juma saidi juma mkongo another vs republic 2023 tzhc 19896 31 july 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL APPEAL NO 31 OF 2023 (Originating from Newaia District Court at Newaia in Criminal Case No. 41 of2022) JUMA SAIDI JUMA @ MKO.NGO .................. ................1st APPELLANT RASHIDI HATIBU ATHUMANI @ CHING'ATI ...........2nd APPELLANT

VERSUS THE REPUBLIC................................. RESPONDENT

JUDGMENT 77'' 7 31:'! July 2023 LA LT Al KA, J. The appellants herein JUMA SAID! JUMA @ MKONGO and RASHIDI HATIBU ATHUMANI @ CH I NG'ATI were arraigned in the District Court of Newaia at Newaia charged with two counts: of : 1. Burglary contrary to section 294(1) (a) and (2) of the Penal Code Cap 16 RE 2022 and 2. Theft c/s 258 and 265 of the Penal Code (supra). The prosecution's story which triggered the matter at hand was that on the 31st day of March 2022 in the night hours at Kitangari Village in Page 1 of 8 Newala District Mtwara Region, the appellants broke into the house of one Hamisi Mohamed SMarmsi whereby they stole a motorcycle with registration number MC397 DBJ make HAQJUF black in color valued at TZS 2,600,000/-. After a full trial, the trial court was convinced that the prosecution case was proved beyond reasonable doubt. It convicted the appellants as charged and sentenced them to five years imprisonment for the 1st count and three years in prison for the 2nd count. The learned magistrate (AM Bushsri, SRM) also ordered that the appellants pay compensation to the tune of TZS 2,600,000 within 3 months after the judgement. Dissatisfied, the appellants have appealed to this court on seven grounds as reproduced bellow: Z. That the prosecution side didn't prove the case beyond reasonable doubt, 2. That the trial Court having failed properly (sic!) to erarrnne, evaluate and analyze evidence on record 3. That the trial court erred in lav/ and in fact by con victing and sentencing the appellant as it did, basing on unreliable evidence.

4. That the trial court erred in law and in fact in failing to consider at all the appellant's defence, thereby causing serious injustice on the part of the appellants. 5, That the trial Magistrate erred in law and in fact in failing to make a finding that the evidence on record do not establish the offence charged 6. That the manner in which the proceedings at the trial court were conducted was irregular and/or improper.

7. That an order for compensation has no basis in this case and in making it causing (sic!) serious injustices on the part of the appellant. When the appeal was called on for hearing on the 17th day of July 2023, the appellants appeared in person, unrepresented. The respondent Page 7 of 8 Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney. The appellant requested that the learned State Attorney is allowed to submit first while he reserved his right to add a few words should the need arise. Taking up the podium, Mr. Hurubano declared boldly that the respondent supported the appeal. He stated that he would respond to the grounds of appeal as follows: grounds 1, 3, and 5 collectively as they all fault the proof of the prosecution case beyond reasonable doubt. On the above grounds, he explained that in order to prove the first count, the respondent was duty-bound to prove three ingredients: (i) that there was housebreaking and entering (ii) that such a breaking and entering was committed during the night (iii) that there was an intention to do so. According to the prosecution witnesses, Mr. Hurubano asserted, all these three elements were well addressed. On page 15 of the proceedings, PW1 had stated that on 31/3/2022, he and his family had closed all the doors of their house and went to sleep. In the morning, while getting ready to go to

church, he noticed that the motorcycle was missing. He then realized that the fence was opened and then closed back. The motorcycle in question was the one described above. Mr. Hurubano went on to explain that PW1 then reported the loss to the police and cooperated with them during the search. Later, he received a call from a person referred to as. Mama Ndole, who informed him that the first appellant’s lover had revealed that the motorcycle was in MasasL Page 3 of 8 This evidence proved the three elements of the first count beyond reasonable doubt. Regarding the second count of theft, Mr. Hurubano referred to the case of DPP v. SHISHIR SHYAMSI^GH Crim Appeal No 11 of 2021 CAT, Kigoma, which stated the elements to be proved for theft. These elements include the existence of movable property, ownership of the property by another person, intention to move and take the property, moving and taking the property out of the possessor’s possession, acting dishonestly for wrongful gain or wrongful loss to another, and doing so without the consent of the possessor. In the present appeal, Mr, Hurubano argued that it was shown that the motorcycle in question was movable property capable of being moved, PWl’s evidence and the exhibit KM1 established that the motorcycle belonged to him. The appellants had the intention to take the motorcycle, moved it out of PWl’s possession without consent,

