20191112 TZHC Mbeya

IN THE HIGH COURT OF THE UNITED REPUBLIC Or TANZANIA IN THE DISTRICT REGISTIRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 176 OF 2018 (FrjAfie District Court of Chunya at Chunya, Criminal Case No. 22212016) -. 11ADtJLU NGUR.ENYA .............................................. APPELLAIIT VERSUS THE REPUBLIC .................................................. R.ESPONDENT JUDGMENT Date of last order: 18.10. 2019 Date of Judgment: 04.11.2019 Dr. A. J. Mambi, J. In the District Court of Chunya, Mbeya, the appellant MADULU NGURENYA was found guilty and convicted for an offence of armed robbery c/s 287A of the Penal Code, Cap 16 [R.E.2002]. The incidence was alleged to have occurred at night in Chunya where the appellant with his unknown colleagues were alleged to have invaded one Msuga d/o Lusangija and stole 1,420, 000/. The records does not reveal what type of weapons that were used by the appellant but trial records show that the accused used sticks to invade and injure the victim. Having found guilty, the appellant was convicted and sentenced to 30 years imprisonment. 1 Aggrieved by the decision of the Trial Court, the appellant has now his lodged his appeal to challenge the conviction and sentence of the trial court basing on eight similar grounds as follows: That the trial magistrate erred in point of law and fact when convicted the appellant by believing the evidence of PW3 that she. identified the appellant at the scene of crime through the light of a torch they had bandits, while the identification of a torch is not reliable. That the trial magistrate erred in point of law and fact when convicted the appellant relying on the evidence of PW3 that identified the appellant through the light of a torch she had aside in her room, but in her evidence PW3 did not state that did not state if she had ample time to observe bandits after invasion. That the trial magistrate erred in point of law and fact when convicted the appellant relying on the evidence of PW3 only which was uncorroborated That the trial magistrate erred in point of law and fact when convicted the appellant relying on the evidence of PW2 and PW4 which was of hearsay as they just relied with statement of PW3 That the trial magistrate erred in point of law and fact when convicted the appellant relying on the evidence of PW 1 and a PF3 could never be corroborative That the trial magistrate erred in point of law and fact when convicted the appellant by disregarding his defense of alibi, 2 regard the appellant was not found with any property which robbed from PW2's and PW3's. 7. That the charge against the appellant was not proved by the prosecution side beyond reasonable doubt. During hearing, the appellant who was unrepresented adopted his grounds of appeal and he submitted he had nothing to add. The Republic through the Learned State Attorney Mr. Ofmedi Mtenga briefly submitted that he does agree with the grounds of appeal since the prosecution proved the case beyond reasonable doubt. The Learned State Attorney argued that the victim clearly identified the appellant. The victim in her evidence also shows that PW3 had exchange of words with the appellant who had also the torch. He referred the decision of the court in Jumapily Msyete of 204 on evidence by recognition. With regard to the appellant defence, The Learned State Attorney further submitted that, the trial magistrate on his judgment at pat 4 and 5 did not accept the defence of alibi basing on the reasons. He was of that view that, the reasons of regarding the defence of alibi is that the appellant was able to commit an offence in Chunya and go to Tabora on the same day. He argued that even the appellant in his defence of, alibi did not comply with section 194 of Criminal Procedure Act. 3 Having carefully gone through the proceedings and judgment of the trial court, the grounds of appeal and submissions from both parties, I find the first issue is whether the Trial court considered the defence of alibi raised by the appellant. The other issue is whether the appellant was identified at the scene at night and whether prosecution proved the case against the appellant beyond reasonable doubts or not. Before addressing the grounds of appeal, I will first address the defence evidence that is alibi. Generally, any accused person according to the law is entitled to rely on defence of alibi if he was not at the scene of crime. The alibi defence is raised by a suspect who states that he was not at the scene of the crime at the time the crime was alleged to have been committed. Worth at this juncture to refer the case of Karanja v Republic [1983] KLR 501 [1976 - 19851 EA as found in the book titled "Criminal law", 2015 at page 159 authored by William Musyoka, the court stated that the alibi is a Latin verb meaning 'elsewhere' or at another place. The accused ideally raises the defence when he says that he was at a place other than where the offence was committed at the time when the offence was committed.The court indeed has the duty to consider an alibi defence where it is raised and the court need to evaluate