Metusela Musa vs Republic (Criminal Appeal No. 214 of 2021) [2024] TZCA 980 (25 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: LEVIRA, J.A.. MAIGE. J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 214 OF 2021 METUSELA MUSA...............................................................................APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Utamwa. Dated the 15th day of February, 2021 in Criminal Appeal No. 47 of 2020 JUDGMENT OF THE COURT 21st & 29* October, 2024 LEVIRA. 3.A.: The appellant, Metusela Musa was aggrieved by the decision of the High Court of Tanzania at Mbeya in Criminal Appeal No. 47 of 2020 which upheld the decision of the Resident Magistrate Court of Mbeya at Mbeya (the trial court) in Criminal Case No. 51 of 2018. Before the trial court, the appellant was charged with and convicted of the offence of transporting illegal immigrant contrary to section 46 (1) (c) of the Immigration Act, Cap 54 (the IA). Subsequently, he was sentenced to pay a fine of TZS 20,000,000.00 or serve 20 years in prison, in default. i

It was alleged in the particulars of the offence that, on 18th December, 2017 at Lupatingatinga village along Lupa - Isangawane road, the appellant was found transporting six (6) Ethiopians who were illegally present in the United Republic of Tanzania by using a motor vehicle make Toyota with Registration Number T 824 DDB. The appellant denied the charge, hence a full trial. In a bid to prove the charge against the appellant, the prosecution called two witnesses and tendered one exhibit (the vehicle under consideration). H 838 PC Emmanuel was the first prosecution witness (PW1). He was a Traffic Police working at Lupatingatinga. According to him, on 18th December, 2017, he was at work place with his fellow police officer, G7707 PC Juma, at the junction to Luwalali village at the road from Tabora to Mbeya. He saw a vehicle, Toyota with Registration Number T 824 DDB arriving from Tabora direction and he stopped it. The appellant came out from the passengers' seat and approached PW1 with a high speed and attempted to give him TZS 10,000.00, but PW1 refused. Shortly thereafter, the driver of that vehicle also came out with TZS 10,000.00 trying to give him that money, in vain. PW1 demanded driving licence and motor vehicle registration card from the driver. He did not have a driving licence but motor vehicle registration card. PW1 ordered the driver 2

to open the doors of the vehicle because they were locked. The driver moved towards the vehicle and in the course, the appellant held PW1 on the neck, an act which enabled the driver to run away. PC Juma assisted PW1 to hand cuff the appellant. Thereafter, PW1 called the OCS, Inspector Jumanne Mwangi (PW2) and informed him about what had happened. The appellant was taken to the police. PW1 and PC Juma traced that vehicle and found it abandoned near a certain car wash, steering locked and the driver left with the ignition key. However, inside the vehicle there were six passengers. Upon interrogation, one of them who was speaking English said that, they were Ethiopians. PW1 and his fellow hand cuffed them and took them to the police. In his evidence, PW2 confirmed that he received the information from PW1 about the incident. They tried together with other people to rush to the high way so as to block that vehicle but it did not pass where they set a barrier. He as well saw the abandoned vehicle with six Ethiopians. The appellant fended his case explaining that on the material day, he was just a passenger in the said vehicle having paid TZS 20,000.00 to the driver as his fare to Mbeya. However, when they reached at Lupa, they were stopped by the police officer (PW1) who wanted to inspect the 3

vehicle, but the driver managed to escape. The appellant was arrested, charged, convicted and sentenced as intimated above. His first appeal to the High Court was not successful; hence, this second appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented whereas, the respondent, Republic had the services of Mr. Yusuph Aboud, learned Senior State Attorney assisted by Mr. Lordgud Eliamani, learned State Attorney. Initially, the appellant had filed in Court a memorandum of appeal comprising seven grounds. However, before hearing of the appeal could take place in earnest, he prayed and was granted leave to argue additional six grounds of appeal. The appellant's grounds of appeal fall under one main complaint that, the case against him was not proved beyond reasonable doubt. Upon taking the floor, the appellant adopted the grounds of appeal as part of his oral submission before the Court with no more, as he reserved his right to make a rejoinder. Initially, Mr. Eliamani opposed the appeal while replying to the appellant's complaints, insisting that the prosecution proved its case beyond reasonable doubt against the appellant. Nonetheless, in the course of submitting and upon reflection, he realised some evidential gaps on the part of prosecution case, hence supported the appeal.

