mwinga omarymamanyi vs republic 2020 tzhc 1525 30 july 2020

• IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HC. CRIMINAL APPEAL No. 36 OF 2020 (Original Criminal Case No. 04 of 2013 of the District Court of Mwanza at Mwanza) MWINGA OMARY @ MOMAN YI APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 30° July, 2020 TIGANGA, J. The Appellant Mwinga Omari Momanyi stood charged before the District Court of Nyamagana at Nyamagana for being in unlawful possession of fire arms Contrary to Section 4 (1) and 34 of the Arms and Ammunitions Act (Cap 223 R.E 2002) (now R.E 2019). According to the particulars of the offence, it is particularised in the charge sheet that on 04° January, 2013, at Isamilo Kaskazini area within l Nyamagana District in Mwanza city and Region of Mwanza, the appellant (then accused) was found in unlawful possession of fire arm make pistol without licence or permit. 1 When the appellant was arraigned, he pleaded not guilty and during preliminary hearing he admitted to the name of Mwinga Momanyi, but disputed the name of Omary, he also admitted the date he was arraigned and that he pleaded not guilty. He disputed the rest of the facts constituting the offence of unlawful possession of fire arm. After full trial which involved three prosecution witness and one defence witness as well as exhibits, the trial court found the accused guilty and convicted him. It consequently sentenced him to pay fine of Tshs. 3,000,000/= three millions or suffer 15 years imprisonment in default. Aggrieved by the conviction and sentence, the appellant filed four grounds of appeal which are as follows; 1. That, the appellant sentence if any was much to the higher side/ manifest excessive as the trial court magistrate offered no reasons for the impugned sentence. 2. That, the trial court erred in law by admitting and acted upon the alleged pistol of which its authentic has flowed as in absence of a ballistics expert the alleged pistol was not qualified to be termed as fire arms. 3. That, search and seizure of the alleged pistol/ gun in question at the appellant's home was fall short as neither search warrant not report and result of the alleged search was reported to the magistrate as required by the law. 4. That, the prosecution case was not proved beyond reasonable doubt. 2 When the Appeal was called for hearing, Miss. Mwaseba, learned State Attorney, addressed the court that, on perusing the record she discovered that the judgment was not delivered as required by law. Also that the appellant was convicted without being found guilty, she prayed the matter to be remitted before the trial for proper conviction and delivery of Judgment. The Appellant submitted in reply that in the interest of Justice that the appeal be heard. He submitted that the judgment was delivered to him that is why he was convicted and sentenced. As he could not have been sentenced without the judgment being delivered and without being found guilty and convicted. He insisted that his appeal be heard on merits. Miss Mwaseba rejoined by submitting that, this is the court of record, the record must vindicate that the judgment was delivered as required by Section 235 of the Criminal Procedure Act read together with the decision in the case of Hamis Rashid Shabani Vs. DPP, Criminal Appeal No. 184/2012 CAT - unreported. She also asked that the record must be clear that, the Judgment was delivered and the accused was found guilty and convicted on a thorough examination of the record. I entirely agree with Miss Mwaseba State Attorney that the record do not show that the Judgment was delivered, neither does it show that the accused was found guilty. On that I entirely agree with Miss Mwaseba that it is a record defect which needs to be remedied. However my further close examination of the record, I found at page 11 of the typed proceedings that when the certificate of seizure was tendered for admission, it was objected by the accused person. 3 However in a ruling determining the objection, the objection was overruled and the certificate of seizure was admitted as Exhibit "Pl". As a matter of law after admission the exhibit, it was supposed to be read loud, but it was not as indicated at page 12 of the typed proceedings. Our Jurisprudence in Robert P. Mayunga and Another Vs The Republic Criminal Appeal No 514/2016 CAT Tabora, it was held inter alia that, "It is settled law in our Jurisprudence which is not disputed by the learned senior state attorney that documentary evidence which is admitted in court without it being read out to the accused is taken to have been irregularly admitted in other case, the recent one or Anania Clavery Betela vs Republic, It is settled that omission to read out an admitted document is total as it violets the fair trial right of the accused person to know the content of the evidence tendered and admitted against him and suffers the natural consequences of being expunged from the record of the proceedings" (Emphasize supplied) Further to that my further perusal of the record shows that at page 16 of the proceedings, the cautioned statement was irregularly admitted in evidence. 4 In the above cited case of Anania Clavery Vs Republic (supra), three stages of handling documentary evidence during admission were propounded as follows; ".whenever it is intended to introduce any document in evidence it should first be cleared for admission and be actually admitted before it can be read out", In this case the cautioned statement was read out before it was admitted the matter which was contrary to the procedure. The other evidential issue I noted is that, at page 12 of the proceedings, PW2 said the gun they found in the possession of the accused person was the property of one Andrew Saimon Laizer, who according to the evidence of PW2 he identified the accused person as a person who stole his gun .However, that said Andrew Saimon Laizer was not called to testify. With all these short comings especially the non reading of the seizure certificate which renders the said certificate to be expunged and the fact that, in the event the seizure certificate is expunged the issue is whether the offence of unlawful possession of fire arm will stand against the appellant, even after the accused person has been properly found guilty and convicted after delivering this same judgment? Having pointed out these weaknesses in the prosecution case, I called upon the State Attorney who is representing the respondent to address me on the strength of the case at hand, even if the appellant after has been properly found guilty and the Judgment has been delivered. 5 • Having been called upon, the State Attorney in his address to me having realised that even if the accused is properly convicted, and the judgment is delivered, yet still the case can not stand at appeal. Having so realised, she conceded and decided to support the appeal. It was when I decided to compose the judgment on the merit of the appeal. Where given the weakness in the prosecution case at the trial. I find that, the seizure certificate was not read out after its admission; I therefore under the authority in the case of Robert P. Mayunga and Another vs The Republic Criminal Appeal No 514/2016 CAT Tabora hereby expunge it from the record. I also find that the cautioned statement to be unprocedurally admitted, under the authority in the case of Anania Clavery vs Republic (supra) do hereby expunge the said cautioned statement. Lastly the fact that the alleged legal owner of the pistol allegedly found in the possession of the appellant was not called entitles this court to make adverse inference against the prosecution case. That said, I hereby allow the appeal and quash the conviction and set aside the sentence meted out against the appellant. In consequence thereof, I order his immediate release. It is so ordered DATED at MWANZA, this 30 day of July, 2020 a. J.C. Tiganga Judge 30/07/2020 6 Judgment delivered in the presence of the accused on line while in prison and Miss. Mwaseba learned State Attorney. "-e a J.C. Tiganga Judge 3/07/2020 Right of Appeal explained and guaranteed. 2.» J.C. Tiganga Judge 30/07/2020 7