Elias Joseph Haonga vs Republic (HC Criminal Appeal No. 119 of 1997) [1998] TZHC 2380 (5 May 1998)

~ IN 'IHB HIGH COURT OF T.-\NZil.NIA . '.': . . _ £._MBEYA •'.,'. .. . C •. .liJ~H COURT CRIM!NAL APPEAL NO. 119 OF 1997 ·:t'RqM .MBEYA DISTRICT ·COURT -C,RIM.~IlL:. QASE NO. 296/94 ,,- ELIAS JOSBPH HAONGA. ~ • • • • • • , • • • • • • • ~ • • • •·• •••,..APPELLANT •... ViillSUS THE REPlJDLICo • • ~ - • • •: ~ • o c • o • o • o o o o • • • ~ • •·• • o I• RESPONDENT .· ... ' ~ · .. JUDGEMENT

. ·'• ' HWIPOPO, h , I:ri. the DistriGt Court of Mbeya 011t_ .of th~-,6"aci'used -'charged with · oru3pitartci to · steal and robbery wit):l vio).ence · three ;Of them were aoqui tted . . . .. . . - : ' i . there are the 3rd. accused· Emmanuel. s/o Mcl;li,ngo 1 '·th-.-5th acusd Singira s/o Jose"ph and the_ 6th_ accus·e·d Zannu .. s/o, ..u-on,j wlereas the other three accused • ·,, .• •• ,>' I namely- the 1st· accusd- Frank s/o i\izeck Simbeye, tho 2nd ·accused Elias s/o Joseph Haonga who -i~- tl1·e· present app.eilant and· the 4th accused Robert s/o Eddy .;.,ere.:convicted_ ~ 'chgd c/ss }84._and 285 of the P.:c. res11eotively 1 and they \olere sE\nJenced _to 0 15 ;yf:!ars· imwisonment for ea.ch count ':'-Ccordingly • . :.• .. : ,:./·' , .. : . ' . The posl.fiori. of, tl:J,e· 2nd accuied Elias s/o Joseph Hc°nga· in the proceedings of lower needs speci?:l !llent:i,on; and deterrrii:riatiori by this c·ourt. After the . ' . . . f, closure of the prosecutions •ase and all the 6 accuseds had been found to have a pr:iina foci€ cse o anslfer on 6/12/94· the case was ~djourned to 28/12/94 for the de.fence >to. start. The case was adjourned on 28/12/94; 11/1/95 1 13/1/95 without hearing for. various reasons and'all the 6 accused were presento The 1st accused, 4t;h accused and 5th accused were throughout the trial remanded into custody for having not" ·served any pertial freedom through bail• The 2nd accused, the 3rd accused and 6th ccused 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 w:i.th warr.ants of,_arrest.. By· 7/2}95 the -2nd accuse•d had ·not yet ?een arrested and the 6th ·accused too did not attend tho court on this·day res11lting into issuance of a warrant for. his arrest as well as summons for his surety. Until the defendants star.td _tl~~ir ·,defence on 27/2.,/9':>. the 2nd accused-, the appellant had not . '. ., turned up bav{ng certainly jumped bail• 1fis co-6th accused turned up for . . . . ~ h,is defence on·27/2/95 and: through out·-t;hereafter. The appellant was .•. therefore convicted in.absence mid sentenced in absence. He was arrested and ~ ·. brought to court before the. trial magistrate the learned Mr. Lyimo (RH) on · · ·· • was .. , · 6/6/96 when the judgement and sentenceLre~d over to him. When he had been brought to court for having the judgement read over him he should have been given a chance ~o mitigate pis sentence. The trial magistrate the learned

2 - Mr. Lyimo (RM) could not have attered the sentence passed to the appellant in absence by the learned Mr~ Lwabutiti (Jl'1) on 13/3/95 because it would have . amounted to junctus officie to do so.· The same appellant is not recorded to have said.anything on 6/6/96 at the time of.his committal to serve the 15 years imprisonmentti'• He-should bave be9μ given chance to state the reasons for his a.bsonding from this case for about 1¾ years. It is the duty of this court on first appeal to took into his memorandum of ppeal in order to see a • I ,• • whether he reise.s a reasonable defence which.ould have benefitted him has he testified in defence at the time of· the trial. During the. heing· of. his Misc .• Cr ~\pplica.ti6n No, 58/96 for appealing out of time the -~ppeJ.1.an1/ had· hJ .. s· fi'r's't· thant:e'- to state if he had any reasonable defence which would have benefitted him had he defended.~ims:-1f

t II! on oath or otherwise -in ths Distric;t .Cou:r:t, .0\1 oath _in the affidavit he only complained of having received the. copy of judgement late. He did not complain that the judgement had b.een delivered _in his. absence thereby denying him a chance to put up any reasonable defence.h~ might have heard. In.respons~ to the presentations of· the learned· State l .. ttorncy Mr. Mulokozi duriI?,g ~he hearing

