SHUKURU VICTOR NGONYANI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA fCORAM; MWARIJA. 3.A.. KEREFU. 3.A.. And MAKUNGU. 3.A/) CRIMINAL APPEAL NO. 488 OF 2022 SHUKURU VICTOR NGONYANI........... ....... .......... APPELLANT VERSUS THE REPUBLIC .... .......... ...... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) fMlvambina, 3.) dated the 2<Jthday of September, 2022 in Criminal Sessions Case No. 15 of 2022 JUDGMENT OF THE COURT 9 h & 9 ' August, 2024 KEREFU. J.A.: The appellant, Shukuru Victor Ngonyani was charged with the offence of murder contrary to section 196 of the Penal Code in the High Court of Tanzania sitting at Songea (Mlyambina, X) in Criminal Sessions Case No. 15 of 2022. It was alleged that, on 26th August, 2020 at Ligera Village within Namtumbo District in Ruvuma Region, the appellant did murder one Linrtbu Supi Kilamba @ Msukuma, the deceased. The appellant pleaded not guilty to the charge. However, after a full trial, he was found guilty, convicted and sentenced to suffer death by hanging. The brief facts of the case that led to the appellant's arraignment, conviction and sentence as obtained from the record of appeal are not complicated. They go thus, on 26* August, 2020, Stawa Silaju Ndauka (PW2), a petty business woman at Ligera Village, woke up early in the morning and went to fetch water at the well where she found her fellow women, mama Imani and Zainabu Mohamed Mangasala (PW3) on the que. While still there, and when it was her turn, the deceased appeared. Since, as per their accepted practice, women do not allow men to be on the que, PW2 allowed the deceased to fetch water first. The deceased fetched two buckets of water and left. It was the PW2's testimony that, when the deceased was leaving, she saw the appellant coming from the house which was near the well walking quickly towards the deceased while carrying a four-angle piece of wood and a red sulphate and hit the deceased on his occipital skull. The deceased fell down. PW2 saw the appellant taking the wallet and mobile phone from the decease's trouser and then, ran away. PW2 went to assist the deceased and upon seeing him unconscious, she raised an alarm. It was the testimony of PW2 that, PW3 was the first person who responded to the alarm and came to assist the deceased. While there, the deceased regained his consciousness and told them that the appellant hit him and took his wallet and mobile phone. PW2 and PW3 took the deceased to Ligera Dispensary. Thereafter, PW2 went to Rose Charles Nkiri (PW6), the Village Executive Officer (the VEO) to inform her about the incident. Meanwhile, the deceased was referred to Songea Regional Hospital and on 27th August, 2020 he passed away. In her testimony, PW3 supported the narration by PW2 and she specifically, added that on the fateful day, around 07:00 hours while on her way to the market, she heard a heavy sound and upon turning, she saw the deceased lying on the ground and the appellant was holding a piece of wood and a red sulphate running towards Nluungano, a nearby Village. That, she went to assist the deceased and while there, the deceased told her that he was attacked by the appellant. PW3 raised an alarm where upon people responded/ chased and arrested the appellant On his part, Joseph Daniload Komba (PW4) testified that, on the fateful date at 07:00 hours, the appellant entered his house carrying a red sulphate and informed him that he was being chased by some people. Suddenly, the said people who were chasing him appeared. Upon being searched, the appellant was found with iron bar, tesso, hammer, maroon wallet with TZS 166,100.00, NMB Card and Voters' Card in the name of the deceased. PW4 stated further that the said people Informed him that the appellant hit the deceased at the water well, stole his wallet and mobile phone and ran away. Petro Muhogo (PW5), a Councilor, testified that he was among the people who responded to the alarm and chased the appellant who entered into the house of PW4. PW5 stated further that, at the house of PW4, he rescued the appellant from the said people and brought him, together with the items he was arrested with, to the PW6's office. PW6 confirmed that she was informed of the incident by PW2 and wrote a letter authorizing the decease's treatment. PW6 stated further that, she went to the hospital and found the deceased in a bad condition. While at hospital, she heard noises of the people outside her office. She rushed back arid found the people who were being led by PW5, had brought the appellant to her office. It was her testimony that, upon inquiry, the appellant confessed to have committed the offence. PW6 inspected the red sulphate and found the items mentioned by PW4 above. PW6 reported the matter to police. No, G.7201 PC Gwandu (PW7), the investigation officer, testified that, on 26th August, 2020 around 08:00 hours, while at the Mkongo Police Station, he received a phone call from PW6 who informed him about the incident. PW7 together with other police officers went to the scene of crime and hospital where they found the deceased in a bad condition. They, then went to PW6's office where they found the appellant with the items he was arrested with. PW7 seized the said items and filled a certificate of seizure which was admitted in evidence as exhibit P2. The items seized were admitted in evidence as exhibits P3, P4, P5, P6, P7 arid P8. It was the testimony of PW7 that he handed the said items to No. PF 24591 PC George Elias Nkingwa (PW8), the exhibit keeper, who filled a handing over form which was admitted in evidence as exhibit P9. Thereafter, No. G4181 D/C Meek (PW9), was assigned to record the appellant's cautioned statement. It was the testimony of PW9 that, during the interview, the appellant confessed to have committed the offence. The appellant's cautioned statement was admitted in evidence as exhibit P10. PW9 stated further that, on 28th August, 2020 he went to the scene of crime together with the OCCID where he prepared a sketch map of the scene of crime (exhibit P ll). An autopsy on the deceased's body was conducted by Dr. Mathayo Chanangula (PW1), who concluded that the cause of death was fracture on the skull which was caused by a blunt object. A postmortem report to that effect was admitted in evidence as exhibit PI. In his defence, apart from admitting that he knew the deceased and all witnesses who testified at the trial and that he was arrested in the house of PW4 with the said items, the appellant denied to have committed the offence. He contended that, on the material date he was on his way to Muungano Village to his grandfather to return the teso and a piece of iron bar he took from him. That, before arriving to the said grandfather, he heard noise of people yelling 'mwizi\mwizii Upon noticing that the said people were chasing him and they were carrying dangerous weapons, he decided to run and entered into the PW4's house to rescue himself but he was then arrested and brought to PW6's office. He stated that, the said people alleged that he was a thief and they have been looking for him for a long time, which he denied. The appellant also denied to have attacked the deceased and contended that he was forced to sign the statement at the police. He however, admitted that previously he was a thief, but it was only once. After a full trial, the appellant was found guilty, convicted and sentenced as indicated above. Dissatisfied, he has knocked the doors of this Court still protesting his innocence. In the memorandum of appeal, he raised three grounds of appeal which can conveniently be paraphrased as follows; one, that, exhibit P8 was improperly admitted in evidence for failure by the prosecution to comply with the mandatory requirement of section 38 (3) of the Criminal Procedure Act, Cap. 20 (the CPA); two, the prosecution case was not proved beyond reasonable doubt; and three, the chain of custody of exhibit P9 was not established. At the hearing of the appeal, the appellant was represented by Mr. Gaudence Ndomba, learned counsel whereas the respondent Republic was represented by Mr. Kauli George Makasi, learned Senior State Attorney. Submitting in support of the first ground, Mr. Ndomba faulted the learned trial Judge for finding that the appellant hit the deceased with a piece of wood (exhibit P8) while the search and seizure of the alleged weapon was conducted contrary to the mandatory requirement of section 38 (3) of the CPA. To clarify, Mr. Ndomba referred us to the testimony of PW7 and argued that, apart from preparing the certificate of seizure (exhibit P2), PW7 did not issue any acknowledgement receipt to the appellant to prove that the said weapon was seized from him. He insisted that the issuance of such receipt was crucial, in the circumstances of the case, because the people who arrested the appellant were also equipped with dangerous weapons. Thus, raised doubt as to whether the alleged piece of wood belonged to the appellant or the said people. To support his proposition, he cited the cases of Selemani Abdallah & Others