20160805 TZCA Arusha

. . . . . . ' ,. IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: RUTAKANGWA. J.A., KILIEO, J.A., And MASSATI, J.A.) CRIMINAL APPEAL No. 523 OF 20-1s' . ' - . . . JOHNSON ASHI~FU .. ~· .................. ~ ....... "....................... -~ .......... APPELLANT. ·•;'~·:_.:;-~:~ _:.-, :.·: _ . . .,~ _..'::.·_:·;:, VERSUS THE REPUBLIC ................................ ~ ................................. ·... R~SPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania · at Arusha) _ - ·, · (Sambo, J.) Dated the 20 th day of May, 2009 in Criminal Appeal No. 58 of 2005 ········~········· JUDGMENT OF THE COURT 1st ·& 5th August, 2016 . ' . . . ·••'• , .... . .. MASSATI, J. A.: The appellant was convicted of the offence of armed robbery by the District Court of Babati and his appeal was dismissed by the High Court, which sustained his · convictior, and sentence of 30 years imprisonment. _ It was alleg-cd at the trial court that on the 31 st day of May, 2005 at about 3:00 hours, the appellant and three others broke into the house of Dismas John at Mererani, and after threatening the said DISMAS 1 . . . . . . . . JOHN with machetes and sticks, stole several items from his shop, total valued.at Tshs. 8,125,bOO/~. ·ro that charge,-:he pleaded-not guilty. It was the prosecution case that, the ho~s~ of Dismas John was· broken into on the night of 31/5/2005 by a number of bandits, • ,, .. , ,. ,• ,. I brandishing machetes and sticks. They threatened Dismas John (the victim) (who testified as PW2) and succeeded in parting with a cell phone (Sonny Ericson), valued at ·Tshs. 120,000/=, 20 pieces of trousers . ~ . valued at Tshs. 760,000/=, cash 71,000/=, 20 pieces of tetron suiting material valued at T?hs. 178,000/=, 8 pieces of Khaki clothes, valued at · . ' -~ .· . Tshs. 88,000/=-- -all total. valued at Tshs. :1.,056,000/=. But the particulars 0 add up the total to·be Tshs. 8,125;000/= In order to· prove its case the prosecution lined -up four witnesses. PWl E 9338 D/C JOSAM was assigned to investigate the case, just the next morning of the robbery. He started to work on an information, that a suspect was locked up in one house after stealing some properties. He went there and found niariy people at the scene. That room happened ··,:· to be that of the appellant. He was searched and found in possession of several types of garments. ·He subsequently charged the appellant along with other persons he had mentioned as partners in crime, where he tendered 34 pieces of garments as exhibit Pl. PW2 told the trial court· 2 • I ... how on 31/5/2005 at 3:00 hou·rs be "':'as -iriva~ed by bandits ar~ed with :, pangas,-arrows . and stones, . who ordered - .him to-sit down and watch how .· . .... ~. ~.--, ... ·....·.- ·,. . . . .. · they emptied his shop of garments ,,_ and . other _properties. .- -He went on to ,' ' tell. the court what. he _dicl ..after the departure of the robbers, and how ·. ,'.,_ .,•.· ... · ' . ·' ,,'·,• .. eventually the appellant was found in possession of t~e garments. He also heard. how the appellan_t _volunteered to. mention his partners in • ' t • crime and promised to lead to the recovery of his properties. PW3 .VALENTINO TESHA. vva.s .the village Executive Officer of Mererani. He told the trial court how on the noon of 31/5/2005 he was ; . . ~ . asked to go to a scene where a_ suspected thief was confined in ·a room ... · .. /. l . :: ·•.. :· . . -'. : . ,· ·.; _.~ : '. '.: . ~ .. , . ·:- and was. about to be killed by angry residents. He went to the place in -_,,,,.