• . o·f this application -wto had alleged that the_ appellant jumped bail the . ,, ... appellant to alleged that he had been.sidk and that his surety was attending court and tht he had' been ·_arrested only after 3 months. All this tory is certainly not.true for his surety never attended the court despite the summons . . ~ ., . . . . having 'J:?ee11; .issued to him. Aso, he was arrested not after 3 months, but · after. 1-, year ruid 5 months from the time he jumped· bail. Furthermore, he was ~ . ... ,' ,. . nb.t sic,k at all dur:ing this span ·of abot 1¾yea.rs while he was at large· '.-because.if so he would have easily informed so the court or produced some ' \ ( ' '. ' treatmen~ records of .his sickness. The defence he raised in his memorandum of the 6th accused 7th gro~ds of appeal is'that .. he was hired by one. Mwamfupe to unload the iron sheets.and that , he was found in that house of PW3 by the police whi'tle waiting for the said Mwamfupe j . . to pay .him the charges of unloading iron -sheets. ··H.e alleged that he· was in ;the same gro\lP· with 'the 3 accuseds persons who were acquitted 10 a.re the 3rd. i:;.i..11 &rid 6th accuseds persons. The learned Mr. Boniface (SA) has· supported the appeal on reasons ·that . .. ·-; two ,trial magistrates·· the learned ·Mr Bongole (RM) tried the• case up t:- 2 PWs PW1 and PW2 only, The rest of the trial with PW3 - PW5 and DW 1 s 1 to Dl:!5 was done by the learned, Mr. Lyimo (R-1) without ascriting reasons for taking ewer ' ' the tril from the originai tiai magistrate. The other reason advano8d by the lea.red Mr. Boniface (SA) is 'that the sentencing was done by yet .another mc1.gistrate the learned Mr. Lwabutiti (IM): without giving reasons. The last ' : reason given by. the learnd }ir:· Boniface SA is that the· appellant I s ' explanation that he was under hire to unload the ·iron sheets should }m,r~ benefitted him as -it did to the• .. 3rd, 5th.& 6th accuseds.

• 3 The defence position of the ppcllant as 2nd accused was quite different frohi the defence position of the 3rd accused, 5th ,.accused and 6th accused ::. ! who· were acquitted.· Out of the .6 accused persons only the 2nd accused the appellant was known to· PW1 Atupokile Thomas fo! they once 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 tho day of robbery on 17/7/94 f;om PW1 •rs testimony 'the appellant was not at th(l seen(:) of robbery or Songwe Primary School at · 8.oo p.m. But;··ha.nded the ion sheets' ·tolen fom PW1 2 hours later at 10.00 pm at _Mwanjelwa. Was it mere incidence that at 8.oo pm at the house of PW1 he was . not among the robbes, but merely two hours later the same night at 1e,:;o a.m. atPW3's house lie was there to be hired for unloading there iron sheete ;from 1 the purported owner of the iron sheets Mwamfupe? . "' . ' . ·t • . . • J': rr: Frorri,.ihe· testimonies' of DW2 Emmanuel Mwalingo(th·e 3rd· accused) the appellant· .. ..: .. . ' , as 2nd a'bcuscd · \1as found wi. th the 1st ac.cused already with the iron sheets at . ·. ' : ' . '.•: . · the "time of' offloading them from ,the mf.v at the_ hous:e of PW.1• Similary DW5 (The 6th accused) one Zrumu s/o .1irenje testified .that the peoplci under hire to ' ' ' offload. tho ir,on sheets were himself and the 3rd accused oniy ( two of them)• So, the 2nd .ac91Jsed was no _ _,:1mong the hired offloaders of the iron sheets. DW5 went. on. to tes.tify· in, cross examination that' the said Mwamfupe who hired ·· them as being the 1s't accused. The ap11ellant in this appeal nas elaborated • - : ,4 ,, . ;. . . . • the,t hei. kne~ Mwam;fμpe to be th_e son of P\v3, .. To quote his own words from the ··•4 : •.• • ' memo of -apl)eal ?h ground he said as follows:·- ·_ a ••• ••Na baado.ye mtqto wa yule marnq (PW3) aitwaye Mamfupe aliondoka kwenda kuqhukua fedha za malipo na· mimi pamoja na DW3 na DW6 tuliambiwa tungojee, malipo 1 kisha baadaye tukakamatwa na polisi. tini sijui lolote juu ya bati hizo. i: · According to the testimony of DW2 and DW5 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 Mwamfupe was the son of PW3 with wh,om the iron sheets were found discloses the appellant to be in the camp of Mwamfupe rather than in the camp of the 3rd accused.and 6th accused. Moreover, his visit to the scene of robbery on 15/7/94 shows·that he was surveying the scene of crime in preparation for tho robbery. His conduct of jumping bail at the time of making his defence is 3.lso portrayed'of his guilty conscience. The appellant wM part and panel of tho 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 PW1 and could not eX'JQse himself to her at the time of the . ' burgln.ry and robbery and theft he W3.S one group with the robberies that is why2 hours later they wore found together with the 1st accused @d 4th accused

