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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 17085 OF 2024 (Originating from the District Court of Mbeya at Mbeya Criminal Case No. 130/2022) NYALOBI PAULO KIBONA…………………………….…APPELLANT

VERSUS THE REPUBLIC………………………….…………………RESPONDENT

JUDGMENT Date: 21 August 2024 & 11 September 2024 SINDA, J.: The appellant Nyalobi Paulo Kibona was charged with and convicted of the offence of Transporting Illegal Immigrants contrary to section 46 (1) (c) (g) and (2) of the Immigration Act, Cap. 54 R.E 2016 (the Immigration Act). The District Court of Mbeya at Mbeya (the Trial Court) sentenced him to pay a fine of Twenty Million Tanzanian shillings (TZS 20,000,000/=). In default thereto, he was sentenced to serve twenty (20) years in jail. 1 The particulars of the offence are that on 24 May 2022 at Mkora area within Chunya District, Mbeya Region, the appellant was found transporting forty- three (43) illegal immigrants of Ethiopian Nationality (the Immigrants) within the United Republic of Tanzania by using a motor vehicle with Reg. No. T306 ANX, Make Mitsubishi Fuso. The appellant challenges his conviction and the corresponding sentence on the following grounds: 1. That the trial court erred in law when convicted and sentenced the appellant without taking into account that the appellant was not arrested in the area of the incident while transporting the said illegal immigrants.

2. That the trial court erred in law when convicted and sentenced the appellant without taking into consideration that the prosecution failed to call the said illegal immigrants to prove that the appellant was the one who was transporting them. The charge against the appellant was not prove.

3. That the trial court erred in law when convicted and sentenced the appellant without regarding that PW4 as the owner of the motor vehicle T. 309 ANX failed to tender a written agreement to prove his claim that he handed the said motor car to the appellant.

4. That the trial court erred in law when convicted and sentenced the appellant without regarding that the evidence of PW4 was not 2 corroborated by RAMADHANI MAKABURI a driver and his wife that it was true that the appellant was her relative as per evidence of PW4 not only that but none of RB tendered there to proof his claims.

5. That the defense of the appellant was ignored by the trial court. At the hearing of the appeal, the appellant was unrepresented. The respondent was represented by Mr. Rajabu Msemo, learned State Attorney. The appellant requested the Court to consider his grounds in the petition of appeal as presented in the Court. He opted for Mr. Msemo to reply to them first so he could rejoin in case such need arose. Submitting on the first ground of appeal, Mr. Msemo submitted that from the proceedings of the Trial Court (the Proceedings), the evidence shows that the appellant and another person on the material date were involved in transporting immigrants. That, after driving for a long distance the immigrants started lamenting that there is no air. The appellant and his associate left the car and disappeared. When the immigrants were removed from the car and asked where the driver is, they answered that the driver disappeared. This was not objected by the appellant during cross examination. Mr. Msemo argued it is a settled position that failure to cross- examine means one agrees to the raised contentions. 3 Turning to the second and fourth grounds of appeal together, Mr. Msemo contended that there is no agreed number of witnesses required to prove a case. That, the prosecution will decide on which witness to bring to court. He added that the prosecution brought four witnesses and their

testimony led to the conviction of the appellant. Mr. Msemo referred to section 143 of the Evidence Act, Cap.6 R.E 2022 (the Evidence Act) and cited the case of Goodluck Kyando vs. Republic [2006] TLR 363. Mr. Msemo opposed the third ground of appeal and opined that one Amani Bulemo Mafuru (PW4) stated that he is related to the appellant. That, he gave the car to the appellant because the appellant was unemployed. He continued that the appellant during cross examination did not object on what PW4 stated in court. Therefore, the issue that the written agreement was not tendered in court is irrelevant. Lastly, the state attorney submitted that the fifth ground of appeal is baseless. Mr. Msemo argued that at page fifteen and sixteen of the typed judgment, the Trial Court considered the appellant’s defense and found the same to be irrelevant. He added that at the Trial Court the appellant during hearing did not mention his business of selling chips until during defence. 4 In rejoinder, appellant argued on the first ground of appeal that at the Trial Court, it was observed that he was at the scene of the crime. However, in the judgement the Trial Court stated that he was not at the crime scene. On the second ground, the appellant submitted that the prosecution did not prove the case beyond reasonable doubt that he was transporting illegal immigrants. The illegal immigrants were not

brought in court to prove the case. On the third ground, the appellant claimed that PW4 did not tender a copy of the agreement to show that PW4 handed the vehicle to the appellant. Also, the wife of PW4 was not in court as a witness to prove that she is related to the appellant. He emphasized that the court did not prove the case beyond reasonable doubt. Submitting on the fourth ground, the appellant contended that the evidence of PW4 that the appellant was also in the vehicle as a supervisor and he was related to the wife of PW4 was not corroborated by PW4 driver one Ramadhani Makaburi. The appellant added that there was also no RB to prove that he was caught transporting illegal immigrants. 5 Summing up and arguing the fifth ground, the appellant submitted that he informed the court that he was not involved in transporting illegal immigrants. He added that in the Proceedings PW1 stated that he received a call from the citizens and he went to the crime scene of crime and saw the abandoned vehicle with the illegal immigrants in bad health condition. He further stated that the citizens said the driver of the vehicle fled away. The appellant further rejoined that he crossed examined PF 18813 ASP Jumanne Mwangi (PW1). PW1 said that he doesn’t know the appellant. Whereas, PF 5833 Constable Anthony Joseph Minja (PW2) took the appellant’s cautioned statement which was not admitted in

