Barnabas William Mathayo vs Republic (Criminal Appeal No. 254 of 2020) [2022] TZCA 431 (15 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KWARIKO, J.A.. LEVIRA, 3. A. And MWAMPASHI. J.A.^ CRIMINAL APPEAL NO. 254B OF 2020 BARNABAS WILLIAM MATHAYO .............................................APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, Mwanza District Registry at Mwanza) (Rumanyika. 3A dated 25th day of June, 2020 in (DC) Criminal Appeal No. 57 of 2018 JUDGMENT OF THE COURT &h & 15* July, 2022 KWARIKO, J.A.: This appeal is against the decision of the High Court of Tanzania, Mwanza District Registry at Mwanza (the High Court) which dismissed the appellant's appeal. Formerly, the appellant (then first accused) and two others namely; Harison Richard (second accused) and Nyakubosa Mwita (third accused) who are not parties to this appeal, stood before the Court of Resident Magistrate of Mwanza at Mwanza charged with two counts, namely; conspiracy contrary to section 384 and receiving stolen property i

contrary to section 311 both of the Penal Code [CAP 16 R.E. 2002; now R.E. 2022]. It was alleged by the prosecution that in August, 2015 at Ilungwa area within Ukerewe District in Mwanza Region the three accused persons conspired to commit an offence of armed robbery. That, on 2n d August, 2015 at Kakukuru area within Ukerewe District in the Region of Mwanza, they received 84,000 litres of kerosene worth TZS 137,340,000.00 knowing or having reason to believe the same to have been stolen or unlawfully obtained. All the accused persons denied the charge. However, at the end of the trial, the third accused was acquitted of both two counts whilst the appellant and the second accused were acquitted in respect of the first count and convicted of the second count. They were sentenced to a conditional discharge of three months. The appellant was aggrieved by that decision, he thus unsuccessfully appealed before the High Court and hence the present appeal. The background of the case which led to this appeal can briefly be stated as follows: According to Elias Abala (PW1), a businessman in kerosene, on 29th July, 2015 he bought from Kenya 84,000 litres of kerosene worth TZS. 119, 784,000.00 and entrusted Acha Gerald (PW2)

and David Hinda (PW3) to transport the same to Mwanza in a boat driven by PW2. However, on 1s t August, 2015, while on that journey, the two were invaded by six bandits in a canoe who were armed with machete, they were beaten and their properties were stolen. Thereafter, they were kept hostage in the canoe and roamed in the lake for the whole day. The evidence of PW2 and PW3 differed in the sense that while PW3 testified that the boat was taken to Kakukuru and the fuel was offloaded at a certain petrol station, in his testimonial account, PW2 stated that they were returned into their boat and found one Rashid and Samwel who subsequently left them. However, having inspected the boat, they did not find the kerosene and therefore they informed PW1 about the theft. On his part, PW1 testified that he got information in respect of the said theft on 2n d August, 2015. Whilst on the way to the scene of crime, he met a motor vehicle with Reg. No. T846 BUZ with trailer No. T 207 BWE driven by the second accused and was told that they were carrying 36,000 litres of kerosene belonging to the appellant. Believing that the kerosene was part of his stolen kerosene, he reported the matter to the police and the said motor vehicle was taken to Ukerewe Police Station. Afterwards, together with the Office Commanding District (OCD), PW1 went to Kakukuru area and found the said boat with only 47, 000 litres of kerosene.

PWl's further testimony was that, the appellant admitted before the OCD that the kerosene did not belong to him. Thus, on 5t h August, 2015, the 36,000 litres of kerosene were handed over to PW1 and on 6th August, 2015 he traveled to Mwanza with the motor vehicle carrying the kerosene. Upon arriving at Kobil filling station they started exchanging the kerosene to other two vehicles. In the course of that process, the appellant appeared and stopped the exercise while threatening them with a pistol. Shortly thereafter, the police arrived and took the motor vehicle to Nyakato Police Station. On their part, S/Sgt Restituta Mapengo (PW4) and No. G 3582 Detective Constable Hijati (PW5) testified to the effect that while on patrol on 2n d August, 2015, they got a tip off that a certain motor vehicle was offloading fuel at a filling station in Kakukuru area. They decided to go and upon arrival at that area, they found the second and third accused persons who told them that the fuel was from Mwanza. Those police officers said that the fuel was being pumped from the boat into that motor vehicle through a pipe connected to it. They arrested the second and third accused persons and seized the motor vehicle and the boat. However, the OCD, SSP Ally Mohamed Mkalipa (PW6) on the other hand, said the motor vehicle was released.

In his defence, the appellant testified that he is a businessman with TIN Number 103-521-262 and business licence No. 00966002 which were admitted as exhibits DEI and DE2, respectively. He owns Musoma and Kakukuru filling stations in Musoma and Ukerewe, respectively. On 24th July, 2015 he purchased 36,000 litres of kerosene from East Africa Filling Company Limited (EAFCO) at TZS. 73, 800,000.00 vide tax invoice No. 796 (exhibit D4). His evidence was supported by one James Mhene (DW4), an accountant from EAFCO, that indeed he purchased kerosene from that company. The fuel was transported from Mwanza to Ukerewe in the motor vehicle with Reg. No. T 207 BWE driven by the second accused who was in the company of the third accused. However, the appellant was informed by his manager one Samwel Sabahi of Kakukuru filling station that there was leakage in the tank, hence, the said kerosene could not be stored. He thus decided to remit back the fuel to Mwanza. However, on its way, the motor vehicle was stopped and directed to go to Nansio Police Station. Afterwards, it was released following verification from the police and other authorities such as EWURA. The trial court found that the prosecution case was proved as required by the law and accordingly convicted both the appellant and the second accused and sentenced them as shown earlier. Dissatisfied with

that decision, the appellant preferred an appeal to the High Court but he was unsuccessful. Undaunted, he has come before the Court on second appeal armed with the following three grounds of appeal:

1. That, the learned Judge erred in shifting the burden o f proof on the appellant.
2. That, the learned appellate Judge was notjustified in affirming the judgment o f the lower court which was founded on weak and contradictory evidence.
3. That, since the prosecution did not prove its case against the appellant beyond reasonable doubts, the appellate Judge erred in dismissing the appellant's appeal against both conviction and sentence. When the appeal was called on for hearing before the Court, Mr. Antony Nasimire, learned advocate appeared for the appellant, whilst the respondent Republic had the services of Mr. Isihaka Ibrahim Mohamed, learned State Attorney. In his submission, Mr. Nasimire argued together the first and third grounds of appeal. He submitted that the learned Judge erred when he shifted the burden of proof to the appellant. He argued that, having recognized that it was the prosecution which was duty bound to prove the case as required in law, the learned Judge was not justified to find that the

appellant was supposed to prove that the fuel was really kerosene and was lawfully obtained. He argued further that the Judge erred to demand evidence from the seller of fuel while that fact had already been proved by DW4 who confirmed that his office sold the same to the appellant and issued the tax invoice to that effect. Mr. Nasimire contended that the appellant and his witnesses proved the purchase of fuel by the appellant, hence there was no need of corroboration as opined by the Judge. On the other hand, he contended that PW1 failed to prove that the fuel belonged to him as he had no documentary evidence to show that he bought the same from Kisumu. As such, he said, the allegation that the documents were stolen was not supported by any evidence as there was no any loss report tendered in court. In addition, the learned counsel argued in respect of the second ground that the charge was at variance with the evidence. He illustrated that, while the charge alleged that the appellant and others were found in possession of stolen property namely, 84,000 litres of kerosene, the prosecution evidence adduced showed that it was 36,000 litres of kerosene. On the strength of his submissions, Mr. Nasimire implored the 7

Court to allow the appeal and order the 36,000 litres of kerosene to be returned to the appellant. Upon being probed by the Court as to whether exhibits DEI, DE2, DE3 and DE4 were properly admitted in evidence, Mr. Nasimire responded that the record is silent as to whether they were read over in court after admission. He urged us to expunge them from the record for being illegally admitted. On his part, Mr. Mohamed intimated to us that he was supporting the appeal for reasons that the prosecution did not prove the charge beyond reasonable doubt as required under section 3 of the Evidence Act [CAP 6 R.E. 2022]. However, he opposed the appellant's prayer for return of 36,000 litres of kerosene to the appellant because the same was not tendered in court as an exhibit during the trial. He argued that, the trial court only ordered exhibit PEI, the motor vehicle, to be returned to its owner, the EAFCO. Responding to the Court's probing, the learned State Attorney submitted that, the learned Judge erred to order for forfeiture of 36,000 litres of fuel which was not tendered in evidence. He thus urged us to 8

invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019] (the AJA) to quash that order. In his rejoinder, Mr. Nasimire argued that the said motor vehicle was carrying the kerosene when the order to return it to the owner was made. Therefore, since the kerosene was not disposed of anyhow, it is believed that the same was in that motor vehicle when it was tendered in evidence. In the circumstances, the order of forfeiture was correct and as a result it is justified for it to be handed back to the appellant. According to him, apparently, the fuel was returned to the owner of exhibit PEI. We have considered the submissions by the learned counsel for the parties. The issue which beckons for our determination is whether the prosecution case was proved against the appellant as required in law. In our deliberation of this issue, we shall be guided by a settled principle of law that, in a second appeal like this one, the Court can only interfere with concurrent findings of facts by the two courts below where it is satisfied that there has been a misapprehension of the facts of the case. There are various decisions of the Court in relation to this principle including in Joseph Yombo @ Mahema v. R, Criminal Appeal No. 448 of 2016 (unreported) where it was stated thus:

"It is trite principle that where there are concurrent findings o f facts by two courts below, the appellate court cannot interfere with such findings, unless, there are sufficient grounds for doing so." [See also Faraji Ally Likenge v. R, Criminal Appeal No. 381 of 2016 and Karimu Jamary @ Kesi v. R, Criminal Appeal No. 412 of 2018 (both unreported)]. We propose to preface our discussion with the legal issue that we raised in the course of the hearing of the appeal concerning exhibits DEI, DE2, DE3 and DE4. These exhibits were admitted in evidence contrary to the law because they were not read over in court after being admitted in evidence. The learned counsel for the parties conceded to this anomaly and urged us to expunge them from the record. In many occasions, the Court has insisted that once an exhibit is cleared for admission in evidence, it is supposed to be read over in court for the parties to know its contents. One of such occasions is in the case of Robinson Mwanjisi v. R (supra), where the Court held inter alia thus: "Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be readout "(Emphasis supplied). 10

Other decisions which took similar stance include the cases of Emmanuel Konrad Yosipati v. R, Criminal Appeal No. 296 of 2017 and Edgar s/o Kayumba v. R, Criminal Appeal No. 498 of 2017 (both unreported). Therefore, failure to read over exhibits DEI, DE2, DE3 and DE4 was contrary to the law and thus lacked evidential value deserving to be expunged from the record, as we hereby do. Coming to the first and third grounds of appeal, with respect, we are unable to agree with Mr. Nasimire that the learned Judge shifted the burden of proof to the appellant. This is so because the appellant was duty bound to explain how he came in possession of stolen property as alleged in the charge. However, even though the appellant had that legal duty, the prosecution failed to establish that the kerosene was a stolen property. This is because, PW1 who purported that the property belonged to him, did not tender any evidence to show as to where and for how much he bought the said kerosene. Although he alleged to have bought the same from Kenya, he could neither tender any documentary evidence to prove his assertion nor any evidence that he was doing business connected with petroleum products. li

