iman gregory vs rose charles 2021 tzhc 7910 13 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

BUKOBA DISTRICT REGISTRY

AT BUKOBA (PC) CRIMINAL APPEAL NO. 105 OF 2020 {Appeal from the judgment of the District Court ofBiharamuio at Biharamuio before Hon. F. B. Ndaie, RM, delivered on the August, 2019 in Criminal Appeal No. 05 of 2018, arising from Biharamuio Urban Primary Court in Criminal case No. 186 of 2018) IMANI GREGORY.................................. APPELLANT

VERSUS ROSE CHARLES.................................................. RESPONDENT EX-PARTE JUDGMENT 26/11/2021 & 13/12/2021 NGIGWANA, J. The appellant Imani s/o Gregory and one Hamisi s/o John on 13/08/2018 at Biharamuio Urban Primary Court were charged with the offence of Robbery with violence contrary to section 286 of the Penal Code Cap. 16 R: E 2002, now R: E 2019. It was alleged that on 11/08/2018 at 19:30hrs at Biharamuio Town, within Biharamuio District in Kagera Region, the appellant and the said Hamisi s/o John did steal two cellular phones make tecno, Cash Tshs. 43,000/= and a small handbag, all valued at Tshs. 248,000/= the property of Rose d/o Charles, and that during the time of stealing, and immediately after stealing did use actual violence to obtain and retain the said properties. When the charge was read over and i explained to the appellant and the said, Hamisi John, they pleaded not guilty to the charge. After a full trial, the appellant and the said Hamisi John were found guilty of the offence Robbery with violence. The appellant was convicted and sentenced to serve a term of 15 years in jail. Since the said Hamisi John was at large, he was convicted in absentia and sentenced to 15 years imprisonment. Aggrieved by the trial court decision, the appellant appealed to the District Court of Biharamulo at Biharamulo, but the appeal was dismissed for want of

merit. The appellant could not file appeal within time, as a result, he filed an application in this court which was registered as Misc. Civil Application No. 15 of 2020 seeking for extension of time within which to file an appeal in this court out of time. The prayer was granted on 26/11/2020, and on 08/12/2020 the appellant lodged the present appeal in another attempt to challenge the lower court decisions. In doing so, he has advanced five grounds of appeal as follows; 1. That, no certificate of seizure was tendered and brought in the trial court to prove the said stolen properties which allegedly to be seized at red-hand with appellant.

2. That, the Hon. Magistrate erred both in law and fact without for failure to put into consideration that the primary court should forward to the District Court for confirmation before carrying the said sentence into effect. 2 3. That, the Hon. Magistrate erred in law and fact by holding conviction against appellant on weak and shaky uncorroborated evidence.

4. That, the said stolen properties (exhibits) were admitted illegally in evidence contrary to section 38 of Criminal Procedure Act cap. 20 R: E 2002.

5. That, the judgment is fatally defective for failure to specify particulars of offence. When this appeal was called on for hearing, the appellant appeared in person and unrepresented. The respondent faulted appearance hence an exparte hearing leading to this exparte judgment. The appellant, being a layperson had nothing useful to add to his grounds of appeal, thus urged the court to determine this appeal basing on his grounds of appeal. Wherefore, the appellant prays to this court to allow the appeal, quash and set aside conviction and sentence. To start with, the 2nd ground of appeal, this court finds that, this ground is without merit because the offence of Robbery with violence is under the Minimum Sentence Act, and for that matter there was no record for confirmation of sentence of 15 years imprisonment imposed by the trial court. In that premise, I shake hands with the lower courts Magistrates that there was no need for confirmation of sentence imposed by the trial court. 3 I would like to address the 1st, 4th and 5th grounds of appeal together to see whether the case was proved beyond reasonable doubt as against the appellant. Before the trial court, part of the evidence adduced by the respondent on 27/08/2018 read; "—na wa/ipofika mbeie, washitakiwa waliita bodaboda Hi wapande na ndipo waiipanda bodaboda nami niiipiga kelele na Yule dereva bodaboda alishirikiana na

maaskari wanaolinda kisima cha maji ya jeshi na ndipo niiifika na washitakiwa wakakutwa na vieieiezo ambayo ndani ya pochi iiikuwa na simu mbiii, tachi moja na ya kawaida moja na pesa Tshs. 43,000/=, na ndipo watu waiipiga simu kituo cha poiisi na washitakiwa wakakamatwa na poiisi na hatimaye kupeiekwa mahakamani". The trial court record of17/09/2018 read; "C.O: Naomba kuwasiiisha vieieiezo ambayo ni simu mbiii moja Tecno touch na nyingine ya kawaida ambayo waiikutwa nazo washitaksiwa mail ya miaiamikaji na pesa Tshs. 43,000/= Hi zipokeiewe kama vieieiezo kwa upande wa mashitaka Mshtakiwa No, 1: Mimi sitambui vieieiezo na hata poiisi sikuziona. Mshtakiwa No. 2: Mimi sitambui vieieiezo kwani nimeziona hapa mahakamani. 4 Mahakama: Vilelelezo ambavyo in simu Tecno touch na Itel ya kawaida pamoja na pesa Tshs. 43,000/= aiizotoa upande wa mashitaka zimepokeiewa na mahakama kuwa Ex "A" (Tecno touch), Ex"B"Ite! and Exh. "C"pesa Tshs. 43,000/= kwa upande wa mashitaka. Sgd: Hakimu. Miaiamikaji: Sina shahidi wa kuongeza, naomba kufunga ushahidi upande wangu. Mahakama: Upande wa mashtaka umefunga ushahidi. Mara baada ya kuita shahidi mmoja pamoja na ushaudi wa vieieiezo. Mahakama baada ya kusikiiiza ushahidi mzima imewaona washitakiwa kuwa wanaio shitaka la kujibu------- " I have considered how the exhibits were admitted. It is alleged that at first, the mobile phones, and money were in

the possession of the appellant and Hamisi John, but there is no evidence as to how the same moved from their hands to the hands of the police. No certificate of seizure tendered in court to show when and from whom such exhibits were seized. In the case of Daniel Matiku versus Republic, Criminal Appeal No. 450 of 2016 CAT (unreported), the Court of Appeal of Tanzania had this to say; ''If this mandatory requirement had been complied with, of necessity, what was retrieved from the appellant would have been listed and the appellant and independent witnesses would have appended their signatures and each retained a copy of the seizure certificate so as to put in motion a full proof of chain of custody. 5 With no doubt, failure of the prosecution to tender seizure certificate and chain of custody form makes the admission of exhibit "A" "B" and "C" irregular, and without hesitation I expunge exhibit "A", "B" and "C" from the record for failure to adhere with the rules relating to seizure and chain of custody. I have also learnt that the incident took place during the night and that PW1 told the trial court that it was her first time to see the appellant and Hamisi John. PW1 told the trial court that motorcycle rider, soldiers of peoples Defense Force, and other good Samaritans assisted her to arrest the appellant and Hamisi John, and then, police were called and upon their arrival,

they took the appellant to the police station. I agree with the lower courts that no specific number of witnesses is required to prove a fact. See Yohana Msigwa versus Republic [1990] TLR 148 and Lubelejea Mavina and Another versus Republic, Criminal Appeal No. 172 of 2016 CAT (unreported). However, it is equally the law that, an adverse inference may be made where the persons omitted to be called as witnesses are within reach, and not called without sufficient reason being shown by the prosecution. See the case of Francisco Daudi and Two Others versus Republic, Criminal Appeal No. 430 of 2017. In the present case, no reasons given as to why the motorcycle rider who alleged to have carried the appellant and Hamisi John to where the TPDF soldiers were guarding, was not called as a witness, likewise the police who 6 searched and seized the properties (if any) from the appellant but also people who witnessed the arrest and search of the appellant and another. Indeed, it was very unsafe for the trial court to convict the appellant basing on such weak and uncorroborated evidence of PW1. In page 6 of the typed judgment of the trial court, the trial Magistrate stated as follows; Mahakama inashindwa kuridhika na ushahidi wa utetezi kwani una utata—". With no doubt, that was a misdirection. It is trite law that in criminal law, the guilt of an accused person is never gauged on the

weakness of his defense, rather conviction shall be based on the strength of the prosecution's case. See the case of Christian Kaale and Another versus Republic [1992] TLR 302. The same position was amplified in Samson Matiga versus Republic, Criminal Appeal No. 205 of 2007 CAT (unreported) when the court held that; "A prosecution case as the law provides, what this means, to put it simply, is that the prosecution evidence must be strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence" Part of the 1st appellate court judgment read; "Z have perused on the Primary Court records where I discovered that the said offence of robbery was proved by the prosecution evidence who is the 7 victim herself and the exhibits were also tendered and admitted by the said trial court. Also when the appellant were cross-examined they stated that they admitted to have committed the said offence because they were beaten, this is not a genuine reason and it does not made sense to state that they admitted to have committed the said offence due to torture as they were beaten but they have failed to prove that they were beaten, therefore to this alone, I find that the case was proved beyond reasonable doubt against both the appellants—". It seemed that the 1st

appellate court did not trouble to satisfy itself as to whether the alleged exhibits were in the possession of the appellant and another and if yes, whether the law was complied with to retrieve the said exhibits from them. It did not bother to satisfy itself as to whether, the items tendered in court were the same as those mentioned in the charge sheet. In the charge sheet the mobile phone make Itel was never mentioned, but it was tendered in court. No police ever appeared before the trial court and testified that the appellant ever confessed to have committed the offence of Robbery with violence, thus was not proper to rely on cross-examination alone as evidence proving that the appellant had confessed to have committed the offence. Given the evidence of the records, it is obvious that the case against the appellant was not proved beyond reasonable doubt. I therefore find the appeal meritorious. 8 The conviction entered and sentence of 15 years imposed by Biharamulo Urban Primary Court and confirmed by the district court of Biharamulo are hereby quashed and set aside. I order an immediate release of the appellant Imani Gregory from Prison unless he is held there for other lawful Judgment delivered this 13th day of December, 2021 in the presence of the Appellant in person, Mr. E. M. Kamaleki, Judges' Law Assistant, Gosbert Mr. Rugaika, B/^utjn the absence of the Respondent. 9