Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 32460 OF 2024 (Originating from the decision of the District Court of Masasi at Masasi in Criminal Case No. 133 of2023) HAMISI HAMAD MAULID.............................................. APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT JUDGMENT 17h February & 18n March, 2025 MPAZE, J.: In the District Court of Masasi at Masasi, the appellant, Hamisi Hamad Maulid, was charged with two offences. The first count was being armed with an instrument with the intent to commit an offence, contrary to section 298 (a) and (c) of the Penal Code [Cap 16 R.E 2019, now 2022] (the Penal Code). The particulars of the offence alleged that on 29th June, 2022 at around 01:00 hrs in the Mwenge area within Masasi District, Mtwara Region, the appellant was unlawfully armed with various tools, including a hammer, i hacksaw, scissors, screwdrivers, keys, candles, a chisel, and a small scissor, with the intent to commit an offence. The second charge was criminal trespass, contrary to section 299 (a) and (b) of the Penal Code. The particulars of the offence alleged that on the same day, 29th June, 2022 at around 01:00 hrs, in the Mwenge area, the appellant unlawfully entered the house of Heri Thabit. The appellant pleaded not guilty to both counts, prompting the prosecution to call three witnesses and tendered exhibits to prove the charges. In his defence, the appellant was the sole witness and tendered no exhibits. The facts leading to this appeal are as follows; On 29th June, 2022 at around 01:00 hrs , Heri Thabit (PW1) was at home when he heard a sound from his compound. Upon investigating, he saw two people approaching his shop door. He took a stick (gongo) and followed them. One of the intruders quickly jumped the fence, but PW1 caught the other. He called for help, and neighbours arrived to assist in controlling the suspect. PW1 then reported the incident to the chairman, who inspected the suspect's bag containing tools such as a hammer, hacksaw, scissors, 2 screwdrivers, keys, candles, a matchbox, and a chisel. PW1 then took the suspect and the bag to the police station. At around 01:00 hrs, CPL Anselimo (PW2) received the appellant at the police station. He was brought by PW1, with his hands tied. After hearing PWl's account, PW2 untied the appellant and inspected the bag, which contained tools. An inspection form, certificate of seizure, and receipts were signed by the appellant and PW1. The bag and inspection form were admitted as Exhibits P2 and P3 respectively. At 08:00 hrs, D/CPL Yegela (PW3) recorded the appellant's caution statement, in which the appellant confessed to the offence. The statement was admitted as Exhibit Pl. The appellant denied the charges, claiming he was with his friend John and was arrested while attempting to get fuel for their motorcycle. However, the trial magistrate found the prosecution's evidence convincing and convicted the appellant. He was sentenced to three years imprisonment for the first count and six months for the second, with both sentences running concurrently. 3 Dissatisfied with the conviction and sentence, the appellant lodged this appeal equipped with four grounds of appeal as follows; 1. That the trial court erred in law and fact by convicting the appellant basing on a defective charge 2. That the trial court erred in law and fact by convicting the appellant while the prosecution did not call crucial witnesses to connect the missing link 3. That the trial court erred in both law and fact by convicting by admitting the caution statement without conducting inquiry since it was objected by the appellant 4. That the trial court erred in both law and fact by convicting the appellant while the trial court did not consider the defence of the appellant. During the hearing, the appellant appeared unrepresented, whereas the respondent/ Republic enjoyed the service of Mr. Edson Lawrence Mwapili, the learned State Attorney. 4 When the appellant was invited to argue his appeal, he requested his grounds of appeal be considered and asked for his acquittal without further explanation. The State Attorney, however, submitted that after thoroughly examining the petition of appeal, the trial court's judgment, and the proceedings, he supported the appeal on all grounds, save for the first, which stated that the appellant was convicted based on a defective charge sheet. For the remaining grounds, the State Attorney admitted that they were valid. He further pointed out that although the appellant did not explicitly state it in his grounds of appeal, a review of the trial court record revealed that the prosecution failed to prove the case beyond a reasonable doubt. The State Attorney emphasized that according to PW3, the appellant was brought to the police by PW1, carrying a bag with various items, including weapons. Upon arriving at the police station, PW3 conducted a search and seized the items. However, during the trial, PW3 sought to tender an inspection form, which was admitted as Exhibit P2, but as shown on page 22 of the trial court proceedings, the exhibit was admitted without being read out in court, 5 contrary to Exhibit Guidelines. Due to this omission, the State Attorney argued that Exhibit P2 should be expunged from the record. Furthermore, the State Attorney noted another procedural irregularity. On the same page of the proceedings, a ruling was made to admit a bag as an exhibit, yet PW3 never formally requested to tender the bag as an exhibit. This also violated the Exhibit Guidelines, and as a result, the bag should be expunged from the record. The State Attorney concluded that, with regard to the first count, the prosecution failed to prove the offence because crucial evidence namely, the inspection form, the bag, and the weapons found inside were