CRIMINAL APPEAL NO 486 OF 2022 ORECTUS MBAWALA BONGE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MWARIJA. J.A.. KEREFU. J.A. And MAKUNGU. J J U CRIMINAL APPEAL NO. 486 OF 2022 ORESTUS MBAWALA @ BONGE..................................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Mlvambina, J.^ dated the 28th day of September, 2022 in Criminal Session Case No. 7 of 2020 JUDGMENT OF THE COURT 5th & 15th August, 2024 MWARIJA. J.A.: The appellant, Orestus Mbawala @ Bonge and another person, Cosmas Simon Mbena who is not a party to this appeal (hereinafter referred to by his first name of Cosmas) were jointly charged in the High Court of Tanzania at Songea with the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. It was alleged that, on 14/6/2016 at Making'inda area within Songea Municipality in Ruvuma Region, the duo murdered one Christopher Ndimbo. Both the appellant and Cosmas denied the charge and as a result, the case had to proceed to a full trial. At the trial, the prosecution called a total of twelve witnesses and relied on ten exhibits. Having considered the prosecution and the defence evidence, the learned trial Judge (Mlyambina, J.) found that, the prosecution had failed to prove the case beyond reasonable doubt against Cosmas. He was therefore, found not guilty and acquitted. On the part of the appellant, the trial court found that, the case had been proved against him beyond reasonable doubt. As a consequence, he was found guilty, convicted and sentenced to suffer death by hanging. The appellant was aggrieved by the decision of the High Court hence this appeal. The facts of the case, giving rise to the judgment which is the subject of this appeal, may be briefly stated as follows: The deceased person, Christopher Ndimbo was until the material time a primary school teacher. Apart from that carrier, he owned a passenger service motorcycle (boda boda) with Reg. No. MC 762 ACK which was being operated by his younger brother, one George Elgius Ndimbo (PW2). At times however, when the deceased had a free time, he personally used the motorcycle to operate the boda boda business. On 11/6/2016 at about 5:00 p.m., the deceased took the motorcycle from his home and went for the business of ferrying passengers. He did not return home on that date, the incident which naturally, caused his wife, Jesca Albert Kiswaga (PW1) to become worried. She tried to call the deceased in that night as from 8:00 p.m., the usual time he always returned home, but in vain. She informed her neighbour, Mama Kelvin on that night and on the next day, she went with PW2 to report to the police that the deceased had been missing. She also provided the police with the deceased's mobile phone number, 0763726995. The matter was also reported by PW2 to the deceased's father. Because the mobile phone number of the deceased person had been provided, the police cyber-crime ex-perts traced the location at which that mobile phone must have been at the given time. They used the IMEI number of the deceased's handset, provided to them by the service provider, the Vodacom. The IMEI number of the deceased person's handset was 354459061489570. An online detection was made by F 2229 D/Sgt Victor (PW10). He found out that, the mobile phone was switched of at Msamala Making'inda area. From that clue, the deceased's relatives who included John Eligius Ndimbo (PW9), Yasin Hashim Ndauka, who was at the material time Msamala area's Mtaa Chairman and about fifty boda ta/a riders led by E 8161 D/Sgt Mussa (PW11) proceeded to conduct a search with a view of tracing the deceased. They succeeded to locate the body in a bush at the said area. The body, which had started to decompose and which had a visible wound on the occiput part of the head, indicating that the deceased was hit with a heavy object, was taken to Songea Regional Referral Hospital for preservation in the mortuary. At the hospital, an autopsy was conducted on the deceased's body by Dr. Restituta Filbert Mwageni (PW3). She found that, the deceased died due to the sustained wound on the head. She tendered the post-mortem examination report and the same was admitted in evidence as exhibit P2 without any objection. After discovery of the deceased's body, the police continued with investigation. PW10 proceeded with the tracking of the deceased person's mobile phone. He used the print out provided to the police by Vodacom (exhibit P4). He found out that, after the deceased's death, the phone was being used with another sim card No. 0742557361 registered in the name of Lulu Mapile. The location at which the mobile phone was used by that number at that particular time was Njombe. Meanwhile, through further investigation, the police discovered that, the deceased's phone was sold to one Issack Kilamlya at Buguruni Matarawe, Songea. The phone