Joel Silomba and 3 Others vs Republic (Criminal Appeal No. 6 of 2000) [2000] TZHC 356 (30 June 2000)

IN TH HiGH COURT OF TANPJIA AT MBEYA CRIMINAL APPEALNo. 6 OF 2000 (Original Criminal Case No0 132 of 1998 of i'reozi District Court at Vwawa Before: F.C.P. Mdendeini - District Magistrate) 1 JOEL SIL0,13A ) 2 BEN FIJABO 3 JULIUS MTAWA )0000 APPILLANTS 40 LAUD MhPUNBA VERSUS THEREPUBLIC RESPONDENT JUDGMENT The hearing of these three appeals was consolidated0 The four appellants, Joel Cilomba (first appellant), Ben Fij,abo (second appellant), Julius Mtawa (third apellant), and Daudi Mapumba (fourth appellant), and three other persons, Anyitike Mwakasoge @ Tike, Yared Nason, and Nasa Fijabo, were jointly arraigned before the district court of Mbozi district at Vwawa as the fifth, first, sixth, second, third, fourth, and seventh accuseds respectively, on an indictment which contained three counts The first and second counts were irmed robbery, contrary to sections 285 and 286 of the Penal Code, and they were in respect of accuseds one to six The bhird count was Receiving stolen property, contrary to section 311(1) of the Penal Code, and it was in respect of the seventh accused0 It was alleged in the first count that on 6th July 1998 at about 11000 pm at Lunowa village in Mbozi district the first to sixth accused persons jointly and together stole 20 bags of coffee valued at shs01,200,000/= the property of Rahel d/o Dickson and immediately before or after Stealing shot a gun bullet in the air in order to obtain or retain the property0 Particulars of the second count were that one the same day about half an hour later at Lungwa village in the same district the first to sixth accused persons 000000000 12

-2- jointly and together stole 20 bags of crffee of same value, one bag of beans valued at shs0 30 ,000/=, and one radio make Phillips valued at shs 18, 000/=, total value shs,1,248,000/=, the property of Juma s/a Tulalishe, and immediately before or after the stealing fired a gun bullet in the air in order to Obtain or retain the property0 And the third count alleged that on 7th July 1998 at about 3.00 AM at Ilembo area in same district the seventh accused received and retained 32YP bags of coffee valued at shs02,400,000/= from first to sixth accuseds knowing or having reason to believe that the property had been stolen0 After a full trial the fourth accused, Yared Nason, was acquitted of the first and second counts whereas the rest of the accused persons were convicted as charged0 For the first and second counts the first, second, third, fifth and sixth accuseds were each sentenced to thirty years imprisonment on each count which was ordered to run concurrently0 Twelve strokes of the cane were also ordered for each0 For the third count the seventh accused was sentenced to five years imprisonment0 The convictions and sentences aggrieved the appellants, hence these three appeals which are not resisted by the Repub1ic Rajabu Yusufu (I2) was the driver of Isuzu lorry reg0 No0 TZ 50598 which was for hire and stationed at, and operated from, the Municipality of Mbeya Its turnboy was one Richard Festo Kasyanju, who did not testify0 On 6798 at 5000 pm lorry PW2- and his turnboy had been servicing the at Chipukizi Garage in Mbeya Municipality0 Two persons arrived there and told PW2 that they had 150 bags of maize they wanted to ferry from Itaka village to Vwawa town in Mbozi district0 They were the first appellant, Joel Silombe, and the fourth appellant, Daudi Mapumba. They agreed at hire charges of siis.60,000/=0 The first appellant paid shs.35,000/= on the spot and at 6.00 pm the lorry hit the road towards Itaka village with the first and fourth appellants leading the way. They sat beside PW2 at the drivers cabin. The lorry arrived at Mlowo village and the two hirers told PW2 to stop. Two people embarked in the lorry. It was already night and PW2 could not identify them0 Two additional people were picked at Vwawa town. 00000000.00000 /3