Submitting in support of the appeal, Mr. Eiiamani stated that the case at hand was poorly investigated and prosecuted to the extent that, the prosecution failed to prove the case against the appellant beyond reasonable doubt. He stated further that the appellant was charged with transporting illegal immigrants, but the prosecution failed to establish who was the owner of the vehicle allegedly used to transport them. According to him, the owner would have helped to trace the driver of that vehicle. Besides, he submitted, the prosecution failed to call a material witness, that is, PC Juma who allegedly was with PW1 during arrest of the appellant. According to him, such witness could corroborate PWl's evidence particularly, in respect of the appellant's conduct at the scene of crime where it was said that, he tried to bribe PW1 and held PW l's neck to enable the driver to drive away with the illegal immigrants and he succeeded. As such, he said, since PC Juma was at the scene of crime at the material time and was the one who arrested and handcuffed the appellant as per the evidence of PW1, he was a material witness. As such, the prosecution ought to have called him as a witness. Failure to call him, he said, created evidential gap which rendered the prosecution case unproven to the required standard.

In addition, Mr. Eliamani stated that the illegal immigrants who were arrested with the appellant were charged and confessed to be so, but they were not interrogated as to whether it was the appellant who was transporting them. This was another weakness on the part of prosecution case, he added. Basing on his submission, Mr. Eliamani urged us to make a finding that the case against the appellant was not proved beyond reasonable doubt and set him free. The appellant had no rejoinder to make except to request the Court to set him free. Having considered the appellant's grounds of appeal in both, the memorandum and supplementary memorandum of appeal, parties' submissions and the entire record of appeal, the main issue calling for our determination is whether the charge against the appellant was proved beyond reasonable doubt. In answering this issue, we find it pertinent to reproduce the provision of section 46 (1) (C) of the IA under which the appellant was charged. It reads: "46 (1) A person who- (a) ...... (b) ....... 6

(c) Transports illegal immigrants; commits an offence and on conviction, is liable to a fine o f not less than twenty million shillings or imprisonment for a term o f twenty years". According to the above provision, for a person to be liable for transporting illegal immigrants, it has to be proved that a person, he or she was transporting is in the country in violation of immigration laws or remain in a country unlawfully. In the case of Christopher Steven Kikwa v. the Republic [2022] TZCA 57 [24 February 2022; TANZLII], the Court made an observation regarding the expression 'illegal immigrants' to the following effect: "It is noteworthy that the Act does not define the expression Illegal immigrant" for the purpose o f section 46 o f the Act. However, we think the said phrase must be construed to mean an alien immigrant who has violated any o f the conditions o f entry or residence in the United Republic specified by Part V o f the Act, o f which section 28 (1) o f the Act prohibits entry without passport, permit or pass". In the light of the above observation, it is upon the one who alleges to prove that a certain person is an illegal immigrant. In the present case,

the issue as to whether the people who were found in the vehicle in which the appellant came out when it was stopped by PW1, should not detain us much. It is on record that those people were Ethiopians and upon being charged, they confessed that they were indeed illegal immigrants as they were in the country in violation of the immigration law. That being the case, the next question is whether the appellant was connected in any way with those people (illegal immigrants). The answer to this question is twofold; it could come from the prosecution who alleged that the appellant was transporting illegal immigrants or direct from the said illegal immigrants upon being inquired by the prosecution. Although in the present case the prosecution claimed that the appellant was transporting the said illegal immigrants, it failed to establish any connection between the appellant and those people. The evidence of PW1 revealed that the appellant was not the one driving the vehicle in question at the material time. There was a driver who escaped from the scene of crime after being stopped by PW1. The said vehicle was later found abandoned on the road and the illegal immigrants were in it. Those people were charged and confessed to be in the country in violation of the immigration law as earlier on indicated. However, the record is silent as to whether they were interrogated by the prosecution to establish their 8

