Omari mohamed china vs the republic (criminal appeal no.230 of 2004) [2006] TZCA 32 (31 January 2006)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

 

(CORAM: NSEKELA, J.A., MSOFFE, J.A., And KAJI, J.A.)

 

CRIMINAL APPEAL NO. 230 OF 2004

 

1. OMARI MOHAMED CHINA ………………………………..… 1^ST APPELLANT

2. MAMLO ALLY BAKARI ………………………………………. 2^ND APPELLANT

3. CHARLES NANDUTA ……..………………………………….. 3^RD APPELLANT

4. WILSON BERNARD HODI ……………………………….…. 4^TH APPELLANT

VERSUS

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

 

(Appeal from the conviction of the High Court of Tanzania

at Mtwara)

 

(Mandia, J.)

 

dated the 22^nd day of February, 2000

in

Consolidated Criminal Appeals Nos. 65, 66, 67, 68 of 1998

----------

JUDGMENT OF THE COURT

 

KAJI, J.A.:

 

Omari Mohamed China, Mamlo Ally Bakari, Charles Nanduta and Wilson Bernard Hodi, who are the 1^st, 2^nd, 3^rd and 4^th appellants respectively, were among ten suspects who were jointly charged with various offences in Criminal Case No. 3 of 1998 in the Resident Magistrates Court of Mtwara at Mtwara. For the purpose of this appeal the appellants were jointly charged with two offences as follows:-

1^st Count: Conspiracy to commit felony contrary to section 384 of the Penal Code.

2^nd Count: Armed robbery contrary to sections 285 and 286 of the Penal Code.

 

The 2^nd appellant Mamlo was also charged separately with two counts, namely:-

5^th Count: Being in possession of goods suspected to have been stolen or unlawfully acquired, contrary to section 312 (1) of the Penal Code.

8^th Count: Unlawful possession of firearm contrary to sections 30 and 31 of the Arms and Ammunitions Ordinance Cap 223, read together with sections 56 (1) and 59 and paragraph 21 of the First Schedule to the Economic and Organized Crimes Control Act No. 13 of 1984 as amended by Act No. 10 of 1989.

 

All of them denied the charges against them. However at the end of the day the 2^nd, 3^rd and 4^th appellants were found guilty as charged and were convicted accordingly. They were each sentenced to ten years imprisonment on the 1^st count and thirty years imprisonment and 12 strokes each on the 2^nd count. The 2^nd appellant Mamlo was also sentenced to a fine of shs. 10,000/= or 2 years imprisonment on the 5^th count, and seven years imprisonment on the 8^th count.

 

Sentences of imprisonment were ordered to run concurrently for each appellant.

The facts leading to the case can briefly be stated as follows:–

 

During the night of 14.1.1998 PW14 Maulidi Salumu’s house at Mnyambe, Newala District, was invaded by a group of bandits who broke the rear door and stole therefrom an assortment of property. One of the bandits was armed with a firearm. This bandit fired in the air to scare those who might have come to rescue PW14 and his family. PW14 was hit so hard on the head with an iron bar that he lost consciousness for nine days. The bandits also beat some of PW14’s family members including his wife PW15 Sophia Dadi and his sister-in-law PW16 Shakila Dadi. The bandits who had a motor vehicle left for Mtwara with their loot.

 

The matter was reported to the police who, through investigation, arrested ten suspects including the appellants, and recovered some of the stolen properties.

In their defence the appellants and their confederates-in-crime denied to have been involved in the offences laid against them. However at the end of the day the 2^nd, 3^rd and 4^th appellants and three others were found guilty as charged and were convicted accordingly. The 1^st appellant and four others were acquitted.

 

The 2^nd, 3^rd and 4^th appellants were aggrieved with the conviction and sentences. They unsuccessfully appealed to the High Court at Mtwara.

 

The court concurred with the decision of the trial court that the appellants fully participated in the commission of the offences charged. The Director of Public Prosecutions also successfully cross-appealed against those who were not found guilty, the 1^st appellant Omari being one of them. The 1^st appellant was found guilty and convicted on the 1^st and 2^nd counts. He was sentenced to ten and thirty years imprisonment respectively.

