Charles Mlay and Others vs Republic (Criminal Appeal No. 91 of 1990) [1990] TZHC 306 (29 October 1990)

IN THE HIGH COURT OF T.ll.NZli.NIA m ARUSilA l.PPELLATE JURISDICTION (ARUSII.A REGISTRY) CD.Il.UNAL APPELu. N0.91 OF 1990 ORIGDTL.L CRIMINAL CASE NO~ 65 OF ·1989 OF TED DLSTIUCT COURT OF ROJ'IDO DISTRICT ROMBO BEFORE K.,J.1., Rll.SHID_ EQ 9 . DIS'I1RICT MAGISTRATE CIL'l.rlLES MLAY & OTBERS,o o',o o O O O 0.0 .· oAPP:!]JLLANTS ''VERSUS REPtIDLIC • ., •• o. o". o o ••• o o o.o o o o • • -. RESPONDENT JUOO.MENT/REAf30NS FX:>R..DECISION The four appellants in-this nppooJ. were among seven accused persons who ere jointly charged beforc,tho District Co:urt.ofRombo . . . . . . . with burglary in 1st . count and vd. th theft in 2nd count,, both undo:r t ~ , I the Penal Code, oap.16. : .· The 2nd·, 4th, ,5th and 6th apcused wore convicted with tho two offences, and vcre oach sontonced to throe (3) years imprisonment on 1st countg and·to five (5) years imprisonment on 2nd count. They wore also ?rdered to·. compensate the victim of those off'oncos the value of sunclry i terns that wore stolen by the appellants., whoso vn.lue exceeds a million shillil'IB'6 as indicated in the chargoshoct. The sentences wcc ordered to· run conau:rro?tly., The four 1.fPpellants who wc:r-c convicted with the charge_ in ,this cas'o are namely Charles J\llay (2nd accUf.led); Baltazar.:rWilliam (4th accusodh Samwel Maleko (5th accused) and Frank Kau.l:.:::i. ( 6th aocused.). The 1st, 3ro _tmd 7th accused, narae ly Alex Elialdii%,:,a, Frodson :' Scmbua and Awai chi w/ o Kenedy :respc•oti vely wore n.cg,ui ttcd of tho. two offences in the charge. The u.lJJellants have a:::-,::ioalod to. thi '3 court against c:illviction, sentence an.:l. tho order o'f oompensation, Mr. -Jonathan, l~:enod Advocate bt1Scd in Moshi, :::-eprescntod tho four appellautti in this , appeal. Mrs., Lyimo, learned S_tatc Attorrney, appoare<l tor the Re)?Ublic/il.ospondontj and she conceded t,.J tho appcalo

2 . - •• . . On 23.101990 I honrd this appel and ri@J.taway disr.dssod it in its entirety as lacking substance and morito_, -I uphold tl:ie decision of tho trial subordinate court in respect -·of convictiono However, I altered the decision of the.trial court in respect of sentence in 1st count of burglary, where by I first substituted a sentence of five (5) years imprisonment for tho sentnce of three (3) years \ imprisonr:iont that tho trial subordinn.to court had imposed on the I ; . ,; •. . , • .- •• appellants in 1st count which is a scheduled offence, and.the value of the property involved is well over a--ini'llionTilzania shillings. Under tho provisions of action 5 (d) of tho M.So Act, 72 the trl.nimum sentence in 1st count ought to be five years imprisonment. After maldng tho said substitution of sentence in 1st count, I went further and enhanced .that sentence to eight ( 8) years imprisonment for each appellant in order to moot the just :_decision :of _tho case in view of tho serious circumstances involved in the caseo I resel'."Vcd reasons for my decision. However, I pronoced my decision in open court and in 1 tho prosonco of; counsol for the im.rties, and also informed thorn of their right of appeal to tho Court of Appeal. I now give tho reasons ;for my dociaione . . , i. ' Several witnqsses testified at the_ trin.l in tho subordinate court, and for that reas_on the evidence that was recorded by the trial court on l)oth sides is fairly long. Ilowover, tho substance of thtit evidenoo can l)o easily sUT;1Inaris0cl, as the same is not complex, nor is it difficult to compr9hcnd., I will discuss that evidence as I o.onsidcr I tho subm:i.ssions of both cou11sol in this appeal which submissiams, as I have already stated, arc in unison, since tho Republic co1nceded to tho ap:10al., Tho j)rosocution cvidonco on which the decision of tho trial co1.,1Xt was based is briefly tho foELqwingo That Richard s/ o Paul Mrooo (PoW ~ 1) is a public servant stationed in Dar-os-Salaamo ooo/3eoo

