20170711 TZCA Tanga

l IN THE COURT OF APPEAL OF TANZANIA ATTANGA {CORAM: LUANDA, J.A., MZIRAY, J.A. And NDIKA, J.A.) CRIMINAL APPEAL NO. 131 OF 2016 ABDALLAH ALLY @ KULUKUNI ................................................... APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.••••• RESPONDENT {An appeal against the conviction and sentence from the Judgment of the High Court of Tanzania at Tanga) {Msuya, J.) Dated the 25 th day of April, 2016 In Criminal Session No. 23 of 2016 JUDGMENT OF THE COURT 10th & 1th July, 2017 LUANDA, J.A.: ABDALLAH ALLY @ KULUKUNI (henceforth the appellant) was charged in the District Court of Handeni at Handeni along with Mohamed s/o Kisailo (hence the 2nd accused) with two counts namely burglary and stealing c/ss 294 (1), 258 and 265 of the Penal Code, Cap. 16 R.E. 2002. After two prosecution witnesses had testified, the 2nd accused jumped bail. The trial District Court, upon request made by the Police Public Prosecution, ordered the case to proceed in the absence of the 2nd accused person in terms of s. 226 (1) of the Criminal Procedure Act. At the 1 end of the trial, the trial District Court was satisfied that the prosecution had proved its case beyond any doubt. It accordingly convicted them and each was sentenced to 7 years and 3 years imprisonment for burglary and stealing respectively. The appellant was aggrieved by both the conviction and sentence. He unsuccessfully appealed in the High Court of Tanzania (Msuya, J.). Still dissatisfied, he has come to this Court on appeal. In this appeal, the appellant appeared in person; he had no legal representative. The Republic/respondent had the services of Ms. Rebecca Msalangi, learned State Attorney who did not resist the appeal. The appellant filed a memorandum of appeal consisting of one ground in that the learned appellate judge erred in law and in fact in sustaining a conviction of the appellant based on a cautioned statement which was taken beyond the prescribed time. Briefly the prosecution was that when Changwa Adam (PW2) went to Dar es Salaam, she left her room under the care of Salama Adam (PWl). So, Salama (PWl) in terms of s. 258 (1) and (2) of the Penal Code, was a special owner at the time when the alleged burglary and stealing took place. Salama was referred in the charge sheet as the owner. The section provides as follows:- 2 258 - (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say- ( a) an intent permanently to deprive the general or special owner of the thing ofit; (b) an intent to use the thing as a pledge or security: (c) an intent to part with it on a condition as to its return which the 3 person taking or converting it may be unable to perform. ( d} an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or (e} in the case of mane½ an intent to use it at the will of the person who takes or converts it, although he may intend, and ''special owner" means any person who has lawful possession or custody of, or any proprietary interest in, the thing in question. " [Emphasis ours]. Be that as it may, on the morning of 13/4/2014 Salama (PWl) discovered that the room of her sister (PW2) was broken, according to her, by using a duplicate key and a number of items, including a radio were stolen. The matter was reported at police where the wheel of investigation .... was set in motion. The police arrested the appellant who is reported to have mentioned the 2nd accused who was keeping the stolen properties. It is further said the appellant had given a cautioned statement (Exhibit P3.) in which he confessed to have committed the offences. Indeed it is this statement which is the basis of his conviction. It is the submission of Ms. Msalangi that the only evidence implicating the appellant is that of the cautioned statement. But that statement, she went on to say, was taken on the 3rd day after his arrest on 16/4/2014. It is her submission that in terms of s. 50 (1) (a) of the CPA the statement which was taken beyond the time of 4 hours after his arrest is not admissible in evidence. The cautioned statement be expunged from the record. As that is the only material evidence, there is no other evidence to connect him with the offence. She referred us to Tumaini Molel @ John Walker and Another V. R., Criminal Appeal No. 40 of 1999 CAT (Arusha) (unreported) and Janta Joseph Komba V. R., Criminal Appeal No. 95 of 2006 CAT (unreported). We entirely agree with Ms. Msalangi. On reading the evidence on record, the only material evidence to connect the appellant with the offences he was charged with was that of cautioned statement. The said 5 cautioned statement was taken beyond the four hours period from the time of his arrest. This goes contrary to s. 50 (1) (a) of the CPA. The section provides as fol lows:- ''50 (1) For the purpose of this Act the period available for interviewing a person who is in restraint in respect of an offence is - (a) Subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence." [Emphasis supplied]. In Janta Joseph Komba cited supra, this Court said, we reproduce:- "The obtaining of the statements of the appellant while still in custody outside the time provided under the law for investigative custody (sic), contravened the provisions of the law. Section 169 6 V of the Criminal Procedure Act provides for exclusion of evidence illegally obtained. " In Tumaini Moleli case cited supra, this Court said the following, we reproduce:- ''Section 50 of the Criminal Procedure Act Cap.20 [2002 R.£] prescribes the basic period available for interviewing a person as within four hours from the time the person was arrested. The officer in charge of investigation may extend that period under section 51 by eight more hours to make a total of twelve hours. " (See also Mussa Mustapha Kusa & Another V. R., Criminal Appeal No. 51 of 2010). In our case the statement of the appellant was taken beyond the prescribed time of four hours from the time he was arrested. The statement is not admissible in evidence. Unfortunately both lower Courts did not address this legal anomaly notwithstanding it was not objected to when tendered. 7 Ms. Msalangi also pointed out other set of evidence like the evidence of the co-accused in terms of s. 33 of The Evidence Act, Cap.· 6 of R.E. 2002 which alone without corroboration is of less importance. Since the material evidence implicating the appellant is wanting, we joined hands with Ms. Msalangi that the appeal is meritorious. In sum, the appeal is allowed. The conviction is quashed and sentence set aside. The appellant to be released from prison forthwith unless is held in connection with another matter. Order accordingly. DATED at TANGA this 11 th day of July, 2017. B. M. LUANDA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. 8