20151215 TZCA Mtwara

IN TIH: COURT OF APPEAL OF TANZANIA AT MTWARA . (CORAM: OTHMAN, c.J., MJASlRI, J, A, And MMILLA,J,A,). CRIMINAL APPEAL NO. 241 OF 2014 MUSTAPHA MAULIDI RASHIDI ...................................................... APPELLANT VERSUS Tf-fE REPUBLIC ..............................................................................RE.SPONDENT (Appeal from the decision of the High Court of Tanzania At Mtwara) (Mipawa, J.) dated 22 th day of June, 2012 in Criminc.!Llwgeal No. 49 of 2011 • • ■ e ■ ■ • ■ • • 11 "W 11 ■■■ II II ■ ii ■ JUDGEMENT OF THE COURT l 5lOctober, 2015& 3rd February,2016 MJASIRI, JA: This appeal arises from the decision of the High Court at Mtwara. The appellant was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, R.E. 2002 and was sentenced to death. The background leading to the conviction of the appellant is as follows: The appellant resides in Mozambique but has a .family in Nakarara Village in Mtwara Region. It was alleged by .the prosecution that on June, 18, 20f1 the appellant hired a motorcycle operated bythe deceased from 1 ·-- . .. ~· ..... ' ·~-·-··-·····-···· ( Nagaga Village to Nakarara Village within Masasl District In Mtwara Region. Upon reaching Nakarara VIiiage he took the deceased to his home where he found his sister before he led him to the field, where he attacked him with an iron bar and caused his death. At the hearing of the appeal the appellant was represented by Mr. Hussein Mtembwa, learned advocate while the respondent Republic had the services of Mr. Paul l<imweri, learned Senior State Attorney who was assisted by Ms. Nuru Mangu, learned State Attorney. The appellant presented in Court a lengthy, fourteen (14) point memorandum of appeal. This was reinforced by a supplementary memorandum of appeal. filed by Mr. Mtembwa learned advocate. The supplementary memorandum of appeal is reproduced a·s under:- . . 1. That the Honourable trial Court erred in law and fact by convicting the appellant basing on the · principle of recent possession of Exhibit P2 which was not properly identified by PWl/ PW3 and PW4 to have been found in possession by the appellant. 2. That the Honourable trial Court erred in law and fact by. convicting the appellant basing on the evidence of PW2 2 _';_ ··-· ·---·· ......... . ( ' who did not happen to see and !denllfy the dead body of the deceased. 3: That the 1-!onourable trial Court erred In law and fact by· believing and acting upon Exhibit P3 which was obtained illegally. The conviction of the appellant was based on the doctrine of recent possession. The prosecution case relied on the evidence of PW2, Nuru Abdul Mussa who is the sister of the appellant, PW3, Amir Kaiche, who led to the arrest of the appellant and PWS, Amir Talib Salanje who . was a friend of the deceased and the appellant's extra-judicial statement (Exhibit P3) which provided a detailed account _of what transpired. Mr. Mtembwa on his part vehemently argued that the charge against the appellant. was not proved beyond. reasonable doubt. He informed the Court that he would focus on the supplementary grounds of appeal as they represented the core grounds of appeal filed by the appellant. In relation to ground No. 1, he stated that there was no proof that the motorcycle found with the appellant was properly identified as the one belonging to the deceased. According to him the .person who should have tendered ~he motorcycle in Court· (Exhibit· P2) should have been PW2 who 3 . . . . . . . ... ,. - .. -----··-·--·~ --·--'-••····- ·-·-. ·-·· .. ·······-· . ·_'.·.:.:.:::::.. ~-,'.~...'.'./.:·:..::'.;_~~-;c:;·-."---::.·:: :::·::-::-:--::··: :c·.77-·'·:·:-:-·::c-.-;,,:_.,,,." .•.7.:·:c.s~,c:."::-"·~,.,.,..,.=:,:,,~.-=,--~-......--,........;..