CRIMINAL APPEAL TODDY

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA CRIMINAL APPEAL NO. 000029397 OF 2024 REFERENCE NO. 202410152000029397 (Arising from the Criminal Case No. 10 of2023 of the District Court of Bunda at Bunda) TODDY S/O NYUMBA @ MGENDI............................................... APPELLANT

VERSUS THE REPUBLIC............................................................................ RESPONDENT

JUDGEMENT 10th & 23rd December, 2024 M.L. KO MBA, J.: In this appeal the appellant had nine grounds which can be summarized into four as follows; 1. That the prosecution failed to prove their case beyond reasonable doubt.

2. That the trial court admitted exhibits which were unprocedural tendered by prosecution.

3. That the trial court's judgment didn't contain an objective evaluation of an entire evidence.

4. That the trial court didn't to consider the appellant's defense. Page 1 of 17 PW1 is a motorcycle driver who do it as a business (bodaboda) and one of the passengers is appellant. It was alleged that one day 27/2/2020 appellant faced PW1 and hired a motorcycle for private use for the whole day. He failed to return it and promised to return in the following day but he did not. After a while on 07/3/2020 PW1, a driver reported the matter to police that his motorcycle went missing. Appellant and another person were arrested on allegation of stealing by agent. Prosecution maintained that it was appellant who sold the said motorcycle to DW2 by using different names and DW2 was found with motorcycle. When the charge was read over to two accused both denied the charge hence full trial. Following the denial, prosecution had 4 witnesses and six (6) exhibits to prove their case. As hinted earlier, the Trial Magistrate convicted the appellant hence this appeal. When the matter was scheduled for hearing, Republic was represented by Ms. Joyce Matimbwi, State Attorney while the appellant fended for himself. Appellant was the first to defend his appeal and submitted that the offence was not proved beyond reasonable doubt as it is in 1st, 3rd 8th and 9th ground. He pointed gaps on date of committing the offence from charge sheet and the prosecution testimony, difference in registration,

engine and chases Page 2 of 17 number of the said stolen motorcycle and the testimony adduced. And the third gap was in ownership as during testimony it was said motorcycle is owned by Esther Masamanga but during Preliminary Hearing it was read to accused that motorcycle belongs to Erick Masizi. He went on submitting that PW1 testified that he lost motorcycle on 27/2/2020 but he reported to police 07/2/2020 that is twenty days before incident. He believed the doubts created were supposed to benefit him. On the second ground he complained that case was staged against him as prosecution witnesses PW1, PW2 and PW4 differ on the date when the crime was committed or when the motorcycle stolen. He clarified that when PW1 said the crime occurred 27/2/2020 when the said motorcycle with registration AYR was stolen, on the other hand, PW2 said he handled motorcycle to PW1 on 01/11/2020 that means, he lamented that PW1 lost motorcycle before he received it. He then complained on exhibits in 4th ground that Exhibit P3, P4, P5 and P6 were admitted without proof as authors were not called in court contrary to section 34 of Cap 6 and section 45 (2) of the Criminal Procedure Code, (the CPA) and prayed this court to read Desouza vs Tanga Town Council Page 3 of 17 1961 EA 377. Further he submitted that the same exhibits were illegally tendered as there were no formal procedures adhered during

hearing. On the 5th and 6th grounds appellant complained of the analysis of the evidence that was not done specifically on defence of the appellant that he has exhibits which prove his name contrary to testimony of DW2 and refer this court to Mbagala vs Republic, Criminal Appeal No. 267 of 2006. He went on complaining that he was not the one who sold motorcycle to DW2 on the 7th ground while insisting that DW2 was arrested in the year 2022 driving a motorcycle with registration number MC 473 AVP make GSM and on the other hand complainant lost motorcycle with registration number 475 AYR Make GSM. He prayed this court to find his appeal has merit. Ms. Matimbwi started by registering their position that Republic resist the appeal. She combined the 1st, 2nd and 3rd grounds about proving the offence beyond reasonable doubt. She submitted that the appellant was charged of stealing and to be found with property which suspected to be stolen. It was her submission that appellant and PW1 knows each other and that PW1 explain that appellant hired motorcycle for the whole day and the conversation was witnessed by PW3. However, the appellant did not return Page 4 of 17 that motorcycle on days he promised. They communicated but then PW1 noted something was wrong and on 07/3/2020 he decided to report the matter to police and the case was lately filed on the ground that Appellant had another

criminal case so was not known his whereabout. She went on submitting that PW1 was given the motorcycle by PW2 whom they had contract, however, the registration card shows the owner of motorcycle is Daniel Mathew and the stolen motor cycle was registered as MC 475 AYR make GSM. It was PW4, the investigator arrested second accused with motorcycle No. MC 473 AVP and seizure certificate was prepared. Then PW4 write a letter to TRA requesting motorcycle information and TRA notify that the correct registration number of the motorcycle was MC 475 AYR. About increased number of exhibits which were not listed and read during Preliminary Hearing she submitted that appellant had time to object when tendered although Exhibit P6 was admitted despite of it being objected. It was her position that appellant had time to understand the contents when exhibits were supplied to him before admission. State Attorney insisted that the offence was not staged as it was the appellant who sold and DW2 bought Page 5 of 17 motorcycle from appellant after he changed his name. She prayed me to find the offence was prove beyond reasonable doubt. On the 4th ground about exhibits P3, P4 , P5 and P6 (motorcycle, seizure, letter to TRA and Report from TRA) it was submission by State Attorney that PW4 was the arresting officer, he seized and keep the motorcycle, he prepared seizure certificate, he signed the

letter to TRA and was the one who received reply from TRA, she said there was no need to call officers from TRA as the person who tender exhibit was permitted by Law. However, she said appellant had time to cross examine the witness. She prayed this court to find the ground to be of less merit. About the contents of judgment as it appears in ground number 5, Ms. Matimbwi told this court that the judgment had qualities as per law although she admitted that the trial Magistrate did not make extensive analysis of evidence and she prayed this court to enter into shoes of the trial court and analyse well evidence as was in Muksin Komba vs Republic, Criminal Appeal No. 84 of 2016. On the 6th ground about defence by the appellant and his names she was of the submission that evidence was not heavier, the issue that the appellant was not at the scene that he was undertaking studying is defence of alibi which, under the law he was supposed to give Page 6 of 17 notice to allow prosecution to make further investigation. So far as the appellant introduced himself as Stephano and was believed by DW2 she finds the ground has no merit. While arguing ground number 7 State Attorney make a reminder that appellant was charged with stealing by agent and there was a witness when the appellant borrows the motorcycle and DW2 bought the same motorcycle. She insisted that prosecution only prove that the

appellant borrowed the motorcycle and he did not return. Arguing for the 8th ground she submitted that, PW1 was the possessor and he was involved in borrowing, PW3 witnessed when PW1 and appellant conclude deal of borrowing motorcycle while PW2 was the owner of the motorcycle who testified that he bought the stolen motorcycle from another person although the card had different names. PW4 was investigator. She insisted that all prosecution witness were credible. As to why the case was late filed, she said it was testified by PW1 that appellant had another criminal case and was in custody hence the case was lately reported. However, she insisted it was the trial court which has power to assess demeanor of witnesses while in court as decided in Goodluck Kyando vs Republic TLR 363. Page 7 of 17 On the 9th ground about contradictions, State Attorney admitted that there was difference in chasses and engine number in prosecution testimony and prayed this court to note that was human error, however, she submitted that the found contradiction on chasses and engine number cannot disapprove that the motorcycle was the same. She prayed this court to consider the registration card of the motorcycle and exhibit 6 which has proper information. Finally State Attorney insisted that pointed contradictions does not go to the root of the case and prayed this court to dismiss the appeal and uphold

conviction. When given time for rejoinder, appellant clarified that PW1 said he know him and he know his working place and that the two used to chart through sms, if that was true, he wonders why PW1 did not went to arrest him on his office which he said he used to drop him. He went on clarifying that the second accused (DW2) was arrested in the year 2022 for the offence of 2020 while the matter was reported to police on 07/3/2020. He was wondering why such delay. He further submitted that; the other criminal case was filed in the year 2022 that means police had report about missing motorcycle before another criminal case was filed. He prayed to benefit on doubts. Page 8 of 17 Upon carefully considered the trial court record, the petition of appeal and parties' submissions, I find the crucial issue which I am called upon to decide basing on the grounds as submitted, is whether the prosecution case was proved beyond reasonable doubt. In determining this appeal, I will observe the duty of this court being the first appellate court as well established that, the duty of the first court is to re-evaluate the entire evidence in an objective manner and arrive at its own findings of facts, if necessary. See the case of Siza Patrice vs. The Republic, Criminal Appeal No. 19 of 2010 (unreported). In this appeal, I shall combine all grounds of appeal and dealt in a single ground, that is

number one on whether prosecution managed to prove the offence beyond reasonable doubts. First, I shall analyse the issue of arrest and when the crime was reported to police. It was prosecution assertion (PW1) that appellant hired motorcycle on 27/2/2020 and the process was witnessed by PW3 who is a motorcycle driver (bodaboda). Appellant did not honour his promise and on 07/3/2020 PW1 reported the matter to police and investigation started. That was 8 days after the appellant disappeared with the so-called motorcycle. Then PW1 Page 9 of 17 testified in the year 2022 he heard his motorcycle is at Bulamba with DW2 and he made his effort and DW2 was arrested by PW4. On the other side appellant tendered exhibit DI which is statement of PW1 recorded by police that on 07/2/2020 when he reported the matter to police. Trial Magistrate was convinced that PW1 meant 27/2/2020 as the same Exhibit DI has two dates and he opted for 27/2/2020. I had time to read the whole testimony and find in oral testimony PW1 tried to correct that he reported to police on 07/3/2020 but the record in police file as it appears in Exhibit DI show DW1 reported to police on 07/2/2020. That means he reported the offence before its occurrence. Appellant complained of the four exhibits which were tendered during trial but was not listed during Preliminary Hearing (PH) and no formal procedures were invoked by

prosecution to justify their action. It was Exhibit P3, P4, P5 and P6 which are (a motorcycle, Certificate of seizure, letter from police and letter from TRA respectively). Ms. Matimbwi submitted that so far as appellant was supplied with those documents before its admission then he had knowledge of it and the witness who tendered it was a custodian. With due respect. If the argument is the position of the law and procedure then there could be no need of listing exhibits during trial. That is, in a simple Page 10 of 17 language was to take appellant in surprise that why he (the appellant) makes it a ground in his appeal. While reading precedents of the Court in this area I meet this; 'This Rule, like section 246(2) of the CPA imposes an obligation on the court holding the preliminary inquiry to make sure that it reads the information and the contents of the statements of potential prosecution witnesses or the documents containing the substance of their evidence. The exercise therefore involves listing of intended prosecution witnesses whose statements have been read out and those of the defence (ifany). It is thus plain that Rule 8(2) of the CECD Rules is almost a replica of section 246 (2) of the CPA. It is self- sufficient hence no need to resort to the CPA in conducting committal proceedings. However, the two provisions being identical, there can be no doubt that they serve

the same purpose of ensuring that the accused is made aware of the case he is going to face in court during trial hence prepare his defence..... We fully subscribe to the pronouncement. Since the Rule is a replica of section 246 of the CPA, we have no doubt that the principles propounded by the Court when interpreting section 246 of the CPA to ensure that the above stated purpose is achieved squarely apply in committal proceedings conducted under Rule 8 of the Rules. One such principle is that no witness whose statement or a document the contents of which is not made known to the accused during committal will be allowed to testify or be received in evidence during trial. The Page 11 of 17 principle accords well with the rule against surprise. See Republic v Raymond Adolf Louis & 6 Others, Economic Case No. 1 of 2017 d/n/Remina Omary Abdul vs Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 / I fully subscribe to the pronouncement. Since the Rule is a replica of section 246 of the CPA, I have no doubt that the principles propounded by the Court when interpreting section 246 of the CPA to ensure that the above stated purpose is achieved squarely apply in Preliminary Hearing (PH). One of the positions set by the Court is that no witness whose statement or a document the contents of which is not made known to the accused PH will be allowed to testify or be received in

evidence during trial. This position was set in order to do away with surprises during trial. In the present case, admissibility of exhibit P3, P4, P5 and P6 is being questioned by the appellant on the ground that it was not listed during PH. It was a motor cycle and letters to and from TRA. Its admissibility in court is, therefore, subject to compliance with Section 246 of the CPA that is; it should have been made known by the appellant during PH. See Remina Omary Abdul vs Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118. To ensure that it was made clear, exhibits ought to have been explained and listed as being among the intended prosecution exhibits. I shall not buy Page 12 of 17 cheap submission by the State Attorney that so far as the exhibits were supplied to appellant before its admission then, appellant was aware of the existence of exhibits. Listing of intended exhibits is a mandatory requirement and I accordingly hold that exhibits P3, P4, P5 and P6 were improperly received during trial and I hereby expunge it from the record. See The DPP vs Sharif and 6 Others, Criminal Appeal No. 74 of 2016. After removing exhibits P3Z P4, P5 and P6 from record, the remaining exhibit is Pl and P2 which is agreement and motorcycle registration card. It was the testimony of PW2 that she owns a motorcycle with registration number MC 475 AYR and it was given to PW1 on

01/11/2020 for agreement and PW1 was using that motorcycle to carry passengers. PW1 testified that the motorcycle was taken by appellant on 27/2/2020 and was not returned till it was seized from another person. Prosecution contradicted on when the motorcycle was possessed by PW1 and when it was stolen from him. The major issue during trial was stealing and the property which was claimed to be stolen is motorcycle which, was stolen from PW1 before he possessed. At this juncture, I join hands with the appellant that the contradiction is major as it goes to the root of the subject of the stealing motorcycle. See Page 13 of 17 Sebastian Michael & Another vs Director of Public Prosecutions (Criminal Appeal No. 145 of 2018) [2021] TZCA 37. Further, PW1 testified that he reported the matter to police on 07/3/2020 but exhibit DI show the statement was recorded on 07/2/2020 as indicated in Exhibit DI. Apart from the fact that the crime was reported in February 2020, the 1st accused was arrested in 13/7/2022 while the second was arrested with motorcycle on 08/12/2022. It is more than two years since the offence of stealing by agent was committed. PW1 testified that he knows appellant, he has his mobile phone number and know the place where the appellant was working but he was not arrested on the alleged crime in the year 2020 till year 2022 on the ground that he was in remand for

another criminal case, although I am of the opinion that, if he was in remand for another case, it was easily for them to find him and charged him with the present case. Prosecution did not testify when appellant was arrested for that other criminal case but appellant testified that he was arrested for the other case in year 2022. It is settled that the duty of the accused is not to prove his innocence, rather to shake the prosecution case. In absence of the other date when appellant was arrested, the position remains that of the Page 14 of 17 appellant that he was arrested in the years 2022. The question why appellant was not arrested when the crime was reported remain unanswered. That being not enough, it has to be remembered that in criminal cases, prosecution has the duty to prove the offence as it appears in the charge sheet. See Sultan Omary Kipenzi & 6 Others vs Republic, Criminal Appeal No. 154 of 2017. In the case at hand, appellant was charged with the offence of Steal by agent contrary to section 258(1) and 273(b) of Penal code, the property claimed to be stolen as per particulars of the offence is motorcycle with registration number MC 475 AYR make GSM the property of Ester d/o Masisi ©Masamaga. During PH, facts read the stolen motorcycle was the property of Ester Masisi. However, during trial prosecution testified that the stolen motorcycle was the property of

Daniel Methus Chumu and exhibit P2 which was tendered by prosecution show the motorcycle is the property of Daniel Methus Chumu. The question now is whether prosecution managed to prove charge levelled against the appellant, then accused. Ester Masisi appeared as PW2 and testified that she owns motorcycle with registration number MC 475 AYR. Motorcycle has been defined under section 2(1) of the Road Traffic Act, Cap 168 (Cap 168) to mean vehicle and section 12 of Cap 168 R. E 2002 makes it mandatory for Page 15 of 17 the registration of the vehicle. The said stolen motor vehicle was registered as a property of Daniel Methus Chumu as per exhibit P2. Basing on the dictates of the Cap 168 the motorcycle with registration number MC 475 AYR is owned by Daniel Methus Chumu and the same has been testified by PW2. I find prosecution failed to prove the charge because the evidence adduces don't implicate PW2 as the owner. It goes therefore PW2 lied when she testified that she is the owner of the motorcycle while she knows the same was owned by Daniel Methus Chumu. Should I believe PW2 on the rest of her testimony? My answer is no as was analysed in Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017. Generally, there are gaps in the prosecution testimony which confirm the offence was not proved to the required standard. This being the criminal case, the standard of proof is

beyond reasonable doubt and proving beyond reasonable doubts means the prosecution evidence must be strongly as to leave no doubt to the criminal liability of an accused person. See Samson Matiga vs Republic, Criminal Appeal No. 205 of 2007. It is settled that in our jurisdiction doubts are decided in favour of the accused person. See Sebastian Michael & Another vs DPP, Criminal Appeal No. 145 of 2018. Page 16 of 17 In upshot, I find the appeal has merit, the prosecution failed to prove their case beyond reasonable doubt. I allow the appeal and I order the release of the appellant forthwith unless he is otherwise lawful held. It is so ordered. DATED at MUSOMA this 23rd day of December in the year 2024 w M. L Komba

JUDGE Judgment delivered in chamber in the presence of the appellant who appeared in person and in the presence of MS. Joyce Matimbwi, State Attorney for the respondent. I< M. L. Komba

JUDGE 23rd December, 2024 Page 17 of 17