CRIMINAL APPEAL NO 37572 OF 2023

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 37572 OF 2023 (Originating from District Court of Mtwara at Mtwara in Criminal Case No. 70 of 2022J SULEJI HASSANI MWANYA ——.........- -—————— APPELLANT VERSUS THE REPUBLIC - —— —............ —............................................ RESPONDENT JUDGEMENT Date of last order, 19.02.2024 Date of Judgemerit: 22.03.2024 EBRAHIM, J.: The appellant herein was charged and convicted of two counts namely breaking into a building and committing an offence contrary to Section 296 (a) and (b) of the Penal Code, [Cap 16 R.E 2022]; and stealing contrary to Section 258 and 265 of the same law. He was convicted and sentenced for the 1st count to serve seven (7) years Page 1 of 13 imprisonment and for the 2nd count to serve five (5) years imprisonment. The sentences were ordered to run concurrently. The brief facts of the case could be gathered from the testimony of PW1 who toid the court that he is a prisoner officer at Magereza Kiwanda Chumvi, Mtawanya. On 06.08.2022 at around 0845hrs, he was called by the officer on duty to go to the State prison. On going there, he met with the guards on duty who told him that they found the office door was open and the computer desktop and printer make HP, cable Wires of the printer, 1 USB cable, two fans (black) with a total value of TZS. 1,897,000/= stolen. They informed the officer in charge of the prison. On 07.08.2022, he reported the theft to the police station of Mtwara. On 15.08.2022 he was called by police to go to the police station to identify the properties which were suspected to have been stolen from their office. PW1 said he identified the stolen items due to the code numbers written on them which are PCS/MTW/KCH/02 and PCS/MTW/KCH/Dl. On the other hand, the appellant testified that in August 2022 he was called by one prison offer to go to the State prison at Chumvini. On reaching there, he found other prison officers who asked him as to Page 2 of 13 when he was discharged from Chumvini State Prison. He told them it was on 26.07.2022. Thereafter they told him that on 05.08.2022 their office equipments were stolen and he was a suspect. The appellant denied to have stolen the said equipments. He was further asked to mention other people whom he was discharged with; and he mentioned Ismail Hassani and Ha modi Mayanga. The police officers went to those people’s homes and to his home for a search but they could not find anything. However, the appellant directed the prison officers to a place where they sell stolen properties. They went to Christopher’s shop where usually stolen properties are sold. When Christopher was asked, he told the prison officers that Ismail and Hqmadi sold him a computer and its accessories; and he has them at his home. Prison officers went to collect those item and them to the police station. They also went to Shefa’s home where they found two fans. After hearing the evidence of all witnesses, the trial magistrate was convinced that the prosecution side managed to establish their case at the required standard and accordingly convicted and sentenced the appellant. Page 3 of13 Aggrieved, the appellant lodged an appeal in this court raising five grounds of appeal mainly main complaining that the trial Magistrate erred to convict and sentence the appellant based on the illegal search; that the independent witness who witnessed the search was not called to testify; that prosecution side failed to prove the ownership of the stolen properties; that the appellant’s defence evidence was not considered; and that the prosecution side failed to prove their case beyond reasonable doubts. When this appeal was called for hearing, the appellant appeared in person, unrepresented. The respondent was represented by Mr. Kase la, learned State Attorney. Submitting for the appeal, the appellant prayed to this court to adopt his grounds of appeal and the same to form a part of his submission. In reply, Mr. Kasel a, the learned State Attorney argued the appeal in seriatim. Starting with the 1st ground of appeal he submitted that according to the testimony of PW2 it was the appellant who took the police fo the person to whom he sold the stolen properties. Therefore, the search was not conducted at the appellant’s house. He added Page 4 of 13 also that if was PW4 who purchased the stolen properties. He thus discredited the ground of appeal for being irrelevant. Submitting bn the 2nd ground of appeal, Mr. Kasela referred to Section 143 of the Evidence Act that there is no required number of witnesses to prove a case. Arguing on the 3rd ground of appeal, Mr. Kasela contended that PW1, the prison officer at Chumvini identified the stolen properties and he managed to state its serial numbers. Therefore, he managed to prove ownership of the stolen properties. On the 4th ground of appeal, on the consideration of the appellant's evidence; he said the same was at pages considered and at 28-29 of the typed proceedings the appellant testified that he was the one who sent the police to the place he sold the stolen properties. On the 5th ground of appeal, he submitted that the prosecution managed to prove the case through its witnesses. He PW3 who referred to the testimony of recorded the cautioned statement of the appellant and the fact that the appellant did not cross-examine him. He also referred to the evidence of fact that the PW4 who purchased Page 5 of 13 the stolen properties from the appellant. To bolster his argument, he referred to the case of Paschal Kitingwa vs. R, Criminal Appeal No. 161/1991 CAT - Mwanza on the principle that the accused’s words, conduct and character could corroborate the prosecution’s case. He concluded therefore that the case against the appellant was proved beyond reasonable doubt. The learned State Attorney thus, prayed for this court to dismiss the appeal. I have considered the submission as well as the trial court’s proceedings; The core issue for determination is whether the case against the appellant was proved at the required standard i.e., beyond reasonable doubt. Before determining the grounds of appeal at hand, it is worthwhile noting here that, in criminal matters and in terms of Section 3 (2) (a) of the Evidence Act fCap. 6 R.E. 20191, the guilt of the accused person must be established beyond reasonable doubt. Generally, and always, such duty lies with the prosecution except the statute or any other respective law provides otherwise. Page 6 of 13 Starting with the 1s1 ground of appeal which is in respect of complying with Section 38 (1) of the Criminal Procedure Act [Cap. 20 R.E 20221 during the search and seizure. A police officer is authorised by law to enter and search any premise, vessel, vehicle, or land and seize anything which is connected with an offence. It is trite law that the exercise of this function should only proceed upon obtaining a warrant of search save on emergencies in which case the search may proceed without a warrant as per Section 42 of the Criminal Procedure Act fCap.20 R.E 20221. The rationale behind this requirement is Well stated by the Court of Appeal in the case of Director of Public Prosecutions vs Doreen John Mlemba (Criminal Appeal 359 of 2019) [2021] TZCA 482 (14 September 2021) thus; “In our view, the meticulous controls provided for under the CPA and a clear prohibition of search without warrant in the PGO is to provide safeguards against unchecked abuse by investigatory agencies, seeking to protect individual citizens' fights to privacy and dignity enshrined in Article 16 of the Constitution of the United Republic of Tanzania. If is also an attempt to ensure that unscrupulous officers charged with Page 7 of 13 the mandate to investigate crimes do not plant items relating to criminal acts in people's private premises in fulfilling their undisclosed ill motives" [emphasis added] In the present case, the search leading to the impounding of stolen properties (exhibit P3 and R4) was conducted without a search warrant. The question Io be answered, therefore, is whether there was an emergency justifying the conduct of the search without a warrant. The learned State Attorney has argued that the search was not conducted at the appellant’s house. From the trial court records PW2 testified that after the appellant had admitted haying stolen the properties, the appellant took them to PW4 who was selling the stolen properties. PW4 admitted to have the stolen properties and they made arrangements to get an independent witness and went to the house of the appellant. They conducted the search and arrested the appellant. However, the record is silent on why the warrant was not sought/obtained. I find therefore that the search of the house in question was conducted with no lawful mandate or authority and I have no doubt in holding that the search of the houses from which exhibits Pl and P2 was recovered was an illegal search. Page 8 of 13 Further, in Badiru Mussa Hanogi vs Republic (Criminal Appeal 118 of 2020) [2021] TZCA 237 (9 June 2021), a search was mounted without a search warrant and the stolen properties were recovered in the process of the illegal search. The trial court admitted the said properties on appeal, the Court of Appeal observed that: “Unfortunately, the trial court did not realise that the motorcycle was illegally seized hence it could have not taken that course. Conversely, it went ahead to