athanas amon vs republic 2022 tzhc 15594 23 december 2022

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY CRIMINAL APPEAL NO. 68 OF 2020 (Originating from Economic Case No. 07 of 2020, Kibaha District Court) ATHANAS AMON………………………….……. APPELLANT VERSUS REPUBLIC…………………………………….…RESPONDENT Date of last Order:24/10/2022 Date of Ruling:23/12/2022 JUDGMENT MGONYA, J. The Appellant being aggrieved by the decision of Kibaha District Court appealed before this Court by filing nine grounds of Appeal as hereunder; 1. The trial Magistrate erred in fact and law in holding that the prosecution case was proven beyond reasonable doubt as against the appellant; 2. The trial Court’s proceedings were illegal and vague as the appellant was not sentenced; 3. The trial Court erred in law and fact in failing to properly evaluate the evidence tendered before it; 4. The trial Magistrate erred in fact and law by not considering the defence of the Appellant; 1 5. The trial Magistrate erred in law and fact by not holding that the search conducted to the Appellant was illegal by not being conducted as the law requires. 6. The seizure exercise was a nullity as was illegally procured for not been witnessed and signed by an independent witness; 7. The chain of custody of the purported seized items leaves a lot to be desired cannot be safely vouched that if the items alleged to have been seized from the Appellant were those adduced at trial; 8. The evidence of PW 2, PW 3 and PW 5 were materially contradictory and unreliable on the identification of the purported seized items; and 9. Having been expunged from record, exhibit P 8, the remaining tendered evidence was not sufficient to have found the appellant guilty of the offence charged. The Appellant herein was represented by Mr. Tumaini Mgonja, learned Counsel while the Respondent was represented by Ms. Rehema Mgimba, State Attorney for the Republic. The Appellant informed the Court to submit on the grounds in the following sequence first the 5th Ground of appeal, 6th ground, 7th 2 ground, 3rd and 4th grounds, lastly the 1st, 8th and 9th grounds of appeal collectively while the 2nd ground has been abandoned. Submitting on the 5th ground of appeal, the Appellant’s Counsel stated that, for a search in private premises to be lawful the compliance of the law under section 38 (1) of the Criminal Procedure Act Cap. [20 R. E. 2019] (hence forth the CPA) is required. The search is required to be conducted by an Officer in charge of Police Station or other Police with a search warrant. The aim of the requirement of the law is to provide safeguards against unchecked abuse by investigatory agencies seeking to protect individual right to privacy and dignity as enshrined in the Constitution of the United Republic of Tanzania. Mr. Mgonja, further informed the Court that, the search conducted to his client was contrary to law and hence an unlawful search. The Officer that conducted the search was neither an OCS nor did he have a warrant for search. The officer claiming that the search was an emergency was not justified since he testified to have been informed by an informer and so he had ample time to prepare the warrant. The Appellant’s Counsel Further submitted on the 6th ground that, the seizure exercise conducted by the arresting officers was also not in compliance with the law. That there is a plethora of 3 cases that suggest the engagement of an independent witness when a search and seizure exercise is conducted. The Appellant’s Counsel asserted that, the search conducted to the Appellant’s vehicle at old weighing Bridge Kibaha along the Morogoro road highway. Taking into account that the search was conducted during the day. The Appellant’s Counsel overred that, Officers still had a chance to secure an independent witness for vehicles which were passing along that road and even a number of walking individual passing around. Therefore it does not make sense at all that the officers failed to stop anyone to be engaged as an independent witness and for them to conduct the purported search themselves contrary to the law. It was averred by Mr. Mgonja that, on the 7th ground, the trial Magistrate erred in considering the chain of custody of the purported seized items. The counsel said, it is common knowledge that exhibits such as guns and ammunitions are not kept at the CRO or on exhibits but at the Police Armoury using a Special Armoury Register Book. The records show that the two co accused’s testified not to have witnessed the search nor the pistol or ammunition. They came to witness the pistol in Court. The Counsel overred that, the unexplained breakage of chronological order of chain of custody could not pass unnoticed. The registers concerning the items were not tendered at all. Under the circumstances the counsel asked as to how would the 4 Court believe that the said items tendered were the once seized from the Appellant. Submitting on the 3rd and 4th grounds of appeal, Counsel for the Appellant stated that, the Court faulted on non-consideration of the defence of the Appellant. The Appellant testified to be travelling to Mbeya. At Kibo Kimara, he picked some other persons for relief of fuel. Afterwards, they were stopped