19870909 TZHC Tabora1

--- --~-----~ ··--·----·::::----. ------ ~ --- TN--ir1:fE BIGH-ro-um'· OF' -ir:rn ZANI.~ l)T TAB.QM .. AJ:TF.t.LL.'}T"E J;.r.nsnITI.~ON w---~ HIGH co.um CRil\UN AL AT-I' EAL 'i'f; ·,, 7 2 OF 19 8( ORIGINAL CRIMINAL CJSB Nt, 309 OF 1985 OF THE DISTRICT (JJURI' OF Kl OL:.\ DISTRIO".r AT KIGOMA ·Before: S oBr LUit'$LELWA • o Er. (->, RESIDENT MAGISTRATE MASIBV1B1TI{O RASHIDJ: . . , •• e • . • , :··, • 0 0 0 0 • .( or1.:i~¥rccused) versus THE REPUBLIC 0 0 0 0 o e O O O e O e O o O . t ,. O O ~ e O O OC RES'PONDmT .. - (Original Prosecutor) CHA'RGE: ls~ Co~'1t~ H0bbery with ·jole.nce c/s 285 and 286 of the p ena 1 .:o d e cap o 15 ,, 2nd Count~ ~ , ...=--~·: Unlawful po .session of Firearm c/s 13 (1) and 31 of the armE:i and afi'Jfilunitions ordinance Cap LlLP G M EN In Kigoma Di sf :r,j_ ct 80 L~ ;·t, Masumbuko Raehl.di· (the first a caused ut the t riaJ_) c:· j three others, nainely, Samson Joseph (2nd accused)., Atan::: i Nah:..mana (3rd accused) and Mjanaheri Sho.nari (4th accuse,. vVere ;jcir..t.)? charged on lwo countsi robbery with viole.nce n:l unlawful possession of firearm c/ss 285 9.!"d 286 c,f the 1? Vt.£ l Code; and sections 13 (l) and 31 of th\:; .An;.is and 1~ffil.iltm.L .on Ordinance, respectively. They wer::.. :111 c0.;.1vic"t 0J as (>horgE.· e11d were committed to this eourt for sentencing" In this Court"' s Mis~ellaneo•.. 1.:·r-imina1 Cause Non 8 of 19_86 this Court. (Mchone, P,,R.M., - extf~• .r;d jurisdiction) sentenced. eaeh of the conv:Lcts to ~en year,: .L)risoruue..rit., In view of tbe fa.ct that tht c,J.r accused persons were ~nvict ed. 0u 0"+ i,.. ~n,,riy s, the set . · t· 0e of ten years im:prisorun.ant appears to be omrdbus,,. Sep~rat e 1-:; en,1;es ought to have been passed. I will return to this q_! f. ion later in this judgment., Dissatisfied, the appellant , , app0!;!1s against the convictions and sent en.0e~ For £,., ;. i ;f rsf'.er.ence, I :propose at the trial,. Before I proceed to de~l V\' -. .,I. so far as it relates to· the two counts., I pr-::; ·r co desil Nj.th one matter ~ .... 2 that aros-e in· ·the course of t.he :·,r" -::ieedings before the tria+ oourt. The four accused p~rsons first appeared oefore the Dj. st ri ct Co urt o ri 26th Dec an b er . ·19 8 5 and en t er ed p 1 ea s of ••not guilty 11 0 They made no req.,1est whatsoever. On ~th January, 1986, the case .c~rn1e up_ for heai•j.ng, It was then that the four acCUfEd p,ersons_ told the oourt tna-. they-wanted to.engage an advocc=i~eo· The case was then adjou:r.-ned._to the followj_.n; 5.'c:/, Tho a.::cused. persons repeated their request, but the le·u--ned "~·ia;I.. magistrate ruled thai the case should proceed. and tha· the charge be read over to n: t-hem •. At that point, the ac·cus,d persons.left the dock i.n protest. 1 \'ithout further ado, i he learned magistrate :j .! • ~ • I •: , peremptorily.convicted them of (:>ntempt of court and senteneed each of them to six months imprj sonrnent. The case was then adjourned to 23rd Janusiry,, On thgt day Mro Kwikima, 1, 3.rned advocate, appea'red :to1 the four acc.g.s~d persqns and re, u.ested for an adJot.i±•nment .to enable him t.o take j_nstnL:L.c r.s . . ,::·c .. a,d.j.o.urfted . . . t-_o_ 21st Februar.y .,..... 9 193 •, 1 gnd l..ate·r to 20th.,M~irch,. 1986, ' • • • i.·-.J i ~On that dsy Mro Kwikima did not .S1ppea ro ~he· a caused p ez,son• again sa~.4 _t,~t.~/~e;y viJ.nt ed th_e .P ad vb cat e, but l\llr. KvdJtima 1 'who l'.}._appen·ed-t.,o be ·within the r )Urt premises, had had no· • . ~ ~- ..- ;_ I ,::·, • I • •' •· < ' ' : ~ . . instructions. '.Vhen the ....9h"~rg·e! were re9.d ove::r to. them, the . . 4th accused walked out of the f.) 6..