MIRAJI ATHUMANI FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 2581 OF 2025 (Originating from the decision of the District Court of Bukombe in Criminal Case No. 14993 of 2024 before B. J CHITEPO SRM) MIRAJI ATHUMAN SADALA---------------------------------------------- APPELLANT VERSUS THE REPUBLIC------------------------------------------------------- RESPONDENT JUDGMENT Date of last order: 28 February 2025 Date of Judgment: 02 April 2025 K. D. MHINA, J. At the District Court of Bukombe, the appellant was charged with three counts of Burglary Contrary to Section 294 (1) (a) and (2) of the Penal Code [Cap.16 R.E. 2022], Stealing Contrary to Section 258 (1) (2) (a) and 265 of the Penal Code [Cap.[16 R.E. 2022] and the alternative Count of being in Possession of goods suspected of having been stolen or unlawfully acquired, Contrary to Section 312(1)(b) of the Penal Code [Cap.16 R.E. 2022]. He was acquitted of the 1st and 2nd counts but found guilty of the alternative count of Possession of goods suspected of having been stolen or unlawfully acquired and sentenced to a jail term of three (3) years. 1 The alleged stolen properties to be found were a Cooking gas cylinder make Taifa worth TZS 80,000/=, a Subwoofer Radio make Samsung with five speakers worth TZS 600,000/=, two Video machines worth TZS 150,000/ a Mobisol light worth TZS 150,000/, and one Hot pot worth TZS. 50,000/=, two Stabilizers/Inveters worth TZS. 100,000/=, Stella body oil worth TZS 500/=, two Blenders worth TZS. 100,000/=, six Samsung Radio Wires worth TZS. 23,000/=, Samsung remote control worth TZS. 2,000/= only, a Motorola mobile phone worth TZS. 40,000/=, Azam Decoder worth TZS. 50,000/=, six Plates worth TZS. 10, 500/=, two Bed sheets worth TZS. 30,000/=) only and seven Drinking glasses worth TZS. 14,000/=. All valued at TZS. 1,400,000/=. The properties of Philmon Francis Kazimili. Aggrieved by the conviction and sentence, the appellant appealed to this Court with five grounds: - i. That the trial Magistrate Court erred in law and facts to convict the Appellant (1st Accused) without any evidence which proved fully that the Appellant possessed the goods suspected to having been stolen. ii. That the trial Magistrate Court erred in law and facts to convict the Appellant by using incomplete Judgment. For 2 example, in the written judgment, they are no written defense given by the Appellant. Also, the Judgment failed to state how many years of conviction were given by the Magistrate. iii. That the Trial Magistrate Court erred in law and facts to convict the Appellant by using Poor evidence given by Prosecution side. For example, no Witness proved in the trial Court that they saw the Appellant possessed the suspected goods having been stolen. iv. That the Trial Magistrate Court erred in law and facts to convict the Appellant without considering the defense given by the Appellant. v. That the Trial Magistrate Court erred in law and facts to convict the Appellant excessive sentence of 3 years without committing the offence of alleged to Him The appellant appeared in person, unrepresented, while the respondent, the Republic, had the services of Ms. Kabula Benjamin, a learned State Attorney. When invited to support his appeal, the appellant had nothing to add 3 beyond the grounds of appeal, and he requested that this court consider them. On her part, Ms. Benjamin resisted the appeal by arguing the 1st and 3rd grounds together. She argued that the trial records indicated that PW1 had witnessed the stolen properties, while PW2 identified the stolen properties as his own. Additionally, PW4 testified that he seized the stolen properties from the appellant’s house and tendered the certificate of seizure (Exhibit M2), which was not objected to by the appellant. Further, PW7, the independent witness, witnessed the search of the appellant’s room. Ms. Benjamin further explained that at the trial, the prosecution had a duty to prove that the stolen properties were found in the accused's possession. This was proved by PW5 and PW7, and the stolen properties were properly identified by the owner, who was PW2. Furthermore, PW1 proved that the stolen properties found must have been recently stolen, and that was the basis of the offence as per the charge sheet. To substantiate her submission on the four elements of the offence, 4 which were proved, she cited the case of Orestus Mbawala @ Bonge vs. Republic. Crim Appeal No. 486 of 2022 (Tanzlii), at pages 17 and 18. To amplify this further, she stated that at the trial, the appellant was given the opportunity to cross-examine the witnesses but chose not to do so. She cited