20180928 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 329OF 2018 I (Appeal from the Judgment of the· District Court of Musoma at Musoma (Ndira, RM) Dated 17th of October, 2018 in Criminal Case No. 180 of 2017 KULWA ANTHONY ............. 1 ••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ................................................. RESPONDENT I JUDGMENT OF THE COURT 10.04.2019 & 30.05.2019 M.K. ISMAIL, J The appellant was conv:icted of the offence of stealing, contrary to sections 258 (1) and 265 of the Penal Code, Cap. 16 ' J R.E. 2002, and sentenced to imprisonment for a term of four years. The brief facts of this case are that; on 20 th July, 2017, at i Nyasho area within Musomd Municipality, Mara Region, the appellant stole cash to tune of tzs. 1,229,000/= and credit vouchers worth TZS. 100,000/=, both of which were the· properties of one i Beatrice Libaba. It transpired th! t on the fateful day, the appellant visited the complainant's shop and ordered 9 soda and a cake. I He, in turn, gave a 1,000/= :shilling note for the service. The I complainant went to a nearby shop to get small denominations which would help her return thJ balance to the appellant. She left the appellant within the shop ~remises. On her return, she did not find the appellant and her wall ! t in which she kept the money and vouchers was also missing. PWl pursued the appellant who denied I I ! to have taken the wallet. Wh :, n the appellant was arrested, he recorded a statement in whiJh he confessed that he took the wallet and hid it under the driJ r's seat in a t;uck. The conducted e, I , ! search did not find anything. 1 Subsequently, the appellant was arraigned in the District I i Court of Musoma at Musoma,! where criminal proceedings were instituted, vide Criminal Case Nb. 180 of 2017. After the hearing, the Ii : trial court found that the appellant was guilty. Consequently, the trial court convicted him of tJe offence and sentenced him to imprisonment for a term of fdur years. He was also ordered to 2 compensate the victim the suni of TZS. 1,329,000/= being the value of the cash and airtime stolen. ; Aggrieved by the conviction and sentence, the appellant has appealed to this Court, raising ~ive grounds of appeal. However, at the hearing, these grounds were narrowed down into two main contentions. One was that th~ testimony of PW 1 was irregularly recorded, in contravention 'of section 210 of the Criminal Procedure Code (CPA), Cap. 20 R.E. 2002. The second one was ' that conviction of the trial court was irregular since it was founded on a retracted confession whicr was not corroborated. At the hearing of the appeal, the appellant was represented by Mr. Nasimire, learned advocate, while the respondent enjoyed the usual services of Ms. Gisela Alex, learned State Attorney. Mr. Nasimire started by prefacing I what happened in the trial court, before he chose to argue generally, without making any specific reference to any of the grounds of appeal. He submitted that there was no sufficient evidence to convict the accused of the offence which he was charged with. Punching holes on the r 3 I I I I I',I • i i testimony of PWl, Beatrice Libaba, the counsel contended that the 1 I I said testimony lacks sufficient explanation in a number of areas. I; I I - I , , Picking a few of those insufficiencies, he said :that the witness did I I I ' I I not say where exactly, in that s'hop, she left the appellant and for I ' I i1 I what reason. He contended that the witness failed to tell if the shop was open or closed and How the appell9nt gained access to the shop. It was his further contention that PW l did not show that I I there was a wallet in the shop bnd that inside the wallet there was 1 i I, · I " I ' money and vouchers alleged t<DIi have been st0len. I I Still on PW 1, the learned dounsel submitted that identification I , I i ' I I of the appellant was a dock :identification which would not tell, !, i I with precision, if the appellaof is the same Rerson that PWl says I ' I ' was her customer who bougH:t a soda and a cake at her shop. ' ' I That PW 1 has not told the coU:rt the relationslilip that she had with :! I I I . the appellant to be able to tru~t and leave hi~ inside the shop. I I j i ' Further, the learned counsel took excep'tion to the manner in i' : which the testimony of PW l wds recorded, co·ntending that the trial magistrate did not append his signature on . the _proceedings, 4 i, i: I I ' consistent with section 210 of thf Criminal P~ocedure Act. To fortify Ii I' his view, he cited the case of Richard Mebolokini v Republic [2000] I, ~ I . TLR 90, in which it was held that failure to comply with the provisions j I of section 210(1) renders the prdceedings a nullity. 