receive, admit it as exhibit and acted an it to ground the appellant’s conviction." In the case of Shabani Said Kindamba vs Republic (Criminal Appeal 390 of 2019) [2021] TZCA 221 (2 June 2021) the Court of Appeal had this to say:: “Since the general rule under the CPA is that search of a suspect shall be authorized by a search warrant unless it falls under the exceptions provided for under section 42 of the CPA, and since the instant case does not fall under any of the exceptions, the search was illegally conducted." From the explained rationale above and the fact that search without warrant is permissible in exceptional circumstances; it was incumbent for the prosecution to disclose the reasons why the warrant was Page 9 of 13 dispensed with. From the record, it is clear that PW2 received information on the alleged stolen properties from the appellant. The question is why didn’t they obtain a search warrant? In the absence of such clarity and full disclosure, I find it unsafe to assume as proposed by the learned State Attorney the exception in searching without a warrant. Having concluded that the search was illegal, it follows that exhibits P3 and P4 (stolen items) were illegally obtained warranting this court to expunge exhibits Pl and P2 (seizure certificates and receipts) from the court records, as I hereby do. Another issue that needs determination is whether the prosecution case can stand without exhibit Pl, P2, P3 and P4. The answer is definitely in the affirmative. The prosecution case can stand due to the presence of exhibit P5 (accused’s cautioned statement) which the trial court Magistrate labeled it as exhibit P3. The 2nc grounds of appeal are on the prosecution failure to call the independent witness. Having expunged exhibits Pl and P2 from the records, this ground of appeal should not detain me much. Page 10 of 13 I shah therefore address the 3rd, 4:r'. and 5‘h grounds of appeal. The issue is whether the prosecution side managed to prove its case beyond reasonable doubt. In proving the charge, the prosecution called four witnesses. All four witnesses consistently testified not witnessing the appellant breaking info the building. PW2 told the trial court that the appellant admitted to having stolen the said properties and he even took them to PW4 the one who purchased the stolen properties. The appellant did not cross-examine PW2. PW3, G7290 interrogated the appellant and recorded his cautioned statement testifying that the appellant admitted to have committed the charged offences. PW3 tendered exhibit P5 which the trial court Magistrate labeled as exhibit P3. The appellant neither objected nor cross-examined PW3. In the cautioned statement: the appellant confessed to have committed the offences with one Ismail who was not arrested. Also, the appellant confessed to have taken the stolen properties to PW4, and PW4 testified before the trial court to have purchased the stolen properties from the appellant, the appellant neither objected nor cross-examined PW4. Page 11 of 13 The appellant in his defence explained that when he was asked by the prison officers if he knew where they could find the stolen properties, the appellant told them he didn’t know where they were, but he knew the place where thieves sell stolen properties. Then they went to Christopher’s shop (PW4 shop) the place where normally stolen properties are sold. Further to that the appellant conceded that it is true that Ismail and Hamadi sold to PW4 the stolen properties. The appellant also testified that they went to PW4's home place to take the stolen properties to the police station and at Sheta's place, they found two fans [stolen properties). Now the question is how did the appellant know that there were stolen properties such as computer which were sold to PW4 by one Ismail and Hamadi if at all he was not involved in the crime. It is inferred here that the appellant broke into the building. Thus, the first element of the offence was proved beyond a reasonable doubt by an ora! account of events. The accused who breaks into a building must commit an offence inside the building. Considering the available evidence as summarized above. I find no doubt that was left by the prosecution witnesses. I also find no shadow Page 12 of 13 of doubt raised by the appellant to damage the prosecution evidence. Nonetheless, the appellant's testimony corroborated the evidence of PW4 to the effect that he knew where the stolen properties could be found thus why he took the prison officers to PW4. Having found as above, I find the entire appeal to be un-meritorious and I dismiss it in its entirety. R.A Ebrahim Judge. 22.03.2024 Mtwara. 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