Bundala s/o Mahona & Another vs Republic (Criminal Appeal No. 224of 2013) [2014] TZCA 2141 (23 June 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK, J.A., MASSATI, J.A., And MUSSA, J J U CRIMINAL APPEAL NO 224 OF 2013
- BUNDALA S/O MAHONA ]
- RICHADS/O MHOJA > ...................................................... APPELLANTS J VERSUS THE REPUBLIC................................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Wambali, J.^ Dated the 6th day of May, 2009 in Criminal Appeal No. 151 and 152 of 2009 JUDGMENT OF THE COURT 20*8123rd June, 2014 MBAROUK, J.A.: In the District Court of Shinyanga at Shinyanga, the appellants were charged with the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 R.E.2002. They were convicted and sentenced to thirty (30) years imprisonment. Their respective consolidated appeal to the High Court of Tanzania at Tabora (Wambali, J.) was dismissed. In the move to protest and show their innocence, they have lodged this second appeal.
At the trial court, the prosecution alleged that on 9th July, 2008 at about 03:00hrs at Mshikamano area in the Municipality and Region of Shinyanga, the appellants armed with machetes broke into the shop of Hamidu s/o Kisolya and stole one bicycle make phoenix valued at Tshs. 75,000/=, one mastress size 4" x 6" valued at T.shs 58,000/=, 20 litres of cooking oil valued at T.shs. 43,500/=, 25kgs of wheat flour valued at 22,500/=, 50kgs. of sugar valued at T.shs. 56,000/=, 50kgs of rice valued at T.shs. 34,000/=, 2 cartons of B29 soap valued at T.shs. 59,000/=, petroleum jelly valued at T.shs. 700,000/= and one weighing machine valued at T. shs. 59,000/=. The total value of the stolen properties amounting T.shs. 607,000/=. Also immediately before and after the time of such stealing the appellants allegedly used violence against Mussa s/o Husein and Nuhu Hassan in order to obtain and retain the said properties. The evidence which led to the conviction of the appellants at the trial court was to the effect that on 9-7-2008 at 3:00 a.m while Mussa Iddi (PW1) was sleeping in his bedroom, bandits broke the door of his bedroom and put a knife on his neck and
a machete on his ribs and threatened to kill him if he dared to shout. PW1 testified that, the bandits managed to take a bicycle (Phoenix) and entered into a nearby shop and stolen some food items like rice, wheat flour and sugar. After a while PW1 went to wake up his brother Hamidu Hassan (PW5) and followed bicycle tyre marks and managed to spot the area where oil and luggages appeared to have been dropped. PW1 and PW5 then went to report the incident to the Mshikamano street Chairman, Damani Nyantabano (PW4) who accompanied them to the said house. They knocked the door and a woman appeared. PW1, PW4 and PW5 entered the house and saw someone by the name of Rasi sitting on a gallon of cooking oil. Also various alleged stolen items were found. Angry civilians who respondend to the call of help entered inside that house and pulled out the alleged bandits and beat them heavily. PW4 phoned the police who came and collected the bandits, including the appellants. In their defence, the 1s t Appellant denied to have committed the offence. He contended that on 9-7-2008 at 6:00
hrs while sleeping some angry people knocked his door, entered into the house, beat him and threatened to burn him with fire. He further said, PW4 restrained the mob from beating him and she phoned the police who came and sent him with his colleagues to hospital as they were heavily beaten by the angry mob. On his part, the 2n d Appellant opted to remain silent in his defence and failed to trace his witness. He finally prayed to close his defence case. In this appeal, each appellant preferred his own memorandum of appeal. The 1st Appellant preferred a memorandum of appeal containing five grounds of complant, whereas the 2n d Appellant preferred seven grounds of complaint. However, looking at them closely they boil down to two main grounds of complaint, namely:- (1) That ■ the trial court and the High Court Judge wrongly relied upon the doctrine o f recent possession in convicting the appellants.
