Prosper Mwalukasa vs Republic (High Court Criminal Appeal No. 44 of 1991) [1999] TZHC 317 (5 March 1999)

, . • : •• < ,' ~ t, ' .. ,· MOSHI, J •. " IN THE HIGH COURr OF TANZANIA AT MBEYA HIGH COURl' CRIMINAL APPEAL NO. 44 OF 1991 (Original Criminal Case No. 113 of 199? of ·. the D,trict Court of Mbeya at Mbeya Befor,e_: S.M. Rumanyika - Resident ,.Magistrate) PROSPER MWALUKASA .••••••• ,,.. • • • • APPELLANT Versus THE REPUBLIC RESPONDENT. JUDG-lENT The appellant, Prosper s/o Mwalukasa, was aigned before the district court-of Mbeya on an indictment which contained eight ·counts._ The eight counts with their short statement of facts· were: First count: Stealing, contrary to Sections 258 and -25 of the Penal Code, in that between, 2h September 1994.and 13th Feb·ruary 199.5 at unknown place within the United Rptiblic . .. .. ! .. of Tanzania the appellant stole Motor Vehicle Reg. No. . . . . TZG 71-T<;>yqta .. Coaster Minibus valued at" T.Shs.?,200,000/= frorn the Dio:ees_e of Mbeya. . Second count: Being in possessio"n of property suspected to have been unlawfully cquired, contrary to Section 312(1)(b) of the Penal Code, the particulars of which were that the appellant, between the months of February and March 199.5, at Mbeya, was found in possession of a Motor Vehicle ·Reg. No. TZC 3972 .. Mercedes Benz Saloon valued_. at T.Shs.5,400 1 000/= suspected to have been. unlawfully ~cquired. · Third count: Giving false information to a person employed in the Public Service, eontrary to Section 122(a) of the Penal Code. The 10 20 particulars were that the appellant,. using a fictitious 30 name of VENANCE S/0 MWAKYEMBE, on 9th January 1995, at Traffic Police Station Dar es Salaam, informed D._756 Copl. Jurna that Registration Certificate for Motor .Vehicle Reg. No. TZC 3972 Mercedes Benz Saloon was lost; information which he knew was . .. false in fact, thereby causing the said D.756 Cop1. Jurua.to issue Police Form No. 140/A. . ........ / ..

F

• 2 .. Fourth Count:~ Making a_ db-Oument without authority, contrary to Section 3'+6(1)' of the Penal Cdi in that the appellant <5n 9th January 1995 at Dar es Salaam, with intent to defraud the Motor.Vehicles Registrar, without any-lawful authority, -.wte a. letter in te name .of VENANCE S/0. MWAKYEMBE, a '. " ~ . . fictitius person, applying for a Duplicate Rgistration ! ; • , ' . • ••, . •, l • • • • ~ "' No. TZC 3972 Mercedes Benz ·sa1oori. · · · Fiftl\ Ct)unt: . Obtaining egistl:'ation by false pre_tence, contrary to Section 309 of ·the Penal: Code; the particulara of which were that tht!l appellant, using a fictitious name of VENANCE S/0 10 MWAKYE>IBE, on 9th Jan~~ 1995 at the Office of the Motor Vehicles Registrar Dar es Salaam, with intent to defraud the . •· Moto:t' Vehicles Registrar, wilfully procured for himslf a·· · Dplieate Regtration Certificate No. C. 00182965 for Motor Vehicle Reg~ N_o. TZC~ · 3972 ·Mereedes Benz Saloon by 1 :falsely-· pretending that he was ,VENANCE s/o MWAKYP;:MBE, te owner of . . ~ ' . the said motor vehicle, and that its original Registration Certificate was lot~ · Sixth Count: Giving false information to a person.employed in the Publc Service, contrary to Section 122(a) of the Penal Code, 20 • i .that. the appellant, on .2th February 1995 at the Central Police Station Mbeya, infonned D.5157 D/Copl. Vernaon that VENANCE S/0 MWAKYEMBE, a fictitious person is an existing person, information he knew was false in fact:, tereby ,ausiJlg :D.5157 D/Copl Veaon· to write the ·stat'ement of VENANCE S/0 MWAKYEMBE. Sev,enth Count: Giving false information to a person employed in the . . ',•'', Pu'plic Sevice, cntrary t_o Seeti.on 122(a)_ of the Penal Code. The partiulars were that the appellant, using a fictitious name of VENANCE s/o MWAKYEMBE, on 27th March 1995 at the Regional :,n c. I.D. Office Dar - Sala.am, informed Assistant Insp~~.\or Felex Rweyemamu that he is, the owner of a house· on Plots Nos. 1o66 and 1068 Block Byte Mwakibete area, Mbeya Municipality. valued at Sbs.26,677,000/=, information he knew to·be false in fact, intending thereby to ca.use As;istant Inspector Felex Rweyemamu ; ·blie~e-that ·the appellant is the true' owner of the said housr Eighth Count: · ·Giving false information to a. person employed in the public Service, contrary·to.Section 122(a). of the Penal Code, in that the appellant, using a fictitious name of Vl!NANCE S/0 MWAKYllMBE, ........ / :-

