salum seif kiduku vs republic 2022 tzhc 14555 31 october 2022

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO 33 OF 2022 (Originating from Criminal Case No 33 of2021. In the District Court of Tandahimba at Tandahimba) SALUM SEIF@ KIDUKU APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT 21/9/2022 & 31/10/2022 LALTAIKA, J; The appellant herein SALUM SEIF@ KIDUKU was charged at Tandahimba District Court with two counts: 1. Burglary c/s 294(l)(d) and 2 of the Penal Code Cap 16 RE 2019 (the Penal Code) and 2. Stealing c/s 258 and 265 of the Penal Code. He was convicted on both counts and sentenced to serve 5 years for the first count and 5 years for the second count to run concurrently. He is dissatisfied with both conviction and sentence hence this appeal premised on the following grounds: Page 1 of 7 1. The learned Magistrate erred in law by convicting and sentencing the appellant relying on evidence adduced by the PW 6, the evidence which was received in contrary to the requirements of section 198(1) of the Criminal Procedure Act [Cap 20 RE 2019] 2. The learned trial magistrate erred in law and fact by convicting the appellant relying on the evidence of PW1 while knowing that PW1 was not a credible and reliable witness 3. The trial magistrate wrongly applied the doctrine of recent possession as the alleged stollen motorcycle was not seized from the appellant 4. The trial magistrate failed to analyze the prosecution evidence properly 5. That the learned trial magistrate erred in law and fact to rely on improperly exhibited documentary evidence P2 (registration card) to convict the appellant. 6. The learned trial magistrate erred in law and fact by convicting and sentencing the appellant while the prosecution side failed prove their charge beyond any reasonable doubt as per section 3(2)(a) of the Evidence Act, 1967. When the appeal was called on for hearing on 21/9/2022 the appellant appeared in person unrepresented. The respondent republic, on the other hand, was represented by Ms. Florence Mbamba, State Attorney. The appellant, not being learned in law, had nothing substantial to add to his petition of appeal. He prayed that the learned state attorney proceeds with her submission and he would, if need be respond accordingly in Ms. Florence Mbamba announced that she was objecting the appeal. She stated that the appellant had advanced six grounds of appeal and she was inclined to argue them in three groups: the first group on the claim that the case was not proved beyond reasonable doubt, the second group on procedural irregularities and the third on the doctrine of recent possession. Page 2 of 7 Responding to the first group comprised of the first and fifth grounds of appeal, Ms. Mbamba averred the appellant complaint is that the evidence of PW6 that was tendered against procedure as the witness did not take oath and that exhibit P2 was read out loud before being admitted in court. The learned State Attorney conceded. She added that on page 19-20 PW6 did not take oath. Moreover, Ms. Mbamba stated, the document he tendered (P3) was indeed read out before being admitted. The learned State Attorney is of a reasoned opinion that the procedure for admission of exhibits obtained in our jurisdiction was not complied with. To support her argument, Ms. Mbamba referred this court to the case of MSENGI SELEMANI v. REPUBLIC Criminal Appeal No 504 of 2019 CAT, Dodoma. It is Ms. Mbamba's prayer, therefore, that the exhibits be expunged from the court records. With regards to the action of PW6 testifying without taking oath, Ms. Mbamba is of a considered view that the same is also against section 198 of the Criminal Procedure Act Cap 20 RE 2022. To that end, Ms. Mbamba reasoned, this court is called upon to expunge it from the court's records. Responding to the third ground of appeal, Ms. Mbamba stated that the appellant has faulted the learned magistrate for misapplication of the doctrine of recent possession while the motorbike alleged to have been stollen was not found in the possession of the appellant. For the doctrine of recent possession to apply, averred Ms. Mbamba, an accused person must be found with the stollen item and in his testimony, he must show how he Page 3 of 7 came to possess the items. In the instant case, averred the State Attorney further, it is evident in the court proceedings that the evidence adduced by PW5 as per page 15, indicate that while the appellant was arrested, he confessed to have given the motorbike to the third accused and that his statement was used to locate the stollen motorbike which was later found in PW2's house. To that end, Ms. Mbamba reasoned, it is true that the doctrine of recent possession was misapplied because the appellant was not found with the motorbike but only pointed out where it could be found. The learned State Attorney agrees with the appellant and opines that this ground of appeal be upheld. On the last ground of appeal premised on the burden of proof, it is Ms. Mbamba's submission that the prosecution was able to prove the case beyond reasonable doubt as per the ingredients of the offence charged. Expounding on her assertion with regards to the first count of burglary, Ms. Mbamba recounted that as it appears on page 7 of the lower court's proceedings while PW5 was testifying, the appellant did not raise any question to object that he had committed burglary and stealing the motorbike therein. On the second count of stealing, the learned Senior State Attorney averred that on page 16 of the lower court proceedings, it is indicated that the appellant had admitted that he stole the motorcycle and gave it to the 3rd accused with an agreement for selling it. As a result, Ms. Mbamba averred, the prosecution had established that indeed stealing had been committed. Ms. Mbamba added that the appellant had confessed before PW5 that he had taken the motorcycle and gave it to third accused person. Page 4 of 7 It is Ms. Mbamba's submission that according to the lower court's proceedings as recorded on page 16, the cross-examination section does not show the appellant objected not to have confessed before PW5 that he had stollen the motorcycle. In that regard, reasoned Ms. Mbamba, the appellant is taken to have accepted the allegation as per the Court of Appeal case of Nyerere Nyague v. Republic Crim App 67 of 2019. Ms., Mbamba concluded on this ground by emphasizing that indeed burglary and stealing were committed by the appellant and that the prosecution had discharged its duty of proving the same at the required standard. Responding to the second ground is on credibility of PW1 Ms. Mbamba was quick to point out that she objected this ground. It is Ms. Mbamba's submission that PW1 was the one who led the finding of the stollen motorcycle. The learned State Attorney averred that according to the lower court proceedings specifically on page 8, the third accused had taken the stollen motorcycle to PW1 as security for loan. To that end, Ms. Mbamba reasoned, the evidence of PW1 was crucial. The learned State Attorney prayed that the appeal be dismissed, and sentence of the lower court be upheld. In rejoinder, the appellant averred that the trial court was not fair to him. He emphasized that from the police station all the way to the court, there was no fairness. Expounding on his point, the appellant asserted that he was not found with any exhibit, neither a receipt nor registration card of any type or the motorcycle itself with registration number MC 89CLJ. Page 5 of 7 It is the appellant's submission that the people who were found with the motorcycle mentioned the person from whom they received the same and denied knowing him. Having dispassionately considered submissions by both parties, I am inclined to determine the merits of the appeal. I must admit that this is one of the most poorly investigated cases to come to my chamber in recent weeks. I have spotted double standard in the prosecution case which is too conspicuous to be ignored. In the lower court, Criminal Case No 33 that is being appealed against had more than 5 accused persons. The appellant, Rashidi Omari @Bomba, Ramadhani Hamisi @Dangote, Abdallah Ally Man'gula and Abdallah Makala. The last two (who were father and son) were set free in the police station and turned into prosecution witnesses. They appear in the copy of proceedings. Later on Ramadhani Hamisi Mchaulu @Dangote and Rashidi Omary @Bomba (who had been admitted to bail throughout the trial) were set free. No reason whatsoever was given. This court in the case of Andrea Chacha @Marwa & Another v. R. [2020] T.L.R. 27 (Kahyoza J.) held that "the act of the prosecution withdrawing charges against one of the two suspects raised a make-or-break issue." In the instant matter the prosecution evidence has been broken into pieces that cannot be assembled on unfairness. The same reasons that led to acquittal of Ramadhani and Rashidi should have been applied to acquit Salum. I have tried to make sense of the rest of the evidence and failed. I have no other choice but to allow the appeal. Page 6 of 7 In the upshot, I allow this appeal. I quash the conviction and set aside the sentence of thirty years in prison. I hereby order that SALUM SEIF@ KIDUKU be released from prison forthwith unless he is held for a lawful cause. 31st day of October 2022 in the presence of Mr. Enosh Gabriel Kigoryo, State Attorney and the appellant who has appeared in person, unrepresented. Page 7 of 7