not properly tendered and admitted in court. Additionally, the certificate of seizure was never tendered as exhibit. As a result, the prosecution failed to establish whether the appellant was in possession of the alleged weapons. Mr. Mwapili further contended that another issue arose from the evidence of PW2, which relied on a caution statement. He argued that the caution statement (Exhibit Pl) was admitted in violation of the law. Referring to page 11 of the trial court proceedings, he stated that PW2 sought to 6 tender the caution statement as an exhibit, but the appellant objected, claiming that he was forced to sign it and beaten with a wire. According to legal practice, when an objection to the admissibility of a caution statement is based on allegations of torture, the trial court is required to stay the proceedings and conduct an inquiry. This procedure was not followed, and the caution statement was admitted as exhibit Pl. Mr. Mwapili argued that, as a result of this failure, the exhibit should be expunged from the record. He further stated that without the caution statement, it would be difficult to conclude that the prosecution had successfully proven both charges against the appellant. Additionally, he highlighted another weakness in the prosecution's case the failure to call key witnesses, such as the police officer who drew the sketch map, which could have confirmed whether the appellant went to PWl's house. Furthermore, the exhibit keeper was not called to testify, leaving the chain of custody of the exhibits in question. In light of these shortcomings, Mr. Mwapili concluded that the prosecution failed to prove the case beyond a reasonable doubt and therefore prayed for the appellant's acquittal on both counts. 7 The appellant had nothing to rejoin. Having considered the submissions of the State Attorney, the grounds of appeal, and the trial court record, I am now in a position to determine the merits of this appeal. Apart from the second ground, the remaining grounds concern procedural irregularities, and I will address them first. Starting with the first ground, the appellant alleges that the charge sheet was defective but fails to specify the exact nature of the defect. The State Attorney did not make any submissions on this ground, focusing instead on the other grounds of appeal. Upon examining the charge sheet, it is clear that the appellant was charged with two counts; being armed with instrument with intent to commit an offence under section 298 (a) and (c) of the Penal Code, and criminal trespass under section 299 (a) and (b) of the Penal Code. The particulars of the offences outlined the necessary elements to inform the appellant of the charges and their seriousness. It is well- established law that a charge sheet must state the specific offence, reference to the correct section of the law, and provide details of the offence, covering 8 all the essential elements. See Joseph Paul @ Miwela v. R (Criminal Appeal No. 379 of 2016) [2018] TZCA 480 (16 May 2018). In this case, the charge sheet met the required legal standards, and I find the appellant's complaint regarding its alleged defect to be without merit. Regarding the appellant's complaint that the caution statement was wrongly admitted due to the trial court's failure to conduct an inquiry after the appellant objected, Mr. Mwapili conceded this ground, acknowledging that the admission procedure contravened the law. The trial court record reveals that during his testimony, PW2 sought to tender the caution statement as an exhibit. However, the appellant objected, claiming the signature on the statement was not his original signature. PW2 responded, asserting that it was indeed the appellant's signature. The appellant then raised another objection, claiming he was forced to sign the statement and was beaten with a wire, although he did not attend the hospital and lacked a PF3. Despite these objections, the trial magistrate overruled the appellant's claims without conducting an inquiry and admitted 9 the statement as exhibit Pl. The relevant excerpt from the trial proceedings on page 11 reads as follows; ' Witness: This is his signature the statement is of accused and is who signed it. Accused: I was forced to sign and I was beaten by wire, but I did not attend hospital as I had no PF3. Ruling: The accused has no PF3 and was not treated at hospital, therefore his argument has no support, therefore his objection is overruled. The statement is admitted in Court as exhibit Pl.' As stated by the State Attorney, when an accused object to the admission of a caution statement on the grounds of voluntariness, the trial court must conduct an inquiry to test its voluntariness. This is established law, as noted in the case of Manyanqu Manq'wena @ Mluqaluqa & Another v. R (Criminal Appeal No. 227 of 2012) [2015] TZCA 68 (21 July 2015), where the Court of Appeal held; '... when the admissibility ofa cautioned statement is objected to on the ground of voluntariness, the trial court has to stop the main trial, and conduct an inquiry or a trial within trial. After a trial within trial, the court would then decide whether the statement was voluntarily made, in which case, it will admit it or that it was not voluntarily made, in which case, it will reject it.' io Similarly, in Michael John @ Mtei v. R (Criminal Appeal No. 202 of 2010) [2011] TZCA 393 (31 May 2011), the Court held: '...a trial within a trial should be held to determine not only the voluntariness or otherwise of an alleged confessional statement but also whether or not it was made at all...' In light of these authorities, it is clear that the trial court failed to conduct the inquiry into the voluntariness of the appellant's caution statement. As established in Makumbi Ramadhani Makumbi & Others v. R (Criminal Appeal No. 199 of 2010) [2013] TZCA 360 (27 November 2013), the failure to conduct a trial within a trial constitutes a fundamental and incurable irregularity, which results in the confessional statement being expunged from the record. Guided by these principles, I agree with both the appellant and the State Attorney that the caution statement was wrongly admitted, and the appropriate remedy is to expunge it from the record. Therefore, this ground has merit. About the complaint that the defence case was not considered, I have carefully reviewed the trial court judgment. It is clear that the trial magistrate did not summarize or address the appellant's defence when analyzing the li issues for determination. Instead, the magistrate solely relied on the prosecution's case, which amounts to an unfair trial. It is trite law that the defence case must be considered when analyzing the issues for determination, even if the court ultimately rejects it. As this is the first appellate court, I am in a position to re-evaluate the entire record to determine whether the trial court's failure to consider the defence case resulted in a miscarriage of justice. I will address this issue in the discussion on whether the prosecution proved its case beyond a reasonable doubt. Moving to the complaint regarding the prosecution's failure to call crucial witnesses to connect the missing link, I find that this complaint pertains to the issue of whether the prosecution proved its case beyond a reasonable doubt. It is essential to assess whether the evidence provided by the prosecution, despite the absence of these witnesses, was sufficient to meet the required standard of proof. In criminal cases, it is the duty of the prosecution to prove their case beyond reasonable doubt, and what the accused is required to do is only to raise doubt in respect of the prosecution case. See the case of Bakari 12 Selemani @binyo v. R (Criminal Appeal 12 of 2019) [2021] TZCA 100 (9 April 2021). In order for the prosecution to prove the first count that the appellant was armed with an instrument with the intent to commit an offence it was necessary to establish that the appellant was found in possession of the armed instruments. To meet this requirement, the prosecution had to demonstrate that the appellant was in actual possession of items such as a hacksaw, hammer, chisel, screwdrivers, and other tools which could be used for committing a crime, and that these items were intended to be used for such unlawful purposes. However, the prosecution failed to prove this crucial element. While PW1 testified that he caught the appellant with a bag containing these items, and PW3 described inspecting the bag, the lack of proper tendering and admission of this bag and its contents as exhibit led to a failure in proving that the appellant was indeed armed with the instrument with intent to commit a crime. Furthermore, the irregularities surrounding the admission of exhibit P3 (the bag containing the tools) and the failure to properly establish the chain 13 of custody make it impossible to conclusively say that the appellant was in possession of the armed instruments. Without this proof, the prosecution failed to meet the burden of establishing the first count beyond a reasonable doubt. As for the second count of criminal trespass, the prosecution was required to prove that the appellant unlawfully entered the premises of PW1 with the intention to commit an offence. Under section 299 of the Penal Code, to establish criminal trespass, the prosecution must show that the appellant's entry was accompanied by a specific intent, such as causing annoyance, committing assault, or intending to carry out a crime within the premises. However, the prosecution failed to establish the appellant's intent. While PW1 testified that the appellant was apprehended near his shop, no evidence was presented to prove that the appellant entered the premises with any particular intention, such as to cause harm or commit an offence. Furthermore, the prosecution failed to call material material witnesses, including the neighbours and the chairman, who could have provided crucial testimony regarding the appellant's intentions and actions when he was found inside the compound. 14 It is a well-established principle of law that no specific number of witnesses is required to prove a fact, as set out under section 143 of the Evidence Act. This is evident in the case of Sistv Reuben v. R (Criminal Appeal No. 280 of 2022) [2024] TZCA 1083 (8 November 2024), where the Court held that whether or not to call a witness depends on the circumstances of the case and the relevance of that witness's evidence. In this case, the neighbours and chairman were key witnesses, as their testimony could have helped establish the appellant's presence and intent within the premises. The failure to call these witnesses undermines the prosecution's case. In the absence of this key testimony, this court has no option but to draw an adverse inference from the prosecution's failure to call material witnesses, which benefits the appellant. Consequently, the prosecution failed to meet the required legal standard to prove criminal trespass beyond a reasonable doubt. In conclusion, the prosecution's failure to prove both the first and second counts beyond a reasonable doubt due to evidential gaps and procedural irregularities led to a failure in meeting its burden of proof. As 15 such, the appeal is allowed, the conviction is quashed, and the sentence is set aside. The appellant is to be released forthwith unless otherwise lawfully held. It is so ordered. Dated a^Mtwana.this 18th day of March, 2025 Court: Judgment delivered# Mtwara on this 18th day of March, 2025 in the presence of Mr. Edson Lawrence Mwapili State Attorney, and the appellant. 16