The 1^st, 2^nd, 3^rd and 4^th appellants were dissatisfied with the decision; hence this second appeal.

In their separate memoranda of appeal, the 1^st and 2^nd appellants each preferred eleven grounds of appeal while the 3^rd and 4^th appellants twelve and 17 respectively.

 

However the essence of all grounds revolves around total denial of committing the offences charged, disputing the identification of the stolen properties, and challenging some of the caution statements in which they were implicated.

 

At the hearing of the appeal only the 1^st appellant was present. The other appellants had opted the hearing to proceed in their absence. The 1^st appellant did not add anything material to his grounds of appeal.

 

The respondent Republic was represented by Mr. E. P. Ntwina, learned State Attorney. The learned State Attorney relied heavily on the caution statements in which the appellants were implicated, the recovery of some of the stolen properties found in the hands of the 1^st, 2^nd and 4^th appellants, and the totality of the prosecution evidence.

 

As already demonstrated, the 2^nd, 3^rd and 4^th appellants were found guilty by the trial court. Their appeals to the High Court were dismissed for want of merit. They are still protesting their innocence in this Court.

As a general principle, a court of second appeal will normally not interfere with concurrent findings of fact of the two courts below unless both courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there are misdirections and/or non directions on the evidence (see: Salum Mhando v. R (1993) TLR 170).

 

In the instant case the two courts below found as a fact through the evidence by various witnesses, that on the material day it was the 3^rd appellant Charles Nanduta who was driving the motor vehicle Registration No. MT3396 Exh. P.7B which was involved in the robbery. In his testimony in court the 3^rd appellant admitted to have driven it, but he denied to have participated in the robbery. He said he was hired by unknown people for an unknown mission at Newala, and that he ended up at Newala and did not proceed to the scene of crime at Mnyambe village. The trial court found as a fact that there was ample evidence that apart from driving the motor vehicle which was involved in the robbery, he also involved himself heavily in hiding the loot in his father’s shamba at Mbae according to the statement of his watchman Yusuf Mkadimba Exh. P.26. The learned judge on first appeal concurred with the trial court on this finding. We are in total agreement with the concurrent findings of fact by the two courts below that there was ample evidence that the 3^rd appellant fully participated in committing the offences charged. We are aware that Yusuf Mkadimba did not give oral evidence at the trial after returning to his unknown village in Mozambique. His statement was tendered as evidence under section 34 (B) (2) of the Evidence Act, 1967. We have carefully perused the record and we have been satisfied that, before being admitted as evidence, all the preconditions prescribed under section 34 (B) (2) were satisfied.

 

As far as the 2^nd appellant Mamlo is concerned, there was ample evidence by PW12 ASP Mnyampala and PW18 No. C.7758 D/Sgt. Hamisi that it was the 2^nd appellant who showed them a gun which was in an inhabited hut at Amkeni village. According to the Ballistic Expert Report Exh. P.20, it was the very gun which was involved in the robbery.

 

There was also ample evidence that he was found in possession of some of the properties stolen in the course of the robbery, just few days after the robbery. This included a bicycle Exh. P.21. He claimed the same to be his. But the cash sale receipt he produced had different numbers from those found on the bicycle. The numbers on the cash sale receipt produced by the owner of the bicycle Exh. P.22 tallied with those found on the bicycle. It is to be observed that the robbery occurred in the night of 14.1.1998. The 2^nd appellant was found in possession of some of the stolen properties on 18.1.1998. When his wife PW20 Halima Salum left for Muni village on 11.1.1998 – those properties were not there. She found them there on 17.1.1998 when she returned whereby the 2^nd appellant told her he had bought them for her. On the following day they were fished out by the police – PW18. PW20 is the wife of the 2^nd appellant. We have perused the record and we have been satisfied that the requirements of section 130 of the Evidence Act, 1967 were properly complied with before she was allowed to testify against her husband.

