Director of Public Prosecutions vs Josephat Joseph Mushi & Another (Criminal Appeal No.471 of 2019) [2023] TZCA 17536 (24 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MWAMBEGELE. J.A.. KOROSSO. J.A.. And RUMANYIKA. J.A.) CRIMINAL APPEAL NO. 471 OF 2019 THE DIRECTOR OF PUBLIC PROSECUTIONS ................... . ..........APPELLANT VERSUS 1. JOSEPHAT JOSEPH MUSHI 2. SAID OMARY SISIGE ^ .........................................RESPONDENTS (Appeal from the Judgment of the High Court of Tanzania, at Mbeya) (Mambui) dated the 22n d day of August, 2019 in Criminal Appeal No. 133 of 2018 JUDGMENT OF THE COURT 27th September, 2022 & 24th August, 2023 MWAMBEGELE. J.A.: This is an appeal by the Director of Public Prosecutions against the decision of the High Court in Criminal Appeal No. 133 of 2018 allowing the appeal of the respondents Josephat Joseph Mushi and Said Omary Sisige who were convicted by the Court of the Resident Magistrate of Mbeya sitting at Mbeya of different counts which shall come to light shortly. The Director of Public Prosecutions has predicated this appeal on two grounds; that is, one; that the learned trial Judge erred in law and in fact by acquitting the respondents on the ground that the trial court judgment was invalid for improper conviction, and two; that the learned trial Judge erred in law and in fact for holding that the appellant failed to prove its case beyond reasonable doubt. At the hearing of the appeal, the appellant appeared through Mr. Saraji Iboru, learned Principal State Attorney and Mr. Paul Kimweri, learned Senior State Attorney. The first respondent was represented by Messrs. Simon Mwakolo and Othman Katuli, learned advocates. The second respondent did not enter appearance. As the record had it that the second respondent was served by publication in the Habari Leo Newspaper of 15.09.2022 but defaulted appearance, Mr. Iboru prayed for, and was granted, leave to proceed with the hearing of the appeal in his absence pursuant to rule 80 (6) of the Tanzania Court of Appeal Rules, 2009. For the avoidance of doubt, that prayer was not contested by Mr. Mwakolo for the first respondent. The background to this appeal is that the appellants, together with seven others who were acquitted at the trial, were arraigned in the Court of the Resident Magistrate of Mbeya for seven counts. They all pleaded not guilty and a full trial ensued. After the full trial, the respondents were convicted in six counts and sentenced as follows: in the first count, they were convicted of the offence of leading organized crime contrary to sections 57 (1) and 60 (2) & (3) (a) read together with paragraph 4 (1) (a) of the Economic and Organized Crime Control Act, Cap. 200 of the Laws of Tanzania and sentenced to a prison term of fifteen years each. The second count was for the offence of forgery contrary to sections 333, 335 (a) and 337 of the Penal Code and was in respect of the first respondent only. He was sentenced to serve a prison term of five years. The third count was also in respect of the first respondent only for the offence of making a false declaration contrary to section 203 (b) of the East African Community Customs Management Act, 2004. He was sentenced to pay a fine of USD ten thousand only or imprisonment for three years in default. The fourth count was in respect of both respondents for the offence of removing customs seals contrary to section 195 of the East African Community Customs Management Act, 2004. They were sentenced to pay a fine of USD Two thousand five hundred only or imprisonment for three years each in default. The fifth count for unlawful possession of uncustomed goods contrary to section 200 (d) (iii) of the East African Community Customs Management Act, 2004 was for both respondents. Both were 3 sentenced to pay a fine of Tshs. 3,632,553/50 or go to jail for three years each in default. The seventh count was for the offence of occasioning loss to a specified authority contrary to sections 57 (1) and 60 (2) & (3) (a) of, read together with paragraph 10 to the first schedule to, the Economic and Organized Crime Control Act, Cap, 200 of the Laws of Tanzania, It was in respect of both respondents. They were both sentenced to a prison term of fifteen years each. The prison terms were ordered to run concurrently. Aggrieved, the respondents successfully appealed to the High Court. Their appeal to the first appellate court had fourteen grounds of complaint. However, the High Court condensed the same to six issues as appearing at p. 657 of the record of appeal on which it decided the appeal. We shall refer to those issues in the course of our determination of this appeal hereinbelow. The first ground of appeal, as already shown above, assails the learned appellate Judge for acquitting the respondents on the ground that the trial court judgment was invalid for improper conviction. This ground falls within the scope of the last issue framed by the first appellate court as appearing in this judgment (infra). The determination of this ground of appeal will not detain us, for