20140315 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA

AJARUSHA CORAM:BWANA.l.A,. MANDIA.l,A .. And ORIVO. l,A CRIMINAL APPEAL NO. 241 OF 2010 1. STEPHANO JOHN } 2. CHRISTPIN KALASINGA •••••.•••••••••.••.••••••••••••••••••••••••••••••• APPELLANTS

VERSUS THE REPUBLIC •••••••••••••••••••• ■ ••••••••• ■ ■ ••••••••••••••••••••••••••• RESPONDENT I •••••••• (Appeal from the judgment and Decree of the High Court of Tanzania At Moshi} (Mzuna. J,) dated the 11th day of May, 2012 in Criminal Appeal No 33 of 2010

JUDGMENT OF THE COURT 12th & 19th March, 2014 MANDIA. l. A.: The two appellants appeared in the District Court of Mwanga on a joint charge of Armed Robbery c/s 287A of the Penal Code. They were both found guilty, convicted and each sentenced to thirty (30) years imprisonment. They preferred a joint appeal to the High Court of Tanzania at Moshi, where their appeal was dismissed in its entirety. Aggrieved, they have filed this second appeal. In their joint memorandum of appeal they have raised a general complaint that the charges against them have not been proved to the required standard of criminal liability. They appeared in person, unrepresented, to argue their appeal, while the respondent Republic was represented by Ms Eliainenyi Njiro, learned State Attorney. I /_ The facts giving rise to this appeal show that on 12/6/2007 PW1 Wilson Rajabu, a taxi driver carrying on his trade in Same town, was hired byone person at Same Bus Stand on a trip to Mgagao to pick a sick relative. On the way to Mgagao the person who hired the taxicab ordered PW1 to pick another person near the Police Station, and PW1 complied. · He left Same town with the two passenger towards Mgagao village at an agreed fore of Shs 10,000/=. At Mgagao the second appellant allegedly ordered PW1 to drive on the Kigondi. He drove on to Kigondi village and was then ordered back to Mgagao village. Three Kilometres

before reaching Mgagaovillage the second appellant took a spring knife and pointed it at him (PW1). The second appellant took a cell phone from the dashboard. He stopped the vehicle which was in slow speed and ran off towards Mgagao village where he reported the robbery to the Police. Together with the police they went to the scene and found the vehicle still at the scene. Together with the Police they reached all passenger buses along the Dar es Salaam Arusha highway and managed to apprehend the appellants in Lushino bus. PW1 tendered a spring knife, cassette tape recorder and cell phone. These were received by the trial court and trial court as a collective Exhibit PEL The motor vehicle alleged to have been 2 I robbed from PWl belongs to PW3 Tunzo Musa Mbwambo whose evidence consisted of proving ownership of the Motor vehicle. Another witness, PW4 Abdul Hamisi, testified that he was a passenger inside the bus from where the appellants were arrested and he retrieved a cell phone which he handed over to the Police. The appellants were taken to Mwanga Police Station where PW2 E 26 Corporal Izihaka recorded cautioned statement of the first appellant. Another police officer PWS E 3104 Detective Corporal Joan recorded the cautioned statement of the second appellant. When the prosecution closed its case each one of the appellants elected to defend themselves on oath. They told the

trial court that on 12/6/2007 they were travelling together to Arusha from Mwembe area in Same where they had gone to look for gemstones to sell in Arusha. They were both arrested at a police check point at Mwanga and accused of being robbers. The trial court did not buy the appellants' defence and convicted them· on the basis that they were positively identified, also the basis that they were found in possession of recently stolen property. An appeal which the appellants preferred to the High Court of Tanzania was 3 'dismissed in its entirety for the same reason. Still aggrieved, the appellants preferred the present appeal. The appellant's had nothing to add to the memorandum of appeal they lodged. On her part, learned State Attorney Eliainenyi Njiro did not support the conviction and sentence on three grounds. She argued that the appellants are alleged to have stolen a motor vehicle but the evidence on record showed that the appellant's did not take and move away any motor vehicle anywhere so a charge of theft cannot he. Secondly, as argued by the learned State Attorney, both the cell phone and the cassette tape recorded were not described by the owner who tendered them in court so as to positively identify them and lay a foundation for the claim of ownership. The learned State Attorney also drew the attention of the Court to a serious procedural lapse evident in the conduct

of the trial. This is the fact that before the trial court took down the verbal testimony of the prosecution witnesses, the prosecutor moved the trial court to conduct what he called a "trial within a trial" to test the admissibility of the confessional statements of each one of the two appellants. The trial court obliged the prosecutor and a "trial within a trial" was held, at the end of which the statements were admitted in evidence. To put the matter in 4 proper perspective we quote the address of the prosecutor to the trial court when moving for the court to conduct a trial within a trial:- 11Pros. The matter is for hearing and there are four witness ready to testify. However before proceeding, we pray to have a trial within a trial for the repudiate confession statements of both the accused persons'. We are in agreement with the learned State Attorney that this approach was faulty. First, the trial had not started, so no trial within a trial could be conducted. Secondly, the prosecutor is inviting the trial court to consider repudiated statements which have not even been shown to the accused persons. How could they repudiate something they had not even seen? Thirdly, by admitting the statements before trial the trial court was closing the door to the accused person to objecting to the admission of the statements during the trial because they will be part of the record

already, thus prejudicing them. Luckily both the decisions of the trial court and that of the appellate High Court were decided on other points - identification and the doctrine of recent possession - so this faulty procedure did not prejudice the appellants. Nevertheless we feel obliged to point out to the trial court to observe the law, which is that when the admissibility of a confessional statement is in question in a subordinate court, the trial court 5 conducts an inquiry, not a trial within a trial, and that the inquiry is 'I conducted during the trial when an attempt is made to introduce the statement in evidence, and not before. We are also in agreement that in applying the doctrine of recent possession a claim of ownership showed be established with particular clarity so as to leave no doubt that the property described belongs to the claimant. The first appellate court properly cited the requirements of the doctrine of recent possession as laid down in Mkubwa& Samson Mwakagenda versus Republic, Criminal Appeal No. 94 of 2007 (unreported) but then failed to apply the law to the particular circumstances of the case before it. It failed to note that when PW1, Wilson Rajabu was testifying in the trial court he said:- ''/ am able to identify those things. This is the spring knife, tape, the accds clothes which were at the scene and the telephone I pray to tender them

as exh." No attempt was made to lay a claim through a description of the items so as to connect them with PW1, and PW1 alone. 6 We are in agreement with the learned State Attorney that the charge could not be supported by the evidence on record. Consequently we allow the appeal, quash the conviction entered and set aside the sentence imposed. The appellants should be released from custody unless they are held on some other lawful cause. DATED atARUSHA this 15thday of March, 2014. S. J. BWANA

JUSTICE OF APPEAL W.S. MANDIA

JUSTICE OF APPEAL K. K. ORIYO

JUSTICE OF APPEAL true copy of the original. M.A. MALEWO

DE UTY REGISTRA c6URT OF APPEAL 7