Moreover, PW2 and PW3 contradicted on their account of the alleged robbery of the kerosene. While PW2 said that upon being invaded, the bandits put them in their canoe and roamed around Lake Victoria the whole day and later returned to their boat, PW3 said they were taken in their boat to Kakukuru where kerosene was offloaded from the boat to the petrol station. This is material contradiction which goes to the root of the matter but was not addressed by the courts below. In the celebrated case of Mohamed Said Matula v. R [1995] T.L.R. 3, the Court considered contradictions and inconsistencies in the prosecution evidence and the duty of the court to address the same and it held thus: "Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resoive them where possibie; eise the court has to decide whether the inconsistencies and contradictions are oniy minor, or whether they go to the root o f the matter " -See also Emmanuel Kabelele v. R, Criminal Appeal No. 536 of 2017 (unreported). It is therefore our considered view that, had the courts below addressed this contradiction, they would have found that it went to the 12

root of the case thus creating some doubts to the prosecution case as to whether the incident happened as alleged. On the other hand, even with the expunction of exhibits DEI, DE2, DE3 and DE4 from the record, the remaining evidence by the appellant established that the said kerosene was his property having been purchased it from the office of EAFCO on 24th July, 2015. This evidence was supported by the officer of that company, DW4. We thus find that he managed to establish his claim and thus the first and third grounds of appeal are merited. In the second ground, we agree with the learned counsel for the parties that the particulars in the charge differed from the evidence which was led by the prosecution to support it. It was alleged in the particulars of the offence that the appellant and two others were found in possession of 84.000 litres believed to be stolen or unlawfully obtained property. Whereas, the evidence on record shows that the suspected property was 36.000 litres of kerosene. Unfortunately, in the course of the trial, the prosecution did not apply to amend the charge in order for it to tally with the evidence on record. Section 34 (1) of the CPA which relates to 13

amendment in case of variance between the charge and evidence, provides thus: " Where at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as to the court shall seemjust". Therefore, the evidence led by the prosecution did not support the allegation contained in the charge which was preferred against the appellant. This is not the first time that we are faced with this kind of scenario. In our previous decision in the case of Thabit Bakari v. R, Criminal Appeal No. 73 of 2019 (unreported), the Court observed thus: "It is well settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant This is because such anomaly leads to serious consequences to the prosecution case." 14

The Court took the same stance in the case of Japhet Anael Temba v. R, Criminal Appeal No. 78 of 2017 (unreported). As regards the prayer for the return of 36,000 litres of kerosene to the appellant, we are in agreement with the learned State Attorney that there is no base upon which the Court can issue such an order. The reason being that, the record does not show that the kerosene was admitted in evidence. What was admitted in evidence was the motor vehicle with Reg. No. T 846 BUZ and its trailer with Reg. No. T 207 BWE (exhibit PEI). The trial court ordered it to be remitted back to its owner, EAFCO. There was no mention of the 36,000 litres of kerosene. The court can only order a return of an item to a person who appears entitled to it where that item or property was tendered in evidence as an exhibit as provided under section 353 (3) of the CPA thus: "Notwithstanding the provisions o f subsection (1), the court may, if it is satisfied that it would be just and equitable so to do, order that anything tendered, or put in evidence in criminal proceedings before it should be returned at any stage o f the proceedings or at any time after the final disposal of such proceedings to the person who appears to be 15

entitled thereto, subject to such conditions as the court may see fit to impose." Further, since the record does not show that the 36,000 litres of kerosene was tendered as exhibit, the order issued by the High Court for its forfeiture to the Republic was misplaced. We therefore invoke our revisional powers under section 4 (2) of the AJA and quash that order. In fine, from what we have discussed herein above, it is clear that the prosecution case was not proved beyond reasonable doubt against the appellant. We therefore find the appeal meritorious and hereby allow it to the extent shown herein above. DATED at MWANZA this 15th day of July, 2022. M. A. KWARIKO JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL The judgment delivered this 15th day of July, 2022 in the presence of Mr. Antony Nasimire, learned counsel for the appellant and Mr. Morice Mtoi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.