ORIGINAL CRIMINAL CASE NO. 85 OF 1993(OF THE DISTRICT COURT OF ILALA DISTRICT AT KIVUKONI)(BEFORE KAGANDA S. ESQ. ,RESIDENT MAGISTRATE )

1.CHARLES SIMON MZIRAYj2.ABDALLAH C. ATHUHAN j •••••••••••••••••• APPELLANTS

VERSUSTHE UNITED REPUBLIC RESPONDENT

(ORIGINAL PROSECUTOR)

On 1st December, 1993 the Appellants, Charles Simon Mzirayand Abdallah C. Athuman, (herein· - after styled 1st and 2ndAppellant respectively) found themselves together with oneRaphael Peter Mapunda (who didn't appeal) being sent to jailupon conviction by Kisutu Rm's Court on a seven year termof imprisonment each for Robbery (snatching a Toyota Corollasaloon vehicle by force) cIs 265 and 286 of the Penal Coderesul ting from cr. case No. 85 of 1993 which had. jointly facedthem (on a charge of Armed Robbery) as 1st accused (RaphaelPeter Mapunda), 2nd accused (Charles Simon Mziray - 1st Appellantnow) and 3rd accused (Abdallah Chikira @ Athuman-2nd Appellant).Dissatisfied with these convictions the Appellants have decidedto try their luck by preferring the present appeal.

Although their memos of Appeals (additional grounds addedthereto at the time of hearing of the appeal inclusive) detaillengthy arguments they can simply be summarised as follows.Starting with grounds common to both Appellants, they contendthat the contradiction between PWl and Sgt Boniface (Pw7) isfatal for while the former says that the youngmen who tookaway his vehicle at gun point were three the latter talks offour explaining that this was the recounting of the eventto him by the former and that therefore this shows that he(Pwl) did not properly identify the culprits as much as he

failed to give their full description at the police stationhence unreliable as a witness; that at Chalinze Road block thedriver of the vehicle they were in escaped and that this provesthat he was the owner and controller of the said vehicle; thatno evidence was adduced to show that they were in anywayconcerned with the changing of the figures on number platesor glasses, and finally that the prosecution did not prove theoffence up to the standard required by law. On top of this, the1st Appellant (Hziray), submitted that had he been one of theculprits PW1 would have described where and how he was seated inthe vehicle upon being hired and naturally would have identifiedhim at the identification parade; that in absence of any othercorroborative evidence his defence that he had just been apassenger in the vehicle as he hiked a lift should have givenhim the benefit of doubt instead of the trial court convictinghim on the basis of the doctrine of recent possession and moreparticularly after PW1 had identified the culprits in the namesof 2nd Appellant and one Rajabu (who was 1st accused and whonever appealed). He cited Salehe Seleman VR (1972) HCD N.23,that mere presence at the scene does not necessarily make aperson a party to the offence. On the other hand, the 2ndAppellant cementing his arguments, added that he was framed upby police because he refused to bribe them with'shs.40,000/=they requested for, and finally that in any case there was noproof of armed robbery and if anything it was a mere offenceof theft.

Miss Mkwawa, learned State Attorney, for the Republic/Respondent responded on all the Appellants' argumentscumulatively by advancing that their claims are baselessas the offence was proved beyond reasonable doubts as requiredby law; that PW1's evidence was clear as regards 4 people whohired him; that he even gave description of how they wereseated in his vehicle; that they could not explain how theycame to be in the vehicle while it was proved that Ayoub,who escaped was not the driver. Replying further, Miss Mkwawastated that the allegation of a 40,000/= request for bribe isan after-thought; that while 2nd appellant was fully identifiedat the parade 1st appellant was found in the stolen vehicleand the explanations he gave of having been in a bar werecontradicted by his (and others) failure to point out the placesto the police when they were called upon to. She called upon thecourt to dismiss the appeals in entirety.

Before venturing into the arguments I have this to say. Inconvicting the Appellants and Raphael, after MERELY summarisingthe prosecution and defence evidence including submissions (whichwere effected in writing) by both ACP E.T. Mahenge for theprosecution and Mr. Chacha, Advocate for the defence, the trialcourt simply concluded without the slightest analysis or commenton the evidence as presented! For clarity on what I mean let thetrial court's record speak by itself:-

" I have considered the good arguments from both thePublic Prosecutor and the Advocate and their goodresearch on the case cited. Having gone throughthem I see the issue on identification has beenargued well by the Advocate but no substanceargument was made on the issue of doctrine ofRecent possession.

