francis kashabi masanja and 4 others vs republic 2021 tzhc 5505 10 august 2021

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO.21 OF 2021 FRANCIS KASHABI MASANJA MAIGE JIDENDI@MALOMO MASANJA MACHIBYA ............••....... APPELLANTS MCHELE MITINJE MAYENGA SULTAN VERSUS THE REPUBLIC ......•...••.•.••............••..........••....•..•••• RESPONDENT (Appeal from the judgement of the Resident Magistrate's Court of Simiyu at Bariadi Kiriwa-SRM Dated the 9th of February, 2021 In Criminal Case No.1 of 2018 JUDGMENT 30th]une&30th]uly, 2021 MDEMU,J.: In the Resident Magistrate's Court of Simiyu, the five Appellants and twenty (20) Others were charged with five counts of arson contrary to the provisions of section 319(a) of the Penal Code, Cap.16 for all and one count of stealing contrary to section 258(1)(2)(a) and 265 of the Penal Code, Cap.16 in respect of Masanja Machibya, the 3rd Appellant. According to the particulars of offence, on 22nd day of March, 2018 at Mawandoya Village within Meatu District, the Appellants and other accused persons who were acquitted did willfully and unlawfully set fire into a police station, a shop of Magreth Ipasi, a shop and dwelling house of G.2456 PC Maulid and a shop of H.965 PC Charles. As to the offence of stealing, the 3rd Appellant did steal one subwoofer, three twiters, forty-one CDs, film paper, adaptor and four wires of subwoofer. At the trial, the prosecution called thirteen (13) witnesses and the defence called twenty-six (26) witnesses. As said, on 9th of February, 2021, the trial court acquitted all accused persons, save for the five Appellants who were convicted of arson and stealing and sentenced to three years' imprisonment on each count. Sentences were ordered to run concurrently. They were not happy with both conviction and sentence hence the instant appeal on the following nine grounds: 1. thst; the trial court grossly erred in law and fact by entertaining a defective charge sheet. j 2. Thet. the trial court erred in law and fact to accord weight to the uncorroborated and inadmissible testimony of the prosecution witnesses. J. That; the trial court erred in law and fact by acting on gross contradictory testimonies of the prosecution witnesses. 4. ThaC the Appellants were not adequately identified. S. Tbst; the trial court erred in law and fact by failure to appreciate the defence of alibi of the Appellants. 6. tttst; the trial court erred in law and fact by admitting and accord weight to the defective certificate of seizure. 7 Thst; the trial court erred in law and fact by admitting and accord weight purported stolen properties without being adequately identified by the victim. 8. That; the trial court erred in law and fact by failing to appreciate the principles of the doctrine of recent possession. 9. ThaC the prosecution failed to prove the offence beyond reasonable doubt. On 30th of June, 2021 this appeal came for hearing. All the five Appellants were present under the service of Mr. Paul Kaunda, learned 3~ Advocate whereas the Respondent Republic had the service of Mr. Enoshi Kigolyo, learned State Attorney. Submitting in the 1st ground of appeal, Mr. Kaunda argued that, following the coming into effect of GN No. 140j2020 as from 20th of February, 2020 the new charge filed on 17th of April,2020 ought to have been filed under Revised Edition 2019 and not Revised Edition 2002. In his view, the charge was defective. He cited the case of Peter Gember and Another vs. Abubakari Rajabu Yusuph, Misc. Land Application No. 291 of 2020; Registered Trustees of Dioceses of Dar es salaam vs. Aden Kamili Mosha, Misc. Land Appl. No. 32 of 2019(both unreported) insisting the need to cite the law correctly failure of which leads to unfair trial (Charles Mhande v. R, Criminal Appeal No. 270 of 2013 (unreported). In his considered view, the said defects are incurable under the provisions of section 388 of the Criminal Procedure Act and as stated in Jeremiah Chidole v. R, Criminal Appeal No. 580 of 2015 (unreported) As to the 2nd, 3rd and 9th grounds of appeal,the Appellants were not identified. In all fourteen (14) witnesses and three (3) exhibits tendered, there is no any evidence as to who identified the present Appellants setting fire to the police station. To Mr. Kaunda, of importance is the evidence of 4: ----~~--- PW3 who said that, the police station was not set on fire. Therefore, as in the case of Emmanuel Chigoji V. R, Criminal Appeal No. 355/2018 (unreported), ingredients of arson stated therein have not been proved. In the 5th count, H. 965 Pc. Charles whose house was set on fire was not mentioned anywhere in the records. The record speaks of one Charles Malima (PW2). PW2 also has not stated to have seen the Appellant carrying anything suggesting an act of setting fire his shop. PW2 never identified any person only stated to find his shop door broken and some garments been set on fire, but the shop was not gated down by fire. In this, Mr. Kaunda thought there is variance between the charge and the evidence.PW7 also said the shop of PW2 was not set on fire. In the 3rd count of setting fire in the house of G. 2456 PC Maulid (PW4), no one was identified as it was dark. He stated to have identified the Appellant through light from fire set on the house thus the case of Emmanuel Chigoji (supra) on tests regarding identification becomes relevant as mere presence at the crime scene does not mean the Appellants committed the offence. Submitting in the 2nd count, Magreth Ipasi (PW1) and PW2 said their shops were not set on fire. 5\ ---~~---- There is thus inconsistencies and contradiction in this evidence because PW3 and PW4 said to have found the shops of PWl and PW2 being set on fire. He thus cited the case of Zakaria Jackson Magayo v. R