---~---:--~•-•==·' • ••••••-•--•-••R---• ••••--• •• 0 •• .,. ·........,.,,_, .,....... ····-·····----'--'- .. •· -· ,.... ,L·-···,···- .•.... 1 ; led to the arrest of the appellant and not PWS who was merely a friend of the deceased. He also submitted that the ownership of the motor cycle In question was not clearly established. It was alleged by the prosecution that the mot.orcycle belonged to the deceased's sister but she was not called in court to testify. The motorcycle was tendered In · court without the registration Number. Mr. Mtembwa submitted that the principle of recent possession was not correctly applied. According to him the appellant was simply convicted because he did not have a plausible explanation. He submitted that the burden of proof is always on the prosecuti.on: He relied on the case of John Makolobola v. Republic (2002) TLR 2.96. With regards to ground No. 2 Mr. Mtembwa argued_ that the High Court Judge wrongly relied on the evidence of PW2 to ground a conviction against the appellant. PW2 did not give the description of the deceased nor the description of the motorcycle in her testimony. He cited the cases of Mohamed Saidi Matula v. Republic(1995) TLR 3 and Alphonce Mapunda and Another v. Republic (2006) TLR 395. On ground· No. 3, Mr. Mtembwa submitted that the extra-judicial statement was illegally obtained. He stated that even though the appellant conceded that he went to the Justice of the Peace (PW7) to record his 4 ....,,.. . ·-··. - . ····-·· -------.. ~··· ... . -- ···-·----. - . ~,. -·: . . - - - - - - , - ~ - - · - · - - · - - - · · · · · ······--· .:.:·.•···-:-c·:~.:::::~:c.::,:::=.. -. ·._ ... . ... .. .. ·. ·....... <.. - ····· _..: ·.-. _.. ,. .... ~. .. . . . \ r·, state~ent,· wltat was recorded by PW7 Is not ·what he said to her, The appellar:it did not sign on most parts of the said statement He argued that .ir:i_ the absence of corroborative evidence It was unsafe for the High Court Judgeto rely on the appellant's extra judicial statement. In the absence of Exhi~it P3 there is no other cogent evidence to link the appellant with the .death of, the deceased. He made reference to the case of Nkeshin1ana John @ Didone vs. Republic, Criminal Appeal No. 229 of 2005 CAT (unreported) and stated that in a case where the prosecution case relies on circumstantial evidence, the link on the chain must not breakJ-le reiterated that th~ burde1i of proof is on the prosecution- to prove the case against the accused person beyond reasonable doubt. If there is any doubt it should be. resolved in favour of the .accused. He brought to the attention of the Court the case of Zakaria Japhet v. Jum~nne & Two Others v~ Republic'" Criminal Appeal No. 37 of 2003 CAT (unreported). · Ms.· Mangu on her part supported the conviction of the appellant. She argued that the appellant was found in posse~sion of the motorcycle within hours after the incident. P.W2 who is the sister of the appellant testified that the ~ppellant _went to their home on a motorbike operated by another· person. They went to:th~ field but the appellant returned alone • , ~ • I • • • • • •. • • • 5 . . . . ............. . ······..,:---·. :- .. - . • ~·. ..: . . . :: .•• : ..!,._. . -~ •• •H•• ••- ••-•••,--:- •••••• • ..... ····"-··-- ...... ··•-···-·---~··-- ........ :.. ·•··-·· ··-··· -.-.· ..... -·.-·· - .. ·... ·.,,·.a,.:.. . 