Nyangila Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 7047 OF 2024 (Appeal from the decision of the District Court of Ilemela at Ilemela (Sumari, SRM) original Criminal Case No. 764 of 2022 Ilemela Primary Court.) NYANGILA MALENDE .................................................................. APPELLANT VERSUS JOSEPH NKUYU ........................................................................ RESPONDENT JUDGMENT 20th September & 22nd October 2024 CHUMA, J. The appellant was arraigned in the Primary Court of Ilemela at Ilemela District, facing the offence of stealing, contrary to sections 258 and 265 of the Penal Code, Cap. R.E. 2019. The allegation, as gathered from the charge sheet is that on the 20th day of July, 2022, at about 23:00 hours in the Igombe area within Ilemela District in Mwanza Region, the appellant did steal two hundred (200) fish nets valued at TZS. 13,000,000/= property of the respondent. The appellant pleaded not guilty to the charge, necessitating a trial resulting in a conviction and sentence of a fine of TZS. 250,000/- or four months upon default, and it was upheld by the first appellate court. Both the trial and appellate court’s decision has utterly aggrieved 1 the appellant. He has instituted this second appeal, challenging both the conviction and the sentence on the following paraphrased grounds: 1. That, the trial District Court erred in law and fact to ignore the issue of search leading to the seizure of exhibits without being witnessed by an independent witness and the appellant. 2. That, the trial District Court erred in law and fact to find proper as the trial court did produce in court exhibits whose chain of custody was not properly established. 3. That, if the District Court had properly considered the 1st and 2nd ground it would have found out that the 29-fishnet produced in court as exhibit were and are property of the appellant. At the hearing of this appeal, the appellant enjoyed the service of Mr. Adam Robert, learned counsel against Mr. Joseph Nkuyu who appeared in person unrepresented. Submitting in respect of the appeal the appellant’s counsel first abandoned the third ground and added two more grounds of appeal. One is that the first appellate court and the trial court failed to consider a defence case. Two the trial court as well as the appellate court erred in law and fact to place ownership of 29 fishnet in the ownership of the respondent. Submitted on the first ground Mr. Robert advocate for the appellant stated that the appellant, SM2, 3, and Ten Cell Leader never signed PE1 2 as per the trial court's findings. He further argued that SM2 denied knowing if the appellant was present on the fateful date, he also denied the existence of a ten-cell leader by the name of Chacha see pages 7 and 14 of the Primary Court’s typed proceedings. On the second ground, the learned counsel asserted that the tendering of exhibit its chain of custody was not properly established. The seized properties exhibit 2 was taken to Kirumba from Sengerema. SM3 handed over the seized fishnet to a watchman called mgambo. Under the circumstances the chain of custody is doubtful. The law provides for clear handling of an exhibit to avoid being tempered as it was held in the case of Zainabu Nasorro Vs. R Criminal Appeal No 348/2015 on page 15 where a case of Paulo Maduka Vs. R was referred. In the present case, the possibility of being changed or tempered was high. As to the third ground, both the trial and appellate court were blamed for the failure to consider the evidence of the defence case. It was his submission that omission to take into account defence evidence is fatal as it was held in the case of Abel Masikiti Vs. R Criminal Appeal No 24/2015 on page 6. In the instant case, both judgments in the trial and appellate court failed to consider defence case in their evidence assessment vitiates proceedings and judgment. 3 On the fourth ground, it was his submission that the 29 fishnet Exh. P2 was wrongly handed over to the respondent. This is because Exh. P2 belongs to the appellant as per evidence including receipts. He finally urged this court to allow this appeal by quashing the lower court proceedings and setting aside both judgments and orders meted out because the case was not proved beyond reasonable doubt. On his side, Mr. Joseph the respondent challenged the submission of the appellant's advocate as being baseless. This is because a search was done by a police officer who testified in court. The police officer found six gallons in the appellant's fishing boat. The said gallons were written in the appellants' name and mine. The appellant signed the seizure certificate and the said boat was taken to Igombe with 64 fishnets mine being 29. The seizure certificate was also signed by a ten-cell leader of Juma Kisiwan Sengerema. From Igombe we went to Kirumba Police and then to Ilemela Primary Court. The said seized properties i.e fishnet and gallons were shown and identified before the trial court Ilemela. He even submitted before the trial court a receipt of about 1075 worth TZS. 42,410,000/=. On the other side that is on the defence side, the presented receipt was from Mwanza and DSM. Their receipts indicate 25 fishnets. 