Festo Komba vs Republic (Criminal Appeal No. 77 of 2015) [2015] TZCA 826 (1 September 2015)

.. IN THE COURT OF APPEAL OF TANZANIA AT·IRINGA (CORAM: MBAROUK. l.A .. MMILLA, J.A.. And MWARIJA. J.A.) CRIMINAL APPEAL NO. 77 OF 2015 , FESTO KO MBA ■■■ II ■■■■ •• ■■■■■■ •••••• ■ •• ■■■ ••• ■ •• !a ■ iii 1111111 ■ ■ ■ ■ ■ ■ ■ •• ■ ■ ■ ■ ■ ■ ■ ■■ •••••••• APPELLANT VERSUS THE REPUBLIC .... ~ .......................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) · (Kaganda, J.) dated 23 rd day of March, 2015 in Criminal Appeal No. 12 of 2004 JUDGMENT OF THE COURT 31 st August & 1 st September, 2015 MMILLA, J. A.: Festa Komba (the appellant), was charged in the District Court of Songea District in Ruvuma Region with two counts; house breaking contrary to section 294 (a) anti· stealing contrary to section 265 both of the Penal Code Cap. 16 of the Revised Edition, 2002. He was found guilty and convicted as charged, consequent to which he was sentenced to five (5) years imprisonment in each count. The sentences were ordered to run concurrently. He unsuccessfully appealed to the High Court at Songea, hence this second app.eal to this Court. 1

·. The background facts leading to the present matter were that on 20.7.2003 in the morning, PWl Geoffrey Uloy left his home and headed to an unnamed place. He returned at about 17:00 hours only to find that "his house was broken into." On going inside, he found that thieves had stolen from therein one tyre, one radio make "Atech", one wooden speaker and three compact cassettes. He reported the matter at police station and investigation started immediately. They co-opted him in the investigation process. In the course of the said investigation, PWl was informed by the appellant's younger brother that he suspected the appellant to be the culprit behind that crime. PWl re-laid that information to the police who in turn, together with PWl himself, went to the appellant's home where they met his mother, Twetigis Mkinga who testified as PW2. On being asked whether she saw anything new in the appellant's house, she responded that she saw a radio, one speaker and three (3) compact cassettes. A search was conducted in that house and they found one radio make Atech, one wooden speaker, and three (3) compact cassettes. PWl identified them to be his. Following that, the appellant was traced, arrested and charged with the said offences. 2

In his defence before the trial court, the appellant protested his innocence. He raised the defence of alibi to the effect that on 20.7.2003 he was not in Songea Town because he had gone to Peramiho Hospital. He did not however, tell when he went back to Songea Town. Also, while admitting that he saw the allegedly stolen properties at their home, he was quick to add that they were sent there by his younger brother one Zawadi who was an employee of the complainant. He said that Zawadi told him that he was given those properties by the complainant. Unfortunately, he was not believed. Before us the appellant appeared in person and undefended. His memorandum of appeal has raised seven incoherent grounds. We gather that generally put, he is complaining that the case against him was not proven beyond all reasonable doubt. In elaborating the grounds he raised, the appellant stated that apart from the fact that there was no evidence to establish that the said house was ever broken into; there was also no evidence to prove that he was the one who broke into the said house. He stressed that PWl did not explain which part of his house was broken, so also that he did not call any independent witness to support his allegation that it was indeed broken into. 3

Another strong point raised by him is that PWl told the trial court that they managed to recover the allegedly stolen properties on the basis of the information given to them by his younger brother one Zawadi. He also said that PW2 testified that Zawadi told her' that he bought a radio. He queried why such an important witness was not called to testify in court. According to him, another important witness who ought to have been summoned was the village chairman of the area where. the allegedly stolen things were recovered, the reasons being he witnessed the search. In view of this, the appellant prayed the Court to find that the prosecution side did not prove the case against him beyond reasonable doubt, thus allow the appeal. On the other hand, Ms Tulibake Juntwa, learned State Attorney, represented the respondent Republic. She hastened to inform the Court that she was supporting the appeal. In fact, she was entirely in agreement with the appellant's contentions in respect of the two key areas he submitted on. First and foremost, Ms Juntwa submitted that there was no clear evidence that PWl's house was ever broken into, and that the complainant's evidence on the aspect of breaking was wanting, adding that the said witness made a general and unelaborated statement that his house was broken into. In Ms Juntwa's submission, that was erroneous. 4