court. He proceeded that the other person he was with was released in the Trial Court. Also, the appellant stated that the immigration officer did not recognize the appellant in the Trial Court but recognized the other person who was released. He concluded by stating that he was selling chips in Dar es salaam and was caught by the police from his office on his way home. Then, he was taken from Dar es Salaam to Mbeya. He prayed the court to consider his grounds of appeal and set him free. 6 I have gone through the records, submissions, statutes and case laws put before me. As I deliberate the appeal as a whole, I believe the most pertinent issues to be discussed are first who is the owner of the vehicle and second, who was in possession of the said vehicle, make Mitsubishi Fuso Reg. No T306 ANX, when the crime was committed. In analyzing the issues, I will focus on the evidence on record. From the Proceedings, it is undisputed that the vehicle belonged to PW4. This is also evidenced by Exhibit P2, a blue card showing the vehicle is registered under PW4’s name. The question is whether the appellant was the one supervising or in possession of the vehicle on the material date. I will therefore quickly analyze the evidence of the prosecution’s witnesses, aside from that of PW4. PW1, narrated how he got the information about the deserted vehicle with illegal immigrants. He also

explained how he arrested the illegal immigrants. PW1 did not mention who committed the offence of transporting illegal immigrants. 7 PW2, stated that he was the one who took the cautioned statement of the appellant. The cautioned statement was not admitted at the Trial Court because the appellant was not addressed his fundamental rights to call his relative, friend or advocate while giving his statement. PF 4887 CPL Ester Zebedayo Munuo (PW3), took the cautioned statement of the first accused at the police station. All PW3 knows about the appellant herein is mere hearsay. That being the case, none of the above witnesses have provided evidence that directly links the appellant to the offence. The only one to prove whether or not the vehicle was under the supervision of the appellant is PW4. PW4 stated that he gave the vehicle to the appellant in order to supervise the same as the appellant is related to his wife. It was the appellant’s submission in this appeal that the prosecution failed to bring PW4’s wife to prove the said relationship. He further stated that the prosecution did not bring one Ramadhani Makaburi, PW4’s driver to prove that he was under the supervision of the appellant. I do agree with Mr. Msemo that during a criminal trial, the prosecution will decide on which witness to bring to court. However, failure to call a material 8 witness leads the court to draw

inference adverse to the prosecution. See the case of Masanja Lupilya vs. Republic, Criminal Appeal No. 444 of 2017, that cited the case of Aziz Abdallah vs. Republic [1991] TLR 71, the Court of Appeal stated that: “…In the absence of any evidence that the witnesses were not reachable or could not be found, the prosecution was duty bound to call them. Failure to call such material witnesses entitles the Court to draw inference adverse to the prosecution.” In the matter at hand, three witnesses were important to strengthen the prosecution’s case. Firstly, the wife and driver of PW4. Secondly, the in-laws mentioned by PW4 at page 63 of the Proceedings who allegedly received the appellant at their resident after he encountered some challenges. These witnesses would have proved the likelihood of PW4 handing over the motor vehicle to the appellant. As a result, the failure of calling such potential witnesses without sufficient reasons, it becomes rather hard to prove the vehicle was under the supervision of the appellant. See: Masanja Lupilya vs. Republic (supra). This is because apart from PW4’s statement, there is no proof of the existing relationship between the appellant and PW4 or PW4 wife. Additionally, there 9 is no proof on the official handing over of the vehicle from PW4 to the appellant. Further, at page 63 of the Proceedings on the second paragraph, PW4 stated that he

was issued with RB in his pursuit to find the appellant, after the appellant had disappeared with the vehicle without PW4’s consent. However, the RB was never tendered before the Trial Court. In my view, the said RB was an important evidence to prove that the appellant disappeared with PW4’s vehicle and PW4 was indeed searching for him. This goes contrary to what was decided in the case of Ntobangi Kelya & Another vs. Republic, Criminal Appeal No. 256 of 2017 at page 25, where Court of Appeal stated: “We think much as the prosecution are at liberty to choose which evidence to adduce in court, if in the process, they leave out material evidence, then it is at their own disadvantage.” From the discussion above, the only undisputed fact as mentioned above, is that the vehicle belongs to PW4. Since, both the appellant and PW4, were not present at the crime scene. It comes as a surprise that the appellant was incriminated of the crime for merely being mentioned by PW4 the owner of the said vehicle. 10 I therefore find that the prosecution evidence was not water tight to secure conviction against the appellant and was definitely full of doubts. See: Mohamed Said Matula vs. Republic (1995) T.L.R. 3; Omary Said @ Habibu & Another vs. Republic, Criminal Appeal No. 302 of 2014; Awadhi Abrahamani Waziri vs. Republic, Criminal Appeal No. 303 of 2014. As a result, I allow the appeal. I proceed to quash the conviction, set aside the sentence and order the appellant’s immediate release, unless he is otherwise held for a lawful cause. Right of Appeal explained. DATED at MBEYA on this 11 day of September 2024. A. A. SINDA

JUDGE 11