Abdon Shao & 2 others v. Republic, Cr app no 40 of 2006 (armed robbery)

IN THE COURT APPEAL OF TANZANIA

AT DAR ES SALAAM

( CORAM: MUNUO,J.A.,MSOFFE,J.A. And LUANDA,J.A.)

CRIMINAL APPEAL NO. 40&41 OF 2006

ABDON SHAO AND 2 OTHERS…………………………….……….APPELLANTS

VERSUS

THE REPUBLIC…………………………………………….………… RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dar es Salaam)

(Mandia, J.)

Dated the 5^th day of December, 2005

in

Criminal Appeal No. 26 of 2005

JUDGMENT OF THE COURT

LUANDA,J.A:-

        In the Court of the Resident Magistrate of Dar es Salaam at Kisutu, Abdon Shao, Matata Iddi and Sabasi Massawe (herein after referred to as the 1^st appellant, 2^nd  appellant and 3^rd appellant respectively) were charged with seven others with armed robbery contrary to Sections 285 and 286 of the Penal Code.  The above named appellants, with three others were convicted as charged and each was sentenced to 30 years imprisonment as mandated by law.  One out of the six accused persons was convicted and sentenced in absentia.  He is still at large.

        The appellants and the other two appealed to the High Court.  Those other two were successful; the appellants were not.  They thus filed these appeals namely Criminal Appeal NO. 40/2006 and 41/2006 which were consolidated

        The appellants fended for themselves in these appeals; whereas Ms. Msabila learned State Attorney represented the respondent, the Republic.  In total the appellants have raised seven grounds of appeal all touching on evidence.

        At first, Ms. Msabila supported the conviction.  However, in the course of hearing the appeal she declined.  In view of the stand taken by the Republic, we shall discuss three areas which will encompase all the grounds of appeal raised.

        Briefly the prosecution case in to this effect:-  On 19/11/2002 around night time, the company premises of Hashim Ismail (PW1) known as Dubai Refreshment was ambushed by robbers.  The robbers in collaboration with one of the watchman on duty, the one who was convicted and sentenced in absentia, stole a number of properties including generator and pipes.  A few days after the robbery, the 3^rd appellant was found in possessin with the generator.  The robbers who were reported five in number managed to do so after they had overpowered Seleman Elikana (PW3) the other watchman on duty.  PW3 was unable to identify any of the robbers, save his colleague watchman.  The matter was reported to police where the wheels of investigations were set in motion.  However, the record does not come out clearly as how, where and when the appellants were arrested.  Whatever the position, upon their arrest, the 1^st appellant, 2^nd appellant, Vicent Jeremiah, who successfully appealed in the High Court, and the watchman who is at large one Edward Saitoti are reported to have admitted to commit the offence by way of cautioned statements.

        The trial court relied so much on those cautioned statements to ground conviction after it was satisfied that the same were voluntarily made.  The cautioned statements of the 1^st appellant, 3^rd appellant and Vicent Jeremiah were taken by D/Cpl Elneo (PW2).  The trial court also depend on two other set of evidence namely, the recovery of the stolen generator in the possession of the 3^rd appellant which was duly identified by PW1 and the loading of the pipes in the motor vehicle which was done by the 1^st appellant and 2^nd appellant.  As to the 3^rd appellant the trial court invoked the doctrine of recent possession to convict. 

        In the fist appellate court, that is, the High Court, upheld the conviction of the 1^st appellant and 2^nd appellant because they were the ones who loaded the pipes in the motor vehicle.

The judge said we quote:-

“For the appellant Abdon Shao and Matata Iddi the evidence of Didas Mushi (PW7) shows they are the ones who loaded the pipes Mbezi and off loaded them at Ilala.  When asked to defend themselves all they gave was a blanket denial of the offence.  They were properly convicted and their appeals are accordingly dismissed in their entirety”

And as for the 3^rd appellant, the Judge said, we quote:

“In his cautioned statement (Exht P4) he said the second person gave him the generator for safe keeping, while in court he changed his story and said the second accused person sent the generator to him for repairs.  These contradiction meant that the tenth accused person has not raised doubt in the prosecution story.  He did not need to prove his case, but he did not need to change stories to suit conveniences.  The application of the doctrine of recent possession by the trial court was proper in the circumstances”

As to the evidence of the pipes adduced by PW7, Ms. Msabila learned State Attorney correctly pointed out that the evidence on record does not show the alleged pipes loaded and offloaded at Mbezi and Ilala respectively were those stolen following the robbery incident.  To put it differently nothing has been shown to connect the stolen pipes with those loaded and offloaded at Mbezi and Ilala.  Since that linkage is missing, the evidence of PW7 is of no useful purpose.

        Turning to the cautioned statements, Ms. Msabila submitted that since those who gave them retracted, then it was the duty of the trial court to warn itself the dangers of relying on such statements.  The trial court and the High Court misdirected themselves, she concluded.

The record shows that after giving his evidence in chief, PW2 produced the statements in court and the same were admitted.  Let the record speak for itself, we reproduce;

“After recording a confession, we took the accused to this court. (Court) sic Then PW2 reads the three statements and tendered as  exhibits P2, P3 and P4 respectively”

  After the tendering of the statements,  the 1^st appellant and Vicent Jeremiah were given opportunity to say something which is not proper, either, whereby they objected.  The 3^rd appellant was not given such opportunity.

Obviously, that procedure is unknown.  Ordinarily, if a party to any criminal proceedings wishes to tender an exhibition in court, the presiding judicial officer should first ask the other party as to whether she/he object to the tendering of the same.  This is in line with the spirit of a fair hearing.  To do otherwise is tantamount to deny the accused a fair hearing.

        Besides, the record does not also show the trial court to have made a finding as to whether the cautioned statements improperly tendered were made voluntary.  Indeed, we are one with the High Court on this point.  However, as quoted earlier when dealing with the appeal of the 3^rd appellant the High Court acted upon that cautioned statement.  That surprises us.  It surprises us because it is the same High Court which categorically stated that the prosecution did not make any attempt to prove voluntariness.  The High Court said we quote:-

“In the present case no attempt was made to make PW2 D/cpl Elneo proves the voluntariness of the confessions taken”

And one of such statement taken by D/Cpl Elneo (PW2) is that of the 3^rd appellant.  So, the cautioned statement of the 3^rd appellant ought not to have been received and acted upon.  Once that evidence is discounted, which we do, the question is whether the available evidence on record suffices to invoke the doctrine of recent possessession.  The doctrine of recent possession arises where it is established that an accused person who is found in possession with property recently stolen, he is taken to be an actual thief or a guilty receiver.

Formerly the doctrine was applicable to theft and allied offences.  Now the doctrine applies to any other charge; including murder.  The circumstances in which the doctrine of recent possession can be invoked were clearly elaborated by the Court of Appeal for Eastern Africa in the case of RV Bakari s/o Abdalla [1949] 16 EACA 84.  The Court held, inter alia:-

“That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support or presumption of burglary or of breaking and entering but of murder as well, and if all circumstances of a case point to no other reasonable presumption can extend to any charge however penal”

In the instant case there is no dispute at all that the generator was found with 3^rd appellant.  And when he was asked he mentioned the 1^st appellant, the one who sent there.  That evidence was not challenged by the prosecution.  Further, the prosecution did not attempt to show the surrounding circumstances while receiving the same whether he knew it was stolen property. We are of the firm view that the element of mens rea is lacking.  The 3^rd appellant, under the circumstances, cannot be taken to be an actual thief or a guilty receiver.  It follows therefore, that the 3^rd appellant is neither guilty of the offence of armed robbery nor that of receiving stolen property.

        We have discounted the evidence of cautioned statements.  So, what now remains is the oral evidence of the 3^rd appellant to the effect that it was the 1^st appellant who sent him the generator.  The question is whether that evidence of a co-accused alone is enough to convict.  But the evidence of a co-accused is on the same footing as that of an accomplice; it must be treated with caution and as a matter of practice would require corroboration. 

        In this case both courts below did not address that issue at all.  As earlier said there is no other evidence on record direct or circumstantial to corroborate the 3^rd appellant evidence.   It is unsafe to act on that evidence alone.

        All in all, we agree with Ms. Msabila that the evidence on record is not strong to convict.  In the result we find the appeals have merits.  The conviction is quashed and the sentence of 30 years imprisonment imposed on each appellant is set aside.  We order the appellants be released from prison forthwith, unless they are held for other lawful cause. 

        It is so ordered.

DATED at DAR ES SALAAM this     day of , 2009.

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