emmanuel asajile another vs republic 2020 tzca 1865 24 november 2020

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWARIJA. 3.A. NDIKA, 3.A. And KWARIKO. J.A/I CRIMINAL APPEAL NO. 507 OF 2017 1. EMMANUEL ASAJILE 2. DAVIDA MAYAULA .................................................. APPELLANTS VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mbeya, at Mbeya) (Herbert, SRM - Ext. Jur.^ dated 18th day of July, 2017 in Criminal Appeal No. 25 of 2017 JUDGMENT OF THE COURT 16th& 24th November, 2020 MWARIJA. J.A.: The appellants, Emmanuel Asajile and David Mayaula (the 1st and 2nd appellants respectively) were charged in the District Court of Chunya with two counts under the Penal Code [Cap. 16 R.E.2002] (now R.E 2019) (the Penal Code). In the 1st count, they were charged with the offence of conspiracy to commit an offence and in the 2nd count, the offence of armed robbery contrary to ss. 384 and 287 of the Penal Code respectively. It was alleged in the 1st count that on 30/10/2016, at Saitunduma area in Godima Village within Chunya District, Mbeya Region, the appellants conspired to steal stones suspected to contain gold, the property of Joseph Mwazyela. In the 2nd count, it was alleged that on the same date and place, they stole three bags of stones suspected to contain gold valued at TZS 10,000,000.00, the property of the said Joseph Mwazyela and immediately before or after such stealing, they used a machete in order to obtain and retain the said property. The facts giving rise to the appellants' arraignment can be briefly stated as follows: Joseph Laison Mwazyela (PW1) was at the material time holding a Primary Mining Licence No. PML 00160 and thus owned mining rights over a specified area in Saitunduma Hamlet within Godima Village in Chunya District. On 30/10/2016, in the company of Nasib Mwansasu (PW2), Jeremia Mwasenga and Amon Simon (PW3), went to patrol at his mining block. He decided to do so after having noticed that there were intruders who used to extract gravel from his block during night times. When they arrived at the mining block at about 00.05 Hrs, they heard noise indicating that there were some people excavating gravel from the mine by use of hand tools. Since they had torches, they flashed light in the mining pit and saw that there were people in it. PW1 ordered them to get out of the pit but they did not heed to his order. As a result, PW2 and Jeremia Mwasenga went in the pit and forced those persons to get out, two of them being the appellants. Another person mentioned by one name of Rasi managed to run away. Before the appellants were arrested, a fracas ensued forcing PW1 to fire a bullet in the air. After their arrest, the appellants were sent to Chunya Police Station where they were interrogated by No. F. 577 D/CPL Godfrey (PW5) and later charged. The appellants denied both counts and the case proceeded to hearing. Whereas the prosecution relied on the evidence of five witnesses, the appellants depended on their own evidence in defence. The evidence tendered by the prosecution was to the effect that the appellants were found with three bags of gravel which they had excavated from PW l's pit. It was further to the effect that, in the course of being arrested, the person who ran away, threatened PW2 and Jeremia Mwasenga with a machete. The evidence to that effect was adduced by PW1 and PW2. On his part, PW1, who tendered his mining licence, a spade, pick axe, three bags of gravel alleged to have been extracted by the appellants from his mining block and a stick as exhibits PI - P5 respectively, added that, apart from throwing stones at him, the 1st appellant threatened him with sticks. As a result, PW1 had to fire a bullet in the air thereby facilitating the arrest of the said appellant. PW l's evidence was supported by that of PW3. In their defence, the appellants did not deny that they were found at PWl's mining block. They however denied the allegation that they were found in the area carrying out mining activity in PW l's pit and stole three bags of gravel extracted by them from that pit. They also disputed the prosecution evidence to the effect that they used threats to obtain and retain the said material. In his evidence, the 1st appellant (DW1) testified that on the material date 30/10/2016 at about 22.00 Hrs while in the company of the 2nd appellant going to a certain mining camp in Godima Village, he accidentally found himself at PW l's mining block. According to his evidence, that happened because it was during the night time and he did not have a torch during that journey. It was then that he was arrested by PW1, PW2 and PW3. He said further that, despite his plea that he lost the way to his intended destination, he was sent to