Damata Abdallah vs Republic (Criminal Appeal No. 52 of 1998) [1998] TZHC 2279 (18 September 1998)

m hm IN IIE HIGH COURT OF LNZANIA AT MBEYA CRIMINAL APPEAL NO 0 52 OF198" (Frnm.Nbeya District Court Criminal Case No0 897 of 19 9 7 • Pef ore S.M.Ruinanyika Rsac'nt 1aastrate) DANATA.ABDALLAH AT.PEJANT Versus HE REPUBLIC flESPO)ENT JUDGMENT The appellant, Damata Abdailah, and one. Nsaf±ri Jabs, were jointly arraigned before the district court of Mbeya on an indictment which contained two -counts0 The first count was. for both, while the second :count was for the appellant0 The appellantwas the econd accused while Msaffri Jailos was the first -accused The counts were: Fixscount (for oth): Robbery with violence, contrary to section's 285 and 286 of the Penal Code 0 3ecood count (for second accusco only) Peceving stolen property, contrary to section 311(1) of the Penal Code 0 They pleaded not guilty to their respective counts, and a full trial ensued0 After the i-mi, the appellant was acquitted of the second count, but convicted together with the first accused, of the first count, and sentnced to eight years imprisonment (appellant) and five yeaxs imprisonment (firataccused)0 The first accused is yet to apeai, but the appellant felt aggrieved, hence this .arpeal which was preferred and argued before me by his learned ac cate., Mr 0 Mbi in the preseice of the learned state atqrney for the Republic Mr 0 Nangela, who declined to resist thdupeal. MrMbise's main ground of complaint, which was conceded Nangela, was that the appellant was convicted on no evidenc at all0 I would, witt respect, agree with both learned Counsel0 The case centred on a bicyle

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all (ct fl-i) which belonged to the father of Juma Athuman.i (PWi). PW1 was robbed of that bicycl. The. appellant was not identified at thcj scene of crime as one of the rbbere. After some time one Salhe Mwendd wa found riding the bicycle.. H.clàimed that he got it rm th appllant. That wathe only evidence agaiunt the appellant. But Salehe. Mwenda died before testifying in court. His rec.rded statene'et, however, wan tenaerd in court

as Ext P2 by its reerding officer, /Sgt Paul (PW3),uner thi provisi•n .f section 3i3 of the Evidence Act 1967. The trial curt then based the conviction .f the appellant on that staternent.(Ext Pp). But the statemen (Et P), quite Obviously, was improperly and wrongly admitted in evidence. It was inadmissible in the circumstances of the case. The procedure for its proper admission set out under section 3B(2) of the Evidence Act 1967, was not fully complied with. Section 3 1 +B(2) outlines nix conditions, Paragraphs (a) to (f), for admitting a statent under that sectIon. The six conditions are cumulative. YEach and every condition munt be complied with fully. None of the six paragraphs can stand on its .own. If condition is violated then a statement is inadmisnible---- SEE the the Court of Appeal of Tanzania in MT. 6596 PTE ALPEONCE MAThTh.S Vs PUBLIC, Criminal Appeal No. 12? of 19909 Mwanza Sub rg,istri, uureptd. In this cae, the admission of the statement (Ext F2) violated paragca1 (c), (d) and (e) of section 34B(2). Th.e statement was 9 therefore, inadmissbe. Once the statement is discounted., there remained absolutely no eei support of the count the appellant stood convicted, . I accordingly allow the appeal, quash the conviction of the ae11_an1• . set aside hianteice, .... which was illegal anyway, and hereby order the r

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B / I ( .4 18 o ept.esbr

• For 'ppelJant , in For pepubiic: Mr. Nangela, S,A,