The evidence given shows clearly that after thestealing the PW1 became a suspect of course there aremany such cases by police when drivers become victims.But then the accused were found two days later with thesubject matter and when examined could not give goodexplanation on how they came into possession of it. Tomake it more worse the vehicle was given differentidentity by fixing new plate numbers .I therefore agree totally with the prosecution side thatbeing found with property which is not easy changeablefrom hand to hand like the car, the only inference is that

the one found in possession is the one who committed theoffence"

With unfeigned respect to the trial Court the above quoted fallsshort of evaluating evidence as required by law for it leaves usin dark as to what finding was made on what submission includingevidence. Although world wide over the "scale of justice" is thecommon symbol used to portray the role of a Court - that it hasto stand in between, evaluate and balance two contending "parts"before reaching a conclusion - it can't be applied mechanicallyas when weighing goods on a weighing machine as concluded by thetrial court supra. And this is more so when the prosecution anddefence, each, made strong submissions as contended by trialcourt. Indeed this offends the requirements under s. 312 CPAwhich among others clearly directs "Every judgement shall .contain the point or points for determination, the decisionthereon and the reasons for the decision ". Now, what shouldthis court do in the cirmstances? Generally it has been held that"every judgement should state the facts of the case establishingeach fact by reference to the particular evidence by which it issupported; and it should give sufficiently and plainly thereasons which justify the finding" (citing Amirali Ismail v R 1TLR 370, REX v Lulakomba 3 E.A.C.A. 43 and William Msaka v R(1968) HCD 216 this was observed and approved in R v Suna (1971)Hcn 208).

In all these cases the courts held that there existed, inthe respective judgements, inadequency which led to failure ofjustice and the solution was to allow the appeals and orderingretrial in some. Also, in R v Hezron s\o Magari (1970) HCD 148where the Court among others, held,

"I must say at the outset that the judgement of thetrial Magistrate is unsatisfactory. One cannot stresstoo strongly the importance of subjecting evidence to

analysis before arriving at any conclusion upon it.It is not enough merely to set out conclusions withoutsetting out the process of reasoning which has led tothem. There was no analysis of the evidence in thiscase" a retrial was ordered.

However in John s\o George and another (1971) HCn 390wherein was observed,

"The judgement neither contained the point or pointsfor determination nor the reasons for the decision.Where there is conflicting evidence or where theevidence tendered by the prosecution is denied bythe defence and the defence gives a different version,it is the duty of the trial court to assess and evaluatethe evidence and give some indications why it accepted·one piece of evidence in preference to the other",

the court concluded that though this offended s.171 (1) of CPC(present Section 312 (1) CPA) it did not cause any failure ofjustice. The court referred to s.346 of the CPC (then) now s. 388(1) CPA where it is provided that

"no ommission or irregularity in thejudgement is fatal unless it occassions failure ofjustice".

I have cautiously and carefully looked at the circumstancesof this particular case and in relation to S.312 (1), s.388 (1)CPA and the various authorities on a similar issue and I have butconcluded that the present failure by the trial court to analysethe issues and evidence has not occasioned the failure of justiceto warrant declaring the decision a nullity. In fact, apart fromthe fact that most of the cases cited were unique in themselves,like R v Suna where not even a line of judgement was written (!)it is my considered opinion that courts on appeal should treadcarefully on this question as in an attempt to cure injustice mayend up committing more injustice. Imagine a situation where theevidence produced glaringly establishes an offence but merelybecause the trial court simply jumped on conclusion withoutanalysis and convicted, the finding is declared a nullity andpossibly due to lapse of time or related retrial is not a properorder to make or retrial is ordered but then the prosecutioncan't take off either because relevant exhibits have disappeared,stolen or can't be traced or witnesses have died. On the otherhand, it is an open secret that in most cases ordering a retrial,surely re-subjects an appellant to the very known ordeal of atrial which in many a time may be far from doing him justice.

In my view therefore, unless the ommission or irregularityin the judgement is of the nature as the one committed in R vSuna case (supra) where actually no judgement was written a Courton first appeal should resort to its own analysis of the evidencein order to arrive at a proper finding. Moreover, this duty isnot a new one - as law dictates, the first appellate court has

to make its own consideration and views of the evidence tenderedin the trial court as whole and make its own decision thereon{Dinkerrai Pandya v R (1957) E.A. 336 cited with approval in Emmad\o Mwaluko & 2 others v R (1976) TLR. 50}. This is what Ipropose to do in this case.

PW1 (Matheo Thobias) deposed that on 1st February 1993 between2.30 and 3.00 pm he was hired by 3 youngmen from NBC ForeignBranch Taxi stand within Dar es Salaam city, to a place alongShekilango Road at shs. 1200/= but upon reaching thisdestination they threatened him with a pistol, temporarily tiedhim with a rope across his neck and was dropped off the Vehicleafter the hirers had discussed and decided not to kill him. Theyrun off with the Vehicle. He shouted for help but only PW3(Dora), a lady, who resided nearby came to his help. PW1 was thedriver of m\v Reg.No. TZA 326 Toyota Corolla Saloon belonging toPW2 (Atilo Kisapi) and which was plying for hire as Taxi thoughnot so licenced. PW1 immediately reported the incident to thenearby Urafiki police station. Suspicious of the manner thevehicle was said to have been stolen, the police, as is commonlydone, landed PW1 in remand and charged him. Nine days later hewas released only to find that the stolen vehicle had beenrecovered and on 10\2\93 was called upon to attend anidentification parade at which he identified 2nd Appellant andRaphael as having been among the three youngmen who hired him andsubsequently snatched away the vehicle.

PW3 deposed that she simply came to the aid of PW1 when heshouted but did not see the vehicle nor the occupants but hearda sound of a speeding vehicle as she was inside the house then.