n 3 .. . . Ilis homo village is known as Mahango Ma.hida in Rombo Districto P.11.1 has his father, one Paul Viroso (PoW.II), an old ran aged 74 years, who also li vos in Mahinda villagoo Po W o 1 has his housGs iri tho said village which ho has loft in the care of bis father (PoW.II). Also there was a servant or watchTJan which PoWo1 had employed to look after hi~ property mostly sundry building materials as named in tho charge-sheet which P.Uo 1. had kept in his houses in tho villageo PoW .. 1's servant .who·abscondod as soon as hose offences woro committed, and. b.n.s not boon traood and. arrested, is one Asokilc Mwakasobeo This sounds like a Nyakyusa name of which I am far:i.iiiar, having worked amons the Wanyakyusa in tho ropaci ty as a l'ilagistrato for a total nur:il)er of 8 yearso P.,Wo 1 had two houses in the village. Those houses wore not however close to the hone of his father (P.W.,II), al thoum.1 Po 1·7. 1 and his fa thor ( P. Ho II) 1i ved in tho same villa.goo It is for this reason, it would appear, that P.,ll.,1 on-d a servant to sloop in one of those tuo houses which were near to one another and koep watch over tlie sundry building materials and machines bolongin:_ to P.W.1 that woro in one· of those housoso Ono of those two houses was a mud housco Po11 o 1 had built tho second house which ' is built of cenent blocks and is a mordcrn house •. It is in this cenent block house that tho sundry building materials and nachinos that wore stolen had boon kept under lock and key. They wore stolen ;' • . I at night after tho house wns bur5ledo Tho burglary and theft in this case were .conmi ttod on tho night of 27 o 5o 1989. From tho eviclonce on Tecorcl no one was aware of the car.mission of those offonccso Ilowovor sono independent prosecution witnossos testified that they saw a ';royota Stout pick-up Rego Noo~u.11 701 parkod at P.W o 1 1 s ce:r.iont 1)lock house on tho night when tb.ose offences wore conmi ttod. ilso they saw tho same r;1otor vehicle stuck 1n tho mud on tho road in. tho vill8£0 in question on tho material nigh.t, and also they saw two i'.{l'inding mchinos and sundry articles ca.rriod in the sane noter vehicle as tho same was stuck on tho road on tho material night .. • • •' 4o o •

Also, one of thoso witnossos ri@J.t at tho scene of crino Stout pick-up was parked t g g 4 saw and 0 0 O 0 identified tho 5th accused on tho natorial night when the Toyota Polfo1 1 s cooont block house and it was parked in a position usual for loading things that is, tho body or roar siclo of the motor vehicle was facing tho housoo That wi tnoss claimed to havo soon and identified 5th accused by tho light ,fro □ a torch at close range, and that lie knew 5th accusdd ·vary well before that nighto It is Didas Ngowi (PoW.10) who identified 5th accused right at tho scone of crimoo His ovidonco ws bo}.iovod by tho trioJ. court and ho was found to be a erodible witness by the trial mcgistratoo Then thcro is John Joseph (P.W.8) who also saw and identified the 2nd, 4th and 6th accused persons on tho nic;ht in q-qostion when he found tho Toyota pick-up stuck on the nmddy road on tho·night in question near the P.W.1's village. P.W.8 even spoke to 2nd accused who aslrnd. hio (I'.W.8) to assist thorn to push. off tho pick-up from tho nud w1or0 it was tuck. l'oWa8 hacl a torch whid.1 helped hi0 to soc