juma kanzu jumanne j4 and another vs republic 2020 tzhclandd 3829 9 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF MWANZA) ATMWANZA CRIMINAL APPEAL NO. 96 OF 2020 (Appeal from the Judgment of the District Court of Chato at Chato (Kagimbo, RM) Dated 24" of March, 2020 in Criminal Case No. 236 of 2019 JUMA S/O KANZU @ JU MANNE @ J4 1 ST APPELLANT PETER S/O SABAHI 2ND APPELLANT VERSUS THE REPUBLIC .- RESPONDENT JUDGMENT 2°, & 9 November, 2020 ISMAIL, J. The Appellants were jointly and severally charged with an offence of armed robbery, contrary to section 287A of the Penal Code, Cap.16 R.E. 2019 (as emended by Act No. 4 of 2004. The allegation, as deduced from the charge sheet is that, on 12 November, 2019, at Msasa Village, within Chato District in Geita Region, the appellants stole a motor cycle 1 with registration No. MC 499 BQW, make SANLG, valued at TZS. 2,250,000/-, belonging to Maneno Selemani, it was further alleged that immediately before stealing, the appellants hit the said Maneno Selemani with a piece of iron bar, commonly known as "Mako" on various parts of the latter's body in order to retain the stolen property. After a hearing that saw seven witnesses testify for the prosecution, against two for the defence, the District Court of Chato at Chato, before which the appellants were charged and tried, convicted them of the charged offence and sentenced them to imprisonment for thirty (30) years. Besides the custodial sentence, the appellants were sentenced to a corporal punishment of ten strokes for each one of them, and payment of monetary compensation to the victim of the incident, at the sum of TZS. 1,000,000/- for each of the appellants. Brief facts of this case are to the effect that on 12° November, 2019, PW4, a 'boda boda' rider who conducts his business at Musasa village, was met by three persons who posed as passengers. He agreed to pick two of the three and drop them at Lusungwa mining site that is within Musasa locality. Those that he picked were 2"° appellant and his other colleagues, while the 1 appellant remained behind. Midway 2 through their journey, the said passengers held PW4 by the neck and hit him with a blunt object as a result of which he passed out. When he regained his consciousness, he found himself hospitalized at Bugano Hospital. The assailants robbed him of his motor cycle, SANLAG with registration No. MC 499 BQW, which was tendered in court as exhibit P2. The robbed motor cycle belonged to PW3, Leopard Tulinge. It was further alleged that the said motor cycle was subsequently sold to PW2 Makenge Chacha, for the sum of TZS. 900,000/-, the sellers being both of the appellants. Out of the purchase price, TZS. 700,000/- was paid upfront while the balance was to be paid upon issuance of a registration card. Before the last payment was made, PW2 was apprehended and had the motor cycle impounded by the police on the allegation that the same was a subject of a robbery incident. The trial proceedings found both of the appellants culpable. They were thus convicted and sentenced to lengthy jail terms, alongside a fine and a corporal punishment. The trial court's conviction and sentence have utterly aggrieved the appellants, hence their decision to climb up the ladder with the instant appeal which has a total of seven grounds, four of which were preferred 3 through a supplementary petition of appeal filed in Court on 5" October, 2020. The grounds of appeal are paraphrased as follows: One, that the prosecution did not prove its case beyond reasonable doubt to ground a conviction against the appellants; two, that the trial court erred in law and in fact by determining the matter against the appellants irrespective of their objection to the admissibility of a cautioned statement which contained an untrue account, and was procured by threats and torture; three, that, no arresting officer was called to testify on when, how and why the appellants were apprehended and prosecuted; four, that, the trial magistrate erred in law and in fact by proceeding to convict and sentence the appellants on the basis of an unlawful identification parade without observing rights of the appellants; five, that the trial magistrate erred in law and in fact by convicting the appellants of the offence of armed robbery while its ingredients had not been proved; six, that the doctrine of recent possession was misapplied in the case of armed robbery thereby occasioning an injustice against the appellants; and seven, that the trial magistrate erred both in fact and in law by proceeding to convict and sentence the appellant - especially the 2° 4 appellant based on assumptions and opinion instead of fact and standard of proof set for criminal cases. At the hearing of the appeal, the Appellants appeared in person, unrepresented, as the respondent was represented by Ms. Ghati Mathayo, learned State Attorney. In her preambular statement, Ms. Mathayo stated that she was not in support of the appeal. Instead, she expressed her support to the conviction and sentence imposed by the trial court. Arguing the 1 ground of the petition and the 2° ground of the supplementary grounds, the learned counsel submitted that the ingredients of the offence were proved. Ms. Mathayo contended that in an offence of armed robbery, the key ingredients are theft and use of weapon. On theft, she argued that the testimony of PW4, as found at page 12 of the proceedings, revealed how the motor cycle, MC 499 BQW was stolen and the way it was recovered and produced as an exhibit. With respect of use of a weapon, the learned counsel contended that PW4 testified on how the assailants, including the 2° appellant, held him by the neck and hit him with what he suspected to be a piece of an iron bar. The respondent's counsel made reference to the testimony of PW7, a medical doctor who confirmed that PW4 was hit by a blunt object. 