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Case Law[2013] TZCA 2232Tanzania

Nasibu Amdan Abdu vs Republic (Criminal Appeal No. 261 of 2009) [2013] TZCA 2232 (27 September 2013)

Court of Appeal of Tanzania

Judgment

., - . I d,r IN THE.COURT OF AP~ AL OF TANZANIA ., . ATMWANZA • . , : ,l . - . (CORAM: RUTAKANGWA. J.A~. ORIYO, J.A., And KAIJAGE, J.A.) CRIMINAL APPEAL ·b. 261 OF 2009 . . . ! ;I '' NASIBU AMDAN ABDU ................................................................ APPELLANT . . . VERSUS . I . THE REPUBLIC .............. --- ..................... :. j ....................... .. 1 ••• ... RESPONDENT (Appeal from the decision of ie High Court ofLnzania . - . I . atMWanza) , ·I . (Rwakibarila, J.) . i -I · ---· - Dated 22 nd day of Joly, 2008/ in:_ '.I· :

      • I Criminal Appeal No. so.of 2008 --------Lti'---. '' JUDGMENT Of. THE COURT . Ii . 24 th & 27 th September, 2013 ORIYO, J.A.: i I I I I ' 1

I ' i : I I I I 'i i l

  • I : I r i ! 'i '1 i 1 t) The appellant, Nasib Amdani Ab~, and another were convicted in the .. · 1 ! District Court of Geita of Armed RobbJry contrary to slction 287A of the . Penal Code. They were sentenced to 1 i custodial sentlnce of. thirty (30) · . : years imprisonment. Their appeal to te High Court jas not ;tlccessful, : ! hence this second appeal. For ease oi eference we redrodUc ·tt\harge . : ! · · - · - '. I ·- - · · · · -·-•t<f:: · - · q , ! . . ~ r~1 .... ..,.,. . . i i sheet as hereunder:- I J ,· . -· i. ,, : .. :, . 1 : i I"!) ~ ! I I ,·

"CHARGE SHEET Name and Tribe or Nationality of the Person(s) Cf?arged

  1. Name: Nasibu Audan @ Abdu . 2. Name: Hashim Omari · Tribe: .Nyamwezi rr-ibe: Meru Age: 24 years Age: 19 years Occup: Peasant. Occup: Peasant. Address: Kahama ·Majengo Address: Msalala Road Geita.
  2. Name: Stanslaus Raphael 4. Name: Dickson s/o Maganga Tribe: Nyamwezi Tribe: Sukuma. Age: 27years Age: 25 years. Occup: Peasant Address: Mwatu/ele
  3. Name: Bahati John Tribe: Ha. Age: 32 years. Occup: Peasant Address: Msala/a Road Occup: Peasant. · Address: Nyamhanga-Kahama. 2

I I I Offence Section and Law: I I Armed;: Robbery c/s 2v {A) Act No . . 1: I 4/2004. i I!. I Particulars of Offence: That Nasi4u s/o Audani ~ Hashimu s/o i • I, • I Omari, Stanslaus Raphael, Dickson f aganga and Bahati s/o John 11 . I Jointly and together charged on gh! day of April, 2005 at about , l I. 03:40 hours at Lwenge Street within Geita District in Mwanza II I I Region did steal one TV screen f,ake Hitach va(ued at Tshs. . Ii I I I 270/000/- one TV Deck make Hitachi valued at Tshs. 120/000/=/ . .· I . 11 I . one Radio Cassettee make PanasonYc valued at TS/d.l 'S. l00j000/- 11 and one mobile phone make Nokia .va/ued at Tshs. I 19lO00/= all • I I total value at Tshs. 682/000/= the! property of one Venence s/o I . I Meiba and immediately before orJmlpediately after tAe time of such !i . I steal did use actual violence by cutting his daughter1·one Ester d/o/ II I siba with a panga on her hand in orer to obtain or rJtain the stolen t I property. I Station: Geita. Date: 15/4/2005 I .j i I . I Sgd......... ·t·····••·••······· I I PUBLIC PROSECUTOR" I I I I I I I I I 3 ; !

At the hearing of the appeal, the appellant appeared in person. The respondent Republic was represented by Ms. Revina_ Tibilengwa, learned. State Attorney. She supported the conviction and sentence. Regarding the grounds of appeal, she submitted- that as the appellant · was not identified at the scene of the crime, the courts below erred to rely on this piece of evidence to convict. She stated that since the incident took place in the night, the complainants, (PW1 and PW2), did not know the robbers before the incident and there was no description of robbers at the scene given, the visual identification at the scene was very weak to identify the accused without leaving any doubt. However, Ms. Tibilengwa further submitted that in her view, there is strong evidence on the doctrine of recent possession against the appellant. Elaborating, the learned State Attorney stated that it was around 5:00 a.m. when the incident took place. PW1 raised alarm, neighbours responded and police were informed. PW1 mentioned the stolen items as Radio Cassette National Panasonic make, TV screen and deck of Hitachi make, a curtain and a mobile phone. The appellant was found with a radio which PW1 identified as. his stolen property. When required by the police 4 .. il I

11 I! 1! I investigator _to explain the whereabouts// of the TV, he· is said to have I I directed them to a certain unfinished bujlding where 2 nd I and 3 rd accused . 11 , allegedly were found with a TV and a [Piece of curtain( Ms. Tibilengwa ii stated that PW1 was also able to identi~ the TV and ct.,rtain as his. The II I learned State Attorney submitted that ·givkn the circumstapces under which . ii . the accused led the police to where the stolen items were'recovered, this is 11 I evidence which can be used against the J 1 ccused person in terms of section . ! I 31 of the. Evidence Act. The learned itate Attorney, i~ concluding her submissions, stated that even if PWl failed to prove ownership of each :1 I I ' item, the doctrine of recent possessio:'n was still applicable against him. . ii ' 1: . I The appe_llant had nothing useful //to tell ·us save for the denial of I . involvement and that he was arrested at// Mug usu without any of the stolen I I properties. He also challenged PWl's roof of ownership of the stolen I I items. I 11 Th main issue here is whether tpere was sufficient proof that the I 11 stolen goods were properties of PWl. rr_the case of JQhn Bernard and . I I Another vs. R., Criminal Appeal No. 149 of 2011 (unreported), in similar 1 1 I 1; circumstances, the Court held as follows;/- 5

''.4s already statecl · the main issue in this case is whether there was sufficient ~proof of .the · complainant's ownership of the stolen goods. Most of the stolen items are common items in most · households. For instance/ TV Hitachi or Generator Tiger - these descriptions are mere brand names. The law requires a more specific description of the stolen items such as the serial numbers/ which are normally embodied on the body of the particular article in question. H That is one aspect of the issue. The other aspect of the case which has given us anxious moments is the rationale of the first appellate court decision to convict the appellant who was the informer that led to the arrest of 2 nd and 3 rd accused (Hashimu Omari and Stanslaus Raphael - deceased, respectively and the recovery of the TV and curtain) and acquit the latter. The record shows part of PW4's relevant evidence as follows:- 6

I

  • l , ''I arrested the 1 st accuSed rson carrying rario. I took him topolice stiltion. Thre I met PWl and he , I identified the said Radio to Aave been stolen! from . . I : his house. When I examined the 1 st accused Jerson . I I - . he said that the TV 1s· at Masalala road at one . , . I . I unfinished building. ·He to&k us there about 6:00 ! I I , hours.· We saw two persons sleeping there ~aving I I panga at (sic) their hand. lfhey were the Z!d and I I 11 I Jd accused persons. We mi2t (sic) them w, 1 th TV
  • I being covered with curtain. I e took them to !police . I . station and it was [dentified /Jr PW1. ✓, I Ii !i I I I Relying on the sae evidence the High fourt upheld th! conviction of the .. appellant and acquitted his co-appellanJ We failed to grasp the rationale . ' . I I behind the double standards, discrjminatory, differential treatment I I accorded to the appellant and his colleabue. To us, it appears to be highly discriminatory, illegal and unfai~ to the aipellant in the ci~cumstances. !! I I ii I I I 7 I . '

In the case of Mwakani Shehe vs. R., Criminal Appeal No. 155 of 2011 {unreported), the Court, sitting at Mbeya, confronted by similar circumstances said:- "The way the trial court treated the evidence of PWJ and PW2 affected the reasonableness and fairness of the Judgment of the trial court towards the appellant. We cannot but conclude that the trial court and by extension the first appellate court erred in law by according different weights to the relevant evidence of PWJ and that of PW2. This ·amounts to misapprehension ofevidence." We fully associate ourselves with the above observations. If the· evidence of PW4 was ·not cogent to sustain the conviction of Dickson Maganga, it should be accepted without further discussion that it was equally · unconvincing to sustain the conviction -of the appellant, who had unequivocally told the trial court that he was at Mugusu and not at Geita town when the robbery was committed. We are of the settled. mind, therefore, that if the first appellate judge had given consideration to this 8

defence of a/ibt having doubted the evidence of PW4, he would not have dismissed the appellant's appeal. In view of the peculiar circumstances unveiled abovf, \f!e find merit in the appeal, which we hereby allow. wJ order the immdiate release of i . I the appellant from prison unless otherwise held for a lawful= cause. I I I , . I . DATED at MWANZA this 2ih day of September, 20tl.3 .. • I • I E. M. K. RUTAKANGWA JUSTICE OF ~PPEAL I K. K. ORIYO JUSTICE. OF APPEAL S. S. KAIJAGE i JUSTICE OF APPEAL I certify that this is a true copy of Je original. 11 ' . . ii . W. Bampikya , SENIOR DEPUTY REGISTRAR COURT OF APPEAL I I I I I I I I 9

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