emmanuel lushona ndama vs the republic 2024 tzhc 877 15 march 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISSTRICT REGISTRY) AT SUMBAWANGA DC CRIMINAL APPEAL NO. 02 OF 2023 (Originated from Miele District Court in CriminaLCase Noril22 of2021) EMMANUEL LUSHONA NDAMA ... ^APPELLANT Mb VERSUS N THE REPUBLIC . RESPONDENT ...... | JUDGEMENT 'W w 12h December, 2023 & 1?‘ Mar^202%^ MRISHA, J This isfan appeal from the'Dlstrict Court of Miele at Miele (the trial court) yyhich theiappellant Emmanuel Lushona @Ndama and one la, Juma Mihangija@Machimu who is not part of the present appeal, were charged with one count of Demanding property with menaces with intent to steal contrary to section 292 of the Penal Code [Cap 16 R.E. 2019] (the Penal Code). 1 It was alleged that on 14*h and 15th of December, 2021 at Ilunde village within Miele District in Katavi Region, with intent to steal, the appellant in cooperation with his co accused jointly and together demanded with menaces cash money to wit; Tshs 1,800,000/= from one Oscar Jackson so that they could not kill him. On 21st December, 2021 the charge sheet wasWadggver aripfexplained to the appellant and his co accused wnqhJ^leadld ..ngWguilty thereto. Consequently, the prosecution Republi^alled cRfetal Wfour witnesses and Verily, the appellant,and his felloyi/w^re granted bail by the trial court, but they thereaftengtook ^Btheftfcieels.jHlbwever, on 14th April, 2022 the appellant was^ppre^nded a|d his bail was cancelled while the efforts to section 226fltggf|the Criminal Procedure Act Cap 20 R.E. 2019 (Now R.E 2022). It is on record that apart from testifying against the then second accused person, the said four prosecution witnesses also testified against the 2 appellant who upon being found with a prima facie case, fended for himself as DW1. Ultimately, the appellant was convicted and sentenced to serve the imprisonment sentence for a term of five (5) years in jail. The appellant is disgruntled with both conviction and sentence; he has thus, preferred the present appeal before this court'through a Petition of appeal which contains two grounds of appealjlwhich^can 'cbnyeniently be mentioned as hereunder 1. That the trial court erred 4n^fa<fe^^\^.ffigonyict the accused on The a p pea [was heal'd by way of oral submissions with the appellant being present withouffany legal representation while the respondent Republic was represented by Ms. Atupelye Makoga, learned State Attorney. In the course of making submission, the appellant prayed to adopt his grounds of appeal in order to form part of his submission in chief. He also .3 prayed that his grounds of appeal be considered and his appeal be allowed so that he can be set free. On her part, Ms. Atupelye Makoga submitted that she opposes the appeal and supports both conviction and sentence of the trial court. On the first ground of appeal, she argued that the prosecution Republic proved their case in accordance with section 3(2) of the LawtoEEvidence-Act; sheadded ments oltae Wence, namely one, the appellant intended to^^al, Wo, demandingBproperty of another person and. three, using, a^threat inygceiWig pnfeerty. Continuingly, she^submfced Wat the tpree elements were proved by PW1, the victim of ffi^haSed offeree, who in his testimony narrated what had transpired betvyeen him and the appellant. That the appellant went to PW1 and informed himWat tffere were some persons who had been sent to kill him; hencKhe^0ant some money from him in order to change the mission. The learned counsel referred the court to page 20 of the trial court typed proceedings and further argued that the evidence of PW1 was 4 corroborated by the evidence of PW4 and PW2 who are police officers maintaining that their evidence proved the offence of appellant charged with. To buttress her position, she cited the case of Jonas Nkize vs Republic [1992] TLR 213. In regards to the second ground of appeal, the learned State Attorney backed the decision of the trial court based oOhe.: prosecution evidence which according to her, was watertight. lShe also referred; the court to page 8 of the trial court typed j^m^g^hei^Tlje trrakmagistrate had the following to say, "It is a principle t^at thbr'accijsedpcannot be convicted on his Wk ' lib weakness£f$is evi^en^pmthe^^^ prosecution case must prove the guilty on^eac^^d/^^ More|so, she "added ^hat the trial court convicted the appellant after considering the evidence of PW1 whose evidence was corroborated by evidence of PW2 and PW4 and supported by documentary evidence, the appellant's (accused) caution statement which was admitted as exhibit 5 Lastly, she maintained that confession made by the appellant was the best evidence to be relied against him. To cement her stance, she cited the case of Ally Mohamed Mkupa vs Republic, Criminal Appeal No. 2 of 2008(unreported). She therefore, prayed for the dismissal of the appeal in its entirety. "T-. On his part, the appellant said that he had ndfhipg. to rejoin, rather he reiterated his previous prayer to the court to CQnsjperwiiS>; grounds of Having heard the rival submissions oftbpth parties and authorities cited by Pl- the learned counsellor ?