SAMWEL YOMBYA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 110 OF 2023 SAMWEL YOMBYA ……………………............................APPELLANT VERSUS REPUBLIC……………………………………………………RESPONDENT [Appeal from the Decision of District Court of Bariadi at Bariadi] (Hon. C.G. Rugumira RM) dated the 25th day of March, 2022 in Criminal Case No. 16 of 2021 ----------- JUDGMENT 19th & 21st June, 2024. S.M. KULITA, J. This is an appeal from the Bariadi District Court. The appellant herein above was charged for “Being in Unlawful Possession of Narcotic Drugs” contrary to sections 11(1)(d) of the Drugs Control and Enforcement Act No. 5 of 2015. Upon the matter being heard and fully determined by the trial court, the Appellant was convicted and sentenced to 30 (thirty) years imprisonment. 1 Aggrieved with both, conviction and sentence, the appellant lodged this appeal relying on 5 (five) grounds, among others, that the case at the trial court was not proved beyond all reasonable doubts and that there was no independent witness like officer from the local Government who was called to testify for the prosecution during trial. The appeal was argued orally. While the Appellant was unrepresented, that he appeared in person, the Respondent (Republic) was represented by Ms. Rose Kimaro, State Attorney. In his submission in support of the appeal, the Appellant, Samwel Yombya, sought for his grounds of appeal in the petition to be adopted as the submissions for his appeal. He further sought for his appeal to be allowed and he be acquitted. In her reply thereto, the State Attorney conceded the appeal. Among the grounds that she had relied upon for her concede was that, the case at the trial court was not proved at the required standard. The Counsel gave the reason that, the only independent witness in search who was the Village Chairman, never turned up to the trial court to testify for the Republic. Instead, a Police Officer, WP 4579 D/Sgt. Pendo (PW7) just tendered the 2 said person’s statement that he had made at the Police Station. The Counsel added that, the said PW7 never made any justification during trial as to why she tendered the said witness’ statements instead of the author (intended witness) himself appearing to court in person and testify. At the end the State Attorney prayed for the appeal to be allowed, conviction against the appellant be quashed and the sentence term of 30 (thirty) years that had been imposed against him be set aside. The appeal submissions ended up with no rejoinder from the Appellant. Hearing of appeal thus closed. Upon going through the submissions, as well as the record of the lower court case file, I am satisfied that the case at the trial court as not proved beyond all reasonable doubts, which is a standard of proof for criminal cases. It is ample in the record that most of the witnesses in the prosecution case were Police Officers. Others were Game Officers, the ones who arrested the Accused, the Appellant herein. The only independent witness, one Ng’ombe Mtemi, who is alleged to have witnessed a search at the Appellant’s house that led to the recovery of bhangi, for no reason, never turned up to court to testify on it. His statement was just tendered to court under section 34B 3 of the Criminal Procedure Act [Cap 20 RE 2019] by a Police Officer, WP 4579 D/Sgt. Pendo (PW7) without any justification for that person’s non- appearance to court. The said PW7 did not give any reason to the trial courtl as to why she tendered the said statements instead of the author himself appearing to court in person and testify. The law regulates the manner in which a witness who cannot be found, his recorded statement can be admitted in evidence and acted upon by the trial court, subject to certain conditions. This is prescribed under section 34B(1) and (2)(a) of the Evidence Act [Cap 6 RE 2019] which stipulates; "34B.-(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written or electronic statement by any person who is, or may be, a witness shall subject to the following provisions of this section, be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written or electronic statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental 4 condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) - (e) ………. Not Applied ……….” [emphasis is mine] It is the mandatory requirement of the law that, for a statement to be admitted in lieu of oral direct evidence, the conditions stipulated under the cited provision must cumulatively be complied with. See MHINA HAMIS V. REPUBLIC, Criminal Appeal No. 83 of 2005, CAT at Tanga, and FREDY STEPHANO V. REPUBLIC, Criminal Appeal No. 65 of 2007, CAT at Tanga. In short, among the procedures to be complied with by the party who intends to tender the said statement is that, there must be a reason addressed to court for the said author of the statement not to appear before the court in person to give evidence. In the light of the stated position of the law, it is obvious that the procedures for tendering the witness’ statement under section 34B of the 5 Evidence Act was not properly adopted during trial. Hence, the said statement is expunged from the record. That being the case, it means the purported search at the Appellant’s house was done in the absence of the independent witness. Consequently, the appeal must succeed as suggested by the State Attorney. This ground alone is sufficient to dispose of the appeal in its entirely. In upshot, the appeal is hereby allowed. Accordingly, the conviction is quashed and the 30 (thirty) years sentence imposed against the appellant is set aside. He should immediately be released from the Prison House, unless he is held for any other lawful cause. S.M. KULITA JUDGE 21/06/2024 DATED at SHINYANGA this 21st day of June, 2024. 6 S.M. KULITA JUDGE 21/06/2024 7