ex mt 119054 msonde adam aridhiwan vs the judge advocate general 2021 tzhc 3131 6 may 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM (CORAM: MASOUD, MLYAMBINA AND MASABO JJJ.) COURT MARTIAL CRIMINAL APPEAL NO. 1 OF 2020 (Originating from the decision of General Court Martial, at Tanzania Military Academy, Monduli, Arusha dated 07/05/2020) EX MT 119054 MSONDE ADAM ARIDHIWAN................................ APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL...............................................RESPONDENT JUDGMENT 09/ 03/2021 & 06/ 05/2021 Masoud, J. The appellant, one Ex MT 119054 Msonde Adam Aridhiwan, was convicted by the General Court Martial of 29/08/2012 which sat at Magadu Mazao KJ, of unlawful possession of ammunitions contrary to section 21 of the Fire Arms and Ammunition Control Act, 2015. He was found to have been in possession of 47 pieces of ammunitions 7.62mm x 39Z BALL Lot M of 2016. The relevant part of the charge sheet bearing the offence with which the appellant was charged and ultimately convicted of, reads in Kiswahili thus: Kwamba...kati ya mwezi Januari 2017 na Desemba 2017 akiwa anahudhuria kozi ya ufundi vifaru Daraja la Tatu (SMV) Hiyoko i mkoani Arusha, alikuwa anamiliki Risasi aina ya 7.62 MiHmita (mm) x 39 idadi arobaini na saba (47) alizokuwa amezihifadhi ardhini, mpaka hapo zilipokamatwa kwa MT 119313 Pte Deogratus Gerald Kavuruga baada ya kupewa maagizo ya kuzitoa na kuzihifadhi mpaka pindi atakapokuwa amemaliza kozi, /// am/etee Dar es Salaam. He was, therefore, sentenced to serve a jail term of four years. The relevant part of the decision of the Court Martial which convicted and sentenced the appellant reads thus: MT119054Pte Msonde Adam Aridhiwan wa Rejiment Mahakama imepitia kwa makini kwa kuangalia Ushahidi uliotolewa, vielelezo vilivyotolewa, pamoja na ungamo ulilolifanya kwa mlinzi wa Amani Mahakama imekuona unahatia. 2 Mshitakiwa M T 119054 Pte Msonde Adam Aridhiwan Mahakama imekupa adhabu ya kifungo cha miaka minne (4) je/a, unayohaki ya kukatarufaa kupinga hukumu au adhabu katika Mahakama ya Rufaa ya Kijeshi kwa mujibu wa kifungu C.104. Since the appellant maintains that he is innocent, he appealed against the conviction and sentence. The appeal is grounded on the following reasons: 1. That the trial court erred in iaw to convict the appellant while the charges against the appellant were not proved by the prosecution. 2. The trial court wrongly convicted the appellant based on his caution statement without any corroboration o f evidence hence the conviction was unsafe. 3. During trial the tendering, production and admissibility o f caution statement was not in accordance with the law. 4. The trial court wrongly convicted the appellant for unlawful possession o f ammunitions or bullets while the search and seizure o f the same was not explained by the prosecution in court. 5. The prosecution side failed to show chain o f custody of the ammunitions or buiiets from the alleged seizure date until the exhibit brought in court (sic). 6. The trial court admitted the objected caution statement without conducting a trial within a trial. 7. Both o f the accused persons were represented by one advocate while had conflict o f interest by mention each other hence the appellant was not accorded with fair hearing (sic). The appellant was in this appeal represented by Mr Muhagama Mussa, while the respondent was represented by Colonel Justine Julian. With the leave of this court, the appeal was conducted by filing of written submissions which were duly filed pursuant to the order of this court of 14/12/2020. We examined the submissions in the light of the grounds of the appeal and the proceedings of the General Court Martial which sat at Magadu Mazao KJ in relation to the charge levelled against the appellant. On the first ground of appeal, it was the appellant's submission that the prosecution evidence was so weak that it could not ground a conviction on the standard required in criminal cases. It was argued that despite parading four prosecution witnesses, the evidence adduced was circumstantial, broken, and lacked consistence. 4 The submissions by the appellant in respect of the first ground were contradicted by the respondent arguing that the evidence of the four witnesses of the prosecution together with exhibits admitted in evidence, namely, ammunitions, phone messages print out, and a cautioned statement made before a justice of piece proved the case against the appellant beyond reasonable doubt. The argument that the court martial relied on circumstantial evidence which was not corroborated was without merit as the appellant's submissions did not show the evidence that in his view needed corroboration. On the second ground, it was the appellant's counsel submission that the trial court martial wrongly convicted the appellant based on his caution statement which was not corroborated by any other evidence. It was argued that as the confession was retracted by the appellant, it ought to have been corroborated as it was unsafe to convict based on such confession alone. The case of Tuamoi vs Uganda [1967] EA 84 was invoked to support the argument. Conversely, it was the submission of the respondent that there was oral and documentary evidence adduced which supported the confession in the caution statement. With regard to the third ground of appeal, it was the submission of the appellant's learned counsel that the tendering, production admission of the caution statement was not in accordance with the