0 with the motorbike. Tile appellant asked PW2for a hoe In the middle of the night, and when asked for an explanatlon he was very annoyed, She therefore handed over the hoe to him. Ms_. Mangu argued that the evidence of PW2 is in line with what was stated in the extra-judicial statement. She argued that the doctrine of recent possession was properly invoked. The appellant was arrested with the motorbike by PW3 and PW4. PWS clearly identified the motorbike, as he knew it well, as it was operated by his friend, the deceased. She stated that though PW2 did not g.ive the description, the motorbike was properly identified by PWS. She ·argued that where a person . is found in possession of the property within a very short time after a theft or a death has taken place the doctrine of recent possession applies. She made reference to the case of Manazo Mandunduv. Republic· (1990) TLR 92. In· relation to Exhibit P3, she submitted that a retracted confession can be used, the court only needs to warn itself on the dangers of relying on a retracted confession. The High Court Judge warned himself. The extra-judicial statement was corroborated by the evidence of PW2, PW3, PW4 and PWS. 6 ... -·· . ... ...... . .. .... ·--· ..... ·-·-------· ----, -- . .- .. .. . . . . . ·• . ... .. . . . . .. --··· _,.: ... .... - . ·---:-· ,-· -· --·· .............. -· .. . • - •::-.- - .••.• +. ----· • , • • • - _.,_ .............. ·------- - - ---- .... --.:·. -- - .· .:-· ..- -·- . . We on our part after carefully reviewing the record of appeal, the ( l judgment of ·the '.l~igl"l Court and the submissions made by counsel would like to make the following observations. The conviction of the appellant was based on circumstantial evidence. There was no eye witness. The doctrine 0f .recent possession was invoked, leading to the conviction of the appellant after he was found in possession of the deceased's motorbike· only a few hours·after the deceased was brutally murdered. The major issues for consideration and determination in this case are · - as follows:- 1. Whether or not the doctni?e of recent possessio'? was properly in·voked by the High Court. 2. Whether or not there was sufficient evidence to convict the appellant .. · for the offence charged. In Juma Marwa v. Republic; Criminal Appeal No. 71 of 2001 CAT (unreported), it was stated thus:- 'rhe 'do,ctrine of recent possession provides· that if a person is.. found in possession .of - . property . . recently . stolen and gives no reasonable explanation as to how he had 7 . . - ··--···-·- ·- ............, ........ ~-·:·'. -:-: . . ;:_~·.. -.... __....... ,_ .. _.. _____ : -~- .. --···· . ..-:.;.. .. ~ -·· .-:.· -·,~·.:::"" -- .• . co1ne by. l11e san1e1 the Court n1ay leg/Un1ately presume that. he is a· thief or a guilty receiver. 11 In Mkubwa Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007 CAT (unreported), the Court made the. following observations:- " For the doctrine tv apply as a basis of conviction1 it must be proved, first~ that the property was found with the suspect; second the property is positively proved to be the property of the con1p/ainant · third;.. that the property was recently stolen from the·complainai1l-'and lastly1 that the stolen thing constitutes the ·subject· ·of the charge against the accused ......... The fact that the accused does not claim to be the owner of the property does not relieve the prosecution to prove the above elements ✓, As noted earlier, this case relied on circumstantial evidence as there was no eye witness when the dece.ased was killed. In Simon Musoke v. Republic (1958) EA 718 it was stated thus:- .-. " "In a• case depending conclusively upon circumstantial evidence/ the Court must · before deciding upon .a 8 . . . . . .-·. : . : --~ . --~--- .... :· ... : -... .. .. ..... ___ ._,. -~-------~--:_,,__ .... ····~ . - ... . . ...._ _._·'-·.·_·_-···_··---~···--···-_·-·---"--···-~"--·-····,... _·_-~···-··---····"'."'"•-··--·,;....;.·.;:;~,\~.:,.;.·•-·-·-·-=·:-·· ..::~::.::.-:1,;.;,;=-.::..:._:_::·.::...:.:.:_:.:.