the police and was later charged in this case. The second appellant's evidence was almost a replica of what was averred by the 1st appellant. At the conclusion of the trial, the learned trial Magistrate was satisfied that the prosecution had proved both counts against the appellants beyond reasonable doubt. They were consequently convicted and sentenced each to three and thirty years imprisonment in the 1st and 2nd counts respectively with an order that the sentences should run concurrently. Aggrieved by the decision of the trial court, the appellants appealed to the High Court. The appeal was transferred to the Resident Magistrate's Court of Mbeya to be heard by G. H. Herbert, SRM- Ext. Jur. In his decision, the learned SRM - Ext. Jur. considered the propriety or otherwise of charging the appellants with the offence of conspiracy to steal which is cognate to the offence of armed robbery, the offence which the appellants were also charged with. Relying on the decision of this Court in the case of John Paul @ Shida v. Republic, Criminal Appeal No. 335 of 2009 (unreported), he found that it was improper to charge the appellants with both counts. Having so found, the learned first appellate Magistrate proceeded to re-evaluate the evidence as regards the 2nd count. He agreed with the trial Magistrate that the prosecution evidence sufficiently established that the appellants committed the offence of armed robbery as charged 5 and thus upheld the sentence of thirty years imprisonment imposed on them. The appellants were further aggrieved hence this second appeal. In their joint memorandum of appeal filed on 12/8/2017, the appellants preferred seven grounds of appeal. On reflection, when they appeared for hearing, they raised five additional grounds making a total of twelve grounds of appeal. In the 5th ground of their additional grounds, they contended that the learned appellate Magistrate lacked jurisdiction to hear the appeal in the exercise of his extended jurisdiction because the record does not show that the appeal was transferred to the Resident Magistrate's Court in terms of s. 45 (2) of the Magistrates' Courts Act [Cap, 11. R.E. 2002] (now R.E. 2019). However, when their attention was drawn to the fact that the transfer document is contained in the original record of this case, they decided to abandon that ground of appeal. As for the rest of the grounds, the same can be consolidated into the following three grounds as follows: 1. That the learned first appellate Magistrate erred in law in upholding the decision of the trial court while the appellants' conviction was based on contradictory evidence of prosecution witnesses. 2. That the learned first appellate Magistrate erred in law in failing to find that the appellants were wrongly convicted of the offence of armed robbery while the offence was not proved beyond reasonable doubt. 3. That the learned first appellate Magistrate erred in law in upholding the appellants' conviction while the decision of the trial court was defective for failure by both courts below to consider the appellants' defence. At the hearing of the appeal, which was conducted through video conferencing facility linked to Ruanda Prison, Mbeya, the appellants appeared in person. On its part, the respondent Republic was represented by Mr. Saraji Iboru, assisted by Ms. Sara Rumanywa, learned State Attorneys. Before we proceed to consider the grounds of appeal, we wish to comment on the procedure which was invented by the trial Resident Magistrate in determining the admissibility or otherwise of the exhibits tendered in court by PW1. At pages 14 - 21 of the record of appeal, before he admitted the exhibits, the learned trial Resident Magistrate conducted what he termed as an "inquiry" by which he heard two witnesses from both sides of the case as though he was conducting a trial within a trial to determine voluntariness of an objected cautioned statement. At the end of that hearing, he ruled that the exhibits were admissible. With respect to the learned trial Resident Magistrate, such a procedure is unknown to the law. The applicable procedure when a witness intends to tender a document or an object (real evidence) as an exhibit, does not involve taking of evidence. This is because, what is involved is normally a point of law on admissibility or otherwise of evidence. The procedure has two main scenarios. First, is for the prosecutor to bring the intended exhibit to the attention of the witness for him to identify it and then to the opposite party, in this case, the accused person or his advocate. The witness then asks that the intended exhibit be admitted in evidence and if the prayer is not objected to and the court is satisfied that the document or object is admissible, then the same is endorsed and marked as an exhibit. In the case of a document, after admission, its contents must be read out in court before the parties. - See the case of Robinson Mwanjisi and 3 others v. Republic [2003] T. L. R 218. 