CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 37573 OF 2023 (Originating from District Court of Lindi at Lindi in Criminal Case No, 22 of 2021) ALLY MOHAMED BOMBA @Moze.........-------- ----- -------- - APPELLANT VERSUS THE REPUBLIC ———————............... -........ - RESPONDENT JUDGEMENT Date of last order: 07.05.2024 Date of Judgement: 19.07.2024 EBRAHIM, J.i The Appellant was charged and convicted before the District Court of Lindi at Lindi in Criminal Case No. 22/2021 with two offences. The housebreaking contrary to section 294 (1) (a) of the Penal Code [Cap. 16 R E. 2019]; and stealing contrary to sections 258 (1) and 265 of the Penal Code [Cap. 16 R.E. 2019[. It was stated that on 01.04.2021 at Wailes Area within Municipality and Lindi Region, the Appellant did break into the dwelling house of Page 1 of 19 Ramadhan Athman Tayari with intent to commit an offence of stealing. It was also alleged that the Appellant after having broken into the dwelling house did steal one radio subwoofer make seapeano with its two speakers and its remote control; Azam decoder and its remote control and cash money amounting to TZS. 200,000/=. All the alleged properties so stolen valued at TZS. 500,000/= and claimed to belong to Ramadhan Athman Tayari. During the trial, the prosecution lined up nine witnesses and tendered six (6) exhibits i.e., exhibit Pl (sketch map), exhibits P2 and P4 (certificate of seizure), exhibit P3 and P5 (the items that were alleged to have been stolen) and exhibit P6 (copy of exhibit register). After the closure of the prosecution case, the Appellant was called upon to enter his defense in which he maintained his innocence and claimed not to have neither been found at the crime scene nor with any stolen properties or selling the alleged stolen properties. After deliberating on the evidence presented before it, the trial court was satisfied with the prosecution evidence and found the appellant guilty of the charges offences. He was thus sentenced to serve a Page 2 of 19 sentence of four [4) years imprisonment for the 1st count and two (2) years for the 2nd count. Both sentences to run concurrently. Dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal raising nine (9) grounds of appeal complaining mainly that the trial Magistrate erred to convict and sentence him basing on the evidence of illegal search; un-established chain of custody; and none consideration of the appellant’s defense evidence. The appellant complained also that the prosecution failed to observe the requirement of section 289 of The Criminal Procedure Act [CAP. 20 R.E. 2019] and that he was not availed his rights stipulated under sections 231 and 293 of The Criminal Procedure Act [CAP. 20 R.E. 2019]. The appellant further faulted the trial court for failure to conduct the inquiry during the admission of the prosecution documentary evidence; and that the prosecution side failed to prove their case beyond reasonable doubts. When this appeal was called for hearing, the appellant appeared in person, unrepresented. The Respondent was represented by Mr. Alex Kasela, learned State Attorney, Page 3 of 19 Submitting in support of the appeal, the appellant prayed to adopt his grounds of appeal and the same to form part of his submission. In reply, Mr. Kasela, the learned State Attorney challenged the grounds of appeal in seriatim. Starting with the 1st ground of appeal he submitted that according to pages 11-14 Of the typed proceedings, PW2 testified that it was the Appellant who took him to PW5 and PW7 to whom he sold the stolen properties. The same was confirmed by PW6 who purchased a decoder and remote control for Azam (exhibit P3) from the Appellant. PW7 also confirmed to have bought a radio subwoofer, two speakers, and the remote control (exhibit PE5) from the Appellant. Therefore, the search was not illegal. Submitting on the 2nd ground of appeal, Mr. Kasela argued that the certificate of seizure was not signed by the Appellant (exhibit P2). He explained that the certificate of seizure is signed by the person whose property has been seized. However, exhibit P3 was taken from PW5 and PW7 who confirmed to have sighed it. Page 4 of 19 Arguing on the 3^ ground of appeal, he referred to the case of Jumanne Mpini and Another Vs R, Criminal Appeal No. 195 of 2020 where the case of Paul Maduka and Joseph Leonard Manyota discussed the jurisprudential position that chain of custody doesn't need to be established in a document form. He said chain of custody can equally be established by ah oral account of the correct sequence of events where in the instant case PW4 explained how he received the exhibit from DC Hezron and he was a custodian of the same until he handed it to PW1 for court processes. He concluded on the point that the chain of custody was intact. On the 4th ground of appeal concerning none consideration of the defense evidence, Mr, Kasela referred to page 19 of the typed judgment where the trial court considered section 235(1) of The Criminal Procedure Act [CAP. 20 R.E. 2019] on the requirement to consider both sides of evidence. He argued that on so doing, the trial court found that the defense evidence did not manage to raise a shadow of