Said Ramadhani Omari vs Republic (Criminal Appeal No. 347 of 2021) [2024] TZCA 798 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: LEVIRA. J.A., GALEBA, 3.A. And ISMAIL. 3.A.1 CRIMINAL APPEAL NO. 347 OF 2021 SAID RAMADHANI OMARI ........ ..... ...... ............. APPELLANT VERSUS THE REPUBLIC ............................. ........ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Mutunqi, J.) dated 27th day of May, 2021 in Criminal Appeal No. 65 of 2020 JUDGMENT OF THE COURT 1.6th & 22n d August, 2024 LEVIRA, 3.A.; In the District Court of Moshi at Moshi, the appellant, Said Ramadhani Omari was charged with the offence of transporting illegal immigrants contrary to section 46 (i) (g) of the Immigration Act, Cap 54 (the IA). The appellant was charged together with other six people who are not parties to this appeal. It was alleged that, on 27thAugust, 2018 at Njia Panda area within the District of Moshi in Kilimanjaro Region, the appellant was found transporting five Ethiopian illegal immigrants namely,

Geremy Arega Tirkaso, Muluken Sisay Abiye, Tsegaye Kutso Forsido, Teshale Teshome Tadesse and Teshome Erdole Mandalo. The appellant denied the charge and as a result, the case proceeded to a full trial. In proving the charge against the appellant, the prosecution relied on the evidence of seven witnesses and six exhibits. On the material day, D 6195 PC Mashaka (PW7) received information from the informer that there were illegal immigrants at Himo Njia Panda who were about to be transported. Having received that information, he informed his fellow police officers, G 4457 PC Julius Mwinyi (PW2) and G 8664 PC George (PW1). They all went to the scene of crime. According to PW7, when they arrived at the scene of crime, he saw the vehicle (with Registration No. T. 671 CPM, Fusso, Exhibit P2) parked empty. Fie decided to make a trap and at around 23.00 hours, they noticed some people coming from an alley going to the Fusso. Thus, PW7 and his colleagues went to the said vehicle and managed to surround them. They approached those two people and introduced themselves as police officers from Himo. Initially, those people did not respond but later told the police officers that the vehicle was loaded with crates of beer. They were arrested and the police officers entered the backside of the vehicle where they found crates of beer arranged in front and at the back. However, at the middle there was a space left open and five people suspected to be Somalians, were as

well, found therein. His evidence was corroborated by PW1 and PW2 save that, they gave a slightly varied account on what they saw at the scene of crime. PW2 testified that when they arrived at the scene of crime, they saw some people and immediately some of them ran away. The motor vehicle had some people who were arranging beer crates. They called Inspector Rogers Lucas and informed him that they had found the vehicle. He went to the scene and inspected the vehicle where five people, whom they suspected to be illegal immigrants, were found inside the vehicle hiding in the middle of the beer crates. Those people, the driver (the appellant) and another person were taken to the police station. In his evidence, PW1 testified that when they arrived at the scene of crime, they saw the vehicle parked and some people who were outside managed to run away; and others were inside trying to park/arrange the beer crates. PW1 and his fellow police officers managed to arrest the driver (the appellant) and his friend. Having arrested them, they were ordered by OCS to take the vehicle to Himo Police Station. While at Himo Police Station, the OCS ordered search to be conducted in the vehicle in which five illegal immigrants were found, at the back of the vehicle. At

the trial, the search warrant and certificate of seizure were admitted as exhibit PI. Other prosecution witnesses were STG Major Mallya (PW3), Immigration Officer who interrogated and recorded the cautioned statement of the fourth accused (Exhibit P3); Ally Mwalogo Khamis (PW4), Immigration Officer who interrogated and recorded cautioned statement of the sixth accused (Exhibit P4); Gopi. Vedastus Ngarile, also Immigration Officer who recorded the statement of the seventh accused (Exhibit P5) and G. 790 D/ Emanuel recorded the appellant's cautioned statement (Exhibit P6). In his defence, the appellant testified that he was a driver of the seized motor vehicle, the property of one Paulo Assenga. His main job was to transport beers from Moshi to Morogoro. On 27th August, 2018 he was arrested at Himo, Moshi, just before the weigh bridge at Himo while arranging beer crates in the vehicle together with one Athuman Rajabu (the first accused). He stated further that, in the process before his arrest, one 'dalalf' approached him and told him that he had some passengers who were going to Chalinze. Having looked at those people who were five in total, the appellant suspected that they were illegal immigrants. Therefore, he did not agree with 'dalali's request. In the course of arguing

