19800508 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZ1UTIA AT DAR ES SALAAM APPELLLTE JURISDICTION HIGH COURT CRThIINAL APPEAL NO, 153 OF 1979 ORIGINAL CRIMINAL CASE NO. 789 OP 1978 OF THE, DISTRICT COURT OP DkR ES SALAA1'I DISTRICT AT KISUTU BEFORE K.A. KASSIM, Esq., SENIOR MAGISTRATE BERNARD LUCAS L PAIA .... ...,. Appellant versus TED REPtTBLIC . . . . . . . . . . • • • • • • .. . .. ...... ,. Re.spondent CHA.RGE 1st count: Crimmnal trspass c/s 299 (a) of the Penal Code. 2nd count: Mdlicious daniage to property c/s 326 of the Penal Code. 3rd count: Attempted stealing c/s 265 and 380 of- the Penal Code. JUDGEIYLENT MNZAVAS, J.K. - In this appeal the accused was charged with three counts of Criminal Trespass, Malicious damage to property and attempted stealing c/as 299 (a), 326, 265 and 380 respectively. He was acquitted on the count of Malicious damage to property but convicted of Criminal Trespass and attempted Stealing and sentenced to six months. for the offence of Criminal Trespass and 30 months imprisonment in respect of the charge of attempted theft. The sentences were made to run concurrently. He is appealing against both the convictions and the sentences imposed. Before this court in which the appellant appeared in person the appellant argued that the lower court erred in accepting the prosecution case as truthful and rejecting his defence that he did not commit the offences he is alleged to have committed. In rebuttal the learned state attorney argued that thcxe a ample evidence in the lower court in support of convictions. In support of his argument the learned counsel referred the court to the .../2 : 2 : evidence of the security officer, (pw.i). It was the learned counsel's submission that on the evidence the accused should have also been convicted on the second count of malicious damage to to property. With respect to the learned state attorney I agree that there was sufficient factual evidence implicating the accused with all the offences charged. There was the evidence of the port security officer, (PW.l), to the effect that he saw and arrested the accused as he was cutting a piece of wire which was tied round a wooden box containing clothes worth about shs.5,000/=. It was also the security officer's • testimony that after he had apprehended the appellant, the appellant pleaded with him for a pardon saying that he was married with one child. In his defence the accused argued that he was arrested as he was taking a short-cut to a tape. It was also his defence that the port security officer had deliberately told lies against him. He has repeated that defence before this court. The finding of the lower court was wholly based on the credibility of the witnesses. In his assessment of the evidence of the security officer and the defence of the accused, the learned trial magistrate was of the view that the testimony of the security officer was a true account of what happened and rejected accused's defence as bogus. I see no good reason to differ with the lower courts finding, based as it is, on the credibility of the witnesses. Indeed on the evidence the appellant was lucky that he was acquitted on the charge of malicious damage to property. As for the sentences imposed, the learned magistrate directed himself that in imposing the sentences he did, he took into account that offences of stealing are rampant in the Dar es Salaam port. This court will only interfere in a matter of sentence imposed by the lower court if it is found that the sentence is so manifestly excessive or so manifestly made- quate as to call for reduction - Or where it is found that the sentence imposed is contrary to the law. In the event I agree with the Republic argument that this appeal should be dismissed in its entirely and I so order. _____L&-_. N. S. IV1NZAVS, DAB ES SALMIVI JAJI KIONGO 8.5.1980