Antony Noah & Another vs Republic (DC Criminal Appeal No 15 of 1999) [1999] TZHC 272 (30 August 1999)

.-·>, ...... #,: ... i.Jl~'.i.'.-dCi1 Cvu.c.I' Oi HA.N1vHl .1.iL,L(IJ.1. 1 • .ill: t1,-JfY0NI) B:c.J.L·~ :t<. i-..L;.:..r">Al'!Ut .Esq.' Dl..:>'1 1 .t,lJ'l' N.1'\i.JL'.l°:lu--.'l.'i!i ) .. . • • • • • ,o M:: .i1.Ll..Jl>.NT 2. lAUJ...SN.c i.iID ) versus • 9 • These t:10 "'·.t/'elJ.s 1 which are consolidated. 1 are from a conviction of the a.j_J_velLnts by the District Court of Ho.nyoni, Singida :t<egion, for the offence of robbery with violence c/ss 285 .,,.nd 286 of the Penal Code; it being alleged in the charge sheet that on the 1st of December, 1992, at about 5aOOp.mo at °Mp•la village, Manyonj_ District, they robbed stole 34 head of cattle and 48 years belonging to ,widerson Ngobitoo c:..nd immediately before or after such stealing they used. vi.mlence,._ to Holed Anderson "to retain such property." U~:.;on their conviction the appellants were sentenced to thirty (30) year.a• imprisonment. It was alleged by the presecution witnesses during trial that on _l •. l. 93 Harold Anderson (PW2), and his youn6 er brother Moses (he did not testify) tookjut their father's cattle 34 cows and 48 goats, to graze in the fields. Their father was Jl.llderson Ngobitoo (PW1), the complainant. As these children were grazin;s the cattle, at around 10.00 ~.m. they were set upon by a group,ot of six rooberso One of them, Anteny Noah, the first appellant, was armed. with abow and arrows. PW2 told the trial court in his evidence that the first appello.nt told him not to run but he (PW2) was very frightened a.'ld he mo.de an attempt to run away. ~;-,

T 2 - The fi.rst.a;ppellant..allegedly shot c:sn arrow at him and injured him in the leg. He (the first ::.):i:iellant) then a.11.eged.ly -caught hold of both PW2 and Moses and placed them under his g:uiil'd - while the other robbers started to drives the cattle away. The first appellant, according to PW2's evidence, threatened PW2 and Moses that if they raised an al.arm they would be killed. He said they ordered them to follow them and on the way they slaughtered three goats and threw them away. Later still, they parted ways, with those driving the cattle takinga one route and the appellants and PW2 and ,'10.ses takins; ai1other, different one J?W2 said they reached a thick bush where the second appellant aJ.lege4ly took PW2 1 s axe, wrist watch and a piece of soap and then departed for the other robbers who were c'.:i< 7in 6 the cattle • .PW2 said they remained with the first ap_pell<illt guarding them. IB,e first appellant aJ.le&edly then led them up to a bill called Ntumbi where they stayed up to sun set. He then allegedly told them to close their ages and they complied. Later, when they opened their eyes they found that the first appellant had rl'i ""- · ~ '- .:in( appeared~ Piv2 went on to state in his evidence d1at they then went to a house nearby and informed the owner of the house about the ordeal they had just been througha ;.i:he man decided to escort then to their home - where they rE;&c,rnd around 10.00 p.m. They reported the incident and the next dc:..y a starch for the cattle was launched. The complainant testified that on 31~ 1~. q, ,,,., '--"lrl_ traveJ.l.ed to another village to visit his relatives. He returned on 1.1.93 but his children PW2 and Moses, were not at home when he returned there When he noted that they did not return even late in the evening he became worriel and he tried to look for them but in vain .. He said he reported the. matter to village elders and raised an alarm,, Many people gathered 1 including Onesmo Anderson (PW3),i The complainant said he told the gathered croind of people that his sons and cattle were missing-. He said they started to look for his sons 0 . The c0 ,-~ .~: ..,·+- ,-,~nt on to state, 11 In my group after we walked a distauce of af;out three kilometres we heard somebody cal.ling us and told us the pastors (my sons) had come back but one of them was injured by an arrow a..~1 that those sons had been robbed (of) those cattle by six robberF

I 3 PW1 (the plainan·q PW2 and PW3 testified that on 3,.1.93 search for the cattle took then to Ba.hi cattle auctionD There they wre ac-c6mpanied by traditional militia men. They man managed to I see five of the stolen cattle being driven by the appelhmts to the I • auction~ The ap 1 )ellants were immediately apprehended; The one who h.s.d identified th.etn was Pl,/2., They were finally led to the .Police Station where the charge in this case was preferred against them, i.e. the appellantse In his defence the first appellant testified that on 2.12.92 he and one Lumolwa Masige went to Ba.hi cattle market to buy cattle. He said they got one for which they J?aid S'J.s. 20,000/-• Later someone appeared who wanted to buy it for 1,,,... -,c; ()N)/ ... from.· truam. The first appellant said the man paid Shs. ao,.000/-· fiJ'.·st for the -cow as an advance payment and that as he 1st /a~~ellctnt) was l&ndling the cow towards the auction to wait fo:r the remaini1 0 SiIBo 5 1 000/- he was arrested. He said he had to refuse the purchaser of the cow the Bhs. 20,000/:. (This was apparently first appe: .L.nt I s reply to the prosecution evidence -ci1<J.t they ( the ap_t>ellants) :. sold one of the complainant•s head of cattle by the time they were apprehended. Upon bein 6 apprehended they had to refund the purchaser the money they had received for the cattle) .. The first appellant said he tried to show them the permit in relation to the cow from the man who sold it t~ him but to no avail. He denied stealing the cattle i~ this case. AA for the 2nd a_,:i:pellant, his evidence was brief. He said on 2.12. 92 he left his home at Bahi J.i1d w0nt to the cattle auction to sell his two chickens. On the way he met one Matirrango Mahikwi who had a goat and was also going to t1e auction. After seeling his of Chickens he started to lok for Matirrango within the auction. MatirrcJ.I1go told him that he had not sold his goat and so the second a}?pel'lant said he went to the area where cattle were being sold. There, he said, he not three people who said he was ttone of them" and he was arrested.;: by a Police Officer, He said later the complaincmt and his son appeared and the first appellant was also arrestedo •ooooo/4

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The stria.l cou:i.·t found th""'t the evideace as led or adduced before if proved the offence char,;ed iil this case beyond all reasonable doubt and, as si:1own, convicted the appell=7.ts. The appellants comiJlain in these cons•lidated appeals that their convictions \Jere~ not a vectory ·for justice. They have tried to capitc.J.ise on confusion in dates a 1 .J:pei::\T'inb in the case as foll•wl3: In the char;;e sheet it is shovm that the offence was committed on 1012..,92. In the eviuence of the witnesses it is shown th.::..t it was committed on 1.1.93. TheJ a.J?pel.lc,,nts h,:;1.ve contended before me that how could they hc::..ve cornnitted the offence in this case on 1.,1. 93 when they were cw::rcodT..c as from 1.12., 92. I am of the view 1,,rith tregard to this that what has to be :;follewed is t.r,i.e evideace adduce<l in court-. ill the witnesses, includin;s the complaincllltt sctid the cattle were stolen on 1.1.93. The appelknts stood fael' to face with these witnesses in the trial court when theJ &,!;;~eared to testify. ~he appellants never raised this poin"i:; to ti.1ew. I t:1ink therefore that the point is only an after thou:.:.,i.1t on which?. us I have said, . the appellants wa.-it to ca:f)italise at this sta2,c. I reject here their c,ll';,urnents in rel&tion to tais point. .'l:l1e -offence in this case, ;;..,s per the evidence, Wo.S coi1lini t ted on lQ 1. 93 and the aJ?pelL,,.nts i·1e:i:e arrested en 3.1 .. 93 for it. Another point raised in the :petition of ai.,i!eal and before me is that the Police Offices who arrested thern, if there was one, was not called to confirm the st01ies of the prosecution witnec;__;es wl10 testified and who were all, appare11tly, re la.ti ves. In /!is evid.ence, however, M can be seen above tl1e seco:c1d a·:pellant says he was arrested by a Bolice 0fficer 1 nd the complainant and his son then also appeared. So a Police Officer wa,s involved in the arrest and it is only unfortunate t,12.t he did not testify, 'J!his 1 howevert does not detract in any wey frolil the strengkh. of the prosecution case. The trial court believed the prosecution evidence on the robbery hctving taken plo.ce., the finding of the a:.tJpellants with some •f the stolen cattle on the day fell•wi tha.t of the robb2ry and on the identification of the appellants by PW2. I cannot myself say that· the Court erred in believing t:hat evid.e;.1ce. Nor can I say it t,:';;:,. :;/. :~:: ·:. •,: t..• ar;red in acting on it to convict the appellcu1ts. PW2 had been with the appellants for a very lon 6 time, from around 10000 .. r 11.00 a.m. to about :sun set 1 and t:1is was in dd.y li,_)1t. .Sn bis identification -..f the afipello..nts is could not have beei1 difficult. And he was able • o • • o/5

• 5 to describe what each one of" .them did.~ I ti.ri,--ik his €Vidence-, as stated already was correctly believed and acteci on by the tric.l court& Secondly, the complain;_,,nt 's c"'ttle wnic:1 -c1e a:J_i;,ello.nts were found drivint; to the auction on 3.l.-93, were a:,mndi::-lltly identified to have been these of th0 cornplainMt stole1 o;.1 LL 93, '.Che a-.i::ipellants "ff ered no expla1a.tion as to l1ow tl10y cax,1c 'uy these head of cattle. 0.1 all this evfo.eil.Ce I ca.1 only saJ, as already indicated 9 th,d the appell.mts 1 convictions we:ce well founded. AS they were armed with arrows they coilliitltted iii.armed robbery anci they deserved the se,1te11ce of thirty (30) years I irnpriso.unent i-/11ich they recei-_rccl cJ.S well. So their appeals to t:(1is court are holl u indeed and they are dismissed •. Delivered at Dodoma this 30th Day of · · ~'1st, 1999, in the presence of the a.t!pelli:;.nts who hc...ve a:1-•peared in _person a..1d Mr. J{a.:,d.igai,- .State .. ~ttor:1ey. I hereby certify that this is a true CO?Y of tne original.