and ir.lont.ify the 2nd, 4th and 6th accused. PaWo8 said ho saw 2nd accv.sod on tl10 stoci'il'l{_; whool, while tho 4th and 6th accused vc!'o pushin,~ tho pick-up. P~W .8 also saw the two .ctlnding □ achines in tho Toyota pick-up. Ile oven dcsoril)od tl1oir colour and that they were now ones by appoaranco. Tho 2nd. ciccusod paid 100/= to PaW.8 for his assistance after the pick-up was pushed off tho mudo P.W.8 said ho was close to 4th accused as they pushed tho_pick-up whoso lights wore ono They spent so □ o good tino·pushing the pick-u:po So 1 PoWo8 had m1plo tine and □ cans of seeing and idontifyin& tho 2nd, 4th and 6th accused., PeW .8 described tho 4th accused that ho wore a coato l1o1T.8 noted the rogistrrition nunbors of tho Toyota pick-up being AUL 701, bluish in colour,, in.10 4th and 6th accused boarded that :Jick-up and drove off with'thc 2nd. accused e.ftcr tho pick-up was pushed fror;i the muclo Tho evidence of r.H .8 was believed l)y the trial court ancl PoW.8 was found to boa truthful witness and,also an indcpondont witnosso

. , Tl:cn there arc other prosecution wi tncsscs narJ.oly Janu,,-,,ry Kir.nro (P.ll.3) and Theresia Gas1nr (P.U.5) wh~ spoc of the conspiracy a□ ong the 6th accused and P.U.1's watchDan to steal and sell P.W.1's grindin3 r.1achincs that woro in his co □ ont block house., Firstly P.1:T .5 sa-i.,- 6th accused in tho 001:ipany of 7th accused nnd f .U., 1' s wat.clman at c'.1 :po6'Jo s:.1op on 25.5.19G9who:ro I'.W.5 hoard r.w .1 's scrit asking -tho 6th accused about their arrangor.1ont or scl10me of selling tho e:rindin,3' o.achino. The 6th accused replied that 110 was still looking . 1or D-.1:)Uyoro Thon ·on tho followine day on 26.5.1989 P.U.3 mot 6th accv.sod in_ tho corapa,ny of LWoJ '·s servant and 7th accused at ,Mwilm prii:1ary court whore the .6th accused asked r.w.3 to look for ··a person that would purchase a e;rindii1& nachino fron hi □ ( 6th accused). Also ·thero arc· othor t{ro prosecution wi tnossos 1 nanoly _Qle □ oncq Daltholor.100 (y.u.2) a.nd Kalist s/o Makihuni (P.H.4)who tostifiod._tlm~ -· .,. on tho mtorial .night they foundj saw and iclontifiod tho notor vqhiclo with r03istration number, /.J.1L 701 parked 'at tho cer.ient block house of r .1-l. 1. Thay saw and identified it at close _ranBC with the, aid of li&,1t froD a to;r-ch. These wi tnossosj like tho other wi tnossos namely P .U .[l and I1. W. 1 o, identified tho said r:iotor vohi clo when the. sane was proc1ucod in co1..1rt during tho proceedings iri this rose.· Those two last mentioned prosecution witnesses aro independent witnesses whoo tho trial cou:rt found to bo credible witnossoso F.W.4 saw tho Grinding nachinos loadocl in the Toyota· pi ck-up while .it was parked at P. W. 1 1 s house on the natorial night., Then thoro is another ncxuso It is this that when tho houses of tho apl)ellants were searched the appellants were found in posse- ssion of sane of tho building materials that were stolon fron_I'.,U.1's house. For oxa□ple tho 4th accused was founcl in l)Ossession o:f pieces of plywoocl which ho had hic:clon in tlic house of another porso.n 1 evidently to prevent discovery of thof't asinst ·11in. Tho 4th ac?USOO. t:riod to clefcnd l.linself that ho bought thos0 pieces of plywood and prod.ucocl a receipt c:x:hi bit 1)3., It is established. that the said roc~;pt was false as tho 4th accused did not toll.tha·arresting offoccrs that ho had a r0coi:9t and neither did he produce if upon aITest. • •• / 6. 0 0