11 ! The counsel charged J. that with I nullification of the I ; proceedings, what remains is tHe appellant's cautioned statement j, I which was recorded as exhi~it Pl whose admission was hotly !, ! contested, and was admitted/, on the grownd that the appellant I I failed to cross examine on thb document. The other reason for admission was that the appellaht failed to s~bstantiate that he was I I 1' tortured. He contended that tre trial court believed in PW2 and I, held that the appellant's retr~cted confession was far weightier than his testimony under oJh. He con\ended that after the I I Ir retraction, exhibit Pl was uncorroborated and, therefore, unsafe to 11 ' convict on. Since the only co~roboration would come from PW 1's I I I testimony which he alleged to be irregular'. it was his view that the 1 1 , 1 I Ii conviction, sentence and or1er of compensation were wrongly arrived at and that the same s~ould be set 'aside. ,, ' I ,---·~-- s i; I. Rebutting the appellant's contention, tv:is. Alex began by 1: 1 i. supporting the trial .court's conviction I and sentence. Submitting on 1• I the first ground of appeal, the l~arned attorney argued that PWl 's ' I I. i testimony stated clearly that the appellant pqid TZS. 1,000/=. She I . I I said that the record shows the services ,, he received were valued at ! I 1. I TZS. 800/=, and that it was on her return to the shop that she found • I that her wallet was missing. She contended th6t PW 1's testimony is ,I ' that there was TZS. 1,229,000/= pnd vouchers worth TZS. 100,000/=, . I ' ' I all kept in the wallet, adding thpt it was not uncommon for a shop I I like that to have such money a1d vouchers. I, I Reacting on the appel,llant's relation~hip with PWl, the I • 1, I . counsel submitted that it wasi purely that ot a customer and a I I . . service provider. She said that i page 10 of th~ proceedings shows I i I that PW 1 traced the appelkµnt immediately but he rallied 12 I. I cyclists who intimidated hrr. As a result, the appellant I disappeared. The counsel fJrther contend~d that when PWl i' ' I testified, the appellant did noti cross examine' her (page 10 - 11 of 1, I the proceedings) and that, in, law, such failure is taken to be an 1 ' I. I I i admission of the facts adduced in testimony. · I I r i, I 6 ,1, 1,' I' i ii On the argument that PWll:, 's testimony was recorded in j, contravention of section 210 of the I CPA, the learned . attorney felt I I: that this ground is hollow, since th~ available facts are to the effect I, , i I' that the proceedings were duly si@ned and were in order. Reacting I' ' ' on admission of exhibit Pl, she cdntended that PW2 who recorded I 1· the cautioned statement testif(ed I during the, inquiry that the I , statement was recorded consistJ'nt with the law· and the court was I i I convinced that requirements 9f the law _were adhered to in ' ' j. recording the statement, arguin1g further that the confession was I ' I I freely given by the appellant.!' She submitte,d further that the J, ' I, appellant did not question PW~'s testimony. She contended that I , I the fact that the said testinrony was admitted means that I, 1 corroboration was not necessa 'ry, since it is n'ow settled that the I , ! victim's evidence is strong to /convict the' accused person. She I 1, urged the Court to dismiss the ~ppeal and uphold the trial court's I I decision. I! i' I, I, Submitting in rejoinder, th'.e appellant's counsel reiterated his I , i position, adding that Musarocl;"le's I signature at page 11 is against I, I' the order of adjournment and rot in relation to PWl 's testimony. He i ~ ~17 ~~~ I . contended that with this irregularity, the position is that it is as if PWl 1, I /, did not testify at all. Relying on t~e case of John Peter Shayo & 2 I, I, Others v. R [ 1998] TLR 199, he qrgued that .since exhibit Pl was I I repudiated, there was every ne~d of corroqoration. He said that I. I corroboration would not be req uired if the ,said testimony led to I 1 I, i ' discovery of material connecteq to the crime. This is not the case I. · here. He maintained that the dppellant has maintained that he I ' Ii 1. was bitten, injured and was under I restraint. ! , I , 1' From these rival submidions key questions arise. Firstly, 1, .