Criminal Appeal No. 411 of 2018 (unreported) that such witnesses should not be trusted. In the count of theft committed in the shop of G. 2456 PC Maulid; it is trite law that, for the doctrine of recent possession to apply, the victim must identify the stolen properties by specific description to prove ownership. He added that, the procedure was not complied by the trial court. In the case of Andrew Augustino @ Msigala v. R, Criminal Appeal No. 365 of 2018 (unreported), principles on the doctrine of recent possession have been highly elucidated. It is on those premises Mr. Kaunda thought the case was not proved thus urged me to allow the appeal. Mr. Kigolyo, learned State Attorney, supported the appeal. In his view as per the record, almost 60 to 70 persons were involved and that, no any witness who identified any of the Appellants. Even when they were present, there is no evidence on how they participated. It is not stated if they had kerosine, petrol, match box etc. and even the source of fire was unknown. He added that, mere presence at the crime scene is not evidence as was in the case of Jackson Mwakatoka and Two Others v. R (1990) TLR 17. He submitted further that, going through the judgment, the trial court based its decision on the defence case. It is trite law that, weakness in the defence case may not be the basis of conviction. What would have happened had they opted to remain silent? In his considered view, it was their duty as prosecutors to prove their case. As to the offence of theft, the court relied on the doctrine of recent possession. In this he thought, the owner (PW4) should have proved for the doctrine to apply and in fact, did not state prior if he had any stolen property reported. He was just called and asked to identify. He was thus not certain if the properties were his. He however faulted Mr. Kaunda's argument as PW14 was the right person to tender those exhibits because is the one who seized them. In his opinion, PW4 was not recalled to identify them because he testified before PW14 tendered them in evidence. Here is where the problem lies, Mr. Kigolyo added. On the question of wrong citation, that is, Revised Edition 2002 instead of 2019; he stated that the 2020 Government Notice, did not repeal 2002 Revised Edition but supersedes 2002 Revised Edition. He added that the Law Revision Act. Cap. 4 in section 23 repealed Ordinance. As the notice did not repeal2002 Revised edition, it all means the Law will exist provided the contents of the provisions in the two editions are the same. Even when it was supposed to be cited so, that is RE: 2019, the learned advocate has not stated how the Appellants were prejudiced by the said citation. He observed also that, even when looking at their defence, the Appellants defended on the offence they were charged. In that therefore, the purpose of the charge which is to inform the accused of the offence charged was met. He cited the case of Ally Ramadhan Shekindo & Another v. R Criminal Appeal No. 332/2017 (unreported) where it was stated that the issue of non citation alone cannot be relevant unless it is stated how the Appellants were prejudiced. He thus thought the defect therefore may be cured under the provisions of section 388 of the CPA.There was nothing useful in rejoinder thus marking the end of parties submissions. Having considered on what parties submitted and the entire evidence on record, I will respond to all the grounds of appeal in the following points: 8') one, that the charge was defective, two, that the prosecution case was not proved and three that, the doctrine of recent possession was wrongly applied. Commencing with a defective charge, the basis of the complaint submitted by Mr. Kaunda was that, following the coming into operation of GN No.140 of 2020 on 28th of February, 2020, the charge substituted in April, 2020 should have cited the Revised Edition 2019 and not 2002. It is quite correct that, with the coming into effect of GN No.140 of 2020, the revised laws published in the Notice should be cited Revised Edition 2019. In item 10 to the Notice, the Penal Code is among the laws so revised and as such should be cited, the Penal Code, Cap. 16, RE 2019. I think the issue to be resolved is whether failure to cite RE 2019 is fatal and incurable under the provisions of section 388 of the Criminal Procedure Act, Cap.20. Mr. Kaunda stated to be incurable and cited the case of Peter Gembe & Another (supra) and that of the Registered Trustees of Diocese of Dar es Salaam (supra). Mr. Kigolyo, Learned State Attorney was of the opinion that, unlike the Laws Revision Act, CapA which repealed the Revised Laws, Cap.356 and Annual Revision Ordinances; GN No.140 of 2020 did not repeal the Revised Edition 2002. 9~ I entirely agree with the learned State Attorney that, GN. No.140 of 2020 did not repeal the Laws Revision Act and in fact, the Government Notice being a subsidiary legislation, cannot repeal an Act of Parliament. What is in Cap. 4 specific in section 23 regarding the effect of the previous legislation on the coming into effect of the Revised Edition 2002 reads as hereunder: 23.(1) Repeals the Revised Laws and Annual Revision Ordinance. (2) Except as otherwise provided in this Act with effect from the effective date/ the text of the laws in the former Revised Laws shall be superseded by the respective texts of the laws contained in the Revised Edition and annual supplements prepared under this Act It is equally on record that, according to GN. No 140/2020; the Laws Revision Act, CapA is not among the laws revised in 2019. It goes therefore that, as the Revised Edition, 2002 has not been repealed, then failure to cite the Penal Code, Cap. 16 RE 2019 in the charge as in the instant appeal in itself is not fatal and is curable within the meaning of section 388 of the CPA as long as the cited provisions is in Revised Edition 2019. Therefore, the case of Peter Gembe & Jackson Gembe (supra) is distinguishable because the provisions cited was not in the Revised Edition 2019. At page 6 through 7 of the judgment, it is stated that: Secondty; since the amendments in GN No.381 of 2019 have now been incorporated in the Civil Procedure Act CAP 33 R.