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. 13358 OF 2024 RASHIDI OMARY NYUKUTU —......... ............................. - Ist APPELLANT KHALFAN1 ABILAH MTALIKA ——.................... 2«d APPELLANT VERSUS THE REPUBLIC....................................... -........ -- — RESPONDENT Dale of last order: 08.07,2024 Date of Ruling: 07.08.2024 JUDGMENT Ebrahim, J,; The Appellants and five others namely Hamza Shaibu Salum, Madaraka Salum Denis, Baraka Christopher Amani, Salum Hassan Mnyenga and Shamira Msham Hassan! not a party to this appeal were charged, convicted and sentenced at the District Court of Newala at Newala for the offence of having possession of goods suspected of having been stolen or unlawfully acquired contrary to section •312(1)(b) of the Penal Code [Cap. 16 R.E 2022J (count number two, Page 1 of 18 three, four, five, six, seven and eight). Eventually, the trial Magistrate found that the Appellants and four others namely Hamza Shaibu Salum, Madaraka Salum Denis, Baraka Christopher Amani and Salum Hassan Mnyenga were found in possession of the stolen properties hence connecting them directly with the charged offence of having possession of goods suspected of having been stolen or unlawfully acquired. The trial court sentenced them to six months imprisonment and each to pay a fine of TZS. 50,000/-. Shamira Msham Hassani who was the 7th accused was acquitted. Aggrieved by the decision of the District Court, the Appellants have lodged an appeal in this court raising four grounds of appeal challenging the trial Magistrate for having wrongly applied the doctrine of recent possession to convict the Appellants and that the prosecution case was not proved beyond reasonable doubt. They also raised a claim that the trial court did not properly evaluate the weight of the evidence. Page 2 of 18 When the case was called for hearing, the Appellants were represented by Mr. Mkali, and Suleikha learned Advocates while the Respondent was represented by Mr. Kasela, learned State Attorney. In support of the appeal the learned Counsel for the Appellants opted to argue the 1st, 2nd and 3rd grounds of appeal together; and the 4 ground separately. On the H 2nd and 3rd grounds of appeal on the issue of burden of proof he submitted that in criminal cases, it is the duty of the prosecution side to prove the alleged offence beyond reasonable doubt contrary to what transpired in this case. Mr. Mkali argued that prosecution did not bring and witness to prove ownership of the stolen property. He explained that PW3 did not explain if the warehouse that was used to keep the cement bags was broken into and what were the items that were stolen from it. He said fact that PW3 found the 1d accused with two bags of cement on his motorcycle does not prove that he is a thief. He argued further that the fact that the 1st Appellant was found with the binding wire in his house did not prove that he was a thief because there is no single prosecution witness who Page 3 of 18 proved before the court that those pieces of wire are the property of the victim. Counsel for the Appellant submitted further that, the 2^ Appellant, the fact that he was found with the marine boards in his house does not mean that it was a stolen property as there was no evidence by the prosecution to prove the ownership of the said marine boards the fact that does not which preclude the 2nd Appellant to own the said property. He referred to the explanation availed by the 2nd Appellant testified before the court that the said marine boards were his property given to him as “scraps" after “Mwenge wa Uhuru". Therefore, the trial Magistrate erred in convicting him without confirmation as to who is the owner of the said property. Mr. Mkali referred this court to the case of Paulo Maduka & Others vs Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69 (28 October 2009) page 15. He thus prayed for the grounds of appeal to be allowed and the Appellants be set at liberty. On the 4m ground of appeal on the issue of failure to evaluate evidence, he submitted that the 2nd Appellant was charged with the Page 4 of 18 offence of being found with the marine board which was not brought in court as an exhibit. He stressed his prayer that the appeal be allowed. On other side Adv. Suleikha submitted that the 2nd Appellant was convicted on the reason of being mentioned by the 1st accused one Hamza: Shaibu Salum. Thus, the trial Magistrate shifted the burden of proof on the reason that they did not explain how they acquired the stolen properties submitted Advocate Suleikha. In reply, the learned State Attorney, responded on the 1st, 2nd and 3rd grounds of appeal that the Republic proved the case against the Appellants beyond reasonable doubt. He referred to the testimony of PW2 who testified that the Is* accused told her that he stole the properties from the crime scene. He made further reference to Section 31 of the Evidence Act, Cap 6 R.E 2022 which speaks of the relevance of information from the accused person on the charged offence and Section 33(1) of the Evidence Act, Cap 6 R.E 2022 on the admissibility of confession by the accused to a fellow accused. He said the burden of proof did not shift to the accused because the Page 5 of 18 accused also was responsible to explain to the court on how they owned the properties that they were found with and they also did not cross-examine PW2 meaning that they agreed with her testimony He referred to the case of Nyerere Nyague vs R, Criminal Appeal No. 66 of 2007. On the 4th ground of appeal, he submitted that the trial Magistrate correctly evaluated the evidence of the case. He referred again to the testimonies of PW1 and PW2 who managed to apprehend the properties at the houses of the Appellants. He urged this court being the first Appellate court can evaluate the on record and reach to its own conclusion. He to prayed for the appeal to be dismissed. In brief rejoinder, Mr. Mkali referred to section 33(2) of the Evidence Act, Cao 6 Re 2022 where the trial court based its conviction on the basis that the Appellants were mentioned by