/ H0 procluccd it in court after ho was .rcl_oascd on bail upon arrest. 1/Iorcovcr, tho said receipt is in respect o_f harboards not plywoocl Tho 5th accused was found in possession of one tin of paint which P oH .1 idontif'i'od with a spopial nark X at tb.o base. That tin of' \ paint was found hidden in 5th accused's shaob.a near his housoo Tho paint had boon poured out fro □ that tin on tho saoo day when 5th accused ts house was senxchod. This was done to conceal evidence ancl l):Ccvcnt detection of thoso crioos aainst hino Tho 5th accusecl hopelessly defended that the shamba in which tho tin of paint was found belonged to his f'athor not to him, and that that tin was discovo:rocl in tho shaoba in the presence of his wife and in his absence This dofonco is of no weight becaus0 5th accused's wif'o pointed. and lod tho searchers to 5th accusxl I s shaobao It is established. that,tho sha □ bn in which the tin of paint was found bclonc;s to 5th accused not ,to his f'athcro If that shaoba belonged to his father tho 5th accused would certainly have called his father or his wif'o to say so, at tho trialo Tho defence of alibi which was raised by D.W.5 in rospoct of tho 5th accused was irrelevant as tho accused hiosolf did not raiso it in his diffonco at the trial. Tho 6th accused was found in possession of an iron bar -of tho .sane description and spocif'ic nark X as those which w0ro stolon fron r o 1-i s 1. This was cliscovorocl upon search in 6th accused I s shaobao 6th accused dofonded that soooono unlmown planted it thoro. This dofonco in tho light of tho other evidence already discussed is untonn,blo and also incrodibloo .Although tho'2nd accused was not found in possession of any of tho stolon i terns, yot. tho cdonco which links hin with th0 offences in this . caso is '•cogent aid truthful. Tho 2nd accused has aclDi ttocl that 11· 'is ·tho fu-i ver of the !Jo.tor vohiclo in question. Ile wns soon by Polr.O driving tho saic1 motor vehicle on 27 .. 5.1989 at nij1t in I'oWo1 1 s villa,?;Oo That oo-tor vehicle was also seen on tho so.r.10 night by sovoral independent J.)rosocution witnossos, first at r.n .. 1ts house with .:_ncling nachinos on it, and lator on th0 same nij1t ?oW8 saw the sane notor vehicle stuck on the road • o o/ 7 o o •

' ,,., .... .. . . 1 . . ., • . with tho sane crincling r.acllines on it,: and ho (I' o1i .8) helped to push it fron tho nud where it was stuck. 11.11 tho_se pieces of ovidenco 0,ro so well linked that tl10ro, was no need for holding an iclontificc1,tion parade to ic.lcntify tho ap1Jellants. Mr. Jomthan sub □ i t_tod ·that tho prosecution evidence ":l.s fabricated. Ile queried why the apj_Jollants wore arrested nany days after those offences were comJi ttod when r.10st of the accused resided in tho sane villac;c with :r;H.IL, 1 .rho offoricos were concittod.on 270501989 and thoappollants were arrested on 20.6.1989. J:..lso Mr. Jonathan argued that :r.w.3 and fntl+or (LU. II) aq_out tho . . . . r. W. 5 said thn t they infor11ocl r. 1T. 1 1 s . ··t conSi)iracy to cor.mi t those offences .. Why_ did not ?o ir., II say so in his evidence?, To no I do not·\ find any; woir;J.1t in tho.so queries. Tho doly in tho arras of tli6 ·culprits in this case is understood and is explicable. Tho culprits wciro not arrested on tho spot. They oxooj_)od with tho loot. 1~. ll. 1 1 s father, an old nan of 7 4 years, had to travel to distant police stations to nako a ropor~ of those offences. This is so, it would a1,:poar, :tocauso Ilor.1bo is a ·District at the l)ord.or with Konye.. so that it is more oftori q_ui to difficult to arrest culprits unless tho police at various·· points near. tho borclor arc_ alerted irt tine in order i~ itorcei)t. ·such culi:)X'i ts before they ex:i;Jort tho loot_ to tho neighbouri115 country or them- selves cross over thereto. Tho-oldmn was.ooro coricornod with tho f recovery of the stolon goods rather than with tho arrest of tho ... i suspocts whoso nanes Md ic.:onti ty have b~~m doscribccl to hin, at- loast sono of thqn. I'.U. II had to· 'go to Ili □ o police stc:i.tion, · to Men-3Wo ancl Mk:uu, police stutiops -to 1:1ako tho rol"?ort. It is not ostn.)lishod hoy lone; it tQok_ hin to discharge these orrru.ds., Then after ha\ri1?t:; nacle tho ropo:.