20150528 TZHC Dar es Salaam 1

1 IN THE HIGH COURT OF TANZANIA DAR ES SALAAM REGISTRY CRIMINAL APPEAL NO. 20 OF 2014 (Original Criminal Case No. 39 of 2012, Resident Magistrates Dar es Salaam at Kisutu) CHACHA MWITA MATINDE@MTOTO WA YESU ......... APPELLANT VERSUl\v REPUBLIC .. ......................................................... RES PO ND ENT - JUDGMENT W.B.KOROSSO, J. The appellant was charged before the Resident Magistrates Court of Kisutu with two counts namely being in Unlawful Possession of Firearms c/s 4(i) and Section 34(1) and (2) of the Arms and Ammunition Act, Cap 223, R.E 2002 read together with Act no. 17 of 2010, and the offence of being in unlawful possession of Ammunitions c/s 4(i) and Section 34(1) and (2) of the Arms and Ammunition Act, Cap 223, R.E 2002 read together with Act no. 17 of 2010. The particulars of the offence stated that on the 12th day of January 2011 at Tandika area within Temeke Municipality in Dar es salaam, the appellant was found in possession of two guns make' 1 ,.,.. II Glock Pistol No. FHZ 358, a Pistol make Bereta all without permit or licence and also he was found in possession of 8 rounds of ammunition for glock pistol and 6 rounds of ammunitions for pistol make Bereta without permit or licence. Although he denied the charges, the appellant was convicted as charged and sentenced to four years imprisonment for each count and the sentences were to run concurrently. Aggrieved by the conviction and sentences meted by the trial court, he lodged this appeal. During the hearing of this appeal, the appellant was unrepresented and appeared 1n person and the Respondent Republic was represented by Ms. Lilian Rwetabura, Learned State Attorney. The appellant decided to adopt the grounds of appeal submitted in his petition of appeal and prayed for the court to allow the appeal, quash the Conviction and set aside the sentence. The Respondent Republic did not support the conviction and sentence meted by the trial court. The case for the prosecution was that on 11 February 2011, a report was received at the Police Station at Sitaki Shari that the appellant had firearms, this was after the arrest of two individuals one Muriba and Mnyamonge. According to PWl, D2927 D/Sgt Maskini. That, they called the appellant after getting that information and he told them he was in Tandika and they went there and arrested him. That after his arrest, at the Police station he told them he had hidden the firearms at Dawasco fence, but they 2 could not get them. The following day, the appellant was interrogated by Police officers ( ) and he admitted and informed them where the firearms were, so they wnet with him to the house of one Senga and found 2 firearms in a sulphate sack, a Bereta with 6 rounds ammunition without numbers and a Glock with 8 rounds of ammunition, with number FHZ 358. That at Nsenga's house in Tandika, NSenga's daughter by the name of Esther, identified the appellant and said the appellant was the one who had gone with the sulphate sack, this testimony is supported by the evidence of PW2 D / Cpl Freddy, who stated that on 12/01/2011 he was part of the search, the appellant had taken them to Tandika and the 2 firearms and the rounds of ammunitions stated by other witnesses were found and the two firearms were admitted by the court as exhibits P.1, and the rounds of ammunition found in both firearms were admitted as exhibit P.2. That, witnesses were called to be at the search and a certificate of seizure was prepared and it was admitted as Exhibit P3. Mzee Shija Mjata, a ten cell leader, who assured the police that the appellant normally lived in the house although he was not sure of the room, and the room they searched, Mzee Mjata assured them it belonged to the appellant. PW4, Hizza Mjata Msomea, he identified the appellant as Yap Yap, that the appellant had led them to a room and pointed to a plastic bag and said it is there! and police took a gun from the bag. Two pistols were found one FHZ385 Grocks with 3 8 ammunitions and the second with 6 round of ammunitions. He refuted to have signed any document on the particular day. PW3, D/CPl Felix, wrote the appellants statement. When the statement was being presented for admission in court, the appellant objected by retracting the statement, saying he did not write it but was forced to sign on it, also that it contravened the provisions of 8.10, S. 57 and 58 of the CPA, Cap 20 R.E 2002. An inquiry was conducted to examine the voluntariness of the statement. The trial court found the said cautioned statement to be involuntary and therefore inadmissible. The defence, whose main evidence was grounded on the testimony of the appellant, who gave evidence on oath, denied any knowledge of the firearms said to have been found in his possession and also denying signing the certificate of seizure, one of the Police officers who arrested him. The appellant claimed to have been tortured and forced to sign a paper presented to him. He believed he was arrested because he had an affair with the daughter of Mwakyembe, a Police Officer. The appellant filed seven grounds of appeal, which we have compounded so that they read as follows: First, the Hon. Magistrate who delivered the Judgment vacating the finding of the First trial magistrate in finding the cautioned statement to be inadmissible, Second, that the judgment did not comply with Section 