Asenga s/o Prus & Another vs Republic ((Hc) Criminal Appeal No 46 of 1999) [1999] TZHC 274 (1 September 1999)

IN THE HIGH COURT OF T.ANZJi.NIA AT T.VJOR.A. _________ ,.,-- APPELLATE JUP..ISDICTION ( Tabora Regis try) (HC) CRIMINAL APPEAL NO [:.6 OF 1999 ORIGINAL CRIMINAL GASE :ao 385 OF 199 7 OF THE DISTRICT COU HT OE' SIIT.NYiL.l'iGA DISTRICT AT S!iINYAHGA ,C,-V.;.w.l. ... ·. ·, Before: J .N. SOHI Esq. , IRIHCIP AL RESIDENT MAGI STR.A'IB ASENGA s/o Prus •.. I1AJALIWA s/o ABDALLAH • • • ••• .APPELLANT VEl1SUS THE REPUBLIC • • • • •• • • • ••• • •• RESPONDENT The two appellants, AsengaP~ and Hajaliwa Abdallah, were convicted by So~i, Pfil\1,in the :District Court of Shinyanga at Shinyanga. 1 .rhey had been charged with being in °:9·6-s'session of pro:::ierty suspected to have been stolen or unlawfully obtained c/s 312 (1) (b) of the :penal Code. As I say, they''wcr0 convicted, and each was sentenced to thirt-y ~"?:.!,tgi im:prisonmerit. They are aggrieved and hence. this a:ppeal a.gai;:1s t conviction and sentence. il'.u.· 1•1wam:poma, the learned senior sta-t0 2-ttorney who appeared for the Republic/respondent has some doubt about the efficacy of the convictions. He has, therefore,-8.dvis'od.me to a3:-1ow the appeal. I I' The facts of the case are 1 actually, not involving; ~, Policemen in Shinyanga, at around 3sOO an.1, received information from an informer that the ls t ap:pella;.1 t W3..s harbov ing some drugs. I It was said that these drugs were of an .i·J. G.O (Unioef) and that 1.·. . . ./2.

i 11 {He) CH..APFEAL.lm.46/99 2 they were destined for Zaire. S0 9 the first appellant, it was said, must be having them unlawfully. Four policemen straight away went to the house of the first appellant. 1 l1hese policemen were Assistant Inspector Nichael PWl, S/ gt EliotPN (not called. to testify): Cpl/ Deodutus (not called to testify-) ancl f.C.Protas (also not called to testify). They went there and it is said found the box of cL"f'Ugs in the room of the 1st a]:)pellant. 1 I1h0 1st O.l)fellant then told them that the box of drugs belonged to the 2nd appellant, who is a neighbour to this f,irst a:p:pellant. They went to the second appellant and arrested him. The search, a.ccordin3' to the record, was done by these ~ :policemen in the :presence of a civilian one ~himu Matu tu. This person H.ashimu Matutu was !!.9..1 called to testify on behalf of the prosecution. He testified on the defence. The first appellant told the Court tha,t he was, indeed, awakened at night by :police. He discovered that it was :policemen who had come to his house. '.:lien, suddenly, he discovered that the policemen had ~ boxes. He did not lmow where those 1)oxes had come from, He said, indeed., some two :people came to the scene. They were Ma,jaliwa Abdallah, be second appellant, and Ha.shimu I-'Iatu-t;u. These (appellants) were arrested and sent to the :police station, and then charged. 'Ihe second appellant, similarly inforrnecl the court that on that day (23/9/97), he was sleeping in his house. He said, there were from some noises m!lanating L the, home of the 1st 2..:;,pellant. And so he went there. He then saw some boxes ' 1 outside' 1 'the house of the first ap:pellan t. The boxes were takei1 away. 1 l1l1e second appellant thinks that he was arrested because he went to ask why the :policemen were harrassing some :people at that odd. hour, disturbing their sleep. There are five things which could be said about this case. J'irstly, I have also wondered, just the same way as Mr Mwam:poma wonder.e<.l, why these other :policemen did not come to Court to testify,

{HC )CR.APPEAL NO 46/99 ·3 at least to "cement" as I'ir I'![wampow1 put it, the case of PWJ.. Surely, these policemen could have assisted to dispel these allegations that the boxes were planted on the first appellant. Secondly, I have also wonderGd why, even the civilian who .•, witnessed the search (Hashimu j-Iatutu) was not oalled to testify on behalf of the :prose cu tior... Polic0 searches must involve civilians, at least. And those who witness the search must testify. If that is not done then quite often· these imiuonc~·oc, by the defenoe that the particular articl,e was planted by the :police find entertaimnent. Courts have held that where availatle evidence has not been callecl., there arises a suspicion that the evidence would not support the allegations concerning it. Thirdly, the second appellant, was arrested, at least acc,orclin 6 to PWJ.., by the :police themselves, after the first appellant had mentioned hin1. That type of ass0rtion should not have been acted upon by the :police the way they have done. In any case the charge is being in possession~ of goods 1 directly or constructively. In the instant case one cannot say that the second appellant was in 11ossession of the dru.gs directly or constructively. He was dragged away from his house in the 11eigl1bour hood. There is this obiter by Sir Ronald Sinclair CJ in the case of Omparkash Gandhi ~['1961JE.A 643 at page 647 which says that: 11 In all these· case . I- . l rossession cases and receiving casesJthe defence is never required to do more than .... ~ ·•, ~ .· ' show an explanation whicf1 is reasonably possible in the circumstancesz Such cases are not really cases I I ' of om;.s of proof upon the defence in the persuasive sense for in truth in ouch cases the onus is upon tho :prosecution throughout to r,rove every essential of the offence beyoad reasonable doubt and it never I• ·••/'+•

shifts to the defence ---" I ar:1 therefore doubtful if that onus was discharged by the prosecution. And~ fourthly, the "cementing" of the evidence of PID that Hr 1·1wam1;oraa talks about is generally, though tau tologously termed 11 Corroboratio::-1 11 • And 9 corroboration as the clefini tion goes, is in:.:;:;: e::c:c~it evidence tending to connect the accused with the crime committed (see case Rv. Jairi Mairor;o T1968_l E.C.D iiD,300) There was no such evidence, I am afraid. And lastly 9 the evidence unfurl eel here runs into trouble with the element of control. It is not exactly Known where the boxes of drugs were found. Control is an essential element ·in J)OSsession: Cases ( see Hobson v. L--n:pett 41 Cr. A:p 1 "J. n. 130) I would, therefore, agree with the learned SE:nior state attorney that the charge was not :proved beyond reasonable doubt. · Both appellants ought to have been acqui ttecl. The a:ppeal is allowed in its entirety. The two appellants shculd be set free, unless there is sonething else which is lawfully Kee:png them in jail. J.E.C. JU j)GB At Tabora 1st September 1999 lVIr Nwarn:poma S. S.A for Republic