20150724 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM (APPELLATE JURISDICTION) {'' ' CRIMINAL APPEAL NO. 57 OF 2014 (From Mafia District Court Cr.C No. 51 of 2013 Hon.Makube, H.A-RM) ISSA S/O HASSAN KUGEMUA ............ . APPELLANT Versus THE REPUBLIC •••.••••••..................... RESPONDENT Last order: 29th June, 2015 Date of Judgment: 24th July, 2015

JUDGMENT Feleshi, J.: The trial Court convicted the appellant based on the charge which it alleged he was found armed with an instrument of house breaking; Contrary to section 298(d) of the Penal Code, [Cap.16 R.E.2002] and upon his record of previous conviction, it sentenced him to fourteen years imprisonment. The learned trial magistrate believed the four prosecution witnesses. namely, Omari Nongwa (PW.1), the Kurungeni "A" Kitongoji Chairman, ' F.4840 DC Thomas (PW.2), F.8194 PC Daud (PW.3) and F.3709 PC Ahad (PW.4) who had deposed to have found him on 14th June, 2013 in possession of one piece of iron rod, one knife and one torch (Exh.Pl, P2 and P3 respectively) which were used for house breaking with intent to commit an offence. These witnesses told to the trial court that they arrested the appellant at 06:30 HRS on the fateful day after hanging Page 1 of 9 · around his home from about 03.00 hrs. Whereas PW.1 deposed that the instruments were in his pence, PW .3 on his part deposed that they were found in his trousers' pocket. PW.2 and PW.4 just gave a general testimony that they searched and found him with those instruments. The accused in defence deposed that when he arrived at home from his bodaboda business whilst in possession of a torch and knife he found soldiers who searched his house and collected a piece of iron rod from underneath the table. The learned trial

magistrate finally made the following findings at page 3 of his judgment" "The law is clear under section 298 of the Penal Code that any person who is found in possession of an instrument for housebreaking commits an offence and if it is night time and without lawful excuse in which the proof lies on him to explain as to the usage of the item found with. in the present case the piece of iron rod, knife and a torch can be turned as instruments of housebreaking depending on the circumstances one had been found with the same... the evidence adduced by PW.1 to PW.4 which I verily believe the same to be true is that they were at his home of accused to trace him for some other offences ... he is driver of bodaboda and he was from transporting his passenger however he could never name even a single passengers he carries on the said date .... There is no doubt also that the items accused was found with was for purpose of housebreaking as he could not offer any reliable information as to the usage of the tools at that time. Again it had already been proved in other case that accused did committed an offence of housebreaking and stealing, thus it is presumed then at that time he was arrested he was from committing the said offence using instruments he was found with. I found the story by the accused person also as an afterthought as he could not name the passengers he was carrying at the

night.... I convict him forthwith ... " [Emphasis supplied] The appellant has challenged the conviction and sentence through his six grounds of appeal which however mainly attacking the trial court for convicting and sentencing him for the case which was not established beyond any reasonable doubt. Page 2 of9 The Republic, Respondent through the service of Ms. Imelda Mushi, the learned State Attorney, supported the judgment of the trial court arguing that the prosecution's case through PW .1-PW .4 was proved beyond any reasonable doubt arguing: first, the appellant was found in actual possession of the iron rod, knife and torch which were intended to facilitate burglary; second, the appellant failed to build his case by bringing his bodaboda passenger; third, exhibits Pl, P2 and P3 were admitted in evidence without opposition; four, the trial court's assessed the prosecution witnesses and found them credible. Ms Mushi stressed that in terms of the principle laid in the case of Rashid Kaniki v. Rep. Cr.Appeal No.116 of 1993 as matters of credibility of witnesses are domain of the trial court which had advantage of assessing the demeanour of the witnesses and evaluating the credibility of such evidence this Court being an appellate one should not easily interfere with the trial court's assessment to witnesses; and fifth, that it is now a settled position that there is no

particular number of witnesses shall in any case be required for the proof of any fact (the decision in Ally Shemnyan v Rep. Cr.Appeal No.27 of 1993 (CA) refers). In view of the above submissions and trial court's findings the issue before me is whether the appellant was rightly charged and convicted. I have no quarrel with the legal principles laid in the authoritative decisions cited by the learned State Attorney in support of her position. However, as regards to the witnesses' credibility, I take a liberty to elucidate that the reason why assessment of credibility of witnesses is basically vested to trial court. It is due to the wide range opportunity the Page 3 of 9 .P · trial court has compared to the appellate courts in as far as controlling and regulating the proceedings and the court record before it are concerned. It is for that purpose, it is well settled in our law, as Ms Mushi submitted, that under normal circumstances appellate courts are bound by trial court's findings as to the credibility of witnesses, save only if there are circumstances on the record which call for a reassessment of their credibility (see: Omari Ahmed v Rep. (1983] TLR 52, Ali Abdallah Rajah v Saada Abdallah Rajah & others (1994] TLR 132, Adventina Alexander v Rep., Cr. Appeal No. 134 of 2002 and Ex.G.3205 Pc Yassin Ramadhani v. The Republic, HC Criminal Appeal No. 176 of 2014 (Dar es Salaam