312 of the 4 CPA for failure to consider the defence case, Third, Admissibility of Exh. P3 was questionable as it did not comply with the law, Fourth, Failure to find that the prosecution had not proved its case to the standard required, Fifth, Failure of the trial magistrate to consider the fact that the case was fabricated, Sixth, that the admissibility of Exh. P4 was questionable and that it did not comply with the law and Seven, that the issue of possession of the firearm by the appellant was not proven to the standard required. The Respondent Republic in there submissions before this court were of the opinion that this was not the case for the following reasons. First, that the appellant was neither found in possession nor in constructive possession. That, PW 1 and PW2 evidence, all show that the said firearms found were in the house of one Senga, where one Baba Bhoke lived, that PWS evidence, Mr. Hizza showed that, the said Senga had disappeared with his family, hence the unavailability of Esther as a witness, immediately after the incidence, leaving his things in the house. There was no evidence to show that the firearms and rounds of ammunitions were found in the premises of the appellant as required by the law. The respondents referred this court to the case of Moses Charles Deo vs. R (1987) TLR 134, stated that, "for a person to have been found in possession, actual or constructive, of goods it must be proved either that he was aware of their presence and that he exercised control over them, or that the goods came, albeit in his absence, at his invitation and arrangement". That having regard to the findings 5 1n the said case and S. 4 of the Arms and Ammunition Act, it is clear that the prosecution did not prove the fact that the appellant was found in possession of the said Exh. Pl and P2. When deliberating on this matter this court, has various matters to consider and we will concentrate on two grounds, whether the prosecution had proven its case beyond reasonable doubt and consideration of procedural errors by the court and the weight to be given to them in determination of this appeal. To prove its charges, the prosecution had to prove that, the appellant was found in unlawful possession of two firearms with the requisite rounds of ammunition has alleged in the charges against the appellant. On the question of whether the appellant was found in possession of the firearms and the rounds of ammunition as per the charge sheet, the trial court, relied on the evidence of PW 1 and PW2, on how the appellant had shown them the firearms and the rounds of ammunition, and PW4, a local leader who had also narrated how the appellant had led the policemen and how he witnessed the search and the retrieving of the firearms and ammunition. The court also relied on the statement of Esther tendered under s. 34 B of the Evidence Act. Having gone through the judgment, this court finds that, the learned magistrate while considering the evidence of PW 4, Mr. Hizza, he should also have taken into account, the fact that the 6 witness denied s1gn1ng any document on that day, and in effect, denying signing the certificate of seizure and thus raising doubts on the authenticity of said document which was tendered as Exh. P3 by the prosecution. This is also especially when you take into account the denial of the appellant, that he did not sign the said document though he remembered to have seen it. A doubt like this usually should favour the accused person. There is also the courts finding in admitting the statement of Esther, tendered under Section. of the Evidence Act, Cap 6 R. E 2002. The court admitted the statement after being satisfied that it complied with the provisions of that section. Section 34B of the Evidence Act states: (1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written statement by any person who is, or may be, a witness shall subject to the following provisions of this section, be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written statement may only be admissible under this Section- (a) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; 7 '· (c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (e) if none of the other parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; {!) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read." The trial magistrate, in his ruling, found that there that all the conditions pertaining in subsections a-f of subsection 2 have been fulfilled. But such evidence requires corroboration, that is independent evidence to support it, which unfortunately was lacking in this case. The said statement stated that, on the 12/01/2011, at around 15.20 hrs (very specific), while at home playing with her friends, she saw people carrying guns with her uncle whose shirt was torn, one of the people asked her whether she knew who are uncle was and she responded she did and he was her uncle. She also stated that the said uncle did not live there, but 8 used to visit them, that when the Police asked the uncle on the firearms he responded that he hid them there and her parents were unaware of this and that when questioned on the whereabouts of the hidden guns, the uncle had pointed to a bag/sack and when the bag was opened 2 firearms were retrieved. But, even if we were to take this testimony, this does not prove that what was contained in the sack when it was brought by