- to policJ he had to sqnd for his son (I'" 1/., 1 ) fron - Dar-es..:.Saln.ao to cono and nake a fo:Uow-u.p . ·l:. . of tho Da ttor., :P. W., 1 boi:n,rr a pa.bli o servn.nt toolc sor.10-tino to . u . . ~ cone to TI.onbq_aftor t_sot-tine th:) report of those offoncos. This is evident bocauso ho could not loavo his office abruptly i. , without loavo fr~ra his senio:;:> authori tioEJo All these procedures I • . account for tho. cl.clay tn tho arrest of tho appellants., ' •• • /FJ. "0

lVf:r. Jone.than ulso queried why tho prosecution ti"tn0ss0s co[ci ttod to oooory tho rot}i.stration nur.ibors of tho .notor vehicle in this cnsoo Ile arguocl tlmt this is oviclonco of a cooko caso. I do not find 1.1nythin5 strnn,30 that the prosecution witnesses who saw this ootor vohiclb at·· m.e,nt parked at' tho house of ? o W .. 1 romomborod its ro9str2..tion numbc:rso Al thou@1 tμoso wi tnosses llk1.3r riot hnvo· :suspoctod any foul play at that timo with thq,t motor :v:ohiclo 1 . \ ;:. . yet as vi[;ilant, prticlent C1,ncl patriotic ·ci tizons they wero. _onti tlecl to commit to memory tho re[sistration numbers of tb.at Dotor vehicle sinply f'or precautionary r::ioasUJ.os.. imythine foul could have transpired in connection with that □ otor vohiclo, as info.ct it la tor turned out. Mr. Jonnthan should know that these day's in this country every citizen is secll7'ity consciouso ·-MI-. Jonathan attacked tho idontifipation by?.,Wo1 of'tho itor.1S that wore found in possession of the 4th, 5th and 6th accusocl by tho X Dark •. Mr. Jonathan arocl that :P.1-l. 1 did not nontion tho said rn.rk to tho poli co and to r .. U o 12 an0- T. -lo 13 on tho clay when those accused wore soaichod and founcl in possession of' those i tons. Mr .. Jon2.thrm contonclocl thcit tho X- r,.,ark wn,s riot on those i tons when tho appellants wore found in possession of t10s0 · i taos on tho clay they wore soarchocl. That mrk was effected on tlloso items. after those exhibits wore found and seized fro □ tho appollant'3a This araunont is nn afterthought bocauso tho appellants clicl not raise it at tho trin.lo None of tho np:polli:mts ,d.1i:i..llcn(J)cl, -o::.)posoJ or disputed tho so.id X !'.11,rk snying tlm t it 1-ms not there· ivhon t:w snicl i toos wore found upon 13oarcha Nono of tho r@sp66ti vo• 11:ppollnnts claioocl to J.mvo offoctQd hiosolf · tho said X mrk on tho i torn. that wore found in l)Ossossion of tho apl)ollantsa Tho a:;)polln.nts sinply oi thor DOI'?lY clainod. .. o1Jl).orship of those i tons.· or Doroly disowned th9.9.; · .. Moreover;· thoro .i no oviclonco tb:~t tho )olico in whoso cust0cly those i torJs ro □ainod afteit they wore fovncl in tho ap)ollnnts' possossion and soizod colluded wij1 I·aHo1 ' . . '; ancl offoct0d tho X D.ark on thaso i torn thoroaftoro Yir. Joitn.than wishes to inpross upon· thiR court on appeal that 2.11 tho IJ:tosocution