¼:,;:··a~_d, .. ., ... the trial magi st xet I perempto,ril;y ~.J.~•=•:!ted. him of rJnt.empt ·&f:court. o/s 114 {1) of the•Penal Code and sentence hi,i.l .-t.o twelve months imp_ri so rim ent e rt has repeatedly ·been hel:i by sup_erior ·_courts that whf C . a court takes cognis3nce of an )ff ence of contempt of oouv, 1 it is essenti?. 1 +.i,_?t tbe court 3hould frame and 1•eoox1d thQ substance _of a charge, read su<:'.l _charge to the accused who should then be called upon to '- :iow cause .whS he should not 'be eo·nvicted on the charge; ~nd tie accu 9 $~ should be giver,. a fair oppa,·rlunity to reply. Be:-ides, :the record of the oou~. should contain c-in adequate not of th~ a.ccus'ed's•person' ■ I ;reply, if 9.ny, 9.S well as the :'.urt 's decisio-n. (See Joeeph - 4 • •, 59 . ·-·-::._ ____.. . - .., --·- 3·- In the present csse, that procedure was totally disrega:rdeds .no c,hai•ge wa·s drawn up, let alone 1.•o-3d over to the aaou.sed. ' persons, and the accused persons were given no oppo:rtu.nity at a.U, to say anything in reply. I'hey were oondem.ned u.nh.ea:tld 1 I'll may well be that their conduct did ec,10 unt to oont empt ot Qoiwt in that their oonduet oan b;; saj.d to have been oa•ov.la'i ed •. l , :io obstruct or interfere wj.thtthe due course ot ju.st~.oe or the lawful process of the oou1•t. (Se!\ .].~~.Y.~~Jt!?l, (1900) 2 ~1 B, 39, _a.t page· 40). • But -where the basj.c p:r~.noiple of natux-al , t .....:1 • . -.hie b ee.n. vs:,.a IN . justioe that✓mln must not be con.denned u.nhea:t•d/followj.ng SIJ.14 · br€8.ch of procedure ought not-.be s lstaj_ned, for suoh ix•z•eg~I. r:i.ty j.s· fundamental and, therefore, j_nou.rable. For ~hese reasons, all the. eonvi otions for oont empt ot ~ourt are hereby quashed -and all tJL\a sent enooe in z·elation '!hel'eto' set aside. I now turn to the appeal agai.tL it convj.otions for th.e offences of robbery wj.th violence wLd unlawful I)aesession. of a ti.,.earm. The prosecution's evj.d J":ce is to the effeot that dul,ld.ng the night of 21st December, -_985, at a'bout 2. 30 a,m, at · lVIwamgongo village in Kigoma Distri_.y:, ,. while the oomplair>.aAi ·(r.w,2) was away ~n safarj_, his wi:'.9, one Zainab,u Ieea (r,w,l) -~s·· aroused from sleep by loud ban,JEl on hel' doo:r~ When she peeped through the _window, she saw four 'bandits :roaming azao,.,,_~ nu premises •. The bandits then fo:r·ced the door open and i1Qf.ned bullets on the walls .of the house Uf.ling a machine gu.r., Tlle bandits then entered the house and· stal'ted raneaQking 1;• T~~ stole therefrom cash and numerous valuables whioh in~•V.ded radiotl, a shot gun, lamps and clothes all valued at ehs, 25,, J.60/Hl-, A_pa.ri ,from noting that the bt1ndits nwn'be:red abou:t fol.U'1 P•W•l. and her children were too terrified to be able to ide.n'bitY aQ.Y of the band.its and she did no_t dare :r.•aj,ee an al.arai., ' " .l\fter the bandits left with t.:t.,eir booty, F,w.J. gathere4 r>u,age, and raised an alarm.. Many neighbours reepondad. to 'it.e a•ann .. Among the first _people to a?Tj.ve at the soene wa, Ol'lw Amri swalehe (1?,.':V.3)r v,ihc -is' brother of r.,w.2. \ I . , , , _ . . . . . . , _ , _ . . . - ~ ~ . . . , . . . , . - -.. ...-i'f'tCJ1'!"~· .... -:1' ... ~ t::.' ~ - .... 4 \ The people who responded to the· alarm decided to hunt fop the cu.lpri ts and at the same ·t ifl1e send a report to po Jj, Ge1 They splj.t into two groups: one gr,oup was to go and report the incident to police, and the 3econd, j_n which'F,\V.3 waa, wae -eo try and locate t'he culprit so _I'helattcir group- set out o:,. ,·their mission following a path iq the hills.as they beliey~ 1 sorrectly, that thlit was the rou e the bandits had taken, Meanwhile, a militia man of f!wQr.1gongo village, one Mohamed Saidi (r.w~4) was walking along the same path towas,<ft Mwamgongo village., on the way, he met two people who. tl.