-:. , Songambe!e _Street arid rescue~ _the appellant from·· the impending _,: · ... :·\·. . .. threats. He alsq witr,e~s~d hqw. the appellc!nt was _arrested with the: garments, which were later handed over to the police. PW4 .E 8251 D/Sgt:PAULO participated in searching_the appellant's ' . room, and . seizing several garments from there. He . also took his cautioned statement, whic_h was not however_ tendered in evidence as an exhibit. In· his defence. the app~llant told the trial court how he was picked up from a bar by the police on 30/5/2005 to quell a. fight he had picked 3 . . . . with a bar attendant. The arrest -eventually- led to- him being charged :,' .. with the presen~ offence of armed robbery on .7/6/2005~- He.-denied all - ,· .I I L..•." . that the prosecution witriesses had said agai_nst him .. I The trial court found that on the ba·sis of .recent possession :of the garments in his room; the appellant was guilty as charged and so ,- convicted him accordingly:·'.~The High Court on first appeal said:- ' ., r· "Given the· ttine\irhen°the offence was committed . and the time ·when· the ·stolen items were found i· . with the appeliant, being :a ·short. inte;,al 'it. I I I ! remain.~ to·s·fate':herb :lhi;Jt the- doctrine of recent possessioh·-;'. was · rightly ·invoked to find the appellant gu//ty .of,the offence. ✓r. -· _The appellant ·has: cornlto this Courtt~ chalienge those concurrent . . . findings of the two courts below. He had earlier on filed a memorandum of appeal comprised .of 'three gtounds of appeaL. In the first ground the appellant criticises the· ·first · appellate court in upholding the . .. conviction despite the· facf that PW2 did not describe his alleged stolen '•' ; . . ~ .. . .• I !,, '• . properties. In the second ground, the complaint is that the doctrine of .· recent possession was riot prope-rly invoked. In the third ground the " ,.,, ... ' . · · complaint is that the first. appellate court did not properly evaluate the 4 . ' evi_dence on record, as .f.or instance, the effect of non-production of the a·ppellant's cautioned stateme_nt. .. .· ; .... At the hearing oLthe,:a,ppeal, ~h~. appe_llant appeared- i_n. persqn. _: . : After adopting .his memor~ind:u,m. of appeal, he :added_ another grou_nd to ~ . -~ ·:: >:~~~----=· . ,: the effect that there w~~,a-_variance-_betvyeen the evid~nce of PW2, and .. PW3 as to the full na111e of .the <:o_mplainar1t, PW2. He thereafter prayed t··· .. ,' i •. ....•. .. ~ ·-:•_ :: . .• that his appeal be allowed·•.. : · , _-... . ' .... Ms Lilian Aloyce M_massy, ·learned.State Attorney appeared for the respondent/Republic. Sh~ did not support the conviction and sentence, ! . t and we think, rightly s,o. ,· In·: her_ short -but focussed submission, the I ... r - ·learned counsel said that as _the: conyiction, was-)ias!3d -on the dpctrine- of · recent possession and as the condit\ons _for apply)ng that doctrine set by · case !aw were _not met;, in. tha~ PW2 _· cJid. riot give a -description of the garments found with toe appellant, the conviction was_ nqt well founded. J ... In support, she referred us_ t? unreported _decisions bf this Court in DAVID CHACHA & 8 OTHERS vs R., Criminal Appeal No. 12 of 1997; and ACKLEY PAUL & RUMUL PAUL vs R., Criminal Appeal No. 110 of 2008. She therefore urged us to allow the appeal. As both courts below based the _appellant's conviction on the doctrine of recent possession, which finding the appe_llant is challenging, 5 the only issue that ari~es from this appeal is whether, the do~trine of recent possession .was .properly . invoked .' in the circumstances of this .~ case? The position of the. law is ~~.a_t; ., for the doctrine of recent possession to apply, four e.lements must qe proved. rirst,. that the property was found with the suspect Second, .that the property must positively be proved to be the property of the complainant. . Third, that ..... ·.. ··:. ··, .. ·.. the property was recently stolen from the complainant. Fourth, that the .. . .'