Joel Kaduma @Madizel vs Republic (Criminal Appeal No. 38 of 2013) [2014] TZCA 2194 (12 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: RUTAKANGWA. J.A.. BWANA. J.A.. and MANDIA. JJ U CRIMINAL APPEAL NO. 38 OF 2013 JOEL KADUMA @MADIZEL ................................................. APPELLANT VERSUS THE REPUBLIC.............................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mwanaesi, 3 .1 dated the 27th day of August, 2012 in Criminal Appeal No. 55 of 2011 JUDGMENT OF THE COURT 7th & 12th May, 2014- RUTAKANGWA. J.A.: This is a second appeal. It has its origin in Criminal case No. 129 of 2009 in the District court of Mbarali District at Rujewa, in which the appellant was the first (1st) accused among four accused persons in that case. That case was instituted at the instance of one Charles Kibodya, a resident of Mafinga, who by then was earning his living from the business of buying and selling paddy for profit. Charles Kibodya, who testified as PW5 in the said case, told the trial district court that in his business he was being assisted by one Halisu Ramadhani @ Ginga, who was the second (2n d ) accused in the case. According to his evidence PW5 Kibodya went to Madibira for his business on 15/6/2009. On

16/6/2009 at about 09.30 hrs he called at the home of Halisu. Halisu was at home together with the appellant Joel Kaduma @ Madizeli. Halisu, with whom he had worked since 2005, told him that there were 15 bags of paddy on sale at Nyakadeke village. Upon learning from PW5 Kibodya that he (PW5) had with him cash Tshs. 2,500,000/=, Halisu told him to proceed with the appellant to Nyakete and he (Halisu) would have joined them later. PW5 Kibodya and the appellant left allegedly immediately riding a bicycle belonging to PW5 Kibodya. When they reached an area with thick vegetation, the appellant is said to have turned against him and squeezed his neck saying that he wanted the money. PW5 Kibodya pleaded for his life but to no avail as the appellant allegedly took out two knives and slashed his neck. As the two were struggling, PW5 Kibodya heard Halisu say "Leo tunakuua", meaning "we are killing you today." Then he lost consciousness. When he came around, he saw Halisu seated in the nearby bushes. More significantly, he found out that his "money (Tshs,2,500,000/=), bicycle, mobile phone and shoes'" were missing. Then one Udoya Gerena, a herdsman, passed by and he narrated to Udoya what had befell him. Udoya, who testified as PW3, took him to a nearby village from where he was rushed to Madibira village. According to his account, by the time he reached Madibira he was unable to talk. He, instead, wrote on the ground informing the people that the appellant had cut his neck while Halisu was "seated in the bush near the" scene of the "event". He requested to be taken to Mahungu hospital. As at Mahungu hospital they could not handle his case, he was sent to Mafinga hospital from where he was referred to Muhimbili hospital. On the strength of PW5 Kibodya's claims, both the appellant and Halisu were arrested. The appellant is claimed to have confessed to the said armed robbery in which he incriminated Halisu also. Together with these two, were

charged Steven s/o Jimmy @ Nyagama and Emmanuel s/o Ernest @ Nyigu. They were charged with robbing PW5 Kibodya "cash Tshs. 150,000/=". At the trial of the appellant and his co-accused, the prosecution called four other witnesses. These were PW2 Ateria Mrasunzu, PW1. PW4 No. F.959 DI and PW6 Juma Yahaya. At the close of the prosecution case the learned trial Resident Magistrate acquitted Steven Jimmy and Emmanuel Ernest under section 230 of the Criminal Procedure Act (the C.P.A). The appellant and Halisu in their sworn/affirmed evidence, totally dissociated themselves from the alleged robbery, both claiming to have been at different places far from the scene of the alleged crime. In his judgment the learned trial Resident Magistrate rejected the defences of alibi of each accused person. Relying on the alleged confession of the appellant accordingly (exh. PI), which he found to have been corroborated by the evidence of PW1 - PW6, he proceeded to convict them as charged and sentenced them to thirty (30) years imprisonment and five strokes of the cane each. Both were aggrieved by the conviction and sentences and preferred separate appeals to the High Court which were consolidated and heard together. In its judgment, the High court allowed the appeal by Halisu. It quashed his conviction, after expunging the confessional cautioned statement of the appellant but without adverting to the evidence of PW5 Kibodya which in our view gravely incriminated the said Halisu with the alleged robbery. The appellant's appeal was dismissed, hence this appeal. Before us, the appellant has come with a litany of complaints contained in a ten-point memorandum of appeal. The appellant is urging us to quash the judgment of the first appellate court because the learned High Court judge:-

(i) Erred in law is sustaining his conviction on the basis of the uncorroborated identification evidence o f a single witness, which was not supported by an identification parade. (ii) Erred in actin on the contradictory evidence o f PW2 Mrasenzi and PW3 Udoya. (iii) Erred in holding that he was known to PW5 Kibodya prior to the day o f the alleged robbery. (iv) Erred in believing that he was named by PW5 Kibodya , whereas PW6 Juma testified that he was arrested on mere suspicions; (v) Never considered the defence case; (vi) Failed to appreciate that the prosecution failed to prove its case beyond reasonable doubt; and (vii) Erred in relying on the medical treatment report (exh. P2) which was admitted in evidence in violation of s. 240 (3) of the C.P.A. The appellant appeared before us unrepresented to prosecute his appeal. When the grounds of appeal were read out to him, he opted to adopt them and had, at first, nothing to tell us in elaboration of any one of them. The respondent Republic, on the other hand, was represented by Ms. Scholastica Lugongo, learned State Attorney, who resisted the appeal. Urging us to dismiss the appeal, Ms. Lugongo appeared convinced that the appeal lacks merit as the visual identification evidence of PW5 Kibodya was impeccable. She was of this firm stance because:-

