Elias Joseph Haonga vs Republic (HC Criminal Appeal No 119 of 1997) [1998] TZHC 2288 (5 May 1998)

t-- k P:> k~ -- IN THE HIGH COURT OF TANZANIA AT ME3EYA HIGH COURT CRIMINAL APPEAL NO. 119 OF. 1997 FROM M13EYA DISTRICT COURT CRIMINAL CiSE NO. 296/94 VERSUS . THE REPUBLIC..... . . c o •• o • s a .e • SO. .,'RESPONDENT .1 JUBIGEMENT In the District Court of Mbeya out of the 6 accused charged with• conspirancy to steal and robbery with violence thee of them were aeuitted there are the 3rd accused Emmanuel slo Nalingo, the 5th accused Singira sb Joseph and the 6th accused Zannu s/c Aronje whereas the other three accused namely the 1st accused Frank s/o Aizeck Simbeye, the 2nd accused Elias s/c Joseph Haonga who is the p'esent appellant and the kth accused Robert sb Eddy were conticted ascharged c/as 384 and 285 of the P.C. respeotively, and they were sentenced to 15 years imprisonment for each count accordingly. The position of the 2nd accused Elis s/o Joseph Haonga in the proceedings of lower needs special mention and determination by this court. After the closure of the prosecutions ease atid all the 6 accuseds had been found to have a prime facie case to answer cn 6/12/9k the case was adjourned to 28/12/94 for the defence to start. The case wa adjourned on 28/12j94, 1111Y951 13/1/95 without hearing fr various reasons and all the 6 accused ere present0 The 1st accused, kth accused and 5th accused wore throughout the trial remanded into custody for having not served any prtial freedom through bail. The 2nd accused, the 3rd accused and 6th accused were through out the trial out on bail. But, on 27/1/95 the present appellant as 2nd accused failed to attend the court as well as urnmons for his . surety. Both were issued ii 4 -' .rarrants of arrest. By 7/2/95 the 2nd accused had not yet been arrested and the 6th accused too did not attend the court on this day resulting into issuance of a warrant for his arrst as well as summons for his surety. Until the defcndants started their defence. on 27/2/95 the 2nd accused 1 the appellant had not turned up having certainly jumped bail. His co-6th accused turned up for his defence on 27/2/95 and through out thereafter. The appellant was therefore convicted in absence and sentenced in absence. Hewas arrested and • brought to court before the trial magiste the learned Mr. Lyimo (RM) 6/6/96 when the judgement and 'sentenceLread over to him. When he had bean brought to court for having the judgement read over hm he should have en given a chance to mitigate hi sentence. The trial magistrate the learned.

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-S 3,_ S. The defence pOsition of the appellant as 2nd accused was quite different f'om the defenc position of the 3rd' accused, 5th accused and 6th accused who were acquitted. Out of the 6 aScused persons only the 2nd accused the 'appellant was known to PW1 Atupokile. Thomas for they on' lived in one house and he is the one who went' to. :the house of the complainant on 15/7/94 two days before the robbery.' On the day of robbery on 17/7/94 from PWlts testimony the appellant was not at the scene of robbery or Songwe Primary School at 8.00 p.m. P'ut, handed the iron sheets stolen from PW1 2 hours later at 10900 pm at Mwanjelwà. Wàs.it mere incidence that at 8.00 pm at the house of PWI he was not 'am" the robbers, but merely two hours later the same night. at 10.00 a.me atPW3 house he as the'e to be hired for unloading there iron sheets from the 1 purported owner of the iron sheets Mwamfupe ? From the testirnonies of DW2 Emmanuel Mwalingo(the 3rd accused) the appellant as 2ndaccused'was found with the 1st accused already with the iron sheets at the time of offl'oading them from the nVv at the house of PWI. S.milary DW5 (The 6th accused) one annu's/o Arenje testified that'the peop'e under hire to of floaci the iron sheets were himself and the 3rd accused only (two of them). So, the 2nd 'accused 'was not among the hired offloaders of the iron sheets. D115 'went on to testify in cross examination that the said Mwamfupe who hired them as being the 1st accused. The appellant in this appeal has elaborated that he knew Nwamfupe to be;the son 'of PW3. To quote his own words from the memo of appeal7h ground he said as follows:- • '.....Na baadaye rntoto wa yule mama (PW3).aitwaye Mwainfupe aliondoka kwenda kuchukua fedha. za. malipo na mimi pamoja na DW3 na DJ6 tuliambiwa'tungojee malipo, kisha baadaye tukakarnatwa na polisi. Lakini sijui lolote juu ya bati hizo. -' According to the testimony of DW2 and D115 as explained above not only the two of them were hired for offloading the iron sheets but also that only found the appellant there. The knowledge that Nwamfupe was the son of PW3 wit whom e iron sheéts were found discloses the appellant to be in the camp of Mwaznfupe rather than in' the. camp of' the 3rd accused and 6th accused. Moreover his .isit to the scene of r'obbery on 15/7194 shows that he was surveying the scene of crime in preparation for the robbery. His conduct of jumping bail at the time of making his defence is also portrayed of his guilty conscience. The appellant was part and panel of the conspirancy to rob. Even if he did not go to the scene of robbery so which indeed he did not do on 17/7/94 for he was known to PWI and could not expose himself to her at the time of the burglary and robbery and theft he was one group with the robberies that is why 2 hours later they were found together with the 1st accused and 4th accused