 

But by going through the charges laid against the 2^nd appellant we have noticed one thing which has attracted our minds. One of the charges against the 2^nd appellant is armed robbery. In the course of the robbery many properties were stolen. The 2^nd appellant was found with some of them. He was charged in the 5^th count with being in possession of goods suspected to have been stolen. The goods mentioned in the particulars of the offence appear also in the armed robbery count. We pose and ask: Was the 5^th count necessary? We think it was not necessary. It amounted to duplicity.

As far as the 4^th appellant is concerned, there was ample evidence that he fully participated in the commission of the offences charged. This is supported by the totality of the evidence adduced. He was the one who assisted one of the assailants in loading into gunny bags the loot from where they had been stored at Mbae village, according to the statement of Yusuf Mkadimba (Exh. P.26). We have already discussed the admissibility of Exh. P.26.

 

We now come to the 1^st appellant. He was acquitted by the trial court. But he was later convicted by the High Court in a cross appeal lodged by the Director of Public Prosecutions.

 

We note from the record that the evidence against the 1^st appellant was from four sources. First, the caution statement of the 3^rd appellant (Exh. P.15) who had alleged that it was the 1^st appellant who hired the motor vehicle which was used in the robbery. However in that statement the 3^rd appellant exculpated himself saying he was not a willing participant but merely an innocent observer. Since he exculpated himself implicating the 1^st appellant, that statement cannot incriminate the 1^st appellant as was amply demonstrated by this Court in Ally Salehe Msutu v. R (1980) TLR 1.

Secondly is the caution statement of the 4^th accused (Exh. P.16) Twalibu Twalibu. In that statement Twalibu mentioned the 1^st appellant to have fully participated in committing the offences charged. But like the 3^rd appellant he exculpated himself saying he was merely an innocent observer and denied to have committed the offences charged. His statement cannot incriminate the 1^st appellant as we have already demonstrated above.

Thirdly is the oral evidence of the 4^th accused Twalibu at the trial where he implicated the 1^st appellant. That evidence is that of an accomplice which, as a matter of practice, requires corroboration to found conviction – see Pascal Kitigwa v. R. (1994) TLR 65. We will deal with this at length in the following ground.

 

Fourthly, is the statement of Mkadimba (Exh. P.26). We have already discussed its admissibility. After holding that it was properly admitted in evidence, it is our considered view that it is competent evidence capable of grounding a conviction without necessarily being corroborated. It does not require corroboration in order to be relied upon. In that statement Mkadimba had stated that it was the 1^st appellant who remained at Mbae guarding the loot, and that on the following day, the 1^st appellant assisted by the 4^th appellant loaded the loot into gunny bags. This is sufficient evidence that the 1^st appellant was a party to the crime charged. Furthermore, it is our considered view that, Mkadimba’s statement Exh. P.26 corroborated the testimony of the 4^th accused who had mentioned the 1^st appellant to be among the robbers he travelled with from Mtwara to Mnyambe, Newala where the robbers robbed PW14 using firearm, and later left for Mtwara and hid the loot at Mbae. It is therefore our considered view that, although the caution statements of the 3^rd appellant and the 4^th accused could not be the basis upon which to found a conviction on the 1^st appellant for the reasons we have already stated, yet the evidence of Yusuf Mkadimba and the evidence of the 4^th accused which was corroborated by Yusuf Mkadimba as we have already demonstrated, established the guilt of the 1^st appellant to the standard required by law.

 

For that reason, we agree with the learned judge on first appeal that the 1^st appellant participated fully in robbing PW14.

 

As far as the offence of conspiracy is concerned, the totality of the evidence suggest that the appellants, and others not in this appeal, conspired to commit the offence of armed robbery. There is nothing to fault the concurrent findings of the courts below on this. Thus the appeal against conviction in respect of the 1^st and 2^nd counts has no merit. The 2^nd appellant’s appeal against conviction in respect of the 8^th count has also no merit. However his appeal against conviction and sentence in respect of the 5^th count has merits as we have already demonstrated.

 

As far as sentence is concerned the appellants were each sentenced to ten (10) years imprisonment on the 1^st count and 30 years imprisonment on the 2^nd count. The 2^nd, 3^rd and 4^th appellants were also ordered to undergo 12 strokes each. We have no quarrel with the sentence on the 2^nd count. But the sentence of 10 years imprisonment on the 1^st count is definitely illegal. The maximum sentence for the offence of conspiracy to commit felony contrary to section 384 of the Penal Code Cap 16 is seven (7) years imprisonment. Therefore the sentence of ten (10) years imprisonment meted on each appellant on this offence is illegal. The learned trial Senior Resident Magistrate is also advised to revisit his sentencing powers under section 170 of the Criminal Procedure Act, 1985.

 

The sentence of 15 years imprisonment on the 8^th count in respect of the 1^st appellant is the minimum provided by law.

In the end result, and for the reasons stated, we dismiss the appeal against conviction in respect of the 1^st and 2^nd counts. We also dismiss the 1^st appellant’s appeal against conviction in respect of the 8^th count. We set aside the sentence of 10 years imprisonment on the 1^st count and substitute therefor a sentence of three (3) years imprisonment each. We dismiss the appeal against sentence in the 2^nd count. We dismiss the 1^st appellant’s appeal against sentence in respect of the 8^th count. We allow the 1^st appellant’s appeal against conviction and sentence in respect of the 5^th count, and quash the conviction and set aside the sentence imposed thereat.

 

DATED at DAR ES SALAAM this 31^st day of January, 2006.

 

 

 

 

H. R. NSEKELA

JUSTICE OF APPEAL

 

 

 

J. H. MSOFFE

JUSTICE OF APPEAL

 

 

 

S. N. KAJI

JUSTICE OF APPEAL

 

 

I certify that this is a true copy of the original.

 

 

 

 

 

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

 

 

 

 

 

 

 

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

 

CRIMINAL APPEAL NO. 230 OF 2004

 

1. OMARI MOHAMED CHINA ………………………………..… 1^ST APPELLANT

2. MAMLO ALLY BAKARI ………………………………………. 2^ND APPELLANT

3. CHARLES NANDUTA ……..………………………………….. 3^RD APPELLANT

4. WILSON BERNARD HODI ……………………………….…. 4^TH APPELLANT

VERSUS

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

 

(Appeal from the conviction of the High Court of Tanzania

at Mtwara)

 

(Mandia, J.)

 

dated the 22^nd day of February, 2000

in

Consolidated Criminal Appeals Nos. 65, 66, 67, 68 of 1998

1. Omari Mohamed China ]

2. Mamlo Ally Bakari ] ……………………….……….. Appellants

3. Charles Nanduta ]

4. Wilson Bernard Hodi ]

Versus

The Republic ……………………………………………………. Respondent

--------------------

In Court this 31^st day of January, 2006

 

Before: The Honourable Mr. Justice H. R. Nsekela, Justice of Appeal

The Honourable Mr. Justice J. H. Msoffe, Justice of Appeal

And The Honourable Mr. Justice S. N. Kaji, Justice of Appeal

--------------------

THIS APPEAL coming for hearing on the 5^th day of December, 2005 in the presence of the First Appellant and in the absence of the Second, Third and Fourth Appellants who did not wish to be present, AND UPON HEARING the First Appellant and Mr. P. Ntwina, State Attorney, for the Respondent/Republic when the appeal was stood over for judgment and this appeal coming for judgment this day;

 

IT IS ORDERED that the appeal by all appellants against conviction on the first count is dismissed, the sentence of ten (10) years imprisonment imposed thereon is set aside and a sentence of three (3) years imprisonment is substituted therefor.

 

The appeal by all Appellants against conviction and sentence on the second count is dismissed.

 

The appeal by the First Appellant against conviction and sentence on the fifth count is allowed, conviction is quashed and the sentence imposed thereon is set aside.

 

The appeal by the First Appellant against conviction and sentence on the eighth count is dismissed.

 

Dated this 31^st day of January, 2006.

 

Extracted on the 31^st day of January, 2006.

 

 

 

 

 

 

 

S. M. RUMANYIKA

DEPUTY REGISTRAR