Registry-unreported). The powers the trial court has under sections 210 ahd 212 of the Criminal Procedure Act, [Cap.20 R.E.2002] and section 176(1) of the Evidence Act, [Cap.6 R.E.2002] provide enough illustration to its wide range opportunity underscored above. The cited provisions provide in- extenso: "210. (1) In trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner- { a) the evidence of each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his personal direction and superintendence and shall be signed by him and shall form part of the record; and {b) the evidence shall not ordinarily be taken down in the form of question and answer but, subject to subsection (2), in the form of a narrative. (2) The magistrate may, in his discretion, take down or cause to be taken down any particular question and answer. (3) The magistrate shall inform each witness that he is entitled to have his evidence read over to him and if a witness asks that Page 4 of 9 his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence." "212. When a magistrate has recorded the evidence of a witness he shall also record such remarks, if any, as he thinks material respecting the

demeanour of the witness whilst under examination." "176.(1) The court may, in order to discover or to obtain proper proof of relevant facts, ask any question it desires, in any form, at any time, of any witness or of the parties about any fact relevant or irrelevant and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question: Provided that judgment shall be based upon facts declared by this Act to be relevant and duly proved." In this case, I dare to hold that the credibility of the four prosecution witnesses cannot be free from criticism because: first, no search warrant was tendered in court to prove that the instruments found in possession of the accused were all found in his actual possession; second, the searching party or investigators failed to bring in court his concubine who was at the scene; third, contradictions as to wherefrom exactly the instruments were seized between his pair of trousers or his pence were not resolved; fourth, there was no actual offence planned or committed that was matched with the instruments alleged to have been found with the appellant which naturally are widely domestically used; fifth, there was no evidence to support

PW.4's allegation that the appellant had admitted to have been found with the said items and use them in housebreaking. Under the circumstance, I discredit the credibility crowned to the four witnesses by the trial court. Page 5 of 9 Additionally, the findings of the trial court quoted earlier exemplify that the learned trial magistrate convicted the accused basing on the appellant's defence. The provision of law under which the appellant was charged with reads: "298. Any person who is found under any of the following circumstances, namely- (a) being armed with any dangerous or offensive weapon or instrument, and being so armed with intent to break or enter a dwelling house, and to commit an offence therein; (b) being armed at night in the manner referred to in paragraph (a) with intent to break or enter any building whatever and to commit a an offence therein; ( c) having in his possession. by night without lawful excuse, the proof of which lies on him, any instrument of housebreaking; (d) having in his possession by day any instrument of house breaking with intent to commit an offence; (e) having his face masked or blackened or being otherwise disguised, with intent to commit an offence; or (f) being in any building whatever by day or night with intent to commit an offence therein, is guilty of an offence and is liable to imprisonment for five years or, if he has been

previously convicted of an offence relating to property, he is liable to imprisonment for fourteen years." According to the charge sheet, the appellant was charged under section 298( d) above whose ingredients of offence reads- having in his possession by day any instrument of house breaking with intent to commit an offence which is different to section 298( c) above whose ingredients shifts the burden of proof from the prosecution to the defence as it happened in this case. The trial court seems to have mismanaged its proceedings. In the case of Christine Kale and another v. Rep. [1992] TLR 302 the Court of Appeal held that an accused ought not to be Page6of9 :-,, . convicted on the weakness of his defence but on the strength of the prosecutions' case. I therefore hold that, it was wrong for the learned trial magistrate to convict the appellant on the weakness of his defence which based on the provision of law which was not cited and pleaded to. Lastly, I will briefly determine the correctness of the charge in the line with the evidence adduced in court. It is trite that magistrates and judges are obliged to pay regard to basic standards of fair trial which were enumerated to include, but not limited to; first, to understand the nature of the charge; second, to plead to the charge and to exercise the right to challenge it; three, to understand the nature of the proceedings,

namely, that it is an inquiry as to whether the accused committed the offence charged; four, to follow the course of the proceedings; five, to understand the substantial effect of any evidence that may be given in support of the prosecution; and six, to make a defence or to answer the charge (see: Regina v. Henley (2005) NSWCCA 126, a decision by the New South Wales Court of Appeal and Mussa Mwaikunda v. Republic, [2006] TLR 387 (CAT). In this case the statement of offence state that: "Being found armed with an instrument of house breaking; Contrary to section 298(d) of the Penal Code, [Cap.16 R.E.2002]". The actual words of section 298(d) reproduced above state: "having in his possession by day any instrument of house breaking with intent to commit an offence". This variance establishes a violation to sections 132 and 135(a) (ii) of the Criminal Procedure Act, Cap.20 R.E.2002. It is therefore evident that the appellant from day one was not made to clearly understand the Page 7 of 9 ~. nature of the charge he was called to plead to, to understand the nature of the proceedings, to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution, and to make his defence. In view of the foregoing, it is clear to me that the learned trial magistrate decided to treat the offence as if it was one committed

