Omary Lugiko Ndaki @ Nela vs Republic (Criminal Appeal No. 554 of 2015) [2018] TZCA 666 (27 September 2018)

.... ,i ., \ f" ~ L- Ll_, IN THE COURT 0~ APPEAL OF TANZANIA ATMWANZA (CORAM:MWARIJA, J.A MUGASHA, J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 554 OF 2015 OMARY LUGIKO NDAKI @ NELA .............................................. APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Matupa, J. ) Dated 2 nd day of November, 2015 In HC Criminal Appeal No. 70 of 2015 JUDGMENT OF THE COURT 25 th & 28 th September, 2018. MUGASHA, J.A:. In the District Court of Nyamagana at Mwanza, the appellant was arraigned and convicted for armed robbery, contrary to section 287A of the Penal Code Cap 16 R.E. 2002. Upon conviction he was sentenced to a term of thirty years imprisonment with corporal punishment of twelve strokes of the cane. 1 The appellant unsuccessfully appealed to the High Court where his appeal was dismissed in its entirety. Still dissatisfied, he has appealed to the Court raising six point grievance. To have a better appreciation of what led to apprehension, arraignment and ultimate conviction of the appellant, it is crucial to give a factual background. From a total of three prosecution witnesses and two several material exhibits, the prosecution case was to the following effect: On 9 th April, 2014 at 10:30 am at Igogo area within Nyamagana District, the appellant stole a handbag in which were several items namely:- a diary, a mobile phone, loan forms belonging to Merciana Silas (PWl) who was employed as a loans officer at Brae Tanzania Micro Finance Limited (BRAC). It is noteworthy that, the loan forms were not among the stolen properties itemized on the charge sheet. To fortify the prosecution account, PWl told the trial court that on the fateful day, she had gone to Igogo Tanesco to collect the proceeds of loan repayment from a group of women. Suddenly,. one person threatened her with a knife, snatched her bag and ran away. PWl raised 2 alarm but by then she had lost track of the assailant who ventured into another street. As such, PWl had to seek assistance of other people to show her where the assailant headed to. Among them was PW3 who accompanied her to trace the culprit but they found the appellant already arrested by the group of other people after he was found hiding in the maize farm in another street. He was taken to the street Chairperson and later to the Police with the stolen items. Amandus Richard (PW3) was among those who responded to the alarm raised by PWl. He told the trial court to have met PWl complaining that her bag was snatched by a thief who had run to the maize field. According to PW3, in pursuit of the culprit together with PWl, they found the appellant already arrested by other people. Meanwhile, PW2 F 5219 DC Mohamed who was the investigation officer recounted that, the appellant alongside the stolen items were handed over to him by those who arrested the appellant. Thereafter, as PWl together with PW3 were already at the Police, PW3 showed the stolen items to the complainant, she identified them and PW3 proceeded to prepare a Certificate of Seizure listing therein the handbag, mobile 3 Samsung, loan forms and knife which was alleged to have been used by the appellant to threaten PWl at the robbery incident. In his affirmed reply to charges against him, the appellant claimed to have been arrested by the militia on 8/4/2014 at 23:45 on his way back from white bar where he had gone for a drink. He was searched and his cash money Tshs. 165,000/= was taken. As he persistently demanded the money he was taken to the police, locked up, and on 16/4/2014 charged with armed robbery. He claimed to have been beaten and forced to sign some documents while in police custody. He as well challenged the prosecution account on failure to parade the street chairperson to whom the appellant was initially taken following his apprehension. The learned trial Magistrate was impressed by the version told by the prosecution witnesses and accordingly convicted the appellant. In upholding convicted the appellant's conviction, the first appellate judge reasoned as follows: One, description of the appellant by the complainant assisted pursuers to identify and arrest him which is the critical part of the 4 identification. Two, After the description of the appellant, PW2 Amandus Richard gave an independent account of what happened having joined the chase and showed the direction where the appellant was hiding thereby being arrested carrying the handbag. Three, the said account enabled the appellant to be arrested almost on the spot which facilitated his apprehension in possession of the stolen items which was corroborative of the identification. Four, the appellant's signing of the certificate of seizure was proof that he was found in possession of the items stolen from PW1. Five, the doctrine of recent possession was properly invoked since the complainant adequately identified in the stolen bag. Her evidence was thus found credible. As earlier pointed out, the