·_: . . _..... ,.. ( conviction( find that the exculpatory facts are lncon1palib/e with the innocence of the accused and Incapable of ~xplanation _upon any other reasonable hypothesis than 11 that of guilt. In the above mentioned case the Eastern Africa Court of Appeal referred to the decision in the case of Tepe_r v. R_epublic (2) 1952 A.C. 480. The Privy Coun~il at page 489 stated thus:- " It is also necessary before drawing the· inference of ··the accused's guilt from circumstantial evidence to be· ·, sure that there. are · no· ·other· co-existing circun1stat1ces which would weaken or destroy 11 the inference. . [Empha~is provided]. - , . · . lh Hass:,irii Fadhili v. Republic (f994) TLR 89, it was held that in order to ground a convictio'n on circumstantial evidence, it must be incapable of more than one interpretation:. See Ally Bakari. and.-· Pili Bakari v. RepuµHc (1992) TLR 10 and Rex v. Bakari Abdulla (1949)16 EACA84. 9 . Is the possession of the motorcycle by the appellant sufficient to sustain a conclusion that the appellant robbed the deceased's motorcycle and caused his death? In the case of Republic v. Loughlin 35 Criminal Appeal. R 69 the Lord Chief Justice of England had this to say at page 71:- "If it is proved that premises have been broken into1 and that certain property has been stolen there from and that very shortly afterward~ a.· n1an is found_ in possession ·of that property, that is certainly evidence (ron1 which the jury can infer that he is the housebreaker or shop-breaker and, if he is, it is inconsistent to find hinr guilty of receiving, because a man cannot receive frorn himself. In Manazo Mandundu and Another v. Republic 1990 TLR 92. It was held as follow:- " (i) ·.. n1e possession was very recent arid that this fact cannot be ignored. (ii) In the circumstances it was not wrong to conclude that the appellants were responsible for killing· the deceasef1✓ 10 . ... . •••·• • • •••• •• • . ·- -···--·---·-··-·- •• ••••••••. • - - • - - • · • • • - - ' - - --··--·· ........., . - ..: .. •-•••-co•'-••••"·•.•,.•.•· C •·••• ·• ••• •• :• •••••••••,•,.,•· •••••• c••••• ... t'' ~ _and because we_ are s~lisfiecl ·that lhe kl/1/ng was to effect the stealing we are bf view lhat It was quite proper to Infer malice aforethought~· "(iii) · n1is is a fit case for invoking the doctrine of recent possession to· support not only the shop breaking and the . -theft but also murder. " In ·Rex v. Bakari Abdulla(supra), the Court had this .to say on the doctrine of recent possession:- .,That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as we!'✓ and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however peni!-1" [Ernphasis proved]. -· . Taki rig in -consideratio~ the ~ircumstances of this case We are of the considered view that just like in the Mahdundu case (supra), this is a fit 11 • •• • ••• • •• - ,· • ~ ~ • •• ,. • • 41• ~ • ' ' ·- -- . . . . . ,_ ... , ., ,.,.-... -.. •··-·=•······ .. , .. --------·-·············· ---- case for invoking the doctrine of recent possession to support not only the theft of the motorcycle but also murder. We have In mind the extreme - proximity in time. The appellant was.found In possession of the motorcycle - within . a few hours. The appellant· failed . to offer any reasonable explanation. We are therefore inclined to agree with the learned State Attorney. In the result, we find the conviction of the appellant to be in order and we dismiss the appeal. DATED at MlWARA this 15th day of December, 2015. M.C. OTHMAN CHIEF JUSTICE I certify that this is a true copy of the original. A.TEYE DEPUTY REGISTRAR COURT OF APPEAL OF TANZANIA AT MTWARA ..., -~- .--! :. .·. 1: r ~- ~ f'i(''::'' ... - ,,;-. __ - - 7 - --- • - - - -- - . • . --- ___ ••. : ~-:_:::. ~ --~-~- __ - _________ -,c~~·· ~E. ~),;. t~;i_·~:w-:'.t;j~ _- ;_,\.~,_: ~,-:_ .·.- .'·- •-· . _____________________ :__~ __ -:_:_-:~~-•- ·_ ~:~~~:~:-~-~~----- 1 1 .: . .J ... . .... ····-· .·. . ... •••••••••.•• •••••• • 00 _.,_ •- - H •• •