• 4- at the house of PW3 who was an accomplice for baridering the robbers and the proceeds of crime the iron sheets kept at her hous'e for the night. - The positiori of the 5th accused Singira /o Joseph is quite different for all-PW5 & DW a free that he was brought into the house of P 1 ,43 by the police having been arrested, while the police were going to scene the house of PW3 for haiing had no ID when found on,the way. Even PW3 testified that the 5th accused was not among the:accused who slept at her house that night before the poliàó came to • säené the house. The other reason giYen. by the learned Mr. Boniface (SA) is that the 2nd trial magistrate Mr. Lyimo (RN) did not give reasons for taking over the trial 'fromthè icLaed Mr. Bongole (RN). From the files original record, at the time dd the learned Mr.. Bongole (RN.) hear this case.. All PW5 from PWI, PW2 1 PW3 9 PW5 to PW6:had their testimonies taken by the learned Mr. Lyimo (RN) only. .Teiaidwritingad the signatures are all of.the learned dir. Lyiino (RN) not of, the1earned Mr. Bongole (RN). •. '' . • At thtIme zof delivery of. judgement the learned Mr. Lyimo (RN) was on léxve aid he left the judgement to the learned Mr. Lwabutiti (DM) to deliver 'it, After reading over the judgement the iearned M. Lwabutit5- (fl1) went on "senten'O the 3 accuseds who had been convicted. I have already indicated aove that the appellant was convicted, and sentenced on absentia. But even i he had bGen presented his defence is now known and would not exonorated him from the crimes as charged. He was properly convicted. The Doctrine of recent possessioil applied to him for he ws found with the stolen iron sheets hardly 2 hours after the robbery from the .headteacher Of Sèngwe II Primary School. As for sentence, he would not have benefitted from it even if he was present for the 15 years imprisonment for robbery with violence c/s 285 is the minum sentene for the 2nd count. As for the first count of conspirancy 15 years imp±isonment was unlawful forAhe maximum penalty for this offence is 7 years.' But this matter was already dealt with by my learned Brother Hon Mwajkasu - J. on 26/ 8 /1995 in High Court Cr. App. No. 33/1995 (Mbeya Registry) Frank Aisek Simbeye V R (unreported). This was the appeal of the 1st accused
• in 'the charge sheet which was dismissed.. In his Lordships judement he held as follows :- • Inexercise of revisional powers confessed fieen upon this court, the sentence of years imposed by the lower court, on the 1st 'count in repect of the original 2ndpd4tháccuseds, is hardry reduced to S6ven_ears to run 'conciirrentry with the sentence of fifteen years imposed on the 2nd count in respect of each such 'accused. This

.5. -. "should be notified to the prisons officer incharge, Ruanda Prison, ?Ibeya for record purposes. Otherwise, in respect of the appellant on his own right as assessed above 1 I find that, like Hon Nwaikasu 1 J did in respect of the 1st accused, he was properly convicted. I dismiss this appeal entirely. •

• •., E.LbK MWIPOPO JUDGE 5/5/1998. I certify that this is the true and correct copy of the original Judgement. 2 DISTI16'PJIX3ISTkAR 3EYA.