IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: KAJI,
J.A., KILEO, J.A And KIMARO, J.A.)
CRIMINAL APPEAL NO.
87 OF 2004
1.
ABUBAKAR HAMISI
2.
RASHID ABDALLAH ……………….…………………………..APPELLANTS
3.
ALLY HAMIS
VERSUS
THE
REPUBLIC……………………………………………………….RESPONDSENT
(Appeal from the decision of the High
Court at Arusha)
(Msoffe,
J.)
dated 16th
October, 2003
in
Criminal Appeals No. 8,9 & 10 of 2003
…………………….
JUDGMENT OF THE COURT
15th
& 23rd April 2008
KIMARO, J.A.
The three appellants; Abubakar Hamisi,
Rashid Abdallah and Ally Hamisi were jointly charged in the District Court of
Babati , at Babati with the offence of armed robbery contrary to sections 285 and
286 of the Penal Code. They were all convicted and sentenced to thirty years
imprisonment. Their appeal to the High
Court was dismissed. Still aggrieved, the
appellants preferred this appeal.
In
the trial court the appellants’ conviction was founded on the doctrine of
recent possession and was upheld by the High Court. The
evidence upon which the appellants’ conviction was founded was to the effect
that; a tractor with registration No. ART 574 belonging to John Ibrahim
Mnyagatwa(PW2) was, on 4th August, 1999 under the custody of Richard
John (PW1), his son. PW1 had kept the tractor in his farm, under the guard of
Husein Said (PW3). PW3 testified that, himself and Bosco Jaffet(PW4) were on
that date at 10.00 p.m. invaded by a
group of thugs estimated to be around 10 in number. The thugs had their faces covered to hide
their identity and were armed with various weapons including a firearm, pangas, swords, spears and clubs. PW3 and PW4 were threatened with death if
they raised any alarm, their arms were tied backwards with elastics and they
were ordered to go in their camp, where they remained until after the thugs had
disappeared with the tractor.
On
7th August, 1999, three days after the tractor was stolen, the 3rd
appellant is said to have approached one Antelim Paulo (PW5), a garage owner,
with tractor spare parts for sale and asked PW5 if he was interested to buy
them. PW5, who had already been informed
by PW1 that his tractor was stolen, showed a positive response in pretence that
he was interested to buy the spare parts.
In order to give PW5 time to inform PW1 about the transaction so that
PW1 could go and inspect the spare parts to ascertain whether they could be
that of his tractor, PW5 suggested to the 3rd appellant to leave the
spare parts there and return for payment later.
The 3rd appellant agreed.
In the meantime, PW5 went to inform PW1 who had put up in a nearby guest
house about the transaction. PW1 went
and inspected the spare parts. He confirmed that they were that of his
tractor. As PW1 was under cover at the
garage of PW5, he saw the 3rd appellant who was known to him before,
coming to collect payment. The payment
was agreed at T, shs 80,000/- and it
was PW1 who had given the money to PW5 for paying the 3rd appellant.
Further
testimony of PW5 was that PW1 had suggested to him that they should lay a
trap. It was on this basis that PW5
asked the 3rd appellant if they had more spare parts for sale, of
which the response by the 3rd appellant was positive but he suggested that PW5
should use his motor vehicle to collect them.
PW5 agreed and they settled at a price of T.shs. 250,000/- and the spare
parts to be collected at night. At 7.30
p.m. the 1st appellant went to PW5 and told him that it was time to
go and collect the spare parts. The impression
which PW5 got from the 1st appellant was that he was in the same
group with the 3rd appellant.
Using PW5’s motor vehicle, with the 1st appellant leading the
way and PW1 following behind closely, in accordance with the arrangements made
between him and PW5, the 1st appellant took PW5 to the
place where the spare parts were.
According
to PW5, he saw a tractor that had been dismantled into parts. PW1 identified
the tractor to be his property that was stolen on 4th August
1999. While they were there, the 3rd
appellant and one Omary Juma joined them.
As they were loading the parts of the tractor in the motor vehicle, PW1
and a group he had arranged to assist him, ambushed them. The 1st appellant was arrested on
the spot, while the 3rd appellant is reported to have escaped. As the 1st appellant was
interrogated, he mentioned the 2nd appellant as being among the
persons involved in the commission of the offence.
On
the basis of the above evidence the appellants were charged with the offence of
armed robbery, and as stated before, they were convicted on the doctrine of
recent possession. The tractor was
stolen on 4th August, 1999 and on 7th August the
appellants were found with the tractor, dismantled. The trial magistrate was satisfied that the
appellants failed to give a reasonable account of their possession of the spare
parts. This finding of the trial court
was upheld by the first appellate court.
The
first appellant filed three grounds of appeal.
These are conviction on insufficient evidence, improper evaluation of
the evidence of PW1 and PW5 and failure to consider the defence evidence. The second appellant has two grounds;
conviction on contradictory prosecution evidence and failure to take the
necessary caution on accomplice evidence. As for the last appellant he has
three grounds; conviction for an offence which was not proved by concrete
evidence, ignoring defence exhibits and improper evaluation of the evidence of
PW5.
At
the hearing of the appeal the appellants appeared in person. The respondent Republic was represented by Mr.
Henry Kitambwa, learned State Attorney.
In
arguing their appeal the appellants added other grounds of appeal; all of them
faulting the first appellate court for upholding their conviction on
insufficient prosecution evidence. The
learned State Attorney on his part supported the conviction claiming that PW5,
their key witness, was a credible witness and it was proper for the first
appellate court to uphold the conviction of the appellants. He supported his argument by the case of Twaha Elias Mwandungu Vs The Republic Criminal Appeal No. 87 of
2004 (CAT)( Unreported). In the said case, Samatta, J.A as he then was, cited
section 122 of the Law of Evidence Act, 1967 and said:
“The
presumption under this section embodies inter alia the well known doctrine
of recent possession which is to the effect that a man who is found in
possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be
stolen, unless he can account for his possession by at least giving an
explanation which may reasonably be true.
The presumption can extend to any penal charge…”
In upholding the conviction against the
appellants the learned High Court Judge
Msoffe, J, as he then was, said:
“One, there
is no doubt that PW5 was a very crucial
witness in the case. This witness testified positively and actually uncontradicted, that he knew the
appellants quite well even before the
date of the incident.
Two, a
close look of the testimony of PW5 will show that all appellants were involved
in one way or another in the whole transaction beginning from the offer to sell
the spare parts to the time when PW1’s tractor was found dismantled.
Three, it
should not be forgotten that the appellants surfaced with the offer to sell the
tractor spares. Needless to say, these were the spares which were duly identified by
PW1 as having been dismantled from his tractor.
At the scene PW1 and PW5 could, actually see the exact positions in the
tractor from where the spares were taken out.
With respect to the learned first appellate
judge, we agree with his findings fully, only in as far as the 1st
appellant is concerned. There is no
doubt that the first appellant was arrested on the spot as the process of
loading the dismantled tractor into parts was going on. In his defence he never gave any account on
how he came to possess the tractor of PW1 which was found dismantled to parts, he
being the one who led the way to the place where the tractor was found. Instead, he denied commission of the offence,
claiming that he was an employee of PW5 and on the date of his arrest, he was
driving the motor vehicle of PW5 which he believed contained sun- flower, but
he was surprised that when it was uncovered it had a tractor. We do not hesitate to say that his defence was
a concoction because his employment with PW5 never featured in his cross
examination when PW5 gave evidence in court. In this respect we are satisfied
that he was properly convicted under the doctrine of recent possession. The facts
of this appeal squarely fit in the remarks made on the doctrine of recent
possession by Samatta, J. A as he then was, in the case of Twaha Elias Mwandungu supra.
The offence of robbery was committed on 4th August, 1999 and
the 1st appellant was found with the tractor in a dismantled form three
days after the commission of the offence and he did not account for his
possession. There was no way in which he could escape conviction under the
circumstances. The trial court properly
convicted him and the first appellate court rightly upheld the conviction. The sentence meted out was the statutory
minimum prescribed for the offence by the law. We dismiss his appeal in
entirety.
As regards the 2nd and 3rd
appellants we are mindful that this is a second appeal. For such appeals the established principle is
that the Court rarely interferes with concurrent findings of facts by the lower
courts, except where there are mis-directions and non-directions on the
evidence by the first appellate court.
See Director of Public
Prosecutions Vs Jaffari Mfaume Rashid[1981] TLR 149.
In this appeal there was a
mis-direction on the evaluation of the evidence of PW1 and PW5 in respect of
the 2nd and 3rd appellants and this gives us a justification
to look at the evidence afresh and make our own findings. Starting with the 2nd appellant,
the evidence by PW5 is contradictory. In his examination in chief he at one
point testified that it was the 3rd appellant and one Omari Juma who
had initially approached him on 7th August 1999 at 1.30 p.m with
spare parts for sale. At another point
he said it was the 1st appellant who after his arrest, mentioned the
2nd appellant as being among the culprits who committed the
offence. During cross examination by the
2nd appellant he said it was the 2nd appellant who
approached him with a cylinder head and gasket for sale. At the same time PW1 said as the 1st
appellant led the way to the place where the tractor was, the 2nd
and 3rd appellants were also present in the motor vehicle of PW5. However, PW5 did not mention the 2nd
and 3rd appellants as being among the persons who were with him. He
was categorical that he was with the 1st appellant only. This
being the position, it means that the sole evidence upon which the conviction
of the 2nd appellant was based was that of the 1st
appellant. This was accomplice evidence,
which as a matter of practice required corroboration and in this case it was
lacking. See Mwinyi Mohamed Abdalla Vs S.M.Z. [1988] T.L.R.37. The trial court was duty bound to resolve the
inconsistencies and contradictions in the evidence of PW1 and PW5. This was not done; as a result the 2nd
appellant was wrongly convicted. The
duty of proving the charge against the 2nd appellant was that of the
prosecution and the standard was that of proof beyond reasonable doubt. See the case of Mohamed Said Matula Vs Republic [1995] T.L.R. 3. As the
prosecution did not prove the charge against the 2nd appellant
beyond reasonable doubt he was wrongly convicted.
In view of what we have shown above, the first
appellate court mis-directed itself when it upheld his conviction. His appeal has merit. We allow his appeal, quash the conviction,
set aside the sentence, and order his immediate release from prison unless he
is held for any other lawful cause.
As for the 3rd appellant his
position is equally the same in the sense that the evidence against him creates
doubt as to whether he was really involved in the commission of the offence. In arguing his appeal, he vehemently
challenged the evidence of PW5 in various respects. First, his statement at the police was
recorded on 14th October, 1999 while the tractor was recovered on 7th
August, 1999. Second, the 3rd
appellant was charged in court on 4th October, 1999 and the statement
of PW5 was recorded ten days after he was charged. Third, he wondered why the spare parts which
PW5 said he sold to him on 7th August 1999 were not tendered in
court as exhibit.
We
also pointed out another contradiction in the evidence of PW1 and PW5 on who
rode with PW5 in his motor vehicle to the place where the spares were. There is
yet another important question lingering in our minds. Why was the 3rd appellant not arrested on 7th
August 1999 while PW5 said that PW1 confirmed that the spares parts were that
of his tractor and he had given Tshs 80,000/- to PW5 to pay the 3rd
appellant for the spare parts? According to the testimony of PW5 the money was paid
to the 3rd appellant while PW1 was in the garage of PW5 and PW1 said
he saw the 3rd appellant receiving the money. In our considered view, that was the best
opportunity for his arrest.
With all these doubts, we are settled in our
minds that it was unsafe to convict the 3rd appellant. He was entitled to an acquittal on a benefit
of doubt. The first appellate court misdirected itself in upholding his
conviction. We allow his appeal, quash
the conviction, set aside the sentence, and order his immediate release from
prison unless he is held for any other lawful cause.
DATED at ARUSHA this 21st day
of April, 2008
S. N.
KAJI
JUSTICE OF APPEAL
E. A.
KILEO
JUSTICE OF APPEAL
N. P.
KIMARO
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K. WAMBALI)
SENIOR
DEPUTY REGISTRAR
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