Ng'ombe Bahame Another vs Republic (Criminal Appeal No. 545 of 2015) [2017] TZCA 1024 (25 August 2017)

,, l.N THE COURT Of APPEAL Of TANZANIA ATTAIBORA (CORAM: LUANDA, J.A., MMillA, J.A. And MWARIJA, J.A.) CRIMINAL APPEAL NO. 545 of 2015 NG'OMBIE IBAMAM!E ............................................................ 1 ST AIPPIEllANT NKXNGWA NKOMBA .............. ,.D••············•1t ■ D ■ D ■■■■ 11••··············2ND APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) O<aduri, J.) 22 nd & 25 th August, 2017 MW.&.RIJA, J.A:. Dated 24 th day of August, 2009 In· DC Criminal Appeals No.~2 & 33 of 2009 JUDGMIENT Of TME COURT This appeal arises from the decision of the High Court of Tanzania at Tabora (Kaduri, J.) in DC Criminal Appeals Nos. 32 and 33 of 2009. The background facts giving rise to the appeal are not complicated. On 20/10/1999 at night, the house of one Gibuyi Ntonyole (PWl) was broken into by bandits. Present in the house at that night were, amony oLhe(s, P'vV1 c1r1d his wife Regina Lucas (PVV2). i 1avlng broken the house, the bandits entered into the couple's room, threated them with 1

machetes . a..,.d r'r·,-lC .. ~d i-hem· +/"'\ '"1e do,A/n Tho b;1nd"1tc; thPn took' \f;::ll'"inr re; T·- 11 u Ucl t: · l.1 1 1, ..V • v,; 1. , • '-' """ . ..._ 1-. . ... ,.;·-·J·= :•.J• ... ·- properties total value at shs. 254,000/=. The stolen properties included a bicycle make Avon, a radio and clothes. After that incident, the appellants and other persons, Mageni Zengo, Mbaga Obela and Mayunga Punguja who were acquitted, were arrested and charged in the District Court of Meatu in Criminal Case No. 68 of 1999. They were charged with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code [Cap. 16 R.E. 2002] (before its amendment by Act No. 4 of 2004). At the trial, the prosecution relied on the evidence of four witnesses including Gibuyi Ntonyole (PWl) and his wife Regina Luca$ (PW2). These two witnesses testified on how the bandits robbed them at the material night as stated above.. Th2 other witness Sunzura Jilili (PW3)- whc wa$ ·at : -· the material time the commander of the people's militia, Paji Village, participated in the arrest of the appellants. According to his evidence, he found the 1 s·t appellant with a bicycle make, Avon and the 2 nd appellarit with a radio. This witness said that the appellants admitted that these properties which were found in their possession were stolen from Mwadu village and that they had hidden a bag of clothes near at a river. There was 2 L

, .... also evidence of No. E-. 8990 D/C Kassim (PVV4). He recorded the cautioned statement of the 1 st appellant (Exh. P.7) on 25/10/1999 and that of the 2 nd appellant (Exh. P.8) on 27/10/1999. According to his evidence, the appellants admitted to have committed the offence. In his defence, the 1 st appellant testified that on 23/10/1999, he was arrested at his home by PWl. He was-found with a radio and some clothes which, he said, had stolen them from SAPA. On his part, the 2 nd appellant denied the offence. He contended that on 23/10/1999, he was arrested on · the way by a group of people who were searching for stolen properties. He informed the group that there was a stolen radio in the room which he shared with the 1 st appellant. Having considered the prosecution and the defence evidence, the . learnedtria_l Resident Magistrate found .that;: a!thou_ph ,the-offence_ of-'-armed · · robbery was not proved, the cognate offence of robbery with violence under sections 285 and 286 of the Penal Code was proved beyond reasonable doubt: He relied on the evidence of the appellants, cautioned statements and the admission by the 1 st appellant that the bicycle and the radio which were found in his possession were stolen by him from SAPA. 3 L