their co-accused and mentioned argued it that by being does not mean that they confessed to have committed the offence. He qualified that the purpose of section 33(1) requires them to mention each other at the police. Adv, Suleikha also referred to section 3'1 of the Evidence Act Page 6 of 18 as relied upon by the Counsel for the Respondent on the relevance of information and said that PW2 was WEO thus, section 31 applies where the accused is in the custody of the police and not otherwise. Having followed the submissions above, the bone of contention here is whether the doctrine of recent possession properly invoked to base the conviction of the Appellants. As records would reveal, It is clear that the conviction of the Appellants was pegged on the doctrine of recent possession. The trial Magistrate after hearing the evidence from both sides and make the analysis and evaluation of evidence, he made a finding that the Appellants were mentioned by DW1 one Hamza Shaibu Salum who was found with the two stolen two bags of Dangote cement. While DW1 managed to give explanation as to how he got the cement; the 1st Appellant was found with binding wire, 10 pieces of iron steel and 2 pieces of glasses of which he claimed other items to be his and others were of one Madaraka Salum Denis (3rd accused), not party to this appeal i.e., his landlord. The 2nd Appellant was found with a marine board which he claimed to have been given by the Page 7 of 18 contractor who constructed the stage for the function of the "Mwenge wa Uhuru” Section 312 (1) (b) of the Penal Code, Cap 16, RE 2022 provides as follows: "Any person who- (b) is found by a police officer in possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired, may be charged with being In possession of, or conveying, or having control over, as the case may be, the property which is suspected of haying been stolen or otherwise unlawfully acquired and shall, if he fails to satisfy the Court that he did not steal or otherwise unlawfully acquire the property, be guilty of the offence with which he is charged and be liable, on conviction, to imprisonment for a term not exceeding three years." From the above provision of the law, it may be paraphrased that to prove the charge of unlawful possession of goods suspected to be stolen, the prosecution should cumulatively establish first that the property was found with the suspect second, that the property is Page 8 of 18 positively the property of the complainant third, that the property was recently stolen from the complainant; and fourth the stolen thing in possession of the accused constitutes the subject of the charge against the accused. The above elements were observed in the case of Joseph Mkumbwa & Another vs. Republic (Criminal Appeal No. 94 of 2007) [2011] TZCA 118 (23 June 2011). The Court of Appeal, in discussing the same issue in the case of James Kisabo ©Mirango and Another vs. The Republic, Criminal Appeal No. 261 of 2006, quoted with approval the case of Alhaj Ayub @ Msumarl & Others vs. R, Criminal Appeal No. 136 of 2009 (Unreported) which held that for a doctrine of recent possession to apply; it must be positively proved that the property was found with the suspect; property is positively the property of complainant; property stolen from the complainant; and that if was recently stolen. The court expounded further on the acceptable evidence to prove the offence where it held that: Page 9 of 18 “In order fo prove possession, there must be acceptable evidence as to the search of the suspect and recovery of the allegedly stolen property, and any discredited evidence on the same cannot suffice, no matter from how many witnesses". [Emphasis added] I am mindful of the fact that this is the first appeal, therefore I am obliged without fail to subject the entire evidence into objective scrutiny in seeing as to whether the doctrine was properly invoked. Starting with the propriety of the search and seizure. Section 38 (1) of the Criminal Procedure Act [Cap. 20 R.E 2022] provides that: "38. -fl] 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, carnage, 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 if 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 Page 10 of 18 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 a 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. The above provision of the law is read together with Paragraph 18 (a) - (9) of the Police General Orders No. 226. In my perusal over the record, I came across exhibits PE9, PEI0, PEI 1, PEI 2, PEI 3, and PEI 5 which are certificates of seizure for the alleged stolen goods. The said documents are read to have been recorded by G4722 CPC Joseph (PW1), In finding the authenticity of the said exhibits and their connection with the case at hand, I took trouble to go through the whole testimony of PW1 in the trial court record and Page 11 of 18 noticed that the PWl’s testimony was to the effect that, he was assigned by OC-CIO to go at Nambunga area to conduct search after obtaining information on the stolen of goods at Nambunga health centre. The said witness further stated that they went with suspects of the offence, WEO (PW2) and VEO one Oswin Kumbulu as an independent witness. The record transpires that they conducted a search at the 1st Appellant's house and four others namely Madaraka Salum Denis, Baraka Christopher Amani, Salum Hassan Mnyenga and Shamira Msham Hassani. He said that in their house they found; 7Kg mixed size of nails, 3 pieces of iron steel, binding wire, one glass, 10 iron steel, 7 pieces of iron sheet, 5 bags of Dangote cement sand paper and 2 /a Kg of mixed nails were seized (exhibits PE9, PEI 0, PE 11, PEI 2, PEI 3, PEI 5) which were alleged to be the stolen properties. From the look of it, the search was not at all an emergency one. PW1 had time to arrange the seizure by alerting and acquiring assistance of independent witnesses. PW1 did not state anywhere that the search was an emergency one and in fact he had time to arrange for the search of the Appellants' residence. From the evidence of PW1,1 find that there was time to secure a search warrant or a written Page 12 of 18 authority to allow him to conduct the search as required by law. I am of the firm view that the absence of a search warrant questions the legality of the search itself. It is obligatory to appreciate the rationale for the requirement of the search warrants as it is considered to be a civilian’s pillar to lean on as a Constitutional Right to dignity and privacy of a person. In the circumstances therefore, I expunge from the record exhibits PE9, PEI 0, PEI 1, PET2, PEI 3, PEI 5 for having being seized without foliowing the set legal procedure. As to whether the doctrine of recent possession was properly invoked. Beginning with the first requirement that the property must have been found with the accused (Appellants), the testimonies of PW1 and PW2 Would shade some light. PW1 G.4722 CPL Joseph police officer Who conducted the search at the Appellants’ house by using the information received from the suspect (DW1) stated that when the Appellants were searched, the 1st Appellant was found with binding wire which was one among the stolen properties. During the search, there was WEO, (PW2) and VEO, one Oswin Kumbulu as an independent witness who also signed the certificate of seizure. Page 13 of 18 PW2 testified that the 2nd Appellant was found with a ring boqrd/ring- bim (exhibit PEI 7). However, after going through the trial court records, I did not find the certificate of seizure tendered before the trial court. PW2 also stated that the stolen properties were found with the Appellants. The 1si Appellant (DW2) in his defense stated that the said binding wire is his property which he bought for his own construction process. Also, the 2nd Appellant [DW6] in his defense stated that Engineer Msamaii gave him one marine board which remained at the project of “Mwenge wa uhuru". As alluded earlier, the principles of application of the doctrine of recent possession are cumulative. The question now arises as to whether the properties were positively identified as the properties of the complainants and they have been recently stolen. The case laws go further to require description of the properties by their distinctive mark. This principle has been well discussed in the case of Ally Bakari and Pili Bakari v R [1992] TLR 10 cited case in Fredrick Page 14 of 18 William & Others vs Republic (Criminal Appeal 73 of 2009) [2011 ] TZCA 81 (31 January 2011) if Was stated as under: "It is essential for a proper application of the doctrine of recent possession, that the stolen thing in the possession of the accused must have a reference to the charge laid against the accused. That is to say that the presumption of guilt can only arise where there is cogent proof that the: stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged, and, no doubt, if is the prosecution who assumes the burden of such proof/' PW1 and PW2 testified before the trial court that on 04.12.2022 they seized the stolen properties of Newala Town Council (complainant) from the Appellants. However, there was no any member from Newala Town Council who was called to testify on the alleged offences to identify and to describe the properties which were found with the Appellants or any other accused persons for that matter. The observation of the trial court reveals that during the search the Appellants and the four others were found with different kinds of building materials which were seized and tendered in court as exhibits. The Appellants and other accused person claimed to be the Page 15 of 18 owners of the sold properties. Therefore, it was not correct for the trial court to accept the building materials to be of Newala Town Council. In respect of the admitted stolen properties, there was no evidence that such materials were stolen nor that they belonged to the complainant The properties being normal trade Items, had was no demonstration of any unique features or marks on such items to assist prosecution witnesses in specifically identifying them as the property of Newala Town Council. There was therefore no credible evidence to prove that the recovered goods had any relation with the complainant to the exclusion of any other person. Clearly, with the above shortfalls, particularly the failure to positively prove ownership of the recovered properties to have been owned by the complainant, the doctrine of recent possession was improperly invoked in view of the principles in Joseph Mkumbwa & Another vs. Republic (Supra). From the above, I find that the doctrine of recent possession coupled with the fact that there was no search warrant, was not rightly invoked. Page 16 of 18 Before I pen off, I feel obliged to discuss on the sentence imposed to the Appellants. The Appellants and other five accused persons namely Hamza Shaibu Saium, Mddaraka Sqlum Denis, Baraka Christopher Amani and Salum Hassan Mnyenga were convicted under section 312 (1) (b) of the Penal Code [CAP. 16 R.E. 2019] and sentenced to six months imprisonment and: each to pay a fine of TZS, 50,000/=. Shamira Msham Hassani, the 7th accused was acquitted. Section 312 (1) (b) of The Penal Code [CAP. 16 R.E. 2019] provides that: “fat ........................... .......... ........................ ........ (b)is found by a police officer In possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired, may be charged with being in possession of, or conveying, or having control over, as the case may be, the property which is suspected of having been stolen or otherwise unlawfully acquired and shall, if he fails to satisfy the: Court that he did not steal or otherwise unlawfully acquire the property, be guilty of the offence with which he is charged and be liable, on conviction, to imprisonment for a Page 17 of 18 term not exceeding three years.” [Emphases is mine] From the above back ground I allow the appeal and proceed to quash and set aside the convictions and sentences imposed against the Appellants and order their immediate release from prison unless lawfully incarcerated thereat in connection with other lawful causes. R.A Ebrahim JUDGE Page 18 of 18