Gwamaka s/o Mwamsojo vs Republic (Criminal Appeal No. 8 of 1998) [1998] TZHC 2050 (18 September 1998)

IN THE HIGH COURT OF TANZANIA 1i Am 'F . ij,. j CEThINAL APPEAL NO, 8 OF 1998 (Original from Mbeya District Court Criminal Case No, 675 of 1996 Belore: I.A.Mtiginjbia - District Magistrate) GWANAKA s/o MJAMSOJO OOOO.O,,,.00, APPIIJANT Versus THE RUBLIC ,.................. RESPONDENT JTMTT The appellant Qwmaka s/o Nwamsojo, was indicted before the district court of Mbeya for Theft, contrary to section 265 of the Penal. Code, He was convicted as charged and sentenced to five years imprisonment. The conviction and sentence aggrieved him, hence this a - peal, which was argued before me by the appellant himself in the presence of the learned state attorney for the flepublic Mr0 Mulokozi, who resisted it. On 1,8.96 at about 8.00 AN. Paulina w10 Mwakapiia (PW3) went to the, house of her neighbour, Salome s/o Ninza, whodid not testiiy. That dat.e and time was according to the charge sheet0 Pli, 1 3 said it was on a day she could not recall in August 1996. And one Nbaki ."o Edson (Pwi) said it was on 24,8.96. At the house PW3 found Salome with a man she had not seen before. At the trial PW3 said she, was not certain that it was the apellant Salome then told P'J3 that there was sugar for sale at the house of Mrs. MwamsojQ who had' sent that man to notify her. Salome went on to tell PW3 that the sugar could be obt3.ined on credit. . At that stage Mhaki s/o Edson (P. 1 4,1) arrived there. Salome instructed PWI to take a bicycle and accompany that man to the house of Mrs. Mwamsjo to collect two cartoons of sugar for her and one cartoo for PW3, PWI said the man was the appellant. He also said that Salome was his mother and that the bicycle was her property0 But PW3 said PWI was a neighbour called by Saloine and arrived there with the bicycle. It would appear that Mrs. / Mwamsojo was staying in the neighbourhood, and that she was well irnown to PW3 and Salome.

At the house of Salome the appellant entered into the house leaving P141 outside with the bicycle. After some time the appellant got out of the house and told PWI that the sugar was being packed inside He asked PWI to give him the bicycle to go for plastic containers for milk. PWI gave him the bicycle and he disappeared with it. He never returéd and the bicycle has not been recovered todate. After sometime•PW1 entered the house and asked Mrs. Mwamsojo about the appellant. She replied she did not know him and she had not seen him. PW1 and Mrs. Mwamsojo reported the ineidet to Slopiè and PW3, 1'•'lrs, Mwamsojo did not testify. On 4.9.96 at midday a relative of Salome, Eliza Niza, who did not testify, reported the incident to PC George (PW2) at Mbeya central police station On that day. PW2 recorded the statement of Salome (Ext P1) who died before the trial commenced. Her statement was tendered in evidence by PW2 under section 3 1+B of the Evidence Act 1 967- The apiellant denied any involvement in the affair in his sworn defence at the trial. He denied to have seen or met Salome, P1113 and P1 the day of the incident. He claimed he was on 30.8.96 held by some young persons as he was walking along a road in town who alleged that he had stolen a bicycle They took him to a police pnst in town. He was subsequently charged with this offic.,. The trial court founded the conviction of the appeliant on the statement of Salome (Ext p1) as supported by the evidence of P 1,41 and PW3. But there are matters obtaining in this case whichrendered questionable the allegatio yt that the offence was committed and that it was the appellant who committed it. Firstly, and with respect to the learned state attorney, it does not occur to me that the statement of Salome (t Pi) was properly admitted in evidence. The procedure set out nder section 3 1+B of the Evidence Act was nob observed. Section .34B of the Act allos production of a statement of a witness who for some reasons cannot be called to the court to testify orally. But section 31+13(2) outlines sx conditions, Paragraphs (a) to (f), for admitting a statement under that section. The- eor ~ d itinnn e cumulative. None of the 0 0 0 •/ 3 1 .,

L . six paragraphs can stand on its own0 Each and every condition set out must be complied with fully 0 If one condition is violated then a statement is inadmi ssible0 In this case 9 the statement (Ext P1) violated paragraphs ( c ), (d) and (e) of section 3 1 +B(2) of the Act0 The statement (Ext P1) 9 therefore 9 was inadmissible. Sccndly, once the statement of Saloee is discounted, the evidence as to what Salome had told P1,13.. and PJi as reported by the two witnesses riust as well be discounted on the ground that it was hearsay evidence and inadmissible. The evidence as to what Eliza d"o Niza, who did not testify 9 told PW2, as reported by PW2, was inadmissible on the same ground of being hearsa y evidence. Also hearsay evidence and inadmissible would be the evidence as to what Nrs. Mwamsojo said of the appellant ap reported by P141. In law, evidence of a statement made to a witness by a person who is himself not called as a witness is hearsay and inadmissible when, as here, the object of the evidence is to establish the truth of what is contained in the statement0 Thhdly, PW3 did not identify the aoellant. There was only the evidence of P1. It was, as rightly pointed, out by. thc learned state attorney, a question of credibility. It did not occur to me that PW1 was a reliable witness0 The question of credibility of a witness on 0 the basis of demeanour is the monopoly of the trial court0 However 9 credibility is not assessed entirely on demeanour0 Pealiability of a witness can established by considering his testimony in the context of the whole evidence 0 There could be self.contradictions or conflicts between one witness and another or others. In this case, there were, as pointed cut, conflicts between the evidence of Pi and 743. These conflicts, in my view, were serious and material, and they detracted from the crpdibility jf PW1. There was, in addition, the allege.tion of Phi that the appellant took the bicycle to collect, plastic containers fr milk. How did the question of milk arise in the event that they had, as alleged, truly gone there for sugar And another th.iTig, strange as it might look, it did not feature anywhere in the evidence that P1, from whose hands the bicycle was allegedly stolen, reported the theft at the policp station, let alone 1/ 0300000...l 1

promtly so. For all the foregoing reasons, i am satisfied that evidence hat the offence was committed and that the appellant was its perpetrator was scanty and unreliable. The guilt of the appellant was not demonstrated to the -reauired extent. I accordingly allow the anpeal, quash the conviction, set aside the sentence, and hereby order the immediate release of the aopellant, Gwamaka s/o Mwamsojo, from prison unless otherwise lawfully held. AT U3EYA. 18 September 1998., For Appellant: Present.

• Fr Jepublic: Hr. Nangela, S.A. / •...: B.P. 1 140SHI JUDGE