· whether, the trial magistrate failed to adhere to the requirements j, ' I of section 210 of the CPA and, 1Hyes, what .is the consequence of 1 I, such failure. The other questi~n is wheth~r exhibit Pl required I corroboration to sustain a convittion. I I j' 1, With regards to the first i' question, the contention revolves I1, around what happened on 1!,0.05.2018, the day on which PWl I I ,. I testified in court. The counse I for the appellant says that after 1 I i recording the evidence, the tri 1 61 magistrate omitted to append his I I, signature in compliance with s,ection 210 of the CPA. He contends I . I I ,, i, 8 r i' I : I: I that what appears to be the trial ~agistrate's :signature relates to I i ' ,' ' I I the order he gave on that day. rhe responden:t's counsel thinks 1, ' I I ,, ' I ' that the magistrate appended ~,is signature. T~e answer to this I I ' I I I ' I tussle lies in the proceedings at pq'ge 11. While it i,'s true that there is I, I I I I 1, I a signature appended immediat)ely after hei r17:ade an order for I, I : I I : adjournment and the next hea~~ng date, n~ ~ignature appears I : immediately after a response oni\ re-examinatio~. This is where the 1 [, ' : I,, ' appellant's counsel contends thpt the magistr<+1te ought to have 1,1 I I shown his compliance with secticJin 210 of the :'CP;A. I couldn't agree I,I I ' I 1 I! I 1 more with the counsel for the aplpellant on t~is ~ontention. The trial I I, ' magistrate did not append his i\signature to stgnal end of PWl ;s I: : I, , , testimony. This is what the dictafes I, of section 210 (supra) demand. I I I• I I They demand that the trial mag!~strate should record evidence in a I I : I . I I: t I manner enshrined therein. For e/bse of referen!e, the said provision I I reads as follows: 1 I , I ' I 1 ! I 1 I, , : u(1) in trials, other than trails unt:ler section 213; by or before a II ' magistrate, the .evidence of/the witness shall be recorded in I' ' the following manner: t Ih I I (a) The evidence of each witne~:s shall be taken :down in writing in ,, " the language of the court b* the magistrate :or in his presence ,,lj I I 9 and hearing and under his personal direction and superintendence, and shall be signed by him and shall form part of the record." This provision relates to the recording of evidence and it is couched in mandatory terms, meaning that failure to conform to its requirements constitutes a fatal irregularity. This position is, as correctly cited by the counsel for the appellant, fortified by this Court's decision in Richard Mebolokini's case (supra). My senior brother, Rutakangwa, J., (as he then was) held as follows: "The signing is not a mere formality which can be dispensed with impunity. It signifies not only that the said evidence was written by the magistrate himself/herself or in his presence, hearing and under his personal impeccable assurance to its authenticity .... Such evidence, in my considered opinion, can form part of the record of proceedings if so recorded and signed. It is therefore highly dangerous to act on unsigned evidence (at least on appeal) because there is no guarantee that it was recorded by the trial magistrate in the presence of the parties concerned. When authenticity of the record is in issue, non-compliance with section 210 may prove fatal." I am sufficiently persuaded by this decision that non-signing of the record of evidence, as was the case in the trial of this matter, r 10 I ' I ! I constitutes a fatal omission whose consequence is that the I, ,' I testimony would not count. The trstimony is liablle for striking off the , I I ' I record of trial and I do so in this cbse as well. I I i I I I The next question arises froh, the appe,lla~t' s contention that 11 . I I ' I exhibit Pl was nothing but a retraction I which is not corroborated. I I I I, I I Noting that this is the only testir-¢ony on which i'the conviction was II, ' : founded, the applicant's counsel is of the view:that the decision of I I 11 I I I the trial court should be quashed:J. ' : I : : 1 It is true that the appellantiobjected to th e admissibility of the I I ; i' I cautioned statement. Following the objection, \he trial court carried I . I '. out an inquiry which concluded I that the statement ' is admissible. I 11 I I Admissibility of exhibit Pl meqht that proyisions of the law that 11 I govern confessions, including se~tions 27 and 2~ of the Evidence Act !, I 1 1 and sections 50 and 51 of tre CPA were: complied with. The 1' I conclusion of all that was that ~his is a confes~ion which was given 1 I I I , , freely. Was the court justified to ~reat it as evjd~nce which can found I I , ' a conviction? In my considered/ view, this question is answered in the I , 11 affirmative. The testimony w~nt unscathed ,when the appellant 1' 11 I ' chose to impeach its veracity, at the time PW2 tendered it in court. ,' ' In Nyerere Nyague