the appellant, was what was found during the search. It should be remembered that PW4 stated that at - the time the appellant came he seemed to be in worse for wear, and he just said, there it is. Also, the fact that, the appellant only came and stayed a few times, the house belonging to one Baba Bhoke, Esther's father. In any case, the evidence of Esther, admitted as Exh P4, was cogent evidence, taking into consideration the fact that, in the statement we understand that Esther is 13 years old, and therefore, if she would have appeared in court, her evidence needed to undergo voire dire, to determine her intelligence and her understanding of an oath and telling the truth, in line with S. 127 of the Law of Evidence Act, Cap 6. As it is, then it is safe to take it as unsworn evidence requiring corroboration. The evidence of PW4, to some extent corroborates her on the said evidence of the appellant showing the police where the gun was in the sack, and the fact that the appellant did not leave in the said house but visited. 9 '• PW4, Hizza had testified that a person he knew as Yap Yap (the appellant) was in agony as he seemed to have been beaten a lot during the search. That the appellant had led them to Baba Bhoke's /Nsenga's room and showed them the firearms with ammunition. That the appellant was a relative of Baba Bhoke and he sometimes lived there. Therefore with the evidence of PW4 Hizza and Ext. P4, this court finds that it is not safe to rely on such evidence to determine that the appellant was found in possession of the firearms and ammunition, being in found in a house which witnesses have testified was not the appellants place of abode. The fact that, the owner of the said rooms disappeared with his family leaving his property leaves doubt regarding who possessed the said firearms and ammunition, and the said doubt consequently favors the appellant. The prosecution did bring evidence to show either that the appellant was aware of the presence of the firearms and rounds of ammunition found but did not bring cogent evidence to show and that the appellant exercised control over the found items, or that the firearms and ammunition came, albeit in his absence, at his invitation and arrangement. This Court also noticed that the trial court had a change of Magistrates during the trial. On the 30/1/2013, the trial Hon. Magistrate recused herself after the appellant and submitted his lack of faith in the said Magistrate after she had admitted Exh. P4 10 • l after the appellant's objection. The case was reassigned to Hon. Magistrate Mchauru SRM. It is on record that after taking over, his order was that of Hearing on 25/2/2013. It on record that on the 25/2/2013, the Court, informed the accused that following the transfer of the trial magistrate, the appellant may choose whether the case is to proceed from the stage it has reached or to start afresh and the Accused/ appellant opted for the case to proceed from the stage it has reached. It is obvious from this that the Court was complying with the provision of Section 214 of the Criminal Procedure Act, Cap 20 R.E 2002 although the trial Magistrate did not specifically cite the said provisions. In sum, section 214 ( 1) of the CPA makes it obligatory for our courts to ensuring that the right to a fair trial as a fundamental right is realized see the case of Richard Kamugisha @ Charles Simon and 5 others v. Rep., Cr.Appeal No. 59 of 2004, Mwanza Registry (unreported) which was quoted with approval in Elisamia Onesmo v Rep., Cr.Appeal No.160 of 2005, Arusha Registry, (unreported) on this issue. For the above reasons we find that, the appellant's challenge of this was unwarranted, similar to the challenge that he was denied to give his defence. On examination of the court records related to the proceedings, the appellant was properly addressed in terms of Section 231 of the CPA and on his own submitted that he will give evidence on oath and that he did not intend to call any witnesses, and proceeded to request court for proceedings of the case before he starts his defence a prayer he was granted, and also requested for 11 . ' ,, ' Exh. P4 and a search which he was also granted and supplied with and acknowledged this fact on the 30/7/2013 according to the record of proceedings. The appellant gave his defence accordingly after he stated that he was ready to do so, therefore this ground fails. In the upshot, the Court finds that the prosecution has failed to prove its case to the standard required and therefore, having deliberated on the matter as stated hereinabove, we find substance in the appeal filed. We in the event allow it. Conviction entered against the appellant on two counts of Unlawful Possession of Firearms c/s 4(i) and Section 34(1) and (2) of the Arms and Ammunition Act, Cap 223, R.E 2002 read together with Act no. 17 of 2010, and the offence of being in unlawful possession of Ammunitions c/s 4(i) and Section 34(1) and (2) of the Arms and Ammunition Act, Cap 223, R.E 2002 read together with Act no. 17 of 2010 is hereby quashed and sentence thereto are set aside. The appellant is to be released from custody forthwith unless he is ·- therein held for some lawful cause. Delivered in the resence of the appellant and Paulina Fungameza, ~~ learn - ·· · /~(· .. -~{ ~ ~:\\) ~ ,Winfrida B. Korosso ,S.'' .b/ ,( '--~ _ .•· / Judge '---;::;_~:.:.~~ O >✓ 28/05/2015 12