Priscus Adris Kiwango vs Republic (Criminal Appeal No. 287 of 2013) [2014] TZCA 2182 (19 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: BWANA. J.A: MANDIA, J.A: And ORIYO. J.A.^ CRIMINAL APPEAL NO. 287 OF 2013 PRISCUS ADRIS KIWANGO ........................APPELLANT VERSUS THE REPUBLIC...................... j .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (MchomeJL) Dated 30th day of August, 1999 In Criminal Appeal No. 74 of 1997 JUDGMENT OF THE COURT 10th& 19th March, 2014 MANDIA. J.A. On 5/11/1995 PW1 Damson Charles, a security guard employed by Moshi District Council, was on night guard duty at a place he calls KDC, PW1 Damson Charles carried a shot gun issued by his employer. With Damson Charles on guard duty was another security guard called Menrad Mrema who is now deceased. Round about midnight, a group of persons approached the guard area which Damson Charles says was dimly lit. Damson Charles walked towards th|e person when he noticed them, but before he reached them a shot rang out. He was hit on the right temple but the bullet just grazed him. He fell down. The unknown assailants

pinned him down. He was still conscious so he cried out for help. Mrema also raised the alarm and the unknown people ran away, carrying the shotgun with them. Some nine months later, on 27/9/1996 PW1 Damson Charles identified the shotgun when it was shown to him at Mwanga. By the time of identification the shotgun had its barrel sawn off, but the serial number YA 15926 was still there. PW1 Damson Charles reported the invasion on him to the Police where PW4 C 1982 Detective Corporal Ambrose Was detailed to investigate the case. He (PW4) visited the scene of the crime where he picked a spent cartridge of a revolver bullet which he tendered in evidence and which was admitted and marked as Exhibit P2. He also put in evidence shotgun with its barrel sawn off which had serial number 15926 and said it was the one used in the robbery on 5/ll/19.p5. When detective Corporal Ambrose put the shotgun with its firearm licence the defence, led by Mr. Njau, objected on the ground that the firearm licence issued for the gun showed that the licence was Chagga Native Authority who in turn authorized one Silus Maenda of Mwika Lower Court on 29/1/1963 to keep possession of the firearm. The defence argued that neither Moshi District Council nor PW1 Damson Charles are shown to have inherited lawful possession of the firearm from Mwika Lower Court. The trial Magistrate overruled the

objection and argued that since the firearm was in the possession of PW1 Damian Charles who worked as a security guard for Moshi District Council at the time the firearm was robbed,'the firearm was admissible in court as an exhibit. He therefore admitted the shotgun as'Exhibit P2. He also admitted a bag in which the gun was kept as Exhibit P4. Circumstances leading to the arrest of the appellant are rather fortuitous. They show that one day in December 1995, PW3 Kidadula Juma Mgonja a small scale trader at Kwakoa Village in Mwanga District, was at a place called Mrs. Fatuma Tea Room at the Village when five youths came on foot and asked him, "Kwa Kidadula ni wapi?" PW3 was surprised at the inquiry by the youths because he did not know the five youths who were asking for the way to his house, and they were putting the question to the same person they were looking for. He did not reply so the youths left for a nearby grocery owned by PW2 Jumatatu Mohamed Abdallah Msaki where they bought1 beer. As the five youths drank the beer they bought, PW3 Kidadula Juma Mgonja left Mrs. Fatuma Tea Room and went over to PW2 Jumatatu Mohamed Abdallah Msaky's grocery and inquired whether the five youth were there, and if PW2 knew them. PW2 denied knowing any of the five youths. PW3 then left the grocery and went to report the presence of the five youths to the Village Executive

Officer PW5 Seiemani Iddi. The Village Executive Officer accompanied. PW3 to the grocery where the five youths were drinking beer. When the Village Executive Officer demanded each of the five youths to identify themselves they attempted to flee. Four succeeded but one, who is the appellant, who had bag between his legs where he sat, did not succeed to flee. The Village Executive Officer, helped by the villagers, apprehended the appellant and made him to open the bag he was carrying. Inside the bag was a shotgun with its barrel sawn off. The appellant was taken to Mwanga Police Station. The firearm was taken to the Regional Crime Officer Kilimanjaro Region from where PW4 C 1982 Detective took delivery of it and tendered it in evidence durihg the trial. In his defence, the appellant claimed in the trial court that on 6/12/1995 he was at Mwanga where he had gone to sell clothes. Three unknown persons tried to extort money from him and then beat him up to unconsciousness. He regained consciousness at Mwanga Police Station where false charges were framed, against him. He denied beinq in possession of any gun. Despite his protestations of innocence, the appellant was charged with Armed Robbery in the District Court of Moshi at Moshi and convicted. 4

He was sentenced to imprisonment for thirty years. >ie was aggrieved by both the conviction and the sentence and he preferred an appeal to the High Court of Tanzania at Moshi. His appeal was dismissed in its entirety, hence the present appeal. The appellant has lodged in this Court a memorandum of appeal containing five grounds which essentially boil to one ground of complaint, namely, that the trial court based its decision on the doctrine of recent possession, and that the first appellate court erred in upholding the finding of the trial court, when the essential element of the doctrine of recent possession had not been established. The appellant appeared in person, unrepresented, to argue his appeal, while the respondent Republic was represented by Ms. Elizabeth Swai, learned State Attorney. The appellant did not augment the memorandum of appeal he filed with any oral argument. On her part, the learned State Attorney for the respondent Republic declined to support the conviction and sentence on the ground that: (i) Ownership of the firearm was ihot proved.

(if) The prosecution has applied to the court at p p ll and 12 of the record to tender the firearm1 but there is no order of the court admitting the shotgun as an exhibit; and (iii) The appellant was sentenced to thirty years imprisonment on 8/7/1997 when the maximum penalty for the offence in 1997 was imprisonment for twenty years. The learned State Attorney argued that it was not until Act No. 4 of 2004 was passed that imprisonment for Armed Robbery was enhanced to thirty years imprisonment. In the charge sheet, the appellant is alleged to have stolen firearm owned by the Moshi District Council. No witness appeared in the trial court to testify for Moshi District Council and claim ownership of the firearm. A firearm licence tendered in court showed that the licence for the firearm was the Chagga Native Authority who in 29/1/1963 gave written authority to one Silus Maenda of Mwika Lower Court to keep possession of the firearm. Silus Maenda did not appear in this Court to testify, and no evidence was led on how a gun in lawful possession of an employee of Mwika Lower Court came to find itself in the hands of PW1 Damson Charles. We agree with Ms. Elizabeth Swai, learned State Attorney, that ownership of the firearm has not been proved.

Even if ownership was proved, the second default is that when PW1, Damson Charles gave evidence in the trial court the shotgun was not availed to him for identification. He, gave evidence on 8/10/1996 in which he said he identified the gun when it was shown to him on 27/9/1996. This means PW1 Damson identified the gun eleven days before the trial at a place which he did not mention but which is definitely away from the trial court premises. On the tendering of the firearm in evidence, the prosecutor is on record as saying "in this case there was this short(sic) gun; but there were other things, Maasai Machets, nondo and bullets but are not in this case, there was a bag, in this bag the cut gun is there in that bag, here it is, I tender it as an exhibit in this case. It is admitted as Exhibit P4. This is the bag wherein the gun was kept, I tender it as an exhibit, and admitted as P5. It is not clear from the record who tendered what and who admitted what, as the whole process of tendering in evidence and the admitting into

evidence is ascribed to the prosecutor. In practice the prosecutor tenders in evidence an exhibit, and if not objected to, the trial court admits the exhibit into evidence. It is not the prosecutor who tenders the exhibit, admits it into evidence and marks it as an exhibit as has happened in this case. The position as it stands here is that the firearm has not been admitted in evidence. We find that the appeal has merit. As we said earlier, the learned State Attorney also did not support the conviction and sentence. We therefore allow the appeal, quash the conviction and set aside the sentence. The appellant should be relea^H frnm msi-nrlv forthwith unip< ;< ; he is held on some other lawful cause. DATED at ARUSHA this 15th day of March, 2014. SJ. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO ' JUSTICE OF APPEAL