Julius Mathias & Another vs Republic (Criminal Appeal No. 546 of 2015) [2017] TZCA 934 (25 August 2017)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LUANDA* J.A., MMILLA. 3.A. And MWARI3A, 3.A.^ CRIMINAL APPEAL NO. 546 OF 2015 JULIUS MATHIAS ................. ............................................... 1 st APPELLANT KWILASA MATHIAS.............................................................. 2 nd APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Muiulizi, 3.) Dated the 12th day of May, 2010 in DC. Criminal Appeals No. 190 & 191 of 2008 JUDGMENT OF THE COURT 23,d & 25th August, 2017 MMILLA, JA.: The appellants, Julius Mathias and Kwilasa Mathias (the first and second appellants respectively), were jointly charged in the District Court of Shinyanga with the offence of armed robbery contrary to section 287A of the Penal Code Cap. 16 of the Revised Edition, 2002. After full trial, each one was sentenced to 30 years imprisonment, plus two strokes of corporal punishment. They unsuccessfully appealed to the High Court of Tanzania at Tabora, hence the present appeal to the Court.

On 17.8.2007 at midnight, PW1 Zebedayo Muyeto (the complainant) who testified as PW1, and his wife were asleep at their home in Ikonda viilage, Ukenyenge ward, Kishapu District in the Region of Shinyanga. Around that time, bandits stormed into their house after breaking the main door. PW1 woke up and noticed people flushing a torch in the sitting room. He stalked towards the door in his bedroom, peeped through the gap, and saw two people roaming around in the sitting room. They were armed with bush knives. He sensed that they were bandits. Immediately thereafter, the bandits approached and broke his bedroom door, and caught up with him. He staged a fight, but the bandits overpowered him. They inflicted injuries on his head, on the back, and in the arms. They took him to the sitting room and demanded to be given money or else they were going to slash him to pieces. He was seized with fear and decided to obey their orders. He told them that the money was in the bed side small wardrobe, at which they took T.shs 100,000/=. They also took a bag full of different clothes, after which they hurriedly left the place and disappeared in the darkness. After the bandits had left, the complainant's wife and their sons reported the incident to the neighbours. On arrival at the complainant's

home, the neighbours found him in a terrible state. The first thing they did was to rush the victim to Negezi hospital for treatment, but they passed at Negezi police post at which they collected a PF3 as per the prevailing practice. Donald Mhangilwa (PW2) was the Village Executive Officer (the VEO) of Ikonda village. He was one of the villagers who went to the complainant's home. They were informed that the bandits made away with T.shs 100,000/=. In his capacity as the VEO, PW2 called the traditional militia group (sungusungu) and instructed them to lead the other villagers in tracking the bandits by following foot marks which began at the house of PW1. The foot marks led them to the house of the second appellant in Mwajiginya village. Luckily, they found both appellants at that house, they apprehended them. They found them in possession of a black bag, which they believed to be the property of the complainant. Charles Sendama (PW3) was among the villagers who followed the foot marks up to the house of the second appellant. He corroborated the evidence of PW2 regarding the finding of both appellants at the house of 3

the second appellant, and the black bag. PW3 was the witness who tendered the said black bag in court as exhibit. It was not explained how the matter landed in the hands of the police. What is clear however, is the fact that the police prepared the charges and subsequently charged the appellants in the court of law with the offence of armed robbery. There are no clues to establish that the police ever investigated this case. No doubt, none of them appeared to testify. In their respective defences before the trial court, both appellants protested their innocence. On his part the first appellant had testified that he was arrested for evading to pay the revenue of T. shs 20,000/=, having he and his group performed a traditional dance at Ikonda village. He asserted that the VEO demanded a bribe of T.shs 100,000/=, but he failed to meet that demand. In view of his failure to give him T.shs 100,000/=, the VEO maliciously faked against him and the second appellant the offence of armed robbery. The first appellant challenged as well the evidence of all the prosecution witnesses as mere lies against him.

Like the first appellant, the second appellant contended that he and the first appellant were arrested on orders of the VEO because they failed to meet his demand to pay to him a bribe of T.shs 100,000/= on allegations that they evaded to pay the revenue of T.shs 20,000/= after hosting a traditional dance at Ikonda village. He also said that all the prosecution witnesses lied in court that they were involved in the alleged robbery. As already pointed out, the trial court found them guilty, and were each sentenced to 30 years imprisonment. Before us, both appellants appeared in person and fended for themselves; whereas the respondent Republic enjoyed the services of Ms Upendo Malulu, learned State Attorney. The appellants filed separate notices of appeal as well as separate memoranda of appeal. For purposes of convenience, we consolidated them, particularly so when we considered that both of them are contesting the same decision of the High Court in consolidated Criminal Appeals Nos. 190 and 191 of 2008. We note however, that except for the first ground of appeal in the second appellant's memorandum of appeal which alleges that

