20160530 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY . ··AT DAR ES SALAAM . (APPELLAT~ JURISDICTION) CRIMINAL APPEAL NO. 114 OF 2015 (From Ilala District Court Criminal Case No. 387/2011) JACOB LUCAS ......................................................... APPELLANT

VERSUS THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 05/04/2016 Date of Judgment: 30/05/2016

JUDGMENT FELESHI, J.: Before the District Court of Ilala, the accused was charged with the offence of stealing from motor vehicle contrary to section 269(c) of the Penal Code, [CAP. 16 R.E, 2002] where it was alleged that on 24th day of May, 2011 at about 08:45hrs along Garden Street within Ilala District in Dar es Salaam region he stole cash money amounting to Tshs. 12,727,000/= from a motor vehicle with registration number T 778 ADW make Toyota Chaser, the property of one Abubakar s/o Gulam Hafiz. He pleaded not guilty and upon trial he was tried, convicted and sentenced to five (5) years imprisonment. Aggrieved, he has preferred this appeal on six (6) grounds that:- 1. The trial Magistrate err~d in law in founding conviction based on shaky/conflicting evidence adduced by prosecution while disregarding the evidence adduced by DWl, DW2 and DW3 respectively.

2. The trial Magistrate erred both in law and in fact in holding that the appellant did not ask PW2 a question and further that he did not have Page 1 of 7 ,., receipts in relation to items found in his possession which omissions influenced him thus wrongly convicting the appellant.

3. The trial Magistrate erred in law in -refusing to accept and admit as exhibit electronic evidence (CD) which is admissible under the law thus denying the appellant a fair trial as guaranteed under article 13(6)(a) of the Constitution of the United Republic of Tanzania.

4. The trial Magistrate erred both in _law and in fact in ordering that the Exhibits be valued, sold and proceeds be compensated to the victim while there was no cogent evidence led to prove that the items -were indeed bought with the money alleged to have been stolen. s. The trial Magistrate erred both in law and in fact by convicting the appellant on the weakness of his defense (failure to give notice of alibi) and not on the strength of the prosecution evidence.

6. The sentence awarded by the trial Magistrate is excessive taking into account the circumstances of the cas~ _if__ at_ all _the-guiltiness-of-the --.- -·-a-ppellantWas proved beyoncfreasonable doubt. Hearing of the appeal was conducted partly orally and partly by written submissions whereas the appellant was unrepresented while the Respondent/Republic had services of Ms. Mkunde Mshanga, learned State Attorney. Addressing the appeal through written submission, the appellant submitted for the 1st, 2nd , 4th & 5th grounds altogether that, the assertions by PW1 that he found the central lock of his car broken is an afterthought for that was not reported to the Police for investigation. Besides, PW2 never talked of the alleged broken central lock of the motor vehicle. Moreover, the said central lock was not tendered in Court in evidence. He argued that, the assertions of the broken central lock of the motor vehicle was a fabrication to justify the unfound money in a car which was locked of which PW1 did not leave the respective key to the appellant and there was no proof that he was ever left with the car to wash it. Page 2 of 7 Besides, there was a contradiction between the testimonies by PWl and PW2 because PWl alleged that PW2 witnessed him handing the motor vehicle to the appellant while PW2 testified not to have witnessed the said handing over of the motor vehicle to the

appellant. Likewise, though PWl testified that the car was not washed by the appellant as agreed, PW2 testified to have seen the appellant washing inside the motor vehicle. Moreover, PWl testified to have found the vehicle unlocked while PWS testified that on his return, PWl opened the door and found the money stolen. He added that, according to PW4, the receipts of the properties found in the appellant's house were taken by the Police as corroborated by DW2 thus arguing to be untrue for the Court to say that the appellant had no receipts of the said properties found in his possession. Addressing the 3rd ground of appeal, the appellant submitted that, the amendment to the Evidence Act pursuant to Written Laws (Miscellaneous Amendments) Act, 2007 which amended section 40 of the principal Act by adding section 40A introduced a leeway for admission of electronic evidence in the form of video or audio recording. He argued, the CD was a crucial piece of evidence for it has a conversation between PWl, PWS and another person in respect of what they needed from DWl where PWl admitted that he did not hand over his motor vehicle to DWl for washing. In support of the appeal, the learned State Attorney submitted that, for the offence of stealing to be proved, the prosecution ought to have established that there was: one, asportation on the actus reus and mens Page 3 of 7 . rea whereas in

the case at hand, none saw the appellant taking the money from the motor vehicle. She cited the decision in Christian Mbunda vs. Rep. [1983] T.L.R. 340 (HC) adding that, the circumstantial evidence did not establish the charged offence and no witness testified to have seen the appellant committing the offence. Two, she argued that, the evidence by PWl & PW2 contains material contradictions as initially PWl testified that, the motor vehicle was broken and the money was taken whereas later he testified that, the said motor v~hicle\'Vas oot brok~n th<Jugh the_i:non~y_was s!glen and his evidence was clear that he locked the said motor vehicle and left with the keys. Moreover, PW2 testified that he saw the appellant washing the motor vehicle while PWl testified that, the appellant did not wash the motor vehicle. She cited the case of Mohamed Said Matula vs. Republic [1995] T.L.R 3 where the Court of Appeal of Tanzania underscored that, whenever such inconsistencies emerge, then, they have to be resolved. Having considered the Court record, grounds of appeal and the submissions by the appellant and the learned State Attorney in unison, the following are the deliberations of this Court in disposal. Before considering the respective submissions, this Court will first address one issue regarding change of the Magistrates who happened to record the evidence under scrutiny. It is on

