CRIMINAL APEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT KIGOMA f CORAM: KWARIKO. J.A„ GALE BA. J.A. And MASOUD. J J U CRIMINAL APPEAL NO. 448 OF 2022 MENGI MATEO @ KARUSHAVUMBI- isr APPELLANT BARAKA MATEO @ KARUSHAVUMBI 2 nd APPELLANT MASOUD HUSSEIN....................... ,3rd APPELLANT

VERSUS

THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Kigoma) (Manvanda, 3.1 dated the 25th day of 3uly, 2022 in fD O Criminal Appeal No. 10 of 2022

JUDGMENT OF THE COURT 30th April & 8th May, 2024 GALEBA. J.A.: Mengi Mateo Karushavumbi, Baraka Mateo Karushavumbi and Masoud Hussein, the first, second and the third appellants respectively, were arraigned before the District Court of Kasulu, in Criminal Case No. 63 of 2021, on a charge borne of three counts. On the first count, all the three appellants were charged with armed robbery contrary to section 287A of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). In respect of the second count, only the first and second appellants were charged with the offence of possession of goods suspected to be stolen, contrary to section 312 (1) (b) of the Penal Code. Likewise, the third appellant faced a similar count of being found in possession of goods suspected to be stolen, contrary to the latter section of the Penal Code. According to the particulars of offence in respect of the first count, it was alleged that on 6th February, 2021, at Kwashayo area within Kasulu District in Kigoma Region, all the three appellants, stole from Bashir Elimanus (PW1) the following properties: TZS. 350,000.00, one radio subwoofer |make WIKI, one television set, make OULING, and one flash disk of 8 Giga Bite capacity. All the properties were valued at TZS. 700,000.0C). Included in the particulars of offence was that, immediately before and after stealing the said electronics, the appellants used

a machete to threaten PW1, in order to obtain the said properties. The particulars of the offence in respect of the second count were that, the first and second appellants on the same date of the above robbery, at Juhudi Street within Kasulu District in Kigoma Region, were found in possession of one radio subwoofer make WIKI, such that having regard to all circumstances, the said item was reasonably suspected to have been stolen from PW1. The (particulars of the offence in respect of the third count, which involved only the third appellant, were that; on the same day of the robbery, at Juhudi Street within Kasulu District in Kigoma Region, the third appellant jwas found in possession of one television set, make OULING which, having regard to all circumstances, was reasonably suspected to have been stolen from PW1. The brief facts that led to the above offences and the trial that ultimately ensued, were that, on 6th February, 2021 around 22:30 hours in the night, PW1, a pub owner and a barber shop business proprietor at Kwashayo area within Kasulu District in Kigoma Region, having just retired from his daily undertakings, was alone at his home, in his bedroom. Suddenly, a loud knock bordering a bang of a heavy object, hit the front door leading to his living room from the outside. In response, he quickly went to the living room, switched on lights and opened the door which

had been hit a few moments previously. As soon as he did that, two people hurriedly entered in the house, and immediately informed him in clear terms, that he was under uncompromising restraint, and ordered him to lay down. In order to instil a state of terror, confusion and perplexity to PW1, on several occasions one of the robbers, would assault him by using the sides of a machete they had come with. As that was happening, one of the robbers was removing the television set from its mounting, in the living room and also managed to grab the radio. Amidst the mess and chaos, the robbers too, stole TZS. 350,000.00 from PWl's table and quickly left the scene. 3 According to the prosecution, PW1 managed to identify the robbers as the three appellants, and that the first and second appellants were found in possession of the radio and the third was found in possession of the television set, being some of the items that were stolen from PW1. Based on those facts, a charge against the appellants was drawn as indicated above, and a trial that lasted six months took shape. On their part, the appellants denied being found in possession of any properties, they all testified that they were forced to sign some documents (seizure certificates), at the police station after intimidation, including loss of life threats. So, their position was generally that, the case was framed against

