20170818 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 106 OF 2017 [Originating from the decision of Temeke District Court in Criminal Case No.557 of 2016]. UWESU s/o SELEMANI KIYANGU ................... APPELLANT VERSUS THE REPUBLIC ....................................... RESPONDENT Date of the last Order Hfh August 2017 Date of the Judgement 18h August 2017 JUDGEMENT SAMEJI, K. R. J In the District Court of Temeke, the appellant was charged for two counts, to wit, unlawful possession of fire arm contrary to section 20 (1) (a) and unlawful possession of the ammunition contrary to section 21 and 60 (1) both of the Fire Arms and Ammunition Act, 2015. After full trial the appellant was convicted and sentenced with all the counts. For the first count to serve five (5) years imprisonment and for the 2nd count to pay fine of Tshs 10,000,000/= or in default to serve t~n (10) years imprisonment. Being aggrieved with both conviction and sentence, he lodged a petition of Appeal with twelve (12) grounds, which after being consolidated can essentially be said to challenge the trial court's decision on the aspect that 1 the charge against him was not proved to the standard required by the law. That is beyond reasonable doubt. At the hearing of the appeal the appellant appeared in person and fended for himself, (unrepresented), while Ms. Ellen Masului, the learned State Attorney, represented the respondent, the Republic. In his submission the appellant prayed the Court to adopt the grounds of appeal submitted in the Petition of Appeal. He therefore elaborated on few grounds. As for the second ground he stated that, the key witnesses were not brought before the trial court to testify. He further challenged the cautioned statement submitted that was not his and he was only forced to sign the same. On the fourth ground he argued that the seizure report submitted was not signed by the ten-cell leader who witnessed the exercise. He also challenged the evidence of the prosecution witnesses that was tainted by inconsistencies and contradictions. He finally prayed the Court to consider all grounds of his appeal and set him free. In her submission, Ms. Masului while supporting the appeal noted that the trial court erred in law and fact for convicting and sentenced the appellant 2 without observing some of key procedures in handling criminal cases of this nature. She said, after she went through the record of the case she had observed a number of irregularities in the trial court proceedings and non-compliance with the legal requirement on the part of the prosecution side. In explaining some of the noted defects and irregularities, Ms. Masului stated that, the item that was seized was the fire arm, but there was no seizure certificate or chain of custody tendered by the prosecution side. Masului said this is contrary with the law. She further argued that, without the chain of custody it is not certain as if the same fire arm or the gun seized is the one submitted for inspection. She insisted that non production of chain of custody of the item arrested was an error on the prosecution side and is not acceptable in conduct of case of this nature. To buttress her position she cited the case of Paulo Maduka and 4 Others v Republic, Criminal Appeal No. 110 of 2007 at page 18. ' Ms. Masului argued further that, the prosecution side has also failed to summon any independent witness before the trial court. She said it is on record through the testimony of PWl that the ten-cell leader was among 3 those people who witnessed the inspection exercise and signed the report, but the ten-cell leader was not summoned to testify before the trial court. Ms. Masului also pointed out that, testimonies of prosecution witnesses was tainted with inconsistencies and contradictions. She gave the example of testimonies of PW1 and PW2, that at page 12 of the trial court proceedings PW1 testified that, when they entered at the scene of crime the gun was under the bed, while PW2 at page 21 of the same proceedings said when they entered the gun was on the top of the table. She further explained again PW1 said that before conducting the search the police officer were searched by the ten-cell leader, to the contrary PW2 said when they arrived the police officers were already inside the room doing the search before being searched. Ms. Masului also stated that the appellants were not accorded the rights under section 211 of the Criminal Procedure Act. After pointing out some of these irregularities and omissions in conduct of this case, Ms. Masului, prayed the Court to allow the appeal, as the prosecution side has not managed to prove the case against the appellant to the required standard. 4 • In considering submissions advanced by parties, the record of proceedings and the entire appeal together with the trial Court Judgment, which is a subject of this appeal, I am convinced that the main issue for determination in this whole appeal is whether the charge against the appellant was proved beyond all reasonable doubt. During the trial and as submitted by Ms. Masului, there were a number of omissions on the part of the prosecution side. I have since perused the record and verified that, there was no evidence led to connect the appellant with the said gun. This was failure by the prosecution side to comply with section 38 (3) of the Criminal Procedure Act, Cap 20. [R.E.2002]. The said section provides that:- "Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises/ and the signature of witnesses to the search/ if any'~ [Emphasis added]. 5 In the case at hand, this mandatory requirement of the law was not complied with and I am in support of the authority cited by Ms. Masului in the case of Paulo Maduka. It is also on record that the key witnesses were not summoned to testify before the trial court. This is contrary with the legal requirement and the authorities enunciated by the Court in the cases of Separatus Theonest V Republic, Criminal Appeal No. 138 of 2005; Riziki Method V Republic, Criminal Appeal No. 80 of 2008 Court of Appeal, (both unreported). Specifically in Azizi Abdallah V Republic (1991) TLR 71 the Court stated that:- " ... the general and well known rule is that, the prosecutor is under prima facie duty to call those witnesses, who from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution" It is also on record and as submitted by Ms. Masului that, the testimonies of the prosecution witnesses 6 As submitted by Ms. Masului, it is on record that, there are contradictions and inconsistencies in the testimonies of prosecution witnesses. I have since perused the testimonies of PWl and PW2 and confirmed that in the testimonies of prosecution witnesses there are major contradictions and inconsistencies. Surprisingly, in his Judgement the learned trial Magistrate did not evaluate the said contradictions in the prosecution evidence. In the case of Mohamed Said Matula v Republic (1995) TLR 3, the Court of Appeal held that:- " Where the testimonies by the witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter'' Going by the above principle it is my considered view that, the contradictions and inconsistencies in the prosecution witnesses which were not addressed by the trial court affect the entire case, because the contradictions herein were to establish as when exactly PW2 was raped and whether it was the appellant who raped her or someone else. This in my view goes to the very root of the case. See the case of Msafiri Hassan Masimba v Republic, Criminal Appeal No. 302 of 2015, (Unreported). The involved contradictions have since created doubts, which should be resolved in favour of the appellant, as in the cases of George Ndumbaro Vs the Republic, Criminal Appeal No. 294 of 2009, Court of Appeal of 7 Tanzania, at Iringa (Unreported) and Nung'uniko Gidule Vs the Republic, Criminal Appeal No. 223 of 2008,, Court of Appeal of Tanzania, at Iringa (Unreported). All these observed irregularities, omissions and errors are contrary to fair trial apd the due process of the law and are unacceptable. As such the trial was not fairly adjudicated. See cases of Remebisele s/ o Edison V R (1967) HCD No. 72 which was referred in Salimu Hussein v. Republic, Criminal Appeal No.3 of 2011, Court of Appeal, (unreported). In the case at hand, the prosecution evidence was equally shallow and tinted with exaggerations and inconsistencies, hence unreliable to form a sound conviction. In the event and for the above stated reasons, this appeal is hereby allowed, the conviction is quashed and sentence set aside. The appellant is to be released from prison forthwith unless lawfully held. It is so ordered. DATED at Dar es Salaam this 18 day of August 2017. R.K. SAMEJI. JUDGE 18/08/2017 8