\rned out later to be the second and th::,··d accused persons. r!w,4 ..;~ notj.ced that the two people w.ere c[;_rrying a .bag a.pd a 'bo~JJ.1'~ 904iainer- which was covered wj_t h E black coa·t ~ .As he had no reason to suspect the two men, ro:.'',.4- walked ono' qn_ arrival. at_ Bubango villag l, 1, o Wo 4 met 1?. w. 3 'El grou.p 1. 1 P,W,3 then told. p·;wo:fthat r,W112cs hcuse had bee.n brokel\ inio -~- ,'i , ·. . . . ,QY,, armed bandit a, and that I',Wo3 a1 6. his group were looki.ng fo:r th.e bandit so T'oW~4 then re;~~1 :i o~: hsvfng met the .,,,., seoond and t~ird accused persons earlier so he decided. to joi~ l?.-w.~•s t·eam so as to find the tw·, men. Or; arrival at-,,the home of on~ Shabani Gwango, a loz-ri Qame and the team boarded it. A ft or t 1•avelling fol' about . . f:i. ye minutes, they saw the two mE-,L r, w.4 then told the \1:ri,ve-r . 'io stop and the second and third 1 ccueed pe1·sona uneu.speot,~g~ boarded it -- r ._w.4 immediately started irterrogatin.g the two man aa - to what they were carrying. The c:,econd e.ooueed'e lUBgage • , ,aund to conta_in a radio, and than of the third aooueed. l\'34 -- .. ' a redio and a lamp, 1?.,W.3 easily il:::intified these artioles to "Qe th,@ p:roperty of "P.,w.2.-P.W.4 then lrreeted the two men, -and 1hO ¥r1•~ mov~d on., After travelling a short disj::1noe, ·r.w.4 saw three me, ahead, As fate would h'3ve it,th€ three men, who turned. out 'io ·'be the appellant, the 4th acct;:.ed and t..hi•rd person who J,.a'iij slq.pped, the three JI.en aignall,::J. tne lorry to stop, The loii,u stopped and the three men boarded it wj. th their luggages, P 1 ~1 4 t!'ied to questiong than, buG the three c.aen were unoo! operative and hostile. R001embering· that I'cW.3 had said th.a• 5 the bandits had been armed, r.w.4 decided to play j.t cool. He then whispered to the driver tc- dr-iv,:: straight to Mwe.nd;o ,_ pol,ioe station. On arrival· at. Mwandiga tolicr: station, the· appellant ap.d another susp,ect j~r1ped off the lo -:ry and took to ·their Q.e~~,•., They were chased and the appellan :, was apprehended, but lµm ~J,league could not be apprehende< He i.s still st <l.~~?ge, .· • ,. -: ·: •1, ·I' \ •• ~t the police station.+,he arr r~lfa.nt was found in poesaesion ot clothes and a lamp wm. ch I' Wo 3 "?nd r :Vo 2 lat a:c easily • #: • o \ o 1 identj_ fi ~d to ~i~ior~s o't' 'the prop er;ty stol an from r, w. 2 t $ hou.se. The appellant~is three co-accused _,e::·sons were then re,..a~resttd and Qha rg ed accordingly • . i•: In his defen.ce, the appellant idiaply desc:rij.bed the ev~1e leadip.g Up to his arrest~ He said 1.hat. on the day of his arDest he was on his ·way to Gungu vj lJ.9ge ~nd on the way' ~~ # ·ooa~ed a lorry up to Mwandiga.. H(: -~hen di_semba:rk ed and start eel for a bus sta·nd but he was stopped ,':. nd arrested by polio e otftoers. Aft er eval~ting tho 0T"3.•:1'-,nc, 1iefore M.m, the learned magi st rate b elj_ eved t.he pr-os(·:outio.1 witnesses to ·be truthful and rejected the appellant·s c ba:re 1::minL. He a ccordj.ngl;y found a1 a fact. th3t some of the articlc3 stolen from r.w.2•a h.o~ee we11e found on the p'erson of the ar ;'allantl.' and that the appe,l.lant • s pro-t- estat·j_ons of iMo < rnce ~era hollow, Ap,pl,yift6 1~e ·do otrine .of re.cent possession:- he con vi ot ed all the fou.