them. After hearing of the case, the trial court made a finding that the appellants were not adequately identified at the scene of crime and acquitted all of them in respect of the 2nd and 3rd counts. Nonetheless, the court found them guilty of armed robbery based on the doctrine of recent possession, and convicted them accordingly. They were each sentenced to 30 years imprisonment. Their first appeal to the High Court, was dismissed for want of merit and their respective convictions and sentences were upheld. The appellants were aggrieved, so they lodged this appeal to challenge the dismissal of their first appeal. In doing so, they filed a memorandum of appeal containing 6 grounds of appeal. However, for reasons that will become obvious in due course, we will start with the first ground of appeal, in which the appellants' complaint is that: "1. That the honourable Judge erred in law and In fact for wrongly Invoking the doctrine of recent possession." At the hearing of this appeal, the appellants appeared in person without legal representation, whereas the respondent Republic had the services of Mr. Shabani Juma Masanja, learned Senior State Attorney, assisted by Mses. Edna Jackson Makala and Naomi Joseph Mollel, both learned State Attorneys. The appellants intimated to us that, they would prefer the respondent's side to reply to their grounds first, so that they would

have their turn, by way of a rejoinder. Thus, Mr. Masanja took the floor, and initially informed us that he was supporting the conviction and the sentence imposed upon the appellants. He started off opposing the first ground of appeal. However, the more he tried to convince us that the doctrine of recent possession was properly applied by the two lower courts, the more he was gradually realizing that, in fact, the doctrine was wrongly invoked and unlawfully relied upon. Eventually, the learned Senior State Attorney, being fully convinced from the prosecution evidence, 5 informed the Court that, the trial court wrongly invoked the doctrine of recent possession to convict the appellants, and the first appellate court erred when it upheld the trial court's findings based on the same doctrine. In the circumstances, the learned Senior State Attorney supported the appeal. In supporting the position he eventually took in this appeal, the learned Senior State Attorney contended that, before the trial court, there was no evidence that proved beyond reasonable doubt that the goods found with the appellants were the properties of PW1, which is one of the criteria for the doctrine of recent possession to be invoked. Based on that argument, the learned counsel, supported the first ground of appeal. Mr. Masanja also remarked that, allowing the first ground of appeal had the effect of

disposing of the entire appeal. So, he prayed that the appeal be allowed, the appellants' conviction be quashed and their respective sentences be set aside, with orders that the appellants be set free from prison. In disposing of this uncontested appeal, our full focus will be to determine whether indeed, the two lower courts legally erred, when they invoked and relied on the doctrine of recent possession, to convict the appellants. To do so, we will start with the evidence relevant to the point, 6 then what the two lower courts decided, and finally, we will pronounce our own decision. In the aftermath of the robbery, according to Detective Corporal John (PW5), on 6th February, 2021, at about 08:00 hours, along with other witnesses, he conducted a search and recovered from the first and second appellants' place of abode, at Kwashayo in Kasulu, one radio subwoofer make WIKI which was white and black in colour. Then he also found one TV set make OULING at the house of the third appellant after conducting a search to that place. This witness tendered these items at page 35 of the record of appeal as exhibit PI collectively. Of special interest and crucial to this judgment, is the manner in which the alleged stolen items, were identified by PW1. At page 19 of the record of appeal, in identifying the stolen goods, PW1 testified that: "This is a TV. It is written Outing. This is my

property. This is a radio make subwoofer. It has the name Wiki. The subwoofer is my property. I have receipts to prove that these are my properties. I can identify this receipt by the date I bought these things. This was on 18/3/2016. But also, the names. It is written Ramadhan. It has my business name Bashir Eimanus. There are prices for radio and TV." [Emphasis added] The trial court was fully convinced in terms of the above quoted text, that the stolen goods were positively proved to have been the properties of PW1, such that at page 75 of the record of appeal, the court observed: "These things (exhibit PI) PW1, the complainant attempted, and I saw no reason to disbelieve him, to show that they belonged to him and the same were robbed on the fateful night. But again, these things form the bases for these charges." Like the trial court, the first appellate court, was of the same view that indeed, the alleged goods were clearly identified and positively proved to be owned by PW1, the complainant. At page 111, the first appellate court stated: "In this matter, PW1 testified that he positively identified both, the radio and the television. PW1 testified as follows: 'I know this TV by its name, its OULING make, it is black in colour. I can identify the subwoofer by its name and the way it is. The name is WIKI. ' " Based on the above understanding, the first appellate

