job moses makassy vs republic 2017 tzhc 2234 28 june 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO 6 OF 2017 (Original Criminal Case No. 68 of 2016 of the District Court of Dodoma at Dodoma) JOB MOSES @ MAKASSY............................................................APPELLANT VERSUS THE REPUBLIC.............................................................................RESPONDENT JUDGMENT 22/06/2017 & 28/06/2017 A. MOHAMED, J. The appellant and another person were jointly charged with and convicted in absentia of five offences to wit conspiracy +o commit an offence c/s 384, forgery c/s 333, and 337, making a document without authority c/s 346 (a), uttering a false document c/s 346 (a) and obtaining money by false pretence c/s 302, all offences under the Penal Code [Cap 16 RE 2002]. It was alleged by the prosecution that the two accused persons on 16/6/2011 within Dodoma municipality obtained one million shillings from the complainant PW3 by purportedly selling him a plot No. 5 Block “Q” Ipagala South by presenting him with forged documents namely a letter of offer and of allocation as well as a receipt bearing the name of Sadick Mtani purportedly issued by the Capital Development Authority. The prosecution alleged during the course of the trial, both accused persons jumped bail and hearing continued under the provisions of section 226 of the Criminal Procedure Act [Cap 16 RE 2002] resulting in their being convicted in absentia. Against that decision, the appellant appeals on a number grounds which are can be consolidated into the following: 1. That there is a contradiction between PW1 ’s testimony who said the appellant obtained 1 million shillings whilst PW3 said he gave him 850,000/= shillings. 2. The prosecution failed to establish its case beyond reasonable doubt. 3. The trial court failed to observe the requirements of sections 235 (10 and 312 (2) of the Criminal Procedure Act. At the hearing of the appeal, Ms. Taji learned State Attorney represented the Respondent and the appellant appeared in person. The appellant relied on the grounds of appeal in his memorandum of appeal in support of the appeal. In reply, Ms. Taji’s argument was that the prosecution proved its case beyond reasonable doubt under section 110 of the Tanzania Evidence Act [Cap 6 RE 2002]. She said, in proving the offences, the prosecution called 3 witnesses. PW3, the complainant told the court that the appellant and his co accused told him they were selling a parcel of land described as plot No. 5 block “Q” at Ipagala South in Dodoma municipality. The complainant paid the appellant shillings 850,000/= as the first installment and in turn, the appellant gave the appellant the title deed of the plot in question as security. Ms. Taji said PW3 took the said document to the CDA to ascertain whether the appellant owned the plot. He was told the documents were faked. He then went to report to matter to the police. PW1, F I 392 Corporal Wakala dispatched the documents to the CDA to ascertain whether the appellant was the owner. He was informed by a letter from the CDA that the documents were false as the said plot was owned by one Anna Abdallah. PW1 tendered all the documents including the CDA letter and they were collectively admitted as exhibit P I . Ms Taji submitted that since the appellant jumped bail, the prosecution had prayed the proceedings to ensue under the provisions of section 226 of the CPA and the trial magistrate granted the prayer. Consequently the documents were collectively admitted as exhibit P I. She said PW1 also tendered the appellant's cautioned statement in which he admitted he forged the said documents and that they were not from the CDA. The statement was admitted as exhibit P2. She went on to say PW2 Rwechungura, a land officer from the CDA, testified that the title deeds of the suit plot were forged. Finally she reiterated that the prosecution proved its case beyond reasonable doubt that it was the appellant and his accomplice who had committed the offences they was charged off. She prayed this court upholds the lower court's decision. In his rejoinder submission, the appellant insisted that a person who admits committing a crime is normally sent to a justice of the peace. And that any buyer of land cannot pay money for buying unless he first confirms the documents show the seller is really the owner of the said plot by verification through the CDA. Thirdly, that there is no expert who testified in court who said or proved whether he or his co- accused forged the documents. Fourthly that there is no document or person showing he received any money from PW3. He insisted he did not jump bail as he was involved in a motor vehicle accident on his way to Dodoma and was admitted at the