the evidence presented in support of it before accepting or dismissing as failure to consider an alibi where properly raised may be fatal to the conviction.I am aware that There are conditions to be complied with for one to rely with defence of alibi as provided by the law and some case laws. The law (The Criminal Procedure Act, Cap 20) requires the accused person to give 4 prior notice that he is intending to rely on alibi defence. Section 194 of The Criminal Procedure Act, Cap 20 [R.E.2002] provides for the procedure where accused desires to plead guilty to a non-warrant offence or intends to rely on defence of an alibi before the hearing of the case as required by the law. Section 194 (4) of The Criminal Procedure Act, provides that, "where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case" Section 194 (6) further provides that, f the accused raises a defence of alibi without having first furnished the prosecution pursuant to this section, the court may in its discretion, accord no weight of any kind to the defence". It was also stated in Karanja v Republic [1983] [1976 - 19851 EA that the defence should not be mentioned in passing, some evidence must at least be given on it. Time for putting forward the defence is the matter of law. when one intends to rely with defence of alibi. This means that the alibi must be put forward at the earliest possible opportunity essentially to give the prosecution an opportunity to respond to it. In other words, for the prosecution to negative alibi and for the court to consider it (alibi), the accused person has to put it forward as the answer to the charge and it must be raised by the accused when he initially charged.The appellant at the trial court denied his involvement in the incident 5 on the ground that he never went to the scene of crime as all the time on the material date he was in Tabora. However, the court did not properly consider his defence rather than just saying the appellant was able to commit an offence in Chunya and went back to Tabora. As indicated under page 4 of the trial court judgment, here were no reasons stated by the trial magistrate in dismissing the appellant's defence. The court indeed has the duty of considering such defence where it is raised and the court need to evaluate the evidence presented in support of it before accepting or dismissing as failure to consider an alibi may be fatal to the conviction. Whether the defence gave prior notice to the prosecution and court on his intention to rely on that defence according to the law or not the court has duty to properly consider such defence where the accused raises it. If one look at the trial court judgment, it appears the trial magistrate just summarized the prosecution evidenóe and came into conclusion that the appellant was identified at the scene and concluded that the prosecution proved their case beyond reasonable doubt. There is nowhere one can find where summarized and analyzed the evidence from the appellant who was the accused persons. My perusal has revealed that the trial magistrate judgment was based on the evidence of one side that is the prosecution. The records show that there is nowhere the trial magistrate considered and valuated the defence evidence. It is a well settled principle that before any court makes its decision and judgment the evidence of both parties must be considered, evaluated and reasoned in the 11 judgment. This has been emphasized in various authorities by the court. If one look at the judgment it is clear that the Magistrate did not consider the defence evidence apart from just basing on the prosecution evidence. This according to the law is fatal as it can lead to injustice to the other party that is the defence or the appellant in our case.Failure to do so left a lot of questions to be desired. That should benefit the appellant. I wish to refer the decision of the court in Hussein Iddi and Another Versus Republic [1986] TLR 166, where the Court of Appeal of Tanzania held that: "It was a serious misdirection on the part of the trial Judge to deal with the prosecution evidence on it's own and amve at the conclusion that it was tnte and credible without considering the defence evidence". See also Ahmed Said vs Republic C.A- APP. No. 291 of 2015, the court at Page 16 which underscored the importance of without considering the defence evidence. It is also imperative to refer the decision of the court that in Leonard Mwanashoka Criminal Appeal No. 226 of 2014 (unreported), cited inYASLNI S/O MWAKAPALA VERSUS THE REPUBLIC Criminal Appeal No.13 of 2012where the Court warned that considering the defence was not about summarising it because: "It is one thing to surnmarise the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. It is one thing to consider evidence and then disregard it after a proper 7 scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis." Worth also observing that the Court in Leonard Mwanashoka (supra) went on by holding that: "We have read carefidly the judgment of the trial court and we are satisfied that the appellant's complaint was and still is well taken. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in judgment writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. It is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. "[Emphasis added] I have also noticed from the records that the Hon District Magistrate made her decision without properly analyzing evidence and giving reasons to the judgment.I wish to quote the statement of the Trial Magistrate in his Judgment as follows: "on the grounds that the accused (and other two) were seen while hitting PW3 and stealing the money in the box with the identification by Intense light from the torches, the prosecution has found its case beyond all the corners of doubts Reading from the above question, can one say that the trial Magistrate really analyzed and evaluated both the evidence of prosecution and defence?. In my view the answer is NO. It is trait law that very judgment must be written or reduced to writing under the personal direction of the presiding judge or magistrate in the language of the court and must contain the point or points for determination, the decision thereon and the reasons for the decision. The laws it is clear that the judge or magistrate must show the reasons for the decision in his judgment. See Jeremiah •Shemweta versus Republic [19851 TLR 228. The position of the law is clear that the guilt of the accused is never gauged on the weakness of his defence, rather conviction shall be based on the strength of the prosecution's case. See Christina sb Kale and Rwekaza slo Benard vs Republic, TLR [1992] at p.302 and Marwa Wangiti Mwita and another vs Republic 2002 TLR Page 39. Looking at the other grounds of appeal such as the question of identification, in my view since my findings has revealed that the trial court neither considered the defence evidence neither analyzed and evaluated evidence of both parties, I find the judgment fatally defective, I thus don't see any need of discussing other grounds of appeal. It is a settled law that in criminal law the guilt of the accused is never gauged on the weakness of his defence, rather conviction shall be based on the strength of the prosecution's case. I am of the settled view that the proceedings at the trial court was tainted with irregularities that came up with judgment that did not comply to the legal principleswhich require the decision maker to make his decision basing on three principles that is points for determination, considering the evidence of both parties, the decision thereon and the reasons for the decision. Taking into account that the offence attracts severe sentence, the trial magistrate was required to fully scrutinize, analyses and evaluate the evidence to satisfy himself if the accused actually went to the scene and commit the offence he was charged. Having established that in this case the trial magistrate has failed to comply with the requirements of judgment writing that renders the judgment incompetent, the question is, has such omission or irregularity occasioned into injustice to the accused appellants?. In this regard, I will refer Section 388 (1) of the Criminal Procedure Act, Cap 20 [R.E.2002] and see what would be the proper order this court can make in the interest of justice. It is trait law that before any appellate court makes an order for retrial or trial de novo, the court must find out as to whether the original trial order was illegal or defective and whether making such order (retrial or trial de novo) and will create more injustice to the accused person. I wish to refer the decision of court in Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza slo Machemba v. R Criminal Appeal NO. 157B OF 2013. The Court of Appeal of East Africa restated the principles upon which court should order retrial. The court observed that:- • . in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the 10 prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of Justice require It and should not be ordered where it is likely to cause an injustice to the accused person..." I subscribe the above position by the court which started that an order for retrial should only be made where the interests of justice require. Given the nature of this case and time spent by the accused in custody, I don't see any rationale for making any order for retrial or trial de riovo since doing so will create more likelihood of causing an injustice to the appellant. In the circumstances, I find it more prudent to quash conviction and set aside any sentence made by the trail court resulting in the immediate release of the appellant and the appeal is thus allowed. I order that the appellant be released from prison unless he is otherwise continuously held for some other lawful cause. DR. A.J. MAMBI JUDGE 12/11/2019 11 4 Date: 12/11/2019 Coram: G. Herbert - DR Appellant: Present Respondent: M/S Makombe, State Attorney B/C: Gaudensia M/S Makombe: I am ready for Judgment. Appellant: I am also ready. Court: Judgment delivered. Sgd. G. Herbert Deputy Registrar 12/11/2019 Court: Right of Appeal to the Court of Appeal of Tanzania explained. Sgd. G. Herbert Deputy Registrar 12/11/2019 12