George Simfukwe and Another vs Republic (High Court Criminal Appeal No. 192 of 1990) [1991] TZHC 2393 (21 July 1991)

IN THE HIGH, ceRT OF TANZPJ-lIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 192 OF 1990 ORlGINAL CRIMINAL CASE NO. 250 OF 1989 OF THE DISTRICT COURT OF ARUSHA DISTRICT AT ARUSHA BEFOR: P.S. FII{IRINI Esq, RESIDENT MAGISTRATE GEORGE SIMFUKWE & ANOTHER ••••••• ,APPELLANTS · · VERSUS "'·,.- .. THE REPUBLIC ••••••• · •••••••••••••••• RESPONDENT JUDGMENT The two appellants in this appeal, namely George Simfukwe and Jumanne Mohamed,_ were.jointly charged before Arusha District Court with robbery.wi:th violence c/ss 285 arid:286 of the Penal Code, Cap. 16. However, at the end of the trial the presiding magistrate convicted the-appellants with malicious damage to property c/s~ 326 (I) of the Penal Code. The le.arned 'trial Resident Magistrate stated in her judgment that she· entered this conviction under alternative verdict Principl~ under the provisions of section 300 of the Criminal Procedure Act, 1985. The trial Mgistrate made a finding that the offenpe cif · malicious · damage to._property.·is both minor and cognate to robbery with violence •. To support her finding; the learried trial Resident . . . . : Magis!rate cite<,i the :following decisions qf ·this Court namely J ep_h Shagemb y ersus Re_publ-!£. .. 19§.?..,1.,IB; Sayale _ Seliani. Versus ~~e..£1:¼.b.lj.c 1968 High Court Di,gest .N:.o. 243 and Skbuni Versus Re,2ublic 1971 High Court igest Ji,<?. 138. The appellants were then sentenced to four (4) years. . . . -impri.sonment each . ,and. were ordered · to pay 116, 900 / := compensation to the complainants:P:.W,1 and P.W.2 for their property alleed to have been damaged by the appellants. I • j-.:.;il.Jl ..• ~i),· ~ :-1-,,,-tt,r·•h :e-.et -r.· ,. I,

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,;:.·., . ' 2 The appellants were aggrieved by the decision of the trial subordinate Court and have appealed to this Court against convi- ction, sentence and the order of compensation. Mr. Mwal~, learned advocate, represented both appellants in this appeal. Mr. Mwale argued that ti.1ere was no sufficient evidenee on the prosecution to prove beyond reasonable doubt that the appellants damaged•the property named in the charge. The prose- cution witnesses testified·that only -the glass of a cupboard which was in the house of the complainants at the material time was damaged by the appellants. There is -no any. evidnce on .the prosecution to the effect hat the appellants damaged other property apart from the cupboard. However, the cargesheet d·id not allege that the glass of the cupboard in question was - damaged by the appellants.· Also the value of the said cupboard or its glass which is alleged to have been damaged by the appellants was not stated in the chargesheet or in the prosecu- tion evidenc. also the said•cupboard and its broken glass were not tendered in Court during the trial in order to eatisfy the Court and to enable it to assess the quantu:m~ of damage thereof. The.n? is established evidence on reoord that on the day the appellants had gone to the house of the complainants where they found ·p. W. 2 the wife of P. W •· 1 who was in the company ... of · her house·maids namely Anna, Fibora and Mariam. It appe,ars that the appellants ha,d- gone to P.w.1 1 s house to claim a debt. Then there ensued an altercation between the.appellants and P.W.2 which culminated into a quarrel •. P.W.2 admitted during cross- examination that during this scuffle he:r housemaid one Anna picked a coconut grating machine (mbuzi) and hurled it on to the appellants. It is this object which the appellants said in . ~ their d~fence that it missed them- and instead. hit at ths cupboard :;. glass and smashed it. This· evidence was not in any way challenged ~-, ,..,.· .. ·,, ,;w.it*·••\l:·~•...: . ....,... ~,;...,