doubt to the prosecution case. Responding to the 5th ground of appeal on committal proceedings, Mr. Kisela submitted that this case does not require the court to Page 5 of 19 conduct committal proceedings. He added moreover that, section 143 of the Evidence Act does not limit the number of witnesses required to prove a case. As for the 6th ground of appeal, he referred to page 17 of the typed proceedings where PW3 managed to recognize his Azam decoder which had his name. He further referred to the testimony of PW9 (investigation officer) who testified that PW3 received a message showing the number which has recharged his decoder. On the 7th ground of appeal concerning the rights of the appellant, he said the appellant’s rights well were well explained to him. He referred this court to page 37 of the typed proceedings and said the trial court explained to the Appellant his rights and he responded by opting to give his evidence under oath and not to tender any exhibit. To bolster his argument, he cited the case of Daktari Jumanne vs. the Republic, Criminal Appeal No. 602 of 2021 at page 12. On the 8th ground of appeal Mr. Kasela submitted that the prosecution brought 9 witnesses and tendered 5 exhibits. Page 6 of 19 Lastly, he argued that there was no need to conduct an inquiry because all the objections raised were on the content which needed evidence contrary to the principle set in Mukisa Biscuit [1966] EA 969. He thus prayed for the appeal to be dismissed in its entirety for want of merits. In rejoinder, the Appellant reiterated his submission in chief. I have considered the submission as well as the trial court’s proceedings. The core issue for determination is whether the case against the Appellant was proved at the required standard i.e., beyond reasonable doubt. Before determining the grounds of appeal, it is worthwhile noting here that, in criminal matters and in terms of section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2019], the guilt of the accused person must be established beyond reasonable doubt. Generally, and always, such duty lies with the prosecution except the statute or any other respective law provides otherwise. Starting with the propriety of the search and seizure. Section 38 (1) of The Criminal Procedure Act [CAP. 20 R.E. 2019] provides thus: Page 7 of 19 “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; (b ) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence; (cj 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." Deducing from the quoted provisions of the law, no search of premises shall be affected without one; search warrant, two; the presence of the owner of the premises, occupier, or his near relative at the search premises, three; the presence of an independent witness who is required to sign to verify his presence and four; issuance of a receipt acknowledging seizure of the stolen property. Page 8 of 19 The above provision of the law is read together with Paragraph 18 (a) “ (g) of the Police General Orders No, 226. A police officer is authorized by law to enter arid search any premise, vessel, vehicle, or land and seize anything which is connected with an offence. It is trite law that the exercise of this function should only proceed upon obtaining a warrant of search save for an emergency situation in which case the search may proceed without a warrant as provided under section 42 of the Criminal Procedure Act [Cap.20 R.E 201'?]. The rationale behind this requirement is well stated by the Court of Appeal in the case of Director of Public Prosecutions vs Doreen John Mlemba (Criminal Appeal 359 of 2019) [2021] TZCA 482 (14 September 2021) where the Court held thus: "In our view, the meticulous controls provided for under the CPA and a clear prohibition of search without warrant in the PGO is to provide safeguards against unchecked abuse by investigatory agencies seeking to protect individual citizens’ rights to privacy and dignity enshrined in Article 16 of the Constitution of the United Republic of Tanzania. It is also an attempt to ensure that unscrupulous officers charged with the mandate to investigate Crimes do not plant items relating to criminal acts in peoples’ private premises in fulfilling their Page 9 of 19 undisclosed ill motives- see BadiruMusa Hanogiv. R, Criminal Appeal No. 118 of 2020 (unreported)11. [Emphasis is mine] In the present case, the search leading to the impounding of stolen properties (exhibit P3 arid P5) was conducted without a search warrant. The question to be answered therefore is whether there was an emergency justifying the search without a warrant. The learned State Attorney argued that there Was no illegal search as PW5 and PW7 admitted to have been sold the stolen properties. From the trial court's records PW2 testified that after the Appellant had admitted to have committed the said offences, he went to look for the Village Chairman and Village Executive Officer. Then the Appellant took them to PW5’s house. PW5 admitted to have the stolen properties which he purchased from PW6. They conducted a search and seized exhibit P3 (the stolen properties). Thereafter, the Appellant took them to PW7’s shop. PW7 admitted to have the stolen properties which he purchased from the Appellant. They conducted a search and seized exhibit PS (the stolen properties). However, the record is silent as why the warrant was not sought/obtained. I find therefore that the search of the: house in Page: 10 of 19 question was conducted with no lawful mandate or authority and I proceed to hold that the search of the house and the shop from which exhibits P3 and P5 were recovered was illegal. Further, in Badiru Mussa Hanogi vs Republic [Criminal Appeal 118 of 2020) [2021] TZCA 237 (9 June 2021), a search was mounted without a search warrant and the stolen properties were recovered in the process of the illegal search. The trial court admitted the said properties. On appeal, the Court of Appeal observed the following: "Unfortunately, the trial court did not realize that the motorcycle was illegally seized hence it could have not taken that course. Conversely, it went ahead to receive, admit it as exhibit and acted on it to ground the appellant's conviction." In the case of Shabani Said Kindamba vs Republic (Criminal Appeal 390 of 2019) [2021] TZCA 221 (2 June 2021) the Court of Appeal had this to say: "Since the general rule under the CPA is that search of a suspect shall be authorized by a search warrant unless it falls under the exceptions provided for under section 42 of the CPA, and since the instant case does not fall under any of Page 11 of 19 the exceptions, the search was illegally conducted." From the explained rationale above and the fact that search without warrant is permissible in exceptional circumstances; it was incumbent for the prosecution to disclose the reasons why the warrant was dispensed with. From the record, it is clear that PW2 received information on the alleged stolen properties from the Appellant. The question is why didn’t they obtain a search warrant? In the absence of such clarity and full disclosure, I find it unsafe to assume. Having concluded that the search was illegal, it follows that exhibits P3 and P5 (stolen items) were illegally obtained warranting this court to expunge exhibits P2 and P4 (certificates of seizure) from the court records, as I hereby do. Ultimately, it serves no purpose to discuss the issue of chain custody on the expunged exhibits. Another issue that needs determination is whether the prosecution case can stand without exhibits P2, P3, P4 and P5. The answer is definitely in the affirmative. The prosecution case can stand due to the remaining evidence of the prosecution witnesses as I shall exhibit in the due course. Page 12of 19 On the issue as to whether the chain of custody was not established; the intention of adhering to the chain of custody procedure is to avoid the use of evidence that could be the subject of tempering, substitution, or contamination - see Avyalimana Azaria and 2 Others vs Republic, Criminal Appeal No. 539 of 2015 CAT, at Bukoba. It means therefore that, strictness in observing the chain of custody is put more on the evidence which can easily be tempered with, substituted or contaminated. The above observation is in line with the position underscored by the CAT in numerous decisions such as Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017; and Vuyo Jack vs Director of Public Prosecutions, Criminal Appeal No. 334 of 2016 (both unreported) where it was observed that: "The chain of custody principle should not be treated as a straitjacket but one that must be relaxed when dealing with items which cannot be easily altered, swapped or tampered with" Page 13 of 19 On the issue of whether the appellant's defense evidence was not considered; Mr. Kqsela submitted that the appellant’s evidence was considered at page 19 of the impugned judgment. I visited pages 19, 20 and 21 of the impugned judgment where the trial court in considering the Appellant's defense evidence, made the observation that firstly, he is not trustworthy because he did not give his evidence on affirmation though it was still a duty of the prosecution to prove their case. She added moreover that the evidence of the appellant support prosecution case particularly of PW2, PW6, PW7, PW8, and PW9 that the appellant sold the radio subwoofer, two speakers, remote to PW7 and decoder with remote to PW6. Therefore, the trial court considered defence evidence but found not to have raised any reasonable doubt. This ground of appeal is also dismissed. Thus, ground four has no merit. On the issue that the prosecution failed to observe the requirement of section 289(1) of The Criminal Procedure Act [CAP. 20 R.E. 2019]; I find it apt to reproduce the cited provision of the law which reads: "289. -f I) A witness whose statement or substance of evidence was not read at committal proceedings shall not be called by the prosecution at the trial unless Page 14 of 19 the prosecution has given a reasonable notice in writing to the accused person or his advocate of the intention to call such witness." [Emphases added] The above provision of the law notwithstanding, committal proceedings is conducted on peculiar cases which are triable by the High Court and required to be firstly committed at the subordinate court. For example, murder cases etc. The offence that the appellant was charged with Le., house breaking and stealing are triable by the subordinate courts hence there is no committal proceedings as it was in this case. That being the position therefore, the 5th ground of appeal is a misconception of the law and I hereby dismiss it. Another complaint is that the Appellant was not explained his rights to defend his case after the closure of the prosecution evidence as stipulated under sections 231 and 293 of The Criminal Procedure Act [CAP. 20 R.E. 2019]. I have examined page 37 of the typed proceedings and it clearly exhibit that after the closing of prosecution case and delivering of a ruling establishing a prime facie case; the appellant was informed of his rights before he started to defend himself. For clarity, the same is hereby reproduced: Page 15 of 19 "Court: The accused person is informed of his legal rights in making his defense and he states. Accused: I will give my evidence without oath. 1 have one witness, with no exhibit. I pray (sic)date for. my defence:" The above shows clearly that the appellant was rightly explained and afforded his rights to enter his defence in compliance with the provisions of section 231 The Criminal Procedure Act [CAP. 20 R.E. 2019]. Thus, the 7th ground of appeal is also dismissed. The appellant also complained that the trial court erred when it admitted prosecution documentary exhibits without conducting an inquiry. This ground of appeal need not detain me on the reason that when exhibit PI, a sketch map; and exhibit P6, a copy of the exhibit register, (exhibits P2and P4 (certificates of seizure) have already been expunged from the court records) were tendered in court, the Appellant raised objections and the trial court ruled on the same. However, there was no need for the trial court to conduct an inquiry since the exhibits were neither extra-judicial statement nor cautioned statement. For the purpose of clarity, an inquiry in the subordinate courts is conducted when an accused raises an objection to the Page 16 of 19 admissibility of a confessional statement alleged not to have been involuntarily recorded or not made at all. This position was well illustrated by the Court of Appeal in the case of Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 at Arusha (unreported) . From the above position therefore, the 9th ground of appeal is equally dismissed for wants of merits. Thus, the crucial issue is whether the prosecution side managed to prove its case beyond reasonable doubt having expunged exhibits P2 and P4. In proving the charge, the prosecution called nine witnesses. All nine witnesses consistently testified not witnessing the Appellant breaking into the building. PW2 told the trial court that the Appellant admitted to have stolen the said properties and even took them to PW5 and PW7 who purchased the stolen properties. PW5 admitted to have purchased stolen properties from PW6. PW6 admitted to have purchased from the Appellant. PW7 admitted to have purchased the stolen properties from the Appellant. Further to that PW8 who was an independent witness testified to have witnessed the search and seizure of the stolen properties at PW5’s house and PW7's shop. Also, Page 17 of 19 PW9 the investigation officer testified that on 08.04.2021 PW3 went to the police station and informed him that he received an SMS via his phone showing that his Azam decoder was recharged by PW5 via his mobile number. PW9 called PW5 and asked him about the decoder. PW5 confirmed to him that he had purchased it from PW6. The Appellant in his defense explained that he was neither found at the crime scene nor was he found with any stolen properties or selling the alleged stolen properties. The Appellant took PW2 to PW5 and PW7 the persons whom he was sure that they had in their possession the stolen properties. Further to that, PW3 after he had received the notification that his Azam decoder was recharged by PW5 was able to trace where the decoder was after calling the recharged phone number of PW5. Also, PW6 and PW7 admitted to have purchased the stolen properties from the Appellant. By inference therefore (section 4 of the Evidence Act, Cap 6 RE 2022), the evidence of prosecution witness prove that it was the Appellant who broke into the building. Thus, the first element of the offence was proved beyond reasonable doubt by an oral account of events. Page 18 of 19 The accused who breaks into a building must commit an offence inside the building. In considering the available evidence as summarized above, I find no shadow of doubt raised by the Appellant to damage the prosecution evidence. Nonetheless, the Appellant’s testimony corroborated the evidence of PW2 to the effect that he knew where the stolen properties could be found that was why he took the investigation officer (PW9) to PW5 and PW7. Before I make my final order, I find it apt to consider a sentence of four years imposed on the first count and accordingly reduce it to two years having regard that the appellant is a first offender. Save for the reduction of sentence to two years on both counts; I find the entire appeal to be un-meritorious and I dismiss it. Ordered accordingly. R.A Ebrahim Judge. Mtwara. Page 19 of 19