patrice john vs republic 2007 tzhc 318 31 october 2007

IN THE HIGH COURT OF TANZANIA

AT MOSHI (DC) CRIMINAL APPEAL NO. 25 OF 2005 [ORG. DC MOSHI CR. CASE NO. 977/2004] PATRICE JO H N ------------------ APPELLANT

VERSUS THE REPUBLIC-----------------RESPONDENT

JUDGMENT HON. JUNDU, J. In the trial court, the Appellant together with two other accused persons (not appellants herein) were charged with the offence o f being in unlawful possession of native liquor commonly known as “Gongo” c/s 30 o f Act No. 62/66 and Govt. Notice No. 451/68. The particulars of the offence were that the Appellant and the said other two persons on 22nd August, 2004 at about 12.00 hours at Kirimo Juu, within the Rural District of Moshi in Kilimanjaro Region together and jointly were found in unlawful possession o f 99 Vi litres o f liquor commonly known as “Gongo”. Having heard the evidence of the prosecution witnesses to wit PW. 1, P W.2, PW.3, PW.4 and PW.5 and the defence witnesses to wit DW .l (the Appellant), DW.2 and DW.3, the trial magistrate found the Appellant guilty of the charged offence. He convicted the Appellant and sentenced him to 5 years imprisonment. Having been aggrieved by the conviction and sentence, he has appealed to this court listing six (6) grounds o f appeal in his Petition o f Appeal filed in this court. In the said Petition o f Appeal, the Appellant has prayed to this court to allow the appeal, quash and set aside conviction and sentence and to release him from the prison forthwith. On 3/5/2007, this court had ordered the parties to argue the appeal by way of written submissions. The parties have so complied. The Appellant

presented his submission by himself while Miss Mlay, learned State Attorney acted for the Respondent/Republic. In the first ground of appeal, the Appellant contends that the trial magistrate erred in law and fact by convicting the Appellant with the offence which was not proved by the prosecution. The issue is whether the evidence of the prosecution witnesses had proved the charge against the Appellant. In his submission, the Appellant contends that P W. 1 to PW.4 were police officers and in their evidence on record at the trial court testified that they had received information from their informer about “gongo” being sold at his house hence they went to search at the said house. He contends that none of the said witnesses testified that he had found the said liquor inside the said Appellant’s house but that they found it outside his house and some o f it, that is Exhibit PI with the second and third Accused persons. He therefore contends that the mentioned witnesses had failed to prove that the alleged liquor was found within his house. However, Miss Mlay, learned State Attorney in her submission has strongly disputed the said submission o f the Appellant as being a lie. She contends and I quite agree with her upon my close reading of the evidence o f PW. 1 to PW.4 on record that upon the house o f the Appellant being searched, the alleged liquor was found within the said

house, in particular inside the store. It was 85 litres found inside the store and the same was tendered in the trial court and admitted as Exhibit P.3. In my considered view, this was a cognate evidence which proved the charge against the Appellant. I hold that the first ground o f appeal has no merit. In the second ground o f appeal, the Appellant contends that the learned trial magistrate erred in law and fact by convicting the Appellant on a defective charge. In his submission, the Appellant contends that none o f the prosecution witnesses testified on the movement o f the alleged liquor in his compound hence he argues that the charge raised against him was not proved at all as none o f the said witnesses testified to the effect that he had been found in possession of the said liquor. Miss Mlay, learned State Attorney, in her reply submission strongly disputes the submission o f the Appellant. She contends, for which I quite agree with her that the Appellant in her submission has not elaborated or demonstrated how the charge sheet was defective. Infact, the Appellant in his submission simply contends that none o f the prosecution witnesses testified that he saw him in possession of the alleged liquor hence they had failed to prove the charge against him. In my considered view, this submission of the Appellant is different from the contention that the charge sheet is

defective. I hold that the Appellant has failed to prosecute the second ground o f appeal or elaborate how defective is the charge sheet thereof. In the third ground of appeal, the Appellant contends that according to the cross - examination o f the ten cell leader by the third accused person brought out a picture that the ten cell leader was not present during the search which is a mandatory error in the procedure of a search as demanded by law. He contends in his submission that during the said cross - examination, the said ten cell leader who testified as PW.5 confirmed to have not been present when the Appellant was arrested and searched. However, in her submission Miss Mlay, learned State Attorney has strongly refuted the contention o f the Appellant. Indeed, I have read the evidence o f PW.5 on record, it is vividly clear from the said evidence that he was the ten cell leader and he had testified as PW.5 and that he had witnessed the search of the house of the Appellant having been called by P W .l, PW.2, PW.3 and PW.4. Therefore, the argument o f the Appellant that the search was not witnessed by an independent witness has no basis at all. I hold that the third ground of appeal has no merit. In the fourth ground o f appeal, the Appellant contends that the trial magistrate erred in law by not considering the contradictions and doubts showed up during the hearing o f the

case. In his submission, he contends that some of the prosecution witnesses in their evidence in the trial court stated that there was a presence of an independent witness during the search but the said independent witness, that is PW.5 in his evidence proved that he was not present during the said search. He further contends that while the other witnesses who were police officers stated that at the search they found some litres o f gongo liquor. PW.5 in his evidence stated that among other things they found 968 sticks of cannabis “bhang”. Though, Miss Mlay did not specifically respond to this ground of appeal, the first part o f this ground o f appeal has been responded in her reply while responding to the third ground o f appeal, that PW.5, the ten cell leader as per his own evidence on record he witnessed the search that was conducted in the house of the Appellant. This was also the evidence of PW .l and hence PW.3 there was no contradiction in the evidence o f the prosecution witnesses on the said point. On the second contention o f the Appellant, that the witnesses who were police officers stated that they found gongo in the search while PW.5 in his evidence stated that they found 968 sticks o f cannabis “bhang”, this contention has no merit. The Appellant was charged with being found in unlawful possession o f local liquor commonly known as gongo and not “bhang”. The

search conducted at his house proved that he had 85 litres o f gongo inside his store in his house. Therefore, there is no contradiction at all. Infact, even PW.5 in his evidence testified that the Appellant was found with 85 litres o f gongo inside his store when searched. In the fifth ground o f appeal, the Appellant contends that the trial magistrate erred in law and fact by disregarding the defence testimony o f the Appellant that he was intimidated into signing the police statement while the same was not read or explained to him, this he contends was a mandatory error in law. He contends that PW.2 was the one who tendered Exhibit P.4, the caution statement of the Appellant but he had objected to its admission on the ground that he had never written any such statement at the police station. However, he contends that the trial magistrate admitted the said statement, Exhibit P.4 without conducting trial within a trial. In my considered view, the Appellant appears to invoke Section 27(2) of the Evidence Act, 1967 on the requirement o f conducting trial within trial when an accused person retracts his caution statement. However, I am o f the view that the Appellant was not prejudiced in the matter because my careful reading of the Judgment o f the trial magistrate does not show that he acted on Exhibit P.4 in convicting the Appellant. Nowhere, in the said Judgment did the trial

magistrate acted on Exhibit P.4 to convict the Appellant. Actually, he did not even act on the evidence o f PW.2, the witnesses who tendered Exhibit P.4 in convicting the Appellant. He relied on the evidence of PW .l, PW.3, PW.4 and PW.5 only in convicting the Appellant. Therefore, I hold that ground five o f the appeal is not meritous. The Appellant, in his submission has not canvassed the sixth ground of appeal. I take it that he has abandoned the same. j In the upshot, I hold that the appeal has no merit. The same is hereby dismissed. I uphold conviction and sentence on the Appellant inflicted by the trial magistrate. It is so ordered. F.A.R. JUNDU

JUDGE 31/10/2007 Right o f Appeal Explained. F.A.R. JUNDU

JU D G E 31/10/2007 31.10.2007 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Mr. Maugo, State Attorney C/C: Muyungi C ourt: Judgment delivered in the presence o f the Appellant and in the presence of &®?jk&iugo, learned State Attorney for the Respondent/Republic. F.A.R. JUNDU

JU D G E 31/10/2007

AT M OSHI