PROTAS s/o KAGARUKI v REPUBLIC 1987 TLR 152 (CA)

 

PROTAS s/o KAGARUKI v REPUBLIC 1987 TLR 152 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Omar JJA and Mfalila Ag JA

19th November, 1987

Flynote

Evidence - Cross-examination - A child of 8 years not cross - examined - Whether unsworn D

evidence of such child can be cross-examined.

-Headnote

Appellant was charged in the High Court under the Economic and Organized Crime Control Act

for being in possession of property suspected of having being stolen. He E was convicted and

sentenced to twelve years imprisonment. The only evidence given by an eye witness of was a

boy of 8 years who was not cross-examined as his evidence was not given an oath as per s. 293

(3) of Criminal Procedure Act of 1985. Appellant appealed against conviction and sentence. F

Held: As a matter of trite law, the unsworn evidence of a child could be cross-examined, as his

evidence as a witness affects the fortunes of the accused. G

Case Information

Appeal allowed.

No case referred.

[zJDz]Judgment

Omar and Makame, JJ.A. and Mfalila, Ag. J.A.: Appellant was charged in the H High Court at

Bukoba under Economic and Organized Crimes Control Act for being in possession of property

suspected of having been stolen. He was convicted and sentenced to 12 years imprisonment. He

is now appealing against both conviction and sentence. I

Appellant was a tenant in a house occupied by many people

1987 TLR p153

OMAR JJA AND MAKAME JJA AND MFALILA Ag JA

including P.W.2 a child of 8 years by the name of Waswa, her mother Belina P.W 3 A Yunus

Waziri a militiaman and some bar maids. P.W.2 Waswa stated that on 12.5.85 he was at home

about 10.am when he saw appellant come out of his room holding a black bag and putting it

against the wall of his room. He then covered it with corrugated B iron sheet. Appellant then

went away. Waswa then informed his mother Belina who told P.W.3 Yunus about the

suspicious hand bag which was hidden by the appellant. Yunus went and told his ten cell leader

Abdul s/o Mushobozi to inform the police. The police were immediately notified and they went

to the scene and saw the handbag, they C opened it and found an Uzi gun with its magazine

which had 19 rounds of ammunition. There was also in the bag a police uniform which

consisted of a shirt, trousers, belt, hat and its crown and five torches. The room of the appellant

was searched but nothing incriminating was found.

While the police and other people who witnessed the search were walking away to the D

market the appellant was spotted and on seeing the crowd approaching him he took to his heels.

He was chased and arrested. Appellant according to P.W.1 who arrested him said that appellant

told him that he was running to the market to get his things he had E forgotten there, and as to

whether he knew the handbag, he said to have told P.W.1 that one Marcel of Kamachumu

whose whereabouts he did not know had entrusted him with the said handbag for custody and

that he had put it outside his room and covered it with corrugated iron sheets.

P.W.1 denied taking a Phillips 4 band Radio Cassette, a tape recorder and turntable F from

appellant's room during the search, so did P.W.3. He too denied that any of the appellant's

things were taken away by the police from appellant's room. P.W.1 admitted on crossexamination

that there was a make shift fence of old tin sheets outside G this particular house

and anybody could steal the bag or could plant it there but according to Waswa it was appellant

who Waswa saw putting the bag there and covering it with corrugated iron sheet.

The appellant in his defence stated that his job was that of repairing radios. On the H morning

of 12.5.85 a customer one Marcel who had brought him a radio cassette to repair the previous

day, appeared at his home with two companions. Marcel enquired if appellant had finished

repairing his radio and appellant replied that it would be ready in three days time. Then they all

dispersed he, appellant and his sister-in-law went to the I market, bought fish and gave her to

take home to cook.

1987 TLR p154

OMAR JJA AND MAKAME JJA AND MFALILA Ag JA

At 10.30 a.m. as he was returning home he saw a crowd and heard an alarm that was A the

Fundi you were looking for. It was a big crowd so he ran away in fear of his life. He was chased

and arrested and taken to the police station. He was also shown the four Philip Band Radio

Cassette, the tape recorder and turntable and he admitted that all these items were his. He was

then forced to put on the police uniform and was B photographed in it. Appellant further

stated that the items found in his room and were denied by the police P.W.1, and P.W.3 the

militiaman to have been taken to the police were actually admitted by P.w.2 and P.W.3 in their

police statements to have been so taken. The police statements were on appellant's assertion

that these items including the C five torches were taken out of his room by the police.

Appellant went further and elaborated on that aspect of his cross-examination of witnesses about

the enmity existing between Belena the mother of P.W.2, Waswa, over D the allegation of

theft by Belena against appellant's wife. P.W.3 admitted that there was such an allegation of

theft which culminated in the arrest of appellant's wife as well as the friend and guest of P.W.3's

wife. So we say the enmity between P.W.2 Waswa's mother and the appellant may well have

existed. And the suggestion by the E appellant in his Memorandum of Appeal that Waswa

could have been tutored by his mother to start the ball rolling about the black bag so to speak,

and later to be taken up by the elder tenants living in the house, may have some force.

Especially if it is remembered that Waswa was prevented by the court being cross-examined, it

being F argued by the court that his evidence was given not on oath only in the case accused

person giving their evidence not on oath can they now according to Criminal Procedure Act sec.

293(3) be cross-examined. The trial judge obviously erred here. The unsworn evidence of the

boy Waswa could be cross-examined as well, as a matter of trite law. G

After all his evidence as a witness affects the fortunes of the accused person and so must be

tested by cross-examination.

Appellant's plea as gathered from his evidence and his memorandum of appeal is as follows: H

(a) That he did not put the bag there

(b) Waswa was tutored to say what he did but he did not see the appellant putting the

bag against the wall and hiding it. I

(c) Appellant was not allowed to cross-examine. Waswa on

1987 TLR p155

OMAR JJA AND MAKAME JJA AND MFALILA Ag JA

the various matters connected with enmity between her mother and appellant A

which could have shown how appellant was framed and how Waswa was tutored.

(d) The police took his radio taperecorder, turntable and torches and there is evidence

to establish this fact and yet the police P.W.1 and the militiaman B P.W.3 his fellow tenant

denied in court that these articles were ever removed from his room. In hiding this fact of the

missing articles the police after discharging the appellant's colleagues who had been in custody

for 1 year and 4 months for the same offence had to decide to go ahead with the C prosection of

appellant.

(e) P.W.1 D/C Exavey admitted in cross-examination that "there is a makeshift fence

of old tins sheets. Anybody could steal from it and anybody could have planted the bag there".

D

(f) The opening of the bag and the search of appellant's room were all done in his

absence.

(g) That the house is accessible to many outsiders who go in search of favours of bar

maids living there or of appellant's services as a radio repairer. It is not E strictly a private

house, it is more of a public place.

We cannot ignore the fact of the argument in these grounds urged by the appellant. We find

ourselves therefore unable to accept the evidence of this child Waswa as an eye F witness to

the hiding of the bag by the appellant containing those articles found. As Waswa is the sole eye

witness, his testimony if it is doubted must destroy the prosecution case.

We find therefore the appeal has merit. We allow the appeal quash the conviction and G order

that the appellant be released forthwith unless otherwise lawfully held.

Appeal allowed.

1987 TLR p156

A