|e respondent Republic and considered all the issue for the determination isWhether the appellants appeal filed with this It shoulq|be remerribered that in criminal cases the standard proof is on beyond reasonffifi' doubt for the accused person to be found guilty and convicted of the offence charged. The prosecution Republic must prove all elements of the offence and the burden of proof rests throughout with the prosecution Republic. That means, the .one who allege he must prove; See 6. Christian Kaale and Rwekiza Bernard v Republic [1992] TLR 302, where it was stated that: "The prosecution has a duty to prove the charge against the accused beyond all reasonable doubts and an accused ought to be convicted on strength of the prosecution case." The onus of proof lies on the prosecution Repubiic^prove S|ca^{against accused beyond reasonable doubts whereasIWe accused hasWio burden of proving his innocence except ih|a fewciiftimS&ice^This position was clearly stated in the case of Milburn y Regina [1992] TLR 27 where the Court held that "It is the prosecution (the Republic) tg^wye^^A^^rm^sonable doubt and that should be kept in In the present appeal, the appellant was charged with the offence of demanding property with menaces with intent to steal; that criminal offence stated under section 292 of the Penal Code Cap 16 R.E. 2019. The section states as follows: 7 "Any person who, with intent to steal any valuable thing demands it from another person with menaces or force, is guilty of an offence and is liable to imprisonment for five years." The word "menace" has not been defined under the Penal Code, but at page 191 of the Dictionary of Law, 4th Editior^g004, P.H. Collin, S': Also, under the same dictionary, the^phrase "demanding money with B a W, menaces^h^s been tfefineWto mean:W. > "crime begetting, money by threatening another person" Ther^^^^^sin^^w^^the word "menaces" refers to serious or signifida^^^reats^hicn^involve intimidation. It can be both explicit and implicit ttfet^g^detrimental or unpleasant actions against another person. For the accused person to be liable of the offence under section 292 of the Penal Code, three elements must be proved by the prosecution, as they already been mentioned by the Ms. Atupelye Makoga, learned State Attorney. The first element is that the accused use threat which caused fear or Intimidation; two, accused's act of demanding property belonging to another person and three, the accused had intended to permanently deprive the owner of that property. principles to determine this appeal. On theifcst grofendjjis^jleged that the menaces with intent to steal and the.trial-rcourr convicted and sentenced him based on the offence|chargedjwith after thb prosecution Republic had The question f^)rej|his courhis that, did the prosecution Republic prove As a fiS^^^el^^pourt, I am duty bound to reevaluate the nature and quality of evidence adduced before the trial court arid make findings of facts where there is misdirection and non-direction on the evidence. It is noteworthy to examine the records of the case in order to evaluate the evidence of the trial court for the purpose of determining whether the 9 prosecution Republic had really proved their case against the appellant case beyond reasonable doubt. I will consider the above three mentioned elements of the offence to see whether the prosecution proved their case beyond reasonable doubts. PW1 testified that on 14.12.2021 around 15:00hrs, thU:appellant come to his home and claimed that he had been plWned, by hiS| friends who informed him that they were hired by onfc^w^ft^^sa^sii|ate PW1. To confirm that information, the appellfnOhoneS|th^ni|n presence of PW1 Tshs 1,800,000/=. Indeed, PW.1 agreed pay such amount of money as he was afraid. This^videgce iPshown at page 20 of the trial proceeding; for the eas^of reference, I wish to quote the relevant part as hereunder: "7 told the accused that I don't have Tshs 3,000,000/=, accused took the phone and started to bargain with them that they should reduce the amount at the end they agreed to take Tshs 2,000,000/=. I told the accused that I cannot afford paying Tshs 2,000,000/= At the end io they agreed to accept Tshs 1,800,000/=. I agreed as I was afraid. I asked them to give me time to find the money." The above except tells that the PW1 was threatened by those persons and accepted to pay such amount of Tshs 1,800,000/-. He also testified that the appellant bargained with those persons through Hhphone and agreed to reduce the amount from Tshs 3,000,000/^WTshs 1,800,000/=. This piece of evidence was not challengedthe^ap^llant|during cross the fact that PW1 was threatened. Again, there is evidence btPW2.aOTW4?which corroborates the evidence of PW1 to the .effect thatthl^^et ajfflp and instructed PW1 to call the appellant in order to meeWat Ilunde center. PW2 testified that the appelant wentito pickPWlso that he could pay those men who were at ws "Wk the appellant's place. PW2 was with PW4 and the local militia. The appellant v/as;?apprehended by the police officer and matched to Ilunde Police Post for interrogation. To put more weight on the prosecution's evidence, PW4 testified that he recorded a cautioned statement of the appellant around 1145. hours and ii the appellant confessed that he was at Inyonga with his fellows namely Juma Machimu and Kulwa Ngadu, they had no money. They planned on how to find money and the appellant told his fellows that his neighbor, PW1 had a land dispute with one NtawajL They planned to threaten PW1 in order to get some money from him. The cautioned statement of the appellant was tendered in court and admitted ^Exhibit Pi-after objection been overruled According to the. testimony of P^^^^^j^^^^^^here is correlation between what was said bysgM2 an3|RW4and thflabtion statement which was admitted in court asftxhibitwhich'reveals-that the appellant and his fellows who are Juma«acrilmu and ®wa Ngadu, were involved in the same PW1 with threats and intent to I havelgone through the typed judgment of the trial court and found that that the trialmagistrate considered the fact that the evidence of PW1 was corroborated by the PW2 and PW4. On my side, I concur with the findings of the trial court that the testimony of PW1 was well corroborated by that of PW2 and PW4 which reveals that appellant and Juma Machimu were involved in the same mission of demanding money from PW1 with menaces 12 grid with intent to steal. Hence, I cannot fault the trial court on its conclusive findings that indeed the appellant and one Juma Machimu committed the offence they were charged with before the trial court. Therefore, it was correct to say that the evidence of PW1 was corroborated by that of PW2 and PW4. Indeed, exhibit Pl which is ?a ,caution statement of the appellant gives weight to the evidence. of^PWl. In.the<present appeal, it is apparent that the appellant caused fear ordntirnidation to the "Wx PW1 which an ordinary person^encpOntere^ "with similar circumstances would feel compelled to copiply. 179. Thus, I am o%the settled view that the prosecution side managed to prove theincas^btjainst the appellant beyond reasonable doubts. That being said and done, I find that the first ground of appeal has no merits. The second ground of appeal by the appellant is that the trial court convicted him based on his weak evidence instead of depending on the 13 strength of the prosecution's case. The learned State Attorney maintained that the decision of the trial court based on the prosecution evidence and the said evidence is watertight; she referred to page 8 of the typed judgment to support her proposition. This ground need not detain me much. It is apparent from the typed judgment of the trial court that the trial rna^istrate fifct considered page 8 of the typed judgment as sdMfedd)y T|ie learned State and I quote: i^aknes^^^ ^ider^tiether^hd prosecution case must prove the \SS4K -raSa ^S?3S?hk guilty ofthe accused" Ik The tyl magistr|tj 'Cp^idered the principle of the law referred above when i^^jcting the appellant based on the strength of the prosecution evidence rath^Wian the weakness of defence evidence and found the appellant guilty of the charged offence, then went on to convict him accordingly based on the strength of the prosecution evidence including evidence of a victim PW1, evidence of PW2 who apprehended the 14 appellant, the evidence of PW4 who wrote caution statement of the appellant and confession of the appellant through his cautioned statement. In the premise, I also find no merit in the second ground of appeal and I dismiss it as well. % The above being said and done, I find that the present appeal is not meritorious. In consequence thereof, the same is dismissed on its entirety. It is so ordered. ’’w I A.A/MRISHA \ JUDGE 15.03.2024 DATED at sCj^BAWANGA this 15th day of March, 2024. 15