which was tendered in evidence as exhibit P8, was consequently, retrieved through one Issack Ibrahim to whom the same was sent by the said buyer. It was seized by PW11 through a seizure certificate dated 22/6/2016 (exhibit P7). Later on, the police traced the appellant at Njombe where PW11 and Joseph John Lukuba (then D/Ssgt stationed at RCO's office, Songea), arrested him at Kipengele Guest House after they had used his wife to call him using the mobile phone of the attendant of the said Guest House, one Francisca Romwald Mgeni (PW7). After his arrest, the appellant was sent to Njombe Central Police where his cautioned statement was recorded by Joseph John Lukuba (PW12) and was thereafter, taken to Songea where as stated above, was charged. In his evidence, Ibrahim Mtegule (PW5) stated that, while at his work place, at the milling machine owned by one Edward Kilamlya, the appellant arrived there having a mobile phone which he was selling it. On that date, PW5 had been visited at his work place by one Issack Kilamlya who, together with Yasiri Hashim were recorded as PW8 (henceforth PW8 (a) and PW8 (b) respectively). PW5 witnessed PW8 (a) buying the phone at the price of TZS 450,000.00. Later, on 22/6/2016, police officers arrived and inquired about the mobile phone. He told them that it was bought by PW8 (a) who was on that date, away at Igwachanya, Njombe. The police officers required PW5 to inform PW8 (a) to surrender it to them. Following the information relayed to him by PW5, PW8 (a) sent the phone by a bus and the same was handed over to the police as witnessed by a seizure certificate which he signed after he had handed over the phone. PW5's evidence was supported by Tiem Edward Mlowe (PW6), who was also at the material time, working at the said milling machine. He testified that he also signed exhibit P7. The evidence of PW5 was also supported by that of PW8 (a) who testified that, on 19/6/2016 when he visited PW5 at his work place, the appellant arrived there having the phone offering it for sale. He confirmed that, he bought it at the price of TZS 450,000.00. It was his further evidence that, on 20/6/2016 while at Igwachanya, he received a call from PW5 informing him that the mobile phone he bought from the appellant was required by police. On that information, he immediately sent it by bus to PW5. As to how the appellant came to be arrested, evidence to that effect was adduced by PW11 and PW12. It was PW ll's evidence that, in the course of tracking the mobile phone, PW10 found out that, after the death of the deceased, his handset was used by sim card No. 0742557361 and that the same was being used at Njombe. Later however, it was used at Songea where it was tracked on 19/6/2016. They managed to arrest one Pendo Orestus Mbawala, the daughter of the appellant at Mpitimbi area, Songea and when she was questioned about the sim card, she explained that, it belonged to her father, the appellant. She also disclosed that the appellant was residing at Matarawe Street, Njombe. PW11 went on to testify that, on 19/6/2016, he travelled with other police officers, including PW12, in the company of Pendo and on 20/6/2016, she led them to the appellant's house. The appellant and his wife had however, left but through an informer, they came to know that they went to the house of one person known as Elias Shida Mkuwa @ White, the appellant's friend. They forcefully entered in that house after the occupants had refused to open, apparently because the appellant had received information that Pendo had been arrested. In the house, they found the appellant's wife. The appellant and his wife were in the process of escaping and at the time, the appellant was hiding in a bush so that in the morning, they could escape after picking his wife at Kipengele Guest House. As stated above, the police used the appellant's wife to lure him using PW7's phone to go to the Guest House. He did not immediately go there because, according to his wife, he feared to be arrested by sungusungu who were on patrol and thus told her that, he would go there at 5:00 am. When he later went to the Guest House, he was arrested. The evidence of PW11 was supported by PW12 who testified that, he recorded the cautioned statement of the appellant (exhibit P10) at Njombe Police Station after his arrest. The witness contended that, the appellant confessed to have committed the offence. In his defence, the appellant testified that, he was arrested on 20/6/2016 at Njombe bus stand where he had gone to board a bus to Mbeya. He was taken to Njombe Central Police Station and while there, PW11 and PW12 required him to show them where he had hidden a motorcycle. He was ordered to embark on a car and from there, he was taken to Kibena Police Station where he was tortured and required to confess that he murdered