and restrained by police officers, and taken to an unknown place where they were questioned of ownership over a pistol that they were not aware of. Further, the Appellant’’s Counsel averred that, the above argument was corroborated by the defence of DW 2 and DW 3 that they did not observe any search conducted and the said pistol was seen when being tendered in Court as an exhibit. If the Court had evaluated the evidence properly the Appellant wouldn’t have been convicted. Lastly on the 1st, 8th and 9th grounds, the Appellant’s Counsel stated that, the prosecution case had a lot of doubts, which the law requires ought to have been resolved in favour of the Appellant. Firstly, PW 3 the arresting officer never testified that the Appellant admitted to own the pistol. PW 5 stated that the Appellant admitted to be the owner of the pistol. It is questionable as to how is it that two persons who were at the scene have two varying versions. 5 In reply to the Appellant’s appeal, the Respondent’s counsel on the 5th ground countered that, the search conducted without a search warrant was in accordance to the provisions of section 38(1) of the CPA. For the said provision allows for a search to be conducted by a Police Officer in charge of a Police Station in absence of a search certificate. Moreover, section 2 of CPA defined officer in charge of a Police Station to include any Police Officer of a super rank. It is in records that PW 3 introduced himself to be Superintendent, meaning that he was a Police Officer with a super rank and hence eligible to conduct a search without a search warrant. In the event, the state attorney held the 5th ground has no merits. Counsel for the Respondent, replied to the 6th ground of appeal by stating that, PW 3 was informed of persons moving from Dar es Salaam to Vigwaza going to commit a crime. A search was conducted and a pistol and ammunitions were found at the roof of the car. Moreover, it was stated by the Respondent’s Counsel that, according to the nature of the information which involved a weapon hence no independent witness could be involved in such circumstances. Hence the 6th ground of appeal has no merit. With regards to the 7th ground of appeal, on seizure of the items the Counsel for the Respondent averred that, chain of custody was well illustrated by PW 9 the arresting officer as from 6 the date it was seized until when it was brought before the Court and tendered as an exhibit. It is learned State Attorney viewthat the prosecution managed to prove how chain of custody was observed considering that the item was a pistol with registration No. 5A7056ZB which has special marks and cannot be tempered, hence this ground has no merits. On the 3rd and 4th grounds of appeal on the Court’s failure to evaluate defence evidence, the Respondent’s Counsel submitted that, section 312 of the CPA provides for legal requirements of a Judgement. Among them being evaluation of the defence testimony. In the trial proceedings at pages 11 the trial Magistrate has considered the defence testimony of the Appellant. Ms. Mgimba averred that, from the analysis of the defence testimony by the trial Court, it is clear that the Magistrate convicted the Appellant in consideration of his defence. Since he was denying the allegations against him and proved his innocence. Further, it was averred by the Respondent’s Counsel that, it has been stated in various cases that the first appellate Court can re-evaluate evidence of the trial Court and come up with its finding. Since this is the first appellate Court it still has room to re-evaluate the evidence if it finds the need to do so hence the Appellant’s 3rd and 4th grounds appeal have no merits. 7 Lastly on the 1st, 8th and 9th grounds of appeal which were based on a lot of doubts in the Prosecution case, it was the Respondents claim that said grounds have no merits counsel overred that, the fact that the two witnesses had varying testimonies (PW 3 and PW 5) is normal since it is not easy for two human beings to remember the exact things that happened at the scene. Omission of one witness not to state a particular fact cannot itself eliminate the credibility of the witness as the fact that the appellant was found with the said exhibit. However, it was submitted by the Respondent’s Counsel that, on the claim by the Prosecution to have arrested four persons and the case being instituted by the Appellant’s name depended on the available evidence of the arrested persons. And the keeping of the exhibit at the CRO was a result of the absence of the exhibit keeper and hence there was no ill motive of any kind with regards of the keeping of the exhibit. Further that the doubts discussed above as raised by the Appellant are said to be minor issues which do not go to the route of the case and hence do not affect the Prosecution case. In the event therefore, the Respondent’s Counsel was of the view that these grounds have no merits, and further prayed that the appeal be dismissed. I have gone through the Appellant’s grounds of appeal, submissions of both parties and the trial Court’s records. At this 8 juncture, I am at the position to determine the appeal before me. Beginning with the 5th ground of appeal that, the trial Magistrate erred in law and fact by not holding that the search conducted to the Appellant was illegal by not being conducted as the law requires. It was the Appellant’s contention that the search conducted by the arresting officer in company of other officers was unlawful since the same was conducted without the search warrant. On the other hand, the Respondent’s Counsel argued that unavailability of the search warrant was not fatal and claimed the law allows a search without a search warrant when an officer conducting the same is of the super rank. From the parties’ arguments, I will be guided by the provisions of the law that provide for search. Section 38 (1) of the CPA provides that: 38.-(1) Where a police officer in charge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place: (a) anything with respect to which an offence has been committed; 9 (b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence; (c) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing an offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be. The above provision of the law is read together with paragraph 1 (a), (b) and (c) and 2 (a) and (d) of the Police General Orders No. 226. From the records, there is testimony of PW 3 who states to have arrested the Appellant and conducted a search. It is from the search that a pistol make Berreta with registration No. 5A7056ZB and 6 ammunition were found in the Appellant’s possession. This arrest is said to have been a result of information from an informer whereas after receiving such information, PW 3 testified to have gone and take other officers and headed to the old weighing bridge at Kibaha to execute the arrest. 10 DW 1 and DW 2 claim to have been arrested taken to an unknown place and afterwards were asked as to who was the owner of the pistol. Their testimonies corroborated by both claiming they do not own the said pistol and that no search was conducted upon them. DW 1 further stated that the pistol was planted. The defence case claims that the matter did not require a search warrant since the circumstance of the case involved a pistol hence it was an emergency search. And that still the officer conducting the search was a superintend hence a search warrant was not mandatory. To begin with, there is no dispute that the search was not an emergency one and indeed it could not have been an emergency because according to PW3, the police who conducted it had received relevant information about persons moving from Dar to Vigwaza with an intention to commit an offence prior the arrest on that day. PW 3 claims to have gone to take other police without stating that the matter was of utmost emergency. It is from such evidence of PW 3 I believe there was time to secure a search warrant or a written authority to allow PW 3 to conduct a search as required by law. I differ with the Prosecution that a search warrant was not mandatory in the said circumstance for the 11 reasons that the matter involved a pistol and the arresting officer was of the rank of a Superintendent. I am of the firm view that the absence of a search warrant, leaves so much doubt, unlike the requirement of proving criminal cases beyond reasonable doubt which is the duty of the Prosecution side. I urge that we need to appreciate the rationale for the requirement of search warrants. Search warrants are considered to be a safeguard to the Constitutional Right to dignity and privacy of a person. Within our jurisdiction, reading of the Police General Orders (P.G.O) 226, shows the seriousness with which search warrants should be taken. Part of it reads: - " 1. The entry and search of premises shall only be affected either: - (a) on the authority of a warrant of search; or (b) in exercise of specific powers conferred by law on certain Police Officers to enter and search without warrant (c) Under no circumstances may police officer enter private premises unless they either hold a warrant or are empowered to enter under specific authority contained in the various laws of Tanzania." 12 From the provisions above cited, and the fact that under paragraph 2 (a) and (b) of the P.G.O, there is even a requirement of obtaining permission from a Magistrate before effecting search, this reveals that the intention was to prevent abuse of powers of search and arrest. The requirement to obtain approval of a Magistrate is echoed in section 38 (2) of the CPA. Since the general rule under the Criminal Procedure Act is that search of a suspect shall be authorized by a search warrant unless, the same should be adhered to. I do believe the Legislature at the time of construing provisions relating to search meant for them to be applied and the same are not ornaments to decorate the statute. It is from the analysis above that, I do find this ground of appeal enough to faulty the findings of the lower court, thus I do not wish to determine the rest of the grounds as they all fall short at juncture. Consequently, this appeal is hereby allowed. I quash the conviction and set aside the sentence. I order the Appellant's immediate release unless he is being held for another lawful cause. 13 It is so ordered. Right of Appeal Explained L. E. MGONYA JUDGE 23/12/2022 14