3 by the prosecution. Mr. Mwale argued that, infact, the said coconut grating machine was brought to Court and.was produced .. as an exh;i.bit. In the circumstances, the appellants cannot be held Crimi:nally liable for the damaged cupboard whose glass w?'~ smashed by the .coconut grating machine which wasthrown by Apna •. , Further, the persons who witnessed this scuffl~ iriily Anna, Mariam and Fibora were not called t_o testify atLtrial in this Casee The ·tial Magistrate based her decision in this case solely on the evidence of P.VT.2 who is one of the complainants and who v1as involved· ·physically in. this scuffle. Mr. Mwal_e submitted-that :the vidence of P.W. 2 cannot be relied upori:-:: - in convic;ting .the app1lants with the charge in this case un+.eis •. /: such evideiJ,ce is corro1:>orated by· another independent eyidenc~.! _ ,.. . an P. U. 2. -;is· ~ perso_ri .wi thlinterest in thi_s Case. · , •· Mr. Mwale argued that the prosecution said. that,-.-the appe- ·: llants admitted i --, ht"':.-0. c =-..,,.,, ~ -'.::ted the offence of malicious ' . . ' . damage to complainants' property. It is all§?ged that_tre appellants admitted. so to the Mbuguni Village Chairman and to the- QCS a.t Mbuguni police station. However,, none of these people was call,ed to testify at the trial. Also n 1 written statement of th? -appellan;£-- . ' ' ... to this effect was1 produce9- at ·he trial. So, this piece of evidence is mere hearsay and is, legal+y inadmissible_. Mr. Mvmle ;further argued that, the ,offence of malicious damage'. to property c/s 326 (I) of the Pental Code which was substitute_c:l for robbery was not at all proved on any one of the appellants •. The.'. prosecution did not prove any \Tilful and unlawful act' which caused·:,, damage to the property of _the tcomplainants. So, _on· the,.ev-iden9e tendered by the prosecution the of::ence of malicious damage· to . . . property was not t all proved and the appellan-:t;s. were i.'II'ongly convicted and punished.thereby. Equo.lly the compensation order was not supported by any evidence on:record and the same was therefore arbitrary. -• . Lastly , Mr. Mwale argue,:l on th propriety of the sentence of 4 yea:c:-s impri.c::r.?nment ·1;hat was impos~d on the

4 . appellants ·by the :trial 1·ower Court • He submitted that the said sentence was canifestiy. excessive sinc:e the appellants are esta- . . . ' - . blished to 'be first off enders. Moreover, Mr. Mwale_ argued, the said senence was sbject· to confirmation by the High Court, but the tria1··Magistrate made no order to that effect. · In reply Mr. Mwainiu, learhed State Attorhey, did not support both the-· convction and sentence. lie entirely conceded to the appeal- He submitted that the prosecution evidence was contradic- r .. tory and· full of discrepancies which reduced it to a weak point insufficient.to establish neither the offence of robbery with violence nor that __ of malicious damage to property. Mr. Mwaimu submitted tha-t;; the cfe~_ence case was straightforward and cohereiat. Had the trial Magistrate crefully consideed the defence case· she would not have come· to the conclusion which she reached in this Case. Mr. Mwaimu submitted--that from the evidence on record it ls obvious that there were ·grudges between the complainants and.the appellants, The appellant -one George Simfukwe was clai- ming money from Stanley Mwanda (P. "vl. I).·'. the ·material day George Simfukwe·and his-fellow appellant had gone to the house of P.W.I to claim the said money from P.W.1 but they did not find P.W.I at home, instead they found P-.W.1 1 s wife (P.W.2). 'When George· Simfukwe. spoke to P. W. 2. she rudely replied to him,and it ·was at this juncture that a scuffle ensued between P.W.2 and her houiilemaids . on· ; the one hand . and George Simfukwe and his companiion on/other·. It was during this scuffle - that the allege~ damage · occurred. Under the circumst2.nces, Mr. Mwaimu argued that the offences of robbery with violence -or :hat of malicious damage to property cannot be said-to have been proved. I quite agree with bo·:h counsel that on the available evidence, the offences of robbery with.violence and the offence of malicicns damage to poperty were ·not at. all proved on the appellants. In my view this incident 6.ould, perhaps, have been ,, the subject of a Civil action tha-r1 of a Criminal charge

. "; ., . 5 ... I heard this appeal on 3/3/1991 and allowed it ia its entirety. I quashed the conviction and set aside the sentences and the order of compensation that were imposed on the appellants by the trial subordinate Court. As the appellant by the name of George Simfukwe had been at that time granted bail pending this appeal, I made an order that he should continue at liberty in connection with this Case o Inadvertently, I made no or_der in respect of the second appellant Jumanne Mohamed. I now hereby order that the appellant one JUMANNE MOH.UED be released from prison forthwith unless he is further detained thereat for ano- ther lawful cause. It is on the foregoing reasons that I allowed this appeal • Appeal allowed, • M • D , NCtU.LLA, J U :J G E -,,_, ...... ..,.'..-.•••n~e-.- 2-; /7/-1991 MDN/mk