v. Republic, Criminal Appeal No. 354 of 2008 (unreported) and Mbaruku Hamisi & 4 Others v. Republic, Consolidated Criminal Appeals Nos. 141,143, & 145 of 2016 & 391 of 2018 [2019] TZCA 266: [30 August 2019: TanzLJI]. He then urged us to expunge exhibit P8 from the record. As for the third ground, Mr. Ndomba contended that the chain of custody of exhibit P9 was not established. That, the entire movement of the said exhibit, from one point to another, was supposed to be filled in Form No. 16 (exhibit register) and not otherwise. It was his argument that, since the said register was not tendered during the trial, exhibit P9 was improperly admitted in evidence. As such/ the learned counsel also urged us to expunge exhibit P9 from the record. On the last ground, Mr. Ndomba faulted the learned trial Judge for finding that the charge against the appellant was proved to the required standard while the prosecution witnesses were incredible and unreliable as their evidence was tainted with contradictions on how they witnessed the incident and the specific time when the incident occurred. To amplify on this point, he referred us to the evidence of PW2 and PW3, the prosecution eye witnesses at the scene of crime, and argued that, while PW2 at page 52 of the record of appeal testified that she went alone at the scene to rescue the deceased, PW3 at page 56 of the same record testified that she arrived at the scene together with PW2. The learned counsel also referred us to the evidence of PW4 and PW5 and argued that, at page 55 of the record of appeal, PW4 testified that the appellant entered his house at 07:00 hours while, PW5 at page 59, testified that she heard the alarm from the woman calling 'mwizi, mwizi' around 07:30 hours. According to him, the pointed-out contradictions had created doubts in the prosecution case which was supposed to be resolved in favour of the appellant. Based on his submission, Mr. Ndomba concluded that the prosecution case was not proved to the required standard and urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty. In response, Mr. Makasi from the outset, declared the respondent's stance of opposing the appeal and intimated that, he would argue the grounds of appeal in the same manner as argued by his learned friend. Starting with the first ground, Mr. Makasi challenged the submission by his learned friend by arguing that the issuance of receipt during search and seizure is not a mandatory requirement of the law, especially when a certificate of seizure is issued and signed by both parties. To bolster his argument, he referred us to our previous decisions in the cases of Papaa Olesikaladai @ Lendemu & Another v. Republic, Criminal Appeal No. 47 of 2020 [2023] TZCA 51: [20 February 2023: TanzLII] and Jumanne Mpini @ Kambilombilo & Another v. Republic, Criminal Appeal No. 195 of 2020 [2021] TZCA 303: [15 July 2021: TanzLII]. He then insisted that, since in this appeal the certificate of seizure was issued and signed by the appellant, the same is sufficient evidence to prove that the seized items were obtained from him. He thus urged us to find that the first ground of appeal is devoid of merit. Responding to the third ground of appeal, Mr. Makasi argued that the submission by Mr. Ndomba is misconceived because exhibit P9 is a document which establishes the movements of the said exhibits, how they moved from PW7 to PW8. He clarified that the exhibit register (Form 16) and the chain of custody form (exhibit P9) has different functions depending on the circumstances of each case and both can be used to prove the chain of custody of an exhibit. According to him, since 10 in the instant appeal, there is sufficient evidence by PW7 and PW8 to prove on how the said exhibits moved from one person to another, the appellant's complaint is baseless. As for the alleged contradictions in the evidence of PW2, PW3, PW4 and PW5, Mr. Makasi argued that there is no any contradiction as each witness testified on what he/she directly saw at different intervals of the commission of the offence. Starting with PW2 and PW3, the learned Senior State Attorney referred us to pages 52 and 55 of the record of appeal where each witness testified on how she saw the appellant attacking the deceased and ran away and how each one went to the scene of crime to rescue the deceased. On the issue of the time, Mr. Makasi insisted that there was no any contradiction, because PW4 started that the appellant entered his house at 07:00 hours while PW5, stated that, she heard the alarm around 07:30 hours, which was after the commission of the said offence. In the alternative, the learned Senior State Attorney argued that, if the Court will find that the said contradictions do exist, the same are minor defect which do not go to the root of the matter and do not contradict the fact that the deceased was killed by the appellant. He therefore emphasized that the case against the appellant was proved beyond reasonable doubt. In conclusion and on the strength of his submissions, Mr. Makasi urged us to find the appellant's appeal unmerited and dismiss it in its entirety, In a brief rejoinder, Mr. Ndomba reiterated his earlier position and insisted that the appeal to be allowed. Having considered the rival arguments by the learned counsel for the parties in the light of the record of appeal, we should now be in a position to consider the grounds of complaints raised by the appellant. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). Starting with the first ground on the non-compliance with the provisions of section 38 (3) of the CPA, we find it apposite, for the better understanding of the said legal requirement to reproduce the said section. It reads: ”38 (3) Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing, being the signature of the owner or occupier o f the premises or his near relative or other person for the time being in possession or control o f the premisesy and the signature o f witnesses to the search, if any." In terms of the above provision, it is clear that, an officer who seizes anything upon conducting search, is required to issue receipt to the owner acknowledging the seizure. The purpose of issuing a receipt is to ensure that the property or item seized Game from no place other than the one shown in the receipt. Upon reviewing the evidence on record, we were unable to see anyreceipt that was issued in terms of section 38 (3) of the CPA. On that basis, Mr. Ndomba sought to move the Court to expunge exhibit P8 on that omission. However, the learned Senior State Attorney zealously argued that, although the law provides for the issuance of a receipt, there is no prescribed format of that receipt and went further to argue and rightly so, in our view that, failure to issue receipt is inconsequential and did not affect the admissibility of exhibit P8. Luckily, this situation is not novel. In several occasions, this Court has pronounced itself on the applicability of the above provision. See for instance, the cases of Abdallah Said Mwingereza v. Republic, Criminal Appeal No. 258 of 2013 [2015] TZCA 333: [16 July 2015: TanzLII], Ramadhani Idd Mchafu v. Republic, Criminal Appeal No. 328 of 2019 [2022] TZCA 723: [11 November 2022: TanzLII] and Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 [2021] TZCA 13: [11 February 2021: TanzLII]. Specifically, in the latter case, the Court stated that: "We however, don't think that such an anomaly affects the substance o f the seizure certificate. The omission or contravention is minor and legally speaking, cannot invalidate the seizure certificate or its admissibility or even cause it to be expunged from the record. On that we are reinforced by our finding in the case of Nyerere Nyague v. Republic; Criminal Appeal No. 67 o f 2010 where we Stated that, it is not therefore correct to take that every apparent contravention o f the provisions of the CPA automatically leads to the exclusion o f the evidence in question" Being guided by the above position of the law, it is our settled view that the learned Senior State Attorney was correct that, the absence of the receipt was inconsequential and therefore, it did not 14 affect the substance of exhibit P8. We therefore find the first ground with no merit. The third ground need not detain us. It is clearly misconceived. It is on record that exhibit P9 complained of is a handing over form which sought to establish on how the seized exhibits moved from one person to another and or how the said exhibits were handled from the time when they were seized from the appellant until when they were tendered in court. Therefore, the argument by Mr. Ndomba that the chain of custody was not established is unfounded. We wish to note that, it is not in every case that the chain of custody is at issue. The same is riot relevant in cases involving items which cannot change hands easily and cannot be easily altered, swapped or tempered with. For emphasis, we find it instructive to recall what we stated in Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015 [2022] TZCA 723: [11 