Alex Joseph Kasharakoro vs Republic (Criminal Appeal No. 156 of 2013) [2014] TZCA 2175 (3 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: OTHMAN. C.J.. KILEO, 3.A. And MUSSA. J.A/) CRIMINAL APPEAL NO. 156 OF 2013 ALEX JOSEPH KASHARANKORO. ......................................... .APPELLANT VERSUS THE REPUBLIC ............. ..................................- ..............RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Lyimof 3.) dated the 14th day of April, 2009 in Criminal Appeal No. 46 of 2001 JUDGMENT OF THE COURT 25th February & 3r d March, 2014 MUSSA, J.A.: In the District court of Bukoba, the appellant along with four others were arraigned for armed robbery, contrary to sections 285 and 286 of the Penal Code. During the trial, the appellant stood as fifth accused whereas his co-accused persons were Jamal Kamugisha @ Mziba, Melkizedeck Rutimwa @ OCS, Sudi Kafito and Deusdedit Celestine, respectively, the first to fourth accused persons. All accused persons refuted the charge following which a full enquiry was held. At the conclusion of the trial, the

appellant and the second accused were found guilty and convicted as charged. The remaining accused persons were absolved of responsibility and acquitted. Upon conviction, the appellant and the second accused were each sentenced to-serve a term of thirty years imprisonment with an additional corporal punishment of twelve strokes of the cane. The second accused was, seemingly, contented with the verdict but the appellant preferred an appeal which was, however, dismissed in its entirely by the High Court (Lyimo, J.). Still aggrieved, he presently seeks to impugn the dismissal upon a memorandum comprised of four points of grievance. At the hearing before us, the unrepresented appellant fully adopted the memorandum and preferred to make a rejoinder-, if necessary, after a submission from the Republic. The respondent Republic had the services of Ms Grace Komba, learned State Attorney, who, incidentally, fully supported the appeal. For the proper appreciation and determination of. the contentious issues in this appeal, it is necessary to unveil the factual setting giving rise to the arrest, arraignment and the subsequent conviction of the appellant.

From a total of nine witnesses as well a s' several documentary exhibits, the case for the prosecution, in a nutshell, was to the effect that the robbery incident occurred on the 29th July, 1999 at Bunena Catholic Mission, within Bukoba District. The indictment alleged that the appellant and company jointly stole, from the Mission, sums of monies amounting to 7,000,000 in Tanzanian Shillings, 640 in Sterling Pounds, 3,600 in Deutchmarks and 145,000 in US Dollars. It was further claimed that the burglars stole a Toshiba laptop and that, immediately before perpetrating the theft, they fired gun shots which injured a certain Reverend Father Peter Mutayabarwa. The details and specifics of the occurrence were testified to by Reverend Father Rwemo Mwesiga (PW1) and the aforementioned Father Mutayabarwa (PW2). At the material times, the two Fathers, among others, were residing at the Bunena Mission compound. Speaking of the compound, it is discernible from the

• •• testimonies of the two Fathers that the same was enclosed and had an entrance gate. It is, again, inferable therefrom that apart from the clergymen's apartments, there was also, within the compound, an administrative block in which there was a treasury office and a safe box.

On the fateful day, the uneventful night at the compound was broken around 2:00 a.m; or so, by the sound of a gun shot. Having heard it, Father Mutayabarwa immediately awoke from sleep, opened his apartment door and inquisitively stood at the door step. Within a while the Father saw a group of intruders entering the compound through the gate. The $ intruding bandits also saw him and, after a brief exchange as to his identity among themselves, it was ordered that the Father be gunned and, indeed, the glergyman was shot several times in the legs following which he retreated inside the apartment. Throughout his testimony, Father Mutayabarwa clearly expressed that he neither identified nor recognized any of the culprits. Father Mwesiga who was following the movements of the intruders from his apartment window also heard the gun shots and, soon after, the gangsters passed close to his apartment, breaking glass windows and knocking at doors, as they headed towards the administration block. A little while later, the Father heard a big bang coming from the direction of the administration block which was followed by a smoke. There was a lot of movement and running from the block before calmness was finally restored at the compound. Like his fellow clergyman, Father Mwesiga

