nasoro kibwana nasoro vs the republic 2022 tzhcld 1146 26 august 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT MOROGORO CRIMINAL APPEAL NO. 18 OF 2021 (Originating from the decision ofthe District Court ofKiiosa in Criminai Case No. 3of 2017 before Hon. Lyon. RM dated 30January, 2019) NASORO KIBWANA @ NASORO APPELANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT Hearing date on: 16/08/2022 Judgment date on: 26/08/2022 NGWEMBE,J: The trial court upon finding the appellant guilty, proceeded to convict and sentenced him to custodial sentence of 20 years imprisonment, in alternative to pay fine of TZS 41,325,000/=. Being so convicted and sentenced, the appellant Nasoro Kibwana @ Nasoro ventured 1 4- exercise his basic rights to appeal to this court against both conviction and sentence. He came up with five (5) grounds of appeal which conveniently may be summarized into two grounds namely; one, the prosecution failed to prove the case beyond reasonable doubt; two, the search was conducted contrary to the procedural laws. For convenient purposes the genesis of this appeal arose on 09'*' January, 2017 at Klelezo Village Ruhembe Ward, MIkumi Division within the District of Kilosa in Morogoro Region, where the appellant was alleged to have been found in unlawful possession of Government Trophies to wit; Buffalo meat worth USD 1900 equal to TZS 4,132,500/=. Upon being so arrested he was arraigned in court, charged accordingly. After hearing both parties, the trial court, found the appellant liable, hence convicted him and proceeded to sentence him as above quoted. Having successfully filed this petition of appeal, this court fixed for a hearing date, whereas, the appellant appeared in person, while the Republic was represented by learned State Attorney Edgar Bantulaki. Unfortunate, the appellant being unrepresented by an advocate he fully relied on his grounds of appeal and prayed same be considered. In turn, the learned State Attorney, conceded to the appeal for different reasons. First, he raised the issue of apparent irregularity in the whole proceedings, which are incurable. For instance in page 30 the seizure certificate was admitted and marked PI; likewise the caution 2 statement was admitted and marked P2, as per page 31 and inventory was admitted, marked exhibit P3 as per page 35; Also extrajudicial statement was admitted in court marked exhibit P4 as per Page 38; certificate of trophy valuation was marked exhibit P5, those exhibits built the case of the prosecution, unfortunate may be to the prosecution, all those documents though were procedurally tendered and admitted in court, but were not read in court as required by law. The learned State Attorney referred this court to the case of Robison Mwanjisi Vs. R [2003] T.L.R 218 which emphasized that documentary evidences must be read in court, failure of which, shall be expunged. Further submitted that, if those exhibits are expunged the remaining evidences are only testimonies of PW4, PW5 and PW6 and that their testimonies can not prove the offence to standard required by law. Again, when exhibit PI is expunged no single evidence can prove that the appellant was found with Buffalo meet. In conclusion he submitted that, the appeal has merits, and prayed the conviction and sentence be set aside and the appellant be left free. Having summarized the arguments of learned counsel, I wish to begin my consideration by stating a well-settled principle of law, that once a document is intended to be relied up on, by a court of law, such document must be tendered by a witness testifying the contents therein. Second, upon being admitted in court, its contents shall be read loudly in court. The purpose of reading the contents of such document is to let the accused understand its contents and be prepared, if any, to ask relevant questions related to such document. Third, failure to read the contents of the 3 admitted document, in principle such document shall be expunged from the court record. This court and the Court of Appeal has tirelessly repeated on these principles in several precedents, including in the case of Aneth Furaha and 3 Others Vs. Director of Public Prosecutions, Criminal Appeal No. 161 of 2018 at Bukoba (unreported), the Court of Appeal held: - "After the document is admitted, is for the contents to tie read over before iaeing acted upon in evidence" In the same vein, the Court of Appeal insisted on the requirement to read the contents of the document in the case of Robison Mwanjisi and 3 others Vs. R,[2003]TLR 218, held: - "Whenever it is intended to introduce any document in evidence, it shouid first be cieared for admission, and be actuaiiy admitted, before it can be read out, otherwise it is difficuit for the court to be seen not to have been influenced by the same" In the same logical thinking, the Court of Appeal repeated in the case of John Mghandi @ Ndovo Vs. R, Criminal Appeal No. 352 of 2018 held:- "We think we shouid use this opportunity to reiterate that whenever a documentary exhibit is introduced and admitted into evidence, it is imperative upon a presiding officer to read and 4' expiain its contents so that the accused is kept posted on its details to enable him/her give a focused defence. on account of the omission, we are left with no other option than to expunge the document from the record of the evidence" The consequences of failure to read the contents of the document admitted In court Is to expunge It forthwith as If It never existed. This position was clearly pronounced In various cases, Including In the case of Issa Hassan UKI Vs. R, Criminal Appeal No. 129 of 2019; DPP Vs. Kashen Joseph Mtambo, Criminal Appeal No. 10 of 2019; and Jumanne Mohamed & 2 others Vs. E, Criminal Appeal No. 534 of 2015. In all these cases, the court arrived Into one conclusion, the exhibits were expunged. Similarly, In this appeal the five exhibits that Is, seizure certificate (PI), caution statement (P2), an Inventory (P3), extrajudlclal statement (P4) and trophy valuation report (P5), as reflected In the proceedings, were admitted by the trial court, but were not read over to the accused/appellant to let him understand the contents of those documents. Thus, rightly the learned State Attorney pointed out those Irregularities In the proceedings of the trial court and asked this court to expunge the five documents, by referring this court to the case of Robison Mwanjisi (Supra). The State Attorney further submitted that If those exhibits are expunged the remaining evidence are testimonies of PW4 and PW6 and that their testimonies cannot constitute and prove the offence charged beyond reasonable doubt. Since the five documents were rightly admitted, but the contents were not read over, same cannot stand and remain in the court record. Accordingiy, I hereby expunge exhibits PI, P2, P3, P4, P5 as rightiy argued by the iearned State Attorney. Having so decided, the question is whether the remaining evidences can stand to prove the offence? The answer is negative. Maybe it is important to remind the prosecution their noble duty in criminal trials is to proof the case against the accused to the standard required by law. Justice of Appeal Msoffe J.A in the case of Nathaniel Alphonce Mapunda and Benjamini Alphonce Mapunda V. Republic [2006] T.L.R. 395 held: 'Vis is well known, In a criminal trial the burden of proof always lies on the prosecution. Indeed, In the case of Mohamed Said Matula v. R. this Court reiterated the principle by stating that In a criminal charge the burden of proofIs always on the prosecution. And the proofhas to be beyond reasonable doubt. There must be credible evidence linking the appellants with the offence committed". The effect of the prosecution from being not serious on proving the offence against the accused, have negative impact to the society and the Government. The law was enacted with purpose to cure certain mischiefs found in the society. Any laxity on the prosecution send an outcry to the society. Rrst the government will fail to protect innocent citizens; second, hard core criminals will always walk freely from the corridors of law for inaction of the prosecution; third, when good citizens loose confidence to the judiciary, obvious wiil decide to defend themselves, thus unruiy society, which our judiciary must stand to defend innocence citizens to the end. Moreover, it is weii known that when one side is represented by learned counsel and the other side is not represented, such counsel has dual responsibilities. First; to assist the court to the ends of justice, when there is any irregularity or unprocedurai act is done by the court, the counsel has a duty to inform the court to correct that error. Second to defend his client to the best of his knowledge and ability but without offending the law and misleading the court. This position was rightly articulated by Nigerian judges in the case of Michael Okaroh Vs. The State, SC 58/1989 when he said: - "It goes without saying that a Counsel in court in a capital thai has a very important and sacred duty to perform. He owes that duty to not only his client and the court, but also to society at large. It is of the very essence of that duty he should promptly take objection to every irregularity at the trial, be that an irregularity relating to procedure or to evidence called at the trial" Had the prosecutor performed his duties properly, the trial magistrate ought not to have faulted such unforgettable rules of procedure in admitting documentary evidences during trial. In totality and for the reasons so stated, this appeal has merits same — is allowed, consequently, I proceed to nullify the proceedings and judgement, quash the conviction and set aside the sentence meted by the trial court. I therefore, order an immediate release of the appellant unless otherwise held for other lawful order. Order accordingly. DATED and DELIVERED at Morogoro in Chambers this 26*^ day of August 2022 PJ. NGWEMBE JUDGE 26/8/2022 Court: Judgment delivered at Morogoro in Chambers on this 26'*' day of August, 2022, Before Hon. S.J. Kainda, DR in the presence of the Appellant in person and Mr. Dastan State Attorney for the Republic. Right to appeal to the Court of Appeal explained. foURr 0,? Certify that this is a true and correct />• Ci Uj X I SGD: HON. S.J. KAIND/. V- vv DEPUTY REGISTRAR DeputyI Registrar | I ?, ®I Dale ..uit Morogoro 26/08/2022