8 The second scenario is when the party against whom the intended exhibit is sought to be proved objects to its admission. In such a situation the trial Judge or Magistrate shall proceed to hear the grounds upon which the objection is based and the response by the party who sought to tender it. Having heard the arguments from both sides, the trial court then makes a ruling upholding or overruling the objection. Depending on the outcome of the ruling, the intended exhibit will be rejected or admitted in evidence. As stated above, the procedure which was adopted by the learned trial Resident Magistrate was wrong. Despite the irregularity, as will be apparent herein below, we do not find it necessary to consider the effect thereof on the admitted exhibits. Reverting back to the substance of the appeal, when they were called upon to argue their appeal, each of the appellants opted to let the learned State Attorney respond to the grounds of appeal with liberty to make their rejoinder submissions, if the need to do so would arise. In his submission, Mr. Iboru expressed the respondent's stance that it was supporting the appeal. The reasons for taking that position were expounded by Ms. Rumanywa. In essence, the learned State Attorney conceded to the second ground of appeal as paraphrased above. She submitted that, according to the evidence, the offence of armed robbery was not proved. She argued that, in their evidence, PW1, PW2 and PW3 contended that, after PW2 and PW3 had entered into the pit, the appellants and another person, the said Rasi, got out and in the course of arresting them, PW1 fired a bullet in the air, the act which enabled the 1st appellant to be arrested. That was after Rasi had threatened PW2 with a machete. Apart from that evidence, Ms Rumanywa argued, there is nowhere stated by the witnesses, including PW1 himself, that any of the appellants or the said Rasi threatened PW1 with a machete. According to PW l's evidence which was supported by PW2, the former was threatened with sticks and stones by the 1st appellant. In the circumstances, it was Ms. Rumanywa's submission that the allegation that PW1 was threatened with a machete as stated in the charge was not proved. On the allegation of stealing, the learned State Attorney submitted that, since from the evidence of the prosecution witnesses, there was no excavated material, then there was no property of PW1 which could have been stolen from the area on the material date. For this reason, the learned State Attorney argued, the appropriate offence which the appellants would have been charged with is criminal trespass. When probed by the Court on whether the appellants had committed any 10 offence under the Mining Act, 2010 which was in force at the material time (the Act), Ms. Rumanywa responded by submitting that, even if that would have been the case, such an offence would not be cognate to the offence of armed robbery and therefore, the appellants could not have been convicted of it. On those arguments, the learned State Attorney urged us to allow the appeal and order that the appellants be released from prison. In rejoinder, the appellants did not have any material submission to make. Each one of them prayed the Court to allow the appeal and an order directing their release from prison. Having duly considered the contents of the appellants' grounds of appeal and the submission made by the learned State Attorney, it is clear to us that in essence, the appellants' complaint, which has been conceded to by the respondent, is that their conviction was based on the evidence which did not prove the offence beyond reasonable doubt. As shown above, the two courts below found that the evidence had proved the case against the appellants beyond reasonable doubt. In the circumstances, this being a second appeal, as a matter of principle, the Court is ordinarily not entitled to disturb that concurrent finding unless there are misdirections, non-direction or misapprehension 11 of the evidence. - See for instance the cases of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T. L. R 149, William R. Gerison v. Republic, Criminal Appeal No. 69 of 2004, Dickson s/o Joseph Luyana and Another v. Republic, Criminal Appeal 1 of 2005 and Khamis Abdrahakim v. Republic, Criminal Appeal No. 423 of 2018 (all unreported). In the first case, the Court observed as follows on that principle: " In cases where there are misdirections or non- direction on the evidence, a Court o