William Tayai vs Republic (Criminal Appeal No. 58 of 1988) [1990] TZHC 590 (24 October 1990)

IN THE HIGH COURT OF TANZANIA AT A.RUSHA. CRIMINAL APPEAL NO~ 58 OF 1988 • ~ , I (Original Resident M~·gistra:e•s court Arusha Criminal Case No. 14 of-1988 - BEFORE: s. J. AWASI, Esq.,.Resident Magistrate) WILLIAM TAYAI • o o •• o o o •••• o . ._ ••• o ... o •.• • - • .- .. .i\PPELLA.NT . . ; (O~~cj"ina.l A~·cused) ' .. t . versus THE REPUBLit. ■ p ■ ooooo ■ ooo.ooo ■ ooooooooooRESPONDENT (Oiginal Prosecutor) ---·-. ·----------------------- JUDGIVJENT MROSO 1 __ f. _The appellant and four others were prosecuted for s-4:ore breaking ·and stealing contrary to sections 296 (l) and 265 of th.e Penal Code. He a·nd t,wo others were convicted as charged~ The remaining two were acquitted. He was -:Sentenced to fiv:e- yea.r;s impriontnent. Aggrieved by the conviction and sentence he hoo appealed to th.is court. The appellant was one ot' the watchmen on guard·duty at the Alfi Factory in hrUsha on 31/12/1987 •. Two days lter,_on 2/l/88·it was discovered that a breaking into a store had been . . don~ through the roof and 24.cartons of dental cream valued at shillings 360,000/= had been stoleno The appellan-t and one of . . his co-watchmen for the night of 31/12/87 were arrested on suspicion.- Two of them however, Noel Endulai and ·one Richard Magigc w2r~ nc:ver arre_sted and were. a~ large up to the time the cas0 t-.ius 1::>eing tnied in the subordinate court. ThG invstigating officer, one Station Se.r.9eat Loki .w.3 told the trial court that when he areste~. the original second .:accused in the ·case, one Lazaro Les:i/nili, he was informed by him tho.t the other guards, presumably including the appellant, "had somdthing to cio behi,nd the factory". He ( 2nd accused) . . . ,. had been promised a share "after the pr.oprty was sold 11 • · of the watchmen who was at large shillings 3000/=. R~chard Magige gave him That second •••.••• /2 One

.. - ••• ·• •·1 2 . . : .. : ..... · ,. •' Tht second accused when •giving his defence did not repeat the 'story·he had ··allegeliy given to Sergeant Loki. Indeed, al though the- Stbry >Jhich' he -as ·lleged· to have' given to Sgt. Loki,· i1 true, would have made him at least an accessory to the: breakitig• ·and theft. from store, yet he was declared innocent by the trial court .and was. acqi."··.!:ted. Up' ·to th.::· close of the proseqution case, the only evidence agains: the appe:)ant was that he had been on guard duty on the night of the breaking and stealing fr.om the st.re and the oblique reference to him in the.retracted and uncorroborated sta·tement .. of the od.ginal second aqcused to Sgto Loki. -There was absolutely ·ho other. evidence which tended to implicate him with thi offence· with which he was charge.;:,- Clearly the '',proSE;CUtion had not e·stabiished a P.!.~~ fac,ie case against himo Thcrefo·r, in terms o'f secti•on 230 of the Criminal .Procedure Act, 1935 thE/ trial court' ·shoulg have· dismi~~ed the charge . a'gain::d: him· and acquitted him, ·as there was no case for him to :- : answer • That requirement to· acquit h:..:-: is mandatory and ..... ,:_ Mr., Lobulu, learned counsel for the ap,pellat, cited several ;;as'dr.3; t·1hich I need _ not cite here,_ in support of that proposition. The triul court had to wait foi; the appellant's d.efence ' ' to fintl ":fa.ult with hi.mo The appellant had said in his defence thct h2 could not report on duty after 1/1/88 because he had gon2 to KoCoMoCo hospital t'o see his wife who was. admitted the're.;. Ho was unable to produce documentary evidence to that effecte Th12 trial court called that defence by the appellant "a funny story" and proceeded to conclude that the appellant must hc.1vc petrticipated in the commission of the offenceo '., ·. · ·. · The · trial court may have disbelieved the appellai'lt 's defence but that is no ground for concluding that he was guilty of thu offence chargedo That was tantamount to saying that the a.ppc::llnnt had to prove. that he did not commit the offenceo But thn{: is no.t part of our law o The accused has n@ onus to prove himself innocento The burden is· always on the wrosecutioa. to prove the guilt of_ an accused person .beyond a reasonable doubt. If it fails •• oo•••/3

3 If it f?ils. to do that the court m1.l'.>; acquit the ac<;use~. Mr. Mwidunda, learned State Attorney for the respondent Republic, rightly did not st 1 ppo!::t the con.victi·on.. The case against the appellant was so weak no reasonable court of iaw should have convicted h:i.mo It wcs fo::.- those reasons as I have attempted to give that I al~ .. '"'•·· · the ,eppl:.'.··:'. !:'ight away when I heard it two days ago .. At Arusha: 24/10/90. Mr. Lobulu for Appellant~ Mr. Mwaimu for Respondent • . . ,JUDGE