Following their. conviction, they were each __ sentenced to - - 30 years imprisonment with six (6) strokes of the cane. Aggrieved by the conviction and sentence, the appellants unsuccessfully appealed to the High ourt. In upholding the decision of the trial court, the learned first appellate judge observed, firstly, that in their cautioned statements, the appellants admitted to have committed the offence and secorncny, that on his part, the 2 nd appellant admitted in his defence that he did steal the radio and the bicycle and tlhlnndUy, that since . - the radio was found in possession of the appellants one day after the date of robbery, by application of the doctrine of recent possession, the appellants were rightly convicted. The appellants were dissatisfied with the decision of the High Court -and thus preferred th-is,sec.ooe appeal. In !odging·the appea1,:ea.c:J1--of-them. ,.,· .. , filed a separate notice of appeal which were however consolidated in this appeal. At the hearing of the appeal, the appellants appeared. in person unrepresented while Ms Juliana Maka, learned Senior State Attorney, appeared for the respondent/Republic. 4

·/Vhereas the 1 st 3ppel!ant raised six- grounds ln his memorandum of appeal, the 2 nd appellant's memorandum of appeal consists of four grounds. We however agree with the learned Senior State Attorney that the appellants' grounds of appeal centres on two main grounds that the learned first appellate judge erred in upholding the decision of the trial court which was founded; fiirstly, on cautioned statements of the appellants which were recorded in contravention of the law and secondiy, that the learned judge wrongly applied the doctrine of recent possession. When· the appellants were called upon to argue their appeal,· they opted to hear first, the learned Senior State Attorney's submission in response to their grounds of appeal. Ms Moka began by informing the court that the Republic was supporting the appeal. In her well organized submission, the learned Senior State Attorney a.greed with the appellants' . . . . :·:-·. __ , __ .- .- .. · contention that their cautioned statements were improperly admitted in · evidence and used to found their conviction. According Ms Maka, the statements were recorded in contravention of S.50 (1) (a) of the Criminal Procedure Act, [Cap 20 R.E. 2002] (the CPA) which requires such statements to be taken within four hours- frorn the time when a suspect is · · put under restraint. She argued that, although the date and time at which 5

the appellants were arrestee! 'Nere not c!ear!y _stati:;d by prosecution witnesses, in their defence, the appellants stated that they were arrested on 23/10/1999. For this reason, Ms Maka argued, since the cautioned statements of the 1 st and 2 nd appellants were recorded on 25/10/199 and 27/10/1999 respectively, the same were taken outside the prescribed period of four hours and therefore, that amounted to a contravention of the law. She urged us to expunge the statements from the record. With regard to the application of the doctrine of recent possession, Ms Maka argued that the doctrine was wrongly applied by the learned High Court judge because, in order to apply it, there are requisite conditions which must be met. She cited to that effect, the cases of {uiwa Musa and 2 others v. The Repillllbik, Criminal Appeals, No. 75, 76 & 77 of 2008 and AUy !Bakari & Piii !Bakari v. The Repui_blk [1992] TLR 10. . .... / - s-. . Having considered the grounds of appeal and the submissions made by the learned Senior State Attorney, we wish to begin with the ground . . . concerning the appellants' cautioned ·statements. We agre·e with Ms Maka that the statements were invalid because they were recorded outside the period of four hours prescribed under S.50 (1) (a) of the CPA. The section provides as follows: 6

'7(), Peliod available for interviewing persons (1) For the purpose of this Act the period available for interviewing a person who is in restraint in respect of an offence is (a) Subject to paragraph (b)r the basic period available for interviewing the person, that is to say the period of four hours commencing the time when he was taken under restraint in respect of the offence ... " [Emphasis added]. Paragraph (b) of S. 50(1) of the CPA allows for extension of time under the circumstances stated in S. 51 of the same Act. '' Since therefore, the appellants were interviewed and their cautioned statement taken outside the period of four hours provided under S. 50 (1) (a) of the CPA without extension of that time, the statements were obtained contrary to the law. For that reason, the same should not have been admitted - See for example Janta Joseph !Komba and 3 others v. The Republic, Criminal Application No. 95 of 2006 and Aiy Mbe~wai v. 7