. ·, . . ~. stolen property constitutes the subject of the charge against the accused (See JOSEPH MKUMBWA & SAMSON- MWAKAGENDA vs R., .. . . .. . . - Criminal Appeal: NO: 94 of 200T (unreported) which was followed in · - .. ,.. •.• ACKLEY PAUL & RUMUL PAUL. vs R., (supra). Adverting to the second element in pa1ticular, this.· Court \n DAVID CHACHA & 8 OTHERS vs R. (supt~}s'aicl:~=-< '' ' : . : · .. : ... : ''It is a· trite principle of law that properties . ;' .·-· suspected to have been found in the possession . . . . . of accused persons should be identified by the ' . complainants conclusively. In a criminal charge/ .. ) .. ' it is/ not enough to give generalized description of property. " 6 In .the· ·present:case/· mllth:as !he complainant ·in house may have been invaded by ··some:: l:5andits/··who: •m_ade away with _some of his · prop,erties, and. much. r;1s ,.th_~- appe[lant may have been found in •. • , . ... . ! I • • •• ·.• , _,_.;.. • ~.. • . • • • . ·. • • • . possession_ of some. garrp~nts.)h~ ..n~0t 1)1.orning .qfter the.. said _robbery, • • • • . • • • • • • .. • • - ·, • •• -.. • • ~ ·- • • • • • '• • •• • .• ' t ... ···• ... •·,; the one million. dollar. qu~?tiqn_)~, ... ... •_. ·-' vver.e .· t_hose '. . garments. the ·• property of ·· . . ' _ '·• '· .'. '\ PW2? The evidence orf reccfrc:1-'leaves that question unanswered. First, the garments allegedly s~iz~d. from. . . . . ~-'. . ~. . -· . t~f . ... .appellant . . ' . ·- were ' tendered . : by . PWl, . :•,•·· _. a police officer. who searched the premises, and the trial court received them as Exhibit Pl.. PWl-_did . .not . .however,. . . describe_ to the· court . .. . . . how he ' . . . , ·,: , wa~ -able to associate the garments with PW2. He did not _even classify . the . type and/or · make of_ the· said . ga_rments· ·to :m?tc:~ .wi_th_. those part\cularized in th~ c~arg.~ shE,=et.. This is reflect~d in his evid~nce on page 12 of the record. , "The first accused had no shop,· in his -room, he has a bed and few properties and-the garments. The .garments- are here in court, there are 34 · 11 garments of different designs. . 7 Nowhere in his evidence ·did the witness say.-:that the.complainant ever identified those. garments. to:. him,. before he -seized and took them to the police station. The description he gave was too general to be of any benefit to the prosecution evidence. . .... . . ... ··.. ' : The complainant's testimony did not improve matters, because ' nowhere in his evidence was he led to identify the garments (Exh Pl) as - his own. Nor was he led to describe the~. So, it cannot be said that in . . . the circumstam::es, the garments allegedly found in the.possession.of the appellant were conclusively identified to be those that were stolen from . .. . /:·,- ~ -.'. . . -::•. ~. i.'. : -:: .., the complainant • "' '.. • 1 :". -~ ...; ? ~ £ • For the above discrepancies we do not .agree with -.the two courts below that the doctrine of recent possession· was prop~rly invoked in supporting the conviction of the appellant. For the above - reasons, we :hold that this appeal has substance. We accordingly allow it. We· quash the conviction of the appellant and set aside the sentence. We order ·his immediate release from custody unless he is held there for some other lawful cause: .8 .I i . DATED at ARUSHA this:sth day.of August, 2016 .. [ . i: ·.. 'I I . ... . . •··· .\ ·. E. M. k.·RUTAKANGWA ... · . .JUSTICE .OF APPEAL · . E. A.· KI LEO · JUSTICE OF APPEAL · :: · ·. ,. ·s. A rvi/4ssAfr • JUSTICE OF APPEAL,. I certify . ' that. this. .is' ...a true ; copy of the original., ..... ·. . . . · . .. . . 9