Lucas Daud Wage vs. Republic, Crim Appeal No. 555 of 2021 (Tanzlii) at page 26, which elaborated that failure to cross-examine means the evidence is accepted as true. Regarding the 2nd and 4th grounds of appeal, Ms. Kabula submitted that Section 312(2) of the CPA directs how the judgment should be. She explained that on page 6 of the judgment, the conviction of the appellant was indicated. Further, the appellant was sentenced to 3 years in prison. Therefore, there was a sentence. On the complaint that the trial court did not consider the appellant’s defence, she conceded that complaint; however, she prayed this court to step into the shoes of the trial court and consider the appellant's defence. She stated that the basis of her prayer is found in the case of Antony 5 Jeremia Sorya vs Republic, Criminal Appeal No. 52 of 2019, pages 13 and 14. Commenting on the appellant’s defence, Ms. Benjamin stated that the defence evidence at the trial failed to state if the properties found in the appellant’s possession belonged to him. Further, he failed to object to the admission of the certificate of seizure and cross-examine the prosecution witnesses. Therefore, the appellant’s defence remains unable to shake the prosecution's case. On the last ground, Ms. Benjamin stated that the offence for which the appellant was convicted, namely being found with stolen property, is covered under Section 312(1)(b) of the Penal Code, which provides for imprisonment of not more than three years. She explained that the word used under the provision of law “shall be liable” gives the court discretion in sentencing as elaborated in the case of Bahati John vs Republic, Criminal Appeal No. 114 of 2019 (Tanzlii} Therefore, there were no circumstances for this court to interfere with the trial court’s sentence, as it was proper. 6 Having objectively gone through the grounds of appeal, the submissions, and the entire records of appeal, I will start with the 1st and 3rd grounds of appeal. These two grounds are intertwined; they both revolve around whether the case was proved beyond a reasonable doubt and whether the appellant was found in possession of stolen properties. On this, it is elementary that the onus of proving a criminal case is always on the prosecution to prove the case and never shifts away from the prosecution. See Syridion Michael vs. Republic, Criminal Appeal No. 262 of 2022 (Tanzlii). Also, the standard of proving a criminal case is beyond a reasonable doubt. See Daimu Daimu Rashid @ Double D vs. Republic, Criminal Appeal No. 5 of 2018 (Tanzlii), where the duty of defence in criminal trials is only to raise doubt against the prosecution's case and not otherwise. See D.P.P vs. Ngusa Kejela @ Mtangi and another, Criminal Appeal No. 276 of 2017, CAT (Tanzlii). As previously alluded to, at the trial, the appellant was convicted of the offence of being found in Possession of goods suspected of having been 7 stolen or unlawfully acquired, Contrary to Section 312(1)(b) of the Penal Code [Cap 16 R.E. 2022]. That section reads as follows; “312.-(1) Any person who- (b) is found by a police officer in possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired, may be charged with being in possession of, or conveying, or having control over, as the case may be, the property which is suspected of having been stolen or otherwise unlawfully acquired and shall, if he fails to satisfy the court that he did not steal or otherwise unlawfully acquire the property, be guilty of the offence with which he is charged”. As previously alluded to, at the trial, the appellant was convicted of the offence of being found in Possession of goods suspected of having been 8 stolen or unlawfully acquired, Contrary to Section 312(1)(b) of the Penal Code [Cap 16 R.E. 2022]. In the cited case of Orestus Mbawala @ Bonge (Supra), the Court of Appeal cited its earlier decision of Joseph Mkumbwa and Samson Mwakagenda vs. Republic, Criminal Appeal No. 94 of 2007 (Tanzlii), which elaborated that " Where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as a basis of conviction it must positively be proved, first that the property was found with the suspect, second, that the property is positively the property of the complainant; third, that the property was recently stolen from the complaint; and lastly, that the stolen thing in possession of the accused constitutes the subject of a charge against the accused. It must be the one that was stolen/obtained during the commission of the offence charged". 