neither identified nor recognized any of the culprits. When all dust was clear at the compound, the Father woke up his fellow clergymen and they all walked up to the apartment of Father Mutayabarwa, ostensibly, to offer a helping hand. They found him in a pathetic state after bleeding profusedly from bullet wounds sustained in both legs. Fortunately, the injured Father had administered upon himself first aid by wrapping towels around his legs to prevent further bleeding. A little while later, he was taken to a hospital where he was admitted and treated for a fortnight. Meanwhile, back at the Mission compound, Father Mwesiga visited t the administration block where everything was in shambles. Several doors had been smashed and papers were scattered all over the place. Some keys, documents and a computer were notably missing but; much worse, the safe box had its door blown off. There was a smokish smell from which the Father figured that the safe door was blown off by an explosive. By the use of one of the office phones, Father Mwesiga notified the police of the occurrence. On the following day, Reverend Father Peter Mutashobya (PW7) visited the administration block and took stock of the loot. According to him, from the exploded safe box, there were missing legal tenders in sums of 145,000 (US Dollars), 3,600 (Deutchmarks), 640

(Sterling Pounds), 320,000/= (Ugandan shillings) and 7,000,000/= (Tanzanian Shillings).. Also stolen was a computer laptop and its mate, respectively, valued at 2775 US Dollars and 800 Deutchmarks. In the course of investigations, the appellant was arrested as a suspect on the 6th August 1999, apparently, on account that he was a spendthrift who might have been involved. Upon a police search at his residence a new mattress, two new pillows, a new tape measure and a sh. 5,000/= note were sefzed by the police. His co-accused persons were hurled aboard much later after the arrest of the second accused in Mwanza.— He- was transferred to Bukoba on the 29th October, 1999 following which No. E7629 Detective Sergeant Samson (PW5) extracted a cautioned statement from him. In the cautioned statement, the second accused, allegedly, nailed himself on the Bunena occurrence as well as implicating the first, third and 4th accused persons. It is noteworthy, though, that the appellant was not anyhow mentioned in this document. Suffice it to mention that in the aftermath of the arrest of the 1s t to 4th accused, they were all joined in the charge sheet to which the appellant and the second accused were eventually convicted. The latter's conviction was founded on the confessional cautioned statement but the former was

convicted upon a different set of evidence which we propose to briefly unveil. The gist of the prosecution accusation against the appellant was founded on the account given by Syliver Magayane Karitus (PW3), a tailor resident of Bukoba. Syliver told the trial court that he knew the appellant thoroughly well as a village mate at Businde. His testimony was to the effect that the appellant called at his working place around 9.00 a.m., on the 30th July, 1999 and requested his assistance in a foreign currency money change. The explanation allegedly given by the appellant was that the foreign currency h$d been sent to his aunt by the latter's daughter who lives in Germany. Syliver obliged and took the appellant to a hotel owned by a certain Muna where they met the hotel owner's servant called Murshid. The appellant then produced the currency sought to be changed which was 60 US Dollars in 50 and 10 denominations. The servant, in turn, took his guests to the hotel owner who offered a sum of Tshs. 42,000/= and the deal was sealed. As a handshake for the successful bargain, the appellant gave Syliver a sum of Tshs. 3,000/=. A little later, on that same day, the appellant returned and requested Syliver to, again, assist in another money change transaction. This time