' 'I ,. on 17th March 1995 at the Regional C.I.Do Office Dar es S,§Ll~, .fqrmed Assis;tt Inspector ·Felix ·Rweyeniamu 'that. he is the owner of a,;Fm·valued at Shso4,000,000/= situated at S:isitila· .. ) :· Area, Blo_ck 11 X' 1 , Mbeya _Municipality, infonnatign he knw. to be • ·~ • • • • -~ • • r-- • • • •• • • • • false in. fact, intending thereby to cause Assistant Inspector Fel-ix Rw·eyemarnu believe that the appellant is the true owner of. .the Farmo .. The appellant pleaded not guilty to all eight counts d_a full trial . . ;. · __ ., :: .......... ensued. After the trial the trial court was satisfied that the offence of · .... •. ·.::. . .. .. ·.. . Stealing preferred in the f_rs _ COUP,-_as __ not _est_a?lish_d,, bt1:t _0:n_yj-;!.,tej?e. · 10 appellant under Section 306(1) of the Criminal Procedure Act 1985 of the .. . ... . . . •, .· . . .. •' .. .· : . . .. alternative offence of Possession-of property reasoably suspected of having •• • ,! •.• •, • • : I • ; • • • • been illegally obtained, contrary __ to Se_ction .312( 1.)(b). of t:h.e :Penal Code, and .• •• .. • • • • " • ' .._ .'' • '• • : • ,_ ; • • • I • I • ' • • • •· • • ;., ' ~ .,.. • • sentenced him to two yea+s. ill)p~:i,sonmen_t. n ;r:sP.ect of. coμnts to to eight . -. :- . .... ,:,•,.,,:l'J.,o•.-· ....... _ ,,, • the appellari.t was convicted ~ charged_ an,d s_entened to tel;'llll$ of imprisoe!l~. of .E!2 years, four years, six years,, two year.s., four months, four months, and .,,: . -- . ---ear~• .: .. · ·• - .. • . . - • '• four months, respectively, which y1ere,. together with . the P ent.ence fo-p the !irst ....__. ···.. ... . .. ,......... . . · ... coun~; ordered to run concurrentlyo Two conflicting orders-for the disposal r . •• • •• ,. . : , of the property involved in the case were madeo The property ompris ed of •• • ••• J - • • • Motor Vhicle Reg. No. TZG 7o61 Toyota Coter Minibus, __ Mot;oI' Vehicle Rege No. TZG 3972 Mercedes Benz Saloon, House on Plots Nos. 1o6_6 cmd 1068 Block ,1 1 Yi' : ... :·... . . . . . . . . . . . .20 Mwakibete area Mbeya Municipality, and Farm on Plots .Naso .-72 and 73 Block 11 X: 0 . . ..., . . .. ,: . . . . ....... . situated at Sisitila ;Area Mbeya Municipality. The fir.st-order was that the ' . : •:;:: .. . \ ,.:· ·. ... ·: . ... . property sould be handed ?ver to the cmplainant, the Diocese of Mbeya. Then another order was made that the property should be forfeited to the· Republic. I. The convictions, sentences, and orders for the disposal of the property,., ; ,1'':• .•. aggrievd the apellant and, in consequence, .,his learned advoeate at the trial, Mr. Mwakolo, prefe:r:red this appeal which was·:argued before me for the appellant by Dr. Lifuiwai, larnd-advoc~te, assisted by.Mr. Mwi:tlcolo, and resisted by the _30 learned Senior State Attorney for the Republic, Mrs·. Makuru.

• 4 - ~ . the-·:z-. -brot -o;i Fath~ C1en.dio Mwalukasa -of the Mbeya Diocese of the Roman Catholic Church who ied in a road accident on 20.9.94. I shall herei.na!t&r refer to the d prleat as the. late Father. t ... : . ' The late Father was the Treasurer - General of the Diocese responsible for -. ·,, '. • th administrat.ian o.f i.t&. financial. matters. The prosecution case, in broad terms, was that the late Fa.ther ,had acquired the -property involved in ihis:·. case for, and on behalf·,of, the Church, which was pa.id for by-Church· funds 1 .and.. then fraudulentls, and':ill c<lllaboration wit}) the appellant, prussed on that property to the apllant through he s of :;ruch -devices. as the a.l. ,· , · fictitious name of VENANCE MWAKYEM&., and.that.upon. the death of th lat.Q ,. 1P 'Fa.thet: ·toQk. tlji,PSS1.-0n of .'t.ne. rty .and placed cl.aims o-irer it .claiming_- :t.t , . the na VENANCE :MWAKY:E:MBE was also his name •.. It was as• welJ. the. pros~~ , . - case that the late Father; being.bound by the Church's Code ot Canon Law, could, not hav-e owneil. rsorui.l or private prorty whi-ch h ?ould haV'Q, pass-rad • ~ - . ~ . ' . •. . l, . .,., •• on tot or which, eould· he inherited ey, his relatives .and :farn~ members on. , ... l •• • • < .· ·,·• :.:.,.' .. account of.that.all property which came by him was, by virtua of tp.e Code, Church property. The case for the defence, also-in broatl tertr!S, was,that the · appellant owns the property i,n- dispute as evidenced by .. t:e. vario documents of ownenlhip -.tmdered in court a:t the trial, anq that _h~ d lawfully acquire-cl the property, some directly_ and some through the late Father, but duly paid . 20 !or by himself, and .that the. names PIDSPER MWALUKASA and , . VENANCE MWAKYEMBE , . are both hia ·n:;,.me5, the former his baptismal name and the latter his traditional or childhood. name, and t}:lat. he disclosed this. fact to the, police at Mbeya and. Dar es Salaam when some of the property was held by the police about t~~ years . after the death of the late Father and re-asserted his ownership over it. . .. Eight graundsof appeal were prefeqed the firs~ five .and .the eighth of which were argued by Dr, Lamwai-while_Mr. Mwakolo argued grounds si:>_Cth and seventh. The eight grounds as thy appeared in te.memorandum of appeal were:

1. That the trial court ere both in points of law and facts in convicting and sentencing the appellant despite the fact that it had no jurisdiction to try the case in respect of the 3rd, 30

5 ¼14 5t1?- And 7th :::oounts..-. : .... ,, That the trial court.~ :uter £j..c,d;ing that the Prosecution. . ' ~ . ... ·.. ' • ;.,...._ '• _: w: ;.O, • have failed to prove. th! case·eyond reas0Jl8.b1e aoubt in I'eSpect of the 1st count, it ought to. have ac_quitt-ed the .. '; appell in th~ circumstances of the caseo 3-. That it was improper for. th.e.. trie-1. court to disregard th.. . . evide•ce of PWs 27, 28, 29 and DWs. 1, 2, 3, 4, 5,· ,, 7 and 8 to the effe.ct that.·.the Appellant was also. known .as Vnan,c.e ...... · Mwaeyembe ..sin.ce his childhood. ,,, .... ,. 4. That th'e ,pros·cutions failed to prove th:e case agains-t .. th,e.t. 1-0" bey-ond reasonable doubt that Motor' '11'€hicle Reg. No. TZC 3972 was aoquired unlawfully! ,5-. That the whol-e oase against the apellant was 11.ot prov-ed beyond re.asonahle doubt. . That the omnibus order that all the properties which are · · t. .. .; : t ...• •• .<# ' subject· to Criininai Case N'o_(1\5 of·· 19'7- of Mbeya -District, Court be returned to the Complainant is unreasonab.1.e .as there was no proof that the same were acquired from th.a money of Mbeya Diocese. ! Th'-t the sentence M six y-ears imprisonment in respect o .. the. zo 4th count was excessive ,-and the !trial ._magistrate had no _,,, Jurisdiction to impose -it without referring to the High ; Court for Confirmation. B. That it was improper for the trial court·to invole Canon laws in the circumstances of this case. In the eourse of the hearing of the appeal Mr. Mwakolo supmitted that ground. 8:Y.en of appeal was not properly drafted and that what was meant by that ground wa.a that the trial court exceeted its sentencing powers in terms of Section 170(1 )(a) of the Criminal ·Pro-cedure ·Act 1'985~ and that onlJ' a senten-ce not exceeding f'iv·e 'years imprisonment could have eeen impos.ed, and that the. provisicas of Section 171 of the Act. ought to have been invoked were that senten'ce''felt insufficient. Let me, firstly, consider the first ground of appeale It challenges the power. of the district court of Mbeya to try the appellant on .counts 3, 4, 5 and

6 • jurisdiction on account of that 'the offences in thos~ · cqunts were alleged to . ""' n.a,re. be.en itted in Dar es Salaam, ":'here the appellant was residing and . . . . .. '· . app - l vte argued that juris-dirlion .of iminal. is ,&Q'\lle.rn&Q..ion 1&),ot th& -CMm;inai- Procedure .A.ct 198.5 {CPA) -which read$.:. 180. Subject to the provisions of section 178 and to the powers of transfer conferred by section 189, 190 and-191 1 e,iecy offerice shall be inquired into and tried, as the • . ease may be, by a court within the local limits _of whose juri&die,tion it was commit_ted or within the iooal limits. ' . . o.f ~ jurisdiction -th& ac.oo. -wru; ed or is in custody on a charge for the offence, or has appeared . ' in r to c1. s.ummona 1.awful.1.y iss.ue<l cllargill,g llim -with the offence. ... ,. The provisions of section 1?8 deal with the Power of the High Court to. hal.ti sittings, so they are not applicable here. In the circumstanc-es of this case, r ~ wever, section 180 should ot be read d considered in isolation. As rightly submitted b Mrs Maku .the p.;roY'i.s.io.ns, -of" sectio.n-182 cl (:be CPA -are- 4' . . here. They read: 182. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were eapable o:f·committing an offence, a charge of the mentiane,d offence may be inquired into or tried by a court within the local limits of whose jurisdiction either act was done. • • ·In this case there were-other counts which related to· Mbeya. What transpired in Dar es Salaam and in Mbeya was interconnected. Fo,r instan-ce, a& paint o-u. by Mr Maku:ru, the seventh count was in relation to a house in Mbeya. Counts 3, 4 and 5 were in respect of Motor vehicle Reg. No. 3972 acquired by the appellant in Mbeya and taken to Dar es Salaam by himself. By virtue of section 182 1 therefore, either a Dar es Salaam court or a Mbeya court ha~ j1l..r':i.sdiction to try the four counts •. Assuming I am wrong, and that the Mbeya district court lacked jurisdiction, there are the saving provisions of section 387 of the CPA •

-· --. y·

• 7 - ,. '381. No finding_" sen~~ Qt' o-~&X' of any-criminal. court shall be sef>·~ ide merely on the ground ·that inquiry, trial or other· iproceeding,' in .the .. ourse of which it was . . . arrived at or passed,. took place in a wrong region, district or other local area, unless it appears that such rror has in fat ,cQasioned a failure. of justice. . ·-·--- ... - ...... Dr,. Lamwai ubmitted that the error would·~~e occasi.on.ad a Juiie- ·of . . jus-t in that PW3, possibly meaning PW14,' testifid that the late Father. bought mo.tor vehic_l throi,,.gh an insuran.c~ agent,. Elizabeth Twisa.+· and. that on one occasion Eli.z?,b-eth )llisa went to him in company ·9f the late Father and was . --•-- .... the appellant, and that the issue of physical identity of the appellant fore ··paramount in the case, but that Elizabet~ Twi.sa was never <:alled to testify_ and that had the trial taken place at Dar es Salaam she would have testified·, and lastly that the trial court held the appellant to. have been. .a.ti. impostor on.aecount of failure of Elizabeth Twisa to· testify. Mrs Makuru for her pa.rt, submitted tr$.t no injustice would have oeen occasioned by the error in that the failure of Elizabeth Twisa to t_esti:(y was not on· account of ·,,, __ the distance. between Dar es Salaam and Mbeya but that she could not• be. trac·d ............. ' -- ..• · .. , : . . ·! • ~ ••. l • ,. and that the sit.uatfon would have been the same had the trial .talcen __ l:).;L;ce;.in . . . .. . - .. - .. Dar es Salaam. I-· would, with respect, agree with Mrs Makuru. The· trial . court's record is de:void~f anything indicative of that the failure ·of Elizabeth Twisa to testify was.-_ on account of the trial being heid at Mbeya and' not at·. Dar es Salc1.am. She simply could not be ~raced -in. Dar es Sala.am despite considerable effort made to find her. It would' bkF reca;Lled .that severa_.l witnesses were summoned from Dar es Salaam ·to 'testifyi, .and test.i:fiedo The · argument that Elizabeth Twisa would have t'~sti'fied ',had the trial taken _place at Dar es Salaam is a mere conjecture. t :respectfully .. agree. witp Mrs Makuru ' • . ~. ! that had there been cin error it would have been curable under section 387 of. the CPA •. N.ext in line for ·consideration is the second ground of appeal. This ground is in ~espect of the first count and it involves the motor vehicle Reg.

8 - No. TZG 7061ToyotaCoaster Minibus. I agree with both learned Counsel that the alternative.conviction for the offence under section 312(1)(b) of the Penal Code could not stand •. On the authorities, a coniiction cannot be maintained '!- • _.;t~... . under ~~cfi@ 3·12 ..:i,t the rticle or property involved can' be identified as the article_or. property 9f any.known persoh-.- Differently said, for a person to be . ;.. . .. ' ' convicted under section 312 the.owner of the property must be unknown. If the owner is identified .or known·, as was the case here, it no longer becomes a question of suspicion. Something else too. Section 312 of the Penal Code is of highly technical nature. An accused ought to have been detained in excereise of the powers conferred by section 25(1)(b) of the Criminal Procedure Act 1985 .'> . ..:. '· and at the time he was. detain.ed he ought to have been co"nveying or in possession ' : of (as the case may be.) a specified thing which might reasonably be suspected of having been stolen or unlawfully obtained,/ 11 Possession 1 i :in this context -· must be read ejusdem generi:9 with 11 cortveying 11 , that is to say, the possession must be possession in the course or.a journey. Section 31(1)(b) of the Penal Code, therefore, must be read together with section 25(1)(b) of the CP~ SEE R.v Msengi s/o Abdall~ (1952) 1 T•LR •.. (R) 107, and'Kiondo Hamisi V.R (196}) E.A. 209. The explained situation did n~t obtain in the circumstances of this case. For the foregoing reasons; therefore, I agree with Dr. Lamwai and Mrs Makuru that the trial.court erred in convie:ting'the appellant of the alternative offence created under section 312(1)(b) of the Penal Code. Mrs. Makuru, however, submitted that the trial court ought to have convicted the appellant of the alternative offence of Obtaining goods by false pretences, contrary· to section 302 of the Penal Code, in the first count. Dr. Lamwai's contention· was that Mrs Makuru was not entitled to make that submission on account of that it amounted to a counter-appeal which ought to.have been officially filed in terms of section 379 of the CPA. I would, with respect, agree with Dr. Lamwai. That the trial court had power under section 3o6(1) of the CPA to convict the appellant of the offence created under section 302 of the Penal Code is not in dispute. But it was clearly unprocedural for Mrs. Makuru to have introduced that aspect of the

9 - matter in the .course of the hearing of this appeal·. It. t9ok the appellant by surpris-e. This appeal was in challenge of the findings made by the tria:J.· court one of which was the: ·conviction of the appellant of the alternative offence c_reated under section 312 of the Penal Code.·· Both· the pllarit . .and the. Republic were agreed that the trial · court err-e<l. in making' that finding. In the event that ·the Republic felt that an alternativ-e conviction for the offence under section 302 of the Penal· Code woul'd have· been appropriat.e, f. cross-appeal ought to have beeri formally· preferred in terms of· section 379 of the CPA in ·which the matter could have properly· heen argued out. That· is the procedure prescribed by the law. I would thus.uphold Dr. Lamwa'i's .contention, and hereby find, that Mrs~· Makuru was not entitled to 1S'U.bini.t. ()l\ ·that matter in· this appeal. This would have disposed of the second ground of appeal but for the fact that Dr. Lamwai submitted in the alternative that even the ofience-undo section 302 of the Peai Code would not have been established. Mrs. Makura had submitted that the' appellant had obtained Motor vehicle Rego No. TZG ?061 Toyota Coaster Minibus by false pretence ruid with intent ta der°raud the ·, Church. The motor vehicle, she claimed, had been bought by the late Father for the Church and by Church funds and that the appellant knew all this when he obtained ownership of it by payment of the relevant truces afte the death ·,, of ·the late Father. The contention of Dre Lamwai was that the motor vehicle was not bought for the Church and by Church funds. According to Dan Abraham ··. :-'Bainomugisha (PW14) of Dan General Merchants· Company who were•importers and •:'. selleTS of motor vehicles, and as per the motor vehicles Registration card (Ext. P13h one Adam Magila, the General Mknage:Z. of Karadha Company, was the person ·for whom PW14 had ordered the relevant motor vehicle. Adam failed to pay its price in'full and the ·1ate Father.went along -and offered to buy it by ···rfu'ri'ding Adam his money (Shs.2.4 million) and paying the balance. The late.· °father· was· operating through the DSm based insuaran woman., Elizabeth Twisa.; Inde-ed the lafe Father paid the money (shs o 13 million) to the company of PW14.

-10- But ·with respect to. Mrs'. Makuru, it was not .estab.lished -to the --ext-80.t. that the ·money· was · that of the Church. The money was a loan personal· to the late father from his friend, Ni.chalaus Shaban chk.'we (PW,32), who was the Executive Chairman, of Chawe group of.Companies (shs.8,000 1 000/=), and one Tnnocent (Shs.5,000,000/=) •. That was what PW32 and PW14 told the trial court. · Elizabeth Twisa is reported by PW14 to have told him that: this motor vehicle bought by the late Father was for the Church. But Elizabeth Twisa did not testify andi on that account, what she 'is reported to have told 'PW1.4 "was, in law, hearsay evidence and inadmissible/ Evidence ·of a· statement made to ~ witness by a person who is himself not -called as a witness is h ..and inadrnis.s,,jbJe when, as here~ the object of .the evidence·is to establish the truth of what ,·.• is. conta;i.ned in the statement .... The statement of Elizabeth .Twisa (Ext. P49) recordd by Apsistant- Inspector Felix Rweyemamu (PW1) and admitted in evidence under section 34B of the Evidence Act 1967 was, for reasons I shall give in the course of this judgment, also inadmissible in law. Be tat as it might, there could not have been.any valid reason for the lat~ Father.~ .ba.v-e--bo-rroweci .. i . . money in his personal capacity for the purchase 9-f a motor'· vehiJ.,e for t};le · . Churcho -It simply did not appeal to reason. PW32 said he used to lend. money to the late Father, his close friend, personal to him and na.t for the .-Cluu-ch. Up to this stage, therefore, I would ·uphold Dr •. .Lamwai's submission that the money for the purchase of motor vehicle rego No. TZG 7t61 was not fr.om the Church and that the motor vehicle was not for the Church •. ,- Upon the death of the late'Father the appellant went to the firm· of PW14, paid the relevant taxes, and was entrusted with Motor vehicle reg. No. 'rZG 7161 and 'its registration card (Ext. P13) which was- ·in the name of Adam Magi.la. ThP appellant then.re-registered it in the name of Venance Mwakyembe, allegedly •·· his other name, as one of the persons who stood to gain from the assets of th• late father. I sh.all consider the authenticity of the name Venance Mwakyemb· when determining the third ground of appeal. The trial court conceded that the appellant had access to benefittin.g from the assets of the late Father or

11 - account of being his, younger brother"' ( page 28 of typed judgment). Mrs Makuru submitted that _the ia:te Father was bound ·by Canon law by virtue of whic~ all

• ~ (.. . . . : . - . ' . . . . . property beloilged·to the Church, thus the late Father could not have owned any ' ,• . -· .. - .. pro1>"erty which could have ·passed on to his relatives •. The trial court had .. upheld what Mrs. Makuru said~ Dr. Lamwai, in reply, submitt'ed that' the trial court errd in equating'Canon laJ with the Secular law of the land which was . ,·, ... P..aEatpount. azid· recogn:ized'· the right of an indi vidua1 to personal propety. The appel4nt., ... he.:mainta.ip:ed, ha:d ·1awfully: acquired personal property from the late Fat;her. This. issue on Can,on. iaw constitutes the eighth ground' o'f appeal, ···!. but I c::onsder it expedient to consider and :determine it while on this second groun.cl: of aippea:1-. ... ;(f · .. •·' Canon law is Church decree or law binding only the clergy and laymen • holding ecclesiastical offices ·wh have submitted themselves to it. Father •ugustino Mringi (PW 19} ga:v~ an ··extensively detailed account of how, and to what extent~ Canon·iaw bin&i, and the consequences of breaching it. It regulates relations between the.· persons bound by it and the Church. One of . . . the things it- fol:'bids :is ·the ac9uisation of personal property. It is a iriatter of religious faith and belief., and the consequence of breaching it · is p.o.t a civil .or ,criminal case in a ·court of law but a ·disciplinary action by·, or punishment from, a:· Bishop of. a Diocese. However, in dealings with persons not bound by it (outsiders), the Secular law of the land beoin~~ -paramount and applicable. :The Cohstitttion· of the United Republic of Tanzania, for instance, is the paramount and overriding law of, the iand. Article 24( f) of it recognizes the right'of every person to qwn property lawfully acquired and the right .to its protection. From the stand-point of-Secular law, therefore, every person, including those bound by Canon law, hE\ve a right·· to personal property, and to dispose of it in the manner they _wis:t. In the circumstances ·of this ·case, therefore, I agree with Dr. Lamwai. that an alternatve ·ve.rdlct. for an. offence . under section 302 of the Penal Code would not have been sustainable. This l ' • ' disposes of the second ground of a~peal. The appellant was entitled to aii

• 12 - acquittal e>f th.e first <Xll.W-t after being :found not guilty of theft. This -- ----- -als_'? ___ disposes of the eighth ground of appeal which had bearings. -on the

• --- first, sevent-h,-and-ghth counts. ··--- ... ___ The fourth ground of apeal, to wni?h I~ turn, relates to- t~~ second count which was in respect of the motor vehicle Reg. No.TZC 3972. Dr. Larnwai submitted that the. prosecution failed to establish beyond bl,- doubt that tp.~ appellant acquired the motor vehicle unlawfully. The learne<l advocate claimed that the appellant brought the motor hicla from Rujewa Mission sold to him ·by Father Drazn Clar {M) in the presect, of his business partner and associate, ·:Jacon s/o Lazaro@ Jeremia Mriel(DW. 8} who witnessed an agreement of sale to that effect between PW4 and ths appellant• Thus the learned advoc.s.te concluded by saying that as. the former 1.e.gal. ~ of the motor vehicle was known the appellant could not be said to have acquired the motor vehicle unlawfully. Mrs. Makuru. 1 s contention was that the legal owner from whom the appellant bought the motor vehicle was unknown on account of that PW4 testified that Rujewa Mission did not exist and dgnied to. · have sold the motor vehicle to the appellant. The appellant, she continud, had therefore failed to give a reasonable explanation as to how he cam~ by th~ motor vehicle, and he_was thus guilt~ of the offence under section 312(1)(b) .of the Penal Code ( citing and relying on this court I s decision ip- Zuba,el sl,o Katakuhakwa V.R. (1963) E.A. 17). I have followed and considered these arguments~ Before I look at the evidence adduced before the trial court I have the following to say. I have explained the highly technical natur~ of section 312 of the Penal Code, and I am satisfied that the charge preferre~ under section 312(1)(b) in the second count was not sustainable in the circumstances of this casee A charge under section 312(1)(b) of the Penal Code should allege that the accused was detained in exercise of the powers eonferred by section 25(1)(b) of the Criminal Procedure Act 1985 and that at the time he was detained he was conveying or was in possession of (as the case may be) a specified thing which might

• . , . 13 - reasonably b~_suspected of having been stolen or unlawfully obtained. It would be recalled that I said 11 possession" in this context must be .read ejusdem generis with 11 conveying", that is to say, the. possessfon must be possession in the course of a journey. Agin this ould not be said to-have been the case in the circumstances of this case So the charge preferred in the second could not, for the· given reasons,· stand •. The Registrar of motor vehicles, Felista Mwas6ngwe. (PW 12) testified ·that according to the records in their files (Ext. P26)- the motor vehicle was impor.ted from Zaire by Rujewa Mission of.P .. Oo Box 179· Mbe.ya. Its registration card (Ext. P14) lists R\ijewa Mission of same address as the first regist'erd wner of the motor vehicle. The then Internal Auditor, Customs and ·cise, Ma:rieta w/o Maro. (PW 22), gave the same story. and added that she 0 .. .. dealt with custo·m duty and sales tax at Mbeya in respect of the relevant . ~ .- :· motor :vt$hicle and visited Rujewa Mission in fact. And the letter of 17.12.94 . ~ . . ' ( Ext. P). from PW 22 demanding for the taxes was 8:ddressed to Rujewa Mission -of same address. It was thus amply established that Rujewa Mision existed _. . • in fact and that it was the first· registered own.er of the relevant motor .• ... :, .· . · vehicle. With genuine respect to MhL, Makuru, Fatper Drazn Claper (PW 4) did not tell the trial court that Rujewa Mission did not exist. What the priest i . . . . had sai at page 32 of the proceeding was that Rujea Diocese did no ext in the world,· and true,·· Rujewa Diocese. did not exist, There was no evidence that -- . the appellant was involved in the purchase of the motor vehicle by Rujewa . .Mission. The allegation by the prosecution was that the appellant had acquired the motor vehicle from an unknown source. But the same prosecution supplied evidence . which amply established that sourceo The de:0:ial by PW4. to have sold the motor . . , vehicle to the'appellant could be explained on.account of the unplesant and distasteful developments which ensued. That the purchase funds of the motor vehicle· by the., 4 appellant were from the joint busines ventures undertaken by . ' the\ippellant and Jacon Lazao (DW 8) was amply demonstrated. DW 8 gave an extensively detailed account of their business ventures. Even the trial court \

• 14 ... conceded that much when it said at pge 28 ?f the typed judgment that the appellant had been a businessman able to acquire many and more valuable property than stood charged with. ,I would,in consequence, uphold the ,: f fourth ground of appeal that the quilt of th appellant as charged in the second count was not demonstrated beyond a reason,able doubte l: . . . I shall next consider the. third ground of appeal ·which centred on the identity of the apellant and was_ in respect of the tird to the eighth counts. This ground generated considerable argument from the Bar. );!ut let. me first : . . ... . .~ ·-. touch ·on an important matter of law which could have had a fat.al consequence -; _.... . to the allegations contained.in the third count. D/Cpl Juma ,did not i/stify. . - -· . - . /;· .-' His statement (Ext. P46) as, however, tendered in __ evidence under sei'tion 34B of·thc Evidence Act 1967. indeed statements of several other pesons who did ,· not testify were also admitted in evidence under section 34B •.. They included ,. the statements of Bishop Sangu (Ext. P45), Elizabeth Twisa. (Ext. p4,), Vitus Mhagama (Ext. P48), Venance Mwakyembe (Exte P7) to whom_ the appellant had. ,·, ·! allegedly introduced Insp. Felix Rweyemamu as the bearer of that name, and R. Ndowo (Ext. P47) of Anti-Corruption Squad who recordod the statement of the late Father ( Exto P9). It does not, however, o.ccur to me that the statements were properly admitted in evidence., They were ;inadm;Lssible-o Their admi(3iol,l in evidence · constituted one of "the several unsatisfactory 8:5pects of _-.he trialo Section 34B of the Evidence Act 1967 a1lows the production of a statement of a witness who .for some reasons cannot be called to the court to testify orally. But section 34B(2) outlines six ~onditiops, Paragraphs (a) to (f), for admitting a statement under that section.· The six conditions are cumulative, and none of them can stand · .:on its owrie Each and every condition set o-..t under that section mu(3t be complied with fully o If one condition is violated then a _statement is inadmissible. There is a Court of Appeal decision, on this very important subject of admissibility of statements under sec_tion 34B-- SEE . MT. 56596 PTE ALPHONCE MATHIAS Vs. THE REPUBLIC, Criminal Appeal No. 127 of

15 1990 (C.A.), unreported. The statements produced under section 34B in this case had one common feature~ They offend paragraphs (d) and (e). Some, for instance that of Elizabeth Twisa (Ext. P49), offend, i~ additioo, paragraph (c). The statements, therefore, were· inadmissible. It is. immaterial.that the admissibility of some of the s·tatements was not objected to... This is a. matter of law, and a statement which is ·otherwise inadmissible does not ,, . . become admissible for the reason that its admissibility has_ rio_t been .. objeeted to. Once these statements are discounted, the effect on the prosecution case, •. is in particular counts three and six, devastating.

• -L And now to the identity of the appellant. I must say that the third ground of appeal is abundant in merit~ The appellant, as earlier said, claimed that he had two names, Prosper Mwalukasa and Venance Mwakyembe. · The · or , former his baptismal and the latter his traditional childhood.· The L • prosecution summoned three close relatives of the appellant who spoke in support of the appellant. They told the trial court that Pr•spe_r- Mwalukasa · and Venance Mwakyembe were the two names of the appellant. The three witneses were Peter Mwalukasa PW27 (father), Mary Mwalukasa PW28 (mother) and . · Scholastica Pe.ter Mwalukasa PW29 ( eldest sister). _Besides, all the eight defence witnesses also spoke in support of the appellant that the two names . ' f.. . _, belonged to.him. Some were relatives and others were closely.known to-him one way or the othero The .prosecution witnesses who spoke agatnst the· · appellant were the investigator,·(PW1), an officer in the land offipe Mbeya (PW3Y, a primary School teacher ·(PW11), and a businessman (PW16) who, allegedly . . sold a plot to the late father which was registered in the nae Venance Mwakyembe he had not met. These four witnesses said the name Venance Mwakyembe was unknown to them. The trial court founded its finding on the identity of the appellant- essentially on the credibility of the foregoing witnesses. ·The question of credibility of a witness on the basis of demeanour is the monopoly of the trial court. However, credibility is not assessed entirely on demeanour. Reliability

16 of a witnees can also be ~tabJ.ished by considering his testimony in the context of the whole evidenceo There could be self-contradictions or conflicts between

one witness and another or others. Mrs. Makuru. submitted that the evidence of the three prosecution witnesses was at variance with their recorded statements. But as rightly submitted by Dr. Lamwai the credibility of these witnesses was not impeached. The stat~ ments were not tendered in evidence. Under section 164( 1 )( c). of the Evidence Act 1967, the credit of a witn~ss may be impeached; with the leave of the court. by the party who calls him by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. This was not done here, and it was, therefore, not the case with the three prosecution witness.a. Besides, the credibility of the defence witnesses was not questioned. PW1

had known and dealt with the appellant only in his official capacity.• Thus the background of the appellant was unknown to him. The same could be said of PW11. At the time he became known to the appellant it was the baptismal name of the appellant which was in _use and not the traditional name. It wru;· thus not a surprise that he did not know the appellant by his traditional name. PW3 said he acquired Plot No.1068/Y at the request of the.late Father and registered it in the name of Venance Mwakyembe. That name, therefore, was known to him, and he could not have known for certain that it was not the appellant's name. It was worse with PW16 who could not even ident.ify the area he had allegedly sold to the late Father with the plot r~gistered in the .name ' . of Venance Mwakyembe on account of that the area was then unsurveyed and could not identify its owner after surveyo The appellant, in law, did not bear the burden of establishing that the name Venance Mwakyembe was his genuine nameo It would amount to calling upon him to prove his innocence which, un9-er the law, must be assumed by a .. trial court unless guilt could be proved by the prosecution beyond a reasonable doubt. Conversely, it was for the prosecution to establish to the required extent that the name Venance Mwakyembe was fictitious. The guilt of a person

• acouse.d of er·ime is not assumed by a tr:i,al court. With respect ·to the J: .. learned. trial magist,r:ate, it takes evidence to· convict a person of crimeo It .. , '{ • I takes far more• than jh)ere t,guessw6rko There 'nas to be evidence which is legally aq.missible in a• court· of 'law, and, moreover, such evidence has tci prove the guilt of the' accused''beyond a.ii reasonable doubt. On the evidence, therefore; I. would uphold the third ground of appeal that the trial court erred.in rejecting_ the evidence of the three prosecution witnesses and'that of he defence witnesses, ·and hereby find ·that the appellant, Prosper Mwalukasa, was also known as Venance Mwakyembe. I am done with counts three to eight, but before I pass on to the seventh ground of appeal I have the following · remarks to make. The late Father was central in the prosecution case against the.appellan. He could have thrown some light on or explained several of the matters in controversy. He could have, for instance, explained the .. ration~le.of having one of the plots registered in the name of the appellant as 'minor'. Unfortunately though, he was long dead at the time of the tri9-;J.., · and his recorded statement (Ex:t. 1?9) which was tendered in evidence under secti.on 34B of .the Evidenc·e Act ·was, for reasons I have given, inadmissible. ::·::.· ·, . :\ .f ·: .L The prosecution case was thus left at the crossroads. . . - ., . : ' . I would, with respect, agree with both Mrs. Makμru and Mre·Mwakolo that .·, ... .. ·,;: . .. ' the senten•e of six years imprisonment handed down for the fourtn. coun.t was-.· · . ~ ,• -- ·.in excess- o'f · the sentencing powers of the trial court •. The offence charged , n, that count·was not a scheduled offence, and so the trial court, for the purpose·of sentence, was bound by the provisions of section 170(1)(a) of.the. Criminal Procedure Act 1985. The trial court could not have competently imposed a custodial sentence in excess of five years imprisonment,·and in the event that the trial magistrate was of the opinion that greater punishment should be inflicted for the offence than the court had power to inflict the appellant ought to have 'been committed to this court for sentence in teifus ·of section 171 of the Act· Were the conviction of the appellant in the fourth count sustainable, I would have set aside that sentnce,and substituted for ,,.

it a sentence te.n:ablit-ih-la1'{f ·This.disposes of the seventh ground of appeal. -- .. ··---" . . ---------- . Finally, as earlier said, two orders-f'or--th? ___ 9,isposal of the property ·- ..... ., involved in the case were,:made This was the sixth ground ;;tapp-eaJ.. . __ Th~ ---- ... first order was that the prope:r;'ty should be handed'over to Mbeya Diocese. The second order was that the property should be forfeited to .th:e Repu?lie. The property compz:.ised of the two motor vehicles (Eicts P13· cllld P14), Plot No. ,1068 Bl9ck vvyn and a house on it, and Plots Nos. 72 and 73 .Block 11 :XV'. .. ' ., . . . . I agree with Mrs •. Makuru ;and Mr. Mwakolo ·that the two orders as they stood were prverse •. I think the vision of the trial magistrate had already been blurred by the; lcmg and apparently difficult and complicated trial. The two ci'rders were, ?,Ot only inconsistent but they wer mutually exclusive as well. Mrs. Makuru submitted that the first .. order was. proJ:)er. But I have held that it was not established that the fun~ used to acquire them were from Mbey~ Diocese •. In any event, in view of my decision in this appeal neither of the two orders can stand. The two orders must, therefore, be set aside and substituted for by an order that the relevant property be harn:ied• back· to the appellant who is, for the reasons I have given, and as per their,douments cmd certificates registration tendered in evidence at the trial, their_ In the final analysis, therefore, I allow the appeal, quash the. ........ ....., convictions, set aside the sentences and the orders for disposal of the prr,perty, •,• and hereby order the immediate release of the appellant from prison, ·unless· otherwise lawfully held. It is hereby declared that the appellant is. the -· rightful owner of all the relevant property, and an order is made_ that the AT MBEYA. 5 March 1999. For Appellant: For Republic: B.P. MOSHI JUDGEo