v R, Cr Appeal No. 67 /2010 (Arusha, May 2012), the Court of Appeal held: "As a matter of principle a party who fails to cross- examine a witness on a certain matter is deemed to have accepted that matter and will be stopped frdm asking the trial court to disbelieve what the witness said. ',r In the absence of a:hy testimony . that would ' contradict the confession, the same remain~d to be the appellant's own incriminatingitestimony and this has been held to be a good testimcpny. In Paulo Joseph v. R, Criminal Appeal No. 63/2010 i(May, 2012 Arusha), the Court ' expounded the following principle: ' " .. .in criminal cases the best ofwitnesses is an accused person who confesses his guilt, and especially if he does so in the ' course of his defence." It follows, therefore, that the appellant's cautioned statement was, in all material respects, sLHficient testim~ny that formed the basis for the finding of guilt and I find nothing to fault the trial magistrate on this. 12 In the course of reviewing the I rial court's judgment, one thing I has come out. That the trial magi~,',trate did not consider defence i I ' evidence when he evaluated evid~nce and composing a judgment which culminated in the appellant\Is conviction., This means that the 1 I,, I trial magistrate treated the defehce evidence as if it was not I I I adduced in court, while the sameI was adduced and covered at I page 15 of the proceedings. I c9nsider this to be a fundamental I ,, I ' failure that has, no doubt, caused injustice to the appellant. i" ' 1' i" The position of the law is settled in this country that a trial court ' must, in the process of arriving pt a decision, consider evidence I ' i tendered before it, in its totdllity. Evaluation of evidence 1n I I ,, I piecemeal or in isolation onei,,, set of testimony constitutes a I I I fundamental error and, therefore, a recipe for disaster, and the I I I decision emanating from this f0ndamental ,· flow is nothing but a ;' I ' farce. Quoting with approval, th~ decision in Ndege Marangwe v. R I ' ' 1964 EACA 156, the Court held, ,n Henry Mpangwe and 2 others v. R j, 11; I I (1974) LRT 50, as follows: "It is the duty of the trial ju~ge when he gives judgement to I look at the evidence as a wryole ... It is fundamentally wrong to ' 1 r- 13 I evaluate the case of the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it". This reasoning was fortified by the Court in Elias Stephen v. R (1982) TLR 313 (HC), in which the following finding was made: "it is clear from the judgment that the trial magistrate did not seriously consider the appellant's defence. Indeed, he did not even consider the other defence witnesses who testified to it. He merely stated 'defence of CJccused has not in any way shaken the evidence"'. This position of the law got a boost and a 'vote of confidence' of the Court of Appeal. In Malando Bad' and 3 others v. R (CAT) Cr. App. No. 64/93 Mwanza (unreported), the appeal was allowed and the appellant was released owing to this irregulairty. The superior Court held: "As was held by the Court of Appeal in Okoth Okale v. Uganda (1965) EA 555 it is an essentially wrong approach provisionally to accept the prosecution case and then to cast on the defence the onus of rebutting or casting doubt on that case. It is an error separately to look at the case for the defence but evidence should be looked at as a whole. We believe that had the trial magistrate not fallen into this error, his decision on the case would probably have b.een different." 14 I take inspiration from this decision and hrl that the decision of the trial court is, on account of the cited irregularity, flawed. I Consequently, I quash the judg · ent of th~ tnal court, quash the conviction and order immediate release of the appellant, unless he I is otherwise lawfully held. I so order. DATED at MWANZA this 30 th day of May,i 2019. ·i; - AIL ,f'i,·;,•: . : ..I~ ·.1,.· 'ir..)I JUDGE !N ~:/// '/'.,,//Jf .-~. J~">' :.::,...,::- ' j. I. ! r I I : I ' I I .