. . . . I . wi tnossos incl udinc; tho l)oli co woro bouj.1 t up by r. W. 1 in order to. falsely inplicato 'tho ai:Ypollants in this chart30. nut there is no ostublishod ovidonco to show that nll tho prosecution i'fitnossos arc of a weak noral fibre to easily succlli:lb to financial.--lucro and luro. It will l)o qui to dangerous 2,nd prejudicial for this· court on appeal to act on such unfounded im,31natioli or sus.picion·. I\l[r. J°onathan drove) furtho:i: his arguoont on tho X-- oark on the itc1JS that wore stolon froDI'.lT.1 1 s house and sooo of·whicll woro founcl in possession' :of tho ap1)01lo.nt13 in this case. Ile argued that it is incrodiblo th:at r.W.1 would offoct an X mrk on ai'l tho nuoorous buildin 6 r.1c1terial that were in his house. Y.u-. Jonathan has forgotten the tiDo honoured saying that, "whore there-is a ,-11.11 there is a way''. A prudent nan always acts with caution arid procaut!on. -I find nothing iopossi l)lo for :ri. W'. 1 to havo effected tlio ·X oa.rk on all the _nunorous i tor.1S in his house.· Ile couid have done so over a span of Ur.'.l.O and at leisure, as it is not sai_cl that those· thing"S wore ·stolon soon as or a few days after ho ·lJOU@-"..t tho □• From th; cash l'Ocoipts which r. T. 1 tonclorod in · court in s1..j_jport of purchase of t:1oso i tons, ·-it • • •. I is ostablishod. that ho bou3h-t-thos0 items beginning fr® 1985 to 1989. Ile was buying thoi:1 1Ji t by bi to In this period why coi.ald P ~W. 1 fail to effect tho x· oark on all his itoos as ho wanted? • . r. ,- Tho tria;l magistrate ubjocted the whole cvidonco that was adduced .in this case to a ).ho:rough and ·ooticulous evaluation and assossoont. Ile carefully «x:aninod tho sorios •.)f events in this case whic!.1 for □ n co:'.:terent 1exus or chain inpJ.-.Lcating the :(our appellants in this caseo· ~~:.0 trial mg.i.strat0 observed :tihe d<:mea,- nour of tho wi tnetises -.who .tmtified before - hin in this ca.so, including tho deoeanour e,f the accused/ uppel12,,ts arid ·1;4n;t; of the wi tnossos who tostifiocl fo:r: tho dofcncoo IIo wnE1 ir1pressod by tho :prosecution ·wi tnossos as t:thful ·wi tnossos. Tho trial □ agistrate is tho l)ost judge on dor.10μ1our. This court on c:)poal cannot fault tho trial no.gistr&to's fin ling on· deooanour, unloss good cause exists for so doing which cause is lacking in th:·. s case. •·• ./ 1 Oo o.

.. • 0 10 . . .. There was no grudge o 9 ta1Jlishod between tho appellants and arry of tho prosecution wi tnosos which could have given rise to false tcstinony by any o:i: tho prosecution witness0s. Tho protestations that wore raised by tho ai:::pollants both :t tho trial and .on appeal by their counsel uro tho kicks of a dying horse or a drowning person. Tho whole cl.1,,,1.rgo was pravocl on tho appellants beyond reasonable doubt. Lastly, there ·was tho issue whether this case was one fit for conviction on ·-the offences actually chargqd on recent possession .. . princi:plo 1 or for merely recoi ving. stolen property? o I have crirofully coniidereci tho prosocutlon ovidoncc in this casoo ' · .. i I a;.1 of tho considered view that tho established sori0s of events iCTplicati tho appellants with tc chargo entitled tho trial court to convict tho appellants with tno aotual com.ussion of tho off once of burglary and theft as chargodo , Tho circULlS tanco~ . of cor:u:ti.ssion of thos0 offences' and tho naturo of tho i tons stolon I . do not afford an oac'c ·transfer of those i tons fron tho actual thieves · persono •, to another LTho cloctrno of rocont possession clearly applied on tho apj_)ollants in tls·:_ charge. In tho final analysis, this ap}.)Ga.1 is dc-roid of neri t and sul)stanco and tho sane was £.il.cd horo without a. roasonnblo ground of cor:1plainto It is on tho forcgoin_:s reasons that I disu:i.ssod this appeal in toto soon after hoarire it on 230 1 Oo 1:9900 I :also onhancod tho sontonoo on each apolln.nt in 1st count of bt.u;-glary to cght (8) yoars for tho reasons whi cb. I have heroin gi vo1~ .. .,.....---..,. Ak MoDo lfohalla, JUDGE .. 29.,10.1990 ·',