19831206 TZCA Dar es Salaam

. . IN THE COURT OF APPEAL OF TANZANIA ... ,.... ,_ .~1 . ~ AT M':JANZA ~·~ ( CORAf1•:"·· •~ALI_,c,,J~.__M_u_s_··_T_A_F_A..:.,_J___._A_._·_A_··1_-i.;;.D_ .. _K_I_S_A_N_G_A...;,:..·_J_.A_. ,.. .. CRIMINAL APPEAL NO. 2 OF 19 82 BETHEEN ALLY s/ o NDYAIU!3O • APPf..:'LLANT . • • • • .,. . ·• ,- A N D THE REPlJ BLIC 000000 0 0• 0 0 C O O O O 0 RESPONDENT (Appeal from the conviction of the· High Court of Tanzania at Mwanza) (Mfalila,. J.) ,r 1 dated the 21st day of September, 1981 JUDGMENT OF THE COURT MUSTAFA, J.A.: The appellant was convict~d of robbery 'in the District Court and Wc1.s s2:1t up to the High Court for sentence. He was sentenced to b-1el ve years' imprisonment. His appeal to the High Court was disrniss2do The apJ;Jellant was convicted on purely circumstantial evidence. He was the driver of a vehicle SU 6484 and on 25th . •' July, 1980, was in sole contr~l and possession of the said vehi~le. The appellant himsGlf had said so. During a robbery of a victim's house several persons robbed the family members and then made a getaway in a cnr which a witness noticed and managed fo get its number. The ci.12.'.'. used for the getaway was SU 6484. P. tJ. 6 was the person who scn·1 and took the car's number. Both the courts ,I below accepted his evidence as true. The app~llant had stated that in the evening on the material day, at about· 6.30 p.m., he ha~ the vehicle SU 6484"repaired by .t· • one Daniel whom, h~ cnlled as a witness • . . . Daniel in sourt denied that he c~ver ccu~1;i12d ou:t repairs to SU 6484 on that. day. Both the court;s belGl\:1 r,;:.j.·c.:ctE:,d the appellant's version and conc'luded that he had ii.:x1.,' e o a/2 O ... ... 2 Both the courts below believed that the car usect in the robbery was SU 6~34 0nd that the appellant, on his own admission, w2s :L:1 sole control of it on the day of the robbery. The robbery to~c pl □ cc at about 8.00 or 8.30 p.m. and at about 9 or 10 p.m. the □ 990llant brought the car SU 6484 back to the depot wriere i t Wt:s irnbitually garaged for the night. From· that evidence both the courts below inferred that . the appellant must hvve been involved directly in the rob6ery on the 25th July, 1900. . . In our view the courts below came to the -correct and indeed irresistablc inference. When inferences are drawn from primary facts, unless it can be proved that such inferences cannot be so drawn reasonably, then in the case of a second appeal, no appeal lies as this would be treated as a question of fact and not as ..._. F. L. NYALALI CHIEF JUSTICE 1 A A. MUSTAFA JUSTICE OF APPEAL . R.H. KI.3ANGA JUSTICE OF APPEAL I certify. that this v ...:J. .· I '-. ,!_ ·1. -· ·-- £_: • ,: ( ., KYANDO) ' . ' •"'') _.,...._ ./ :3ENIOR DEPUTY REGISTRAR