5 With respect to ground two of the appeal, Ms. Mathayo submitted that the cautioned statement was admitted without any objection and that the question of voluntariness was not raised and it is not for this Court to decide at this stage. The learned counsel submitted further, that the 2° appellant admitted that he was one of the passengers carried by PW4. On ground three of the main petition of appeal, the respondent's counsel was of the view that the facts read out during the preliminary hearing, as found at page 5 of the proceedings, were to the effect that the appellants did not dispute that they were arrested by people. Having admitted to this fact, the counsel contended, there was no need of bringing witnesses to testify on an undisputed fact. Submitting on ground one of the supplementary grounds, the respondent's counsel took the view that none of the witnesses said that there was an Identification Parade. She submitted that the appellants were from the same village with PW4 and he knew both of them. With respect to ground three of the additional grounds, Ms. Mathayo's submission is that none of the appellants was found with the 6 motor cycle. She argued, however, that PW2 testified that the motor cycle which was recovered from him was sold by the appellants. She contended further that DWl's testimony was to the effect that the motor cycle was with the 2"° appellant and that he was also involved in the theft incident along with DW2, the 2° appellant. It is through 1 appellant's confession that the motor cycle was recovered and that it is DWl who took the police to Serengeti where the motor cycle was allegedly recovered. Finally on ground four of the additional grounds, Ms. Mathayo's submission was that the 2° appellant was convicted on the weight of the evidence and that the trial court invoked common intention under section 23 of the Penal Code to convict him. She submitted that the testimony of DWl gave details of what happened and how he was involved. She also argued that the testimony of PW4 corroborates the co-accused testimony as testified by DWI, that the 2° appellant is the person who injured him, contending that he was identified because it was early in the evening. The learned counsel also argued that the 2"° appellant was also involved in the sale of the motor cycle. Ms. Mathayo was insistent that the 7 prosecution's case was proved beyond reasonable doubt. She prayed that the appeal be dismissed. The 1 appellant's submission was extremely brief. He only submitted that he was coerced into confessing. He further contended that the victim told the trial court that he did not know him and that proves that he was not involved. He prayed that he be set free. In a similar fashion, the 2° appellant was of the contention that he was innocent and that his arrest was in relation to a different offence and that he was joined by the 2° appellant who he did not know before. He denied that he was involved in the commission of the offence. He too urged the Court to acquit him of the charges levelled against him by allowing the appeal. I will combine grounds 1, 5 and 7 of the petitions of appeal which contend that the case against the appellants was not proved beyond reasonable doubt. It is a legal requirement that, unless a law or any other statute provides otherwise, a fact in a criminal case will be said to exist if the court is satisfied that such fact has been proved beyond reasonable doubt. This is in terms of section 3 (2) (a) of the Evidence Act, Cap. 6 R.E. 8 2019. This position has been emphasized in a multitude of court decisions. In Joseph John Makune v. Republic[1986] TLR 44, it was held: "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case. The duty is cast on the accused to prove his innocence. There are few well known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance ofprobabilities ..." See also: George Mwanyingili v. Republic, CAT-Criminal Appeal No. 335 of 2016 (Mbeya-unreported). Reviewing the testimony of PW2, PW4, PW7 and the totality of the defence testimony, especially that of the 1 appellant who featured as DWl, there can be no doubt that proof was sufficiently put forward on how the robbery incident occurred and who were involved in the said incident. PW4 testified how the appellants, who posed as passengers, hired him before the 2° appellant unleashed an attack that inflicted multiple injuries which led to his hospitalization. PW7 gave the details of how he received and attended PW4 who carried injuries which he suspected were inflicted by a blunt object. PW2 narrated how he received the subject matter of the robbery incident, a motor cycle, and that the same was sold to him by the appellants who he was able to identify as he knew them before. The 9 appellants have contended that ingredients of the armed robbery were not established. This argument has been fiercely opposed by the respondent's counsel who held the view that the evidence adduced proved two key ingredients of the armed robbery i.e. stealing and being armed with a dangerous or offensive weapon or instrument. In my considered view, these ingredients have been sufficiently proved and the trial court was right when it concluded that the case had been proved beyond any reasonable doubt. The appellants were armed with an offensive weapon that they put into use as a means of obtaining the motor cycle which was subsequently found in PW2's possession. A similar issue arose in the case of Stuart Erasto Yakobo v. Republic, CAT-Criminal Appeal No. 202 of 2004 (DSM-unreported). In resolving the issue, the Court of Appeal observed as follows: "The only point of law involved in this second appeal is whether or not the evidence established the ingredients of robbery. The offence of robbery is defined in Section 285 of the Penal Code, Cap 16. It provides:- "285. Any person who steals anything, and, at or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed " robbery". 