(2) That, the trial court and the High Court Judge wrongly relied on the admitted cautioned statement (Exhibit P2). At the hearing of the appeal, the appellant fended for themselves, whereas Mr. Rwegira Deusdedit, learned State Attorney appeared for the respondent/Republic. Both appellants opted to adopt what they have stated in their memoranda of appeals, and allowed the learned State Attorney to respond to the grounds of appeal first. On his part, the learned state Attorney initially indicated to support the appeal, but after some discussion, he changed his mind and supported the appeal. The learned State Attorney submitted that the record is clear that PW1 who tendered the alleged stolen items at the trial court, failed to describe them before they were tendered in court. He said, it was wrong for the alleged stolen items to be tendered without being described first by PW1. The learned State Attorney further said that, it was also wrong for the alleged stolen items to be tendered by PW1 who
was not the owner of those properties. For that reason, the learned State Attorney urged us to find that the tendering and admission of those items was a mere dock identification of the stolen items, as no description was made before they were tendered. He further urged us to find that the doctrine of recent possession was wrongly applied in convicting the appellants. The learned State Attorney further submitted that, in this case, though the 1s t Appellant objected to the production of his cautioned statement, it was nevertheless received by the court without an inquiry. He said, it was wrong for a trial court to admit the said cautioned statement (Exhibit P2) without conducting an inquiry. For those reasons, the learned State Attorney urged us to find that the case was not proved beyond reasonable doubt. In their re-joinder submission, both appellants agreed to the submission made by the learned State Attorney and had nothing to add. 6
We fully agree with the submission made by the learned State Attorney that this appeal has merit. Firstly, because the doctrine of recent possession was wrongly applied. This is for the failure of the prosecution's case to give description of special marks of the alleged stolen items at the trial court as Exhibit P.l. We are mindful of the fact that some of those items like wheat flour and sugar might not need a specific description as they are common items if not kept in a special bag. But things likes batteries, mattress, cooking oil, various types of soap, weighing machine, all must have a special mark given to them. Hence, we are the opinion that such a failure to give description of special marks of the alleged stolen properties before tendering them in court is a fatal irregularity. See the decision of this Court in the case of Mustapha Darajani v. The Republic, Criminal Appeal No. 242 of 2008, (unreported) where it was held as follows:- "in such cases description of special marks to any property allegedly stolen should always be given first by the
alleged owner before being shown and allowed to tender them as exhibits". In the instant case, no description of special marks of the alleged stolen properties were given. Also, those properties tendered as Exhibit PI were not tendered in court by the alleged owner. The properties were tendered in court by PW1 who was not the owner. This was contrary to the holding in the case of Mustapha Darajani (Supra) and other decisions of this Court. For that reason, we feel it unsafe to rely on such evidence, because it is doubtful as to whether they were the same properties like those alleged to have been stolen. Secondly, as to the issue of failure to conduct an inquiry when the 1s t Appellant's cautioned statement was tendered in court, we are of the opinion that it is trite law that if the objection is made after a trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry into the voluntariness of the alleged 8
confession.Such an inquiry must be conducted before the confession is admitted in evidence. This Court, in thecase of Twaha Ally and 5 Others v. The Republic, Criminal Appeal No. 78 of 2004 (unreported) it was stated as follows: "the omission to inform the accused o f his right to say something and/or to conduct inquiry or a trial within trial in case there is objection raised, result in a fundamental and incurable irregularity". In this case, the trial court not only failed to inform the appellant of his rights but also failed to conduct an inquiry even after the 1s t Appellant raised his objection on the tendering of the cautioned statement. As pointed out in the case of Twaha Ally and 5 Others (Supra) the effect of such irregularity is fundamental and incurable. Cumulatively, we find that the shortcomings stated herein above raise doubts as to whether the prosecution has proved their case beyond reasonable doubt. For that reason, we find the
appellants' appeal with merit. Hence, we allow the appeal, quash the appellants' convictions and set aside their sentences. In the result, we order the immediate release of the appellants from prison, unless otherwise they are lawfully held there in. DATED at TABORA this 21s t day of June, 2014. M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original.
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