Jumanne s/o Chigowelo vs Republic (Criminal Appeal No. 11 of 1998) [1998] TZHC 2320 (3 July 1998)

IN Th.""C HIGH COURT OF TANZANIA AT 1°IBEYA CRIHINAL APPEAL NOo 11 OF. 1998 ( Original Criminal Gase No. 456 of 1997 of the District Court of Mbeya District at t1beya . - ,• Before~ A.M • .SaJlum_ - Senior D/Magistrate) JTINANNE s/o SHIGOW.EID O Q ,, • 0 o O O O O .A.P:PELI.ANT Versus THE REPUBLIC .••••••• ~ •••• "., •••• RESPONDEN'r_ JUDGMEN'r. MOSHI J •. ,. •· --·-· ·'. , ·- '.I.'h e ay)pellant, ,Tumanne · Chigowelo ( first accused), and five other persons ,,.. who were acquitted, Jaiio s/o Julio (second accuse&, Peter· s,/o Black ( third accused), Ester d/o t-h-.rashilirnbe (fourth accused), Habhina d/o Simon (fifth accused), anq Asha d/o Steringi (sixth a.ccused) ~ were joi:ntly arraigned before the district court of Mbeya on an indictment which contained three co1mts. The first and seco11d c6uri.ts were in respect of the 1?.--~~-.~~pt_, the _second accused, and the th.ird accused. T'ne third count was in respect of the X.:?_urth, · fifth and sixth accused persons~ The counts were: First _cou.~ ( for first, second and third accuseds) .: Burglary, contrary to section 294( 1) of the Penal Gode • .'..s.9.n,d, _c._oun t ( for first, second and third accuseds) : Stealing, contl'ary to section 265 of the Penal Code • . 'I'.11..d co~t ( for - fourth, fifth and sixth accuseds): I . Receiving stolen property, contrary to section .11(1) • of the Penal Code. The appellant was convicted of both couuts as harged'and sentenced to two years fo1prisonment, and .f.?:.Y.-:: yr<ears imprisonment, respect_ively, which was· orderd to run concurrently. '.rhe convictions and sentence aggrieved the appellant, hence this appeal which was unresisted before me by the learned state attorney for the Hepublic, Nr.Q Nangela, in the presence of the appellant, who abided by the contents of his memoran_dm:1 of appeal. e • o a o o o o o c, o i, o e/ 1 2 ..

• 3 I would, with respect, agree with both learned Counsel that the identifi- cation evidence of the items found at the house of Ngonde was most unsatisfactory. Their pwported owner, Restita, did i:iot t,estify. The identification was purportedly made by her brother PW1 •. The articles involved were of common · manufacture. 'l'hey did not have special marks or features distinguishing them from other such items, and PW1 did not point. out any. In the case of Bamari .sfobedi v.R ·( 1967) HCD 11, th_e question of identification of stolen khangas was in issue and Saidi, JQ (as .he then w:1:s) held: 11 Exhioition of a pair of khanga not distinguishable from other such items by special marks or features will not supp9rt a finding that they are the same as those stolen. 11 'I'here is no note the record as to hOl(J PW1 had made the identification. He identified the items by merely saying that they were Restitars stolen propeI'tyoi The c·ase of HE_esw s/o Chil(}ya V.R" ( 1970) HCD 210 involved identification of . ' doorboJ.ts and cooking J)Ots in ,.,rhich one Bilali simply said _h~_identJf1:_e_c! them, and the rcord, as hre, did not indicate how he had made the identification. Georges, CoJo remarked~ • 1 Again there is no note on the record a.s to how he had made the identification. It has been said over and over again that trial magistrates shouldnot be content to accept bare statementR from witnesses that they identify as their property articl<?-s which are of ordinary manufacture commonly used by a large number of people such as the articles in this case-- bolts for doors and cooking pots. The .record must givo some indication of the method of· identification so that the a-i;lpellate tribunal can forr:i some opinion as to the likelihood of its accuracy.; 1 , In this case, therefore, I am satisfied that the relevant items were not .. propertyf let alone sufficiently, identified by PW1 as the stolen property·. of Restita.· A d · +- ii' f t · 1 t tr1e i+vems ,,,ere ro rl .. n assuming, .• or, purposes o argumen , t 1a . ~ p pc y identified, the• evidence implicating the appellant 11/ith the. theft would have been ·insufficient. There was the evidence of his co-accused, tli.c second ... 0000,.00000/ 4