10 ''For an offence under Section 285 the prosecution has to adduce evidence to establish the ingredients, that is whether actual violence or threat of actual violence was used to obtain or retain the thing stolen. The nature of violence must also be proved. Violence to the person of the complainant is a prerequisite for the crime of robbery. There must be evidence to establish that the accused person used or threatened to use actual violence to obtain or retain the stolen property.... In the instant case, there is no doubt in our minds that violence was used on the person of PW1. The appellant and the other bandits broke and entered into the house wielding machetes; attacked and injured his right eye; he lost consciousness and had to be treated in hospital. In the process, they stole the cashew nuts in question. Like the courts below, we too think that the offence of robbery was established in the circumstances." The position in the cited excerpt mirrors what the Court of Appeal held in Zuberi Bakari v. Republic [2005] TLR 32 (CA), in which it was accentuated as follows: "To constitute the offence of robbery there must be evidence that violence was used for purposes of taking the property or retaining it either before or after." The 2° appellant has expressed disquietness about how he was connected to the case, while theevidence that was relied on is that of a co-accused person who he only met at the police station. As rightly argued by Ms. Mathayo, this contention lacking in merit. The established 11 position, as enshrined in section 33 (1) of the Evidence Act (supra), is to the effect that a confession of an accused person on an offence in which he is jointly charged with another, and the offence is said to have arisen out of the same transaction, may be taken and considered by the court against the co-accused, provided that the said testimony is corroborated by another testimony. This position has been stressed in numerous decisions, including this Court's decision in Republic v. ACP Abdallah Zombe & 12 Others, HC- Criminal Sessions Case No. 26 of 2006 (DSM, unreported) in which this requirement was stated thus: ''It is also a truism that whether in the form of a confession, or any other types of evidence of a co-accused, to ground a conviction, it must be corroborated as a matter of law (in case of confessions} (s 33 (2) of the Evidence Act} or of practice in any other types of evidence of a co- accused (see Pascal Kitigwa v. R (1994) TLR (CA)," Significantly, in Pascal Kitigwa (supra) the Court of Appeal underscored that, whereas uncorroborated testimony of the co-accused may be used to convict the accused, a convicting court must first warn itself of the dangers of relying on such testimony. Expounding on the type of corroborating evidence, the superior Court held thus: 12 ''It is common ground that corroborative evidence may well be circumstantial or may be forthcoming from the conduct or words of the accused." My scrupulous review of the prosecution's testimony, as found in trial court's record brings me to the conclusion that typifies what the Ms. Mathayo submitted. This is to the effect that the testimony of PW2, PW4 and PW7 all of corroborative effect to the 1 appellant's confession and his oral testimony. I take the view that the trial court's holding of culpability against the 2° appellant is, in the circumstances of this case, plausible and unblemished. Before I move to the next grounds of appeal, let me factor in the question of common intention of the parties which deserves a word or two about. This was brought up by Ms. Mathayo in her submission in respect of ground seven (ground four of the additional grounds). Defending the trial court's decision to convict the 2° appellant, she argued that section 23 of the Penal Code (supra) talks about common intention which she contends that it was visible in this case. What I gather from the respondent's counsel is that that the appellants shared a specific unlawful purpose which led to the commission of the armed robbery incident. 13 For ease of reference, I find it apt to reproduce the substance of section 23 of the Penal Code (supra) which defines common intention as follows: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence." The scope of applicability of the quoted provision has been widely elaborated. In Republic v. ACP Abdallah Zombe, the learned Justice made the following splendid observation: ''From these decisions, the following principles can be carved out:- (i) For section 23 to apply it must be shown that an accused person shared with the actual perpetrator(s) of the crime a specific unlawful purpose which led to the commission of the offence charged. (ii) The offence committed must be a probable consequence of the prosecution of the unlawful purpose. (iii) To constitute a common intention it is not necessary that there should have been any concerted agreement between the accused persons prior to the commission of the offence. Common intention may be inferred from their presence, their actions, and 14 the omission of any of them to dissociate himself from the offence. [Emphasis is supplied] (iv) Mere presence at the scene of crime is not enough to infer common intention. See also: Wanjiro d/o Wamello and Another v. R_(1955) 22 EACA 521 Lamambutu_s/o_Makalya and Another v. R (1958) EA 706 R v. Ngerera s/o Masaga and Others (1962) EA 766, Godfrey James Ihuya v. R (1980) TLR 197 Alex Kapinga and Others v. R Criminal Appeal No. 252 of 2005 Mbeya (unreported) and Shija Luyenko v. R (Criminal Appeal No.43 of 1999 (unreported) (Mwanza) In the proceedings that bred the instant appeal, the prosecution has demonstrated, through the 1 appellant's confessional testimony and his oral account, together