the trial court erred in sentencing them before convicting them; the rest of their respective grounds of appeal commonly center on three main aspects; deficiency of the evidence of identification, misapplication of the doctrine of recent possession, and insufficiency of the evidence as a whole on which their convictions were predicated. At the commencement of hearing of the appeal, both appellants elected for the learned State Attorney to submit first, but preferred to make their submissions later, if need would arise. At the outset, the learned State Attorney informed the Court that she was not opposing the appeal because the second appellant's first ground of appeal on the trial court's failure to convict the appellants before sentencing them had merit. She proposed to tackle that ground first on account that it was sufficient to dispose of the entire appeal. Very briefly, Ms Malulu submitted on that ground that the trial court erred in proceeding to sentence the appellants upon finding them guilty without first convicting them. She contended that failure to convict the appellants flouted the provisions of section 235 (1) of the Criminal Procedure Act Cap 20 of the Revised Edition, 2002 (the CPA). Relying on 6

the case of Matola Kajuni & 2 Others v. Republic; Consolidated Criminal Appeals No. 145, 146 and 147 of 2011, CAT (unreported), Ms Malulu submitted that the judgment of the trial court was a nullity, so also the judgment of first appellate court because it was based on a nullity. She went on to submit that under normal circumstances, she would have urged the Court to remit the record to the trial court with instructions to enter a conviction, and write a judgment afresh. However, because she realized that the evidence as a whole was very weak and incapable of sustaining appellants' convictions, Ms Malulu persuaded the Court to allow the appeal, quash convictions, set aside the sentences and release the appellants. In elaborating her point that the evidence as a whole was very weak, Ms Malulu gave three reasons. In the first place, she submitted that the charge sheet stated that the bandits stole cash T.shs 100,000/=, one trousers worth T.shs 10,000/=, one shirt worth T.shs 5,000/=, and a short trousers worth T.shs 2,000/=, but no evidence was led to support that claim. Instead, Ms Malulu added, all the witnesses testified that the bandits stole one black bag from the house of the complainant which was tendered as an exhibit. She submitted therefore that the particulars of the charge were at variance with the evidence adduced in court.

-On another point, Ms Malulu submitted that the condition at the scene of crime was not favourable for correct identification of the appellants. She attributed this to failure by the complainant to state the intensity of light with the aid of which he managed to identify the appellants as the persons who perpetuated the charged crime. She cited to us the cases of Matola Kajuni & 2 Others v. Republic (supra) and Waziri Amani v. Republic (1980) L.R.T. 250. sitting Further, Ms Malulu submitted that the lower courts wrongly invoked the doctrine of recent possession in the circumstances of this case. She reasoned that the complainant did not establish ownership of the bag which was tendered in court. Besides, the black bag was not the subject of the charge. It was not mentioned as being amongst the properties which were stolen from the complainant. She cited the cases of Mahona Chacha Ng'wena v. Republic, Criminal Appeal No. 327 of 2014, CAT and Joseph Mkubwa and Another v. Republic, Criminal Appeal No. 94 of2007, CAT (both unreported). For these reasons, Ms Malulu urged the Court to allow the appeal. 8

On their part, both appellants said they were supporting the submission of the learned State Attorney. They pressed the Court to allow their appeal. We have carefully gone through the proceedings of the case in general, the judgments of both lower courts, the grounds of appeal raised in the appellants' respective memoranda of appeal, and the submission by learned State Attorney Ms Malulu. Like Ms Malulu, we think there is great sense to begin the discussion with the first ground of appeal raised in the memorandum of appeal of the second appellant on the trial court's failure to convict them before sentencing them, because if upheld, it is capable of completely disposing of this appeal Looking at the conclusion of the judgment of the trial court at page 39 of the Appeal Record, the trial magistrate recorded that:- 7/7 respect with the evidence o f the prosecution side which proved beyond reasonable dought (sic: doubt) and the defence o f the accused which are (sic) mere coached evidence, I hereby found (sic) the accused liable for armed robbery."

After that expression, the trial magistrate proceeded to record appellants' previous records, mitigations, and subsequently he passed the sentences. Ipso facto, the sentences did not follow conviction as envisaged by section 235 (1) of the CPA. That section provides that:- 235. -(1) The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit or discharge him under section 38 o f the Penal Code. [Emphasis added]. As will be appreciated, the above quoted provision is coached in mandatory terms, which means the directions must be complied with. In the Omari Hassan Kipara v. Republic, Criminal Appeal No. 80 of 2012, CAT (unreported), the Court was firm that it is mandatory in law that sentence must be prefaced by conviction. The Court said: " In principle, where the trial court may have been satisfied that evidence established the guilt o f the accused but did not proceed to convict as demanded by section 235 (1) o f the Criminal