the twosome, approached the National Bank of Commerce (NBC), Jamhuri branch, to make the money change transaction. The appellant had sums of 100 US Dollars and 470 Deutchmarks but, Minja (PW6), a Bank teller, required him to fill currency purchase forms for the respective foreign currency bills. It was, rather, Syliver who filled and signed the forms after being requested by the appellant. The local bills were purchased in the name of Angelina Marco, allegedly, the appellant's aunt on whose behalf the transaction was carried. From the transaction, the appellant fetched sums of Tshs. 203,000/= and Tshs. 78,000/=, respectively, out of the 470 Deutchmarks and 100 US Dollars. For his part, Syliver received a handshake of Tshs. 10,000/=. The appellant then headed towards the market place for shoping but, around 4.30 p.m., he returned to seek the assistance of Syliver for purchase of a matress. Syliver took him to a shop where the appellant bought the matress and a tape measure. Having bought the items, the appellant further required Syliver to tailor a suit for him. Measurements were taken and the appellant made a downpayment of Tshs. 24,000/=. Thereafter they consumed some beer at a grocery called GMM before the appellant bought a take away crate of beer and drove off in a Taxi cab No. 18.

On the 2n d August 1999, the appellant visited Syliver again with a request to assist in a 100 US Dollars money change. The two of them went to the same Bank and repeated the previous procedure. The appellant fetched a su/ri of Tshs. 78,000/= out of which Syliver earned a Tsh. 3,000/= tip. Thereafter, nothing of consequence transpired till on the 5th August, 1999 when Syliver was summoned to the police station. He was enquired about the money change transactions of which he confirmed and then led the law enforcers to the residence of the appellant where he was arrested. The appellant's initial account about the foreign bills was that he simply bumpt into them on a hill and figured that probably an European had accidentally dropped the monies. In the course of hearing, the money change transactions were confirmed by Zulfikar Pyrali Shamji (PW8), whom, we suppose, is the hotel owner referred to as "Muna" by Syliver. In addition, the other Bank transactions were confirmed by Minja, the Bank teller as well as well as the currency purchase forms (exhibit K). Furthermore, the appellant's purchases and travel from and to his Busimbe home were fortified by Johnsen Ngemera (PW6), the Taxi cab driver. And that concludes the prosecution version.

In his reply, the appellant was, relatively, brief. He did not refute the detail about being a resident of Busimbe village where he operates for gain as a mason. Syliver, he said, was well known to him since childhood. Furthermore, the appellant did not dispute that he was arrested on 6th August, 1999 and that the police seized, from his residence a matress, two pillows, a tape measure and a Tshs. 5,000/= note. The appellant deplored the testimony of Syliver and refuted each and every detail related by the latter with respect to the money change transactions. More particularly, the appellant denied involvement in the alleged transaction with Zulfikar as well as with the NBC. Speaking of the Bank transactions, the appellant refuted having an aunt in the name of Angelina Marco. Nonetheless, his account did not, in the least, appeal in the mind of the presiding learned Principal District Magistrate. On the whole of the evidence, the trial court heavily relied upon the testimony of Syliver. From his evidence it found thus: - ...the 5th Accused though he denies, he was in possession o f the foreign currencies stolen from Bunena Catholic Mission committed on the night o f 29/7/99. These foreign currencies were . exchanged on 30/7/99 and 2/8/99 one day and two or three

days after the robbery had occurred. ' Therefore possession o f foreign currencies was under the doctrine o f recent possession. This possession was so recent to prove that $ h Accused was in the robbery. As such 5fh Accused person must have been one o f the robbers at Bunena Catholic Mission. The first appellate court did no more that endorse the finding on account that the same was founded on credibility of witnesses of which the trial court was best suited to determine. Thus, without venturing a re assessment the first appellate Judge held that the finding of the trial court was binding on him. As already intimated, the appellant is at odds with the foregoing verdict upon a four grounded memorandum. We need not recite' it much as, we think, the same boils down to a single issue of contention: Whether or not the doctrine of recent possession was properly invoked. As, again, hinted upon, Ms Komba declined to support the conviction largely on account that the evidence fell short of the doctrine's requirements. For one, she said, the evidence did not conclusively establish that the foreign currencies in issue were, at any time, in possession of the appellant. For another, the learned State Attorney charged that, if at all, the foreign

currencies were not shown to relate to the ones stolen at the Mission. In elaboration, Ms. Komba, painstakingly, sought to demonstrate that, upon evidence, it was Syliver, not the appellant, who was starring in all the money change transactions. In another prosecution ailment, learned State Attorney contented, it was not shown by, say, serial numbers that the foreign currencies involved were the very ones stolen from the Mission. In support of her arguments Ms. Komba referred us to the unreported Criminal Appeal No. 115 of 2005 - Romara Murpsu and another V R. As was expected having heard the submissions from the Republic, the appellant found no cause to make any rejoinder. For our part, before we confront the issues of contention/it is noteworthy that this is a second appeal to which this Court is not expected to lightly disturb the concurrent findings of the two courts below. But, it is well settled that this proposition, is founded on the premise that such findings are based on a proper apprehension of the evidence and the law. Where it is evident that there was a misapprehension of the evidence; a miscarriage of justice or; a violation of some principle of law or practice, then, a second appellate court will be entitled to intervene and make its own findings. As we shall shortly demonstrate, both courts below were urider a serious

misapprehension on the nature of the evidence as well as the applicability of the doctrine of recent possession. Having revisited the evidence on record, we note that, at the trial, the appellant was implicated upon two strands of evidence. The first strand pertained to the appellant's possession of foreign currencies that were, allegedly, stolen from the Bunena Mission occurrence. The second strand of the evidence depicted the appellant in extravagance shortly after the occurrence. To begin with the first strand of the evidence, we fully subscribe to Ms Komba's submission that the evidence fell short of t establishing, first, that the appellant possessed the foreign currencies and, second, that it was not shown that the bills involved were related to the ones stolen. More specifically, in the first money change transaction, the dealer, Zulfikar, was insistent that he transacted with Syliver and, actually, pointed to the 4th accused when asked to identify in court the person who accompanied Syliver. Likewise, as already demonstrated, in the Bank transactions, the appellant did not feature anywhere. More particularly, the currency purchase forms were filled and signed by Syliver in the name of Angelina Marco. On the proper application of the doctrine of recent

possession, this court succinctly stated in the unreported Criminal Appeal No. 94 of 2007 - Joseph Mkumbwa and another v Republic: For the doctrine to apply as a basis o f conviction, it must be positively proved, first, that the property was found with the suspect, second, that the property is positively the property o f the complainant, third, that was recently stolen from the complainant, and lastly, that the stolen thing in the possession o f the accused constitutes the subject o f a charge against the accused. It must be the one that was stolen/obtained during the commission o f the offence charged. The fact that _ the accused does not claim to be owner o f the property does not retrieve the prosecution o f their obligation to prove the above elements. As was correctly formulated by the learned State Attorney, none of the foregoing pre-requisites were met by the prosecution in this case. The appellant refuted ownership of the foreign currency in issue but, as was held above, that would not have absolved the prosecution of its obligation to prove those pre-requisites. To this end, we are of the settled view that the evidence fell short to justify the application of the doctrine of recent possession.

. Finally/ the other limb of the evidence pertaining to the appellant's *• spending spree need not detain us. If at all, the accusation was remotely connected to the occurrence and in any event there was no evidence adduced to depict the appellant's economic standing so as to enable one to positively allege that he suddenly engaged in extravagancy. The purchases he made were ordinary household provisions and, in the circumstances, his spending was, just as well, susceptible to an innocent explanation. All said, this appeal has merit and is, accordingly, allowed. The appellant's conviction and sentence are, respectively, quashed and set aside. He is to be released from prison custody forthwith unless if he is held there for some other lawful cause. DATED at BUKOBA this 28th day of February, 2014. M. C. OTHMAN CHIEF JUSTICE E. A- KILEO JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original.

Z. A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL