Jumanne s/o Shigowelo vs Republic (Criminal Appeal No. 11 of 1998) [1998] TZHC 2276 (3 July 1998)

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• IN T-1E HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. ii OF 1998 (Original Criminal Case No. 456 of 1997 of the District Court of Mheya District at Mbeya Before: A.M. Sallum Senior D44ágistrate) JUMANNE S/O SHIGOWELO APPELlANT Versus TI-ilL REPUBLIC RESPONDENT JUDGMENT. The a:opllant, Jumanie Chigowelo (first accused), andfive other persons who were acquitted, Jailo s/o Julio (second accused) ,Peter s/o Black (third accused), Ester d/o Nwashilirnbe. (fourth accused), Habhina d/o Simon (fifth accused), and Asha d/o Steringi (sixth accused), were jointly arraigned before the district court of Mbeya on an indictment which contained three counts. The first and second counts were in respect of the ae11ant, the second accused, and the third accused0 The third count was in respect of the fourth, fifth and sixth accused persons -The counts were: - First count (for first, second and third accuseds): 0 Eurglary,.contrary to section 291+(1) of the Penal Code.. Second count (for first, second and third accuseds): Stealing, contrary to section 265 of the Penal Qode. Third count (for fourth, fifth and sixth accuseds): Receiving stolen property, contrary 0 to section 311(1) of the Penal Code. The appellant was convicted of both counts as .harged and sentenced to two years imprisonment, and five yar imprisonment, respectively, which was order'd to run concurrently. The convictions and sentences aggrieved the appellant, hence this appeal which was unresisted before me by the learned state attorney for the Pepiblic, Mr. Nangela, in the presence. of the appellant, who abided by- the .centnts of his membrand.um of appeal. o..ocooe00000./ 2

3 - I would, with respect, agree with both learned Counsel that the identif i- cation evidence of the items found at the house of Ngoride was most unsatisfactory. Their purported owner, Pestita, did not testify. The identification Was purportedly made by her brotier PW1. The articles involved were of common manufacture. They did not have special marks or features distinguihing them from other such items, and P 1 41 did not point out any. In the case of Ban1ari v,R. (1967) HGD 11, the questionof identification of stolen khangas was in issue and Saidi, J. (as he then was) held: "Thchibition of a pair of khanga not ditinguishable from other such items by special marks or features will not support a 'inding that they are the -same as those stolen. There is no note the record as to how PWI had made the identification He identified the items by mepely saying that they were RestitaVs stolen property. The case of 'beswa s/oCiiloyaVR. (1970) dCD 210 i'ivoived identification of doorbolts and cooking pots in which one Bilali sriply said he idnt±fied them and the record, as here, did not indicate how he had made the identification. Georges, C.J. remarked: -. Again there is no note on the record as to how. he had made the identification0 It has been said over and Over again that trial magistrates should not -be content, to 'accept bare statements from witnesses that they identify as their property articis which are of ordinary manufacture commohly used by a large dumber of people such as the articles in this case-- bolts for doors and cooking pots.. The record iust giv some ind±ation of the method of identification so that the appellate tribunal can form -sOme, opinion as to the likelihood of its accuracy. - In this case, therefore, I am satisfied that the relevant items were not property, let alone sufficiently, identified by PWI as 'the stolen property. of Restita. And assuming, for purposes of argument, that the 'items were properly identified, the evidence iplicating the appellant with' the thet wouldhave been insufficient There was the evidence of his co-accu'sd, the second 0 0 0 0 0 0 00/ 4

-2. Unknown persons broke into the dwelling house of Pestita d/o Simon during the night of 6.6.9? at about 14,00 AN and made away with various items and articles valued at shs,150,00Q/=. Restita d/o Simon, who did not testify, has a.brother, Tobias .6/0 Nzenga PW1, who resided elsewhere. Later that morning at about 6.00 AM PWI wit to the house of Restita who Edid him .about the incident;. PW1 reistered a report at Mwanjelwa police station and Insp. Kabati PW2, ahong othr policemen, stepped into the matter. One Mwamlima was suspected, but on her housebeiiig seardhed, nothing was found. Next in line of being suspcted wereNgbhdo and Tiner. At the house of Tiner a saucepan was found which was allegedly ±deiitified by PW1 to beJ.ong to flestita. The search pa.rty then went to the house Of Ngonde whë'e they found the second accused, •Jailos/o Julio, According to PW1 and assistant cell leader Helena d/o Kifuna PW3, the appellant had already been arrested and was with the search party. But according to PW2, the acpellant wnt 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 pIece of kitenge were found at the house of Ngonde. The second, accused claimed that it was the appellant who had brought the items there for safe custody that horning claiming that he had been evicted from his house by aged his landlord and that he had gone for m're items. Queen d/o Tohias, 9 years, who stayed there, claimed to have seen the appellant with the items as he was leaving for school, The cell leader P3 said that the second accused did not..mention the name of the person who sent the items there. Again, ?W1 purportedly identified these items as belonging to Pestita. 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 d,uring the trial. The appellant denied any complicity in the theft in his sworn defence at the trial. He 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. The items and the second accused were found there, 3

accused, which would have, in the circumstances,required corroboration in material particular which, asI shall' demonstrat,' was wanting in this case. Queen d/o Tobias D146 was a child of tender yea-3.-s , ift terms of section 127(5) of the Evidence Act 1967, hereinafter cal1el the Act. But there is 'no indication in the record of proceedings, as it'oight to have been indicated,, that the procedure set out uadei' section 1 27(2) 0 f the ict was complied with fully. DW6 gave her evidence unsworn, But befb allowing a child to give evidence, two matters are of i.mrJortance, , First :th.e child should be examined to find out whether or not he or she understand E the'iathre of an oath. If yes, the, child should be sworn. If.. not, the9, second, the chUd. should he examined to discover whether or not the child is sufficiently intelligent to understand the duty of speaking the truth. f not, the evidence of the child should not be taken. If yes, then the evidence can be taken. unsworn, It should appear on thi face of the record of the nrbceedings that there has been a clue co'npliance with section 127(2) of th6 Act This was not the case here. Contrary to what the trial magistrate thught, the unsworn evidenc,e of DW6 itself required corroboration, and it could not, in'law have co,rroboraed the evidence of the second accused. ,.. " .. . For the foregoing reasons, I allow the an )eal, quash the coivictions, set aside the sentences, and hereby or.der the immeft Late releae of the appellant otherwise. lawfufly held, 3.] 0 . I40SHI JUDGE AT NBEIA. ' 3 July '1998,

• For Appellant Present. ' For Republic: . Mr. Boniface, S.A.