IGNAS MGOGOSI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA CRIMINAL APPEAL NO. 34 OF 2023 (Originating from the conviction and sentence of the District Court of Dodoma in Criminal Case No. 48 of2021) IGNAS ALMOS MGOGOSI......................................................... APPELLANT VERSUS REPUBLIC.......................................................................... RESPONDENT JUDGMENT Date of last Order: 5/6/2024 Date ofJudgment: 25/6/2024 KHALFAN, J. The appellant together with 52 others who are not parties to the instant appeal were arraigned before the district court of Dodoma (hereinafter referred as the trial court), charged with two counts. Relevant to the appeal at hand, on the first count the appellant and one Jafari Iddi Amiri Mshana (not a party to the instant appeal), were charged with transporting illegal immigrants contrary to section 46 (1) (g) and (2) (a) and (b) of the Immigration Act [CAP 54 RE 2016]. i It was alleged that on 27/12/2021 at Bereko village within Kondoa district in Dodoma region, the appellant and his colleague were found transporting 51 illegal immigrants who were mainly Ethiopian nationals. The appellant and his colleague pleaded not guilty hence full trial ensued. In attempt to prove the case against the appellant and his colleague, the prosecution paraded a total of four witnesses. The appellant and his colleague were the sole witnesses for the defence. A brief factual background underlying the instant appeal goes thus; on 27/12/2021, PW1, a police officer accompanied by other police officers, were on duty along the Dodoma Manyara Highway at Bereko within Kondoa district, carrying out inspection of motor vehicles. In the course of such inspection, a motor vehicle with registration No. T. 592 makes FUSO, driven by the appellant, was stopped. The said motor vehicle was searched by PW2 and as a result, 51 illegal immigrants were found hidden under the rack of the said vehicle. In his defence, the appellant readily admitted that on the material date, he was driving the motor vehicle in question. Upon reaching at Bereko, he was stopped by the police officers who asked him about what he was carrying. The appellant replied that he was carrying tomatoes. He was also 2 asked about the owner of the said motor vehicle and he replied that he was on his way to Dodoma. He maintained that the motor vehicle was not searched at the police station. Rather, he came only to see the immigrants at Dodoma. The appellants colleague maintained that he was just given a ride (lift) travelling from Moshi to Dodoma. He claimed that he alighted from the motor vehicle at Bereko but he was arrested. He denied to have committed the offence. After hearing the parties, the trial court was satisfied that the case against the appellant was proved to the hilt. Hence, it convicted and sentenced the appellant to pay fine at the sum of TZS 30 million or to serve 20 years imprisonment in default. As to the appellant's colleague, the trial court found that the case against him was not proved, hence it acquitted him. Being aggrieved with the conviction and sentence meted out against him, the appellant has preferred the instant appeal with 14 grounds which can be summarised and reduced to 9 grounds as follows: 1. The trial was transferred from one magistrate to another without assigning reasons. 3 2. That undisputed facts recorded during the preliminary hearing were not read over to the appellant. 3. The prosecution did not prove the case to the standard required as the names and numbers of the illegal immigrants were not listed on exhibits Pl and P2. 4. The trial offended sections 10 (3) and 9 (3) of the CPA. 5. Exhibits P6 and P7 were not read out after admission. 6. Exhibits Pl and P2 were not signed by independent witness. 7. The trial court considered the evidence by witness with interest. 8. The appellant's defence was not considered. 9. Section 312 of the CPA was not complied with. When the appeal was called on for hearing, the appellant appeared in person while the respondent was represented by Mr. Geofrey Mlagala, learned State Attorney. When called upon to argue the grounds of appeal, the appellant just adopted the said grounds to form part of his submission. He had nothing of substance to argue. In determining the appeal at hand, I will start with the last ground in which the trial court was faulted for noncompliance with section 312 of the Criminal Procedure Act [CAP 20 RE 2022], (hereinafter referred to as the CPA). Initially, the learned State Attorney was of the view that the trial court did not comply with section 312 of the CPA for its failure to indicate the provision of the law against which the appellant was charged when it was convicting him. With such infraction, the learned state attorney urged the court to remit the record to the trial court for it to comply with section 312 of the CPA. I, however, required the parties to address the remaining grounds of appeal as I reserved my decision on the point. Indeed, going by the trial court's judgment at page 11, when it was convicting the appellant, it never indicated the provision of the law against which the appellant was charged. I do not find that such anomaly was fatal since, at page 2 of the judgment, it is indicated clearly that the appellant was charged with transporting illegal immigrants contrary to section 46 (1) (g) and (2) (a) and (b) of the Immigration Act. Hence, there was no need to reproduce the said provision when convicting the appellant. My position is fortified by the decision in the case of Emmanuel Phabian v. Republic Criminal Appeal No. 259 of 2017, Court of Appeal of Tanzania at Tabora (unreported), in which the Court of Appeal observed thus: 5 "In his judgment, the /earned trial Resident Magistrate convicted the appellant as charged meaning that he was convicted of the offence of rape under ss. 130 (2) and 131 of the Penal Code which the trial magistrate specified at the beginning of the judgment Thus, the fact that the offence and the sections of the law were not restated did not amount to non-compliance with s. 312 (2) of the CPA. - See for instance, the case of Hassani Saidi Twalib v. Republic, Criminal Appeal No. 95 of 2019 (unreported). As found above, although there was omission to cite paragraph (a) of s. 130 (2) of the Penal Code, that did not vitiate the conviction." Guided by the above authority, I find that failure to reproduce the section of the law against which the appellant was charged with did not cause any injustice. Hence, the 9th ground of appeal lacks merits and it is hereby dismissed. On the 1st ground of appeal, the learned state attorney argued that, the matter commenced before Hon. Rugemalira in which all the 51 accused persons pleaded guilty while the appellant and his colleague pleaded not guilty. The learned state attorney was of the view that since the trial against the appellant had not commenced, the matter could be safely taken over by another magistrate. He was of the view that section 214 of the CPA was not violated. I have gone through the record, which reveals that, the matter was previously assigned before Hon. Rugemalira but later on, by the reason of transfer as clearly shown on the record, the matter was reassigned to Hon. Mpelembwa. Because there was reason as to why the previous magistrate could not proceed with the matter, I find that section 214 of the CPA was not violated. Equally, as argued by the learned state attorney, since hearing of the matter had not commenced against the appellant, I find that the reassignment did not vitiate the trial. Therefore, the 1st ground of appeal lacks merits and it is dismissed. As to the 2nd ground of appeal, the learned state attorney argued that the appellant was given chance to respond to the facts adduced by the prosecution in which he admitted the facts regarding his personal particulars. He however pointed out that the omission to read out the agreed facts was not fatal as it was pointed out in the case of Boniface Thomas Mwimbwa and another v. Republic, Criminal Appeal No. 325 of 2015 (unreported). 7 I have keenly gone through the record. After the prosecution had read out the facts of the case, the memorandum of agreed facts was drawn. It is settled law that apart from the requirement that the memorandum of agreed facts must be signed by the accused, the same must be read out. But in the instant matter, the record is silent on whether the agreed facts were read to the appellant. I find that, that omission vitiated the preliminary hearing only and not the whole trial. This is because; the provision of section 192 of the CPA was enacted to expedite criminal trials and its noncompliance does not vitiate the trial that ensued. Hence, I am of the considered view that no injustice was occasioned to the appellant. As to the 4th ground, the learned state attorney was of the view that failure to comply with sections 9 (3) and 10 (3) of the CPA which basically require the complainant's statement to be supplied to the accused person. The record is silent on whether the appellant requested in vain to be supplied with the statement. The learned state attorney also argued that the appellant had not indicated any injustice caused to him by not being supplied with the complainant's statement. Indeed, as rightly argued by the learned state attorney, I could not find in the record that the appellant requested in vain the complainant's 8 statement. Equally, the appellant did not establish any failure of justice that was occasioned for not being supplied with the complainant's statement. Therefore, the fourth ground of appeal lacks merits and it is accordingly dismissed. On the 5th ground of appeal, in which exhibits P6 and P7 were not read out after being admitted, the learned state attorney argued that if the said exhibits were not read out, the appellant could ask the trial court for the said exhibits to be read. He argued that since the record does not show if the appellant made such a request, then such complaint cannot be raised at this stage. The learned state attorney quickly pointed out that if the court finds that the documents were not read out after admission, the same must be expunged but the oral account of the witness should remain. I have gone through the record; exhibit P6 was a driving licence while exhibit P7 was ATM card of MUCOBA bank. The record is clear that the two exhibits were not read out. It is settled principle that whenever the trial court intends to introduce any document as evidence, such evidence should first be cleared for admission, and be actually admitted in evidence, before it can be read out in court. This settled principle has been underscored in numerous decisions, to mention but few, Robinsons Mwanjisi and Three Others v. The Republic [2003] T.L.R. 218, Walii Abdallah Kibuta and Two Others v. The Republic, Criminal Appeal No. 181 of 2006, Kurubone Bagirigwa and Three Others v. The Republic, Criminal Appeal No. 132 of 2015, Lack s/o Kilingani v. The Republic, Criminal Appeal No. 405 of 2015 Issa Hassan Uki v. The Republic, Criminal Appeal No. 129 of 2017 and Kassim Salum v. The Republic, Criminal Appeal No. 186 of 2018 (All unreported). For instance, in the case of Lack s/o Kilingani (supra) the Court of Appeal elucidated the three stages which a trial court has to observe before a document is admitted in evidence that it should first be cleared for admission, secondly, it should be admitted in evidence and thirdly, it should be read out in court. The Court of Appeal observed: "Even after their admission, the contents of cautioned statement and the PF3 were not read out to the appellant as the established practice of the Court demands. Reading out would have gone a long way, to fully appraise the appellant of facts he was being called upon to accept as true or reject as untruthful. The Court in Robinson Mwanjisi and Three Others v. The Republic [2003] io T.L.R. 218, at page 226 alluded to the three stages of clearing, admitting and reading out; which evidence contained in documents invariably pass through, before their exhibition as evidence” In the case of John Mghandi @ Ndovo v. The Republic, Criminal Appeal No. 352 of 2018 (unreported) the Court of Appeal stated the reason behind the requirement to read over the admitted documentary exhibits to the accused person. In particular, the Court stated as follows: "We think we should use this opportunity to reiterate that whenever a documentary exhibit is introduced and admitted into evidence, it is imperative upon a presiding officer to read and explain its contents so that the accused is kept posted on its details to enable him/her give a focused defence. That was not done in the matter at hand and we agree with Mr. Mbogoro that, on account of the omission, we are left with no other option than to expunge the document from the record of the evidence. li Since exhibits P6 and P7 were not read after their admission, the same are accordingly expunged from the record. Responding to the 7th ground of appeal, the learned state attorney argued that the appellant has not disclosed the witness with interest in the matter. Rightly as argued by the learned state attorney, the appellant could not state specifically who was the witness with interest to serve in the matter. Hence, I find the complaint in the 7th ground lacking in merits and the same is dismissed. Now let me revert to the 3rd and 6th grounds of appeal in which the appellant complained that the case against him was not proved beyond reasonable doubt. On this ground the learned state attorney argued that the case against the appellant was proved to the standard required. He argued that there was no need to disclose the names of the illegal immigrants on the certificate of seizure. Hence, he maintained that the said exhibit had no connection with the immigrants. Equally, on the sixth ground of appeal, the appellant complained that there was no independent witness at the scene when the 12 motor vehicle was being searched. The learned state attorney was of the view that it was not necessary to have independent witness(es). The complaint in the 3rd and 6th grounds of appeal, invites this court sitting on the first appeal to reappraise and reassess the evidence on record. I have carefully gone through the record, I have observed from the evidence of PW2 that, at the time the motor vehicle was being searched, the appellant was in lock up at the police station. This means that the search was conducted in his absence. To this, there should have been an independent witness to the search exercise. It was readily conceded by the learned state attorney that, there was no independent witness when the motor vehicle was being searched. In the circumstance of this matter, taking into account that the search was conducted in the absence of the appellant, it was necessary for an independent witness to be there. This was necessary since there is a dispute as to whether the alleged illegal immigrants were found in the motor vehicle referred to above. In the absence of the appellant, as well as independent witness at the time the search was conducted inside the motor vehicle driven by the appellant, the entire exercise is rendered with grave doubts. The 13 search was further rendered doubtful for failure to disclose the names of people found in the said motor vehicle without reasons. To this, I find merits in the 3rd and 6th grounds of appeal. In the circumstance I allow the appeal. The conviction and sentence meted out against the appellant are quashed and set aside. I further order that the appellant be set to liberty unless lawfully held. Delivered at Dodoma this 25th day of June, 2024. 14