Exavery Ngindo vs Republic (HC Criminal Appeal No 86 of 1999) [2000] TZHC 482 (16 October 2000)

J. IN THE HIGH COURT OF TiJiZANIJ~ i.i.T IRING.i~ HIGH COU'.tt.'f CRIMIN'AL ii.PPEI.L NO 8 86 OF 1999 (§;ONSOLID~~TED iJ)PE; ... L NOS w 87 oo/99 ORIGIN.L CRIMINAL CE NO. 80 OF 1999 OF THE DISTRICT COUR'I' OF MBING;~ DISTRICT A'I' MBINGi~ Before: P.E.P. Mley 7 Esq. Prine. D.Magistrate EJulVERY NGINDO • a o. o. • o ......... • iu>".PELLIJ'iT Versus: JUDGMENT The appellants stood t1--ial on a cha:bge of breaking into a building and committing a felony therein c/s 296 (1) of the Penal Code. Eaoh Q! hem was sentenced to three years imprisonment. Judgment was delivered 25th August, 1998. fi.ro Manya.vida, learned State i;.ttorney, has drawn my attention to the fact that they gave notice of their intention to appeal on lOth October, 1999, which was sixteen days from the date of conviction. He . submits, therefore that the appeal is time-barred in terms of section J6l (1) of the Criminal Procedure Act, 1985, which required them to give their notice of intention to appeal .. , As Mr. Manyanda has submitted, section 361 (1) of the said ict pnvtaee that no appeal from ru1y findings, sentence or order shall be entertained unless the appellant - . , • n(a) shall have given notice of his intention to appeal within ten days from the date of the findings, sentence or order ••• a. It follows that ~he instant appeal was instituted six days out of time. I would dismiss the appeal on that account. It has occurred to me, however, that the convictions do nqt find support from logic; they have occasioned an injustice to the 'a-Pl:'1118nfiw ' , .. ••

I 2 I have, therefore, found this case fit the exercise of my revi- 'ional powerso If I may say anything right away the conviction is based on mere suspe,ciono ·what happened. was thiso On the night the appellants ape alleged. to have broken into the compla- inant's bar Silvester 9swald (PW2), who is the complainant, sighted several youths '. passing apparently aimlessly near the • bar compoundo He aleted his assistants of those youths before he retired to bed at ll'oOO p.,mo He said he could identify the ' first accused., On his .. part Enock Silvester (PW2) who was instructed to close the ', bar did so at about the same time and put off the generator as wello He then went to sleep., He said he was fast asleep when he was awakened by his colleaque who heard someone I I drilling a hole into the.wall .. He rose and when he peeped through ', the window which had no shutter except what he described as nwire 11 , he managed to see the first accused with the did of moonlight. He did not say how far they were from his room. He went on to sa:y tha:., he then heard someone calf out: "Xa:yery angalia dirisha alilolala Enock". Of course anyone:could have said so; and only the most foolish armature could betray his criminal enterprise by uttering woriis that would betray hi's identity. There was, to be fair, not I prema fa9ie case against 'the appellant£" Justice demands that those convictions should 11".)t be allowed to stand. Accordingly, I revise the judgment by quashing the conviction in respect of each appellant, sentences and the order for the arrr:::.,:. of the fourth accused are set asideo It is directed that each of \ them be set at liberty fort~with unless further held on account of some other lawful execuse. Deliveredo 3, J.M .. Mackanja, Jo 16/10/2000.

·~y- ~~ , ... I

• '\ p 1"~~ ,. "" l ;; • r I "' I ·, ' 3 I l l i Absent: For Appellants i Mr. Manyanda, S.Ao For Renublic ' - . I certify that this is a ' i l I I true ' ' I. I' t l I \ I copy of "'- the original. DISTRICT REGISTRAR, I ' ' ' I l l I _I I ' l ' I I t l I I l t i I ~ I ' I ~ ·' ! ,. •.

'1· ' ,; l \1,. t ·.+ I , I l I . I ': i < t I j . ' I i I