yazidu hamisi abdallah vs republic 2023 tzhc 22821 30 october 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL APPEAL NO 71 OF 2023 (Originating from Criminal Case No. 172 of2022 in the District Court of Nanyumbu at Mangaka) YAZIDU HAMISI ABDALLAH.... ...APPELLANT

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

JUDGMENT l&i: &3lS October 2023 LALTAIKA, J, The appellant herein YAZIDU HAMISI ABDALLAH (and three others not a part of this appeal) was arraigned in the District Court of Nanyumbu at Mangaka on two counts of conspiracy c/s 384 and stealing c/s 258(1) and 265 of the Penal Code Cap 16 RE 2002. It was the prosecution's story that the appellant and three others stole, a motorcycle with registration number MC697 BMG with chassis number LBRSPJB57G9041567 make SANLG property of one Pius Ogono Samwel. Page-1 of 7 When the charges were read and explained to the appellant (then accused) he denied wrongdoing. This necessitated conducting of a full trial. Having been convinced that the prosecution had proved its case beyond reasonable doubt, the trial court convicted the appellant as charged and sentenced him to a four-year jail term for the first count and three years for the second count. The appellant is dissatisfied with both conviction and the sentence, hence this appeal. He has appealed by way of a petition of appeal containing six grounds as reproduced hereunder: 7. That the Prosecution Witnesses failed to prove the case beyond reasonable doubts.

2. That the appellant was not found with the allegedly stolen property.

3. That the one found with the stolen property was exonerated from the offence through the song, of the late Lucky Dube and not the Law.

4. That the appellant was only convicted because he prior lived with PV/1 and not because he was the one who stole the motorcycle.

5. That, the trial Magistrate erred both in Law and facts by admitting the subject matter without a Certificate of seizure.

6. That the trial Magistrate erred both in Law and facts by admitting the cooked cautioned, statement from the prosecution side. When the appeal was called for hearing on the 18th day of October 2023, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. The appellant, not being learned in law, indicated that he had nothing to add to his expounded grounds of appeal accompanying the memorandum of appeal. He, however, reserved his right to a rejoinder. Page 2 of 7 Taking up the podium, Mr. Kondoro announced that he was against the appeal and that the respondent Republic supported both conviction and the sentence of the trial court. The learned State Attorney proceeded to state that for convenience, he decided to put the six grounds of appeal into two categories: the first group, including grounds 1, 2, 3, and 6, challenges the proof beyond reasonable doubt, while the second group, represented by the 5th ground, addresses the absence of a certificate of seizure.. In address!ng the first group, the learned State Attorney acknowledged the prosecution's obligation, as outlined in the case of Woodmington v. DPP- (1935) AC 462, to establish a- case beyond reasonable doubt; He asserted that PW1 witnessed the motorcycle in question and identified it as belonging to PW2 Said! Abdul.

During a police identification parade, PW1 successfully identified the appellant, who also confessed to the theft during interrogation. According to Mr. Kondoro, PWl's identification was facilitated by their work relationship, as the appellant served as his shopkeeper. PW2 Said Abdul, PWl's landlord, confirmed that PWl's stolen motorcycle was found at Michiga Village, and he identified the appellant due to their close association. PW4 testified about the loss of the motorcycle and submitted exhibit P2 (cautioned statement of the 3rd accused person), indicating the appellant's involvement. The trial court’s judgment, as summarized on page 4, noted that DW1 made a confession statement. Considering the Page 3 of7 testimonies of PW1, PW2, PW3, and PW4, Mr. Kondoro asserted the case was proven beyond reasonable doubt. Consequently, he pleaded for the dismissal of grounds 1, 2, 3, 4, and 6. Moving on to the 5th ground, Mr. Kondoro referred this Court to established legal principles, citing the case of Ramadhani Iddi Mchafu versus Republic Crim Appeal No 328 CAT at Arusha 2019. The court, as noted on page 15 of the case, emphasized that section 38(3) of the Criminal Procedure Act requires seizure receipts to be issued following the issuance of a search warrant. However, the court also highlighted that even if seizure certificates were overlooked, there were sufficient witnesses in

the prosecution's evidence who could affirm the facts in question; Mr. Kondoro argued that the appellant's arrest and subsequent police custody, following the search of his house where a motorcycle registration card was found, were indicative of his involvement. According to him, given these circumstances, there was no necessity to insist on a seizure certificate. The learned State Attorney prayed for the dismissal of the ground. The appellant stated in his rejoinder submission that he prayed for the acceptance of his written submission. He shared that he is the third- born in his family and had not attended school due to his parents' separation. He mentioned being raised by his maternal grandmother and indicated uncertainty about his age, as the police informed him that he was 19 years old. The appellant explained that he and his co-accused were of similar age and knew each other from Michiga. He clarified that he was learning Page 4 of 7 motorcycle repair in a garage, and the co-accused joined him. He asserted that he did not steal the motorcycle, emphasizing that the location of his arrest differed from where the motorcycle was stolen. The. appellant expressed his intention to return to his elderly grandmother if acquitted, as she was his so I e ca reta ke r. I have dispassionately considered the grounds of appeal, rival submissions, and the lower court's record. I must

admit that it was somewhat embarrassing to see the appellant entering this court under custody, coming from prison. I am not trained in psychology but the child in him was too obvious. He looked helpless. The prison warden- askariguarding him looked relaxed and acted more like a father compared to how he acted when he escorted at least five other appellants to this chamber on the same day before the appellant's turn. As explained above, the appellant is unschooled. He was raised by his grandmother whom' he misses bitterly. He sobbingly indicated that his biggest wish was to go back to see her. I do not want to cite any case today. I want to use simple and clear expressions to emphasize that this country cares deeply about the rights and welfare of the child. The appellant had intimated that he didn't know how old he was because neither him nor his granny ever been to school. That's fine to me. My only question is how for God's sake did the police officer who arrested Yazidu decide to estimate that he was 19 ? When were they arraigned in court wasn't it yet another wasted Opportunity for the learned trial Magistrate to query the age of the appellant? Page 5 of 7 It appears to me that when the motorcycle was allegedly stollen, a manhunt was launched by the police in Mangaka. All able-bodied young men were arrested to answer the whereabouts of the motorcycle. Children like Yazidu

were bitten up and forced to associate themselves with thievery. This is hot how our criminal justice is administered. No doubt, the arrest, arraignment, and trial of the appellant by the trial court was mired with a lot of instances of violation of tenets of criminal justice. First the age of the appellant was not ascertained. More importantly, the appellant cannot be said to have understood the charges let alone defending himself. Premised on the above, I order that the appellant YAZIDU HAMISI ABDALLAH be released from prison forthwith unless he is being held for Judgment delivered under my hand and the seal of this Court this 30th day of October 2023 in the presence of Mr. Steven Aron Kondoro, learned Court The right to appeal to the Court of Appeal of Tanzania is fully explained. 30.10.2023 Page 7 of 7