with the oral testimony of PWl, PW2 and PW4, that a link existed between the appellants in the run up to the commission of the robbery incident and after. The prosecution knitted its a case in a manner that clearly showed that there was a concerted agreement between the appellants prior to the commission of the offence. Their joint presence when they masqueraded as passengers who hired PW4, and the joint mission to Serengeti to find a market for the stolen property, are all a testimony of strong probative value enough to hold them responsible for a 15 common intention. In the totality of all this, I hold the view that these grounds of appeal are barren and I dismiss them. Ground two of the appeal questions admissibility of the cautioned statement which was extracted through torture and intimidation. The respondent's counsel holds the view that this contention cannot be raised at this stage while its admissibility was not objected to. In law, a statement which is a confession can only be admissible in evidence if the same was procured voluntarily (see section 27 (1) of the Evidence Act (supra)). This means that if the statement is held to be involuntary, the same ought to be rejected out. Rejection of such statement, under section 27 (3) of the Evidence Act (supra), can only be done by a court upon an objection by a party that is alleged to have made the confession. In terms of the reasoning in Nyerere Nyague v. Republic, CAT-Criminal Appeal No. 67 of 2010 (ARS-unreported), such objection by a party must be done before the statement is admitted and not during cross-examination or during defence. The question to be posed is whether the appellants conformed to this imperative requirement. Review of the typed proceedings takes me to page 18 of the proceedings which reflect what transpired in court on 22° January, 2020. This is the 16 day on which the 1° appellant's confessional statement was tendered and admitted in court as Exhibit P4. This statement was admitted without any objection from the appellants, and PW6 who tendered it was not cross- examined on the contents of the said exhibit. This gave the trial court the justification of assuming that said confession was procured voluntarily, and I find nothing blemished in that assumption. I hold that this ground of appeal is misconceived and I dismiss it. Equally hollow is the appellants' contention in ground three of the petition which faults the prosecution's decision not to bring any of the persons who arrested the appellants. In concurrence with the respondent's contention, I hold the view that, as evidenced by the Memorandum of Agreed Facts, drawn and signed by the parties on 23° December, 2019, the fact that the appellants did not dispute that they were arrested by citizens, means that the manner in which they were arrested is a matter which was not in contention. As such, the same were undisputed facts and did not require any proof. My view is consistent with the provisions of section 192 (4) of the Criminal Procedure Act, Cap. 20 R.E. 2019. This ground is also dismissed. 17 8 Ground four of the appeal (ground one of the additional grounds) questions the basis for the trial court's hinging its decision on the identification parade which did not observe the rights of the appellants. Without getting into the details of how identification parades are conducted and whether the key requirements were followed in this case, I prefer to nip this discussion in the bud by stating here and now, that the impugned decision did not base any of the findings on the identification parade as alleged. Nowhere in the proceedings has any of the prosecution witnesses indicated that a parade was conducted with a view to identifying any of the witnesses. I consider this to be a figment of imagination that cannot be allowed to sail. I reject it out of hand. Ground six of the appeal (ground three of the additional grounds) faults the trial magistrate's decision to invoke the doctrine of recent possession while the same had no application in these proceedings. Ms. Mathayo has conceded that none of the appellants was found with the motor cycle said to have been stolen from PW4. It is true that the motor cycle which is said to have been involved in the robbery incident was found in the possession of a third party, PW2. This means that the same was not in the appellants' possession, a fact 18 S 8 • which rules out applicability of the doctrine of recent possession. The law is settled that the doctrine of recent possession can only be invoked upon existence of several key conditions. These conditions are were articulated in Abdi Julius @ Mollel & Another v. Republic, CAT-Criminal, Appeal No. 107 of 2009 (unreported) which quoted with approval the Court of Appeal's own decision in Joseph Mkumbwa & Samson Mwakagenda v. Republic, CAT-Criminal Appeal No. 94 of 2007 (unreported), which stated the position of the law with regards to the doctrine of recent possession, in the following terms: "Where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as a basis of conviction, it must be proved, first, that the property was found with the suspect, second that the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant, and lastly, that the stolen thing constitutes the subject of the charge against the accused. The fact that the accused does not claim to be the owner of the property does not relieve the prosecution of their obligation to prove the above elements...." 19 Absence of the first criterion in this case means that the trial magistrate's application of the doctrine of recent possession was flawed, and I find this ground meritorious. I allow it. In the upshot of all this, and save for ground six of the appeal which succeeds, I find this appeal barren of fruits. Accordingly, I dismiss it and uphold the decision of the trial court. It is so ordered. 20