several persons and robbed them their properties. He went on to state that, on 24/6/2016, he was taken to the RCO's office together with other suspects, including his host at Njombe, one Patrick Mligiliche and Elias Shida Mkuwa @ White. From there, he was taken to the scene of crime together with Cosmas and after PW11 had informed PW8 (b) that, the place was where the offence was committed, he returned to the police station. He denied to have recorded a cautioned statement or mentioned Cosmas as the person he collaborated with to commit the offence. In convicting the appellant, the learned trial Judge relied on the doctrine of recent possession; that the appellant was found in possession of the deceased's mobile phone (exhibit P8). He also relied on the appellant's cautioned statement in which he was found to have confessed that he committed the offence. The trial court found further that, in the particular circumstances of the case, the doctrine of recent possession was applicable because the facts met the conditions stated in inter alia the case of Mkubwa Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007 (unreported). It found further that, from the nature of the injury inflicted on the deceased's body and the part of the body which was harmed, the appellant killed the deceased with malice aforethought. As stated above, the appellant was aggrieved by the decision of the High Court and thus preferred this appeal. In his memorandum of appeal filed on 15/5/2023, he raised eight grounds of appeal. Later, on 2/8/2024, his advocate filed a supplementary memorandum of appeal consisting of two grounds as follows: "1. That, the trial court erred in law and in fact in convicting the appellant relying on the doctrine o f recent possession whereas the requirements for the said doctrine to apply were not proved beyond reasonable doubt 2. That, the trial court erred in law and in fact in convicting the appellant o f murder whereas the post-mortem examination report (exhibit P2) did not reveal the cause o f death". At the hearing of the appeal, the appellant was represented by Mr. Edson Mbogoro, learned counsel while the respondent Republic was represented by Mr. Kauli George Makasi, learned Senior State Attorney. 10 At the outset, Mr. Mbogoro informed the Court that, he had decided to < - abandon the 3rd, 6th and 8th grounds of appeal contained in the memorandum of appeal. In the circumstances, the appellant's memorandum of appeal remained with five grounds which may be paraphrased as follows: 1. That, the learned trial Judge erred in law and fact in relying on exhibits PI and P7 to found the appellant's conviction while the said exhibits were unprocedurally admitted in evidence. 2. That, the learned trial Judge erred in law and fact in acting on the evidence of PW4 to find that, the case against the appellant had been proved beyond reasonable doubt while that evidence was not credible. 3. That, the learned trial Judge erred in law and fact in holding that, the prosecution had proved its case beyond reasonable doubt. 4. That, the learned trial Judge erred in law and fact in relying on exhibit P8 to convict the appellant while the chain of custody of that exhibit was not established. ii 5. That, the learned trial Judge erred in law and fact in failing to draw adverse inference against the prosecution's omission to call Lulu Mapile, the person on whose name the mobile phone No. 0742557361 was registered. Submitting in support of the 1st ground of the supplementary memorandum of appeal, Mr. Mbogoro argued that, the finding of the High Court that, there was sufficient circumstantial evidence based on the doctrine of recent possession was erroneous. According to the learned counsel, apart from the proof that, the phone (exhibit P8) was recently stolen, the other conditions precedent for application of the doctrine were not met on account that; first, exhibit P8 was not found in possession of the appellant, secondly, the sim card which was used after the incident, that is No. 0742557361 was registered in the name of Lulu Mapile who was not called as a witness, thirdly, that, while the evidence adduced by the prosecution witnesses stated the IMEI number of exhibit P8 to be 354459061489570, in the seizure certificate (exhibit P7) the number is shown as 354459061489571 thus indicating two different mobile phone handsets. This is also the essence of ground 1 of the appellant's memorandum of appeal. With regard to the 2nd and 3rd grounds of the appellant's memorandum of appeal, the learned counsel argued that, the evidence of PW1 as regards exhibit P8 should have been found to be doubtful because she did not give its description before she testified in court. The learned counsel challenged also the evidence of PW4 arguing that, the same should not have been found to be credible