4 Regarding the issue of chain of custody, the seized properties were under police escort to Kirumba Police and lastly to Primary Court. Hence no tempering of those exhibits under such circumstances. On the third ground, it was his submission that the trial and appellate court considered the defence case together with the tendered exhibits in reaching the final verdict. Concerning the last ground of appeal, the respondent argued that his fishnet had three colours namely summer blue, red, and black. After the closure of the case, he prayed for his fishnet and was handed over accordingly. In his brief rejoinder, Mr. Adam an advocate for the appellant insisted that a search was not properly carried out because SM2 denied signing the seizure certificate Exh. P1. The ten-cell leader was not even discussed by SM2. On the chain of custody concern, he admitted that the seized property was taken first to Igombe not Kirumba as submitted by the respondent. On page 9 of trial court proceedings, the seized items were taken to Igombe and left under the control of mgambo, not a police officer in the absence of the appellant. On failure to consider defence case, Mr. Robert's advocate reiterated his submission in chief. 5 As to ownership, the advocate stated that if the court finds out that a chain of custody was not properly handled then the court should decide in the appellant's favour. And that the exhibit in issue was disputed hence it was not proper for the court to hand over the said properties. Having heard the parties’ respective submissions, I turn to consider the merits or otherwise of the appeal, and the pertinent question to be resolved is whether the instant appeal raises any sufficient grounds which may justify the appellant's prayer to fault the trial court’s findings. It is a cardinal principle in criminal law, that proof of the accused’s guilt in a criminal case is a burden that has to be borne by the prosecution, and, save for a few exceptions, the standard of proof in such a case is beyond reasonable doubt. This position has been underscored in a multitude of court decisions across jurisdictions. In George Mwanyingili Vs. Republic, CAT-Criminal Appeal No. 335 of 2016 (Mbeya-unreported), the Court of Appeal of Tanzania guided as follows: “We wish to re-state the obvious that the burden of proof in criminal cases always lies squarely on the shoulders of the prosecution unless any particular statute directs otherwise. Even then, however, that burden is on the balance of probability and shift back to prosecution.” See also: Jonas Nkize Vs. Republic [1992] TLR 213. 6 The question that arises immediately is whether this burden was discharged by the prosecution in the course of the trial proceedings. In answering that. I will confine my analysis and evaluation of the trial court’s proceedings ascertaining the question of whether the offence was proved. Starting with the first ground of appeal, Mr. Robert advocate for the appellant asserted that the certificate of seizure was not endorsed by SM2, 3, the Ten Cell leader, and the appellant. This fact was contested by the respondent that the appellant signed the said certificate. I wish to make the record clear on the certificate of seizure. Mr. Robert's advocate referred certificate of seizure as Exh. P1 but from the record the same is PE3.PE1 is 29 fishnets. Back to the main concern, the appellant denied endorsing PE3 but the record and having time to see the certificate in dispute it is amply clear that the appellant signed the certificate of seizure contrary to what was submitted by Mr. Robert. Therefore, his submission on this ground is out of context. However my close look and scrutiny of the trial court record I encountered anomalies to the effect one, the trial court did not rule out the objection by the advocate for the appellant on the tendering of PE3 instead allowed cross-examination by the appellant advocate and finally admitted exhibit P3. Two the record reveals that David Steven was recalled to tender PE3 which he tendered without taking oath. 7 Since the above concern was raised by the court in its motion, I invited the parties to give their insights on the 21st day of October, 2024 on that aspect and had the following to say, Mr. Adam Robert's advocate admitted that on 11.1.2023 SM3 testified in court to an end. Surprisingly SM3 appeared in court on 3.2.2023 and was allowed to proceed testifying and tendered PE3. But was not called upon by either the court or the parties. And his evidence was indeed recorded without taking an oath. What was done was against the law and procedure. It was an afterthought by the complainant. The court turned or stepped in the complainant's shoes by allowing SM3 to testify to fill gaps in the complainant’s evidence. But also, failure to rule out the objection raised by the appellant’s side is fatal and vitiates proceedings. Mr. Joseph Nkuyu, the respondent on the other hand contested the submission of Mr. Robert's advocate as being baseless. He argued he named and prayed for SM3 to appear in court to testify. And SM3 was sworn and testified in