· i I 15 I I I. I IN THE HIGH COURT OF TANZANIA I - C AT.MWANZA APPELLATE JURISDICTION CRIMINAL APPEAL NO 138 OF 2018 (Original Criminal Case No 29 Of 2016 Of The District Court Of Mwanza At Mwanza) MANZI MAKASI @ MANZI .................. ~....... APPE.LLANT I . ' VERSUS THE REPUBLIC ....................................RESPONDENT JUDGMENT 'I 24.9.2018 & 28.9.018 Matupa,J. The appellant was convicted :I with three counts under the Wildlife I , Conservation Act. The offences are' unlawful entry into a game . ' reserve COntrary to section 15(1) and (2) !unlawful possession of weapons in a game reserve contrary to section I 17(1)(2) and unlawful possession of I I 11 f- government trophies contrary to section 86(1) and (2)(b), all of the Wildlife conservation Act no 5 of 2009. · ( . . st The particulars of the case a.re that on the 21 day of February, 2017 at Mozemobe area in Ikorongo/gurumeti Game reserve within Bunda District, Mara Region, the appellant was found in the lkorongo/Gurumeti ' ' . game Reserve an·d that he did not the requisite permission· of the Director of Wildlife. Also, the appellant while there in the Game reserve, he was . . found in. the possession of one knife and also he was found in the possession of two full carcasses of, Thomson gazelle without the permit. The trial court believed the eviden~e of the prosecution, convicted the appellant, and sentenced him to pay a fine of shillings100,000/= for the I first and second counts and for the third count, the court sentenced him to pay a fine of shillings 22,140,000/- or in default, to suffer a term of imprisonment of twenty years. The appellant has all through protested his innocence. He has protested against . the conviction and sentence on the following . grounds of appeal: '1. That the trial Magistrate erred in law by miscarry" prosecutors who have no authority to prosecute econ01nic 2 cases in the district court as longer as they have no consent I from the Director of Public prosecutions as per section 26 of ( the ECONOMICS AND ORGANIZED CRIME CONTROL ACT[CAP 200 RE 2002 as amended. 2. That the consent granted by the ·state Attorney in charge Mara Region is unlawfully acceded as longer as there is no any provision of law manda(e him to consent prosecution in economics cases in subordinate court, rather than the Director of Public Prosecutions. There are other eight grounds of appeal. From the decision i intend to make, I have found it to be not opportune to reproduce them. The appellant did not have services of a counsel. He, therefore fended for . . himself.• As it were, the appellant also indicated that • I he did not wish to be present at the hearing of the appeal I decided to proceed without the presence of the appellant in terms of section 365 of the Criminal Procedure Act. Ms. Ajuaye Bilishanga learned Senior State Attorney who represented the republic the respondent herein, did not support,! the conviction for two . I reasons. One, it was her submission that the ·consent for the charge is omnibus as it is given generally to offences under paragraph 14 of the first Schedule to the Economic and Organized Crime Control Act. The paragraph 3 I' I . I relates to three offences. It was her submission therefore that the consent ! ! is unclear as to the offence which . it was intended to! consent. secondly, it was the conte~tion of the learned Iattorney· that the e~idence and the . . charge relates to two carcasses of bgazelle. The certificate of valuation speaks of topi and not the gazelle. (?efinitely, these are two type of game : . all together. . And the charge for possession I of gaz~lle . did not therefore I relate to the exhibits which were tendered in court. The learned state. ! I j ,. . i I have considered the submi~sion of the lear.ned State Attorney; I think one of them is valid. I have compared the evidence and the valuation I certificate. I have repro~uced the Icharge above. ,It relates to tyvo full 1 ' carcasses of a Thomson gazelle. There is confusion in the record I have. j . I There is another valuation certificate, which is in relation to a topi. This . I . certificate was not tendered in evidence. I will t~erefore disregard the ! invalid valuation certificate and remain with the valid one which relates to · carcasses of gazette. On the reason of the propeJ consent, it is ~rue that the consent, . which was the subject of the char~e, was not valid. The observation by I the learned state attorney is that it was given under paragraph 14 of the I 4 I. First Schedule of the Economic and Organized Crime Control Act. The paragraph provides as follow$ ( '!4 person is guilty of an offence under this paragraph who.·- (a) unlawfully captures hunts or traps of animals in a game reserve or game controlled area; (b) Unlawfully deals with trophies or in in government trophies (c) Who is found in unlawful possession of weapons in certain circumstances ( d) Is found in unlawful possession of a trophy. Contrary to section 13 14 38 Part VI sections 70 and 78 of the wildlife Conservation Act .. " The appellant was charged under section 15(1) (2), 17(1) and (2) and 86 (1) (2) (b) of the Wildlife Conservation Act. Of essence here are the second and third counts. Even then~ the second charge was not preferred under the Economic and Organized Crime Control· Act. The only count, which is made under the Economic and organized Crime Control Act is that of possession of trophies. Yet, the consent is omnibLJs, it has been given on the whole of paragraph 14. Such a consent is not clear if it w?s intended for the purposes of which one of the offense under the paragraph. 