Also, Ms Juntwa submitted that according to the evidence on record, Zawadi was a very crucial person who ought to have been summoned to testify. She contended that Zawadi was named by PW1 as having been instrumental in the recovery of the stolen properties at the home of PW2, the mother of both the appellant himself and Zawadi. She also stated that Zawadi was named by PW2 as having been the one who sent those properties to their home. She further submitted that even the appellant himself said in his defence that those properties were sent to their home by Zawadi who was then PWl's employee. In the circumstances, Ms Juntwa argued that it was not proper for the prosecution to have not called Zawadi as a witness in this case. She relied on the case of Azizi Abdalla v. Re.public [1991] T. L. R. 71, in particular pages 80 and 81 thereof. On the basis of the above reasons, she urged the Court to allow the appeal. After carefully going through the proceedings of both, the trial and first appellate courts, as well as the judgments thereof, the grounds of appeal in this Court and the submissions of both the appellant and the learned State Attorney in support of the appeal, we hurry to say that we agree with them. Before we start discussing the grounds raised, we have found it appropriate to mention in the passing that the appellant raised the defence of 5

alibi. Unfortunately, both courts below did not address it. In our firm view, though he did not give notice as required by section 194 ( 4) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002 (the CPA), they ought to have addressed it as envisaged by subsection (6) that section thereof, and if they felt there were reasons for them to ignore it as they did, that ought to have been reflected in those courts' respective judgments. As regards the merits or otherwise, we wish to begin by re-stating one of the basic principles of criminal justice in our jurisdiction, that in every criminal trial, the prosecution is duty bound to prove that the accused before the court committed the charged crime, the standard of which is beyond reasonable doubt. That means, the evidence must be so convincing that no reasonable person would ever question the accused's guilt. See the cases of Joseph John Makune v. The Republic [1986] T. L. R. 44 at page 49, Mohamed Saidi Mtula v. Republic [1995] T.L.R. 3, and Anatory Mutafungwa v. Republic, Criminal Appeal No. 267 of 2010, . CAT (unreported). In the case of Joseph John Makune v. The Republic (supra), the Court considered the prosecution evidence adduced in the particular case and held that:- 6 .

"The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case/ no _duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle/ one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities..... // See also the case of Aburaham Daniel v. Republic, Criminal Appeal No. 6 of 2007, CAT (unreported). · Thus, in view of the above, the· major issue in the present case is whether the prosecution demonstrated beyond doubt that the appellant was the person committed the charged offences. We begin with the adequacy or otherwise of the evidence relating to breaking. Admittedly, the only evidence touching on this point came from PWl. He made a sweeping statement that his house was broken into. He offered no ·any details say, which part of the said house broken allowing ingress; was it a window or door? Also, upon receiving information from PWl about the breaking into the complainant's house, PW3, who was one of the police officers who proceeded to the house at which they recovered the allegedly stolen properties, did not inspect that house as a diligent policeman would 7

have done. He and his team strayed into an error of working under assumptions that the story of PWl was true. This was a very dangerous thing to be done by them, especially knowing that it was something to do with a criminal offence which required proof beyond the shadow of doubt. In view of the bare assertions regarding this aspect, we find that the act of breaking was not properly established. Equally strong is the complaint that some important witnesses were not called to testify namely; the appellant's younger brother one Zawadi and the village chairman of Mlilayoyo village where the appellant, his younger brother Zawadi and their mother (PW2) lived. The complainant was very clear in his evidence that the appellant's younger brother was instrumental in the recovery of the properties which were alleged to have been stolen (see page 7 of the Court record). Also, on page 8 of that record, PW2 informed the trial court that Zawadi told her that the appellant had bought a radio. Further, in his defence appearing on page 11 of the record, the appellant was recorded to have said that those properties were not his, but they belonged to his younger brother who was the complainant's employee. This in our view, shows that Zawadi was a very 8

crucial witness whom the prosecution ought not to have failed to call to testify. There was also the village chairman of Mlilayoyo village. He was the person whom PW3 said witnessed the search. This witness was equally an important witness because he would have provided independent evidence regarding recovery of those properties. In our view, this witness too was crucial in the circumstances of this case. We desire to stress what the Court said in this regard in the case of Azizi Abdalla v. Republic (supra). It said:- "The general and we/I-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. " Thus, aware though that no particular number of witnesses is required for the proof of any particular fact as envisaged by section 143 of the Tanzania Evidence Act Cap. 6 of the Revised Edition, 2002, we· agree with both, the 9

. I appeUant and Ms Juntwa that the present case is one of those where we are entitled to draw an inference adverse to the prosecution for their unjustifiable failure to call Zawadi and the village chairman of Mlilayoyo village as witnesses in this case. With this said. and done, we find and hold that the prosecution did not prove the case against the appellant beyond reasonable doubt, and . therefore that the appeal has merit and is hereby allowed. In consequence, we quash the conviction and set aside the sentence thereof. We accordingly order his immediate release from prison unless otherwise continually held for some other lawful cause. DATED at IRINGA this 1 st day of September, 2015. M.S. MBAROUK 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 /\ / \ f \ ,/ ~ . . \ ~· \ DEPUTY RE STRAR COURT OF A PEAL 10