the learned counsel for both parties were not at serious qualms. While Mr. Iboru submitted that the finding by the first appellate court was not backed by evidence as the record shows at p. 542 that the respondents were convicted, the respondents' counsel did not say anything in response. It is the law in this jurisdiction that after the court hears the evidence of the complainant and accused person and their witnesses and finds the accused person guilty, it must, inter alia, convict the accused person and pass a sentence against him. This is a mandatory requirement of our law. The guidance is provided by section 235 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2022. For easy reference, we take the liberty to reproduce it hereunder: "(1). The Court, having heard both the complainant and the accused person and their witnesses and evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 o f the Penal Code." The record of appeal shows that the dispute is not actually on the issue whether the respondents were convicted, rather, it is on the provisions mentioned by the trial court under which it purported to convict the respondents. The trial court is recorded as saying it convicted the respondents under the provisions of sections 235 (1) and 312 (2) of CPA. The first appellate court addressed the issue at some considerable length, taking six pages of its judgment and concluded that it was an error on the part of the trial court and, it went on, if it were not for its conclusion that the case was not proved to the hilt, it would have ordered a retrial but refrained from taking that course of action because of that previous finding. It thought that ordering a retrial would have been an exercise in futility. We have read the context under which the trial court mentioned the provisions under reference when convicting the respondents. Having done so, we do not think the trial court meant to say that the respondents were charged under those provisions. Rather, in our considered view, it meant to say that, in convicting the respondents, it was complying with the requirements of those provisions of the law. In the premises, the cases of Mohamed Athumani v. Republic, Criminal Appeal No. 45 of 2015 and Amani Fungabikasi v. Republic, Criminal Appeal No. 270 of 2008 (both unreported) cited by the first appellate court to bolster up its argument that the respondents were not properly convicted were relied upon out of context. Those cases are authorities for the point that an accused person, after being found guilty of the offence charged, must be convicted before being 6 sentenced. They underline the importance of complying with the provisions of sections 235 (1) and 312 (2) of CPA. In the case at hand, the conviction of the respondents, as appearing at p. 542 of the record of appeal, was recorded at follows: "And I hereby hold that, the 1st and 2n d accused persons are culpabilis and I convict them accordingly and respectively under section 235 (1) and 312 (2) o f the Criminal Procedure A ct..." Despite some inelegancy in the quotation, we think the message intended to be conveyed to the reader sailed through. As already stated above, we do not think the trial court meant to state that the respondents were charged under the provisions but that it was complying with the letter of those provisions. Consequently, we are of the view that the respondents were properly convicted and the first appellate court should have found and held so. The first ground of appeal therefore succeeds. The second ground of appeal is a general one; that the first appellate court erred in law and in facts in holding that the appellant failed to prove its case beyond reasonable doubt. In arguing this ground of appeal, the learned advocates for the parties, inevitably in our view, reappraised the evidence adduced at the trial and, while the appellant had taken the position that the first appellate court should have upheld the findings of the trial court, the respondents' advocates were diametrically opposed to that stance, submitting that the first appellate court rightly reversed the decision of the trial court. As already alluded to above, the first appellate court decided the appeal on the basis of the issues framed at p. 657 of the record of appeal. However, in the course of determination, the first appellate court left some of the framed issues undecided and, in the course of that determination, added others which were not framed. And, as if to add salt to the wound, the learned counsel for the parties did not have much assistance to the court on the reasons the first appellate court advanced on the issues on which the appeal was decided, except for the general issue of whether the prosecution proved the case beyond reasonable doubt. On this general issue, the learned counsel for the parties, in their arguments before us, directed their minds to the evidence adduced before the trial court and fronted the same arguments before the first appellate court as well as before us. 8 We shall determine the second ground of appeal by first revisiting the issues on which the first appellate court determined the appeal. On the first issue, the first appellate court faulted the trial court for not considering both the prosecution and the defence evidence. The first appellate court scanned the proceedings of the trial court and concluded at p. 662 of the record of appeal that the trial court did not consider the defence evidence. The first appellate court relied on a number of decisions of the court to buttress the importance of considering both the prosecution and defence evidence. It concluded that failure to do that was fatal and vitiated the convictions and sentences meted out to the respondents. We agree with the first appellate court that failure to consider defence evidence of an accused person, on the authorities cited and many others, is a fatal irregularity and, oftentimes, vitiates the ultimate conviction and sentence. However, we do not think that was the case in the matter before us. We have traversed through the record of appeal, especially the judgment of the trial court, and discovered that the learned trial Senior Resident Magistrate summarized the evidence of both sides and, after that, considered the evidence of the appellants before the verdict - see pp. 518 - 528 and pp. 536 - 542 of the record of appeal. We are therefore not in agreement with the finding of the first appellate court 9 that the trial court failed to consider the defence evidence. On the contrary, we are of the view that the trial court sufficiently considered the evidence of the defence and, having so done, it was satisfied that the same did not raise any reasonable doubt on the prosecution case and dismissed it ruling that the case was proved against the respondents to the required standard; beyond reasonable doubt. In the premises, it is our considered view that the first appellate court erred in holding that the learned trial Senior Resident Magistrate did not consider the defence of the respondents. The second issue on which the first appellate court decided the appeal relates to failure of the trial court to consider the written submissions of the parties. Admittedly, the submissions of the parties were not considered by the trial court when composing its judgment and the learned trial Senior Resident Magistrate indicated so in his judgment. Much as we find it desirable that the submissions of parties should be considered in the decision the court finally arrives at, we are alive to the cherished principle of law founded upon prudence that submissions are not evidence. As such, failure to consider them is not the same as failure to consider defence as the first appellate court would have us believe. At pp. 662 - 666 of the record of appeal, the first appellate court directed its mind to the issue and was of the 10 view that failure to consider submissions of the parties was fatal. The first appellate court equated the ailment with failure to hear a party. We are afraid we are not prepared to go along with the reasoning and conclusion of the first appellate court on the issue. As we have already said above, submissions of the parties are not evidence and therefore failure to consider them cannot be equivalent to failure to hear parties. We have heard, times without number, that arguments and submissions by an advocate cannot be a substitute of evidence - see: Trasafrica Assurance Co. ltd v. Cimbria (E.A.) Ltd [2002] E.A. 627, Tina & Co. Limited and Two Others v. Eurafrican Bank (T) Ltd Now Known as BOA Bank (T) Ltd, Civil Application No. 86 of 2015 and Hotels and Lodges (T) Limited v. The Attorney General and Another, Civil Appeal No. 27 of 2013 (both unreported), to mention but a few. Thus, the first appellate court, in holding that by not considering the submissions of counsel for the parties, the trial court deprived the parties of their rights to be heard, slipped into error. The numerous authorities cited and relied upon by the first appellate court were necessary to underscore a point that parties must be accorded the right to be heard and failure to do so amounts to an unfair trial. They were therefore not applicable to the matter at hand and thus relied upon out of context. We, unlike the first appellate court, are of the considered view that the appellants were not unfairly tried. The third issue was whether the trial court shifted the burden of proof from the prosecution to the respondents. Unfortunately, the first appellate court started to address this issue at p. 668 but did not conclude it. As such it was not the basis for its decision. In the premises, we do not find it necessary to discuss it. The fourth issue was whether the trial magistrate analyzed and evaluated the evidence and made the decision with reasons. This issue was addressed by the first appellate court at p. 667 in connection with the first issue that assailed the trial court for not considering the respondents' defence. The first appellate court was of the opinion that the judgment of the trial court did not contain points for determination which omission, it opined, offended