CRIMINAL APPEAL NOMOHAMED HASSAN ABDALLAH NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 59 OF 2023 (Originating from Criminal Case No 54 Of 2021 in the District Court of Masasi at Masasi) MOHAMED HASSANI ABDALLAH .......APPELLANT VERSUS THE REPUBLIC ........................ RESPONDENT JUDGMENT Date offast Order: (3l! November2023- Date ofJudgement: 291' November2023 LALTAIKA, J, The appellant herein, MOHAMED HASSANI ABDALLAH was arraigned in the District Court of Masasi at Masasi in charged With the offence of Cattle Theft contrary to section 268(1) of the Pena! Code Cap 16 RE 2019 (now RE 2022). Page 1 of 9 It was alleged that on 1/5/2021 at 2:00PM in Chigugu Village, Masasi District in the Region of Mtwara, the appellant and another stole a cow valued at 800,000/= property of one Baraka Omary Namkutwanga. It appears that the appellant (then accused) who was admitted to bail pending trial, did not appear in court on the date scheduled for hearing. The prosecution prayed for the court to proceed expar-te. The trial court granted the prayer. On finalization of the trial, the learned Magistrate convicted the appellant as charged and sentenced him to serve a 15 years' imprisonment term. i > Dissatisfied, the appellant has appealed to this Court by way of a petition of appeal containing five (5) grounds. For reasons that will be clear soon, I choose not to reproduce the grounds. ' ••''A. When the appeal was called on for hearing on 6th of November 2023, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney. The appellant, not being learned in law, indicated that he had nothing substantial to add to his grounds of appeal expounded in the petition. He Page 2 of 9 reserved his right to a rejoinder as the learned State Attorney proceeded to respond to the grounds of appeal as summarized in the next paragraphs. Mr. Hurubano clarified that on the first ground, the appellant's complaint was about the unlawfulness of the cautioned statement, which allegedly violated section 50(l)(a) of the Criminal Procedure .Act Cap 20 RE 2019. Mr. Hurubano expressed the view that the ground was baseless and that the section was adhered to. He noted that if the appellant had been in court during the trial, he could have objected to theadmission of the exhibit. However, the learned State Attorney reasoned, appellant chose to run away, and the trial proceeded with the exhibit admitted without objection. Mr. Hurubano invoked the principle of volenti non injuria, stating that no one £r' ' Vd-* should cry against self-inflicted pain, and prayed for the ground to be dismissed. Moving to the second ground, argued together with the fifth ground, Mr. Hurubano mentioned that the complaint was that the prosecution case ' -'I- •> was not proved beyond reasonable doubt. He argued that the ground had no merit, referring to page 11 of the trial court's proceedings. According to him, PW1 received a call informing him that his cattle had been let out of Page 3 of 9 the kraal, and upon arrival, he discovered that one cow out of his 20 was missing. The police called him to identity a cow that had been found, and he confirmed it was his cow. The above evidence, Mr. Hurubano argued, was corroborated by that of PW2, who informed the court about the appellant's arrest, interrogation, and confession to stealing the cow. He emphasized that the evidence of both witnesses was never discredited in cross-examination, suggesting the truth of their testimony. He further argued that the appellant failed to challenge their testimony in court. ./ ) On the third ground, Mr. Hurubano agreed with the appellant that there was no certificate of'seizure issued. However, the learned State Attorney asserted, the appellant was not prejudiced, and that the appellant vj:- "t-r*. failed to enter -appearance and deny the allegation. Referring to the cautioned statement, he pointed out that it stated the appellant was found with the cow, and he prayed for the ground of appeal to be dismissed for lack of merit. Moving on to the fourth ground, Mr. Hurubano acknowledged the appellant’s complaint that the trial court did not accord him the constitutional Page 4 of 9 right to be heard. He agreed with the appellant on this, noting that the appellant was not heard. However, he argued that this omission was a result of the appellant's own actions, waving his right to be heard. Referring to the proceedings, especially pages 16,17, and 18, he noted that the appellant did not appear in court, and the respondent prayed for the court to invoke section 