·• 4 .at. the house of PW3 who was an accomplice for handering the robbers and tte , I • f proceeds of crime the iron sheets kept at her house for the night. The posit:i.on o~ the 5th abcused Singira s/o Jqseph is quite different.for allPW5 &-DW a free that he was brought into.the house of PW3 by the'policehaving been arrest.ed. while the police were going to scene the house of PW3 for having had .. ~ . . - . , no .IP when found on the way. Evn PW3 testified that the· 5th accused was not ... .:. . - ,. .. . . amol,}.g the accused who slept at her house tnnt niglit before the police ca.Ine to The other reason civen by the .learned the 2nd ..,, •. · .• ·t. .. · · ." ~ : ~ ..... ~ .. -: '\ ..... , ~~. rtr: Boniface cs,:.). is<t• that .. tritil mag is tra te Mr• Lyimo (RM) did• :nqt give reasons ror:'. taking -ver · the trial .' . ' . . ,\ .· ••1t;;,., . . . from· the learned Mr.- Bongole. (15M) • From the files original record, at the time did the learned Mr. Bongole (RM) hear this case• Aii PW5 frm PW1·,: PW2, PW3 1 . ~ - PW5 to PW6 had their testimonies taken 'by the lar:O:ect ·Mr. Lyimo (ijM) only. 1,.l' 1\ • ., ••, - The handwrit;i.ng and. the. signatures are all of the learned Mr •. Lyimo (RM) not -- , . . . . ' of the learned: rrtr. Bongole (RE)•. . . ... .. . ·, ... . , . . .. ~ ' - · - l{t the. ·time of deli veri .of ·1eave and he left the judgement judgement the learned JY'tr. Lyimo (RM) was on to the learned }1r. Lwabutiti (DM) to deliver . . ., · 'it. · /:..fter .reading over -the judgenien the le8:,l'ned Mr. Lwabutiti (J:M) went on :. to senton·ce the 3 accuseds who had been convicted. I have already indicated abo..:re' that the• a1Jpellant \iras co.nvicted and sent_enced on absentia. But even if· he had been pi;.es.;mted his defence is now known and would not exonoro.ted him from the 9rimes as charged•: He was properly convicted. The Doctrine of recent posessioi1 applied to him for he . ,..,~ •found with the stolen iron sheets , hardly 2 hours. after the robbery from the headtec..cher · of Songwe II Primary ·school. As for sentence, he would not have benefitted f!om it even if he was ' . . present for the 1~.years imprisonment for robbery with violence c/s 285 is the minimum sentence for the. 2nd count. As for the first count of conspirancy · 15 ·years imprisonment was unlawful for the maximum penalty for this offence . is 7 years.-. But this matter was al.ready dealt_ wtth by my learned Brother Hon Mwaikasu, J. on 26/8/1995 in High Court Cr. App~ No. 33/1995 (Mbeya Registry) Frank Aisek Simbeye V R ( unreporte.d) • This was the appeal of the . 1st accused in the charge sheet which was dismissed. . . ' In his Lordships judgement he held as follows:- \ In exercise of revisional powers confessed tl · t ·th. fifteen · upon ns c~ur , . e sentence of ~ 1 1.l..: years imposed by the lower court on the 1st count in respect. of the orisiru:11 2!}_1.,.2Pj.J-th 't2-~~~-~~ 1 is harclry reduced to §..§_nJears to run concurrentry . ' with the sentence of fifteen years imposed on the g~2unt in respect of each such accused. This

5 ttshould be notified to the prisons officer incharge, Ruanda Prison, Mbeya for record purposes.;; Otherwise, in respect of the appellant on his own right as assessed above, I find that, like Hon Nwaikasu, J, did in respect of the 1st accused, he WM E.L.K. NWIFOPO JUOOE 5/5/1998. I certify that this is the true and correct copy of the original Judgement.