20170628 TZHC Dodoma

'l ' '• •. ·_.-. · .-·... .·:·:./:_:·• .-:-~~. :. ,. ·.,:f~-f~-.i~,:{-~,;~1:~i,,._~: .' IN TH~· HIGH COU~T~Qf,.1AN2tANf~~:~~~:.':"'t··· . AT DO'D'OJ\A:A· · . DC CRIMINAL APPEALNO 6 OF.2017 !\. (Original Criminal Case No. 68 of20!6·q/fhf.Qi~fic::_f Court of Dodoma at Dodoma) JOB MOSES@ MAKASSY.~·.-::~.·/:.:~ ......................................... APPELLANT VERSUS THE REPUBLIC ........................................... :.................... RESPONDEr~T JUDGMENT 22/06/2017 .& 28/06/2017 - ~· A/::,~'.AOHAMED, J. The appellant and another person were jointly charged with and convicted in absentia of five offences to wit conspiracy to commit an offence c/s 384, forgery c/s 333, and 337, making a document without authority c/s 346 (a), uttering a false document c/s 34.6 (a) and obtaining money by false pretence c/s 302, all offences under the Penal Code [Cap 16 RE 2002] . ... ~~·Et ¾:LQ~:: q)l§@~g_:_py:·ttl~ pr.2sfZS:YJ.i~JJ., ..Jt19.J . Jr~·~·· .~v\'O ·accused persons on.T6/6/2"01 l wilhin Dddornci mlJnictpality obtained one · - ··-- _:.____:::~miJller-:F:s:htll•irr~rs~-ir~:.th·e: .complainqnt:-:f?~:3::by--~0rportedly seiling hirn sts1~-¢.k, •. ':Q' lpa.gola.S.outfu.•bypr$$.8tltln~iE{rr1 e,wlth-lorged .··.~r•.pl0t-N0:.'.. 1 1 ,~. :,,:,,:=~,;,,QG;)~~i'jq:~[!~;~1r~1§,?fJ~,tf@Y • . or mw(!Jf1<:&qf'.~,g)r~£iitf9.~·:9i:iilitf.gJ;g;,; ·~· . r-ecerpt bearir)~ the name of. Sadick Mtcmi purportedly issued .by the 1 Capital Development Authority. The prosecution alleged during the course of the trial, both accused persons jumped bail and hearing · continued under the provisions of section 226 of the Criminal Procedure Act [Cap 16-RE 2002] resulting in their be.ing _convicted in· absentia. Against that decision, the appellant appeals on a number . grounds which are can be consolidated into the following: 1. That there is a contradiction between PWl 's testimony who said the appellant obtained 1 million shillings whilst PW3 said he gave him 850,000/= shillings. 2. The prosecution failed to establish its case beyond reasonable doubt. 3. The trial court failed to observe the requirements of sections 235 ( 10 and 312 (2) of the Criminal Procedure Act. At the hearing of the appeal, Ms. Taji learned State Attorney represented the Respondent and the appellant appeared in person. The appellant relied on the grounds of appeal in his memorandum of appeal in support of the appeal. In reply, Ms. Taji's argument was that the prosecution proved its case beyond reasonable. doubt under section 110 of th'e Tanz6nid -.·. - ·E~-;-~;-~~;--~;:~t;;{c~•~.-~6-·te~"Ioc·2f:"~sh;-~-;";~f~i"-1·~--~;~•~·1hg:~tE:~-,-·~n;e;;c·et···thi·••- Prosecution called 3 witnesses. PW3, the complainant told the court 2 that the appellant and his co accused told him they were selling a parcel of land described as plot No. 5 block "Q 1 ' at lpagala South in Dodoma municipality. The complainant paid the appellant shillings - -850-,000J=- as the first installment and .in turn, Jhe_ a_pp~llant _ gayE_; the appellant the title deed of the plot in question as security. Ms. Taji said PW3 took the said document to the CDA to ascertain whether the appellant owned the plot. He was told the documents were faked. He then went to report to matter to the police. PWl, Fl 392 Corporal Wakala dispatched the documents to the CDA to ascertain whether the appellant was the owner. He was informed by a letter from the CDA that the documents were false as the said plot was owned by one Anna Abdallah. PWl tendered all the documents including the CDA letter and they were collectively admitted as exhibit Pl. Ms Taji submitted that since the appellant jumped bail, the prosecution had prayed the _proceedings to ensue under the provisions .. of section 226 of the CPA and the trial magistrate granted - -· the pr.ayer. Consequently the documents wen:~ c:::qll~ctively adrnitted as exhib1l--Pl. She soid-PW-1-,olso• tendered the appellant's· cautioned statement in which he admitted he forged the said documents dnd that they were not from the CDA. The statement 'vVas admitted as -exhl·blt-P2, - - -- -- ~ : : ~ , : ~ ; _• •; V _- - ,., -- -_ - ••. :3:b·e;WPH:l:t~orY+&_<;f))'::8:W2: Rw~eE:hu,rig \j ra:r;ei,:~1e~A-~:-;:n10e:fJr-qm~::J~lle:~ ,-.•--_-.-·~ - CDA, testified t-hat the title deeds of the suit plot were forged. Pinally 3 she reiterated that the prosecution proved its case beyond reasonable doubt that it was the appellant and his accomplice who had committed the offences they was charged off. She prayed this court upholds the lower court's decision. In his rejoinder submission, the appellant insisted that a person who admits committing a crime is normally sent to a justice of the peace. And that any buyer of land cannot pay money for buying unless he first confirms the documents show the seller is really the owner of the said plot by verification through the CDA. Thirdly, that there is no expert who testified in court who said or proved whether he or his co- accused forged the documents. Fourthly that there is no document or person showing he received any money from PW3. He insisted he did not jump bail as he was involved in a motor vehicle accident on his way to Dodoma and was admitted at the tviwananyamala hospital. He said the accident caused his left