the provisions of section 312 of the CPA. The first appellate court thus concluded that the omission was fatal. We have already addressed this point when discussing the first issue above. We have concluded above that the trial court analyzed the evidence well and properly rejected the respondents' defence. In the same line of reasoning, we are of 12 the considered opinion that the judgment of the trial court contained the relevant ingredients; that is, it contained points for determination, the decision thereon and the reasons for determination. We wish to underline here that judgment writing is a matter of style, every magistrate or judge has his own. What is relevant is the critical analysis of both the prosecution and defence evidence. At this juncture, we find it irresistible to recite what we held in Amiri Mohamed v. Republic [1994] T.L.R. 138 on the point: "Every magistrate or judge has got his or her own style o f composing a judgment, and what vitally matters is that the essential ingredients shall be there, and these include critical analysis o f both the prosecution and the defence . " In the case at hand, we are satisfied that the trial court composed the judgment in conformity with the law; all the essential ingredients of the judgment are there. In the premises, the first appellate court, in our considered view, erred in holding that the judgment of the first appellate court did not contain the points for determination, the decision thereon and the reasons for the decision. The fifth issue on which the first appellate court allowed the appeal of the respondents is a general one; whether the prosecution proved the case against the respondents at the trial beyond reasonable doubt. At the hearing before us, the learned counsel for both sides addressed this issue with force. As stated at the beginning of this judgment, they directed their minds to the evidence adduced at the trial in respect of each count on which the respondents were convicted. This course, we think, was quite appropriate. We state so because we think the first appellate court did not adequately subject the evidence adduced at the trial to that scrutiny and reevaluate that evidence and come to its own conclusion. It was incumbent upon the first appellate court so to do failure of which, we respectfully think, it abdicated its duty as a first appellate court. In the circumstances, we, as a second appellate court are supposed to step into the shoes of the first appellate court and do what it ought to have done. That this is the stance and practice of the Court has been stated in a number of our previous decisions - see: Shabani Amiri v, Republic (Criminal Appeal No. 18 of 2007) [2007] TZCA 158 (30 October 2007) TanzLII, Prince Charles Junior v. Republic, Criminal Appeal No. 250 of 2014, Allen Francis v. Republic, (Criminal Appeal No. 327 of 2019) [2022] TZCA 689 (26 October 2022) TanzLII and 14 Omary Hamis @ Mponela & Another v. Republic (Criminal Appeal No. 414 of 2019) [2022] TZCA 451 (20 July 2022) TanzLII, to mention but a few. In Shabani Amiri (supra), for instance, we were confronted with an akin situation and, relying on the decision of the erstwhile Court of Appeal for East Africa in D. R. Pandya v. Republic [1957] E.A, 336, we observed: " This appeal presents us with one o f those very rare cases in which this Court, on a second appeal, has to step into the shoes o f the High Court and make a proper evaluation o f the entire evidence in order to satisfy itself on whether or not the conviction o f the appellant was justified or right That this is permissible was clearly spelt out in the case o f D. R. PANDYA v. R [1957] E.A. 336 (Court o fAppeal). It was held therein that on a first appeal the evidence must be treated as a whole to a fresh and exhaustive scrutiny, (which was not done here) and that failure to do that is an error o f law, which can be remedied on a second appeal. That has been the stance o f the law since then." Likewise, in Allen Francis (supra) we observed: "... we wish to reiterate that it is the duty o f the trial court to subject the entire evidence on record to 15 scrutiny, which entails considering the defence evidence before making any finding o fguilty. Where the trial court fails to do so, the first appellate court is enjoined to do so in its role to re-evaluate the whole evidence on record with a view to making its own findings o f fact either concurring with the trial court or otherwise where both courts below fail to do so, the Court has power to step into the shoes o f the first appellate court and do what that court omitted to do. See for instance; Director o f Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 o f 2015 (unreported) cited recently in the Court's recent unreported decision in Yustus Aidan v. Republic, CriminalAppeal No, 454 o f 2019." On the authority of the above decisions of the Court, we shall do what the first appellate court did not do by treating the evidence as a whole and subjecting it to a fresh and exhaustive scrutiny and come to our own conclusion. We shall do so in respect of each count on which the respondents were convicted. In so doing we shall inevitably repeat reference to those counts and the sentence in respect of each. 16 We wish to state at this juncture that at the hearing of the appeal, the appellants argued the appeal in respect of each count on which the respondents were convicted and subsequently acquitted on first appeal. It was Mr. Kimweri who argued in respect of counts three, four and five. Mr. Iboru argued in support of the findings on counts one, two and seven. Mr. Mwakolo responded all the grounds generally, to our minds, rightly so. We highly appreciate the invaluable submissions of the learned counsel for both parties. We shall be referring to them in the course of our determination of the corresponding counts on which the respondents were convicted. Like the trial court, we shall determine the first count last. The second count for the offence of forgery contrary to sections 333, 335 (a) and 337 of the Penal Code was in respect of the first respondent only and, after the trial, he was convicted and sentenced to five years' imprisonment. The particulars of the offence thereof were that the first respondent with an intent to deceive, forged an authorization letter purporting to show that Gango Trading Limited of Lusaka in Zambia had authorized Reindeer Investment Limited to clear good imported by that company, the fact which he knew was false. In finding and holding that this 17 count was proved beyond reasonable doubt, the trial court relied on the testimonies of SP Chacha (PW4), Charles Edward Mpondela (PW6), Adam Mhagama (PW8), Benjamin Kuzaga (PW9), Oddo Mbamba (PW13) and that of Benjamin Buchafwe (PW14) as against of those of the respondents and was satisfied that Gango Trading Limited was a fictitious company created by the first respondent in order to use it to import uncustomed goods. At the end of its deliberations on this count, the trial court was satisfied that this count was proved satisfactorily. It is in the evidence of the above witnesses that the first respondent was summoned to the scene of crime where the consignment of fish was being offloaded and he told PW4 that someone, the owner of the goods being offloaded, was offsetting his debt. After his office was searched, the documents were found which showed that the consignment was destined for a neighbouring country under the pretext that the same belonged to a Zambian company going by the name of Gango Trading Limited of Lusaka which was nonexistent. As such all the declarations made to the Government on the consignment were found to be false and therefore forged. The first respondent's defence did not punch any hole in the prosecution's case against this count. We are satisfied that the trial court arrived at a proper verdict on this count. 18 The third count, also in respect of the first respondent only, for the offence of making a false declaration contrary to section 203 (b) of the East African Community Customs Management Act, 2004 was also found to have been proved. The particulars of the offence were that the first respondent made a false declaration that the goods; that is, 27,560 kilograms of frozen tilapia were in transit to Lusaka, Zambia imported by Gango Trading Limited while in fact that was not true. We have stated when resolving the second issue that the consignment was offloaded at Mbeya. PW6, a person who worked with the customs office at Mbeya, testified that the consignment was declared as one on transit to Lusaka Zambia but the same was offloaded at Mbeya. That, he testified, amounted to a false declaration and offended the provisions of the East African Customs Management Act, 2004. In deciding that this count was proved, the trial court relied on section 203 (b) of the East African Customs Management Act, 2004 as well as the case of Mwita and Others v. Republic [1993] T.L.R. 119 to the effect that the first respondent's duty was not to prove his defence but to raise a reasonable doubt in the mind of the magistrate and no more. We agree on the finding of the learned trial Resident Magistrate on this count. We also, are of the view that the sentence imposed; a fine of USD 19 ten thousand only or imprisonment for three years in default was quite appropriate. The fourth count which was in respect of both respondents for the offence of removing customs seals contrary to section 195 of the East African Community Customs Management Act, 2004 was also found by the trial court to have been proved. The particulars of the offence were that the respondents willfully removed the seals from the container bearing No. CCCEU8160081 packed with 2,579 boxes of frozen tiiapia, without authority of an authorized customs officer. In proof of this count, the trial court relied on the evidence of Issa Selemani Simba (PW1), (PW4), (PW6), (PW13), (PW14), Karim Mussa Shemndolwa (PW16) and Stanslaus Aloyce Ngasoma (PW18). The totality of their testimony was that PW1 who was a tagging operator at Tunduma working with Secure Africa Asset Tracking Solutions (SAATS) was