court. SM3 testified once and tendered PE3 under oath. He never testified twice. In his brief rejoinder, Mr. Adam Robert's advocate challenged the respondents’ assertion on the ground that the typed trial courts’ proceedings are quite clear on what transpired in court. SM3 gave his testimony twice on 11.1.2023 and 3.2.2023. Hence it is not true that SM3 8 testified once rather he testified twice and on 3.2.2023 testified and tendered PE3 without taking oath contrary to the law and procedure. From the foregoing party’s submission and after my careful perusal of the records no doubt as submitted by Mr. Robert advocate SM3 first testified in court to an end on 11.1.2023 as evidenced on pages 9 to 10 of the trial courts’ typed proceedings. And that on 3.2.2023 SM3 appeared in court, testified, and tendered a certificate of Seizure which was admitted in evidence as PE3 see page 10 of the trial court’s proceedings. In the course, the appellant’s advocate objected admission of PE3 but the court never ruled out and instead allowed cross-examination and, in the end, admitted the exhibit in court. According to Mr. Robert failure to rule out the objection raised by the appellant’s side is fatal and vitiates proceedings. On his side, the respondent had nothing to comment on this point. Regarding omission by the trial court to rule out the raised objection it is this court's finding that the trial magistrate created and followed his own procedure contrary to the established and known procedure toward tendering and admission of exhibit. In the case of Safari Anthony @ Mtelemko & another Vs. Republic (Criminal Appeal No. 404 of 2021) [2023] TZCA 17768 (23 October 2023), the complaint was that exhibit P22 was admitted without the trial Judge having given reasons for the 9 admission of the exhibit. The Court of Appeal found the complaint merited a discarded exhibit and declared it to be evidentially worthless. I remind the trial magistrate to revisit the procedure governing tendering and admission of the exhibit. The second anomaly is that David Stephen tendered PE3 without taking an oath. For ease of reference, the trial court proceedings read; “Tarehe 03/02/2023. Mbele ya Mhe:... Mlalamikaji-Yupo Mshtakiwa-Yupo Mlalamikaji: Mhe sina shahidi mwingine ila askari aliyetoa Ushahidi siku ya Ushahidi hakuleta seizure Certificate, leo ndo ameipate kutoka kwa mplelezi naomba ipokelewe nitoe. Mlalamikaji-Sgn Mgs………Sgn 03/02/2023 Shahidi: David Stephen natoa Certificate of seizure kama kielelezo. Shahidi-Sgn Wakili wa mshtakiwa: Mhe, mteja wangu anapingamizi kuwa hajawahi kusaini hiyo karatasi. Wakili-Sgn Mgs-Sgn Askari:SM3: Mhe, alisaini tena akawa anaomba apewe kopi baada ya kuwa amewasiliana na kaka ambaye ni askari. Nikamweleza atapewa na mpelelezi kwa maana kesi inapelekwa katika kituo cha polisi Kirumba saa anasemaje haijui na hakusaini? 10 Alisaini mwenyewe. Askari……….Sgn Wakili: Mhe, sasa naomba nimcross-examine Wakili….Sgn Mahakama: Wakili endelea XXD: Wakili wa Mshtakiwa. ……………….. Mahakama: Kielelezo cha certificate of seizure inapokelewa kama kielelezo na kimepewa exh P3. Mgs………………….sgn. 03/02/2023”. From the quoted proceedings and the submission of Mr. Robert no doubt the witness who tendered PE3 was not sworn on the day he tendered it contrary to the rule of evidence as stipulated under section 198 (1) of the Criminal Procedure Act, Cap 20, R.E 2019, which states as follow:- “Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act.” The effect of such default renders the evidence with no value. This position was stated in the decision of the Court of Appeal in the case of Simon Shauri Awaki@ Dawi Vs. Republic Criminal Appeal No 62/2020 11 where the court held that the evidence taken in breach of section 198 (1) of CPA lacks evidential value. A similar stance is also reflected in several cases including Nestory Simchimba Vs. Republic, Criminal Appeal No. 454 of 2017 Godi Kasenegale Vs. Republic, Criminal Appeal No. 10 of 2008, and Salum s/o Said Kanduru Vs. Republic, Criminal Appeal No. 122 of 2018. Guided by the above authorities I also discard the evidence of David Stephano SM3 testified on 3.2.2023. By discarding the referred evidence no doubt, it goes away with PE3 as well. The submission by the respondent that SM3 gave his evidence once and under oath is misconceived because the record is self-explanatory as herein above quoted. The remaining evidence is that of PW1 and 2 who also did not witness the appellant stealing the said 200 fishnets. SM1 was just informed about the event via phone, the same applies to SM2 and SM3 arresting officers. There is no doubt that the conviction of the appellant was grounded and or relied heavily on circumstantial evidence as there was nobody who witnessed the accused committing the offence. It is therefore pertinent to initially restate the basic principles governing the reliability of the circumstantial evidence. In the case of Jimmy Runangaza Vs. Republic, for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. Other tests that 12 must be satisfied are such that: (a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (c) the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that