The Repubk, CrirninaI /\ppeal No. 109 of 2015 (both LJDreported), We therefore hereby expunge the statements from the record. Having done so, the issue is whether the appellants' conviction can be sustained on the basis of the application of the doctrine of recent · possession. We are again, in agreement with Ms Maka that under the circumstances of this case, the doctrine of recent possession was misapplied. In the case of Kuwa MlU!ssa (supra) cited by the learned .. Senior State Attorney, the Court reiterated the circumstances under which the doctrine of recent possession may be applied as stated in the case of Mwita V-Jarnbura v. R, Criminal Appeal No. 56 of 1992 (unreported). The conditions are: "1. The stolen property must be found with the suspect 2. The stolen property must be positively identified to be · -that of the complainant. 3. The property. stolen- must constitute the subject of the charge. ✓ , 8

,. In this case, the Hlgh Court ·app!led the doctrine on the ground that the 2 nd · appellant was found with the stolen radio in his room. The learned judge stated as follows: 11 The radio that Was found in his room was recently stolen/ Just the previous night and therefore the doctrine of recent possession can reasonably and legally apply. // With due respect to the learned judge, although it is in evidence that the 2 nd · appellant vva.s fr•und ·ivith the radio (Exhibit P4); that propert:/ \ 1 v2s · · neither tendered nor identified by either PWl or PW2. It was instead tendered by PW4, the Police Qfficer who did not even seize it from the 2 nd appellant. Again, as correctly submitted by the learned Senior State Attorney, the evidence did not establish that the radio is the one which was stolen from PVVL Th\sls because;.as found above, PWldid not.identify i.t · The property did not therefore constitute the subject of the charge. Since the four conditions precedent for application of the doctrine of recent possession must be cumulatively established, the discrepancies leading to a failure to establish the two conditions stated above sufficed to render the doctrine inapplicable. · 9

I ·t. was a 1 SO· +-riun·a' ·b'·' t-,hp h"'r). r-..nur-.rc holo\i\l ·!·hat thP 1st appPllant • I l'.J J .Jj'-' _'/Y-..:., "...u 1 ......, -''--• V ..... - .... -.<J J~ - __ "':"'' ,., __ ... admitted that he stole the radio. In his judgment, the learned trial Resident Magistrate stated as follows: 11 ••• Ng{)mbe Bahame (DW2) told this Court that he is residing with MVtlANIPASI and took the radio from his house/ and he did admit to have stolen SAPA .... // Upholding that finding, the learned first appellate judge observed that: himself in Court/~ Having gone through the 1 st appellant's defence evidence; we are of the firm view that the two courts below misapprehended that evidence. In 1 his evidence, the 1 t- app_llant stated as follows: 11 0n 23/10/99/ I was at mine/ in the night it was when Mzee MWANIPASI came who did enter into my house/ he found one radio I did steal from SAP.A and clothes I did steal from SAPA. // Whatever the word SA.P.A. means:- it is obvious from the 1 st appellant's evidence that he did not admit to have stolen the radio from PW1, Gibuyi 10

1\J" . . tonyole. stealing at or from SAPA, it was an error on the part of the two lower courts to ground the 1 st appellant's conviction on the evidence of admission. On the basis of the foregoing reasons, we find that the appeal has merit. We thus allow it and accordingly hereby quash the judgments of the two courts below and set aside the sentences imposed on the appeHants. They shall be set free forthwith unless they are otherwise lawfully held. DATIEID at TAIBORA this 25 th day of August, 2017. B. M. LUANDA JUSTICE Of APPIEAl B. M. MMILLA JUSTICIE OIF APPIEAl A. G. MWARIJA JUSTIClE Of APl?lEAl I certify that this is a true copy of the original. r--- P.W. BAMPIKYA SIENIOR DlEPUTY RJEGISTRAR COURT OF AIPPIEAL 11