19800701 TZHC Tanga

IN THE HIGH COURT OP TANZANIA ' 1 4 • (In the District Registry) - AT TAN GA .• 1&PPEIJLILTE JURISDICTION Crjinal Appeal No 42/78 (Original Criminal Case No 68/78

OF THE DISTRICT COURT OP TANGA DISTRICT

AT TAN GA AILIMWAMMU,......,.,..AppEILANT vI . . S • I S•SSSSS I I • I • RESPONDRNT U D G EM E N T: Sisya If there has ever been an appeal that wasted this Honoumble Courtts most valuable t1me then this is it, The appellant, ALLY s/o MWALIMU, a fifty year old Msegeju (tribesman) and coxswa.inat the Tanga Port e residing along the Thirteenth Street in the Ngamianj area of the Municipality of Tanga pleaded not guilty to two counts charging him with being in possession of property suspected to have been stolen or unlavful1y obtained or acquired contrary to section 312 (i) (a) of the Penal Code as amended by section 5 of Act No 26 of 1971 and Corrupt transaction " contrary to Section 3 of the Prevention of Corruption Act s no 16 of 1971w respectively, After a full trial the learned trial magistrate found that the Prosecution evidence on the second or Corruption count .s contradictory and he therefore gave the appellantthe benefit of doubt and eonsequently acquitted him on that count. He i.e, the learned trial magistrate, however found the charge fully established on Count one and he 1 accordingly, convicted the appellant on that count and sentenced him to pay a fine of she 800/.or, in default of payment thereof, to go to jail for three months., He paid the fine albeit after being given seven days in which to do so, He is now appealing. Two Police Constables, DOMINIOUS and ABAJILE,

PWX and PW2 respectively, and a PeopleTs militiaman; LUBADANJA WAZANUUND'A(PW3), all of whom are attached to the Tanga Port testified to the effect that during the morning hours of 4/2./78 they were positioned at the old gate to the Port area, 2 V Their duties included searehing all those who :Left the Port area • At about 1100 a,m the appellant arrived at the said old gate on his way out • He wore a pair of long trousers and a safari type of shirt which he left loose; that is to say he did not tuck in the lower portion thereof into his trousers. Lubadrnja (pW3) "searched" the pockets of the appellantts clothes by as it were merely feeling them.Upon finding nothing of interest or suspicious in them he let the appellant-pass. As he did so unkown to him and P%V3 1 o. bulge on his, ie. appellantts, person attracted the sharp eyes of 2W! and 2W2 who, throughout the material time 1 were standing nearby 1 and they became suspicious. They, therefore,.ordered the appellant, who had hardly by then walked ten paces, back. They then decided to '. •3nduct a more thorough search of the appellant's person. Thereafter PWI took the appellant into a nearby hut designed - for that purpose and told him to unfasten his pair of long trousers. - Meanwhile 2W2 moved ever to one of the said hutts windowa and oberved the proceedings from there. Under the appe1lants trousers and wmpped around hs valet

PVfI found and recovered the;efrom a blue long sleeved.T.Zhirt. When asked about the said TShirt which, incidentally, was tendered at the trial asan exhibit, - Exh P "A' 1 the appellant showd a contrite spirit, Thereafter 1 he 1 appellant, produced a shs 10/— currency note, Eth P "B", and offered it to 2W! as 'Jhai" and with a request that he should le - him free to proceed on his way. 2W! refused to receive the money. • The appellant insisted with his offer whereupon PIVI, eventually • took the money in the fuJl view of pW2 and subsequently charged the appellant accordingly. The appellant made an extra judicial statement to the Resident Magistrate, one Mr WALLACE KJ.PAYA (pW5), then.stationed here at Tanga, in his capacity as Justice of the Peace. In the said statement which was tendered and admitted in evidence at the trial, Exh "C" the appellant stated that at the material time a Police officer took him into a hut and searched him. He • found on him an old vest which was in the left hand side pocket of his shirt. The said askari then told him that he was taking him to the Police station. At that stage he, appellant, put his hand in his pocket With a view to taking out his bicycle key. His intentin was to give it to the said askari and ask him to lock up his bicycle which was then parked outside the hut. In the same pocket he appellant, had a total amount of ss 260/—i The ShS

6CV- comprised a she 20/— currency note and eli 10/— currency notes. As be took out the key the money joo fell on the floor. He picked it all up except a single she 10/— currency note which he did not then see s The askari who saw it picked it up. - I • 13 On noticing this the appellant demazdd.it from him but the askari refused to surrender.it, adding that he appellant s had offered it to him as a bribe. The appellant reiterated what he had stated in Exh tOt in his statement in defence, except that at the trial the appellant referred to the offending object in Count one as a T-Shirt and no longer as a vest and this time he.said that it was in the right hand side pocket of 'iis safari shirt The appellant added that he was using the said T-shirt for cleaning or wiping the motor boat engine of. grease, oil and diesel stains and he simply forgot it in his pocket when he left In considering the second Count or the Corruption charge the learned trial magistrate appears to have been greatly influenced by contradictions in the evidence of PWI and PW2 on the minute details of the search on the appellant's person in the hut. The learned magistrate also directed himself in the following tenns and I quote from his judgement: The accused in his defence explained how that note came to be in the bands of PWI. The explanation he made in Court happened to be exactly the same as that he made in

his confession statement (Sic) before the Justice of the peace (pW5) just about hr after he had been arrested That it is highr improbable that he would have made a bogus stoxy and in the absence. of any other evidence to discredit accusede story I am inclined to believe him. That the shs io/- note was among the shs 26CV- Which he had on him and which fell out of his pocket when he took out a bicycle key from the sarnepocket. That is more likely if he had an intention of offering a' bribe he would have given a bigger amount and not a mere sh lO/" As aforesaid the appellant was acquitted on that count. Since the Republic has not appealed against the said acquittal I opt to save my breath and y consequently, ref rain from making any further consideration and comments on that Count. On the other hand s on the first. Count the learned trial magistrate accepted the evidence of PWI and PW2. He rejected a proposition by the defence that Exh P NA" was a vaueless piece of material and, taking into acoDunc the way the T-shirt was concealed on his person s the learned trial magistrate was satisfied that it must either have been stolen or otherwise unlaully obtained. The appellant's potitionof appeal, homemade as it is,i not only confusing but iS in itself, also confused. To demon-. strate Paragraph I reads and I quote-: V I / —4-. That the trial magistrate erred technically allowing

VPW3 to give evidence as the first prosecution wiaess as his testimony should have been taken after PWE and PW2 in corroboration of their respective testimonies.t To rxiy knowledge, there is no requirement, techinical or otherwise, wherby a Judge or a Magistrate is supposed to follow a laid down or established pattern or formula when taking or hearing the evidence of witnesses for the prosecution s or even for the defence for that matter. At any rate it is a blue lie on the part of the appellant to state that PW3 was allowed to give evidéncQ as the first proseution witness.' By desiiation 11P'W3" stands for Prosecution .winess number three which, by necessaxy implication, means. that the person concerned was third, and not any other number. bef ore or after, to give evidence on the side of the Prose—. cution If the appellant's quarrel, as it appears from paragraph I quoted above is that PW3 should have given evidence after PVfI V and PW2 then as can clearly be.seen from the record of proceedings, this is exnctly what. took place. The first ground is thus without any substance and it, accordingly, therefore fails. The second reason for appeal reads: 1t2' That the trial magistrate erred. in failing to give doubt to the testimony of :PWI who stated that while at the gate • with PW2 and NO they discovered a blue shirt on the appellant after they searched him at the same time PWI

had stated that nothing was found on him after the appellant was searched by PW3" Again, it is not clear to me what the appellant's complaint really is. There nothing to give rise to any doubt as regards V the evidence Of.PL on the outcome of the search. Indeed.the evidence of PWI, PW2 and pW3 shows that the search. by PV13, which as admitted by P3 himself, was superficially done, did not yield any positive results.' The important point to note is that even PW3 himself stated in his evidence that h eonly searched the appellant's pockets. He did noij as it were 7 go deep to the person V of the appellant on which the T—shirt was concealed and 1 subsequently, found and recovered by M. What doubt is there then for any reasonable man let alone a Court of law to entertain, on this aspect of the. case? Clearly, the answer is in the .nogatiè' The third ground of appeal reads:- '3 That the trial magistrate erred in believing PWI since he was the second person to give evidence such evidence had not been corroborated by any other witness of the prosecution'." 9/• ' • *aT q v pu uq- saapun oso et.q ;o seoU4sUtflo1To 8t4 UT 'c çqTtpca e jo -[7socIsTp et 'OOT.Xd v petoe; put q.epui t q.g qt pm uo pq.onv oqucI Lq So posoctsTp ueeq eotrçs evt[ qç t.xeTo znoo e Vq pa IoUT ueeq tqTIex eAUq I asutoaq sç STTl IaSLt 11Y11d; Tza,qv wproot o CTtrnIoddo 911 q. pt ou a.tq I PT.Iet 3t 1 PtITUI sjq= Tl

eddu etp, rç OUOP aAt qsnlU quqA& DuTTTE4 sq.T trr pnoE £xeA sç ST !iT flOT orT.ZetTS sTt cTi:sTtt pUflOI3 pU Xetqo et. UO £poq s j !~tm j jqddv aTq. puu Putti S)Ott U0 saasnoa uo-c30 a -P L-c-r- qxjq.ptz rçte ç.xps atq ueaM.eq pe2eoU0O frnp SM0t9 txodn pvpv prn Pq !~ dqoou 'aTA Rm trç ft aadoad ptit Toax.Ioo açrTj 2ui peUJIaEet tOTttM aoUapAe at ot; at wpuap UTS ST Ot aSJTLOO JO 'tflO 1 .TV rEesUITtt ost rtq vwq puoT et. ptm s.Io.C[to sTtj 2 uTTn0 TPTa STUO 0U ST 'Ttt oq. UM0ttZfl SdItIad 'rnitedcIu etq. Ova SS9TOUP3A V n Visa tC UTTTVO SE V tOTtS SV& li vit a tp Vtfl. pUV soaçqo perrçs ]O IGtqO pUV OAOS UT V.1Vd 6 e1o0Tq ST't 2 UTXMGIO .10; mçt t.TM OUIOT ti at tloTtlM SVX POTTOS JO uo -çssessod UT eq 0. £TaITT ST atl 194.T.1P q oq .IO.OW V SV 'SUTt. .19to ., UOULV aSflVoeq sseoons Jo S90tittO pO0 SVtT TddV 8tq, qu-qq. UOTUTdO STtt sessa.xdxe ieddt ot. iodth JO ptmO.I t[;ç; et. U 'uoTV.1epTsuO0 10 .XflJ Atr notqp.t qino; et. SSTULSTP I SpUflO.1 aa.it .xetO at. e3fç- f1OS UI urçt ese.Ipurt .OU PTP OH :os SV'A sT.qq, Jt1tA SULIOq. riotm ou u-c peVdX0 OStV l Q clt H TflSet aAfl.TSOCt OU tIOrTM S'tTJ q.UUTTeddu etjq. Ot(O1VOS oTyA uosjed at4 s& et quqq. poççqse, ot& a q.T !1OVJ T° UI UTtt UO UTtOU puno; pUV kitrclledthj 'a'T 6UT7q 0tO.1V9S Seqq. VM4 eoUapçAo G Ttl UT peqs Oqm TA& SVM q-T qvt. s..za&t u-c quxfleddV et 'otdvrcxa .xoj - * p v qTj .10 pwçui S4tIV8dCIV atq. UT

peptznoq 9AX1t '.qnOpOu snUi tIoTtPLN UOTS11UO0 ;o suOqseyçuVtu flOt.T q.Ou s T ooq. puYtO1 t1flOJ sTt tTo1Vas .s.1T; etq. ;o ODI0Ofl0 0t UO 4 UT0T'tU0O SV SeqçJOSap 'UVtT8ddV 4 97q -qo T-qm çg puv aMa 'T JO saUOrfl.s0!. at(q. 5 -cpa13STp oq. tXTTTV; qUO1M s& eqt.xq.S2Vu1 1VT.x. pOtLXVal a Jta1xrVu l omo, .iaqttrn.0 ptmoJ UT pp OT. tOt 011951 aurVs at. O UISTal ST qtzVad(IV at 1110; laqurnu punoa2 UI 5T1v; 0.1Oa10t. punoaD 9TT çj PUV JO q 1VTTtOT1Vd Vç.Xaq.VuZ UT pe.vJ0q0.U00 SVM i&aO OOUOPTAO at. PIP q.T JI UO$ UVTtaddV et ULIOJUT UV aqq ~ ang op pTnotA I8OT.OV1d .10 MVI JO Je4VUI V 9? uoq.?.1oqo.1.x0o Rxlu e.XTflTjeJ qou seop IM JO OOUOpTAO atq. ptrnoz sctti Jo UO..IOd pu000s atfl. sp.1Ve1 Sy 'i-S.ITJ Ot. SV& atl UOTttI —2leap AIa.& STT. £ OOUepTAa OK!2 oq. uOs.1od ptiooas a-qq. qou s& Iga eantoaq snOIttoIpIl 4tUeVd 5pU1109 p un=2 STtI JO U0fl..Zat OsaTJ ett 13 'i I Judgement in the Curt below was delivered almost two years ago. Accumulation of exhibits wmecessarily is something to be deprecated. At any rate I am satisfied on the evidenion record s that Exh? "A" was not e as appellant would like us to believe, a valueless rag. The appellant did not give any explanation as to how he came by the possession of Exh P "A" and by his conduct, that is by bidIng Exh P "A" as he did the learned txial magistrate was perfectly entitled to infer that he 1 appellant either stole Exh P "A" or unlawfully obtained or acquired the same..The conviction is thus jutified and supportsd by the evidence. Turning to sentence the same cannot 1 under any stretch 1 be oonsidered to be manifestly excessive . In the final result this appeal falls and it is dismissed in its entirety. Delivered in open Court at Tange this 1st day of ju1y, 1980. (i-r. ED ,Sisya) Judge