charles

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO 128 OF 20243 (Originating from Criminal Case No 37 of 2023 of the District Court ofBabati) CHARLES ERASMI alias KUNGURU.............................................. APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT REASONS FOR JUDGMENT OF THE COURT 6th March and 12th April 2024 MIRINDO, J.: On 22nd December 2022, the wife of a police officer in Babati District travelled to Kilimanjaro. She closed her house located at Gendi Street and moved her two children to the house of one Mama Mchaki. Soon thereafter Mama Mchaki phoned and informed her that their house was broken. The wife asked Mama Mchaki to consult a ten-cell leader to attend the incident. She also called her husband who had travelled to Mbulu District. Inside the house several items were stolen including a TV set, gas cooker and some money. Her husband 1 returned some few days later, initiated investigation and upon a tip arrested three persons including the appellant. Over two months later, Police officers searched the room of Mwanjaa Hussein and located a TV set and its remote control suspected to have been stolen from their fellow police officer. These items were identified at Babati Police Station as belonging to the victim police officer. Before Babati District Court, the appellant was charged with two counts, namely burglary contrary to sections 294(1) (a) and 294 (2) of the Penal Code [Cap 16 RE 2022] and stealing contrary to sections 258 (1) and 265 also of the Penal Code. The second accused was Mwanjaa Hussein who was charged with the offence of being found in possession of goods suspected to have been stolen or unlawfully acquired contrary to section 312 (1) (b) of the Penal Code. At the conclusion of the trial, the District Court acquitted the second accused upon being satisfied with how she came in possession of the TV set and remote control. The trial court convicted the appellant of stealing and housebreaking after substituting the offence burglary for housebreaking. He was sentenced on the count of theft only as the trial overlooked to sentence him on the other count. The appellant appealed to this Court on three grounds of appeal two of which allege that the conviction was against the weight of evidence. The other ground is that the trial court did not observe the law. When I heard the appeal on 2 6th March 2024, I allowed the appeal, quashed the the conviction and sentence, and ordered his release from custody. I reserved the reasons which I now give. Before this Court, Mr Filemoni Maige, learned counsel, argued the appeal for the appellant while the respondent Republic was represented by Mr Benedict Kapela, learned State Attorney. Mr Maige argued that there was no eye witness to the incident and even Mama Mchaki who first broke the news of the incident was not called to testify. The learned counsel was concluded that the appellant was convicted on inadmissible hearsay evidence. He supported his conclusion with the decision of the Court of Appeal in Vumi Liapenda Mushi v Republic (Criminal Appeal 327 of 2016) [2018] TZCA 197 (12 October 2018). In opposition, the learned State Attorney, Mr Kapela argued that there were different pieces of evidence supporting the appellant’s conviction. As the stolen property was found in possession of the second accused person and the second accused mentioned him, there was constructive possession to justify conviction. He argued that Vumi’s case was inapplicable in the present appeal. There was no direct evidence of housebreaking or stealing. The first piece of evidence pointing to the breaking of the victim’s house is to be found from the testimony of the fourth prosecution witness, the wife of the victim. In the handwritten version of the proceedings, she testified that: 3 On 22/12/2022 I attended mama Mchaki’s phone, she told me “Nyumbani kwenu kumevunjwa”. I told her to inform ten cell-leaders (Mr Maganga) to attend the same. When they entered the house they discovered one TV gas cooker, remote were stolen.... These statements were largely hearsay. Hearsay evidence is defined by Murphy P, Murphy on Evidence, (5th edn, London: Black Press Ltd, 1995, at page 172) as: Evidence from any witness which consists of what another person stated (whether verbally, in writing, or by any other method of assertion such as a gesture) on any prior occasion, is inadmissible, if its only relevant purpose is to prove that any fact so stated by that person on that prior occasion is true. Such a statement may, however, be admitted for any relevant purpose other than proving the truth of facts stated in it. The first statement was admissible as direct evidence that Mama Mchaki communicated with the fourth prosecution witness about the incident but was inadmissible proof of the incident taking place. The direct evidence that the incident took place should have come from Mama Machaki herself. Since Mama Mchaki did not testify, there was no direct evidence that the incident took place. It is uncertain if Mama Mchaki witnessed the incident and if not, how did she find out before informing the fourth prosecution witness. The second statement contains direct evidence that the fourth prosecution witness asked Mama Mchaki to enlist the support of Mr Maganga, ten cell leader. But the third statement contains inadmissible hearsay evidence. Neither Mr Maganga nor Mama Mchaki testified and there was no evidence establishing their 4 prior knowledge of the victim’s items inside his house so that they could identify the stolen items. Standing alone, this piece of evidence carried no weight in the prosecution case. Since the wife only returned to Babati on 31/12/2022, the information she relayed to the first prosecution witness, her husband, about the incident before her return was inadmissible hearsay and unreliable. Mr Maige, learned counsel equally pointed out that there was no proof of ownership of the TV set and its remote control by the victim. This omission created doubt in the prosecution case. For this argument, he referred this Court to the case of Marwa Chacha alias Robare vs Republic (Criminal Appeal 133 of 2020) [2022] TZCA 325 (9 June 2022). The learned State Attorney, Mr Kapela, took the view that proof of ownership does not depend on receipt only. Even the case of Marwa Chacha does not state receipt is necessary in all cases to prove ownership. Ownership was proved through identification of the stolen property. The property was identified by mark on the TV, GM. He concluded that ownership was duly proved. There is no doubt that the appellant was neither seen at the crime scene nor found in possession of stolen property. The only evidence linking him with house breaking and stealing was that of his co-accused, Mwanjaa Hussein. Four prosecution witnesses testified that during the investigation the second accused 5 admitted purchasing the items from the appellant. In her defence, the second accused stated she got the TV set and remote control from the appellant. In essence, the prosecution was based on the exculpatory statement of the appellant’s co-accused. In Anyangu and Others v R [1968] 239 EA, four appellants were convicted of murder resulting from a burglarious expedition. During the investigation they offered statements not amounting to confessions to a police officer. On appeal to the Court of Appeal for Eastern Africa, the conviction was sustained on the principle that statements were only evidence against their maker: ... The learned judge treated all the statements as evidence, albeit accomplice evidence, against each appellant. With respect in doing so he was in our view in error. A statement which does not amount to a confession is only evidence against the maker. If it is a confession and implicates a co-accused it may, in a joint trial, be “taken into consideration” against that co-accused. It is, however, not only accomplice evidence but evidence of the “weakest kind” (Anyuna s/o Omolo and Another v R (1953) 20 EACA 218); and can only be used as lending assurance to other evidence against the co-accused (Gopa s/o Gidamebanya and Others v R (1953), 20 EACA 318). A statement is not a confession unless it is sufficient by itself to justify the conviction of the person making it of the offence with which he is tried.... [at page 240] In dismissing the appeal, the Court examined the statements the nature of the statements and evidence adduced at the trial, and concluded that: 6 As regards the third appellant, as we have said before, his participation in the burglarious expedition is fully corroborated by his possession of some of the stolen property, and it is impossible to imagine any court holding that he was not a member of the gang. As regards the first, second and fourth appellants we think that their statements correspond closely to what actually happened at the burglary that no court could have had any doubt that each of them took part in it, especially as none of these appellants either gave evidence or made an unsworn statement at the trial or sought either to retract or to repudiate his statement....[at page 241] This principle was fully applied by the Court of Appeal of Tanzania in AH Salehe Msutu v R [1980] TLR 1 where the appellant was jointly charged along with other two accused persons who were acquitted while he was convicted. On appeal to the Court of Appeal, a question arose whether the extra-judicial statements from the two co-accused which did not amount to confessions could be used to corroborate the appellant’s repudiated confession. The Court of Appeal held that they could not. Nyalali CJ speaking for the Court of Appeal stated: ...They are exculpatory statements in which each of the accused clears himself and shifts the blame to the first accused. It is dangerous to rely on such exculpatory statement, and for that matter, it has long been an established rule of law in East Africa, including this country, that an exculpatory statement made by one accused cannot be used to incriminate another, [at page 5] Whether exculpatory or inculpatory the evidence of Mwanjaa Hussein was accomplice evidence and could not be acted upon without corroboration unless 7 the trial court satisfied itself that it was safe to do so in terms of section 142 of the Evidence Act [Cap 6 RE 2022]. The necessity for corroboration for accomplice evidence has been reaffirmed in a series of cases, and more vigorously and unequivocally in the judgment of the Court of Appeal delivered by Mapigano Ag. JA in Daniel Maogele and two Others v R, Criminal Appeal 164 of 1989 (1991) (unreported): ...Judicial pronouncements from respectable sources have it that this rule has become so integral a part of the administration of criminal law as almost to have acquired the full force of law.... Like in Msutu’s case above, in Eward Lekule v R, Criminal Appeal 13 of 2002, (2004) (unreported), the Court of Appeal quashed the conviction of the appellant because it was supported by uncorroborated accomplice evidence: As a matter of practice amounting to a rule of law there was need to have other evidence to corroborate the caution statement, exhibit P3. There was no such evidence and the learned judge failed to warn herself of the dangers of founding conviction on uncorroborated accomplice evidence, namely, exhibit P 3 the cautioned statement DWi. This line of reasoning was adopted in Abubakar Hamisi and two others v Republic (Criminal Appeal 87 of 2004) [2008] TZCA 19 (21 April 2008) where three accused persons were convicted of armed robbery by the District Court of Babati and the conviction of the second accused was based solely on the evidence of the first accused person. 8 In the present appeal, corroboration was not forthcoming and the trial court did not warn itself of the dangers of acting on uncorroborated accomplice evidence. In view of these findings, I have come to the conclusion that the conviction of the appellant was against the weight of evidence. The prosecution case was not proved beyond reasonable doubt. At this stage, I find it unnecessary to deal with other limbs of arguments advanced by Mr Maige, learned counsel. That being said, I will say few words about the third ground of appeal. The learned counsel complained that although the charge was amended, the accused persons were not requested to plead as required by law. Mr Kapela, learned State Attorney, responded that it is clear from the proceedings that accused persons pleaded to the amended charge even though the charge was not read over to them. While the accused pleas were recorded subsequent to the prosecution prayer to introduce the amended charge, the trial court unfortunately overlooked the procedure for plea taking. Besides, the trial court bypassed its obligation to address the accused persons of their right to recall the first prosecution witness to testify afresh or for further cross-examination. Owing to the above findings, I make no comment on the effect of these lapses in the present appeal. It was for these reasons that I allowed the appeal and made the orders mentioned earlier in this judgment. 9 DATED at BABATI this 24th day of March 2024 NDO JUDGE Court: Delivered in the absence of the appellant and in the presence of Ms Blandina Msawa, learned State Attorney. B/C: William Makori (RMA) present. F.M. MIRINDO JUDGE 12/4/2024 Right of appeal explained. 10