20171020 TZHC Dodoma3

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) DC CRIMINAL APPEAL NO. 26 OF 2017 (Original Criminal Case No. 8 of 2015 of the District Court of Singida at Singida) TUN GU KABELELE JILOTI@ LASA JILOTI. ............................... APPELLANT VERSUS THE REPUBLIC .......................................................... ...... RESPONDENT JUDGMENT 06/10/2017 & 20/10/2017 A. MOHAMED, J. After being convicted of seven counts of unlawful possession of Government trophies, the Singida District Court sentenced the appellant to serve 15 years imprisonment or pay a fine of 34,000,000/= shillings. Against that decision the appellant appeals on eleven ·grounds that can. conveniently be summarized into the following three:- 1. That the trial court erred in convicting him as he was not found in possession of the Government trophies. 1 2. That the trial covrt erred in failing to discern he was Losa the person named by the 1st accused as the owner of the seized Government trophies. 3. That the trial court erred in convicting him on the alleged weakness of the defence case instead of on the strength of the prosecution case. It was alleged by the prosecution 1n the trial that one Magida Bundala, the 1st accused (who was acquitted in the trial court) and Tungu Kabelele@ Losa Jiloti, the appellant, were arrested on 19 /9/201 6 at 8:30 hours at Mkenene village within lkungi District in Singida Region being in possession of assorted Government trophies to wit three pieces of lion skins valued at 4900 USD, 400 grams of lion fat valued at 4900 USD, three pieces of Monitor lizard tails worth 25 USD, three pieces of wildebeest tails worth 1950 USD, one python skin worth 360 USD, feathers of a bulbul bird worth 55 USD and feathers of a francolin bird worth 100 USD, all properties of the United Republic of Tanzania. At the hearing, the unrepresented appellant said he would rely on the grounds in his memorandum of appeal in support of the appeal and reply to the respondent counsel's submission. Ms. Nsana, learned State Attorney for the respondent Republic supported the appeal. Arguing collectively on the 1st, 3rd, 7th, 9th and 10th grounds, she said the appellant's claim was that the appellant 2 was not found with the items described as exhibit P3 to wit the said government trophies. The counsel submitted all the prosecution witnesses including PWl, PW2, and PW3 told the trial court the 1st accused person Magida Bundala was found with the Government trophies. She was of the view the trial court erred in holding the appellant was found with exhibit P3 when the evidence did not lead to that finding. The counsel said the charge sheet reads the appellant was found in unlawful possession of the Government trophies whereas in fact the same were found with the 1st accused person. In concluding, she reiterated that the ground had merit as the appellant was not found in possession of exhibit P3. Ms. Nsana then submitted jointly on the 2nd , 4th and 5th grounds that essentially claim there was an unresolved question before the court of the names and identity between Tungu Kabelele and Laso Kabelele or Laso Jiloti. She was of the view this question clouded the prosecution's case which did not prove who really was the person mentioned by the 1st accused as the owner of the Government trophies that were found with him. The counsel said at the trial court, the appellant objected his name was not Losa; that it was Tungu. Ms. Msana went on to say, it was crucial for the court to first resolve this question and determine whether the appellant who claimed his name was Tungu, was the person named by the 1st accused who had committed the alleged crime. 3 Moving to the third complaint that the trial court erred in basing the conviction on the weakness of the defence, Ms. Nsana said the 11 th ground also has merit. She submitted that as is seen at page 19 of the judgment, the learned trial magistrate misdirected herself in convicting the appellant basing on the weakness of the defence to wit contradictions of his witnesses' testimonies. She stressed that it is a cardinal principle of criminal law the prosecution has the onus to prove its case beyond reasonable doubt. And that the defence has only to raise doubts to demolish the prosecution's case. In his rejoinder submission, the appellant simply stated he concurred with the learned State Attorney's submission. After hearing the parties and having reviewed the trial court's record, I will now consider the case. I will begin with the 1st ground. Let me briefly restate the facts for clarity. On 18/9/2016, the 