5 Let me again observe that, section 29 (5) (6)(7) of the Economic and organized Crime Control Act was not observed. The relevant pro.visions of the section read as follows:- ( 5) After a person is committed to remand prison by a district court or after the investigations have been completed but before the suspect is arrested, the police officer, or other public official in charge of the relevant criminal investigations under this AcC shall forthwith cause the statements in quintuplicate of persons intended to be called as witnesses at the trial to. be properly typed out, conveniently compiled and sent, along with the police case file, to the Director of Public Prosecutions or any other public official designated by him in that behalf. (6) If the Director of Public Prosecutions or that other public official, after studying the police case file and the statements of the intended witnesses, is of the view that the evidence available is insufficient to warrant mounting a prosecution, or it is otherwise inadvisable to prosecute, he shall immediately enter nolleprosequi; unless he has reason to believe that further investigations can change the position, in which case he shall cause further investigations to be carried out (7) If the Director of Public Prosecutions or that other public official, after studying the, police case file and the statements of the intended witnesses, decides that the evidence available, or the case as such, warrants putting the 6 1 suspect on trial, he shall draw u), or caused to be drawn up, : an information in accordance with law, and when signed ( · by .him, submit it together w(th. three copies; each of the . statements of witnesses· sent to h(m under ~ubsection (5), in the registry of the High Court. j I This section is crystal clear in its teims and intent that a charge or an l information has to be signed .by the ,Director . of public Prosecution or the . 1 person designated by him to give for the purpose. Section 12(3) of the Act j : Prescribes as follows:- ! I ''(3) The Director of Public I Prosecutions or any State Attorney duly authorised by him, may, in each case in which he deems it necessary or appropriate in the public interest by certificate under his hand, order that any case involving an . offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." ·1 I ' What is important here is th~t the decision to prosecute must in I terms of section 29 be done by the officer designated by the Director of I Public Prosecutions or an officer desjgnated by him. The manner of making . I . . the decision is also prescribed by the section 29. One such condition is . I . that, the officer must be ceased with the file before he makes the decision I ' and the charge must be signed byi him. In the present case, a charge is . I1 I I j I j w I ' clearly not signed by the officer of the pirector of Public prosecutions. the I framers of .the section intended some degree of control by the Director of C Public Prosecutions before a charge is' preferred. A consent, which is not made after a file is studied in terms of section 29 of the cap 200, cannot be I valid. Similarly, a transfer, which is self-administered by a prosecutor by filling a blank form as it-happened in the present case is clearly defective. Furthermore, the transfer under sectimn 12 (3) can on:ly be done after the officer weighs the scales of the case. This cannot be· pr'e-determined as the ' I ' officer did in, the present case by filing supplied forms, for the prosecutor ' I to authorize himself to conduct the prosecution the way he wanted. In the present case, the trial of the case was clearly, flawed, as it proceeded on a charge, which was not prepared by the state attorney and ; the consent was therefore curiously questionable. I will therefore revise the proceedings of the trial court and set aside the conviction and sentence of I the appellant on the revised proceedings. The appellants shall forthwith be released from custody, unless they ane otherwise held there. Date: 28.9.2018 Coraf'!l: Hon. Matupa, J ( Appellant: absent Respondent: Ms Fyeregete B/c; Denis Order: The judgment was delivered in the presence of M/s Fyeregete State Attorney and in the absence of the appellant this 28th September, 2018. AJ.~ s.l.~ Judge 9