rib and leg to be broken and he was also stitched with six stitches on the heed. But he claimed his sureHes were attending court and they lnforrne.d the mogisfrqte of tJJe qc;c;:ident and ioJyri<?s. He did not give his sureties his hospital documents since they were issued after being discharged. Ld;fiy-h~ submitted th~~;~0~~~ ; c;~-t~qd_i~ti:~~-i·~;'thE: ·t~{stJ~qnies of.fh~::pf~~,~~:3fro~'~i0it~e~s~f~'R~-SCliavJner~ds-PW1_-~did'n-e68f2fft1~~~f--- . . . .. .. " ... •'" - '·- one million shillings, PW3 said he gave him 850,000/= shillings. His 4 discharge form from the Mwananyamala Hospital dated 03/09/2013 showed he was admitted on 15/05/2013 and discharged on 3/9/2013. After hearing the parties and having reviewed the record, there are two questions for this court's determination in this appeal, First whether the prosecution proved its case beyond reasonable - - ___ dovp! _and whether the court complied with section 226 (2) of the - - - - - - - - - Criminal Procedure Act [Cap -f6-RE 2002] .- - - - - - - - - - - __ In regard to the l st question, I am of the view the prosecution failed to prove its case beyond reasonable doubt. The charge sheet in the 5 th count reads that the appellants received one million shillings from the complainant (PW3) and was supported by the testimony of PWl. However, in his testimony, PW3 said he paid the appellant and his co-accused . 850,000/= shillings. This is an inconsistency that cannot be resolved and creates a doubt that should be in the favour of the appellant. Despite the trial being in absentia, the burden to prove the case still r-ested--on the prosecution. I could not discern any proof of the offence of forgery as well as the offence of moking a doc0ment ·.,···- . ,-- .::_,·:,: ""~··- -··-- --·~- --- - ~~~±-~?~~~~~~ f o lse- ·oocUme rYr-=rT1eed~rYoreraoorate ~1,-rvre-'"'dn"'-th'e-;ptos:e:ctrttorPs'· --- ,_ 5 failure to discharge its burden as I have noted another legal failure on the part of the court that goes to the root of the case. The appellants were absent when the case came up for hearing on 25/9/2013 and they continued to be so absent right through the time all the prosecution evidence was received to the time of their conviction in absentia. On 2/7/2012, the co-accused's · surety withdrew his bond and the bail was cancelled. However, I - --- - - _.h.ave no_t__ s~en_ anywhere in the proceedings that failure by the appellant to appear in court promptedthe~-trial-ma§Ji-str-ate_to JE:;qtj~r~ the appellant's sureties to show cause why the appellant did not appear in court. Instead she convicted the appellant and issued a warrant for his arrest after the conviction to serve the 3 year custodial sentence for each count the appellant was convicted of. I think this was a fit case for the exercise of the trial magistrate's discretion under subsection (2) of section 226 of the Criminal Procedure Act. As stated in Marwa Mahende v Republic· (1998) TLR 249 it was held that:- ..A proper construction ofse<:rtion-226 (2J-of th·e Criminal Pro.cedure AcJ i$ that ()pqn -- -OfJf)rehension of a person conv1c;t~d. <Jnc:1 . . . --------s-e:i-Jte:~ ee eJ.,,j-n0c.absen}ia,.~he-~Sfrou ld--n6t.'.6~~ta'ketL _:__~---.. . . · - - ~ __ - - _---· _ --- __ ---- --~~=sfral~J,T''to•·•··serve"'"""J'i'i'S-"'IerfteiiEe'''"BVf~s"ffoUl"ct''Be" - brought before the trial court to enable' ffie ' 6 ..... __ _ Court to exercise the discretion to set aside the conviction or not." The Court held that: "The· failure to take the appellant before the trial court to exercise its discretion under Section 226 (2) of the Criminal Procedure Act denied the appellant his fundamental right to be heard and vitiated the proceedings;" It is clear the circumstances pertaining in this appeal are similar. After being apprehended, the appellant was sent to prison to serve the sentence passed in absentia. As seen in the record, the vvarrant of commitment for the sentence of imprisonment was signed on 31/3/2016. He has therefore been imprisoned for 15 months to date. In Hussein Raphael and two others v. R, Criminal Appeal No. 280 of 2008, (CAT), Arusha, the Court of Appeal of Tanzania had this to say: "In the infere·sts of justice and in order to uphold the ctppe/lani'iiundainental rig hf fb a fair trial undef Article 13 (6) - (a} of the Constitution of the . United ·· - RepubliGs--ef.---TG1nzania,. . 1~977 ..the~ right . . . to b.e. heard . - - - - - - - .~.·.fiyeJhg:--pdtcfrn:dJ1nt-~------we--~-het~'.kf ::•s~f~~(tti;iq•e-· th-~- -- --- --- -- .-'.pfi~tli;dTtif,~:.'~ci,i'J'Jt·c1g~~;;:,;r'crr~the'tiigTf "CBt.lrf-BHti···;• -' •. ,,.,., a ••.-._ -remit- the· case to- the- trial court with a direction that 7 the second appellant be brought before the magistrate to be dealt with in accordance with the provisions of Section 226 (2) of the Criminal Procedure Act. The appeal in respect of the second appellant is -therefore allowed to this limited extent". After the foregoing, and in consideration that the appellant has served 15 months of his sentence, I allow the appeal; set aside the trial court's proceedings and judgment. The appellant is to be freed forthright unless held for another lawful cause. A. MOHAMED JUDGE 28/6/2017 The right of appeal explained. lf}!f, . ----·-- ---·- --- ····--·· -·•. -- --·. -·-··-