CRIMINAL APPEAL CASE NO 53 OF 2023 TAMBWE SHABANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB-REGISTRY AT SUMBAWANGA CRIMINAL APPEAL CASE NO.53 OF 2023 (Originating from the Decision of Hon. B.M Ahmed -SRM Miele District Court, in Criminal Case No. 13 of 2023) TAMBWE s/o SHABANI.................................. . Ist APPELLANT PAUL s/o KIZITO SIMON................................. 2nd APPELLANT VERSUS D THE REPUBLIC........................ RESPONDENT Last order: March 20, 2024 judgment: April 16, 2024 JUDGEMENT NANGELA, J:- This is an appeal from the District Court of Miele, at Miele, Katavi Region. I will briefly narrate the facts which landed the appellants before that court. It all happened, sometime between the months of December 2022 and January 2023, at Miele District, where a construction/rehabilitation project for Miele District Hospital was ongoing. That project was being supervised by Miele District Council. On such a project sitez several construction Page 1 of 20 materials had been procured and were being kept for use in a building operated as a storage facility. The 1st and 2nd appellants herein (who were charged as 1st and 2nd accused before the lower court), as well as a 3rd accused, were part of the work force at the respective construction site. Moreover, three individuals were hired as watchmen and entrusted with the duty of keeping watch of the respective site including the storage facility. These happened to be Daudi s/o Oscar, (who appeared as a 4th accused before the trial court), Hekima s/o Mapolu (the 5th accused before the trial court) and Jafari s/o Ramadhani (the 6th accused before the trial court). On the 06th of January 2023, however, some thugs broke into the storage facility through a window and several construction materials were stolen. These included 180 boxes of tiles (40 x 40cm), 33 boxes of tiles (30 x 30 cm), and 45 pieces of PVC ceiling panels. The incident was reported to the Inyonga Police Station and an investigation was carried out leading to the arrest of the 1st and 2nd appellants and seven others not part of this appeal. Page 2 of 20 Following their arrest, the two appellants and seven others not part of this appeal, were formerly indicted before the District Court of Miele at Miele, Katavi Region. Out of the nine persons arrested, three were facing separate charges of being in possession of properties suspected of having been stolen or unlawfully acquired contrary to section 312 (1) (b) of the Penal Code, Cap.16 R.E 2022. They pleaded guilty, were convicted, and sentenced at the earliest stage of the trial. On the other hand, the two appellants herein and four others not part of this appeal, were charged with two counts, namely: (1) breaking into a building and committing an offence therein contrary to section 296 (a) of the Penal Code, Cap.16 R.E 2022, and (2) stealing contrary to section 258 (1) and 265 of the Penal Code, Cap.16 R.E 2022. Whereas the rest of the accused were exonerated from the 1st and the 2nd counts, (but three out of the four accused were found guilty of other alternative charges and one accused was set free), the two appellants were found guilty of those two counts. They were subsequently convicted and, for each of the two offences (Le., the offence of "breaking into a building and committing an offence therein contrary to section Page 3 of 20 296 (a) of the Penal Code, Cap. 16 R..E .2022") and that of "stealing contrary to section 258(1) and 265 of the Penal Code, Cap.16 R.E. 2022"). At the end of the day, the appellants were sentenced to five years imprisonment for each of the offences and, their sentences were to run concurrently. The two appellants were aggrieved by their conviction and sentence, hence this appeal. In their appeal, the two appellants herein have raised five grounds in their memorandum of appeal, to wit, that: 1. The trial court erred both in law and fact when it convicted the appellants with the offence of breaking, entering into and stealing without any proof whatsoever. 2. That, the trial court misdirected itself when it convicted the appellants without summoning, as witness, the person whom it was claimed by the Prosecution that stolen goods were retrieved from him and that had bought the same from the accused persons. Page 4 of 20 3. That, the trial court misdirected itself to rely upon the evidence of Pw-2 and Dw-3 who were accomplice without any corroboration, 4. That, the trial court erred in law by not according to weight it deserved the plain and clear alibi raised by the 1st appellant person. 5. That, the trial court erred in law when it convicted the appellants by depending on the weakness of the defence instead of basing on the strength of the prosecution case. On March 20, 2024, when this appeal was called on for its hearing, the appellants appeared in. court unrepresented and told this court that they were ready to argue their appeal. On the other hand, the respondent enjoyed the services of Ms. Atupele Makoga, learned State Attorney. Submitting in supporting their grounds of appeal, both appellants requested this court to consider their grounds of appeal and set the appellants free. They submitted, as regards the first ground, that, the prosecution failed to prove that they Page 5 of 20 broke into the alleged store-building belonging to Miele District Council and stole therefrom, properties of Miele Hospital. Concerning the 2"° ground of appeal, they also urged this court to consider upholding it because, although the prosecution had said that there were people who bought the stolen properties, such people were not brought to the court to testify. As for the third ground the appellants considered it to be valid ground because the trial court relied on uncorroborated evidence. It was the appellants' submission that, although Pw-2 and Dw-3 had testified that the lsE accused (appellant) had made phone-calls, no evidence was brought to that effect. Further, concerning the fourth ground, the appellants urged this court to consider that ground as being valid because the trial court failed to consider various tickets tendered by the 1st appellant in court. It was the appellants' contention that, in general, the trial magistrate convicted them, based, not on the strength of the prosecutions' case but, on the weakness of the defence. For that matter, they urged this court to uphold their appeal, set aside their conviction and sentence and set them free. Page 6 of 20 In rebuttal to their submission, Ms. Makoga, learned State Attorney came out clear that the respondent was against the granting of the prayers sought by the appellants. In her submission she chose to respond, first and together, to the 1st, 3rd, and the 5th grounds. She submitted that; such grounds seem to be based on whether the prosecution side was able to prove the charges beyond reasonable doubts. According to Ms. Makoga, the prosecution called five witnesses and tendered in court seven exhibits. She submitted that in a whole, the evidence was largely circumstantial. However, it was her submission, notwithstanding such a fact, that, the witnesses who testified were all credible and the prosecution proved it case within the standards required by the law. According to Ms. Makoga, in his testimony Pw-2, one Abdallah, told the court how the Appellants sent him to distribute the consignment they had stolen. She submitted therefore, that, based on the testimony of Pw-2, it was clear that first, third and the fifth grounds of appeal are bereft of any relevance and should be dismissed. As regards the 2nd ground of appeal, it was Ms. Makoga's submission that, the Page 7 of 20 evidence relied on by the trial magistrate did show where the stolen goods were sent, and two seizure certificates were tendered in court and admitted as Exh.P-6 (collectively) to prove the allegations levelled against the appellants. She submitted that; such distribution of the stolen goods was made possible through PW-2 whom the Appellants had hired. In view of that, she contended that the second ground of appeal is also baseless as the goods stolen were ably followed up to where they had been sold. As for the 4th ground, Ms. Makoga submitted that the same has no merit in law because, looking at pages 13-14 of the Judgement of the trial court, it was clearly stated why the court did not accord weight to the Is- Appellants Alibi. For that! matter, she submitted that, the ground is also baseless because, had the appellant wanted to rely on alibi, as his defence, he ought to have raised it in line with the law. To support her version of argument, reliance was placed of Section 194 (6) of CPA as She argued that, that provision does allow the court not to accord weight to such a defence unless a prior notice was given regarding reliance on Page 8 of 20 such a defence. She finally urged this court to dismiss the entire appeal as lacking merit. In a brief rejoinder, the appellants urged this court to consider their grounds of appeal as they did not commit the offences for which they had been found guilty and convicted. So far that was the parties' submission in support of the rival positions which I have carefully considered. The key issue here is whether this appeal has any merit to warrant that I grant it as prayed by the appellants. This ais a first appeal. This court being the first appellate court, it is entitled to this court is at liberty to scrutinize and reassess the whole record and re-evalute the evidence and arrive at its own conclusion. See the case of Leopold Mutembei vs. Principle Assistant Registrar of Titles, Ministry of Lands Housing and Urban Development & Another (Civil Appeal 57 of 2017) [2018] TZCA 213 (11 October 2018). The only limitation may be on the aspect of demeanour evidence as it is only the trial court that has the advantage of having a first-hand encounter with the witnesses. See the cases of D. R. Pandya vs. R. [1957] EA 336; and Jamal A. Tamim vs. Felix Francis Mkosamali & The Attorney Page 9 of 20 General, Civil Appeal No. 110 of 2012 (unreported) or any other finding is a finding of fact. In the case of Materu Leison& J Foya vs R. Sospeter [1988] TLR 102, this court was also of the view that: "it is only in rare circumstances that ah appellate court would interfere with the trial court's findings of fact, and it would interfere, for instance, where the trial court had omitted to consider or had misconstrued some material evidence, or had acted on a wrong principle, or had erred in its approach in evaluation of the evidence." Having established that, let me now turn to the merits of this appeal. Although Ms. Makoga, argued the 1st, 3rd, and 5th grounds of appeal jointly, I do not think I will adopt such an approach. I will, instead, consider the 1st 3rd