£201~ the citing by Mr. Mrindoko of section 23 of the Civil Procedure (Amendment of the First Schedule) GN NO.381 of 2019 is very confusing. The proper citing of the provisions after the publication of the Revised Edition 2019 would be Order VIII Rule 23 of the Civil Procedure Code/ Cap. 33 R:E 2019. Secondary, the learned counsel has not shown how the omission to cite Revised Edition 2019 alone has prejudiced the Appellants. Did the Appellants failed to understand the charge facing them? For sure it is not. I therefore find this ground of appeal has no merit and is accordingly dismissed. On application of the doctrine of recent possession, which is in respect of the 6th count of stealing for the 3rd Appellant, I agree with the two learned counsels that, the doctrine would apply in this case where Pc. Maulid, the owner of the shop should have described first his stolen property and later identify the same with a special mark. As this has not been done, the following principles stated in the case of Andrea Agustino @ Msigala vs. R (supra)at page 23 through 24 has been violated: As to the fourth aroand, we are alive to the fact that the learned trial judge relied purely on the doctrine of recent possession and circumstantial evidence to ground the conviction of the Appellants. It is trite law that for the doctrine of recent possession to be invoked. the stolen properties must be identified by the complainant as held in the case of David Chacha and 8 Others v. Republic, Criminal Appeal No. 12 of 1997 (unreported) that: It is trite principle of law that properties suspected to have been found in possession of the accused persons should be identified by the complainants conclusively. In a criminal charge, it is not enough to give generalized description of the property. As to proof of the prosecution case, I think I should take the course of looking each count of arson if at all it was proved. Beginning with the first count, the Appellants were charged for setting fire a police station. For clarity, the particulars of offence partly reads: ...on the 2?d of march 2018 at or around 19:00 hours at Mwandoya Village within Meatu District in Simiyu Region willfully and unlawfully set fire to the police station the property of United Republicof Tanzania. From the outset, the charge is not specific. It was expected the police station put on fire be named in the charge. There is nowhere in the charge is indicated that Mwandoya police station, as witnesses testified, was the one gutted down by fire. It has not been stated if at Mwandoya village, there is only one police station. Generally, in the manner the offence of arson got committed, that is for want of specific number of persons, others testified to be 70 or 60 people, it all tells that, the issue of visual identification becomes relevant. PW2 one Charles Malima Mzarubi at page 67 of the proceedings testified that: The said "mweno" involves Mwandoya villagers therefore the incident was conducted by some people in the village. 1 can look at the accused here in court whom stays at Mwandoya When cross examined, he testified further that: Mwano involves all people at Mwandoya whenever it was raised. The accused in court are from Mwandoya. As per the proceedings, no any witness who identified any of the Appellants. In fact, in the principles as to dock identification being preceded by identification parade and the authorities supplied to me which Mr. Kaunda asked me to consider, are not relevant for one reason that, PW2 did not even say they were present, but that, they are residents of Mwandoya. Assume that they were present at the crime scene. May this be relevant? It was stated in Jackson Mwakitoka & 2 Others v Republic (1990) TLR 17 that: (ii) mere presence of the first appellant at the scene of the crime was not sufficient to invoke the doctrine of common intention and implicate him to the murder. In the instant appeal, the fact that the Appellants were present at the crime scene it doesn't mean that they did set fire in the police station, shops and residential houses as contained to the charge. As submitted by the two counsels, there must be evidence, which is lacking anyway, that the Appellants were identified to commit the alleged offence. Again, there is contradiction in the prosecution case which, in turn, makes the prosecution witnesses not to be trusted. According to the charge, one of the shops which was set on fire was that of Magreth Ipasi, PW1. Along with the charge, PW3 testified that the shop of PWl was set on fire. On her evidence regarding this point at page 65 of the proceedings, PW2 testified that: The building was not burnt rather the fire was over the road. The shop was not burnt This evidence, as said by Mr. Kaunda when citing the case of Zakaria Jackson Magayo v. Republic (supra), makes the prosecution witnesses not to be trusted. With this, I entirely agree with the two learned counsels that, the prosecution case was not proved beyond reasonable doubt. The resultant - follows that, the appeal is hereby allowed. The conviction and sentence met to the Appellants is thus quashed and set aside. I accordingly order their release from prison unless for lawful cause, they are held thereat. It is so ordered. Gerson J. Mdemu""--> JUDGE 30/07/2021 DATED at SHINYANGA this 30th day of July, 2021. 16