Ng'ombe Bahame & Another vs Republic (Criminal Appeal No. 545 of 2015) [2017] TZCA 936 (25 August 2017)

m TiHE COURT OF APPEAL OF TANZANIA AT TABORA fCORAM: LUAEMDA, 3.A., MMILLA, J.A. And MWARIJA, 3J U CRIMINAL APPEAL MO. 545 of 2015 NG'OMBE BAHAM E ................ . ............................................. 1S T APPELLA5!T NKINGWA NKOMBA ............. ..... ......... ..... ................. 2 nd APPELLANT VERSUS THE REPUBLIC ............................................... .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Kaduri, 3.) Dated 24th day of August, 2009 In • DC Criminal Appeals No.32 S t. 33 of 2009 JUDGMENT OF THE COURT 22n d & 25th August, 2017 MW ARIJA, J.A:. 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 (PW1) was broken into by bandits. Present in the house at that night were, amony others, PWi and his wife Regina Lucas (PW2); Having broken the house, the bandits entered into the couple's room, threated them with

machetes and ordered them to lie down. The bandits then took various 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 (PW1) and his wife Regina Lucas (PW2). These two witnesses testified on how the bandits robbed them at the material night as stated above- T h e » . other witness, Sunzura Jilili (PW3) who was 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 1s t appellant with a bicycle make, Avon and the 2n d appellant 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

also evidence of No. E. 8990 D/C Kasslm (PW4). He recorded the cautioned statement of the 1s t appellant (Exh. P.7) on 25/10/1999 and that of the 2n d appellant (Exh. P.8) on 27/10/1999. According to his evidence, the appellants admitted to have committed the offence. In his defence, the 1s t appellant testified that on 23/10/1999, he was arrested at his home by PW1. He was found with a radio and some clothes which, he said, had stolen them from SAPA. On his part, the 2n d 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 1s t appellant. Having considered the prosecution and the defence evidence, the learned-trial- President Magistrate found- -that*..although: £he• 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 appellants7 cautioned statements and the admission by the 1s t appellant that the bicycle and the radio which were found in his possession were stolen by him from SAPA. 3

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 Court. 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 secondly, that on his part, the 2n d appellant admitted in his defence that he did steal the radio and the bicycle and thirdly, 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 this-second appeal. In lodging the appeal, : :each'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 Moka, learned Senior State Attorney, appeared for the respondent/Republic.

Whereas the 1s t appellant raised six-grounds in his memorandum of appeal, the 2n d 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; fiirstlly, on cautioned statements of the appellants which were recorded in contravention of the law and secondly, 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 agreed with the appellants' contention that their cautioned statements were improperly admitted in evidence and used to found their conviction. According Ms Moka, 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-from the time when a suspect is put under restraint. She argued that, although the date and time at which 5

the appellants were arrested were not ciearly stated by prosecution witnesses, in their defence, the appellants stated that they were arrested on 23/10/1999. For this reason, Ms Moka argued, since the cautioned statements of the 1s t and 2n d 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 Moka 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 Kulwa Musa and 2 others v. The Repoblsc, Criminal Appeals, No. 75, 76 & 77 of 2008 and Aliy Balkan & PiSi Bakars v. The Republic [1992] TLR 10. 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 agree with Ms Moka 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

"50, Period available for interviewing persons (1) For the purpose o f this Act\ the period available for interviewing a person who is in restraint in respect o f an offence is (a) Subject to paragraph (b), the basic period available for interviewing the person > that is to s a y t h e period o f four hours commencing the tim e when he was taken under restraint in respect o f 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 lanta Joseph Komba and 3 others v. The Republic, Criminal Application No. 95 of 2006 and A lly MbeSwa v.

The- Republic, Criminal Appeal No, 109 of 2015 (both unreported). 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 Moka that under the circumstances of this case, the doctrine of recent possession was misapplied. In the case of Kuiwa Mussa (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 Wambura 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 o f the charge." 8

In this case, the High Court applied the doctrine on the ground that the 2n d appellant was found with the stoien radio in his room. The learned judge stated as follows: "The radio that was found in his room was recently stolen > . just the previous night and therefore the doctrine o f recent possession can reasonably and legally apply." With due respect to the learned judge, although it is in evidence that the 2n d -appellant was found with the radio (Exhibit P4); that .property was neither tendered nor identified by either PW1 or PW2. It was instead tendered by PW4, the Police Officer who did not even seize it from the 2n d 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 PWi. This.-is because,..as found above, PWI did not identify it 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

It was also found by the two • courts- below that the 1st appellant admitted that he stole the radio. In his judgment, the learned trial Resident Magistrate stated as follows: "... Ng'ombe Bahame (DW2) toid this Court that he is residing with MWANIPASI 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: "The first appellant made another admission when defending himself in Court" Having gone through the 1s t appellant's defence evidence; we are of the firm view that the two courts below misapprehended that evidence. In his evidence, the 1s t appellant stated as follows: "On 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 SAPA and clothes I did steal from SAPA." Whatever the word SA.p.A. means, it is obvious from the 1st appellant's evidence that he did not admit to have stolen the radio from PW1, Gibuyi

Ntonyoie. Since the. 1st appellant was not charged in connection with- stealing at or from SAPA, it was an error on the part of the two lower courts to ground the 1s t 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 appellants. They shall be set free forthwith unless they are otherwise lawfully held. 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. P.W. BAM PI KYA SESMIOR DEPUTY REGISTRAR COURT OF APPEAL. li