CRIMINAL APPEAL NO 358 OF 2023 MESHACK SOWO IBRAHIM MNGONI VERSUS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: KEREFU. 3.A., MGONYA. 3.A And MLACHA. J.A.) CRIMINAL APPEAL NO. 358 OF 2023 MESHACK SOWO @ IBRAHIM @ MNGONI....................................... . APPELLANT VERSUS THE REPUBLIC.................. ..... .... ......... ................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mugeta, 3.) dated the 3rd day of March, 2023 in (RM^ Criminal Appeal No. 17 of 2021 JUDGMENT OF THE COURT 14” & 26* March, 2025 MGONYA, J.A.: The Resident Magistrate Court of Njombe at Njombe, charged with and convicted the appellant of two counts to wit; armed robbery contrary to section 287A of the Penal Code, Cap. 16 (the Penal Code) and doing grievous harm contrary to section 225 of the Penal Code. Upon conviction, the appellant was sentenced to 30 years imprisonment for the first count and 3 years imprisonment for the second count. The appellant was also ordered to pay compensation to the victim at the tune of TZS. 2,000,000.00. The said sentences were ordered to run concurrently. It was alleged in the first count that, on 15th October, 2019 at Mani Village within the District and Region of Njombe, the appellant stole a motorcycle with Registration number MC. 309 CBB, make Kinglion the property of Michael Kilasi. It was further alleged that, immediately before stealing, the appellant assaulted the victim with a machete In order to obtain the said motorcycle. In the second count, it was alleged that, on the same date and place, the appellant unlawfully did grievous harm to the victim (Michael Kilasi). In a bid to prove the allegations, at the trial, Michael Kilasi (PW1), a motorcycle rider, testified that, on the fateful date, that is, 15/10/2019 at 06:00 hrs., the appellant boarded him and they headed to Nundu Village in Njombe Region. When they arrived at Nundu, the appellant asked him that, they had to wait for a person who was sending him a chattel. The appellant took his phone to communicate with that person. He then asked for the victim's phone alleging that his phone battery was out of power. PW1 testified that, he gave his phone to the appellant who called a person and gave the phone back to PW1 with an apology that, he deleted PWl's messages accidentally. He testified further that, suddenly, the appellant hit him on the head with a machete. He dropped out of the motorcycle where the appellant hit him again. That, he wanted to run but he could not as he fell down and the appellant wanted to hit him again, but he blocked the hit by his right hand which was injured by a machete. It was further testified that, while PW1 was asking for help from another motorcycle rider who passed at the scene, the appellant also followed that person and complained that, he was the one who was invaded by PW1. As a result, PW1 missed the assistance as the said person decided to ignore them. While PW1 was still pleading for help from the driver of the track which passed nearby, the appellant took his motorcycle and ride it away to a place best known to the appellant. It was PWl's testimony that, the villagers and other motorcycle riders got the information about the incident, hence, they took PW1 to the police station, where they reported the incident. On how he identified the appellant, PW1 testified that, he knew the appellant well as his friend and he was also a motorcycle rider. Further that, when the incident had occurred, he was able to identify the appellant because it was in the morning and there was no darkness, so he could see him clearly. Elaborating further, PW1 stated that, he had been with him for a long time and there was a time when the appellant borrowed his phone to communicate with his relative. He testified further that, as the matter was reported to the police station, he later got the information that, the appellant was arrested. At the police station, it was G. 5093 D/C Boniphace (PW3), who recorded the appellant's cautioned statement, which was tendered in evidence as exhibit PI. Jessam Nyato (PW4), a human doctor, testified that, on 15/10/2020 morning hours, he attended PW1 who was in a terrible situation having two head injuries and one on his right hand. That, due the injury, PW1 was profusely bleeding hence he was admitted for three days for effective treatment and medication. Von Jackson Mgeni, PW2, Ward Executive Officer, testified that, he recorded an extra judicial statement of the appellant on 1/11/2019. However, upon inquiry by the trial court, it found that, the extra judicial statement was recorded contrary to the law, hence it was not admitted. Faraja Chaula (PW5) told the trial court that, she was the owner of the motorcycle which was used by PW1, as a rider on contractual basis. She tendered the motorcycle Registration Card which was admitted in evidence as exhibit P3. In his defence, the appellant (DW1) contested the allegation by prosecution against him. He categorically denied any involvement in boarding PWl's motorcycle and commit the offence. He attacked the extra judicial statement that, the same was not corroborated by any witness. Likewise, to the cautioned statement, where he asserted that, the same was not true. At the conclusion of the trial, the trial Resident Magistrate was satisfied that, the prosecution case was proved beyond reasonable doubt. He thus convicted and sentenced the appellant as indicated above. Aggrieved/the appellant lodged his appeal before the High Court vide Criminal Appeal No. 17 of 2021, the appeal which was dismissed in its entirety for being devoid of merit. Still dissatisfied, he has appealed to the Court. The appellant’s memorandum of appeal was predicated on six grounds of appeal that: 1. Honourable Judge wrongly upheld the conviction and sentence o f the appefiant while the evidence was inconsistence and contradictory; 2. Honourable Judge wrongly upheld the conviction and sentence the appellant basing on visual identification which was very weak; 3. Honourable Judge wrongly upheld the conviction and sentence o f the appellant without considering that caution statement was taken improperly; 4. Honourable Judge wrongly upheld conviction and sentence of the appellant while prosecution failed to prove the case beyond reasonable doubt; 5. Honourable Judge wrongly upheld the conviction and sentence o f the appellant while prosecution failed in identification o fappellant as no identification parade was conducted; and 6. Honourable Judge wrongly upheld the conviction and sentence o f the appellant without considering the doctrine o f recent possession. Hearing of the appeal proceeded in the presence of the appellant in person, unrepresented, whilst Ms, Xaveria Makom.be, learned Senior State Attorney, assisted by Ms, Elise James and Ms. Magdalena Whero, learned State Attorneys, appeared for the respondent, Republic. It was Ms. Whero, learned State Attorney, who submitted first. The appellant opted to hear the response from the respondent while reserving his right to rejoin. Ms. Whero prefaced her submission by notifying the Court that, the 1st and 5th grounds are new which have been raised in this appeal, while the same were not featured in the petition of appeal filed in the first appellate court. She therefore, urged the Court not to determine those new grounds. Having heard the learned State Attorney's concern, we concur with her that, it is the position of the law that, the Court has no jurisdiction to deal with a new ground which was not considered in the first appeal, unless it is on a point of law. That position, has been reiterated by this Court in its various decisions including the cases of Galus Kitaya v. Republic (Criminal Appeal No. 196 of 2015) [2016] TZCA 301 (13 April 2016); TANZLII, Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (6 May 2019); TANZLII and Makende Simon v. Republic (Criminal Appeal 412 of 2017) [2021] TZCA 156 (3 May 2021); TANZLII. In the latter case, it was stated that: "Times without number, this Court has refrained from dealing with such new grounds o f appeal because it does not have the jurisdiction to entertain them on the second appeal. " See also Martin Misara v. Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 318 (13 December 2018); TANZLII. Having reminded ourselves on the above position of the of law and checked the veracity of the complaint, by revisiting the petition of appeal filed before the High Court, we are in agreement with the learned State Attorney that, the 1st and 5th grounds of appeal bypassed the first appellate court hence, we lack the requisite jurisdiction to deal with those grounds. Responding to the 2nd ground of appeal, the learned State Attorney argued that, it is on record that, the victim (PW1) and the appellant (DW1) knew each other before. Also, she contended that, the incident took place during morning hours and PW1 explained the distance he was when observing the appellant. It was the learned State Attorney's stance that, there was no mistaken identity of the appellant. To fortify her argument the cases of Jumapili Msyete v. Republic (Criminal Appeal No. 136 of 2010) [2012] TZCA 297 (23 November 2012); TANZLII; Waziri Amani v. Republic [1980] T.L.R 250 and Frank Joseph @ Sengerema v. Republic (Criminal Appeal No. 378 of 2015) [2016] TZCA 216 (25 April 2016); TANZLII, were referred to. In regard to the 3rd ground, Ms. Whero submitted that, the appellant's complaint on the propriety of the cautioned statement is baseless as the same was dealt with the first appellate court which expunged the cautioned statement from the record. In reply to the 4th ground that the prosecution case was not proved beyond reasonable doubt/the learned State Attorney contended that, the case was proved to the required standard. She submitted that, the appellant was charged with two counts of armed robbery and doing grievous harm. That, it was the evidence from PW1 that, before he was robbed his motorcycle, the appellant hit him with a machete on his head and his right hand. She referred us to page 66 of the record of appeal and submitted that, the evidence of PW1 was corroborated by PW5, the owner of the stolen motorcycle and PW4, a human doctor at TANWAT hospital who testified that, on the material date, he attended PW1 who had injuries on the head and the right hand. It was Ms. Whero's argument that, the two counts were proved beyond reasonable doubt. On the 6th ground that, the doctrine of recent possession was not considered when convicting the appellant, the learned State Attorney contended that, this ground is baseless since, the stolen property was not found in a possession of any person. Basing on what she submitted, the learned State Attorney urged the Court to dismiss the appellant's appeal. In his rejoinder, having heard the respondent, the appellant had nothing useful to rejoin, rather he implored the Court to consider his appeal and set him free. Having considered the submissions made by the parties, the memorandum of appeal filed by the appellant and the authorities cited by the respondent's counsel, the main issue for our determination is whether the appeal has merit. In regard to the 2nd ground of complaint where the appellant faulted the lower court to enter conviction relying on visual identification, we find this complaint is baseless. It is on record of appeal at pages 18-19 that, PW1 knew the appellant before the incident as he was also a motorcycle rider. That, on the material date, PW1 and the appellant being a motorcycle rider and its passenger spent sometimes together. Further that, when they were at Nungu Village waiting for a person known to the appellant, they had conversation as the appellant borrowed PWl's mobile phone to communicate with that person. It was also testified by PW1 that, when all that was happening, it was during morning hours. Further to that, it is on record that, when PW1 was injured, he asked for help from another motorcycle rider who passed by. However, the appellant also followed him claiming that, it was PWl who invaded him, It is trite law that, no court should act on visual identification evidence unless all possibilities of mistaken identity are eliminated and the court is fully convinced that the evidence is water tight. See for instance: Francisco Daudi & Others v. Republic (Criminal Appeal No. 430 of 2017) [2021] TZCA 299 (14 July 2021); TANZLII and Waziri Amani v. Republic (supra). In the latter case it was stated that: ifa t the end o f his examination the Judge is satisfied that the quality o f identification is good, for example, when the identification was made by a witness after a long period o f observation or in satisfactory condition by a relative, a neighbor, a close friend, a workman and the like, we think he could in those circumstances, safely convict on the evidence o f identification." It was the first appellate court's findings that; PW1 was a credible witness and he could not have mistaken the appellant with another person, as they were familiar to each other. On our part, being guided with the position enunciated in the above case in relation to what was testified by PWl during trial, we equally find that, there was strong visual identification of the appellant which eliminated all possibilities of mistaken identity. That being the fact, we find no reason to fault the High Court Judge's findings. Hence, the 2nd ground of complaint lacks merit and we dismiss it. The 3rd complaint concerns the first appellate court to uphold conviction and sentence basing on the cautioned statement which was improperly procured. As rightly argued by Ms. Whero, it is on record at page 131 that, the High Court Judge expunged the cautioned statement after concluding that the same was recorded out of the prescribed period. Therefore, we find that this ground of complaint is unfounded and we dismiss it. Turning to the 4thground of appeal that, the case was not proved beyond reasonable doubt, as alluded to above, the appellant was charged with two counts of armed robbery and doing grievous harm. Going with section 287A which provides for an offence of armed robbery, it is clear that, theft and the use of force before or after stealing are the important ingredients to prove the offence of armed robbery. It was said by the Court in Mshewa Daudi v. The Republic (Criminal Appeal No. 56 of 2018) [2020] TZCA 368 (30 July 2020); TANZLII, that: "Armed robbery is committed when the accused whot at or immediateiy after the time o f stealing, is armed with any dangerous or offensive weapon or instrument and uses the same to threaten violence on the person o f the complainant or is in company o f one or more persons." In the instant appeal, it was the prosecution's evidence that, before stealing a motorcycle, the appellant had a machete which he employed to cut and injure PW1 before he robbed his motorcycle and ran away with it. It is undoubted that, a motorcycle is a property capable of being stolen, and it is in evidence that, after the robbery incident, the same was not recovered, an act which implies that, the appellant took it in order to retain it permanently as if it was his own property. In the circumstances, we hold that the prosecution case proved the first count of armed robbery beyond reasonable doubt. Likewise, on the second count of doing grievous harm, PW1 testified that, in the course of stealing his motorcycle, the appellant hit him with a machete and injured him on his head and the right hand. His testimony was corroborated with what was testified by PW4, a human doctor who attended PW1 and found him with fresh wounds Which had 5cm width and 3cm depth inflicted by a sharp object. PW4 went further to testify that, following the said injuries, PWi was admitted for three days. He also tendered the PF3 which was admitted in evidence as exhibit P2. With that evidence from prosecution witnesses, we are satisfied that, the prosecution managed to prove the two counts against the appellant beyond reasonable doubt. Hence, this ground of appeal is devoid of merit and we dismiss it. In the 6th ground of appeal, it was a complaint that, the doctrine of recent possession was not considered. The circumstances in which the court may invoke the doctrine of recent possession were discussed by the Court in the case of Joseph Mkubwa & Another v. Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 243 (21 June 2011); TANZLII that: "Where a person is found in possession o f a property recently stolen or unlawful obtained,, he is presumed to have committed the offence connected with the person orplace wherefrom the property was obtained. For the doctrine to apply as basis o f conviction, it must be proved first, that the property was found with the suspect; second that the property is positively proved to be the property o f the complainant; and lastly, that the stolen thing constitutes the subject o f the charge against the accused..." In the instant appeal, we have taken time to revisit the evidence adduced by the parties and the judgment of the lower courts. It is clear from the record that, the doctrine of recent possession was neither discussed nor form the basis of the appellant's conviction. Further, the lower courts did not invoke the doctrine of recent possession because, there was no recovery of the stolen motorcycle, although the appellant was arrested after the incident. Therefore, the 6th ground of appeal is unfounded. From the above analysis, we find no merit in this appeal and dismiss it in its entirety. DATED at IRINGA this 25th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person and Mr. Amani Kyando, learned State Attorney for the Respondent/Republic; is hereby certified as a true COURT OF APPEAL