record that the first four prosecution witnesses, that is, PWl GHULAM HAFIDH MUCADAM, PW2 JULIETH JOHN, PW3 CPL NAIMAN and PW4 TATU OMAR! MABULA their testimonies were recorded by Luhwago, RM. It is only the last witness PWS Page 4 of 7 DCL SALUM whose testimony was recorded by Hassan, RM, who also composed the impugned Judgment. Notably, on 03/12/2014, Luhwago, RM presented the case file to the SRM in-charge for reassignment but no order of reassignment was ever put on record. Besides, when hearing of the case was resumed on 15/01/2015 by Hon. Hassan, RM, he directly recorded the evidence of PW5 without affording the appellant opportunity to have a word whether the trial proceed from where Luhwago, RM ended or to recall the already testified witnesses. That -to this Court certainly contravened the provisions of section 214(1) of the Criminal Procedure Act, [CAP. 20 R.E, 2002] which provides:- "Where any magistrate, after having heard and recorded the whole or part of the evidence in any trial ... is for any reason unable to complete the trial ... or he is unable to complete the trial ... within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial ... and the magistrate so taking over may act on the evidence ... recorded by his predecessor and may in the case of a trial and if he considers it necessary, re-summon the

witnesses and recommence the trial ... ". The rationale in law for a successor trial Magistrate to have opportunity to hear the witnesses was lucidly stated in the case of Remebisele s/o Edison v. R. (1967) H.C.D. No. 72 that:- "The discretion given to a magistrate by the Criminal Procedure Code section 196, should be exercised with great care for the primary purpose of the hearing is to permit the court to observe the demeanour and evaluate the credibility of all the witnesses. In the present case the charges were grave and the accused persons vigorously contested the allegations of the prosecution witnesses .... ". Page 5 of 7 The question then is what is the fate of such irregularity? The immediate answer can be fetched from the decision of the Court of Appeal of Tanzania in Richard Kamugisha @ Charles Samson and 5 Others vs. Republic, Criminal Appeal No. 59 of 2002 ( unreported) which has been followed in a string of this Court's decisions including those in Godwin Raphael Mushi v. Rep. HC Cr.Appeal No. 33 of 2014, Kassim S/0 Said Ngalambe @ Kessy and Muhsin S/0 Ismail Manzi, HC Cr.Appeal No. 162 of 2014 and Thadey Stambuli Pangaheli @ Nuru vs. Rep. Cr.Appeal No.23 of 2015 -all from Dar es Salaam Registry- unreported). In Richard Kamugisha@ Charles Samson and 5 others' case (supra) the Court of Appeal of Tanzania nullified the proceedings and Judgment of the trial court and

candidly held that:- "We have cited the above cases to illustrate that where a trial is conducted by more than one magistrate, the accused should be informed of his right to have the trial continue or start afresh and also the right to recall witnesses. The word used in section 214 (1) of the Criminal Procedure Act, 1985 is 'may' which indicates discretion but in view of the fact that the right to a fair trial is fundamental, the court has an obligation to conduct a fair trial in all respects. We are hesitant to say that where, as is the case here, the third magistrate only heard 3 defence witnesses and did not take the evidence of the five prosecution witnesses, the magistrate adjudicated the case fairly." Therefore, in a nutshell, though the law extends discretionary powers to a successor trial Magistrate, the circumstances of the case were so demanding for the four witnesses who had already testified in Court to· have been recalled to testify or have the proceedings continued from where the predecessor magistrate ended upon an indication by the accused that the continuation would not prejudice his case, short of which, Page 6 of 7 the appropriate order is to nullify the trial Court proceedings and order for a retrial. In the present appeal in a nutshell, from all the above in composite, as no indication was solicited from the appellant, the Proceedings, Judgment and Order

entered by the trial Court are hereby nullified, quashed and the sentence is set aside. I further make order for the appellant to be released from prison unless otherwise lawful held in another lawful detention with the option -· - - ·-- given to the Director of P-ublk--Prosecution who Wfltially did -not support the quashed conviction, to re-institute the same charge only upon satisfaction that he has a prosecution material case against the appellant. It is so ordered.

LESHI

JUDGE Judgment delivered in the presence of Ms. Lilian Rw~ruu State Attorney, for the Republic, Respondent with the Appellant present in person. Right of ~~s x lai ,- v-1' _0 fi.,_ - ! , ., "', , ~ ' .,,vi"'. '"' .,:,,_.i;;,,;;;Ji1#""""'" . ,.'~;1,:~- :;:J;Lf\11":-1=-F I '''-?-' ~=,,,.:s'"-·.i.'\- · · 30.05.2016 ',-.......,,. ~~-~:if; .. ~~-. ' Page 7 of 7 '\ ~ ...--- . . •. !':;.=~ '.