Charles Faustine @ Sunzu vs Republic (Criminala Appeal No. 20 of 2020) [2023] TZCA 17661 (27 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (C-QRAM; NDIKA, J.A., KIHWELO. J.A. And MWAMPASHI. J.A.^ CRIMINAL APPEAL NO. 20 OF 2020 CHARLES FAUSTINE @ SUNZU ............................................................ APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mqevekwa, J.) dated the 17th day of December, 2019 in Criminal Appeal No. 56 of 2019 JUDGMENT OF THE COURT 25t h & 27t h September, 2023 KIHWELO. J.A.: The appellant, Charles Faustine @Sunzu along with others who are not parties to this appeal, were arraigned before the Resident Magistrate' Court of Geita at Geita (the court) for the offence of armed robbery contrary to section 287A of the Penal Code [Cap. 16 R.E. 2002] as amended by Act No. 4 of 2004. They were each sentenced to thirty (30) years imprisonment. Believing that justice was not served by the trial court, they both appealed to the High Court of Tanzania at Mwanza (the High Court), in Criminal Appeal No. 56 of 2019. The appellant's appeal to i

the High Court was unsuccessful, hence this second appeal. The other three appellants were acquitted by the High Court. Briefly, the prosecution case which was believed by the trial court was to the effect that, on 01.09.2017 at about 20.00 Hrs, at Nyawilimilwa village, Kamelele area, within the district and region of Geita, the appellant and others stormed into a grazing camp and ordered people who were taking care of cattle to lie down, tied all the victims and took them in one room where they ordered and threatened them not to make any move and all the victims reluctantly obeyed while puzzled and terrified not knowing * what to do. While some of the robbers went to the kraal to select the best cattle others remained in the room where the victims were held, keeping them under watch. After that, they stole 18 herds of cattle valued at TZS. 18,000,000 the property of one Erasto Migwata. They threatened and bludgeoned one Nduhye Mabinga in order to facilitate the robbery. The appellant and others were not visually identified by the victims. However, three of the witnesses, Police Officer F. 3040 Detective Corporal Joseph (PW6), Sylivester Nalompa (PW7) and Police Officer E. 1642 Detective Corporal Silasi (PW8) claimed to have arrested the appellant following tracing of a mobile number 0683 980 252 which was left at the scene of 2

the crime by the robbers and which upon search was found in the custody of the appellant who later was alleged to be the owner of the SIM card. The trial court also believed and relied on the evidence of Nduhya Mabinga (PW1), Simon Gasuma (PW2), Erasto Migwata (PW3), Siku Masunga (PW4), Hamadei Hussein (PW5), as well as exhibit PI (Mobile phones), exhibit PE4 (certificate of seizure), exhibit PE6 (extra judicial statement of the then first accused) and exhibit PE9 (print out from Vodacom). PW8 testified that through the print out from Vodacom he was able to establish that the appellant was the one who received ransom money that was sent by PW3 the owner of the stolen cattle to the appellant. On the adversary side, the appellant and others, gallantly denied the allegations leveled against them and stoutly defended their innocence. In their sworn testimonies they totally disassociated themselves with the allegations and further testified that the prosecution did not prove the case as required. On the whole of the evidence, the trial court accepted as truthful the evidence of the prosecution's witnesses. The appellants' denial was rejected. In the upshot, the appellant and others were found guilty, convicted and accordingly sentenced. 3

In protesting their innocence, the appellant and others lodged the appeal before the High Court as narrated above which upon hearing the appeal on merit on 17.12.2019 the High Court (Mgeyekwa, J. as she then was) dismissed the appeal as against the appellant for being devoid of merit. However, the High Court allowed the appeal against the other three as hinted above. Still aggrieved, the appellant seeks to overturn the decision of the High Court. Initially the appellant on 30.12.2020 amassed five (5) grounds of grievance. Later, on 10.09.2021, the appellant further lodged a supplementary memorandum of appeal with five (5) grounds of grievance which however, we feel that it will not serve any useful purpose to recite them here as the determination of this appeal is purely based on a matter not raised by the appellant. Eventually, the appellant appeared before us in person, unrepresented, while on the adversary side, the respondent Republic was represented by Mr. Daniel Masambu, learned State Attorney. We invited the appellant to clarify his grounds of grievance but owing to his dilettante as lay person not conversant with the law, he preferred for the learned State Attorney to respond on his grounds of grievance and he would rejoin if need to do so would arise. 4

Upon taking the floor to address us, Mr. Masambu, premised his submission by bravely opposing the appeal on account that the High Court rightly upheld the conviction and sentence of the appellant based on the overwhelming evidence that connected the appellant to the charge. In his view, the trial court was justified to find the appellant guilty of armed robbery because the appellant was searched by PW6 in the presence of an independent witness, the village chairman PW7 and the result of which the appellant was found in possession of a number of stolen items including SIM cards which were all recorded in the seizure certificate exhibit PE4. In his further submission, the learned State Attorney argued that, as if that is not enough, the testimony of PW8 who tendered the print out from Vodacom exhibit PE9 implicated the appellant with the crime. However, upon our prompting on whether exhibits PE4 and PE9 were properly admitted and relied upon to convict the appellant, Mr. Masambu was quick to concede to the non-compliance with the requirement of the law and agreed that, this was a fatal irregularity because exhibits PE4 and PE9 were not read out in court after clearance for admission in evidence and that renders the two exhibits inadmissible in evidence and therefore needs to be discarded from the record. Mr. Masambu, paid homage to the celebrated case of Robinson Mwanjisi 5

