Jumanne s/o Bugingo and Another vs Republic (Criminal Appeal No. 137 of 2002) [2004] TZCA 111 (22 July 2004)

:1 (1 IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUBUVA, J.A., MROSO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 137 OF 2002 BETWEEN JUMANNE S/O BUGINGO] BARAKA SEMBA J....................................... APPELLANTS AND THE REPUBLIC ............................................................ RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Mwanza) (Masanche, 3.) dated the 10th day of July, 2002 in Criminal Appeal Nos. 191 of 2000 & 47 of 2001 JUDGMENT OF THE COURT KAJI, IA.: This is a second 'appeal by ]UMANNE BUGINGO and BARAKA SEMBA who are the first and second appellants respectively. In the District Court of Musoma at Musoma the appellants together with five others were jointly charged with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code Cap 16. There was also another accused JUMA HAMZA (8th accused at the trial) who was joined with them in the same case but on a

2 4 N different count of receiving stolen property contrary to section 311 (1) of the Penal Code Cap 16. At the trial the prosecution case was that, PASCHAL MAGANGA (PW6) was a fisherman owning, inter alia, a 40 HP YAMAHA boat engine with Serial number 6 - F - 6 - 4 - 354352. In his fishing business he was assisted by MWITA MTATIRO (PW1) and THOBIAS ADELO (PW8) who were based in Lukuba Island in Lake Victoria. In the night of 29th October, 1998 at about 9.00 p.m., while PW1 and PW8 were casting their nets, they saw a fishing boat coming to where they were. At first they thought they were their fellow fishermen from their camp. But this was not so. When that boat drew near where PW1 and PW8 were, those who were in that boat, who were six in number told them that they were under arrest and ordered them to sit down in their boat. PW1 and PW8 obliged. One of the bandits had a gun. The others had clubs and machetes. They took away the above engine and some other articles and ordered PW1 and PW8 to enter into a polythene cover and lie down. According to PW1 he said that among the bandits he identified only

0 GEORGE OCHIENG (3rd accused at the trial) who had the gun and was the leader of the gang, and another one called JAMAICA. PW8 said he identified the 1st appellant and George Ochieng (3rd accused). Through investigation it was discovered how on or around 2nd November, 1998 the 1 5t appellant had hired YAHAYA SAID (PW2) who was his brother-in-law to take the engine to Nkome Island in Geita District, Mwanza Region. PW2 and the appellants left Musoma in a boat captained by PW2 through Isegere Island where they picked up the engine, then to Mchangani Island, and finally to Nkome Island where they off loaded the engine and kept it at the 8th accused's home until it was retrieved on 15th November, 1998. The appellants denied the charge. However, they were found guilty, convicted and sentenced to 30 years imprisonment each. The 3rd accused also suffered a similar fate. The appellants and the 3d accused were aggrieved by both the conviction and sentence imposed upon them. They appealed to the High Court where the court (Masanche, J.) dismissed their appeal for want of merits. The

El appellants were again aggrieved; hence this appeal. It would appear the 3 rd accused did not appeal. Before us in this appeal the appellants were unrepresented. Mr. Feleshi learned State Attorney, appeared for the respondent Republic. The 1st appellant raised five grounds of appeal in his petition of appeal. They revolve on identification, the burden of proof, credibility of witnesses and the doctrine of recent possession. He argued that the conditions at the scene of crime as described by PW8 were not conducive for a proper identification, and that the evidence of PW8 that he identified him should be looked at cautiously. He further submitted that most of the prosecution witnesses were not credible, and that PW6 and PETER MAGANGA (PW5) were not on good terms with him due to rivalry in business. He further stated that he was not found in physical possession of the engine, and that the prosecution had failed to produce evidence linking him with the offence charged. p The 2 nd appellant listed eight grounds of appeal in his petition of appeal. However, basically they revolve on three issues, that is,

5 identification, the doctrine of recent possession and credibility of witnesses. He said that the prosecution witnesses were not credible especially PW2 who had claimed to have travelled with him and the 1 s' appellant from Musoma to Nkome Island with the engine; and RAJAB HAMZA (PW3) and JUMA HAMISI (PW4) who had claimed to have seen him at Nkome Island. He said that he was wrongly convicted on the evidence of such unreliable witnesses. He said that had the court directed itself properly on the danger of convicting him on the evidence of such unreliable witnesses it would not have convicted him especially as there was no evidence that he was identified at the scene of crime and was not found in possession of the engine. On the other hand Mr. Feleshi, learned State Attorney strongly argued that the 1st appellant was properly identified at the scene of crime by PW8 through moonlight, and that all the prosecution witnesses were truthful as observed by the trial court. He further stated that the way the 2 nd appellant participated in handling the engine from Musoma to Nkome Island showed that he was fully

involved with the robbery itself through the doctrine of recent possession. We have carefully considered the appellants' grounds of appeal and the reply thereat by the learned State Attorney, together with the evidence on record. The 1st appellant's conviction was basically based on two bases. First, his identification at the scene of crime. PW8 had claimed to have fully identified the 1st appellant at the scene of crime. We ask ourselves whether the conditions at the time were such that PW8 did identify the 1st appellant. PW8 was quick to mention the basis which enabled him to identify fully the 1st appellant. The following are just some of them. One, that at the material time there was bright light from a full moon. Two, that he knew the first appellant prior to the incident Three, that the first appellant held their boat and that of the bandits together while other bandits were removing the engine from where it was fixed.

7 Four, that when the 1 " appellant was holding the two boats tightly he was very close to him. Five, that the 1st appellant held the two boats for a long time because the process of removing the engine took a long time. The engine was fixed with nails and the bandits could not remove it easily until when they forced PW1 to assist them. We have carefully considered these factors. We satisfied that under the circumstances there was no danger of mistaken identity and that PW8 did properly identify the first appellant. The basis upon which PW8 based his identification passed the test set by this Court in the case of WAZIRI AMANI V. R (1980) TLR 250. The second ground for the first appellant's conviction was, according to the record, based on his involvement in handling the engine from Musoma to Nkome Island. Indeed he was the key player in the whole scenario. He was the one who hired his brother- in-law PW2 to assist him to take the engine to Nkome Island under pretext that he was going there to look for a better fishing ground. He took him to Isegere Island where the engine was. At Nkome

Island the first appellant supervised the whole operation from the time of off loading the engine up to its transportation to the 8th accused's home. It was hardly a week from the date of the robbery. He did not give any explanation as to how he had come by the same. Instead he made a total denial. Therefore even if the evidence on his identification at the scene of crime was unsatisfactory, he would still be implicated by invoking the doctrine of recent possession. Briefly, the doctrine of recent possession provides that if a person is found in possession of property recently stolen and gives no reasonable explanation as to how he had come by the same, the court may legitimately presume that he is a thief or a guilty receiver. In the instant case, the engine was stolen through armed robbery on 29.10.1998. The 1st appellant was found with it between 2.11.1998 and 4.11.1998. He could therefore not escape the application of the doctrine. The 1st appellant complained that most of the prosecution witnesses were not reliable and that they should not have been relied upon. We have found no basis upon which to agree with him on this. PW2 was his brother-in-law. He had no grudge against him. He did

S 9 not participate criminally in the commission of this offence either as a principal or as an accessory before or after the fact. He was simply hired by the 1st appellant to take the engine to Nkome Island under pretext that the 1st appellant was going there to look for a better fishing ground. There is nothing indicating that PW2 knew or had reason to believe that the engine had been stolen or unlawfully obtained. In that respect we are satisfied that he was not an accomplice with an interest to serve. In a persuasive case of DAVIES V DIRECTOR OF PUBLIC PROSECUTIONS (1954) 1 ALL ER 507 at page 514 the House of Lords defined the word "accomplice" as follows:- "The definition of the terms 'accomplice' covers participes criminis in respect of the actual crime charged, whether as principals or as accessories before or after the fact." This view was adopted by the Court of Appeal for Eastern Africa in the case of JETHWA & ANOTHER V R (1969) EA 459. In the circumstances of this case we adopt the same view.

10 The learned trial magistrate who saw PW2 and other witnesses in the witness box was satisfied that they were credible. The first appellate court concurred with him on this. We have found nothing to fault them on this. In the case of ALl ABDALLAH RIAJAB V. SAADA ABDALLAH RJAJABU & OTHERS (1994) TLR 132 this Court held, inter alla: - "Where the decision of a court is wholly based on the credibility of the witnesses, then it is the trial court which is better placed to assess their credibility than an appellate court which merely reads the transcripts of the record" Also in the case, of OMAR AHMED V R (1983) TLR 52 this Court held, inter a/ia:- "The trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record which call for a reassessment of their credibility" In the instant case there are no such circumstances.

11 We now turn to the 21d appellant. It was common ground that the 2 nd appellant was not identified at the scene. According to the record he was convicted because of participating in the transportation of the engine from Musoma to Nkome Island. But on a close perusal of the record we have not been able to find exactly how he involved himself with the engine. We have considered the circumstances from the time PW2 was hired by the 15t appellant at Mwigobero Guest House at Musoma to Nkome Island but we are unable to find that he was involved with the engine. At Mwigobero Guest House it was the 1st appellant who struck a deal with PW2. The 2nd appellant did not participate in the negotiation. At Isegere Island the 2nd appellant did not carry the engine from the island into the boat. It was somebody else who did so. At Nkome Island the 2nd appellant did not associate himself with the engine either. Neither did he look for a buyer of the engine. Under the circumstances, there is no evidence linking the 2nd appellant with the possession of the engine or the robbery.

4 - 12 For the foregoing reasons we dismiss the appeal in respect of the 1st appellant Jumanne Bugingo in its entirety. With regard to the 2 nd appellant, Baraka Semba, we allow the appeal, quash the conviction and set aside the sentence. The 2nd appellant is to be set free forthwith unless otherwise lawfully held. DATED at DAR ES SALAAM this 22 day of July, 2004. J U STI CE OF APPEAL KI JUSTICE OFAPPEAL S.N.KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. - S.AN,./WKMBURA SENIOR DEPUTY REGISTRAR