The lorry ai'iyed at what i2 was told was Itaka village and he was directed to stop and park the lorry infront of a certain house0 The house turned: out to be that of Pahel d/o Eson (.PW+) The six people disembarked from the lorry leaving PW2 and the turnboy in it0 They were joined by other people0 The hirers directed PW2 and his turnboy to remain in the lorry at the drver's cabin One accomplice holding a machete Stood guard over them PW2 suspected something was amiss0 A gun was fired in the air and the people, about o in all, orole into 11he. liouse of F 1 44 and entered They came out carryliag bags of coffee whicia they ioaded in the loiry0 They were 20 bags in alL he people covered their faces witn caps0 was oraered to di ive tie lorrj to anottier house ,hch was acout 3 U, D paces away It was the house of iklarge Izowa (J5) and a similar roober exercise took place there0 At this house abagf beans and a radio iiake Phillips were also stolen0 As soon as the robbers left the hoe of PW she rhiued an alarm which was answered by, among other persons, their neighbour, Nussa walembe (PW6), who went there0 PW6 took a rnotbr vehicle in pursuit of the lorry and also iO the incident at Vwawa. police station0 The police were theta all out in sarch of the lorry. Neanwhile after loading the stolen property at the house of ?W5 the thug with the gun, said by PW2 to be the third accused, sat itafront and ordered PW2 to drive back to Vwawa town0 At Chaula petrol station near the market the second appellant, Ben Fijabo, also t;oved to the front seat and directed P 1 ,12 to a house in Ilembo area0 The coffee was offloaded in the house.. The first apuellant paid P02 the balance of shs025,0001 =0 The seventh accused who had opened the door took part in off.loaaing the coffee No of the robbers with faces concaled with hats boarded the lorry and directed PW2 to drive back to Mbeya0 They we:e to ensure that P12 did not alert the police At henjele area, howeve.r,,.t.hc-I two persons alighted and disapèred0 PW2 and his tuboy decided to proceed to Mbeya where they would have reported the incident to the police0 But at Songwe village they were stopped by VwawapTide0 They explained the whole incident to the polices They led the police. , among them D/C Saidi (Pill), to the Ilernbo house where the •o.o.o /i-f 0

coffee had been offloadeth P.t the sitting room and in one of the rooms 324 b'ags' of coffee were found0 An old man said to be the father of second appellant Ronald Anyosisye Fijabo, allegedly told the police that it was the second appellant and his colleagues who had brought the coffee to the house0 But Ronald did not testify0 But his statement recorded by D/Sgt Edward (P48) on 7798 was tendered in evidence (It P6)0 The statement of the turnboy recorded by D/C Julius (PW10) on 79.98 was also tendered in evidence (tP7)9 The two statement (cts P6 and P7) were tendered in evidence under section 34B of the £'vidence Act 1967. The learned state attorney, 111r. Boniface., submitted that the two statements were inadmissible in evidence0 With respect,.I agree iith him0 Section 3+B of the ZNidence Act allows production of a statement -. of a witness who for some reason cannot be called to the court to testify orally0 But before such a statement is tendered in court for admission as evidence, in the case being tried, each and every of the six conditions set out under section -3 1 +B(2) as (a) to (f) must be complied with fully0 In this case, conditions (d) and (e) were not complied with, and this, in law, rendered the two statements inadmissible L'vidence of what the said father of the second appellant, Ronald, is reported to have told the police, becomes hearsay evidence and inadmissible0 This is d on account of that. evidence of a statement made to-. a witness by a person who is himself not called as a withess is hearsay and inadmissible when the object of the evidence, as here, is to establish the truth of what is contained in the statement0 On 7798 PW8 recorded a èautioned statement of 7th accused (-t PLf) in which he admitted to have received the coffee fromthe second appellant0 On 1.998 A/Thspo Luvanda staged an identification parade (Ect P) at Vwawa police stat.ionout of wiich i"2 pi&ced the fourth appellant0 no. on 24 12 9b D/Srt Ivo (P9) recorded a cautioned statement -of' the third appellant in which he confessed participation in the crimes and implicated his co.accuseds0 The fourth 'appellant and seventh accused were tried, convicted and sentenced in absentia in terms of the provisions of section 226(1) of the Criminal F'ocedure Act 1985 They had jumped bail and failed to enter appearances despite several 00I9•0900e /5

9/ UOT 10@9 aqq JO (1) uoqoeqns JO 2UOISTAOJd et; ttr prdwo ou aJ@M UOT400e oq Jo () uo oeqn jo 24uewertnbax aqq eieqi qT44 pir 'uini 04 poorepTrn pu UMOfl entxw eLla trr penoot et; 0; peutdxe PUS JCAO pex eq ;nw npuxowetu e; jo we;tzoo eTa; ;u; 4rtp iioqpuui eothwt ?61. uot;Oe JO () uOI;OeSqn9 ;u; l0rri (66t-) Ot-qfl u' peq twizu jo edcl jo ;mo et; jo (c);-76L uot;oe leptxi 09 op o; ;uewe.nnbo.x Rjoqvpuea, o; xeJ;uoo qi o; e.xn;ut rtotl; popuocl Joq; exoJeq o;ncitp ut eq o; ;ou puno; 9JOIEUI ]0 UfltI9JOW8LU Ot IO$.10d PaSnOOU UOAC$ Ot 04 pOutWrClXo PUU IOAO pO.I ex;GTw TJq. Gqq. pJ000J Ot7. Ut UOtW0PUT OU ST &J-3L ;?q; 'PUO080 VdD oq; Jo ()c uoi;oes japun oiqino uoeq oAq pino 'eiooieq; ' Ine.Lrt eti eue;sqns ptt ;ue;uoo Ut OUI9$ $M T .00tj9 OJ$I0 t9OJJ Ot Ut PYELI 02 tIM0UUfl JO MOU UtLflOU s 'g-em e.xe r8Tec[ct$ prttfl. @ ,- T4 a; pouot$e000 ueoq 3Aj pflOM oot;snçut oil 'qitw ; -t ocj peut.x;ut ;ou OJOM 'tTCTJ JO ()()+1 c? U0t309 JO SUOT9TA -ojct oq; oq ';oaq$ er$tio qex; peonpoJqiit eq; J0 eKE9flTOUt 9M titjM ooIxo$qe $Ttl ut peJi ira; pq qo -ctg jopostcld'e ot ;q; ;oj oq; pu xeTTec3Id prcq; 04 JO ATLI$ &q &ITjEotpirt ;noo eq; q o;ou t eJetf; Je J utoIT wturtTeJ( uipet eqq. JOpUfl RTetPCU1WT n 0 p9Ut$tCTX3 pUl ;no pGJ 913M ;eeq ereqo ie.xj eq; ueqM ;ueq 9fA ot o °oei ;.inoo wt pOAixx9 ;uwrredth prçL[; eqs, uos.xecI pasnoOS ç pouie;uoa ;eou eeo GflotAOJ oq; ;iq; Ruo ';eotl$ eJeq0 GnOlAeJd oqq. Jo eo -qdex ' euo snoTAead ott; 1Oj Asp ;iq; uo peonpoi;ui $SM ;eeqs ereqa ;uesod eqT, ;ueJoJjtp so;o:rpui 'JCACMOLT 'pJOZeJ eqs, es'so uol4n0090Jdl a -qq JO uo"tq;uesed iq pOMOTTO.] gehl vtOT Vm uieq 9UTaL 1 @Tr AmutWtToJd Oq; oJo;eq 6Ev9t. uo se.xtjo eq; oq. peicT ;ou Pp ;iiTTodd PPI; °i; '(vJD) c96t- ;oi - eInp000J,l eunut3 otp. Jo ()()ç uot;oes jo SUOtSTAOJd JZJo$pU$W aq; Co. Lr91t100 ;T2 u11edcl ;ueAeoJ ott; JO UOt;OtAUOO Ott; eqt;tA pnoo 'pe;;tu!qns eq & VOTqM JO Tpa set;TJsTneJJt eJnpeooJa. 1JOA&9 t;i ;no eursa '1i;sxtJ 'eojiuo °JTT °SBOUOJJO OL JO eurt; ie -teow ott; ; eJeq; xo oeq uooq esq o; ixtaitoio tqt Jo seouejep pes -rs.x s;ixotieddo ott; Jo ;soi oq 'PagnOOP i4U0A&$ otja ;ou qnq to o; ques Pu 0 pa;SOJJO t!OOC[ J3J 09 Spu ;urOTTecdds u;no; 0L "0903 Ofl JO -t

• b - cannot appiy. But again, and with respect to Mr0 ]3oniface, the record seems to indicate differently0 When it came to the turn of the accused persons to speak in the course of the preliminary hearing there is a recording by the trial court that those accusedsesent have adnitedveraciyof facts No. 1. 3. rL5i 6 , 17and 1 90 And more, listed as a matter not in dispute is That the contents of items, 1, 3, +, 5,16, 17, and 19 are as stated by the P.P" It comes out from the foregoing, therefore, that the contents of the iuemoraxidwn were read and explained to the accused persons before they signed it in compliace with section 192(3) of the CPAO I thus find nm substance in the complaint by the learned state attorney in this regarth And third, that the fourth appellant was arrested after the trial and sent to prison straight without first being taken before the trial court in terms of section 226(2) of the Criminal Procedure Act which reads: 226(2) If the court convicts the accused person in his absence it may set aside such conviction upon being satisfied that his absence was from causes over which he had no control and that he had a lrobable defence on the merit I think the learned state attorney has a valid point in this. The construction given by the Court of Appeal in Marwa s/oahendev.Reuh1ic, Criminal Appeal No0 133 of 199+ (Unreported) is that an accused person who is arrested follwing his conviction and sentenced in absentia should be brought before the trial court first, and not to be taken straight to prison0 For, if he is taken straight to prison the trial magistrate can no longer exercise his discretion under the subsection. In other words, once the convict goes into prison ns serving the sentence, the magistrate is functus officio and he can no longer reopen the case in order to secure the purpose for which the subsection is designed0 Failure to take the convict before the trial magistrate to exercise his discretion under the subsection may be fatal to the proceedings in as much as it thereby denies the convict his fundamental right to be heard. It all depends upon the circunistance€ of each case. 0 0%0000O 00 /7

Inthe case of the fourth appellant, however, I am.satisfied, firstly, that the question of his absence having been from causes beyond his control did not ar_se i e had juiped bail. And secondly, that the possiblity t±ns he could have had a probable defence on the merits was not there. I have gone through the trial court's record with the.greatest care0 1 shall first con5idcr the evidence against the first and fourth appellants0 1 am satisfied that they were properly identified with the crimes0 The, identification evidence of PW2 was watertight. He had been wit. these two appellants for alongtine right, from when it was still brod .day.git. H,could not therefore have made an error in identifying the first and fourth appellants. 2he learned qtate . attorney conceded that these two appellants were properly identifie. The learne4 trial magistrate had carefully considered the first appellant:s valiti,ppd. rejeq .1 a. satisfied that the magistrate could hbt'hae been faUlted. " lii " B±itiôn with the first and fourth appellants, therefore, there shall, have to be an order dismissing their appeals. I pass on to consider the appeals by the second and third appellants. I would agree with the learned state attorney that evidence against them was uEreliable and insufficient. PW2 did not have same opportunity with them as he had with the first and fourth appellants. It was during a dark night. He did not say by what means he had seen and identified them. They had not met before. Pssibllities of mistaken identity were glaring, dome of the robbers had their faces covered with hats. P2 did not say the second and third appellants were exception. So the identification evidence of PW2 in connection with the second and third appellants was not reliabie. There was the cautioned statement of the seventh accused (ct P4) which implicated the second appellant. It would be recalled that the seventh accused Was not in court4 Assuming without deciding that the statement was voluntary, a conviction, as a riatterof law, should not he based solely on the confession of at co-accused— SEE section_33(2)_of the Eijidence Act 1967. The words "take into co'sideration in section 33(1) of the Act mean that such evidence is of the

t kind and can only b•e used as lending assuarance to other CT. 'ce against a coaccused, which was lacking in this case0 P.d there was, finally, the cautioned statement of the third rcellent P5) in which he implicated himself and the co-accusds, 1 e':' 'th the Jearnrd state attorney that the statement was improperly adnii't.ed in c7"OncP. it was admitted in evidence without any preliminaries0 The third appc1lut was urrsrresented by learned counsel and the statement . was. a corifesic:a ad the trial me±strate admitted it without first inquiring into the circumstancc.', ind.r which it was made and without first giving the appellarit,an opportunity to challenc its admissibility. This court held in l4asas ila LJp oav o R (19 2 ) T L 2 31 'Wiiere the admissibility of a confession comes about in the 1agistrates Courts, in which a trial within a trial is not strictly applicable, the magistrate should take up the matter, and inquire into the circumstances leading u to the taking of the statement in much detail, and ah the accused whether .he plans to 'challenge the admissibility of the statement0" ' in le:. the burden was entirely on the, prosecution to prove that tb' statement ' 2

• -) wcs voluntarily n'laae by the third appellant beiore it was 8 flitted in vicce0 The third appellant challenged the voluntariness of the statement in h:s defence. he alleged torture0 This was after its admission in ovidence0 In U te circumstances of the case, I find myself unable to say that 1.ad the learned t - r.egistrate observed the correct procedure he must inevitably have come, as : dc', to the conclusion that the statement was voluntary0 So the e'-t"ertt was not "''--- ac'lltted in evidence0 'the foregoing finding, there remains abslhtely no other evidence c rnecting the second and third appellants. wit ,t1.-charg"f±'erred against them, ihgly allow their appeals, quash: their' convi'ction, set aside their sente "- order the immediate release of the second and third On nd Julius Ntawa, from prison unless otherwise lawfully he1d Fewever, the 'le by the first and fourth appellants, Joel Silornba and haudi .LuOba, are r G

dismissed in their entirety0 AT 1. 3 1EYA. 30 June 2000

• For Appellants: All present0
• For Republic: Nr Nangela, L.A. B. P. 11406111 JUDGEO