appellant is aggrieved upon a memorandum of appeal which may be conveniently condensed under one main heading namely: whether the prosecution did prove the charge beyond reasonable doubt. As will come into picture in due discussion in our judgment, the area of contention basically boils down and evolved on the issue as to 5 whether or not the arrest of the appellant and the certificate of seizure linked him with the alleged offence of armed robbery. At the hearing, the appellant fended for himself, unrepresented. The respondent Republic was represented by Ms. Ajuaye Bilishanga, learned Senior State Attorney. The appellant fully adopted the memorandum of appeal and opted to initially hear the submission of the learned Senior State Attorney. On her part, Ms. Bilishanga did not support the appeal. She submitted that, the prosecution proved the charge against the appellant. She pointed out that, as it is not in dispute that the robbery was committed in broad day light, the arrest of the appellant was made possible because he was properly identified by the complainant and was found in possession of items stolen from her. Ms. Bilishanga argued that, the evidence of PWl was supported by PW2 who recounted that, the complainant described and managed to identify and establish ownership of what was stolen from her by the appellant. She added that, it was rather strange for the appellant being a man to be found with a woman's 6 handbag which was further proof of being found in possession of the properties stolen from the complainant. When probed by the Court as to whether or not those who arrested the appellant were paraded as prosecution witnesses, she declined. However, she unyieldingly submitted that, the complainant together with PW3, though not involved in the arrest of the appellant, walked behind the arresting group up to when the appellant was taken to the Police Station. She added that, in the wake of credible account of PWl on the occurrenc~ of the entire incident together with the certificate of seizure which was signed by among others, the complainant and appellant, the prosecution managed to establish that, the appellant was found in possession of the stolen items from PWl. Ms. Bilishanga thus urged us to uphold the findings of the two courts below and proceed to dismiss the appeal. In a brief rejoinder, the appellant urged us to find the prosecution case not proved beyond reasonable doubt. He thus urged us to allow the appeal. 7 After a careful consideration of the record and submissions made by the parties, we are alive to the settled principle of law that, where courts below make concurrent findings of fact, a second appellate court should not interfere unless the findings of the courts below are based on misapprehension of the evidence leading to erroneous conclusions of fact resulting into miscarriage of justice. Where there is any misapprehension of the evidence leading to wrong conclusions, the Court is entitled to interfere, re-assess the evidence and arrive at its own conclusions as deemed appropriate. (See THE DIRECTOR OF PUBLIC PROSECUTIONS VS JAFARI MFAUME KAWAWA [1981] TLR 149). From the outset, we wish to state that, there was a misapprehension of the evidence by the two courts below in the manner in which the evidence was assessed to link the appellant with the alleged robbery which indeed, led to wrong conclusions resulting into miscarriage of justice as we shall demonstrate in due course. we· wish to begin with the manner in which the appellant was arrested so as to ascertain if it links him with the occurrence of the alleged offence of armed Robbery. From the evidence of PWl, it is clear 8 that she was in disarray after the bandit threatened her with the knife and snatched her bag as she lost track of the assailant. Thereafter, PW3 was among those who came to her assistance, they tracked the assailant they found the appellant already arrested by a group of people in a different street, taken to the street chairman and later to the police. It is not in dispute that, PW1 and PW3 followed the arresting group up to the police. However the courts below did not consider that PW1 and PW3 were not in hot pursuit of the appellant and the circumstances show that, PW1 had lost sight of the appellant who was arrested in yet another street by a group of people. As such, with respect, it is not true that the appellant was arrested on the spot as found by the two courts below. As already indicated, this is cemented by the evidence of PW1 who testified that she relied on other people to show her where the assailant headed to after the attack. Given the circumstances of this case where those who are linked with the arresting the appellant and recovery of the stolen items were not paraded as witnesses, the case against the appellant remained disproved. 