because he was not truthful when he testified that, mobile phone No. 0742557361 started to be used in exhibit P8 before the date of the incident. He submitted further that, although it was the prosecution evidence that a motorcycle was stolen in the course of commission of the offence, the prosecution had failed to substantiate that allegation by producing it or if the said property might not have been recovered, by tendering its registration card. In response to the arguments made by the learned counsel for the appellant on that ground of appeal, Mr. Makasi submitted that, the doctrine of recent possession was properly applied because, from the evidence adduced by the prosecution witnesses, the conditions for its application were met. He contended that, although exhibit P8 was found in possession of PW8 (a) not the appellant, there was sufficient evidence 13 that he was the one who sold it to the said witness. The learned Senior State Attorney argued thus that, the appellant was in constructive possession of exhibit P8 found only six days after the date on which the same was stolen. On the identification of the mobile phone handset, Mr. Makasi argued that, it was properly made by PW1 by giving its description and the evidence of the said witness was not challenged by way of cross-examination. He added that, even though the handset was not the subject matter of the charge, it had connection with the committed offence. With regard to the varying numbers of IMEI of exhibit P8, Mr. Makasi argued that, the number shown in the seizure certificate indicating the last number as 1 instead of 0 was, as per the evidence, a slip error caused by the person who recorded it and does not therefore, affect the validity of the exhibit. As for the contention that, according to the evidence, exhibit P8 started to use the sim card number registered in the name of Lulu Mapile, before the date of the incident, the learned Senior State Attorney submitted in reply that, from the print out (exhibit P4), that number started to be used from 12/6/2016 after the date of the incident which, as stated above was on 11/6/2016. 14 On the argument contained in the 4th ground of the appellant's memorandum of appeal, that the trial court should have taken adverse inference against the prosecution for its failure to call Lulu Mapile, the learned Senior State Attorney countered that argument stating that, it was not necessary to call her as a witness because, the ownership of exhibit P8 was not at issue. He added that, what the prosecution had intended to prove was not the ownership of the sim card used but the handset (exhibit P8) and that under section 143 of the Evidence Act, Chapter 6 of the Revised Laws, there is no specific number of witnesses required to prove that fact. It found that, the witnesses who testified, sufficiently proved that the said exhibit belonged to the deceased person. On the 2nd ground of the supplementary grounds of appeal, Mr. Mbogoro argued that the trial court erred in acting on the post-mortem examination report as valid evidence while the report did not reveal the deceased person's cause of death. He also challenged the validity of the appellant's cautioned statement contending that, since the same was repudiated, it ought to have been corroborated but lacked such corroborative evidence. 15 In reply, Mr. Makasi submitted that, although the relevant part in the printed post-mortem examination report form concerning the cause of death was skipped, in his evidence PW4 revealed that, the deceased person's death was due to head injury. Relying on the case of the DPP v. Fadhili Chengula, Criminal Appeal No. 565 of 2019 (unreported), Mr. Makasi argued that, the offence of murder may be proved without establishing the cause of death. He stressed that, in this case, the appellant led the police to the scene of crime and narrated how the offence was committed. Responding further to the 4th ground of the appellant's memorandum of appeal, the learned Senior State Attorney argued that, from the nature of exhibit P8, an item which could not change hands easily, its chain of custody was sufficiently established by oral evidence. He cited the case of Jumanne Mpini @ Kambilombilo and Others v. Republic, Criminal Appeal No. 195 of 2020 (unreported), to bolster his argument adding that, after its seizure, the exhibit was sent to Songea Police Station where it remained until when it was tendered in court. The learned counsel for the appellant re-joined by making the following submissions: first, that, the court is empowered to look into 16 the evidence afresh regardless of whether the witnesses were cross- examined or not, secondly, that, in order for the doctrine of recent possession to apply, the four conditions stated above must be met cumulatively, thirdly that even though the oral evidence of a Doctor may prove the cause of death, in this case, the evidence which was given six years after the death of the deceased, was unreliable. Fourthly, as for the case of Fadhili Chengula (supra) the learned counsel argued that, the same is distinguishable because in the case at hand, the appellant did not lead to the discovery of the deceased's body but was taken to the scene for the purpose of drawing the sketch map. On those arguments, the learned counsel urged the court to allow the appeal. We have duly considered the contending submissions of the parties. With regard to the first ground of the supplementary memorandum of appeal, we are unable to agree with Mr. Mbogoro that, the doctrine of recent possession was improperly applied. In our considered view, the four conditions for application of the doctrine were met. The conditions were aptly stated in the case of Joseph Mkumbwa 17 and Samson Mwakagenda v. Republic (Criminal Appeal No. 94 of 2007) [2011] TZCA 118. In that case, the Court stated as follows: " Where a person is found in possession o f 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 o f convictionf it must positively be proved, first that the property was found with the suspect, second, that the property is positively the property o f the complainant; third, that the property was recently stolen from the complaint; and lastly, that the stolen thing in possession o f the accused constitutes the subject o f a charge against the accused. It must be the one that was stolen/obtained during the commission o f the offence charged". Mr. Mbogoro agreed that exhibit P8 was recently stolen because it was found six days after the date of the incident. His argument is that the other three conditions were not met. With respect, we do not agree with him. 18 The evidence of PW8 (a) and PW5, established that exhibit P8 was sold to the former by the appellant. Their evidence was believed by the trial court. On our part, we could not find any justifiable cause to disbelieve them. Notwithstanding the fact that the same was not physically found in possession of the appellant, as argued by the learned Senior State Attorney, it was in the appellant's constructive possession. - See for instance, the case of Ashiraka Namaihala Milias v. Republic, Criminal Appeal No. 582 of 2019 (unreported). In that case, the witness, one Swedi Hashimu was found with a subwoofer, the property which was stolen after the house of the victim in that case had been broken. The said witness gave explanation to the police that the property was placed to him as a collateral for a loan taken from him by the appellant. Having considered that evidence, the Court found that, the appellant was found in constructive possession of the said property. It stated as follows: " We think Ms. Matemu is correct in principle that, once it is established by evidence that, a person, though not in actual possession o f a property, has knowledge and control o f where it is, he is taken to be in constructive possession o f that property. 19 In the case at hand, exhibit P8 was identified by PW1 who tendered the receipt issued to the deceased as evidence of its purchase and more specifically, its IMEI number was specified. Although the learned counsel for the appellant has challenged that identification number, we agree with the learned Senior State Attorney that, the recording of it by PW5 in the seizure certificate (exhibit P7) that it was number 354459061489571 instead of 354459061489570, was a mere slip. This is particularly so because, going by exhibit P4, that is, the print out from the service provider, the wrongly recorded number does not feature as having been used in the mobile phone number registered in the name of Lulu Mapile shortly after the death of the deceased. Since the evidence was sufficient to prove that the handset belonged to the deceased person as per the descriptions given by PW1, which were not challenged and because it had a unique IMEI number, the omission to call the said Lulu Mapile as a witness did not have an adverse effect on the prosecution case. It is, with respect, equally an incorrect assertion by the learned counsel that, in his evidence, PW4 had said that, sim card number 0742557361 was started to be used in exhibit P8 before the death of the 20 deceased. As correctly submitted by Mr. Makasi, exhibit P4 which was tendered by the said witness, shows clearly that the handset started to be used with that number on 12/6/2016. Similarly, since it was not disputed that the deceased was killed and a motorcycle was stolen together with his mobile phone, it was not necessary to tender the motorcycle's registration card because the task ahead of the prosecution was to prove the offence charged, not otherwise. With regard to the complaint in the 4th ground the appellant's memorandum of appeal; that the chain of custody of exhibit P8 was not established, we wish to start by stating the purpose behind the chronological documentations of a seized item from the time of the seizure until the same is tendered in court. The rationale was stated in the case of Paulo Maduka and Others v. Republic (Criminal Appeal No. 110 of 2007) [2009] TZCA 69. In that case, the Court observed that: "The idea behind recording the chain o f custody, it is stated, is to establish that the alleged evidence is in fact related to the alleged crime - rather than for instance, having been planted fraudulently to make someone appear guilty'. 