As to how the Vehicle was recovered, PW5 (C.5107 Cpl. Ally)testified how on 2\2\96 he and other police officers at Chalinzethey were commanded by their boss to mount a road block along thehighway from Dar es Salaam as there were reports of theft of aToyota landcruiser Reg.No. TZC 141 which they did. At midnighta Toyota Corolla Saloon, which was the one subsequently provedto·be the one stolen from PW1, pulled at the road block and amongthe occupants were Raphael as driver, the Appellants and anotheryoungman. PW5 went on to say that they became suspicious of thevehicle as the driver claimed to have left the driving licenceand Registration card at Dar es Salaam; the Insurance coverrevealed scrubbing\scratches though Reg.No. of the vehicleindicated was TZB 1192; the plate number was not at its usualposition on the vehicle but placed besides the driver whileanother one covered with red selotape revealed Reg.No. TZA 326when the said selotape was removed. Appellants and Raphael wereduly arrested, sent to Chalinze police station though on the waydue to overcrowding in the vehicle and as the vehicle slowed downat a curve the youngman escaped.

PW4, Asst. Inspector Anne, testified how she organised andsupervised an identification parade at which only Raphael and 2ndAppellant were identified by PW1. PW6 was the officer i\c at

Chalinze Police station when Appellants were arrested. Both PW6and 5 emphatically stated that Raphael attempted to escape at thepolice station after switching off the lights but was overpowered.

PW7 is a police officer who investigated the case. Hetestified that upon receiving a report concerning a stolenvehicle he interviewed PWl and decided to charge him as usuallyin such cases drivers must be made suspects. His furtherinvestigations took him to TIZO guest House where reports had itthat, one Raphael who works there had been seen in possession ofa strange vehicle though his whereabouts then were unknown. On5th February 1993 he proceeded to Chalinze on receipt of reportsof police interception of a suspicions vehicle. Indeed he foundRaphael and Appellants under custody and he brought them togetherwith the vehicle to Oar es Salaam. This vehicle snatched from PW1and intercepted at Kibaha having been identified by the owner,PW2, he released PW1.

In defence Raphael and Appellants claimed that they weremere passengers as they had hiked a lift from Kibaha. 1stAppellant said that he had gone to Kibaha to see a friend who hadpromised to show him a shamba on sale but that when he arrivedthere his (friends') wife advised him to follow him at Chalinzewhere the shamba was situated. He got a lift in a saloon cartogether with 2nd Appellant only to be arrested at the RoadBlock. The 2nd Appellant sailing in the same boat as 1stAppellant said that he had asked for a lift as did 1st Appellantin the same vehicle and at the same time and place, Kibaha. Hefurther stated that though a resident of Oar es Salaam he hadarrived at Kibaha from Morogoro in search of his mentally illbrother, and that having missed him he decided on searching forhim at Chalinze. As did 1st Appellant, the 2nd Appellant insistedthat he was just a passenger and that the driver of the Vehiclewas not Raphael as deposed upon by PW5 but Omary who was releasedby PW5 himself. Regarding the alleged escape of Omary theymaintained that PW5 told lies for he released him himself havinggone with him to unknown destination from the arresting point.Raphael's defence was launched along similar lines. He haddeposed that he had been picked up by one Omary who was drivingthe Toyota Corolla saloon on representation that they were goingto Chalinze to collect his bundle of kanga from his (Omarys')wife who conducts kanga selling business and to whom he (Raphael)had pressed an order for the same; that at Kibaha, including 1stAppellant, he had asked for a lift only to be arrested atChalinze road Block. As to PW1's identification at the paradethey argued that this was prompted by the fact that he had seenthem at CIO's office.

In the submissions by the prosecution and defence, whichsubmissions were merely appreciated by the trial court by justa stroke of a pen but not discussed at all, the following waspresented.

Mr. Chacha learned Advocate for defence submitted that PW1had not produced witnesses allegedly present at the scene ofcrime hence corroborative evidence missed; that PW1 is a hostilewitness as he was proved by PW2 that he was once unfaithful inhis day to day duties; that as was held in the cases of Andreav R (1971) HCD 141 - (wrongly cited as 41), Ludovico Kashaku vR (1967) HCD 194; Chande Said v R cr. Appeal No. 216\83(unreported), R v Chamtiqiti (1970) HCD 343 - (wrongly cited as340), Eliya & others (1972) HOC 101 and Kibonqe Ramadhani v R._(1969) HCD 28 before conviction is found on evidence ofidentification by a single witness that evidence should beabsolutely water tight, conclusively exclude the possibility ofmistaken identity by disclosing marks as other features ofidentification and exclude the possibility of the victim'sconfused state of mind during identification.

Lastly for defence, Mr. Chacha) learned Advocate) quotingDavies vs DPP page 195 of Evidence in East Africa by H. F.Morris, argued that PW1 having been charged as first suspectthough later the charge was withdrawn is an accomplice andtherefore his evidence requires corroboration, and as for 1stAppellant, that as he was not touched at all by PW1's evidencehis defence should entitle him to acquittal.