court concluded at page 113 that the items were proved positively to be owned by PW1, and adds that, particularly because the appellants were not contesting that fact. So, the High Court upheld the decision of the trial court, and blessed the appellants' conviction and the punishment that had been imposed on them. To make a headway in a proper direction, we think it is significant that for a moment, we briefly discuss the criteria that must be fulfilled by the prosecution before a suspect could be convicted based on the doctrine of recent possession. The points or criteria to establish before a trial court can convict a suspect based on the doctrine of recent possession, have been restated by this Court on numerous occasions, such that we think they are now pretty common. One of this Court's decisions in which the points have been summarized, is Nyakibali and Another v. R [2014] T.L.R. 387 at 389, where this Court held that: "(ii) Before a court of law can rely on the doctrine of recent possession as a abasis of conviction in a criminal case, it must positively be proved; first, that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant, and; lastly that the property was recently stolen from the complainant." [Emphasis added] In order to invoke the doctrine of

recent possession, all the four points must be proved by the prosecution to have co-existed. Henceforth, we will concentrate on one criterion, whether there was sufficient proof that exhibit PI was the property of PW1. In this case, in attempting to prove that the TV and the radio were his, PW1 testified that he had a receipt which he was given when he purchased the electronics. There are however, three shortfalls with the issue of the receipt. One, the said receipt, was not tendered in evidence, but even if it would have been tendered; two, the receipt had two names, Ramadhani and PWl's "business name Bashir Elmanus" and; three, there was no testimony linking, the items and the receipt mentioned, like the unique or serial number on both the receipt, and on the respective items. Besides, even if the receipt was to be produced, the names on it would be confusing because, PW1 did not testify anywhere that he was also called Ramadhan or that he owned a business name under the Business Names Registration Act, Cap 213, in the name of Bashir Elmanus. Thus, reliance on the alleged receipt to hold that the items were PWl's, which receipt was not even tendered, was in our view, erroneous. Besides the receipt, the other evidence that was presented to the trial court and endorsed by the first appellate court, was the brand description of the allegedly stolen goods. What, PW1 stated was

that the items were a subwoofer radio and a television set make WIKI and OULING brands, respectively. However, mentioning the brand names of the stolen items alone, in our view, does give the complainant exclusive ownership of 10 the said goods. Eventually, in this case the evidence linking the items which were tendered in court and the complainant's items which were allegedly stolen, is missing. Proof that the items belonged to PW1 would be positive, if he stated and proved that the items had distinctive or peculiar marks on them. Or else, he had to present to the court any document in his possession proving that he acquired the goods, and such documents had unique or peculiar serial numbers. Such peculiar serial numbers ought also to be traced on the physical items, allegedly stolen. In this case, there was no proof that the items in court belonged to the complainant. What was sufficiently proved in court were the brands of the goods, that is one was WIKI, and another OULING. In the circumstances, one criterion of holding a suspect liable under the doctrine of recent possession was missing, hence it was erroneous to have convicted the appellants based on the doctrine. In the conclusion, we agree with both the appellants on one hand, and Mr. Masanja on the other, that reliance on the doctrine of recent possession to convict the appellants, was illegal. Thus, the first ground

of appeal succeeds. Accordingly, having allowed the first ground of appeal, and held that the conviction, of the appellants was illegal, engaging any efforts to seek to determine other grounds of appeal would be an attempt in futility. 11 Lastly, we allow the appeal, and quash the appellants' conviction. We set aside their respective sentences of 30 years imprisonment, and order their immediate release from prison, unless they, or any of them be held there for any other lawful cause. DATED at KIGOMA this 7th day of May, 2024. M. A. KWARIKO

JUSTICE OF APPEAL Z. N. GALEBA

JUSTICE OF APPEAL B. S. MASOUD

JUSTICE OF APPEAL The Judgment delivered this 8th day of May, 2024 in the presence of the Appellants appeared in person, Mr. Shabani Juma Masanja, learned Senior State Attorney, assisted by Miss. Naomi Joseph Mollel, both learned State Attorneys, for the Respondent is hereby certified as a true copy of the original. *1 n