relationship or connection with the appellant whom they were together in that vehicle. The only version regarding the presence of the appellant in that vehicle, came from the appellant himself when testified in his defence that, he was a passenger in that vehicle having paid a fare of TZS. 20,000.00 to the driver. We as well note from the record of appeal that, the appellant was not cross examined regarding his connection or relationship with the people whom he found in the vehicle. We further observe that the appellant was held responsible for transporting illegal immigrants basing on what the courts bellow referred to as his conduct as per PW l's evidence. We have screened the said evidence and discovered that, although PW1 claimed that the appellant attempted to bribe him and eventually, held his neck in the presence of PC Juma, an act which facilitated the driver to escape, the said evidence was not substantiated by PC Juma. In other words, PC Juma was a material witness in the circumstances of this case. This is due to the reason that, the conviction of the appellant in relation to the offence with which he was charged was based on the allegation of his conduct at the scene of crime. At page 52 of the record of appeal, the first appellate Judge had this to say: 9

"In my view, in the matter at hand, the prosecution evidence shows that, the appellant tried to bribe the PW1 so that he could not check the motor vehicle and discover the illegal immigrants therein. Upon his resistance, he decided to assault him by holding his neck so that the driver could drive away to hide evidence. It is thus, inferred from such conduct o f the appellant and the circumstances o f the case that, he was privy to the transaction o f transporting the illegal immigrants with the driver o f the motor vehicle. He was thus, striving to ensure that the PW1 could not intercept their mission". With respect, we think, the testimony of PW1 needed corroboration from PC Juma who was at the scene of crime at all the time and who allegedly rescued PW1 from the hands of the appellant before the above serious inference could be drawn against the appellant. We agree with the learned State Attorney that, the evidence of PC Juma and the illegal immigrants was very crucial in explaining the connection or involvement of the appellant in the commission of the offence with which he was charged.Having considered the circumstances of the present case, we are settled in our mind that, the omission to call them without assigning reason(s) raises doubts on the prosecution case. We say this being fully 10

aware of the established principle under section 143 of the Evidence Act, Cap. 6 and court precedents that, it is upon the prosecution to decide whom to call in the proof of their case - see: Dickson Chilongola v. Republic, Criminal Appeal No. 347 of 2009 (unreported). In addition, we find it apposite to comment, just as the learned State Attorney, that this case was poorly investigated. According to the record, PW2 was the investigator of the case but he did not take any initiative to at least find who was the owner of the vehicle found abandoned with illegal immigrants in it. He only narrated sequence of events from the moment he was informed about the incident by PC Juma to the time of charging the said illegal immigrants. Tracing of the owner of the vehicle would have assisted to know who was the driver and whether the appellant was connected in any way with the transportation of the illegal immigrants. Such link is missing in this case. Therefore, it is unsafe to hold the appellant liable for transporting illegal immigrants while the evidence on the record does not link him either with the vehicle or the illegal immigrants. It follows therefore that, since the witnesses who were in better position to explain some of the missing links in the prosecution evidence were not called without any sufficient reason being shown, adverse inference is drawn on the prosecution. See: Katona Rashid @ li

Mitano v. Republic, Criminal Appeal No. 487 of 2016 [019] TZCA 100 [15 May 2019, TANZLII]. Basing on our discussion above, we find and hold that, the prosecution failed to prove the case against the appellant beyond reasonable doubt. We therefore, allow the appeal, quash conviction and set aside the appellant's sentence. We order immediate release of the appellant from prison unless held for other lawful cause. DATED at MBEYA this 24th d a v of October, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 25th day of October, 2024 in the presence of the appellant in person/unrepresented and Mr. Albert Kikuli, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. E. G. MRANGU 1IOR DEPUTY REGISTRAR ^COURT OF APPEAL 12