(i) PW6 knew the appellant before the day of the robbery and the two left the home of Halisu together riding the robbed bicycle; (ii) The incident occurred in broad day light, and (Hi) PW6 immediately mentioned the appellant as his assailant to both PW2 and PW3. All the same, she was equally bewildered by the acquittal of Halisu by the High Court. In response, the appellant insisted that he was innocent as PW5 Kibodya was a stranger to him, and he was arrested on suspicions as PW6 Juma testified. More tellingly, the appellant contended that the case against him was fabricated because he could not have robbed PW5 Kibodya of his bicycle and mobile phone, and at the same time the same properties be tendered in evidence, to prove the charge, by PW5 Kibodya himself, while he (appellant) was not found in possession of them. After our dispassionate evaluation of the entire evidence on record, and reading of the judgment of the High Court and consideration of the grounds of appeal and Ms. Lugongo's submission we are increasingly of the view that the crucial and determining issue in this appeal is the credibility of PW5 Kibodya. Was he or was he not robbed and seriously injured?. If he was, who was/were the culprit/culprits? Admittedly, from the evidence on record, it is obvious that the only eyewitness to the alleged robbery implicating the appellant and Halisu was PW6 Kibodya. We appreciate the observation of the appellant in response to Ms. Lugongo's submission to the effect that if PW5 Kibodya was truthful, he could

not have tendered the very properties alleged to have been stolen from him which were not found in his (appellant's) possession. This complaint cannot be slightly dismissed in the absence of other compelling evidence. In our respectful opinion, any reasonable doubts generated by this complaint would have been dispelled by exhibit PI. As alluded to earlier on in this judgment, the learned first appellate judge expunged the confessional statement (exh. PI) from the record. He was right because the trial Resident Magistrate improperly admitted it in evidence, in spite of the fact that the appellant had repudiated it, without determining its voluntariness and/or if it had been made by the appellant, by way of a trial within a trial. The error of the trial court deprived the prosecution of its apparently smoking gun. Likewise, we have found ourselves inclined to expunge exhibit P2 also from the record. This is because the learned trial Resident Magistrate did not comply with the mandatory provisions of s. 240 (3) of the CPA as correctly contended by the appellant. Exh. P2 was crucial in determining the elements of use of a weapon and violence. From the above observations, no one can seriously argue that the prosecution case was not weakened by the incurable errors committed by the trial court. In our view, it will be the height of perversity to condemn the prosecution for the errors of the court. Fortunately, where there is a right, there has always been a remedy, and this Court has a duty to provide that remedy, so that justice is seen to be done to both sides in the case. The accumulated wisdom of the courts over the years has laid it down that in situations of this nature, the appropriate remedy is to declare the trial a 6

nullity and order a re-trial. A few examples will suffice here to illustrate this assertion. In Marko Patrick Nzumila & Another v. R., Criminal Appeal No. 141 of 2010 (unreported) the trial court had taken the evidence of a prosecution witness without affirming him. On an appeal to this Court, the Court, suo motu raised this issue of illegality in receiving the evidence. It invoked its revisional powers, quashed the proceedings in and judgments of the lower courts and ordered a re-trial. In Twaha Ali & Five Others v. R., Criminal Appeal No. 78 of 2004 (unreported), the trial court had committed an identical error as the one under scrutiny. This Court expunged the disputed confessional cautioned statements and ordered a re-trial. So was the case in Makumbi Ramadhani Makumbi & Four Others v. R., Criminal Appeal No. 199 of 2010 (unreported). In its judgment dated 27th November, 2013, the Court said:- "There is no gainsaying that the prosecution case has been remarkably weakened by the laxity or ignorance of the trial magistrate and not through failure by the prosecution to tender material evidence, leaving alone the issue of its admissibility. We are not ready to speculate under the circumstances, that on a proper re- evaluation o f the remaining evidence this Court would be prepared to sustain the appellants' conviction or not. We would like to arrive at the decision after being satisfied that the expunged statements were either properly admitted or properly rejected. Short o f that

we feel that justice in the case would not be seen to have been done." In the light of the above, given the serious nature of the charge and the naked fact that the appellant has served only 1/6 of the sentence we have found ourselves constrained to nullify the trial of the appellant and the 2n d accused and the proceedings in the High Court. The conviction of the appellant is accordingly quashed and set aside as well as the sentences imposed on him. We order the immediate re-trial of the appellant and Halisu s/o Ramadhan @ Ginga either jointly or separately before the same court but before another competent magistrate. DATED at MBEYA this 9th day of May, 2014. E.M.K.RUTAKANGWA JUSTICE OF APPEAL S.J. BWANA JUSTICE OF APPEAL W. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. FJ. Kabwe DEPUTY REGISTRAR COURT OF APPEAL