summoned by one Lugano Mwakapala who was the eighth accused at the trial and made him meet the first respondent at the scene of crime. He was asked to tamper with the tracking device by removing it which he did. He left with the device to Tunduma where he kept it, perhaps with a view to showing that the vehicle carrying the consignment had reached its destination. His testimony was supported by the other witnesses mentioned above in one way or the other. The trial court was aware that PW1 was an accomplice and therefore his evidence needed corroboration to have it relied upon. The trial court was satisfied, and rightly so to our mind, that the evidence of PW1 was corroborated by other witnesses mentioned above especially PW18, a customs expert who testified that every on-transit vehicle must be affixed with a customs tracking seal and a device for safety and protection of the cargo in accordance with the East African Customs Management Act, 2004. We are satisfied that the trial court correctly evaluated the evidence in support of this count and arrived at the correct conclusion that the count was sufficiently proved. The sentence of fine of USD Two thousand five hundred only or imprisonment for three years each in default was quite appropriate. The fifth count for unlawful possession of uncustomed goods contrary to section 200 (d) (iii) of the East African Community Customs Management Act, 2004 for both respondents was also, in our view, sufficiently proved beyond reasonable doubt. Determination of this count will not detain us. We have already stated above that the consignment of fish was offloaded at 21 Mbeya while in fact it was purportedly destined for Lusaka Zambia. The sentence of a fine of Tshs. 3,632,553/50 or a custodial sentence of three years each in default was also appropriate. The seventh count for the offence of occasioning loss to a specified authority contrary to the provisions of the Economic and Organized Crime Control Act in respect of both respondents was found by the trial court to have been sufficiently proved and to our mind rightly so. We are of such opinion because with all the preceding counts being proved against the respondents and it is not disputed that the cargo did not reach the officially intended destination. Equally, the import duty assessed at Tshs. 14,530,214/= was not paid to Tanzania Revenue Authority. The trial court discussed this count at length in terms of the East African Community Customs Management Act, 2004 and concluded that the count was proved. We find nowhere to fault that finding. The sentence of fifteen years each in prison was also apposite in our considered view. We now turn to determine the first count. The respondents were convicted on the first count of the offence of leading organized crime contrary to sections 57 (1) and 60 (2) & (3) (a) read together with paragraph 22 4 (1) (a) of the Economic and Organized Crime Control Act and sentenced to fifteen years' imprisonment each. The particulars of the offence on this count were that the respondents, together with others, willfully organized a criminal racket by importing from China frozen tilapia valued at Tshs. 206,320,000/= without paying import duties. The determination of this count, like the trial court, will not detain us. Having so found in respect of the second, third, fourth, fifth and seventh counts, that they were proved beyond reasonable doubt, it follows that the first count was also proved to the required standard. In the light of the foregoing discussion, we are of the considered view that had the first appellate court not abdicated its duty as a first appellate court to subject the entire evidence to that scrutiny and arrive at its own conclusion, it would not have faulted the findings of the trial court. We, like the trial court, are satisfied that the case against the respondents in respect of the first, second, third, fourth, fifth and seventh counts was proved to the hilt. The first appellate court therefore erred in allowing the appeal by the appellants. We are constrained to interfere with the findings of the appellate court and reverse its decision. 23 For the reasons we have assigned, we find merit in this appeal by the Director of Public Prosecutions and allow it. As a result, we quash the decision of the High Court on first appeal and set aside the flanking orders made. We restore the decision of the trial court and order that the respondents be arrested to pay the fines and/or serve the custodial sentences as ordered by the trial court. For the avoidance of doubt, the custodial sentences shall run concurrently as ordered by the trial court. Order Accordingly. DATED at DAR ES SALAAM this 25th day of July, 2023. J. C. M. MWAMBEGELE JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 24th day of August, 2023 in the presence of Mr. Dominic Mushi, learned State Attorney for the Appellant, Mr. Simon Mwakolo, learned counsel for the 1s t respondent vide video link from High Court Mbeya and in the absence of the 2n drespondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL