casto ndimbo vs republic 2014 tzhc 2381 12 february 2014

IN THE HIGH COURT OF TANZANIA

AT SONGEA DC CRIMINAL APPEAL NO. 4 5 OF 2 0 1 3 (Originating from Songea District Court Criminal Case No. 63 of 2 0 1 2 ) CASTO NDIMBO........................................................................................... APPELLANT Versus THE REPUBLIC.......................................................................................... RESPONDENT Last Order: 0 4 th November, 2013 Date of Judgment: 12th February, 2 0 1 4

JUDGMENT FIKIRINI, J: The appellant Casto Ndimbo was charged with two counts namely; breaking into a building and committing offence c/s 296(a) and receiving property stolen or unlawfully obtained c/s 311 of the Penal Code, Cap 16 R.E.

2002. The appellant was convicted and sentenced to ten (10) years imprisonment the sentence which was to be confirmed by the High Court pursuant 170 (1) (a) of the CPA, Cap 20. R.E. 2002. l Section 170 (1) (a) (b) and (c) clarifies sentences which subordinate court may pass. In the case a sentence passed exceeds the powers provided under s. 170 (1) (a) (b) and (c) with exception of sentences under Minimum Sentence Act, and sentence passed by a Senior Resident Magistrate of any grade or rank, the subordinate court has to transmit the record to the High Court for confirmation of such. In the present situation the record shows that on 14th March, 2014 the trial magistrate had ordered the record to be submitted to the High Court - Songea zone for confirmation or otherwise of the sentence pursuant to s.170 (1) (a) of the CPA, but for reasons not explained the order was not processed accordingly and thus no confirmation of the sentence has taken place as required by s. 170 (2) of the CPA. In the meantime, the appellant brought this appeal which has five (5) grounds. In spite of the above irregularity, and since the High court pursuant to s. 373 (1) (a) has been conferred with powers of revision, and as well is an appellate court under s. 3 6 6 , 1 will thus look into the confirmation matter through this appeal and in that way rectify the irregularity. And if the conviction

was properly entered and sentence met calls for confirmation this court will then proceed to do so. At the hearing the appellant had not much to add apart from the presented five (5) grounds of appeal as stated earlier. All the grounds can be condensed into one and come out with one issue that the prosecution did not prove its case beyond reasonable doubt. Sweeping across the grounds the appellant's complaints were, that, first, he had denied committing the offence charged; second, the procedure in identifying stolen properties was not properly followed and the same were identified in court, but prior to carrying the identification in the court the properties were seen by the church leader; third, that, the complainant did not produce any receipt; fourth, that, the alleged stolen property was restored to the church while there was no proof that the same was stolen from the church; and fifth, that, the search procedure was flawed. The last ground is the summation of all these grounds and see if the prosecution did its job. Reacting to the filed appeal, Ms. Mawoko -State Attorney had these to submit; She combined the first and second grounds and particularly submitted on the issue of identification of the stolen property that a proper procedure was followed and in addition five witnesses which included a pastor and some members of the congregation who new and could identify the

stolen church property had been called to that effect. As for the third and fourth ground particularly in regard to the issue of non production of the purchase receipt by the complainant, it was Ms. Mawoko's submission that the evidence and the identification of the property made by the prosecution witnesses was sufficient to convict the appellant. On the fifth ground that was related to the search, the counsel submitted that the same had been conducted properly. To back up her argument she explained that the search was conducted by the Police and in the presence of the appellant who was showing where the stolen properties had been hidden. She further submitted that in course of that search one speaker was retrieved from the toilet belonging to PW2, after the appellant had led the Police there. Other items including another speaker and a stabilizer were retrieved about 1 km from the church, but it was also after the appellant had led the Police and other people to the place. The search according to Ms. Mawoko was thus done in compliance to s. 38 (1) & (2) of the CPA and in the presence of the appellant. In addition, the appellant admitted committing the offence pursuant to his caution statement which was tendered and admitted as exhibit Pi. Ms. Mawoko referred the court to the case of Paulo & Sudai Mwezi @ Masenege V. R Criminal Appeal No. 4 8 1 of 2 0 0 7 , CAT,

Dodoma (unreported). Emphasizing her position, Ms. Mawoko submitted that since the appellant admitted to committing the offence, the appeal was thus an afterthought. She as well concluded that the prosecution case was proved beyond reasonable doubt. Briefly countering the respondent's submission the appellant challenged the whole submission and specifically addressed the issue of retrieved speakers from the toilet and the maize farm, if in both instances it was of the same witness' evidence. After careful perusal of the trial court record, the grounds of appeal and the submissions, it is evident that the appellant was convicted based on the evidence of PWl-George Msigwa a neighbor to whom the alleged stolen speaker was taken for repair by the appellant, and PW2-Theresia Naskoti, a grandmother and at whose place the alleged stolen speaker was recovered. According to PW2's evidence one speaker was recovered from her place and the search exercise was conducted in the presence of the appellant, Police officers, street chairman and other people. Though there was no reason advanced by the appellant as to why her grandmother would lie against him, but there was as well no supporting evidence that the same was recovered from PW2's place. Because neither the police officers who had searched the place nor the street chairman or other people present were summoned to testify in that

regard. There was as well the evidence of PW3-Mariamu Chuma who was asked to accompany Police who were with the appellant to the maize farm, a place where it is claimed one speaker and one stabilizer belonging to the church were recovered. From PW3's evidence the appellant had claimed to have hidden the items there. This is what he said, "vyombo nilivificha hapa" see page 24 of the typed proceedings. Again, besides PW3's evidence there was no other evidence in support, such as that of the Police officers who searched the place and seized the alleged stolen items. But even with PW3's evidence, that she was present at the maize farm when the speaker and stabilizer were recovered, still the evidence was weak. First, PW3 did not give description of the alleged stolen items prior to recovery of the items in the maize farm. Second, even when testifying before the court she could not identify the items with specific marks to prove that they indeed belonged to the church. The items being common need for specific marks of identification were important. The law requires that the identification must be done before and later after the same had been recovered or in court when giving evidence. See: Nassoro Mohamed V. R (1 9 6 7 ) H.C.D. No. 4 4 6 and Mustapha Darajani V. R, Criminal Appeal No. 2 4 2 of 2 0 0 8 . That was not the case in this particular instance. The trial court as well

relied on the evidence of PW5- Longinus Andrea, whose evidence was that he recovered the generator belonging to the church from a person alleged to have been sold the generator by the accused person. PW5 took the generator but let free the one found in possession. First, I did not see the reason as to why PW5 decided to let free the person he alleged was in possession of the stolen church generator. PW5 had a duty of taking the person to the Police station where he could give account of how he came across the same. Short of that I do not see the reason as to why I should believe PW5's story. Second, the chain of seizure and custody was broken as it was not known who was in possession of the generator prior to PW5 and after as the trial court was not told. Furthermore, the two speakers, one generator and one stabilizer were admitted into evidence as exhibit P2, through PW5. In my view since these items were recovered from three different places, it couldn't therefore be said they had the same chain of seizure and custody. They could therefore not been tendered through PW5 while there was PW2 at whose place one of the speaker was recovered and PW3 who was present and identified the speaker 7 and stabilizer recovered at the maize farm as belonging to the church. Other than these two, the Police officers who conducted the search would, in my view be the best witnesses to tender

these items as exhibits and not PW5. See: Hemedi Athumani Silaju V. R, Criminal Appeal No. 1 2 0 of 2 0 0 6 (unreported). The respondent's/republic's counsel was content with the identification done by PW3 and PW5 who were members of the church from which the items were stolen from. She was also content that proper procedure was followed. With due respect to the respondent's/republic's counsel, I do not agree to her position for the reasons stated above. Besides, not following the proper procedure in identification of the stolen property, the prosecution had as well failed to produce a receipt of purchase. The identification made by PW3 and PW5 that the items belonged to church was in my view without sufficient evidence as no description of the items was given prior to recovery of the same. From the above account I do agree that the trial court restored the alleged stolen items to the church without sufficient proof. The trial court as well relied on the evidence of PW4-WP 3028-D/Corporal Suzanna of Police Songea. She recorded the appellant's caution statement which was admitted into evidence as exhibit Pi. 1 have looked at the caution statement. The same was recorded without citing the provision of the law under which the same was being done. This is an important component as there are different types of statement and some have specific requirements. I am hesitant to conclude

the caution statement was properly recorded and accordingly question its reliability. Furthermore, the caution statement was alleged to have been recorded in the presence of one Mr. Wilbert Lwena. But this person was not called to support the admission alleged to have been made by the appellant. I also examined how the search was conducted. The search conduction was in my view flawed. First, there was no search warrant issued to that effect, and second, no Police officer came to testify regarding the two searches one at PW2's place and that one at the maize farm. It was important to hear from the Police officers who searched and seized the items, as well as to why the search was conducted without warrant. Otherwise relying on the evidence of PW2 and PW3 alone was in my view not sufficient. The respondent's/republic's counsel was content that the requirement of s. 38 (1) (2) of the CPA, was complied with, as Police who conducted the search were in a company of the witnesses and not the appellant alone. It was her further submission that the appellant admitted to the commission of the offence in his caution statement. My reading and understanding of s. 38 (1) is there has to be an order warranting the search. And that order must come from a person with power or authority to do so. The Police officer can only conduct search without warrant if there is a threat posed. The threat

could be tempering with the stolen property; e.g. by way of removing it from one place to another, destroying or damaging it. In the instant case since none of the Police officers who conducted the search testified in court, it was thus difficult to know why the search was conducted without warrant. See: Selemani Abdallah & 2 Others V. R, Criminal Appeal No. 3 8 4 of 2 0 0 8 CAT (u n reported) and Patrick Jerem iah V. R, Criminal Appeal No. 3 4 of 2 0 0 6 CAT (unreported). I thus do not concur to the respondent's/republic's counsel that the search was properly done. I as well looked into the requirement of receiving stolen property or unlawfully obtained. In such case knowledge and reason to believe that the property has been stolen or unlawfully obtained must be proved. In this case I was not convinced that the prosecution did prove the guilty knowledge of the appellant. See: HARNAM SINGH V. R (1 9 6 8 ) HCD 2 8 0 After examining the grounds of appeal raised and submission made I am without a doubt that this appeal is meritorious and hence proceed allowing it by quashing the conviction, setting aside the sentence and order the appellant release from custody unless lawfully held for other reasons. It is so ordered. Judgment Delivered this 12th day of February, 2014 in the presence of Casto Ndimbo the appellant and Mr. Medalakini Godwin-State Attorney appearing for the^es^oodent/republic. c_ S fk s|uo P.S.FIKIRINI (H |r^ S if

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JUDGE Right of Appeal Explained. ,-f. ^ i yJ K'1> ’’•sX */ v --------f' / ■ ‘w t 3 # - ’ v \ o ,\ •f :. 1 1" vdi \ r P.S.FIKIRINI - 7 i* u \\

JUDGE 12th FEBRUARY, 2014 li