226(1) of the Criminal Procedure Act for ex-parte hearing, which was granted. Mr. Hurubano argued that the ground had no merit, as the appellant knew he had a case against him but decided to disappear. <■' ? ; In conclusion, based on the mentioned grounds and considering what :,v the co-accused had stated/as recorded on page 27, Mr, Hurubano asserted that it was obvious that the appellant committed the Offense. He claimed that the respondent had proved the case and prayed for the entire appeal to be dismissed. The appellant, in his brief rejoinder submission, expressed dissatisfaction with the trial court's proceedings, stating that it did not act justly. He pointed out that there were two individuals involved - himself and his co-accused. While his co-accused, Saidi Songa, who worked as a cattle Page 5 of 9 keeper, was set free, the appellant, a businessman selling meet known as "Kukaanga nyama," received a sentence. The appellant emphasized that it was his co-accused who was found with the cow. According to the appellant, both he and Saidi Songa were granted bail on the same day. The complainant, who was not attending court, was supposed to be called later. However, the appellant narrated .that two weeks later, he was arrested at home and taken to court Where he received a sentence. He claimed not to know the whereabouts of the cow. The appellant revealed that his name was provided to the police by his co-accused, Saidi Songa, who was also his uncle. The appellant acknowledged that there had been a quarrel between Saidi Songa and his mother, and he had been warned not to be close to his uncle. Contrary to the. accusation .--of selling beef, the appellant insisted that he used to sell chicken, not beef. He speculated that the beef might have been cooked by his uncle. Additionally, both the appellant and his uncle did not go to court •L'i" because, as he explained, his mother was sick. I have dispassionately considered the rival submissions in light of the grounds of appeal. I entertain no doubt in stating outrightly Page 6 of 9 that the appellant was deprived of his constitutional right to be heard during the trial. Although Mr. Hurubano argued that this omission resulted from the appellant's own absence, it is crucial to recognize that the appellant's right to a fair trial was fundamentally compromised. In fact, there was no reason for the learned trial Magistrate to grant the prayer for expar-te hearing while the accused was absent only once. No one is immune to unforeseeables. I will come back to this later. The appellant raised concerns about the unlawfulness of his cautioned statement, citing a violation of section 50(1) (a) of the Griminal Procedure Act Cap 20 RE 2019. While Mr. Hurubano contended that the section was adhered to and that the appellant should have objected to the evidence if present, the fact remains that the appellants absence prevented him from contesting the admissibility of this critical evidence. The improper admission of the cautioned statement without proper legal safeguards or objections, compounded by the appellant's inability to challenge it, weakens the expar- i^_ ’•S*. te judgment. Despite Mr. Hurubano's argument that the prosecution's evidence was corroborated and sufficient^ the discrepancies and lack of complete evidence Page 7 of 9 cast doubt on the reliability of the prosecution's case. The absence of a certificate of seizure and the reliance on the appellant's cautioned statement and witness testimonies without direct evidence of ownership or proper procedural adherence weaken the prosecution's case. The appellant's narrative suggests that he might have been unfairly singled out for prosecution, while his co-accused, who .was found with the cow, was set free. This disparity and the appellant's assertion of being implicated due to family conflicts highlight the potential for a miscarriage of justice. Jumping bail doesn't mean one is guilty. The magistrate should have considered or at least ask the appellant what had happened which led him to jump bail. In the upshot, I. allow the appeal. I hereby quash conviction and set aside the sentence. I order that the appellant MOHAMED HASSANI ABDALLAH be released from prison forthwith unless he is being held for any other lawful cause. 'i'-. ■. JJ; fi'' It is so ordered. Page 8 of 9 E.I. LALTAIKA JUDGE 29.11.2023 Court Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney, and the appellant who has appeared in person, The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 29.11.2023 Page 9 of 9