2 linknot,m persons broke into the dwelling house of Restita d./o Simon duri..'r:tg the night of 6.6.97 c:-t about 1 +o00 AH and made away with various items and ·articles valued at shso 150,00Ci=• Restita d/o, Simon, who did not testify, has a brother 9 Tobias. s/o Nzenga PW1, who resided elsewhere. Later that n,orning at about 6.CO AM PW1 went. to the house of Restita who told him about the incident. PW1 rec;istered a re1Jort at Mwanjelwa police station and Insp. Kaba.ti PW2, among other policemen, stepped into the matter. One Mwamlima was suspected, tut on her house being searchedj nothing was found. Next in line of being suspected were Ngondo and Tiner. At the house of Tiner a saucepan was found which was allegedly identified by PW1 to beJ.ong to Restitao 'he search party then went to the house of Ngonde where they found the second accused, jailo s/o Julioo According to PW1 and a:ssistant cell leader Helena d/o Kifuna P'13, the aJJpellant had already been arrested and was with the search party· But according to PW2, the appellant vrent to the .house of Ngonde and found them there. One foam mattress and its cover, two hurricane lamps wrapped in a piece of cloth, and a p±ece of :kitenge were found at,the house of Ngonde., The second -~ accused claimed. that :it was the appellant. who had brought the i terns there for safe custody that morning cla:iming that he had been evicted from his house by his landlord and that he had gone for m,.,re items. . aged. Queen d/o Tobias, ,J · 9 years, who stayed there, claimed to have seen the appellant with the items as she was leaving for school. The cell leader PW3 so.id that the second accused did not mention the name of the person who sent the items there. Again, PW1 purportedly identified these items as belonging to Restita. It must have been . . on·the spot 9 for as per the-trial court's record, the items were neither in court nor tendered in evidence during the trial. The appellr-mt denied any complicity in the theft in his sworn defence at the trial. ne denied having taken the items to the house of Ngonde. He was arrested in the morning of 6.6.97 and taken to the house of Ngonde for a search. 'l'he items and the second ·accused· were found there. 0 •• 0 ,, ❖ 0 •• "0 •• / 3

accused, which would have, in the circumstances, required corroboration in material particular which, as I shall demonstrc.:i.te, was wanting in this case. Queen d/o Tobias DW6 was a cl-:iild of tender yea1·s in terms of ,se~'don 127(5) of the Evidence Act 1967,.hereinafter called !_lAct. But there is no indication in the record of proceedi.YJ.gs, as it ought to have been indicated, that the procedure set out under secticJn 127(2} of the Act· was complied with fully. DW6 gave her evidence unsworn. But before allovling a child to give evidence, two matters are of irnportanceo rrst, the child should be examined to find out whether or not he or she understands the nature of an oath. If yes, the child should be sworn. If not, then, .s..e53p__i, the child should be examined to discover whethe;r- or not the child is sufficiently intelligent to understand the duty of speaking the truth. If not, the evidence of the child should not be takeno If yes, then the evidence can be taken unsworn. It should appear on th~ face of the record of the proceedings that there ha.s been a due compliance with section 127(2) of the Acta This was not the case hereo Contrary to what the trial magistrate thought, the unsworn evidence of DW6 itself required corroboration, and it could p.ot, in law, have corroborated the evidence of the second accused. For the foregoing reasons, I allow the appes.l, quash the conviction,;,, set aside the sent.enc.es, and hereby order the irr,mediate release of the appellant 3 July 1998. For Appellant~ Present. For Re"()ublic~ Mr. Boniface 1 S.A. held. B.P. MOSHI JUDGEo