f second appeal is entitled to look at relevant evidence and make its own findings o f fa c t" Similarly, in the case of Dickson s/o Joseph Luyama (supra) it was stated as follows: "As was held by this Court in the case o f Amratilal D. M t/a Zanzibar Silk Stores v. A. H, Jariwa/a t/a Zanzibar Hotel [1980] T L . R 31, where there are concurrent findings o f facts by two courts below, the Court should as a wise rule o f practice follow the long established rule repeatedly laid down by the Court o f Appeal for East Africa. The rule is that an 12 appellate Court in such circumstances should not disturb concurrent findings o f facts unless it is clearly shown that there has been a misapprehension o f the evidence, miscarriage o f justice or a violation o f some principles o f law or practice." Having scrutinized the evidence upon which the appellants' conviction was founded, we are satisfied that the two courts below had misapprehended it thus entitling this Court to interfere with the finding leading to the appellants' conviction. To begin with, we agree with the learned State Attorney that the prosecution did not prove the allegation that the appellants cornmitted the offence of stealing from PW1, From the substance of the evidence stated above, PW1 had primary mining licence and had already started to carry out mining activity. He operated a pit at the area where the appellants were found having allegedly extracted the three bags of the gravel believed to contain gold. In our considered view, since that quantity of the said material was not excavated by PW1, it was imperative to find out whether the same was his property. Section 55 (3) (c) of the Act which provided the situation under which a holder of a mining licence for minerals other 13 than gemstones may own and thus be entitled to dispose the extracted minerals. It provided as follows: "55 - (1)...N/A (2)...N/A (3) A primary mining licence to mine minerals granted under this section shall confer on the holder the exclusive right, subject to this Act and the Regulations including the Regulations applicable to safety and protection o f the environment, to carry on prospecting and mining operations in the mining area, and for that purpose the holder, his servant and agents (being persons not disqualified under subsection (2) o f section 8 from holding a primary mining licence) may in particular- (a)...N/A (b)...N/A (c) Subject to payment o f royalties in accordance with this Act and the regulations, dispose o f any mineral recovered." Going by the scope of this section, in our considered view, a primary mining licence holder does not have a right over unextracted minerals. The same becomes his property after extraction. For this reason, we are of the settled mind that the offence of stealing was not proved. What the appellants did amounted to criminal trespass into PWl's mining block. As for the allegation that the appellants had excavated the three bags of gravel believed to contain gold, since they did not have mining licence, the appropriate charge would have been that of carrying out illegal mining contrary to s.6 (1) and (3) of the Act. In any case however, the offences are not cognate to the offence of armed robbery and therefore, as submitted by the learned State Attorney, conviction thereof could not be substituted. On the allegation of threat which is one of the ingredients of the offence of armed robbery, we also agree with the learned State Attorney that the same was not proved. From the evidence, it was in the course of resisting arrest that the said Rasi threatened PW2 with a machete. Likewise, the 1st appellant's act of throwing stones and threatening PW1 with sticks was in the course of the former's attempt to escape after he had got out of the pit. It was during that fracas that PW1 fired a bullet to facilitate the arrest of the said appellant. Clearly therefore, the 15 threats were not made for the purpose of stealing or retaining any stolen property. On the basis of the foregoing reasons, we find that the two courts below misapprehended the evidence and therefore, arrived at a wrong finding. In the event, we hereby allow the appeal. As a result, we reverse the judgments of the two courts below, quash the appellants' convictions and set aside the sentence. The appellants should be released from prison forthwith unless they are otherwise lawfully held. DATED at MBEYA this 23rd day of November, 2020. A. G. MWARIJA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL The Judgement delivered this 24th day of November, 2020 in the presence of the appellants in person through Video facility and Ms. Zena James, State Attorney for the respondent/Republic is hereby certified as a true copy of the original.