter Munishi is a perversity which has led to miscarriage of justice, for which we are justified in interfering. We draw support from earlier pronouncements of this court. In JULIUS NDAHANI V THE REPUBLIC, Criminal Appeal No 215 of 2004, we had occasion to remark thus:- "This being a second appeal, the Court is entitled to interfere only when there is a m isdirection or non­ direction on, m atters o f fact by the Courts below". Again in 1. YOHANA DIONIZI 2. SHIJA SIMON V THE REPUBLIC, Criminal Appeal No 114 and 115 of 2009, we had occasion to say:- "777/5 is a second appeal. A t this stage the Court o f Appeal would be very slow to disturb concurrent findings o f fact made by low er courts, unless there are dear m isdirection's or misapprehensions on the nature and quality o f the evidence...." We are satisfied that the two Courts below erred in fact when they accepted that the motor cycle of Jinchang make and red in colour was the property of one Andrew Peter Munishi without the latter, or any of the other identifying witnesses, quoting the registration number of the motor cycle. A motor cycle is a mass-produced and registrable property, and the only way such registrable property can be distinguished from another is through its registration number. Proving ownership without reference to the registration number or any other peculiar identifying mark does not meet the requirement of the law on proof of ownership. We find that this misapprehension of the facts have occasioned injustice to the appellant, so the conviction entered and supported by the first appellate Court cannot be allowed to stand. We accordingly allow the appeal, quash the conviction and set aside the sentence. The appellant should be released from jail unless he is held on some other lawful cause. M.C. OTHMAN CHIEF JUSTICE W. S. MANDIA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL