Katembo Mrisho vs Republic (Criminal Appeal 73 of 1997) [1999] TZHC 35 (15 January 1999)

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CRIMINAL APPEAL NO. 73 OF 1997 (Originating from TLALA District Court Criminal Case No. 161N.95) KATEMBO MRTSHO ............................. APPELLANT VERSUS THE REPUBLIC .............................. RESPONDENT J U D G E M E N T KALEGEYA. J. The Appellant. Katembo Mrisho Mohamed was the only accused to earn a conviction out of 12 others jointly charged in count, two with Godown breaking and stealing c\s 296 (1) and 265 of the Penal Code. He appeared as 1st accused. Count one concerned 4 - 12th accuseds and this alleged conspiracy to commit an offence c\s 384 of the Penal Code. The third count, which is in the alternative., neglect to prevent felony c\s 383 of the penal code, stood for 4th - 6t.h accused. The accuseds in their respective numbers were Katembo Mrisho s\o Mohamed. Hemedi s\o Hassan Hussein, Raiabu s\o Juma Hamisi, Selemani s\o Omari Ally, Andrew s\o Mtali Chimogo, Rajabu s\o Changama Chadimba, Peter s.o King'ombe Masudi, Ely s\o Hassani, Emmanuel s\o William, Njeli s\o Nesphorv Parashi, Hamisi s\o Salum Jangala Mnomola and Athanas s\o Alex Kwavu. The 2nd count alleged that on 16\3\95 they had, jointly and together, with 2 other people not before the court, broken into the International Islamic Relief Organisation godown at Tabata and stole various articles including 40 mattresses, 20 bales of mitumba clothes, 94 rolls of Textile material, Bales of mitumba shoes, one compressor machine, 49 oiecss of carpet all valued a t . shs. 2,425,000/=. In the 1st. count it was alleged that the 4th - 1.2th accused had conspired to break and effect theft of those items while in the alternative third count it was stated that the 4 - 6 accuseds being watchmen

of Nahad T ra ns po rt Company failed to prevent c om mi ss ion of th- offence of stealing. All others were acquitted while Appellant (as first accused) was co nv ict ed and sentenced to 5 years imprisonment on 1st count and , year on ,nd count. In t.h,„ appeal he is as sai li ng these decisions. The Ap pellant challen ges the finding of the District Court on three m'aingrounds - that the t r i a l M a g i s t r a t e erred in relying on ca ut ion ed statement whose au th ent ici ty was not tested by ho l di na a trial within trial; that such confess ion s have to be corroborated, and that the evidence of accompli ce s (fellow accuseds! should have been corroborated. He co ncluded that had , - Vi 4 cf a r k / ’l j ^ n ^ l V ^ P C l t V l f t © V l O B H C © XX. the trial court considered all this and analysed should have acquitted him. The le arned State At torney supported the co nviction ar gui ng that the of fence was duly proved; that reliance was not put on ac co mp l ic e ev idence alone but also on a ca utioned statement t e nd eri ng was not ch allenged by the Appellant. W i t h gre atest respect to the learned State At torney this appeal must succeed. First, there is an incurable procedural error committed by the trial court. The acc useds never pleaded to the charge as legally required. The charge on which the accuseds were brought to "court (dated ?0\3\9r,! was substituted with another charge dated 18\7\95. Wh il e the former charge contained just a single count of oodown bre aking and stealing the latter contained 3 counts as al re a dy explained. On 1*\7V*S when the substitu tio n was made the trial court simply recorded an omnibus plea of not ouiltv bv all acc usseds as if they were being faced with a single count'. This error was again committed on 1fl\10\95 when hearing commenced. The court remained har bouring under this mi st a ke till end when it composed the judgement, as exemplified by the 2

following excerpt from the very judgement "The accuseds who are (?) aPp®r®f t h e m ^ a s ^ ’ ^charaed are twelve in number and both ° f them w a - . . ^ - with two offences of Godown breaking c\d 296 (1) stealing 265 of the penal code". However, there is only one offeree in the above stat.en.ent and not two - aodown breaking and stealing c\s 20« (t) and 265 of the penal code and it is not true that all the accused had been charged with two offences (the substituted charge speaks aloud on this) The trial court seems to appreciate the existence of t e substituted charge in the last part of its judgement for then it makes reference to conspiracy., and counts one and two while sentencing. Secondly., even if the above error did not. exist., there is evidence to support, a criminal charge. The trial court’s judgement is on 9 typed pages of A - 4 size papers. Out of all this the only analysis and finding is contained in the following (the rest being the summary of the evidence, mitigation and sentence) "Accordina to the testimony tendered before the court the evidence given against, the accuse s - - s a m e was oroved against the first accused as he is the one who olaned (!) with other accuseds who is at larae to comm itithe offences and made away with th laraer amount of properties which owned with International Islamic Relief Org ani sat io n The prosecution side., the evidence tendered before the*court pointed to the first accused as he is the one who informed the rest accused that there is a tod to unload the luggage at Tabata where the 1orr which was comina from Tringa had developed a mechanical faults., the first accused with other accuseds who is 1 - in the court left the accused at Tabata relini ere the number of accused persons was arrested by no wh the police. 3

The accuseds on they are ( ! ) testimony except, accused No. 4 both of them mentioned the first accused as the one who informed them that there is a job to do at Tabata Relini. To ao further the caution statement which the accused gave before the police (PW2) the first accused with others accused who was not (!) in the court conspired to commit the offences which is the subject, matter before the court. The court through the evidence concluded that the first accused is the one who committed two offences and in this respect the rest accused except the first accused are acquitted and set free. The first accused the court found guilty in all the offences as charged". I have quoted the above to show the reasoning leading to the conviction. Apart from the inelegancy of the language the above quoted lacks analysis and is indeed contradictory of what the evidence portlays. The prosecution case rested on very brief evidence of 4 witnesses. PW1 a police officer simply deposed to have visited the scene of crime - the godown. where he found all the accuseds except accused 1 and 12 and a store keeper who was enlisting the stolen property. He interrogated the accuseds who told him that "first accused was the one who hired them". He got information, that some stolen property had been recovered at Mbezi, and he found them at Oysterbav police where they were identified. The witness simply added hearsay account, on how the recovered articles had been found in one house at Mbezi whose watchman escaped. He disclosed that the recovered articles included la compressor. 3 carpets. 12 Baibui. Rolls, one box of shoes and 4

clothes. This witness ends his testimony without linking in anyway the accuseds with the theft let alone establishing how thev came to be at the g o d o w n . PW2 the storekeeoer of Mahad Co. Ltd aodown where the stolen oro oe rt y was being stored br iefly deposed to have received information regarding breakage into their godown and theft; to have compiled a report. He went further to produce the hi 11 of ladina to establish that the goods belonged to the Internationa Islamic relief Organisation. Neither does this witness link ■ , » i ~ fhoft for he evert aoes further and accuseds with breakage ortheft.- states . "I d o n ’t kn ow the accused persons". PW.3. another police officer, deposed on a piece ofevidence which sets in more confussion than clarity. His evidence ,s so brief that i t . deserves to be r e p r o d u c e d : "T reside at Puau Kajiunaeni. T am wor ki ng w i t h . Bum,runi Police station. On t6\3\0S we were directed no T o Tabata as theft occured there. We went to Tabata Rel ini in the godown of M o h a d , I h g j a t C i M ^ ooenetLJ^he.jiooil,— amnna them. We arrested them. That is all . (emphasis mine). Lastly, on the prosecut ion side we have PW4 who recorded the Ap oellant (1st accused) cautioned statement. He deposed to have come across the Ap pellant at the CTD offices through the hands of Dsgt. Anon who required him to take down his cautioned statement; that 1st accused voluntar il y agreed to this hence F.xh. P2. In that statement, the 1st. accused (now Appellant) stated that though a wat ch m an at Ahmad Salum shop, Kariakoo, (Gunzo Enterprises) having been aporoached by one Rashidi who asked him to assist him unload and load some goods from a de fective vehicle to another he decided to have some side earnings and took up the offer. He went 5

further to state that they gathered other accuseds who were Ivin idle around Kariakoo and hoarded a min-bus; that Rashid had told them that the defective vehicle was along Mandela Raod but that they led to a godown instead where they found it open., and a lorry parked and were instructed to load the goods from the godown into the lorry which they did and got paid. He stated further that there was some misunderstandings with the watchmen of that godown over payments but did not clarify. That was the end of the prosecution case. In defence., the 1st accused deposed that he participated in off loading goods from Tringa on part time basis as he is a watchman with Gunza Enterprises and that he was later arrested and led to Ruguruni Police Station. Accuseds 4 - 6 deposed that, they are the watchmen of the godown which was broken into and that the rest of the accuseds descended upon them., broke into the godown and stole. The rest of the accuseds deposed that the 1st. accused had implored them to join him on a casual goods' off loading and loading exercise (for pay) as a vehicle had broken down at Mandela road; that, they were however driven to Tabata and told to wait and that while waiting the police came and arrested them. I have been forced to summarise the evidence tendered to show that the trial court's findings are not supported at all. Apart from the caution statement we close the prosecution case without linking the Appellant to the offence charged. T must observe that the matter was very poorly investigated as the clues at hand could have produced more than what was disclosed. The accuseds' stories may ring a big suspicion in one's ears but this is not enough to found a conviction in a criminal charge. In any 6

case it is trit. law that conviction is not found on the weakness of the defence but rather on the strength of the prosecution c a s e . It would seem that the trial court was great!v influenced by the caution statement. That statement in itself does not admit conspiracy to commit offence nor committing any offence at all. Appellant simply says that him and others were hired by one Rashid to go and off load some goods from a defective vehicle only to be led to the g o d o w n . Again it may highly be suspicious but conviction cannot be found on this. For the reasons discussed above the conviction and ensuin sentences are hereby quashed and set aside. The Appellant is t be set at liberty unless otherwise lawfully held. (T,. R. Kalegeya) JUDGE Judgement delivered todav the i s \ i \ qq U r t -V 1 ne in the presence of the State Attorney, Mr. Mdema (T,. R . Ka 1egeva ) JUDGE 1 f > \ 1 \99 7