as to whether to take them or not, before they knew it, police officers arrived and 'dalalf 'managed to escape. The appellant, first accused and those five people were arrested and taken to the police and later were arraigned as introduced above. The learned trial Magistrate, having weighed the evidence by both sides found that, there was sufficient evidence from the prosecution that the appellant transported illegal immigrants. Therefore, she dismissed the appellant's defence on account that, it was a general denial which did not raise any reasonable doubt against the prosecution case. She, thus, convicted and sentenced the appellant to pay a fine of TZS. 20,000,000.00, in default, to serve 20 years in jail. The appellant was aggrieved by the conviction and the sentence. Nonetheless, his first appeal to the High Court was not successful, hence the present second appeal. On 8th November, 2021, the appellant lodged a memorandum of appeal comprising nine ground and on 21s t August, 2023, a supplementary memorandum of appeal comprising six grounds of appeal was lodged in Court; making a total of 15 grounds of appeal. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas the respondent Republic had the services of Ms. Rose Sulle, learned Senior State Attorney assisted by Mr. Isack Mangunu,

learned State Attorney. The appellant adopted his grounds of appeal to form part of his submission before the Court and reserved his right of rejoinder after hearing from the respondent. In reply, Mr. Mangunu supported the appeal mainly in two grounds. First, that both courts below did not consider the appellant's defence as complained in the third ground of appeal, and second, that the charge against the appellant was not proved beyond reasonable doubt as claimed in the ninth ground of appeal in the substantive memorandum of appeal. We shall refer these two grounds as, the first and second complaints. Regarding the first complaint that the defence case was not considered by both courts below, Mr. Mangunu referred us to page 84 of the record of appeal where the learned trial magistrate made a finding that, the appellant's defence was a general denial. In that regard, he said, the finding made by the trial court was not proper because the appellant explained thoroughly what transpired on the material day and he did not deny to have been arrested while at the scene of crime. In the circumstances, he insisted, it cannot be said that he made a general denial entitling the court to reject his defence completely. According to Mr. Mangunu, the courts below ought to have analysed the appellants defence against the prosecution evidence to find out whether it raised any

reasonable doubt, but that was not the case. Therefore, he urged us to find that this ground of appeal has merit. We wish to state at the outset that, in determining this appeal, we shall be guided by the settled principle that, the second appellate court is not entitled to interfere with the concurrent findings of the two courts below, unless there are mis-directions or non-directions on evidence causing miscarriage of justice. See; Salum Mhando v. Republic [1993] T. L. R. 170. The question as to whether the courts below considered the appellant's defence should not detain us much. It is settled position that failure to consider defence is a fatal irregularity to the conviction. See: Oscar Justinian Burugu v. Republic, Criminal Appeal No. 33 of 2013 [2020] TZCA 1873 (25 November 2020, TANZLII) and Pascal Yoya @ Maganga v. Republic, Criminal Appeal No. 248 OF 2017 [2021] TZCA 36 (24 February 2021, TANZLII). We have scanned the record of appeal and we agree with the parties that, the trial and first appellate courts did not consider and evaluate the appellant's defence. On page 47 of the record of appeal, the appellant testified in his defence that, on the fateful day he was arrested at Hi mo, Moshi just before the weigh bridge while arranging crates of beer in the motor vehicle. Since the consignment of

the beer was very heavy, he decided to call dalali to find people to help him to rearrange the beer crates in the vehicle. After a while, one person called Athman Rajabu came to assist him and while they were in the process, the said dalali came and told the appellant that he had passengers who were going to Chalinze. Having set an eye on those five people, immediately, the appellant noticed that they were illegal immigrants. Therefore, he did not agree with daiili's request. However, while arguing as to whether he should take them or not, police officers arrived and dalali managed to escape. Hence, the appellant, Athman Rajabu and those five illegal immigrants were taken to the police station. The above appellant's defence was summarised on page 78 of the record of appeal, but the learned trial Magistrate did not evaluate it against prosecution evidence before making her finding. Instead, on page 84 of the record of appeal, she concluded as follows: "The 2n d accused [the appellant] was found transporting the illegal immigrants using the motor vehicle with Reg no. T. 671 CPM Fuso (Exh P2) .... I find the second accused's general denial has managed hot to raise a reasonable doubt". [Emphasis added].