under section 298(b) or (c) of the Penal Code (supra) that's why he shifted the burden of proof. He also entertained an assumption that the instruments were used in committing other offences. He completely forgot that the offence under section 298(d) is proved by three key ingredients: one, being found in his possession any instrument of house breaking; two, the offender must be found in a day time; and three, the intent to commit an offence by the offender. As the charge read and pleaded to by the appellant was not compatible to the evidence received I find the trial court's proceedings and findings to have offended the appellant's right to fair trial. The same were null and are hereby quashed. For the reasons pointed above, I allow the appeal and accordingly quash the conviction and set aside the sentence. The appellant is to be released from custody forthwith unless if he is otherwise lawfully held. "- Page 8 of9 Page 9 of 9 1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 62 OF 2014 Originating from Criminal Case N0.686 of 2012 of District Court of Temeke 1. VICENT LUCAS@ MATIMBWA 2. GREYSON EXAVERY GALINOMA .................. APPELLANTS V REPUBLIC ....................................................... RESPONDENT Date of last 'Order 30/5/2015 Date of Judgment 30/6/2015

JUDGMENT A.Shangwa, J In this case, the Appellants Vicent Lucas @ • Matimbwa and Greyson Exavery Galinoma were charged in the District Court of Temeke with the offence of Armed Robbery C/S 287 A of the Penal Code Cap 16 of the Laws R.E.

2002. They 2 were convicted of the offence charged and sentenced to 30 years imprisonment. They were not satisfied with both conviction and sentence. They appealed to this court. In their petition of appeal, they raised six grounds of appeal which are as follows:- 1. That the trial Magistrate erred in law and fact by admitting in evidence the caution statements · which were unprocedurally taken from them and a pistol tendered by P. W2 as exhibit.

2. That the trial Magistrate erred in law and fact by taking into account the identification parade evidence of 3 P. W.1, P. W. 3 and P. W.4 which was incredible.

3. That the trial Magistrate erred in law . and fact by not assessing contradictory and conflicting evidence of P. Wl and P. W.2 as to how both of them were arrested.

4. That the trial Magistrate erred in law and fact by not taking a personal plea from them when the case file changed hands.

5. That the trial Magistrate erred in law and fact by convicting them in a case where the prosecution failed to lead 4 direct evidence as to how both of them were arrested.

6. That the trial Magistrate misdirected himself in law and fact by sentencing the 2 nd Appellant before finding him guilty of the offence charged. I have gone through the typed judgment of the trial Magistrate Hon. Shao, RM and I have found a big anomaly and blunder at pages 7 and 8. Whereas, the trial Magistrate found that the prosecution failed to prove its case against the 2 nd accused/ 2 nd Appellant beyond reasonable doubt, he went ahead and sentenced him to 30 years 5 imprisonment. By so doing, the trial Magistrate was grossly reckless in the performance of his duties. With regard to the trial Magistrate's finding of guilty against the 1st accused / 1 st Appellant and his subsequent conviction, I find that he was found guilty and convicted on insufficient evidence. First of all, the offence was committed during the night by three robbers. According to P.W.1 Apia Shirima and P.W3 Gift Mpopo, the 1 st accused / 1 st Appellant was one of those robbers who entered into her M- Pesa Kiosk at Temeke Mwisho on 16th July, 2012 and that they identified him at the time of the incident as 6 there was clear electric light and that they also identified him at the identification Parade and that at the time of the incident, he was armed with a gun which he triggered and fired one shot in the air immediately before stealing their Tshs 12 million, two mobile phones i.e Vodafone Ml and

Nokia. However, the type of weapon which was tendered in Court was a pistol and not a gun. Also, no identification parade register was tendered by the prosecution in evidence showing the officer who conducted the identification parade and how he conducted it. According to P.W2 E 4216 0/CPL Calistus the accused/ Appellants were arrested by citizens and that during investigation, he found a pistol which 7 was used in the commission of the offence at the scene of crime. However, in their respective testimonies, P.W. 1 and P.W.3 told the trial Court that immediately after robbing their properties, the robbers run away which means that they run away with their weapon. It is not clear as to whether or not the 1st accused / 1 st Appellant admitted in his caution statement which was written by sgt Daniel who could not be found for being cross-examined that he committed the offence charged. The said caution statement was tendered in evidence by P.W2 D/CP/ Calistus. 8 For these reasons, I quash the trial Court's conviction imposed on the 1st Appellant as well as the sentence of 30 years term of imprisonment which was imposed on him. Also, I quash the trial Court's sentence which was imposed on the 2 nd Appellant by the trial Magistrate in a reckless manner. Exhibit x, a pistol should be returned to the police for its disposal. Finally, I order that both Appellants should be released from prison henceforth unless otherwise they are lawfully detained therein on any other criminal accusation. • 9 Delivered in open court in the presence of the Appellants and the State Attorney for the