• a1,u.sed persons as cbargei. It is a settled principle of J~w that the possessor of goods recently stolen may fairly r•e· regar~ad ~s being the a1'iual, thief or else_ a guilty recd vero His possaesion re~afiS aJ,so• albeit less· strongly, a presw-aption of his guilty eo,nne~ti.,..:1 v4,tb any f urthe:r ~r:ime that. !-:1:}.comr-,nied the theft, such ae OU,-g:\.al'y, robbery or murde;. i.~~(' ..-~4..!¾1.l~~!filda.:...!!_!u (~Q~)-E.A. 43). To put it dj_ffe: ,,ntly, possession by a.a aaeu~ed p~rson of propert:y proved Ld ht1ve been very x·ecent ♦ f •io•en oan support a presumption li1'1t tvie· possessor was ;involved . i;1 tne commission of the offenr-"- _,,.: ·•h -~c~ompanj_ed the thett . 1 tsee ~~ Hamad.bani v •. R.. 1.196~-) H.C,Dc,'Noo 218), . . ---------- - - -- -· -~, . ' - 6 _rn the o£estent case, the art:.cles found in possession . t fie app el an wore · of.plearly identified to be part ()f the articles stolen t:iom I',W,2's house in. the course of a :robbery only a few ho~ earl-:- ter. The doctrine of recent posHession, therefore, wa, '°rrectly appli.ed by the tr~ial c.-urtc rhat the appelJ.a:.t oou].d not have been innocently ir possession of.those a1i~~les :i.! further demonstrated by the f·· ct that im.medi.at ely Oll a?tr-ival at Mwandiga t>olice St8tio1., the appellant took t• ~.s heelso In sum, the prosecution's ev'. Jenee fully justified the appellant's convictionso The comi ctions·, therefore, w@fi iritevi table. I now.turn to the question oj sentenceo As point et! et.ti, "- eax-lier, Mro Mchome, toR,J.L (exter<:lod jurisdiction) pass!jd a single sentence instead of two sE):::;rate sentences. T.q.e que~tion that arises, then, is whEther· this court is LU!J.llUs .... - offj.cio with re,gsird to that quest::i ) d of sentence., "-- I am not aware of any cErect e tJ.thori.ty on this poj.,nt,, but I humbly take the view that wJ, re e. court, r er ino@iam, omits to pass sentence j_n respect c £ -~ - --..-..... some counts on whi_.,h. a.a accused person is convicted~ t u·t court should not be deemed to be functv.s officio wit.t ~·egard to pa·ssing a sentence ' -- - - y · · - ~ • oit sentences on the remaining cou 1; 01· counts, particula:i,.r 1tl , , wb.ere the record suggests thattofr-::j_bus sentence related ,o a r,~rtj_cular count. "il'iat this court has often held tt1'ii where a trj_al court ow.t:3 'io Qomply with ~tatutory provisio:;s such as those in se11i.on 17 of the Road Traffj_c 1\ct, 1973, such court is not Lun.!~ ol,licio in that rt: 5 ardo .,~ . ' w - · • In the present case, the rec) r·d of this court j_n the sentencing procoedin;.:. shows that ,~Ir. Mchome had in mind ,i.e !il'st count, for he repeatedly -- : "rs ·bo ••the offenne ot -..•y :robbery'' e _. .. - .. -• --. 7 . On the basis of the foregoinr;, I am of th.~ view that it is quite proper for me to pass sentences in resp_ett ol the s e·l!ond count. The questj.on that next arisi::3 is whether it wo~J.d. Qt PJ'OP·ef for a1e to pass sentences on the accused pe-:eoAe without offering them an oprortur.j_ty of being heard, ! 'O.O not think that their presence is necessary. I say s_o 'beeause t.tiey were given that or--portunity :1t the ti1;10 the sent ente of teA years imprisonment was passed, and they addres·sed 'il\e tou~t in mitigation. I pro.pose to- use those pleas, :ae,,des, I think it would be. superfluous to cause them to appee, i.fl. 1-ew of the s~tences and orders I propose to j.mpo·-se,. Having conE:1idered the seriousness of the off enee and tthe ll~tueed persons• pleas in mitigation, I hereby se.nten,e ll\j, ap1>ellant and his three co-accused _Jersons to fj,ve (5) yeap ~pi•ieorunent in respect of the seco~1d count to run eonr. ••ently wi,.1h the sentence of ten yegrs j,.mrr·1sonment earlieia paseidt In fine, this appeal iG :1".: ...•:.-ssed in its enti11ety.