November 2022: TanzUI], that: "It is not every time Wat when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidenceregardless o f its nature. We are certain that this cannot be the case say where the potential evidence is not in the danger of being destroyed, polluted, and/or in any way tampered with. Where the circumstances may reasonably show the absence o f such dangers, the court can safeiy receive such evidence despite the fact that the chain o f custody may have been broken. Of course, this will depend on the prevailing circumstances in every particular case." [Emphasis added] See also Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] T7CA 361: [10 May 2018: TanzLII] and Kadiria Said Kimaro v. Republic, Criminal Appeal No. 301 of 2017 (unreported). Similarly, in the instant appeal, taking into account the nature of the items seized from the appellant by PW7 and later handed over to PW8, we find the third ground of appeal unfounded. Lastly, having considered the contradictions complained of, we do not, with respect, consider them to be material to the extent of affecting the credibility and reliability of the evidence of PW2, PW3, PW4 and PW5. By any means, we cannot expect the said witnesses to match in their testimonies in all aspects as each one of them testified on what she or he witnessed at a different interval of the commission of the offence. As such, we have no hesitation to agree with Mr. Makasi that the 16 appellant's complaint on that aspect is plainly baseless as the pointed- out contradictions do not go to the root of the matter. It is also on record that the evidence of PW2, PW3, PW4 and PW5 was corroborated by the appellant's cautioned statement (exhibit P10) in which, in his own words, he confessed to have committed the offence. For the sake of clarity, we found it apposite to reproduce the relevant part of the said statement herein below: "...Nakumbuka mnamo tarehe 26/08/2020 majira ya asubuhi kuelekea saa 1:30 asubuhi nffifika kijiwerri kwangu kwa aj/ii ya kuendelea na shughuli zangu, pia niiikuwa nimepanga kwenda kufua, hivyo nilitoka nyumbani nikiwa na begi langu ambaio ni aina ya sulfate ienye rang} nyekundu. Ndani ya begi langu kullkuwa na vitu ambavyo niiikuwa nimetoka navyo nyumbani. Kulikuwa na teso moja, kipande cha nondo pamoja na kanondo kadogo kenye muonekano wa nyundo...Baada ya kufua nguo moja nyepesf sabuni haikutosha, ndipo nilipotoka kwenda kutafuta sabuni na wakati natoka pale mlangoni aiipita mtu mmoja maarufu kwa jina la Msukuma, jina lake kamili siiifahamu na aiipita akiwa amebeba ndoo mbiii za maji akitokea bombani. Na mtu huyo hapo katika Kijiji cha Ligera anajihusisha na biashara kwani ana duka la nguo...Ghafla akili Hinituma kuwa mtu huyo ana pesa... Ndipo nilipookota kipande cha .mb' kama ubao, nilimfuata na kumpiga na kigongo hlcho maeneoya shingoni na nilimpiga mara moja tu na alianguka...Mara baada ya kuanguka cbini nlliingiza mkono upande wa kushoto katika mfuko wa suruali nilitoa pesa pamoja na simu ridogo aina ya Tecno rangi nyeusL.Nllichukua wallet rangi ya kahawia...Watu waliokuwa pale kislmanl waliniona na wallanza kupiga kelele. Na pale niUingia ndani na kunyakua begi langu na klsha nilikimbia..." In the circumstances and taking into account that the appellant did not challenge the admissibility of the said statement during the trial, we see no reason to differ with the finding of the trial court on this matter. In the case of Mohamed Haruna @ Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 141: [4 June 2010: TanzLII], the Court observed that: "The very best of the witnesses in m y criminal trial is an accused person who freely confesses his guilt" Likewise, in the instant appeal, it is our settled view that, what is contained in the appellant's statement is the best evidence, we can have on what happened on that fateful date. As such, we also find the second ground to have no merit. 18 In the light of the foregoing, and looking at the totality of the evidence, we entertain no doubt that with the available evidence, the trial court properly held that the case against the appellant was proved beyond reasonable doubt. Consequently, we find no merit in the appeal and we hereby dismiss it in its entirety. DATED at SONGEA this 9th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL O. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 9th day of August, 2024 in the presence of the appellant in person and Ms. Hellen Chuma, learned Senior State Attorney for the Respondent/Republic is hereby certified as