The appellant was not satisfied with that finding and he thus raised a complaint in his first appeal. Nonetheless, the first appellate court fell into the same trap of not reevaluating the appellant's evidence adduced at the trial and make its own finding before concluding on page 159 of the record of appeal, that the defence evidence was properly analysed by the learned trial Magistrate. It is our observation that, had it been that the first appellate court considered the appellant's defence properly, it would have discovered that the appellant was not in any movement at the time of his arrest to constitute the offence he was charged with, which fact is next in our discussion. Having considered the circumstances, we are settled in our mind that the appellant's defence was not properly considered by the courts below. In fact, he was denied the right of fair trial before his conviction and this was a fatal irregularity. We find merit in the first ground of appeal and allow it. Mr. Mangunu supported the appellant's second complaint as well, confirming that, indeed, the charge against the appellant was not proved to the required standard. Expounding his assertion, he stated that there was a variance between the charge laid down against the appellant and the evidence adduced by the prosecution witnesses against the appellant. Besides, the prosecution did not apply to the court to amend the charge

under section 234 (1) of the Criminal Procedure Act, Cap 20 (the CPA) having noticed the said variance. Submitting on the said variances, Mr. Mangunu stated that, the appellant was charged with the offence of transportation of illegal immigrants contrary to section 46 (1) (g) of the IA, which deals with transportation of prohibited immigrants instead of paragraph (c) of the same provision. However, he said, the particulars of the offence in the charge indicated that the appellant transported illegal immigrants. He added that, the allegation that he was transporting illegal immigrants was as well not proved because the prosecution witnesses gave a varied account of what transpired on the material day. Yet, none of the said witnesses testified to have seen the appellant in movement taking those immigrants to anywhere. He referred us to page 26 of the record of appeal where PW1 testified that, when they arrived at the scene of crime, they saw a motor vehicle parked and the people inside were arranging beer crates. This evidence was corroborated by PW2 on page 31 of the record of appeal and PW7 on page 42 of the record of appeal who testified to the effect that, when they arrived at the scene of crime, they saw the vehicle was parked empty. 10

Finally, Mr. Mangunu urged us to allow the appeal on the basis that, the prosecution failed to prove the charge against the appellant beyond reasonable doubt and the appellant be given the benefit of doubt. Upon being invited to address the Court, the appellant had no rejoinder to make. We have carefully considered the submissions by the parties, grounds of appeal and the entire record of appeal, the main issue for our determination is, whether the charge against the appellant was proved beyond reasonable doubt. In answering this issue, we shall be guided by the principle of law under section 110 of the Evidence Act, Cap 6 which states: "110. -(1) Whoever desires any court to givejudgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact,, it is said that the burden of proof lies on that person." Being guided by the above principle, it is clear that, in the circumstances of the present case, it was upon the prosecution to prove beyond reasonable doubt that the appellant was caught transporting li

Illegal immigrants. Before we go any further, we wish to note that there was a variation between the statement of the offence and particulars of the offence. While the statement of offence referred to section 46 (1) (g) of the IA, which in essence deals with transportation of prohibited immigrants, particulars of the offence and the evidence led by the prosecution intended to show that he was actually, transporting illegal immigrants which falls under paragraph (c) of subsection (1) of section 46 of the same Act. For quick reference that section provides: "46 - (1) A person who- (a) smuggles immigrants; (b) hosts iiiegai immigrants; (c) transport illegal immigrants; (d) finances, organizes or aids the smuggling of immigrants; (e) facilitates in any way the smuggling o f immigrants into the United Republic or to a foreign country; (f) commits any fraudulent act or makes any false representation by conduct, statement or otherwise, for the purpose o f entering into, remaining in or departing from, or facilitating or assisting the entrance into, reside in or departing from the United Republic; or (g) transports any prohibited immigrants within the United Republic o f Tanzania. 12