9 We say so because those who arrested the appellant constituted material witnesses who would have shed light to the trial court as to where was the appellant arrested and whether or not he was found in possession of the stolen items. Those witnesses may include those listed by the prosecution at the preliminary hearing including Vicent Mathias, Masoud Haruna and Juma Athumani. However, no reason was availed by the prosecution as to why any of the persons from the arresting group was not summoned to testify which is a serious prosecution flaw. The omission entitles us to draw an adverse inference against the prosecution · case. Failure to parade them entitles the Court to draw adverse inference to the effect that if summoned they might have testified against the Prosecution. (See AZIZ ABDALLA VS REPUBLIC [1991] T.L.R 71.). Furthermore, Ms. Bilishanga urged us not to disturb the findings of the courts below which positively concluded that, the appellant was found in possession of the stolen items. We understood Ms. Bilishanga to be pressing us to believe that, the doctrine of recent possession was properly invoked by the two courts below. To buttress her contention she unyieldingly argued that, the handbag along with properties found 10 therein were the very ones stolen from PW1 which is supported by the Certificate of Seizure (Exhibit) containing a list of stolen properties and signed by PW1 and PW3. The learned Senior State Attorney added that PW1 was found by the courts below to be a credible witness. With respect we found that the Certificate of Seizure is not credible because, One, there is no evidence that the appellant was searched and found with items listed in the certificate of seizure. Two, the evidence of PW2 at page 7 of the record of appeal shows that, the certificate of seizure was prepared at the police station after the stolen items were handed over by the arresting group to PW2. In this regard, irrespective of signatures appended thereto, since no search was conducted, the certificate of seizure is indeed tainted and rendered worthless. On the same account, the evidence of both PW1 and PW2 is as well not creditworthy. In the circumstances, it was misdirection by the courts _ below to conclude that, the mere signing of certificate of seizure by the appellant in respect of a search that never transpired, did prove that he was found in possession of the stolen items. We wish to add that since there was no prior search, the purported certificate of seizure was contrary to the dictates of section 38 of the Criminal Procedure Act Cap 11 20 RE: 2002 (the CPA). In other words, the said Certificate was inconsequential. We have also gathered that, apart from a general description given by PWl that the stolen items included a hand bag, a mobile Samsung, a blue diary and loan forms, she fell short of giving ·a detailed description by giving special marks of those items. Besides, the record is glaring that, she was shown the items before identifying the same which was irregular. It is settled law that, description of specific mark to any property alleged to be stolen should always be given first by the alleged owner before being shown and allowed to tender them as exhibits. (See BUNDALA S/0 MAHONA VS REPUBLIC, Criminal Appeal No 224 of 2013. MUSTAPHA DARAJANI vs REPUBLIC, Criminal Appeal No 242 of 2005 and GODFREY LUCAS vs REPUBLIC, Criminal Appeal No. 151 of 2014 (all unreported). PWl did not show any receipt with the serial numbers that could have been matched with the serial numbers of the phone and she did not even mention what her mobile number was. The allegation for one 12 that, the loan form from BRAC was in the handbag is not of any material significance since it was not constituted as a subject of the charge. From the circumstances of the matter under scrutiny, we are satisfied that the doctrine of recent possession was not properly invoked since conditions warranting the invocation of the doctrine of recent possession as restated in the case of MWITA WAMBURA vs THE REPUBLIC, Criminal Appeal No. 56 of 1992 (unreported), include: ''(1) the stolen property must be found with the suspect; (2) the stolen property must be positively identified to be that of complainant. (3) the property must be recently stolen from the complainant and (4) the property must constitute the subject of the charge." Thus, the presumption of guilt can only arise where there is cogent proof that, the alleged stolen property which was possessed by the accused is the very one that was stolen during the commission of the 13 offence charged. The entire evidence paraded by the prosecution fell short of making any positive proof. All said and done, we are satisfied that, the evidence in support of the prosecution left too many loose ends untied and subsequently, the charge against the appellant was not proved beyond reasonable doubt. We therefore allow the appeal and accordingly set aside the conviction and the sentence. We order his immediate release from prison unless he is held for some other lawful cause DATED at MWANZA this 27 th day of September, 2018. A. G. MWARIJA JUSTICE OF APPEAL S. E. A. MUGASHA - JUSITCE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~J S. J. KAINOA ~ ~ DEPUTY REGISTRAR COURT OF APPEAL 14