20160831 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL No 197 OF 2015 (Original Criminal Case No 232 of 2013, of llala District court at Samora Avenue) st 1. RASHID MOHAMED ................................................ 1 APPELLANT 2. HAMIS JUMA MAVYOMB0 ........:................... _...... 2 nd APPELLANT VERSUS THE REPUBLIC ................................... ~ .... RESPONDENT JUDGMENT Date of last Order: l 7/8/20 l 6 Date of Ruling: 31/8/2016 Munisi,J. The two appellants, Rashid MohGmed and Hamis Juma Mavyombo, stood before the District Court of llala at Samora Avenue, charged with the offence of armed robbery contrary to section 287 A of the Penal· Code, Cap 16 RE 2002. It was alleged that at 26/8/2012 at Kiwalani Bin ti Musa area within II ala District in Dar es Salaam Region did steal one motorcycle make Sunlag, Registration No. T436 BHJ valued at Tshs. 1,600,000/= the property of Omari Mohamed and before and after such stealing, they threatened the said Omari Mohamed in order to obtain and retain the said property. To prove the allegation, the prosecution summoned three witnesses while the appellants testified for themselves and did not call any witness. At the conclusion of the 1 trial, both appellants were found guilty and convicted as charged. They were accordingly sentenced to 30 years, the statutory punishment. Dissatisfied, appellants have filed an appeal to this court comprised of three and four grounds of appeal for the 1st and 2nd appellants respectively. Having looked at the said seven grounds of appeal, they all seem to revolve around the issue of sufficiency of evidence to support the conviction. On 17/8/2016, the day when the appeal was called on for hearing, the appellants appeared in person unrepresented while the respondent/Republic was represented by Ms. Mkunde Mshanga, learned State Attorney. The appellants prayed to rely on the substance of their petition of appeal. Miss Mshanga, learned State Attorney opted to support the conviction and the sentence meted on the appellants on the main ground that there was adequate evidence to support the trial magistrate's finding She elaborated that PW 1's evidence showed clearly that he identified the persons who robbed him the motorcycle through the electricity light which were at the scene of crime. Further that there is evidence that they were subsequently found with the stolen motorcycle and upon interrogation, the 1st appellant confessed the crime and also mentioned the 2nd appellant as a party to the crime. She thus argued that there was sufficient evidence to support the conviction. On a different score however, the learned State Attorney contended that, the above notwithstanding, having gone through the proceedings, it would appear that the trial was conducted by two different magistrates and no reason was assigned by the successor magistrate for the takeover or inform the appellants of the right provided under section 214( 1) of the Criminal Procedure Act. For that reason, she argued that the successor magistrate offended the said provisions. Relying on the case of Elisamia Onesmo V R, Criminal Appeal No 160 of 2005 (unreported), she argued that the omission rendered the trial a nullity. In view of that, 2 she prayed for the court to nullify the proceedings and order for a new trial. Having gone through the record of the trial court, it is apparent that the trial was conducted by two magistrates; i.e. Hon Kinyage who conducted the preliminary hearing and recorded the first witness and the successor magistrate Hon Mkasiwa who recorded the rest of the prosecution and defence witnesses and composed the judgment. The record is dead silent as to whether the provisions of section 241 ( l) of the Criminal Procedure Act were complied with by the successor magistrate. The said provisions require the successor magistrate to inform the accused person of his right to recall the witnesses or re-hear the case. The said provision provides: 214-( l) Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and exercises jurisdiction may take over and continue the trial or committal proceedings as the case may be and the magistrate so taking over may act on the evidence or proceedings recorded by his predecessor and, may in the case of a trial re-summon the witnesses and recommence the trial or the committal proceedings or otherwise subject to subject (2). (2) Whenever the provision of subsection ( l) applies:- (a) in any trial the accused may, when the (sic) such other magistrate commences his proceedings demand that the witnesses or any of them be re-summoned and re-heard and shall be informed of such right by the second magistrate when he commences his proceedings. 3 (b) the High Court may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the magistrate before the conviction was had, if it is of the opinion that the accused has been materially prejudiced thereby and may order a new trial. From the express wording of the above provision, it is clear that the successor magistrate when he took over the proceedings was duty bound to inform the accused persons of their right to re- summon or re-hear any witness before he commenced the proceedings. From this state of affairs, there is no doubt the trial offended the provisions of section 214(1) and (2) of the Criminal Procedure Act quoted herein above. The Court of Appeal in the case of Elisamia Onesmo V R, Criminal Appeal No 160 of 2005 (unreported) cited with approval its earlier decision in Richard Kamugisha @ Charles Simon and 5 Others V R, Criminal Appeal No 59 of 2004 (unreported) where it observed that "courts have been cautious in situations where a single trial is presided over by more than one magistrate." In the latter case, the Court quoted with approval