Procedure Act, such judgment is a nullity; so is any other judgment on appeal based on such judgment Both such judgments cannot escape the wrath o f being quashed and the sentences thereof being set aside." See also the case of Matola Kajuni & 2 Others v. Republic (supra). It is essential to point out as well, that in the absence of conviction, one of the essential components of a judgment in terms of section 312 (2) of the CPA is missing. Subsection (2) of that section provides that:- "(2) In the case o f conviction the judgment shall specify the offence o f which, and the section o f the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced." [Emphasis added]. We need, and it is essential, to emphasize here that if the conviction is missed out, there can be no valid judgment of a trial court against which a first appeal can be filed in the High Court, and subsequent second appeal to this Court. We desire to underscore that failure to enter a ii

conviction by any trial court is a fatal and incurable irregularity, which renders the purported judgment and imposed sentence a nullity, and the same are incapable of being upheld by the High Court in the exercise o f Its appellate jurisdiction - See the cases of Jonathan Mluguani v, Republic, Criminal Appeal No. 15 of 2011, CAT, Ruzibukya tlbabyekomya v. Republic, Criminal Appeal No. 218 of 2011, CAT, and Juma Jackson @ Shida v. Republic, Criminal Appeal No. 254 of 2011, CAT (all unreported). Under normal circumstances, we could have been bound to remit the record of the trial court to it to compose a proper judgment by accordingly entering convictions and sentences on the appellants. However, in the interests of justice, and for reasons advanced by Ms Malulu, we think it is undesirable to do so. We are about to assign reasons for saying so. The first point advanced by Ms Malulu revolves on the question of Variance between the particulars in charge sheet and the evidence which was led before the trial court. The particulars of the charge sheet indicated that the properties which were stolen from the house of the complainant

comprised of cash T.shs 100,000/=, one trousers worth T.shs 10,000/=, one shirt worth T.shs 5,000/=, and a short trousers worth T.shs 2,000/=. A systematic reading of the proceedings of this case reveal that while PW1 testified that the properties stolen by the bandits from his house were cash T.shs 100,000/=, a bag and different type of clothes; the rest of them, that is, PW2 and PW3, testified that the bandits stole from the complainant's house a black bag which, nevertheless, was not the subject of the charge. They did not talk about the clothes or cash money covered in the charge sheet. However, since PW1 covered in his testimony the cash money which was stolen from him, and the various types of clothes, in our firm view that does not imply that there was a variance between the particulars in the charge sheet and the evidence which was adduced in court. To the contrary, this goes to the weight of evidence. However, we are satisfied, and we accordingly hold, that the appellants were not found with anything to place them at the scene of crime; also that the evidence on record is wanting such that it cannot sustain the appellants' convictions. Next is the question of sufficiency or otherwise of the evidence of visual identification. Both lower courts found that the appellants were 13

correctly identified by the complainant. With due respect, we do not think so. As often stated by the Court, evidence of visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water-tight - See Waziri Amanl v. Republic (supra). It was emphasized in that case that before relying on such evidence, the trial courts should put into consideration the time the witness had the accused under observation, the distance at which the witness had the accused under observation, if there was any light, then the source and intensity of such light, and also whether the witness knew the accused before. See also the cases of Matola Kajuni & 2 Others v. Republic (supra), Raymond Francis v. Republic, [1994] T.L.R. 100, and Aburaham Daniel v. Republic, Criminal Appeal No. 6 of 2007, CAT (unreported), among others. In Raymond Francis v. Republic the Court held that:- 14

"It is elementary that in a criminal case whose determination depends essentially on identification evidence on conditions favouring a correct identification is of the utmost importance." In the present case, the complainant did not state the intensity of light which was allegedly sourced from the wick lamp. In the circumstances, we are seriously skeptic that such condition at the complainant's house was conducive for correct identification. We hold therefore that the evidence of visual identification was weak and incapable of sustaining the appellants' convictions. There is also the aspect that the appellants' convictions were anchored on the doctrine of recent possession on the basis that the appellants were found in possession of a black bag. We wish to point out that the doctrine of recent possession revolves around proof that an accused person is found in possession of the property recently stolen - See the case of Director of Public Prosecutions v. Joachim Komba [1984] T.L.R. 213 in which it was held that:- "The doctrine o f recent possession provides that if a person is found in possession o f recently stolen property and gives no 15

explanation depending on the circumstances o f the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver." The elements for the doctrine of recent possession were restated in Joseph Mkubwa and Another (supra) in which the Court said that:- "First, that the property is positively the property o f the complainant. Second, that the property was found with the suspect. Third, that the property was recently stolen from the complainant. Fourth, that the stolen thing in possession o f the accused constitutes the subject of a charge against the accused. It must be the one that was stolen/obtained during the commission o f the offence charged ." See also the case of Mahona Chacha Ng'wena v, Republic (supra). In the instant case, the black bag which was allegedly found in appellants' possession was tendered during trial, but the complainant was not given opportunity to identify it in order to confirm if it was his property. Worse still, that black bag was not the subject of the charge.

In the circumstances, it cannot be validly said that the black bag was recently stolen from the complaint. Thus, we find and hold that the doctrine of recent possession was improperly applied in this case. For reasons we have assigned, we allow the appeal, quash conviction, and set aside the sentences. Consequently, we direct the appellants' immediate release from prison unless they are being continually held for some other lawful cause. We accordingly order. DATED at TABORA this 25th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL. I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 17