law. The caution statement was not read over in the trial court before its admission in evidence. We were shown that the Court of Appeal in Emmanuel Kondrad Yosipati vs Republic, Criminal Appeal No. 296 of 2017 (unreported) set out guidance on the use of retracted cautioned or extra judicial statement in evidence and on the requirement of reading over such statement before its admission in evidence. We were also referred to the case of Sprian Justine Tarimo vs Republic, Criminal Appeal No. 226 of 2007 in relation to the said guidance. Opposing the submissions made on the third ground of appeal, the respondent submitted that the caution statement was properly tendered and admitted in evidence. We were thus told that all rules governing admissibility of evidence including military rules, practices, traditions, and culture of tendering and admissibility of evidence were followed. We were further told that the contents of the caution statement were disclosed, the Advocate of the appellant at the trial was allowed to cross-examine although he was not cooperative to the court directives. 6 Submitting on the fourth ground relating to wrongful conviction for unlawful possession of ammunitions or bullets, it was the submissions of the appellant's counsel that: there was no evidence from four witnesses of the prosecution that search and seizure were conducted and hence reasonable doubts which should be construed in the favour of the appellant. The case of Sylivester Stephano vs Republic, Criminal Appeal No. 527 of 2016 (unreported) was cited to strength the argument. In this case, the Court of Appeal was satisfied that the circumstances under which the search was conducted were not free from suspicious and was for such reason not properly conducted. Arguing against the fourth ground, the respondent told the court that the search and seizure were properly conducted and the evidence in relation to the said search and seizure was adduced and tendered. It was insisted that it was on evidence how the ammunitions were stored in a pit, how the appellant gave instructions as to how they should be removed and kept, how Pte Deogratius Kavuruga directed the keeping of the ammunitions, how the said search was conducted in the presence of witnesses, and how they were kept in accordance with existing TPDF rules of keeping searched and seized exhibits. 7 As to the fifth ground of appeal concerning chain of custody of the ammunitions, it was the submission of the appellant's counsel that there was no evidence adduced by the prosecution witnesses that addressed the chain of custody of the ammunitions once they were allegedly seized until they were tendered as Exhibits in the trial court. The absence of such evidence, it was argued, meant that the chain of custody was broken. The principle emerging from Paulo Maduka and Others vs Republic, Criminal Appeal No. 110 of 2007 (unreported) was relied on. The principle, briefly stated, relates to chronological record of evidence showing seizure, custody, control, transfer, analysis, and disposition of evidence. It was submitted by the respondent in reply that the chain of custody rules were adhered to at the trial when the ammunitions were tendered and admitted in evidence. In so doing, it was stated that once the ammunitions were seized, they were kept in the Unit Intelligence Office before the investigation officer (PW.l) took them to the National Defence Force Headquarters, Dar es Salaam where they were well kept in the exhibit room. They were taken from the headquarter for the trial by PW.l and kept in the Unit Intelligence Office until they were tendered in evidence. In so far as the sixth ground of appeal was concerned, it was argued that since the appellant objected the caution statement during the trial, a trial within a trial ought to have been conducted before admission of the statement. Contrary to the requirement of the law, the trial court admitted the objected caution statement without conducting a trial within a trial. We were, in support of the argument, referred by the appellant's counsel to regulation 1112.605(1) of the Defence Forces Regulations (cap. 192 R.E 2002) which provides for holding of trial within a trial to determine admissibility of an alleged confession. In addition, Paulo Maduka (supra) and Twaha Ali and Others vs Republic, Criminal Appeal No. 78 of 2004 (unreported) were cited by the respondent in connection with the requirement of conducting an inquiry or trial within a trial to determine the voluntariness of the confession once a confession is objected during a trial and the consequences of failure to comply with the requirement. Submitting in rebuttal, the respondent argued that the trial within the trial was pre-empted by the Advocate for the appellant during the trial when he refused to substantiate the allegation that the appellant was tortured and therefore caution statement should not be admitted in evidence. 9 Next is the seventh and last ground of appeal in which the trial court is being faulted for unfair hearing as the appellant and his co-accused person were represented by one advocate while they had conflict of interest. The gist of the conflict was that the appellant was charged with the offence as a result of being implicated by the co-accused person (PW.2). Having been represented by one Advocate, the appellant, we were told, was denied opportunity to cross-examine the co-accused, one, Pte Deogratius Kavuruga who testified as PW.2. Our attention was in this respect drawn to Issa Dihando @ Makusekuse & Another vs Republic, Criminal Appeal No. 265 of 2005 (unreported). The case concerned conflict of interests amongst accused persons who are being represented by one counsel and how the conflict is prejudicial to the parties and is likely to deny either of the parties' right to cross-examine each other. The respondent disputed the submissions of the appellant. Of significance, his rebuttal had it that the trial was conducted in a manner that guaranteed principles of natural justice. While legal representation is a constitutional right, it was not the duty of the respondent to choose an Advocate for the appellant. The advocate who represented the appellant 10 at the trial was chosen by the appellant and his co-accused in another case to represent them. We have had an advantage of revisiting the entire evidence on the record, the rival submissions and the authorities referred to. Upon our objective re-evaluation of the evidence as it relates to the grounds of appeal, we saw it fit to start with the fourth and fifth grounds of appeal which relate to search, seizure and chain of custody of seized ammunitions (exhibit 2 (also in the trial proceedings referred at some points as Exhibit P4). The exhibit was tendered by PW.l who explained how PW.2 was searched and the exhibit seized from him. We gather from the evidence of PW.l that the search and seizure were conducted by a team of people whose names were not disclosed by PW.2. None of the team members who searched and seized the exhibit was, for reasons which were not disclosed, called to testify, at least to make a descriptive positive identification of exhibit before it was tendered and admitted in evidence. It is of significance to note that PW.l did not testify on the identity of the exhibit, but he did so after the same was admitted and shown to him. 11 There was on the record no testimony from PW.l as to where, when, and how he got the exhibit, where it was kept all along, how he identified the same as the very exhibit which was seized from PW.2 by the team. It suffices to say that PW.l did not account for the chain of custody of the exhibit from its seizure up to its production in the trial for admission. He only told the court how he was involved in the subsequent investigation of the case and in particular, interrogating the appellant when he was already in custody. It is only when PW.l was cross-examined on matters of chain custody of the ammunitions that he said that there were documentations kept evidencing the chain of custody and that the ammunitions were handed over to him and he took them to Dar es Salaam. However, the alleged handover and the documents evidencing the chain of custody were neither mentioned, explained nor tendered during examination in chief, nor their particulars given. More so, the purport in the cross-examination was, at best an afterthought, designed to address the doubts raised in the course of the examination. It was not surprising that when asked as to the possibility that the exhibit was tempered, PW.l was quick to say that the appellant had after all confessed to have committed the offence. 12 There is equally nothing on the chain of custody that emerged from the other prosecution witnesses. PW.2, who was undisputedly a co-accused of the appellant in another case, from whom the exhibit was allegedly seized denied the allegation in his testimony before the court. PW.2 gave an unshaken story exonerating the appellant and himself from the offence. In this respect, one needs to remember that those who, allegedly, searched PW.l, and seized from him the ammunitions, were never called as prosecution witnesses for no apparent reason. The other two witnesses were PW.3 and PW.4. They were respectively involved in taking the appellant to a justice of peace for recording his statement, and providing technical identification of the exhibits which were then at "SMV" office. The evidence had equally nothing to do with the chain of custody other than the only evidence that the alleged exhibit was by then at the said "SMV" office. Nonetheless, the evidence had nothing on whether the exhibit consisted of the ammunitions allegedly seized from the PW.2 as it did not also identify an officer was in the custody of the ammunations at the said "SMV", an'officer who handed over the exhibit to PW.4 for his technical examination and expert opinion on the ammunitions. 13 The story on the record of chain of custody emerging from the respondent's counsel, Colonel Julian at this stage of the appeal, that the exhibit had been taken to the National Defence Headquarter for custody was a mere statement from the bar. It was not supported and reflected in any testimony of the four prosecution witnesses given during examination in chief. Likewise, there was an allegation from the bar that the chain of custody in this case was governed by the defence force rules. However, what such rules require in the chain of custody and how the said rules were complied with was not shown. In view of the unsatisfactory features of the prosecution case, we are constrained to go along with the learned counsel for the appellant that in this case a possibility that the exhibits were tampered with before they were admitted in evidence could not be ruled out and hence a possibility of those exhibits being concocted or planted to frame the appellant. We have no hesitation therefore to uphold the fourth and fifth grounds of appeal which relate to search, seizure and chain of custody of the ammunitions. We next saw it fit to deal with the second, third and sixth grounds of appeal together. They related to complaints surrounding admissibility of the confession statement which was objected at the trial on the ground of alleged torture inflicted upon the appellant, and the conviction of the appellant based on the alleged uncorroborated confession. We revisited the rival submissions on these grounds of appeal in the light of the evidence on the record. We were clear that the confession was the explicit reason why the appellant was found guilty of the offence. There was seemingly another reason stated in the above quoted statement of conviction. This reason was however not accompanied with specific evidence which also influenced the finding and decision of the court. We noted that the confession was, indeed, in the nature of extra-judicial statement made by the appellant on 17/07/2018 before a justice of peace, one, Matrona Francis Luanda, then a magistrate at the Primary court of Kariakoo, Ilala, Dar es Salaam, and not otherwise. It was then about 76 days ago following the arrest of the appellant. It is on the record that the appellant through his learned counsel objected the admission of the confession statement which was tendered by PW.l. We should note at the outset that the magistrate who recorded the statement as the justice of peace was not called as a prosecution witness for no apparent reason. The objection was evidently grounded on the allegation of torture which was allegedly inflicted upon the appellant. We 15 are satisfied that since the objection was to the admission of the confession statement in evidence on the ground of the alleged torture inflicted to the appellant, the appellant was undoubtedly complaining that the statement was obtained involuntarily. We gathered from the submissions on the record that there was no dispute as to the powers of the trial court under regulation 1112.605 of the Defence Forces Regulations, Cap. 192 to conduct trial within a trial to determine issues of admissibility of an alleged confession. Thus, once the counsel for the appellant raised the objection as regards the voluntariness of the statement based on the allegation of torture, the trial court was enjoined to conduct a trial within a trial to establish the voluntariness or otherwise of the confessional statement. To our dismay, the trial within a trial was not conducted and reflected on the record to ascertain the voluntariness or otherwise of the statement. The argument by the counsel for the respondent that the trial within a trial was not conducted because the appellant was not cooperative to the trial court is not supported by what is apparent on the record. We accordingly disregarded the argument as it is misplaced. With this finding, therefore, once the statement is discounted, as it should be, then there is no evidence left to sufficiently link the appellant to the offence to ground the 16 conviction. Our finding in this respect is mindful of the evidential value of the remaining evidence and exhibits which we revisted herein below albeit briefly. The remaining evidence was from the following witnesses. PW.4 whose evidence was largely grounded on the confessional statement that he tendered, and which has herein above been discounted from the record; PW.2, a co-accused, whose unshaken evidence had a story that not only did not support the prosecution case, but also raised serious doubts to the case against the appellant; PW.3 whose testimony was in the nature of expert evidence on the seized ammunations. The other witness was PW.l, who only interrogated the appellant, tendered text message printout suggesting communication that Pte Kavuruga (PW.2) had with the appellant on the ammunations, and the mobile phone allegedly belonging to the appellant used in such communications, and gave hearsay evidence as to how the alleged ammunations were seized from Pte Kavuruga (PW.2) on 2/5/2018, how it transpired from Pte Kavuruge (PW.2) that the ammunations belonged to the appellant, and how the appellant was arrested. 17 At this juncture, we took into account the first ground of appeal as we reflected on the above findings. We were settled that there was indeed no sufficient evidence that would prove the prosecution case beyond reasonable doubt. We equally, therefore, uphold the first ground of appeal on the account of the foregoing findings. As to the last ground of appeal in which the appellant complained that he was not accorded a fair trial due to conflict of interest as his advocate also represented his co-accused, we think this ground needs not detain us much. Since it was the appellant himself who engaged the Advocate, we think we cannot fault the court for such reason. On the other hand, our consideration of the record left us in no doubt that PW.2 was ably and sufficiently cross-examined in the favour of the appellant. The cross- examination negates the submission that due to conflict of interest cross- examination was not properly done. We coud not in the circumstances therefore find merit in this ground. In the upshot, we find that the case for the prosecution was not proved on the standard required in criminal cases. Consequently, we allow this appeal. The conviction entered and the sentence passed by the trial court are, respectively, quashed and set aside. We order the immediate release 18 of the appellant from the prison custody unless he is otherwise lawfully held. Ordered accordingly. Dated at Dar es Salaam this 6th day of May 2021. Judge 19