IN THE COURT OF APPEAL OF TANZANIA AT MWANZA. LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.) CRIMINAL APPEAL NO.1 OF 2005

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1 IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.) CRIMINAL APPEAL NO.1 OF DICKSON S/O JOSEPH LUYANA } 2. CHARLES S/O BAJUNANA. APPELLANTS VERSUS (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Masanche, J.) dated the 8 th day of September, 2004 in HC Criminal Appeal No. 77 and 76 of 2002 JUDGMENT OF THE COURT RUTAKANGWA, J.A.: This is a second appeal against a conviction for armed robbery cjss 285 and 286 of the Penal Code and a sentence of thirty (30)

2 The two appellants were jointly charged together with four other people with the offence of armed robbery before the District Court of Mwanza. All of them denied the charge. However, they alone were convicted as charged and sent to prison. Their appeal to the High Court against conviction and sentence was dismissed by Masanche, J. They think the two courts below were wrong as the charge against them was not proved at all by the prosecution. We shall start by stating the full particulars of the charge. They "That Dickson s/o Luyana, Charles 5/0 Bajunana, Hezron s/o Otiene, Shamsi s/o Issa, Felix s/o Ferdinand and Augustine 5/0 Mgolozi on the 20 th day of March, 2001 at hrs at I1emela area within the city, District of Mwanza, did steal one Radio call charger valued at TShs. 500,000/= the property of Tan Perch Factory and at or immediately before or immediately after stealing did use actual violence by threatening to cut with a panga Amos slo

3 Balosha in order to retain the stolen property" (emphasis is ours). To prove its case, the prosecution called 6 witnesses. These were Amos Balosha, Kassian Kazana, David Masolwa, Switbert Musa, No. C.1490 D/Sgt. Gasper and No. D.4554 D/Cpl. Mahenge. These witnesses shall be referred to as PW1, PW2, PW3, PW4, PW5 and PVV6respectively hereinafter. These witnesses were to prove that the appellants and their co-accused did rob one radio call charger, apparently of an unknown type or make, and in the process threatened to cut PWl with a panga in order to retain it. No one, then, could have explained the robbery better than PWl Amos Balosha. His evidence in chief, which we take the liberty to reproduce faithfully in full, for reasons which will become apparent subsequently, was as follows:- "I know the accused persons among them before the robbery such as Dickson, white/in court is Charles s/o Willibard and 5 th accused Felix Shengoma Shamusha and Kamugisha after the robbery 1 came to know the rest by

4 face. The one whom was not known to me is the 3 rd accused only. Other people who robbed me are not in court. On 20/3/2001 at about hrs I was at the factory by my co-workers (employees). A watchman at the main gate phone to me a radio call that a group of people has come to rob. I informed other watchmen to be ready to rescue with the robbers. I did phone to central police the bandits were throwing stones as we were many with the workers on night duty we succeeded to arrest them. The first accused to be arrested was Dickson, he was arrested with a charger of a radio-call. The policemen arrived we succeeded to arrest the rest in our fence at water tanks. We took them to police Kirumba. They were charged. The accused person had a panga and an iron bar, the second accused had a panga the first accused had an iron bar in his hand" (emphasis is ours). After tendering one charger, one panga and one iron bar in evidence as exhibits Pi, P2 and P3, PWl ended his evidence in chief. Under

5 cross-examination he claimed that the accused Dickson (1 st appellant) was arrested holding the charger in his hands. The evidence of PW2, PW3 and PW4 was generally along the same lines, although they contradicted each other on some fundamental issues. This evidence of PW1 notwithstanding, PWS Cpl. Mahenge claimed the credit of being the one who arrested the 1 st appellant after arriving at the scene of crime. He was very specific that the 1 st appellant unsuccessfully took to his heels, "dropped a charger together with a knife" but with the help of the police and workers they "succeeded to arrest him". The two appellants denied the entire accusation. They said it was a total fabrication. The 1 st appellant told the trial court that he was arrested at his home on 20/03/2001 at hours by two uniformed policemen and taken to Kirumba Police Station where he was detained until 23/03/2001 when he was taken to court. On his part, the second appellant testified that he was arrested on 19/03/2001 at hours by sungusungu people. He was on his way home from Bingwa Club Nyamahoro. They took him to Pasiansi

6 Police Post as he failed to supply them with a torch. He was later taken to Kirumba Police Station joined with his co-accused and subsequently charged. The trial District Court did not buy the stories by the appellants. The learned trial District Magistrate after reproducing all the evidence on record, without subjecting it to any critical or objective analysis jumped to the conclusion that a radio call charger was stolen from the Tan Perch factory. The only issue he found facing him was the identity of the thieves. He immediately held that since the 1 st appellant "was arrested on the spot at about hours with a radio charger" he was one of the robbers. He accordingly convicted him as charged. As for the 2 nd appellant, the learned trial magistrate had this to "In his defence 2 nd accused said the prosecution evidence of PW3 and PW6 differs to their statements given at police station but didn't explain really what differs in which

7 paragraph he just tendered them in court as Exh. 'Dl' collectively". Without specifically rejecting the 2 nd appellant's defence, he proceeded to hold that the prosecution had succeeded to prove beyond reasonable doubt the case against him. He, too, was convicted as charged. The rest were acquitted. As already indicated above, the two appellants challenged the convictions and sentences on appeal to the High Court. Abdicating its duty as a first appellate court to re-evaluate the entire evidence, the learned appellate judge found the appellants' appeal seriously wanting in merit and dismissed it. He held that view because the 1 st appellant "was actually caught red-handed in the yard with the stolen article". He went on to say:- The appellants, according to the evidence on record, were armed with stones and a panga and indeed these articles were tendered in

8 He rejected the appellants' defence of alibi because they were netted on the spot within the factory. To us, the above holding by the learned judge indicates that he did not dispassionately read the evidence. Had he done so, he would not have failed to discover that no single stone was tendered in evidence. Furthermore, the evidence on where the appellants were arrested and found with what was flawed with fundamental contradictions. In this appeal the appellants are urging us to quash their convictions and set aside the sentences on these grounds. First, there was no proof that any radio call charger was stolen from Tan Perch factory at all. Second, even if one were to assume that there was such stealing the offence of robbery was not proved at all. Third, the prosecution witnesses gave contradictory evidence which shattered their credibility. Four, it was wrong for the courts below to reject their defence of alibi, without assigning any reasons.

9 Urging us to dismiss the appeal, Mr. Kiria, learned State Attorney, had indeed an uphill task. He defended the decisions of the two courts below, because the two appellants were not only adequately identified among the robbers but were also arrested within the factory premises. On this, however, he failed to justify the acquittal of the appellants' co-accused who were also allegedly identified and arrested within the factory by PW1, PW2, PW3, PW4 and PW6. Secondly, the appellants were found in possession of the stolen charger, he argued. Third, although he admitted that there was no evidence on record to show from where the charger was stolen and at what time it was stolen, he was of the firm view that PW4's evidence proved beyond reasonable doubt that the charger, Exhibit Pi, was the property of Tan Perch factory. Asked by the Court on whether from the entire evidence on record it can be safely held that any robbery was committed, he was non committal. He left it to the Court to decide.

10 This is a second appeal. As was held by this Court in the case of Amratlal D.M. t/a Zanzibar Silk Stores v. A. H. Jariwala t/a Zanzibar Hotel [1980] TLR 31, where there are concurrent findings of fact by two courts below, this Court should as a wise rule of practice follow the long established rule repeatedly laid down by the Court of Appeal for East Africa. The rule is that an appellate court in such circumstances should not disturb concurrent findings of facts unless it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or a violation of some principle of law or practice. See further the case of Dr. PANDYA v. R. [1957] E.A The two courts below held that not only were the appellants arrested within the Tan Perch factory premises, but one of them was found in possession of the allegedly stolen radio call charger. These are concurrent findings of fact which in our considered opinion are not supported by any cogent evidence on record. In short, they were arrived at as a result of a clear misapprehension of the evidence.

11 Were the appellants actually arrested within the factory premises as conclusively found by the two courts below? Our considered answer to this crucial question is in the negative. The key prosecution witnesses contradicted themselves. PWl who was the in-charge of the watchmen testified that the 1 st appellant was arrested by him in collaboration with PW2, PW3 and PW4, among others, immediately after the bandits' presence was noticed before the arrival of PWS and PW6. According to PW1, the 1 st appellant when arrested was in possessionof the charger (Exh. Pi) which was in his hands. On these claims he was belied by PW2, PW3, PW4 and PW6 who claimed that both appellants were arrested after the arrival of the police. Furthermore, while PW4 claimed that the 1 st appellant was keeping Exhibit Pi in his pocket, PW6 as we have already shown, stated that the 1 st appellant dropped Exhibit Pi while being chased before he was arrested. The credibility of PW3 was shaken by the 2 nd appellant, through his statement to the police dated which was admitted in evidence as Exhibit D1. In this statement PW3 had stated that the 1 st appellant at the time of the robbery was putting on a hood. One wonders if the 1 st appellant had

12 a hood covering his head and face how could anyone have identified or recognized him? Furthermore, the veracity of PW6 was irremediably dented by his statement to the police (Exh. 01 again). In this statement, contrary to what he claimed in Court, PW6 had stated, under caution, that the 1 st appellant was arrested outside the factory premises on the "other side of the road". This statement corroborates the evidence of the 2 nd appellant to the effect that he was not arrested at the scene of the alleged robbery, but rather was arrested by good citizens on suspicion and taken to PW6. It is very unfortunate that neither the learned trial magistrate nor the learned first appellate judge did direct their minds either to these contradictions or to Exhibit 01 at all. We are left wondering if they would have reached the same findings had they done so. We think they would not. Before leaving this point we would like to observe that Mr. Kiria who zealously defended the decisions of the courts below had no access to Exhibit 01. This was because, for reasons unknown to us, Exhibit 01 was conveniently left out of the record of appeal. We are sure had he seen Exhibit 01, he would have had some genuine second thoughts.

13 Another fact worth considering here is whether or not there was evidence to prove that the Tan Perch company lost permanent ownership of any of its radio call chargers of whatever description. No single witness from the company testified to that effect. Even the value of the charger is not known. What we have on record are the now doubtful, if not discredited, allegations that the 1 st appellant was found in possessionof a radio call charger which only PW4 in a bare assertion claimed belonged to the company. This witness never told the trial court how he came to know that it was the property of Tan Perch. Worse still, PW4 never identified that charger (Exh. Pl) in court. It would be risky then to assume that Exhibit Pl is the property of Tan Perch. PWl who tendered it in evidence never claimed that it was the property of his employer. If indeed Tan Perch had lost their charger through the alleged robbery, it would not have failed to come to court to testify through a responsible officer to that effect. That it did not do so leads to a reasonable inference that no radio call charger was stolen from them on 20/03/2001. This inference is further augmented by the fact that there is no evidence at all to show from where the said charger was taken and/or at what

14 point in time, when it appears from the confusing evidence that the bandits were arrested before they fulfilled whatever they wanted to do. The issues of law raised by the appellants equally deserve our serious consideration. Was there any theft? If there was any theft was there any robbery committed? The former issue gets its answer from what we have held immediately above. Theft of Tan Perch radio call charger was not proved at all. Even if we were to assume that Exhibit Pi was found on the 1 st appellant and is the property of Tan Perch, we are all the same of the settled mind that the offence of robbery was not proved. As this Court held in the case of Zubell Opeshutu v. R., Criminal Appeal No. 31 of 2003, "The prosecution has to adduce evidence to establish the essential ingredients of the offence, that is, whether actual violence was used to obtain or retain the thing stolen. The nature of the violence must also be proved. A prerequisite for the crime of robbery is that

15 there should be violence to the person of the complainant...ff the appellants used or threatened to use any actual violence on the person of PWi Amos to obtain and/or retain Exhibit Pi or any other property. That is why we thought it worthwhile to reproduce the entire evidence of PW1. That is why also Mr. Kiria was in a difficult situation to tell us which offence the appellants committed, assuming they were arrested under the circumstances alleged by the prosecution witnesses. It appears they were rounded up before they got anywhere. No single witness said that any violence was directed on his person. All said, we are satisfied that the prosecution failed totally to prove its case against the appellants. Indeed, if the evidence of PWi,PW2, PW3, PW4 and PW6 was found not to be cogent enough to convict the appellants' co-accused, the same standards ought to have been applied to the appellants.

16 In the result, we allow this appeal. The conviction for robbery in respect of each appellant is hereby quashed aside as well as the prison sentence. The appellants are to be released forthwith from prison unless they are otherwise lawfully held. DATED at MWANZA this 16 th day of March, D.Z. JUSTICE LUBUVA OF APPEAL J. A. MROSO JUSTICE OF APPEAL E.M.K. RUTAKANGWA JSUTICE OF APPEAL I certify that this is a true copy of the original.