and 4th gounds together to see if the prosecution case was fully established beyond reasonable doubt or not. In addressing the 1st, 3rd and 4th grounds, the appellants have argued that the prosecution failed to prove that they broke into the alleged store-building belonging to Page 10 of 20 Miele District Council and stole therefrom, properties of Miele Hospital. Ms. Makoga has argued on the contrary to such appellant's submission. The question to ask, thus, is whether the court convicted the appellants without there being proof as required by the law. In establishing its case the prosecution called five witnesses (Pw-1 to Pw-5) and tendered several exhibits. The testimony that was relied on much is that of Pw-2, Abdallah who is a motorist (Bodaboda). In his testimony, he told the trial court that he had prior knowledge of the appellants and ably pointed the out while in court. In fact, his knowledge of the 1st appellant came from the fact that the appellant, being a mason, had once been involved in the construction of Pw-2's house. In his testimony Pw-2 narrated to the court how the 1st appellant 'phone-called' him on the 28th of December 2022 around 21:00hrs directing him to go to the Miele District Hospital area as there was a consignment to pick. He also told the court that and did find the appellants around the area, hiding in a bush, about 300 meters from the Hospital and had 26boxes of tiles (40 x 40cm), Page 11 of 20 Pw-2's testimony was also to the effect that he was instructed by the appellants to carry such a cargo to Mzee Juakali (a 3rd accused) and to Juma Makolokolo. Pw-2 did tell the court that he was paid 40,000 TZS. Furthermore, on 01/01.2023, Pw-2 was also ’phone-called' by the 1st appellant and did find the two appellants at the same point (hiding in a bush) and had with them 36 boxes of tiles (40x40cm) and he took them to the same persons and was paid TZS 200,000/ which he was instructed to distribute to some other persons, namely Paulo,(TZS 100,000) and Mrisho (TZS 30,000/). In part, that was the testimony of Pw-2. Another witness whose testimony touched on the appellants was Pw-3 (Tovatus Biseko), a storekeeper at Miele District Hospital. His version was that he knew the appellants as amore those who were hired to be part of the construction project and the 1st appellant's skill was in fitting floor-tiles in buildings. For his part, Pw-5, a Police Officer, told the trial court how he followed up the theft incident and was able to know, through intelligence tracking, that it was Pw-2 who was hired Page 12 of 20 to carry the stolen materials. He told the trial court, therefore, that, he had to apprehend Pw-2. Pw-5 told the trial court that upon interrogation/ Pw-2 immediately mentioned the Appellants and that they are the ones who had 'phone-called' him on the 28th of December 2022 and on the 1st of January 2023: to go to an area closer to the Miele District Hospital and, at a nearby bush, carried away several boxes of tiles. Pw-5 told the trial court that upon interrogation the 2nd appellant did confess to him that he had taken some tile boxes to on Vitalis and upon follow-up the said Vitalis confessed to have bought such from the 2nd appellant, and 25 boxes were retrieved from him. In his testimony, the 1st appellant (testifying as Dw-1) told the trial court that on the 28th day of December 2022 he had had travelled to Ta bora from Inyonga. He told the court further that, afterwards he went to Dar-es-Salaam on the 03rd of January 2023 and back to Tabora on 06 th of January 2023 where he spent a night and on the 07th of January 2023 he returned to Inyonga only to be arrested and put in remand prison until 11th of January 2023 when he was arraigned in court. Page 13 of 20 Although he produced tickets only one dated 28 th of December 2023 was admitted as Exh.D-1. The 1st appellants argument, therefore, is that the trial court erred for not taking onto account his defence of alibi. However, Dw-3 who was also an accused did testify that on 27th of December 2022, the 1st appellant had phone-called him asking him to find a buyer for tiles. Dw-3: the trial court further that, on the evening of 28th of December 2022, one Dulla (a motorist) Informed him that he had been given boxes of tiles by the 1st appellant to bring home. A further consignment of ten boxes were also brought on the 31st of December 2022.. He told the court that on the 01st of January 2023, the 1st appellant approached him also asking that he find for him a buyer of tiles. Even so, as I stated hereabove, the 1st appellant has been relying on the defence of alibi. The question to follows, therefore, is whether it was proper for the trial court to discard the 1st appellant's evidence of alibi In law, alibi is a kind of special defence whereby the accused implies to the court that he/she was not at the scene of crime at the material time of committing the alleged Page 14 of 20 crime(s) in question. However, before I tackle such a question, let me state, as the trial court did, that, the entire case against the appellants was premised on circumstantial evidence. Is it a reliable type of evidence? Concerning whether such type of evidence is reliable or not what the Court of Appeal of Tanzania stated in the case of Julius Justine and 4 others v. Republic, Criminal Appeal No. 155 of 2005 (unreported) is quite instructive. In that case, the Court held a view that: circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics". In the case at hand, therefore, much as no eyewitness saw the criminal incidents which led to the arrest and prosecution of the appellants, the testimony of Pw-2 and Dw-3 can be counted as credible and sufficient to be relied on. In his testimony Pw-2, testified to be hired by the two appellants Page15 of 20 to ferry some of the stolen goods from an area closer to the scene ofcrime during night hours. Furthermore, the fact that Pw-2 told the court that he was very familiar to the accused persons who were also part of the workforce hired at the project site where the incident took place, and the fact that such testimony of Pw-2 does find support from that of Dw-3, it is clear that the evidence before the court, even if circumstantial in nature, was quite sufficient evidence to: pin down the appellants. According to the existing legal principles regarding circumstantial evidence, where the prosecution is to rely on circumstantial evidence to secure conviction^ such evidence, as it was stated by this court in the case of Republic vs. Elias Shida and Others (Criminal Session Case 9 of 2019) [2022] TZHC 11050 (5 July 2022), must be watertight leaving no other interpretation apart from the guilty of the accused. See also the case of Republic vs. Kerstin Cameron [2003] TLR 84 and Hassan Fadhili vs. Republic [1994] TLR 89. In my view, when such principle is to be applied to the current appeal, the evidence of Pw-2 and Dw-3 pointed to no other hypothesis other than that of guilty of the appellants. Page 16 of 20 Having so said, what about the issue of alibi raised by the 1st appellant? As I said, this was a question I was to revert to. In essence, alibi can be a defence because, if well presented it offers contradictory evidence since no person can be at the different places at the same time. However, for the defence of alibi to be relied on, the person seeking to rely on it must give a notice to the court and- the prosecution prior to the commencement of the hearing, that being a requirement of the law. However, if he/she fails to do so, he/she is. bound to furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is dosed. That is in accordance with sections 194 (4) and (5) of the CPA, Cap.20 R.E 2022. In this case, the trial court was very correct not to rely on it since there was a non-compliance with section 194 (4) of the Criminal Procedure Act, Cap.20 R.E 2022. That being said, it follows that, the appellants' defence did not raise reasonable doubts amid the available and strong circumstantial evidence which the prosecution was able to present before the trial court. Page 17 of 20 It follows that, the appellants argument that the evidence of Pw-2 and Dw-3 were unreliable because they needed to be corroborated because np evidence of there being phone-calls, does not hold. Pw-2 was a reliable witness who ferried the stolen goods under the instruction of the appellants. Dw-3's testimony further led support to that testimony. As regards the 2nd and the 5th grounds of appeal, I also do not find them to have any merit. I hold that view because, in their 2nd ground of appeal, the appellants argue that the trial court misdirected itself when it convicted them without summoning, as witness, the person whom it was claimed by the Prosecution that stolen goods were retrieved from him and that had bought the same from the accused persons. In my view, I do not think it was necessary. A court can even convict based on a single witness if the prosecution has managed to prove the offence which the accused person is charged beyond reasonable doubts, that being the requisite standard. In the case of Hemedi Saidi vs. Mohamedi Mbilu [1984] TLR 113 (HC) (Tanga) this court made is clear that, in Page 18 of 20 measuring the weight of evidence it is not the number of witnesses that counts most but the quality of the evidence. As such, the prosecution's case was not to be determined based on how many witnesses were brought before the court but whether the prosecution case was established within the required standards. I thus reject the 2nd ground as well. The final one was the 5th ground of appeal. While it is true that the court should convict based not on the weaknesses of the defence but the strength of the prosecution case, in the current appeal case before the me nothing of that sort happened. The trial court correctly convicted the appellants having evaluated the evidence adduced before it and made a finding that the prosecution case was established beyond reasonable doubt. In view of what I have discussed hereabove, I find that the five grounds of appeal lack merit and, for that reason, should be dismissed in their entirety. In the upshot of the above, this court settles on the following orders: ,1. That, the entire grounds of appeal lack merit and are hereby dismissed. Page 19 of 20 2. That the prosecution case was fully proved within the required standards of beyond reasonable doubts, and, for that matter, the two appellants were rightly convicted and sentenced in accordance with the law. 3. This appeal is hereby disallowed, It is so ordered DATED AT SUMBAWANGA ON THIS 16th DAY OF APRIL 2024 DEO JOHN NANGELA JUDGE Right of Appealing to the Court of Appeal is fully explained and guaranteed. DEO JOHN NANGELA JUDGE 16 th OF APRIL 2024 Page 20 of 20