and Others v. Republic [2003] T.L.R. 218 to facilitate proposition of his argument. In his submission, and rightly so in our mind, once the two exhibits are expunged from the record there is nothing left to support the appellant's conviction. He therefore, gentlemanly argued that, given those circumstances, he cannot resist the appeal anymore, but rather to whole heartedly support it for the anomalies were conspicuously evident on the record. In rejoinder the appellant had nothing useful to submit aside from maintaining his innocence and prayed that the appeal be allowed and he be set free. We have examined the record of appeal in particular pages 37 and 38 as well as pages 50 and 51 in the light of the submission by the learned State Attorney and we hasten to state that, this appeal stands or falls on the evidence of PW6 and PW8 as well as exhibits PE4 and PE9. Put simply, the only evidence that formed the basis of the appellant's conviction hinges on the testimonies of the two witnesses and the exhibits they tendered in court. We wish to quickly and respectfully, state that, we are satisfied that, exhibits PE4 and PE9 were improperly admitted and wrongly relied upon by the trial court to ground conviction of the appellant, because they were not read out after being admitted in evidence. 6

It is apparent from the record that, there is considerable merit in Mr. Masambu's submission. For clarity, we wish to let the record of appeal at pages 37 and 38 speak for itself: "PP: I pray for PW6 to tender certificate o f seizure against the 2n daccused to support the case and hands (sic) 1stAccused: No objection 2n dAccused : No objection 3rdAccused: No objection 4 * hAccused: No objection Court: The tendered certificate o f seizure against the second accused is admitted as PE4 to support the prosecution case against the second accused. Signaure: J.A. Kato-RM 26/07/2018 EXAMINA TION CONTINUES After the process o f searching the second accused was found with different exhibits which are named into the search warrant or order". Furthermore, we wish also to let the record of appeal at pages 50 and 51 speak for itself: 7

"PP: I pray for PW8 to tender the print out in favour o f the prosecution. 1stAccused: No objection 2n dAccused: No objection 3rdAccused: No objection 4 ? hAccused: No objection Court: The tendered print out are admitted as PE9 collectively to support the case. Signature: J.A. Kato-RM 20/08/2018 EXAMINA TION CONTINUE After observing the offence, I started to trace the joint accused using the mobile phone technology and through investigation we observed that the accused who was with mobile phone number was living at Nyakayondwa village and he is the one who was using the mobile phone number". Clearly, the above excerpts indicate that exhibits PE4 and PE9 upon clearance for admission and actual admission were not read out in court. r* This is contrary to the principle of law which we laid down in the landmark case of Robinson Mwanjisi and Others v. Republic (supra) in which we emphasized the need for any document which is introduced for o 8

admission in evidence to be first cleared for admission and actually be admitted before it can be read out in court. Reading out documentary exhibits is an assurance that the accused understands the contents of the exhibits. We are thus satisfied that, exhibits PE4 and PE9 were irregularly admitted and acted upon and therefore, we accordingly discard them from the record. Admittedly, having expunged exhibits PE4 and PE9, all what remains of the case for the prosecution are mere skeletal allegations of PW6 and PW8 whieh do not in ahy way point to the guilt of the appellant. If anything, it is a mere suspicion and not a very strong one. We are fortified in this view by the principle that a mere suspicion alone, however strong cannot ground a conviction. Unfortunately, with due respect, the learned trial Resident Magistrate did not exercise care when he admitted exhibits PE4 and PE9 and this aspect went unnoticed by the first appellate court. In light of the above, we think, with respect, that, the learned State Attorney was undeniably right when he argued that, once the two exhibits are expunged from the record there is nothing left to support the appellant's conviction and the reason is not far-fetched, as clearly demonstrated by the first appellate judge in her judgment at pages 129,

130 up to and including page 131 in which she specifically indicated that the appellant was convicted on the strength of the testimony of PW8 who tendered exhibit PE9, the Vodacom print out and the testimony of PW6 who tendered exhibit PE4, the certificate of seizure which was signed by the appellant indicating that the appellant was in possession of the Vodacom Subscriber Identity Module Card (SIM Card). We are not losing sight that, this being a criminal case, the burden lies on the prosecution to establish the guilt of the appellant beyond trl reasonable doubt. The duty of the prosecution to prove the case beyond reasonable doubt is universal. In Woodmington v. DPP [1935] AC 462, it was held inter alia, that it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it, in the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed". 10

c All said and done, we allow this appeal against conviction for armed robbery and sentence of thirty years' imprisonment which are hereby quashed and set aside accordingly. The net effect is that the appellant shall be released forthwith from custody unless he is held lawfully for another cause. DATED at MWANZA this 26th day of September, 2023. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A.M. MWAMPASHI JUSTICE OF APPEAL The Judgment delivered this 27th day of September, 2023 in the presence of the appellant in person and Mr. Evance Kaiza, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 11 0