The prosecution responding to the defence submission on theother hand maintained that PW1' s testimony does not requirecorroboration and it could not be expected to have witnessesaround as the incident was sudden; that PW1's identification ofRaphael, and 2nd Appellant at an identif ication parade wasuntainted and not as alleged by defence that it was just bydesign as otherwise 2nd accused (1st Appellant) would have beenidentified as well; that the requirements and precautionsregarding evidence of a single witness do not apply in this caseas the incident took place at day time; that as is the case withother persons who were charged, notwithstanding failure of PW1to identify 2nd accused at the parade, having been apprehendedred handed in company of others including Raphael who was thedriver of recently stolen vehicle, under the doctrine of recentpossession (cited Michael Mhuto v R (1975) LRT 18 and NaftaliNqalya v R (1976) LRT 4S) his guilt is a concluded affair as hefailed to explain how he came by, the same. The prosecution wenton to submit that the Appellants explanations had conflicted asthey failed to point out the places and persons they visited atKibaha when giving their statements to the Regional crimesofficer and that this coupled with their failure to call thosepersons as witnesses do not take them an inch away from thedoctrine of recent possession.

As I have already pointed out above the trial court did notanalyse the evidence and submissions. This duty I have now to dobut in so doing r will also discuss the grounds of Appeal aspresented by the Appellants.

uncontradicted throughout. It is not disputed that the car wassnatched away from him. The only question is whether it wasRaphael and Appellants who did so. The incident took place in abroad daylight - he estimates the time when he was hired as beingbetween 2.30 and 3.00 pm. Hirers of a car naturally have to facethe person to be hired, have to negotiate the terms andconditions of hire including charges and destination before they~ven embark unto a vehicle. All this time, hires and hired arein close visual proximity. Then there follows entry into thehired vehicle - again in close proximity and in the present casemoved for a considerable distance. Indeed it would be a surprise,and can only surface in existence of conspiracy to concealsomething if the hired was, within a short span of time like 10days, to be shown the people who hired him and he claimed thathe didn't recall them. The identification of Raphael and 2ndAppellant by PWl at the identification parade can't be anythingelse but a natural sequence of visual recollection. As rightlysubmitted by the prosecution the defence's claim that PWlrequired corroboration by other witnesses present at the sceneis baseless. 1st, invariably, in most cases, criminals doperpetrate their crimes where they feel that they won't be easilyidentified by public. In this case only PW3 was at hand and eventhen she was inside her house although she heard sound of aspeeding vehicle and PW1's cries. To insist that in order to holdPWl as credible there should be other witness in thecircumstances would be incredible. This is the case also with thedefence's direct attack on the prosecution case aided by a stringof cited cases that PW1' s evidence required corroboration asevidence of a single witness, that he should have givendescription of how the culprits were seated and their apparel;that as he was charged he is an accomplice and last that he wasa hostile witness!

Wi th respect to the defence's homework in preparation of thesubmission which highly impressed the trial court, while all theauthorities cited indeed pronounce the law as it exists now theyare not relevant to the present case. To start with the need forcorroboration and warning oneself when evidence of a singlewi tness is involved. As I have stated above the offence wascommitted in a broad day light and the Appellants, Raphael andPWl were in close proximity for a considerable time. The casescited were dealing with incidents which took place when powersof vision were impaired - Andrea v R (1971) HCn 141, the incidenttook place at 10.00 p.m. and there was just a torch light; inLudoviko Kashaku v R the incident was at night as well andwitnesses merely asserted that they had recognised the accusedwithout explaining how they so concluded in that darkness; in~hange said v R, the court warned of possible honest mistakenidentity of the accused by a witness but again it was at night;in Rv Chamtigiti (1970) HCn 343 again the victim was shot toJeath with an arrow at night and there was established that therewas no moonlight at the time; in Eliya & others (1972) Hcn 101

for the confused state of mind of witnesses it was also at nightand were being guided by moonlight and torch flash having beenassaulted with sticks and pang a on head and in Kibonge Ramadhany R (1969) HeD 28 the evidence involved was that of a child of10 years on an incident which took place at night). While stillon this I should respond to the joint Appellants' complaint thatwhile PW1 talked of hirers being 3 PW7 said 4 and that thereforethis shows that he was unreliable, didn't properly identify themcoupled with his failure to describe what clothes they put on andhow they looked like.

Apart from the fact that the number of hirers is notrelevant, PW7's testimony regarding this would merely be hearsayand in any case the leading evidence is that of the eye witness,PW1. For that matter the learned State Attorney's submission onappeal that PW1's assailants were named by him to be 4 is notcorrect. At the sametime PW1 clearly testified on how theincident took place in a broad daylight and that he fullyidentified the people who hired him. He was able to identify thatit was the 1st accused, Raphael (who didn't appeal) who washolding a pistol and seated besides him while the 3rd accused(present 2nd Appellant) was the one who tied him with a ropearound his neck as they deliberated whether or not to kill him.He described all this in his testimony. In any case at anidentification parade he identified the 2nd Appellant and Raphaelwithout hesitation. If he was just a mere guessing individual hewould have proceeded and identified any other person provided thenumber tallied with that he had mentioned. On the question ofidentifying their clothes and their features none of thewitnesses claims that at any given time, before identifying themat the parade, he was asked and failed to so explain or that heso explained contradictorily. While not subscribing to theprosecution's submission that "such an identification would berequired on a disputable chattel and not a human being before thecourt" as time and again such descriptions form basis ofcontentions in court and in many cases have led to acquittals andconvictions where relevant, in the present case I find the samenot relevant at all on the facts adduced. The other facet of thecase of Kibonge Ramadhani vs R (1969) HCD 28 cited by Mr. Chacha,learned Counsel, on the need for description of the particularsin identification, is not relevant for the same reasons expressedalJove.