Mwananyamala hospital. He said the accident caused his left rib and leg to be broken and he was also stitched with six stitches on the heed. But he claimed his sureties were attending court and they informed the magistrate of the accident and injuries. He did not give his sureties his hospital documents since they were issued after being discharged. Lastly he submitted there was a contradiction in the testimonies of the prosecution witnesses. He said whereas PW1 said he obtained one million shillings, PW3 said he gave him 850,000/= shillings. His discharge form from the Mwananyamala Hospital dated 03/09/2013 showed he was admitted on 15/05/2013 and discharged on 3/9/2013. After hearing the parties and having reviewed the record, there are two questions for this court’s determination in this appeal, First whether the prosecution proved its case beyond reasonable doubt and whether the court complied with section 226 (2) of the Criminal Procedure Act [Cap 16 RE 2002]. In regard to the 1st question, I am of the view the prosecution failed to prove its case beyond reasonable doubt. The charge sheet in the 5th count reads that the appellants received one million shillings from the complainant (PW3) and was supported by the testimony of PW1. However, in his testimony, PW3 said he paid the appellant and his co-accused 850,000/= shillings. This is an inconsistency that cannot be resolved and creates a doubt that should be in the favour of the appellant. Despite the trial being in absentia, the burden to prove the case still rested on the prosecution. I could not discern any proof of the offence of forgery as well as the offence of making a document without authority at all. There were indeed elements of uttering a false document. I need not elaborate more on the prosecution’s failure to discharge its burden as I have noted another legal failure on the part of the court that goes to the root of the case. The appellants were absent when the case came up for hearing on 25/9/2013 and they continued to be so absent right through the time all the prosecution evidence was received to the time of their conviction in absentia. On 2/7/2012, the co-accused’s surety withdrew his bond and the bail was cancelled. However, I have not seen anywhere in the proceedings that failure by the appellant to appear in court prompted the trial magistrate to require the appellant’s sureties to show cause why the appellant did not appear in court. Instead she convicted the appellant and issued a warrant for his arrest after the conviction to serve the 3 year custodial sentence for each count the appellant was convicted of. I think this was a fit case for the exercise of the trial magistrate’s discretion under subsection (2) of section 226 of the Criminal Procedure Act. As stated in Marwa Mahende v Republic (1998) TLR 249 it was held that:- 11A proper construction of section 226 (2) of the Criminal Procedure Act is that upon apprehension of a person convicted and sentenced in absentia, he should not be taken straight to serve his sentence but should be brought before the trial court to enable the 6 Court to exercise the discretion to set aside the conviction or not." The Court held that: “7he failure to take the appellant before the trial court to exercise its discretion under Section 226 (2) of the Criminal Procedure Act denied the appellant his fundamental right to be heard and vitiated the proceedings It is clear the circumstances pertaining in this appeal are similar. After being apprehended, the appellant was sent to prison to serve the sentence passed in absentia. As seen in the record, the warrant of commitment for the sentence of imprisonment was signed on 31 /3/2016. He has therefore been imprisoned for 15 months to date. In Hussein Raphael and two others v. R, Criminal Appeal No. 280 of 2008, (CAT), Arusha, the Court of Appeal of Tanzania had this to say: “In the interests of justice and in order to uphold the appellant's fundamental right to a fair trial under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 the right to be heard being paramount, we hereby set aside the proceedings and judgment of the High Court and remit the case to the trial court with a direction that the second appellant be brought before the magistrate to be dealt with in accordance with the provisions of Section 226 (2) of the Criminal Procedure Act. The appeal in respect of the second appellant is therefore allowed to this limited extent After the foregoing, and in consideration that the appellant has served 15 months of his sentence, I allow the appeal; set aside the trial court’s proceedings and judgment. The appellant is to be freed forthright unless held for another lawful cause. A. MOHAMED JUDGE 28/6/2017 The right of appeal explained.