21 The purpose is also to ensure that the seized item is not tampered, altered on exchanged. Although from the chain of custody rule, documentation is required to be established by a paper trail, it may also be proved by oral evidence of witnesses. - See for instance, the case of Anania Clavery Betela v. Republic, Criminal Appeal No. 355 of 2017 (unreported). Citing the case of Issa Hassan Uki v. Republic, (Criminal Appeal No. 129 of 2017) [2018] TZCA 361, the Court observed that, for items which cannot change hands easily and which cannot be easily altered, swapped or tampered, their chain of custody may be proved by oral evidence. It observed further, citing the case of Joseph Leonard Manyota v. Republic (Criminal Appeal No. 485 of 2015 [2017] TZCA 260 that: "The rationale for the above position is to avoid treating the principle governing the determination o f the chain o f custody as a straitjacket but one that has to be relaxed whenever an item that is not amenable to being easily altered or corrupted is involved" As stated above, in the case at hand, exhibit P8 is an item that has a unique number, the IMEI number which, from the evidence of the 22 witnesses including PW10 from cybercrime department of the police and PW4 from the service provider of the sirn card used in the handset after offence had been committed, positively identified the IMEI number to be that of the handset which was constructively found in possession of the appellant. For these reasons, this ground of appeal is also found to be lacking in merit. Likewise, on the complaints regarding the validity of the post­ mortem examination report and the appellant's cautioned statement, we are also of the view that, the same are devoid of merit. With regard to the complaint that the post-mortem report does not reveal the cause of death, that is a correct position but according to PW4's evidence the death was due to head injury. Similarly, as submitted by Mr. Makasi, from the evidence on record, the appellant led the police to the scene of crime where previously, the body was found having a visible wound on the occiput part of the head. We find therefore, that the absence of the statement on the post-mortem examination report as regards the cause of the deceased's death, does not invalidate it. This is because, apart from the stated evidence, PW3, the Doctor who examined the body, described the nature of the injury found on the deceased person's head. He remarked in the post-mortem examination report that the body had, inter alia a "fracture of occipital bone with bleeding from nose and ears". The fact that PW4 testified after six years from the date on which he examined the body cannot therefore, be the reason for doubting the credibility of his evidence. We do not therefore, find merit in that argument. As for the arguments on the appellant's cautioned statement, it is true that, in his defence evidence, the appellant repudiated that statement. He denied having confessed that, he committed the offence. In such a situation, that evidence required corroboration before it could be acted upon to secure conviction. The learned trial Judge was alive to that position of the law. He considered the entire evidence and found that, the cautioned statement was corroborated by the evidence to the effect that, the appellant was found with the deceased's mobile phone shortly after his death and the evidence showing that the handset was used by sim card No. 0742557361 owned by the appellant. We are thus in agreement with the learned trial Judge that, the evidence of the appellant's cautioned statement was corroborated and therefore, the complaint based on that requirement is without merit. 24 On the basis of the above stated reasons, we find that, the appeal has been brought without sufficient reasons. In the event, the same is hereby dismissed in its entirety. DATED at SONGEA this 15th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 15th day of August, 2024 in the presence of the appellant who appeared in person and Ms. Hellen Chuma, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. f! \f '* fZJ x° \,v .*>\•> t *Z/&/ SENIOR DEPUTY REGISTRAR COURT OF APPEAL 25