1st accused person Magida Bundala was arrested by Damas Benedicto, the Makenene village Executive Officer (PW 1), with a bag at the house of one Mwanadwashi following a tip from lrude Bulali, a militiaman. Thereafter, Moge Sene (PW2) and F8322 Aristides (PW3) witnessed assorted Government trophies (exhibit P3) and two human skulls removed from the said bag. In his defence, the 1st accused named Laso as the owner of the said items. Laso was not present during the arrest. Bundala Sene, the 1st accused person's father assisted the police in tracing the so called Laso. In turn the arrested person claimed he was Tungu 4 Kabelele not Losa Kabelele who was his elder brother. Nevertheless, the trial court convicted Tungu Kabelele Jiloti @ Laso Jiloti. It is clear the 2nd accused person was not arrested with exhibit P3. He was not even present at the place of the arrest. It was the 1st accused person who was found in possession of exhibit P3. And he ought to have been convicted of the offence he was charged with on the strength of the testimonies of PW 1, PW2, PW3 and exhibit P3. I am in agreement with the learned State Attorney's argument the charge of being found in possession of Government property cannot stand against him as there is no proof whatsoever of his being found in possession of any trophy. He was arrested months later in another village, (if it was really him). I therefore find merit in the ground and sustain it. In regard to the 2nd ground, I state that I am also in concordance with the State Attorney's view on this ground. The question of the 2nd accused person's identity was a crucial question for the trial court's determination before it even proceeded with hearing the case. Was the person in the dock Laso, who was named by the 1st accused as his accomplice? All along, the appellant had claimed he was Tungu and not Losa, who was the suspect. When cross examined by the 1st accused, the appellant had said: "I was arrested instead of my brother who had the Government trophy. We were told that he was with you. I was told by Bunda/a Seni. I told the court that I am not 5 Lasa Jiloti I am Tungu Kabelele and I have my witnesses to that effect. I did not know you but your father explained to you whom you are looking like (sic). You identified me at lkungi Police station." Again, when the 1st accused gave his testimony, he said: .. In September, 2015 the 2 nd accused (now appellant), Jiloti and Mwanaluhende came to our home." It is clear from the above; the learned trial magistrate did not properly address herself on the identity of the 2nd accused. According to the 1st accused person's testimony, first; he had two distinct accomplices, Laso and Jiloti. Secondly; he did not properly recognize Tungu (the appellant) who resembled his elder brother Laso; or in trying to exonerate himself, he identified Tungu as Laso anyway. Thirdly, the identification parade conducted at the lkungi Police station whereby the 1st accused "identified" the appellant proves, conversely that he did not know the appellant. If he did, was there any need for the identification parade? In any case, it was the court's duty to determine whether the person in the dock was really Laso. It miserably failed to do so. I am satisfied, this was a case of mistaken identity, whether done bona fide or roguishly. I accordingly find merit in the ground and sustain it. 6 The last complaint was that the conviction was based on the defence' s weakness and not on the strength of the prosecution case. At page 19 of the judgment, the learned magistrate wrote: "The 2 nd accused person contradicted himself together with all the witnesses whom he summoned them (sic) to testify on (sic) since the said testimonies contradicted itself (sic) in many ways as a result the court believes that he was the one who was found with the said government trophies together with his grandfather one Jiloti ... " From the above passage, as correctly observed by Ms. Nsana, it is apparent the learned trial magistrate erred in law since it is a fundamental principle of criminal law that the burden of proving a case beyond reasonable doubt is always on the prosecution and it never shifts. The defense's only duty is to cast doubt on the prosecution's case. Consequently, the ground has merit and is sustained. In the final, I allow the appeal, quash the conviction and set aside the sentence and any other ancillary orders. The appellant is to be freed forthwith unless he is held for any other lawful cause. It is so ordered. 7 A. MOHAMED JUDGE 20/10/2017 The right of appeal explained. A. MOHAMED JUDGE 20/10/2017 , 8