As for the defence arguments that PW1 was an accomplice;hostile witness, while with due respect I fail to understand whatwas meant by "hostile" here for a "hostile witness" in law isclearly known and at no given moment did PW1 come even closer toits defining boundaries, I have to clearly state that PWl couldnot be called an accomplice in this particular case simplybecause he was charged before the recovery of the vehicle andarrest of Raphael and Appellants. There is not even the slightestelement connecting him with the theft of PW2's vehicle save thathe was the victim due to his being its driver when it was stolen.Due to prevalence of car thefts and at times to connivance

between drivers and thieves the police have devised this mode ofoperation which indeed in most cases is unjust to honest driverslike PW1. To show the reality behind this let us hear PW7 as towhy he charged PW1 upon reporting the theft,

"We did not believe of the driver's story 50 we frameda charge and took him to court. That is because it isa common habit for drivers to cheat the police -anyhow we continued with investigation".

What is in the above quoted to make PW1 an accomplice?Nothing. It is surprising that the learned defence counsel havingcited the case of Davies vs DPP and indicated the definition ofan accomplice thus,

"Persons are accomplices who are participes criminisin respect of the actual crime charged, whether asprincipals or assessories before or after the fact",

went on to insist that PW1 falls under that definition! It istrue that in cross examination PW1's employer, PW2, did say thatin 1992 he (PW1) did not keep proper accounts with an explanationthat it was due to non payment by clients which he laterreimbursed but this is a different matter and don't make him anaccomplice in this particular case. Whether an accused is anaccomplice or not can be gathered from the circumstancessurrounding the commission of the alleged offence, in particularhis relationship with the other accused persons {AMANYISYEMWANDAGA AND 3 OTHERS V. R, (1976) LRT NO. 14}.

As for the identification parade, a part from PW4 admittingthat she didn't inform the Appellants and Raphael that they couldcall relatives\friends or advocate to witness it, was conductedproperly. PW1 deposed how he moved from the CID's office only tofind the parade already arranged. If it were true that they weretogether in the CID's office before, defended as they were, theycould not have failed to raise this in cross examination. I findthat PW1 identified Raphael and 2nd Appellant not because of anyother influence but upon recollection of having seen them as theyhired him, during the course of driving them and during the theftof the vehicle he was driving.

Concerning the stoppage of the stolen vehicle at Chalinzeroad block and the finding of Raphael and Appellants in the saidvehicle this is not disputed at all. However one of the disputedfeatures is who was the driver. PWS testified that it was Raphaelwhile the defence maintains that it was the youngman who escapedunder the aid of PWS. Raphael and appellants said that PWS movedwith the driver, leaving others behind, to unknown place andafter a while returned alone with the keys and a police officerdrove them to the police station. PWS says that the youngman8scaped when the car slowed down at a curve as they were fullyparked (seven of them). I have the disadvantage of not havingseen PWS depose, and as pointed out before, the trial court did

not analyse the evidence, but a thorough analysis of the evidenceon record leaves me convinced that he is a credible witness. Hisevidence runs systematically, on how they were two policeofficers at the Road block, how they stopped and interviewedRaphael and Appellants and the fourth person, how they checkedthe Toyota vehicle discovering suspicious marks, how shortlyafter they were joined by 3 other police officers; how Raphaeland Appellants pleaded with them to accept money and release themand how the youngman who had claimed to be a student escaped onthe way. His evidence that Raphael attempted to escape at thepolice station as their particulars were being recorded is fullysupported by PW6, who was on duty as an officer i\c of shift. Ihold that it was Raphael who was driving the said vehicle.

With all this in place let us now turn to the particularquestion, that is the guilty or not of the Appellants (andRaphael). The trial court simply said that it was satisfied withdefence submission on identification. Although it did not say soin so many words (which led to uncertainty to the extent that theAppellants in this appeal still argue on it) the trial courtseems to have concluded that there is in-sufficient evidence ofidentification of Raphael and 2nd Appellant by PW1 but proceedto convict them on the principle of recent possession alone.However, as I have already demonstrated, it was sufficientlyproved that Raphael and 2nd Appellant were among the threeyoungmen who hired PW1 and subsequently snatched the ToyotaVehicle from him. What about the 1st Appellant (Mziray)? As theevidence goes he was not identified by PW1 as having been amongthe people who hired him. He did not identify him at theidentification parade although surprisingly in his (2ndAppellant) defence but not in appeal he seems to say that he was!It is not surprising therefore that in his individual grounds ofappeal he argues that had he been one among the thieves PW1 wouldhave identified him; and on the question of recent possession hesays that his explanations of having asked for a lift issufficiently put to entitle him to acquittal and cited SaleheSeleman case (supra).

While I am convinced, that Selemani's case cited isirrelevant because the crime was committed at Shekilango and notat Chalinze road block there is substance in the other argumentregarding the sufficiency of his defence.

Before we go into it however, let us turn to what the lawsays on the doctrine of recent possession. In Michael Mhuto vRepublic (1975) LRT 18 an exposition of this doctrine in ShediSheweji v R (HC of Tanzania Cr. Appeal No. 69 of 1974\0 wasquoted with approval.

"Although this doctrine of recent possession hasbeen variously expounded, there is no mystic about it.Simply stated all the doctrine is, that finding ofproperty recently stolen in the possession of a personraises a presumption of fact, not of law, that thepossessor either stole it himself or received itknowing it to have been stolen or unlawfully obtained,depending on the particular cirmustances, and thispresumption can be rebutted by such person giving anexplanation of innocent possession, which mayreasonably be true, and it is not necessary for himto satisfy the court that his possession was innocent".

As has been insisted upon time and again by Courts regardingthis doctrine of recent possession the accused is required togive just what could reasonably be true in the circumstances inrelation to how he came in possession of the stolen article. Inthe present case the 1st Appellant, Mziray, maintained that hehad been given a lift from Kibaha to Chalinze after being toldthat his friend at Kibaha who had promised him a shamba topurchase was at Chalinze. Although this kind of explanation ishighly suspicious, especially when one considers the time(midnight) when he was arrested at the road block, the fact thatthe burden on him is just a slight one gives it feet to standupon. He need not prove its truth. This is more so when PW7'sevidence is considered as well for he (1st Appellant) seems tohave given a similar explanation (shortly after arrest) when hewas interviewed by the Regional Crimes Officer, Pwani, althoughthe witness (PW7) at another stage says that he changed and saidthat he had been asked by Raphael to accompany him to Moshi toassist in getting a customer for the stolen vehicle. PW7' sevidence on these statements to the RCO seem to be hearsay forhe doesn't clarify as to whether he was present also when theywere being made. In the premises, however much suspicious, I findthat the 1st Appellant (Mziray) gave, in law, a sufficientexplanation as to how he came to be in the stolen vehicle andhence can't be found guilty under the doctrine of recentpossession. The same would have been the case with the 2ndAppellant (Abdallah C. Athuman) and Raphael, though again, very

. suspicious for no one would search for a sick brother in the deadof the night nor transact lawful business at that hour.Unfortunately for them however there is clear identification ofthem by PW1 as having been among the people who hired him andsubsequently forcefully took away the Vehicle. This clearidentification together with their being found in possession ofthe Vehicle they had stolen just a day or two later can't requireany louder declaration of Raphael and 2nd Appellant's guiltbeyond doubt.

Though having concluded as above it becomes unnecessary, letme briefly comment on the other joint complaint that there wasno evidence that they were concerned with defacing of the Reg.numbers and those numbers appearing on window glasses of the

Toyota Corrolla. Here it suffices to say that this is inclusivein the general principle of recent possession. Once it isestablished that an accused is guilty of a particular offenceunder the doctrine of Recent possession, and the offence itselfinvolves property he will be taken to have effected any changeson the said property and when particularly the said changesclearly show that they were intended to disguise or make thesubject matter not easily identifiable by the owner or anyonesearching for it.

For the 2nd Appellant, the above stated makes discussion ofthe other ground of complaint allegedly of being framed up as herefused to bribe the police shs. 40,000/= asked for superflousalthough, for the sake of argument, I am on all fours with thelearned State Attorney who said that this is just an after-thought hatched on appeal and as it was discounted by evidenceon record. However, for him (2nd Appellant) there is yet anothercomplaint concerning the nature of the offence committed. Hesaid that if anything the offence committed is simple theft andnot Robbery with violence.

In concluding paragraph, when convicting appellants andRaphael, basing on the doctrine of recent possession, the trialcourt said and for clarity I qUOte:-

"On the issue of use of arms, I find that there hasbeen no sufficient evidence as the use of the saidPistol if at all there was one. The same was not foundlater on mention by any other witness other than PW1.Having said so I remain with the evidence on the offenceof Robbery with violence. That is from the PWl evidencethat the culprits had tied (?) just before they madeaway with the vehicle. For those reasons I herebyconvict all the three accused for the offence of Robberywith violence is lesser offence than the armed Robbery".

The 2nd appellant has argued that in the absence ofproduction of the alleged pistol or rope with which PWl allegedto have been threatened and tied the trial court misdirecteditself in finding a conviction on the offence of even Robberywith violence instead of simple theft.

In the above quoted statement by the trial court I am madeto infer that it did believe PWl that he wasn't threatened witha pistol but that he was tied with a rope! I find no basis inarriving at this conclusion. It is unfortunate that we would havebeen able to know what led to this conclusion if the evidence hadbeen analysed but it was not. So we are left in the dark. Howeveras I have already held and indicated I have ana lysed the saidevidence. I can't see how the trial court could find PWl credibleon the story concerning a rope and discredit him on the pistol.As I have already demonstrated there is no way PW1's evidence canbe discredited. I do concede that a trial court is always the

better judge when it comes to the demeanour of the witness butas I have already shown and so are various authorities, a firstappeal court is entitled to make its own eva luation of theevidence and make its findings and views and particularly in acase like this where the trial court never bothered to analysethe evidence and where the victims narrative is straight forwardand uncontradicted. He demonstrated that the 1st accused(Raphael) at the trial held a pistol to him as he was seatedbesides him while the 2nd Appellant tied a rope around his neckand then deliberated whether or not to kill him. It could not beexpected that in those circumstances this saga could be witnessedby someone else for purposes of testifying on the same as trialcourt seems to say in the 2nd line of the above quoted paragraph.In the circumstances, contrary to the 2nd Appellants' contention,the issue here should be whether it was Robbery with violence orArmed Robbery and not Robbery or simple theft.

In the present case the Appellant and his friends from thetime they acted and pretended to hire him (PW.1) till theyreached Shekilango road they had not exhibited their violence atall. In their mind they were sure that they were luring PWl towhat they considered to be safer place for their intended crime.As to what happened at the scene (Shekilango) let PWl give thestory,

" ...The passenger on my left ordered me to stop atgun point. I stopped .... Then someone sltting behindme put a rope around my neck and tied me to the carseat. It was sisal rope. The passenger on my left orderedme to drop out under gun point .... I saw a black pistol.They bargained to kill me but the passenger on my leftasked the other two not to kill me. They did not shootat me but they drove off the vehicle after pulling awaythe rope from my neck".

I don't see how this set of facts can escape the definitionof aggravated robbery that is armed robbery which isdefined under ss. 285 and 286 of the penal code as follows:-

(s.285) .... stealing anything, and at or immediatelybefore or immediately after the time of stealing it, usesor threatens to use violence to any person or property inorder to obtain or retain the thing stolen or to beprevent or over-come resistance to its being stolenor retained ..... "

Under s. 286 it becomes an aggravated robberyif among others the "offender is armed with any dangerousor offensive weapon or instrument, or is in company withone or more other person or persons or uses violenceto other persons".

Applying the above definition on the disclosed facts clearlydemonstrates the fallacy of the 2nd Appellant's argument that itwas simple theft, and with respect to the trial court, that itwas simply Robbery with violence. The offence disclosed isrobbery but of an aggravated nature as charged- armed Robbery

'and this is the offence with which Raphael and Appellants shouldhave been convicted. Had the trial Court analysed the evidenceand properly directed itself it should have come to this obviousfinding. It is a pity that for one reason or another theRepublic\Respondent didn't cross appeal on this' matter.

(ii) alter the finding, maintaining the sentence, orwith or without altering the finding, reduceor increase the sentence; or

(iii) with or without such reduction or increase andwith or without altering the finding, alterthe nature of the sentence.

(b)(c)

(a)( b )

(3) Nothing in this section shall be construed as precludingthe court from inflicting a greater punishment than thepunishment which might have been inflicted by the court......... which imposed the sentence"

In the light of this clear section of the law and in viewof the evidence as already analyzed both finding and sentencehave to be al tered. I should hasten to add that even if thefinding (that is conviction on Robbery with violence) was to bemaintained invariably the sentence should have been variedbecause the seven years imprisonment passed by the trial Courtis illegal as the minimum sentence for Robbery is 15 years videAct 10 of 1989.

In arriving at the conclusion as exemplified in thepreceding paragraph, convinced that it is the only proper coursein the circumstances, apart from the above quoted section of theCPA, I have been fortified by guidance of the Court of Appealpronounced in the case of Mussa Alobagast Mtalemwa v R (1990),Tanzania Court of Appeal Cr. Appeal No. 172 of 1990 (unreported)almost on a similar situation. And indeed for their case, theirlordship's situation was a bit complicated for they didn'thavethe aid of an all round provision of the law as S. 366 (1) CPAwhich is at my disposal; the appellant had not complained of thenature of the offence with which he was convicted as it was alesser offence unlike in this case where he made it an issuethough like in this case the Republic\Respondent hadn't crossappealed.

In the above cited case like the present one, Mussa AlbogastMtalemwa, Appellant was found in possession of a stolen vehiclewhich he had snatched at gun point 2 days before. The trial Courtconvinced of the obvious evidence tendered convicted on Robberybut on appeal the High Court substituted the same with Receivingstolen property c\s 311 (1) of the Penal Code. The High Courtreduced the sentence from 15 y~ars to 8 years. Mussa AlbogastMutalemwa thinking that there was injustice on his heels appealedto the Court of Appeal. The Court of Appeal faced by the glaringevidence of Robbery on one side and the naked error by the HighCourt on the other, all crad in the absence of non existence ofa cross appeal by the Republic\Respondent, after discussing Rule36 of the Court of Appeal Rules which among others states,

"The Court (Court of Appeal) may in dealing withany appeal, so far as its jurisdiction permits,reverse or vary the decision of the High Court ...",in relation to its earlier decision in Godfrey JamesIhuya and 3 others v R (1980)TLR 197 which decided thatthe court had to increase or decrease the sentencewhen either the prisoner or the Republic appeals"went on to hold,

"So here we go further to say that when a partyappeals to this court then we are not just limitedeither to uphold the appeal and grant the reliefsprayed for or to dismiss the appeal and leave intactthe decision appealed from. The party who appeals layshimself bear and gives the Court the power it would nothave had if he had not appealed. Thus there is a thirdalternative. This is where the Court says:'Yes, the lower Court has indeed erred but not inthe way the appellant contends that injustice hasbeen done to him but rather that the appellantought to have been found guilty of a more seriousoffence or that he deserved a stiffer sentence

than the one that was administered to him'. Thusif a party appeals against conviction then insteadof dismissing the appeal or of allowing it andacquitting him, this court could find him guilty ofof a more serious offence of which he was chargedbut acquitted by the lower court and consequentlyenhance the sentence. Likewise, if the appeal isagainst sentence only, then in appropriate case,this court could enhance it instead of reducing itas was pleaded by the appellant or leaving it intact"

The court then declared (citing an East African Court ofAppeal case, Merali and others VR Reported in (1971) in HCDNo.145, and insisting on its powers under s.4 (2) of the Courtof Appeal Act, 1969)

" once we ..... have come to the opinion that thelower court has erred we then can step into the shoesof the lower court and make the necessary corrections .... "(emphasis mine).The High court finding of conviction on Receivingstolen property was quashed and substituted with oneof Robbery and so was the sentence of 8 yrs which wasenhanced to the minimum sentence of 30 yrs as per Act10 of 1989.As I already said, though facts of the Mtalemwa case are

alnlost ths same as those in the present case, the court whichmade the decision is different (Highest court of the land)and was dealing with powers provided under a different ActBUT surely powers provided to the present court under s.366(1)CPA are wider and more specific hence adoption of the Tanzaniacourt of Appeal reasoning as expressed above, even if forguidance, is legally befitting.

In conclusion therefore the Appeal by 1st Appellant, CharlesSimon Mziray is hereby allowed. Conviction is quashed, sentenceset aside and should be set at liberty forthwith unless otherwiselawfully held. As for the Appeal in respect of 2nd Appellant,Abdallah C. Athuman it is hereby dismissed with a variation thatarmed Robbery is substituted for Robbery with violence with whichhe was convicted and the sentence of seven years is set aside andsubstituted therefor is a sentence of 30 years imprisonment whichis the bear minimum under Act 10 of 1989.

That said, my mind has been greatly exercised by what Ishould do with Raphael, who was the 1st accused at the trial andwho did not appeal. In such cases the courts usually treat thematter as having come up before it on revision hence applicationof revisional powers (Bachuba Amerika and others v R (1979) LRTNO.8). And in cases of enhancement of sentences the practice isto call upon the accused\convict by notice to show cause why thesentence should not be enhanced but this is only applicable insituations where the court will have discretion to pass

appropriate sentence pertaining to the circumstances and not in(;ases wher8 minimum s8ntences are prescribed and there is noroom for discretion. The High Court clearly demonstrated this inthe case of Rv. Abraham Hassan (1977) LRT No. 22, where amongothers, it held,

the general procedure in the enhancement ofsentences is that the accused must be served withan enhancement notice to enable him appear in courtto defend himself". The Court then went on,

'f •••• when dealing with notices of enhancement to anaccused person one must differentiate threecategories of conviction, firstly, of offencefalling out of the Minimum sentences Act, secondly,those within the Act but still the courts areempowered to exercise some discretion to awardsentences less than the minimum if there are specialreasons and circumstances, and lastly there arethose convictions on offences for which the legislaturehas given no discretion to award a sentence less thanthe llIinimum.

... .for the last category of offences ..... it isfutile and indeed unnecessary exercise to insistthat the accused be heard before his sentence is

r.orrected from the illegal sentence of the lowercourt to the minimum mandatory sentence".

In the present case using revisional powers, I hereby setaside the conviction for Robbery with violence and substitutetherefor a conviction for armed Robbery. As regards sentence, asearlier on explained, even if the finding had not been varied thesentence of seven years meted out on Raphael and Appellants wasillegal -obviously, I would have corrected it to 15 yearsimprisonment. As clerlrly put in .Rv Abraham's case it would bea futile exercise to serve a notice of enhancement to Raphael asthe court cannot reduce even an hour on the prescribed minimumand does not intend to pass any sentence in excess of the saidminimum prescribed. Now, in view of this variation in conviction,10 armed Robbery, the only proper sentence as per Act 10 of 1989is 30 years impr isonment which is hereby substituted for theillegal seven year term of imprisonment passed by the trialCuurt.

(L. B. Kaleqeya)PRINCIPAL RESIDENT MAGISTRATE

WITH EXTENDED JURISDICTION

D 1· d h g( (j1M.J-1'11~ . he 1vere on t e 1n t e presenceAttorney, for the Republic\Respondent andAppellant.

of tW. '!'.IJ.I.,!~.. Statepresence\asseese of

(L. B. Kale eya)PRINCIPAL RESIDENT MAGISTRATEWITH EXTENDED JURISDICTION

£1£196