and did so dishonestly for wrongful gain to themselves arid wrongful loss to PW1. Referring to the Court of Appeal of Tanzania’s case of NYE'RERE NYAGUE v. REPUBLIC CRIM APPEAL NO 67 of 2010 CAT, Arusha, where the CAT stated that "the best evidence in a criminal trial is a voluntary confession from an accused himself" Mr. Hurubano pointed out that the appellants had confessed to the police, providing detailed explanations of how they committed the offense. Additionally, Mr. Hurubano reasoned, the appellants never objected to the admission of their cautioned statements in court, which were admitted Page 4 of 8 as KM3 and KM2, Despite the appellants' contention that they were forced to confess, Mr. Hurubano considered this a mere afterthought and prayed for these grounds to be dismissed. Regarding the second and fourth grounds, which were about the failure to evaluate and consider the defense evidence, Mr. Hurubano argued that the magistrate had sufficiently evaluated the defense evidence on page 41 to 42 of the judgment. He pointed out that the appellants were habitual offenders with previous convictions, which had been established in previous cases. He further emphasized that even if there were any irregularities in the evaluation of evidence, it wouldn’t be enough to vitiate the decision of the court, citing the case of LEONARD M WAN ASHOKA, v. REPUBLIC Crim App 216 of 2014

CAT, Bukoba. He prayed for these grounds to be dismissed. Concerning the 6th ground, which raised issues about the manner in which the proceedings were conducted, Mr. Hurubano asserted that the proceedings were properly conducted. He highlighted that the prosecution called witnesses, and the appellants were given the opportunity to cross- examine them. All exhibits were read out loud, and the appellants accepted their admission. He also mentioned that the appellants were accorded the opportunity to defend themselves, and their evidence was properly recorded. Even if there were any irregularities, Mr. Hurubano stated that it would not be sufficient to vitiate the trial court’s decision under section 388 of the Criminal Procedure Act Cap 20 RE 2022, and he prayed for this ground to be dismissed. Page 5 of 8 Addressing the 7th and last ground, which concerned the order for compensation, Mr, Hurubano argued that it had a basis and was necessary to avoid injustice. He explained that the stolen motorcycle was valued at TZS 2,600,000 and leaving the complainant (PW1) without any compensation from the appellants would not be appropriate. He referenced section 31 of the Penal Code Cap 16 RE 2019, which provides for the option of compensation. In conclusion, Mr, Hurubano firmly believed that the appeal had no merit and prayed for it to be dismissed in its entirety. The appellants, on

their part, were given an opportunity to speak. The first appellant stated that he is a resident of News la and was born in Kitangari, where he has been living since then. He clarified that he is not related to the 2nd appellant. He prayed foe the acceptance of the joint grounds of appeal and requested the court to set them free. The second appellant prayed for the court of justice to accept their written grounds as part of their submission. He opposed the lawyer’s assertion and claimed that it was not true. According to him, they were charged with stealing a motorcycle, but the motorcycle was never presented in court, leading him to believe that the case was fabricated. He requested the court to set aside the judgment and release them to regain their freedom. Additionally, he claimed that their previous convictions were forced upon them by the police. I have-.dispassionately considered the grounds of appeal and the submission of the learned State Attorney. I have also examined the lower court records. The evidence used to ground conviction is overtly Page 6 of 8 circumstantial. There is no doubt that the two young people were convicted of theft before. However, I do not think that the same is enough: to ground conviction. That the "lover" had reported that the motorbike was in Masasi is itself a very questionable evidence. I do not intend to water down the value of

circumstantial evidence in criminal justice, not at all. In fact, circumstantial evidence sometimes produces the best results. See JULIUS 5/0 JUSTINE & FOUR OTHERS V. REPUBLIC, CRIMINAL APPEAL NO. 155 of 2005 However, care must be taken to ensure that such evidence unquestionably points to the accused person to the exclusion of anyone else. ' In the case of SIMON MUSOKE V. REPUBLIC [1958] 1 EA 715, the erstwhile Court of Appeal for East Africa held: "In a case depending exclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the Inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that ofguilt." It appears that the way the appellants were arrested in the first place and how they were linked to the offence was partly based on their previous conviction and sentences arising from a more or less similar offence. With due respect, the learned Magistrate should have warned himself against accepting the tag of criminality even where it does not apply. The constitutional right of presumption of innocence applies even to those that on the face of it "appear" to be habitual offenders. The circumstantial evidence in this case has been stretched too far. It has resulted into conviction without proof beyond reasonable doubt as required by law. Page 7 of 8 Premised on the above, I allow the appeal. I quash the conviction and set aside the sentence and all orders emanating therefrom. I order that JUMA SAIDI JUMA @ MKONGO and RASHIDI HATIBU ATHUMANI @ CHING'ATI be released from prison forthwith unless they are being held for any other lawful cause(s). .ALTAI KA

JUDGE 31.07.2023 Court Judgement delivered under my hand and the seal of this court this 31st day of July 2023 in the presence of Ms. Atuganile Nsajigwa, learned State /WFney'afid-'the appellant. tP fl ir \ E.l IJKLTAIKA

JUDGE 31.07,2023 The^FrgtFb^bappeal to the Court of Appeal of Tanzania fully explained. E.I.MJM-TAIKA

JUDGE 31.07.2023 Page 8 of 8