the crime was committed by the accused and no one else. Bound by the principles, the pertinent aspect that stands for my determination is whether or not the available circumstantial evidence relied on by the trial court irresistibly points to the guilt of the appellant. What was grasped from the lower court record as evidence linking the appellant with the offence in issue is that of the identification of 29 fishnets and six gallons commonly known as (Mbela) at Juma Island by SM2 and later SM1 at Kirumba Police via color namely summer blue, red and black and through written names Nkuyu and Msoli which appeared under the appellant's faint names Nyangila. However, the record is silent on whether the said description was first stated to police leading to the discovery and seizure of the properties in issue. The reason is that the evidence on record is silent as to whether SM2 when first reported the incident to the police station narrated the discerptions of the accused persons since neither SM1 nor SM2 and 3 13 testified so in court. I doubt if this matter was investigated and whether any statement was taken from the appellant about the incident. This is because the investigator was named by SM3 but was not called upon to testify in court for unknown reasons. Perhaps he can respond to the crucial question raised above. This position was held in the case of Yohana Chibwingu Vs. Republic, (Criminal Appeal No. 117 OF 2015) [2015] TZCA 447 (5 June 2015) whereby the Court faced with similar situation as the case at hand. On pages 5 and 6 the Court stated; ‘At the end of the hearing of this appeal, we kept on asking ourselves a number of questions to which we had no answers…was the offence not investigated by the police? If so, who investigated it? Why wasn’t the investigator called to testify? If he had testified he would have answered several questions, including for instance, whether PW1 gave a description of the appellant in his first report? Where and when was the appellant arrested?...was any statement taken from the appellant about the incident? We have also wondered why weren’t the chairman of the appellant’s village or the District Commissioner to whom PW1 said he reported, called to testify?’ The issue of prosecution evidence being unchallenged on 29 fishnet identification is not the sole ground to warrant conviction against the 14 appellant. This is because it is trite law that an accused person is only convicted on the strength of the prosecution evidence and not otherwise. This legal position was well amplified in the case of Twinogone Mwambela Vs. Republic, Criminal Appeal No. 388 OF 2018 (CAT- MBY) on page 16 the Court of Appeal had this to say and I quote; ‘…we are alive to the position of the law that, an accused person in a criminal trial, can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence’ See also; Mwita and Others Vs. Republic [1977] LRT 54 The above findings take me to the second ground regarding the chain of custody of the seized properties. The learned counsel asserted that the tendering of exhibit and its chain of custody was not properly established. The seized properties exhibit 2 was taken to Kirumba from Sengerema. SM3 handed over the seized fishnet to a watchman called mgambo. Under the circumstances the chain of custody is doubtful. The law provides for clear handling of an exhibit to avoid being tempered as it was held in the case of Zainabu Nasorro Vs. R Criminal Appeal No 348/2015 on page 15 where a case of Paulo Maduka Vs. R was referred. In the present case, the possibility of being changed or tempered was high. On his side, the respondent challenged this fact alleging that the 15 seized properties were all the time under police control and hence never tampered with. I do subscribe to the submission of Mr. Robert that the chain of custody was doubtful because the manner of handing over the seized properties to the watchman by SM3 on 11.12.2023 was not explained. There must be a clear explanation of how the exhibit was handled from one stage to the other from its initial stage to its admission in court to avoid it being tempered. On the third ground, I joined hands with the submission of the respondent that the trial and appellate court considered defence evidence in reaching their final verdict. The record on pages 12 and 14 and pages 8, 9 and 10 of the trial and first appellate court indicates so. This ground is then bound to fail. In premise, it is this court's findings that the prosecution case at the trial court was not proved on the required standard against the appellant on the charged offence of stealing in which the first appellate court stepped into the same shoes of the trial court. The appellant was wrongly convicted. Consequently, the trial court and first appellate court’s proceedings are quashed, the judgment and orders meted out are set aside. 16 I so order. Right of appeal explained. DATED at MWANZA this 22nd day of October, 2024. W.M. CHUMA JUDGE 17 Judgment delivered in court virtually in attendance of Mr. Adam Robert advocate for the appellant and Joseph Nkuyu respondent this 22nd day of October, 2024. J. MUSAROCHE DEPUTY REGISTRAR 18