the observation from the case of Remebisele s/o Elisaro V R (1967) HCD 72 to the effect: "The discretion given to a magistrate by the Criminal Procedure Code section 196 (now section 214 of the Criminal Procedure Act) should be exercised with great care, for the primary purpose of the hearing is to permit the court to observe the demeanour and evaluate the credibility of all the witnesses .... " In the case of Kamugisha, the Court insisted that where a trial .is conducted by more than one magistrate, th.e accused should be informed of his right to have the trial continue or start afresh and also the right to recall witnesses. It further emphasized, thus: "The word used in section 214 ( 1) of the Criminal Procedure Act, 1985 is 'may' which indicates discretion but in view of 4 J the fact that the right to a fair trial is fundamental, the court has an obligation to conduct a fair trial in all respects .... " As the said prov1s1on is couched in a mandatory form, the requirement is not optional but a must. For that reason and basing on the authoritative guidelines set by the Court of Appeal herein above, I subscribe to Miss Mshanga's view that the successor magistrate erred in proceeding with the trial without informing the appellants of their right prescribed under section 214( 1) of the Criminal Procedure Act. At any rate, even if I were to test the evidence adduced by the prosecution, I do not think it was sufficient to sustain the conviction entered. The appellants were partly convicted on the main ground that PW 1 positively identified the l st appellant at the scene of crime and upon interrogation; he named the 2nd appellant as the person he worked with in committing the offence. The successor magistrate in his judgment observed: "Upon going through the evidence punctiliously adduced by the prosecution side I have seen that there is no doubt that the two accused actually did commit the offence of armed robbery as the first accused was clearly substantiated that he was at the scene of event and that he robbed the PW l ..... . The event happened during the night at the area where there were ample lights enabled PWl to identify the accused person properly without any colour of doubts" The magistrate from the above extract appears to have accorded so much weight to PW 1's evidence. However, having gone through the record, it is apparent that the evidence was too flimsy to justify the weight given. It is glaring that the incident occurred at 04.00 am, I have no doubt, such time of the night is not favourable for positive identification unless the aids for such identification were amply explained (see the case of Waziri Amani V R 1980 TLR 250). On the same point, the 2nd appellant recounted the 5 admission he was alleged to have made with regard to his involvement and the recovery of the disputed motorcycle. Further, despite the objection raised by the 2nd appellant on the cautioned statement, the court overruled it amidst those objections and admitted it as exhibit Pl. Undoubtedly, this was wrong; once an objection has been raised the court was duty bound to conduct an inquiry to determine the voluntariness of the disputed statement. The Court of Appeal in the case of Francis Mashara Makewa V R, Crim Appeal No 215 of 2007 (unreported) cited with approval the holding in the case of Kinyori s/o Karuditi V Reginam 23 EACA 480 to the effect that courts are enjoined to carry out an inquiry whenever an objection to the admission of a confessional statement is made. In the latter case, the Court went further to give an elaborate procedure of how the inquiry or trial within trial should be conducted. Additionally, the description given by PW l with regard to how he identified the l st appellant leaves a lot to be desired, he claimed that he identified him by his physical appearance. With respect, in my view, that only fortifies the inference that PW l did not positively identify the l st appellant. Another issue that needs attention is whether the alleged motorcycle was properly identified as that belonging to PW l stolen over one year ago on 30/8/2012 and recovered on 18/8/2013. It is trite law that before a complaint is shown a recovered stolen property, he is obliged to give the description and peculiar marks of his item which should match the recovered item. The question is whether PW l identified the alleged stolen motorcycle conclusively. PW l told the court that following the stealing, he conducted his own private investigation which led to the discovery of the area where his motorcycle was hidden one year later. From PWl 's evidence, there is no indication that he gave any description of his motorcycle nor did he tender any registration card to establish that he used to own a motorcycle prior to the alleged stealing, There being no clear evidence of description and ownership, there could be a possibility of motorcycle belonging to somebody else other than PW l (see the 6 case of Godfrey Lucas V R, Criminal Appeal No 23 of 2013 (unreported)). From the above anomalies, I have no doubt the prosecution evidence was too porous to sustain any conviction against the appellants even if the omission pointed out by Miss Mshanga, learned State Attorney with regard to failure to comply with section 214( l) of the Criminal Procedure Act was to be found untenable. For the foregoing reasons, the appeal has merit. Accordingly, I nullify the proceedings, set aside the sentence imposed and discharge the appellants. Consequently, they are to be released from prison forthwith unless othe ise lawfully held. Judgment delivered in Chambers in the resence of the appellants in person and in the presence of Miss Jenifer Masue, learned State Attorney for the res ondent/Republic, this 31/8/2016. 31/8 2016 7