9 At the trial, it was PW4, a police officer, who testified that he searched the appellant’s room and seized the stolen properties in the presence of PW7, an independent witness. According to PW4, he signed that certificate of seizure. The appellant also signed, and PW7 signed as an independent witness. At the trial, PW4 tendered exhibit M1. However, having gone through that exhibit, M1 is not a certificate of seizure at all. The document is titled “Marking of Exhibit Upon Admission in Court.” The document was written “grenda moja na hati ya kupoka mali” without any signature from the seizing officer, the appellant, or an independent witness. Furthermore, in the entire electronic case file, there is no certificate of seizure signed by the seizing officer, the appellant, or an independent witness as part of the case records, apart from other exhibits, such as cautioned statements. In criminal cases, especially in offences such as in the instant appeal, the procedure of search and seizure is important. It is a foundation of proving 10 if a person was really found with the seized items and for establishing the chain of custody of seized properties. Therefore, the prosecution is not only required to comply with the laws governing search and seizure but also must prove that the evidence on search and seizure meets the standard set in criminal cases. The applicable law for search and seizure under the CPA is section 38 (3), which provides that; “Where anything is seized in pursuance of the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any”. Furthermore, in Director of Public Prosecutions vs. Doreen Mlema, Criminal Appeal No. 359 of 2019 (Tanzili), the Court of Appeal addressed several key issues under Section 38(1) of the CPA. It held that; “In other words, all things being equal, for a search into private premises to be a lawful search, it must be conducted by either an officer in charge of a police station or another 11 police officer with a search warrant as per the provisions of section 38(1) of the CPA and PGO No. 226 paragraphs 2(a) quoted above”. “Nonetheless, that is not to say that on each occasion that a search needs to be conducted, it must be preceded by issuance of a search warrant. There are exceptions, which are not the subject of this appeal, but one of such exceptions is where an intended search is to be conducted on an emergency basis under section 42 of the CPA or under circumstances envisaged under paragraph 1(b) of the PGO.” From the above provision of law and case law cited, the following few issues in relation to the instant appeal can be gleaned. One, there must be a search warrant; two, the search must be conducted by a police officer who obvious in case of finding searched items must seize the items and signed the certificate of seizure; three, the owner of the premises, in this appeal the appellant must sign the certificate of seizure and lastly, the calling for an independent witness is a mandatory requirement and that witness must sign the certificate. In this appeal, Exhibit M1 falls short of what was provided under Section 38(1) of the CPA and the cited case of Doreen Mlema (Supra). It is not a certificate of seizure known to the law. It was neither signed by the 12 police officer who conducted the search, the appellant, nor the independent witness. Therefore, the above exhibit M1, which was the basis of the offence of being found with the stolen properties, is of no evidential value. The question is, what is the effect of the anomaly above versus the remaining evidence. As I alluded to earlier, the oral evidence of PW4 and PW7 was to the effect that the premises of the appellant were searched, and the stolen items were recovered. However, since the purported certificate of seizure (Exhibit M1) was found to be of no evidential value, the oral evidence of PW4 and PW7, also collapsed for having nothing to support. Thus, from the above discussion, it is clear that the first condition in the cited case of Orestus Mbawala @ Bonge (Supra), regarding the proof of whether the items were found with the suspect, was not proved beyond a reasonable doubt. Therefore, the 1st and 3rd grounds of appeal have merit. Since the above-determined grounds of appeal are decisive in establishing that the case against the appellant was not proved beyond a 13 reasonable doubt, thereby disposing of the appeal, I don’t see the necessity of determining the remaining grounds of appeal. Consequently, I quash and set aside the appellant's conviction and sentence and order the appellant to be released from prison forthwith unless he is otherwise lawfully held for other causes. It is so ordered. K. D. MHINA JUDGE 02/04/2025 14 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 02/04/2025 15