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," We agree with Mr. Mangunu that, having seen that the particulars of the offence and the evidence gathered aimed at proving that the appellant was transporting illegal immigrants, the prosecution ought to have prayed under section 234 (1) of the CPA to amend the charge, which they did not. We are quite aware of the view we took in Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 [2019] TZCA 32 (28 February 2019, TANZLII); and Mohamed Juma Naniye v. Republic, Criminal Appeal No. 514 of 2020 [2023] TZCA 153 (29 March 2023, TANZLII), when the Court was dealing with situations almost similar to the present case. In the former case, we made a finding that, the particulars of the offence together with the evidence of the victim enabled the appellant to appreciate the seriousness of the offence facing him and eliminated all possible prejudices, hence curable under section 388 of the CPA. Nonetheless, having carefully considered the particulars of the offence and the prosecution evidence, we are firm that the circumstances In the present case are somehow different from the cited cases and thus, section 388 of the CPA cannot rescue the situation. We shall explain.

In the present case, although we agree that citation of paragraph (g) instead of (c) of subsection (1) of section 46 of the IA could be cured by section 388 of the CPA, we are unable to take that view in the circumstances of this case because, if the aim was to charge the appellant with transportation of illegal immigrants, the prosecution ought to have called at least one witness to testify that he / she saw the appellant in the movement carrying the said immigrants from one point to the other, for transportation according to the Blacks Law Dictionary (8th Edition 2004

• Bryan A. Garner) means: "The movement ofgoods or persons from one place to another." On the contrary, none of the prosecution witnesses who arrived at the scene of crime and finally arrested the appellant testified to that effect. According to the record of appeal, PW1, PW2 and PW7 were the arresting officers and their evidence was that, on 27th August, 2018 they got information from the informer that there was a motor vehicle which was going to carry illegal immigrants at Himo, Njia Panda. They went to the scene and found the vehicle was parked. We, however, notice a difference in their testimonies regarding other surrounding circumstances. On page 26 of the record of appeal, PW1 testified to the effect that: "We reached the area, Njia Panda near the old weigh bridge and we sa w the vehicle parked and some people 14

who were outside they managed to run away and others were inside trying to park / arrange the beer crates. We managed to arrest the driver and his friend; they were in the motor vehicle...." On page 31 of the record of appeal PW2 testified thus: "The said motor vehicle was parked at Njia Panda. We followed the instruction and we went to Njia Panda at (weigh bridge) Mizani ya chini and we found the motor vehicle with Reg. No. T 671 CPU Fusso when we reached there, we saw some people and immediately some of them run away. The motor vehicle had some people who were arranging beer crates ," PW7 also testified that: "When we reached there, we saw the vehicle parked empty. I decided to trap them at around 23.00 hours, we noticed some people coming from v uchochoronTand going to the fusso. We went to the said vehicle and managed to surround them ." Increasingly, we are of the view that the established principle in the cases cited above could not apply mutatis mutandis in this case. This is so because, in the present case, the appellant was not made very much aware of the charge he was facing unlike in Mohamed Juma Naniye (supra), where although the statement of the offence differed from the particulars, the evidence supported the particulars of offence. As a result, 15

the appellant was made aware of the charge he was facing and defended accordingly. The appellant's defence in the present case does not suggest that he understood clearly the charge. Innocently, we suppose, he defended exactly as what was testified by the prosecution witnesses, that he was arrested while parked and was re arranging beer crates in the vehicle. In any event, nothing from the record,-be it from the prosecution or defence evidence, indicated that the appellant moved the vehicle carrying any illegal immigrants. The reasoning and conclusion of the first appellate court on page 159 of the record of appeal was that: "The accused [appellant] is not disputing was driving at the materia/ time. By all standards this was a dear case o f transporting illegal immigrants." [Emphasis added]. With respect, we are unable to go along with the observation made by the first appellate court/that there is no dispute that the appellant was diving at the material time. All the three prosecution witnesses who arrived at the scene, that is, PWl, PW2 and PW7 said that, they saw the vehicle parked on pages 26, 31 and 42 of the record of appeal, 16

respectively as per the above excerpts. It is thus, crystal clear that there was material variance between the charge and the evidence adduced at the trial which rendered the charge unproved. Consequently, we allow the appeal, quash conviction and set aside the appellant's sentence. We order his immediate release from prison, unless he is otherwise lawfully held. DATED at MOSHI this 22n d day of August, 2024. The Judgment delivered this 22n d day of August, 2024 in the presence of the Appellant in person - unrepresented and Mr. Isack Mangunu, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL