19881111 TZHC Dar es Salaam

. ~ . THE UNITED REPUBLIC OF ~ I A IN THE HlGH COURT .OF-T.ANZANlA ... ~:.. ~ ... ~ AT. DAR ES S/ILAAM ... ····• · APPELLATE JURISDICTION HIGH COURT CRlMIN/\l, APPEAL No'. 1.39 OF 1987 c/f. 140, 141, 142/87 and 162 of 1987 ORIGINAL CRIMIN/IL CASE; NO_. 515. OF 1987 OF THE DISTRICT COURT' OF ll..ALA DISTRICT AT' KlSUTU Sefo.re: J. E• c. Mairaanche, Esq., -J?rincipal Resident Magisti~~- _JOHN BONlFASl NDISA & QTWERS. • • • • • ~ • APPELLANTS (original ACCUSeds) versus '?HF; REP-USLIC • • .•••••• a • • • • • • RESPONDENT (original Prosecutor) :· .!,· J u D G· M E: N T . . KYAN20 ♦ '1:e, The ~ i l ~ s - were. charged as follows in the oistt"iet ,court · "' ,at es salaam at Kisutui- tst ecunt: Breaking into a factory and comrni tt ing a fel_ony . , , 296 (1) of the penal code. pa,1;ti;ulars r,f the offence; John Boniface Ndis=a, Sebast~ane t<ribE:lo Chungi, Athumani Hassani_ MWekoyambi, yahaya Issa, . samwel Raltladhani Masali, suphiani Ramadhani, Andrew Thawi and said! Half a are jointly and together cha.rge<t on 18-t.b day of : AP~il, 1987, at about 23.50 hrs at Workers Garments Me:nu£aci::Lu=-~ Factory Chang I ornbe R<'ad, within Temeke oistrict in BSM Region; · djd break intn the said w"rkers Manufactures Factory with intent t<"' commit a felrtny therein namely theft~ 4nd enunt: stealing c/s. 265 of the penal Cnde, CqPa16. Farticulars nf offences John Boniface Ndisa, .Sebastiane i<'-"'beli, chung1, Athurnani Hassani Mwekoyambi, yahaya Issa, Samwel Ramadhani Masali, suphian Rarnadhani, Andrew Thawi and saidi Halfa, charged together on 18th day nf APril, 1987, at about 23.30 hrs. at wnrkers Garments ManufactuEeS Factory Chang• "mbe Rnad w j tM n ~rnek~ oistrict in oar es salaam. · Regi,..,n, _having br,..,ken into the said Facb-,ry, did enter and ,. · steal fr..,m therein 59 singer sewing machines, 3 cutting mach:ines, 2 ,wer lncks, 892 yards of suit~ng material, 25 yards l"\f brack drill; 350 metres 0f white p".'<lyster, 100 metres nf tacrnn cloth, 68o·coves of sewing threa~, 3 mntnr. Car tyres, 3 rnntor car tubes and 2 ITl<"'tor car sins, all valued at shs. 1,465, 1·25/.,, being the pr,.,perty of ·the said wnrkers rnanufacures· ltd. ., - 2 ~ T~ey were all cr,nvicted of these offences and each sentenced tl"I impris"'nment f,-,r five years (')n each countt sentences to run : '. cuncu.rrently. They were aggrieved by their c0nvictfons and sentences and have appealed tn thjs cnurt. The backgrl"lund t~ the matter and the full st,.,ry ~fit is set by the evidence 0f Mnhamed Athurnani (PW03); a militia guard/watchman at w"'rkers Garments Manufacturers Limited fact,.,ry here in oar es, salaam. He testj_fied as fr,llnws in the court below:- "DUr:ing J.pril, in the beginning, I was <'ln· duty at my place nf wnrlk. I remember at that time <'lne fell~w wo~ker, a casual labnurer but also a tailor. He is called ••••• ·•• o • • • o He is here in C0urt (goes and tr,uches sufian Ramadhani (6th accused)). He came tl"I me. we are not relQtec. He tried to persuade met~ dr, s~me sabotage (kuhujumu). He first of all, ,,nth~ first day he said 11 Bwana hali ngumu, pale stf'.'\re r na engine ya gari. 11 He then asked, nun,~ ,naj e tuf anye rr.narif a," I told him I would ans er u ..... ·" '-'-- -·-~· -·-·-·-;.; ,. .:.•- f oll...;wing m"'rnj ng h '! came againo I tnld him that· it was. diff·i-cu1t f , ...-., tc decide instantly. I tnld him tC'I wait '-!G came again the third day. I asked him h<'W we .,ul.C: get it ot:.to He tcld me h<-W we would get :i.t C'IUt. He said thesie g-.Jatting out wnuld be his p.t:<"blem" He said I was: 0~.ly to agree. Ab"'.'IUt the n' 1--.cr wo:..:cl1irin:'l. he said they-. would br 1:;;tch hi.. 1nd he wouL.:. .:.:::.eep Instantly .. He tnld me that th.~ ,::-e were other penple also in tfre . '· ~perati.,.,n. I nevel· g0t sait.i•sf ied., I d'ecided to t,.., rep"'rt t,-, my S\l.Jerinr Officers:., ! told my militia \ cammander and we t ,ld Mi.·o Kalombcta, :;µ1~ GoM.. The G'-.M. t"ld me ·,:.1 c:·0,-)j_)?>:a:::::.;::.t::-;,_ the~., He s::aid he would see the e'ld of theo · I' joined· them._ We talked in C"'.'lnf jdence with thei:l,, I 1.11ent' to sufiani. ·1 t0ld t;im I hQd agreerl'.., He_irideed brought to me soms'. drugs,. He said that they would make a person sle<-. P• Anyone who woulo' swallow; them wnuld go t<' sleep.. I !7:'~lly got th,jatenee? I WJaJ~ told that I sh~ul,: d.-::-,p thosr.- .... ,.~ '. :, .,_ in cofi'ee of my fellow wct:-,.., . ..:t \ ,\ r - 3'•- We have a hab:it "f drinking coffes every evening. The tablets,. were brnught to me. I did not know · the tablets. They were 35 in all. I sent them to my superior off:i.cer. The GC!M. thPl'J decided to send the matter ti") the Regional c. r.u-. officer I went t('\ the R•C•◊• They were to break in on SUnday. The R.c.o. told us that he would arrange t('\ trap them infact. I had seen the other in the group. I had been. aent t<' augururii by suf j_ani. They were there. They waited _f.-.r me. The:· were about 8 in all. '].he others a-:re not here.. But those wh0 talked much with me are ft$r& 1n court. The ~nes-I had talked to are (Sebastian J<t,bel" 2nd ·accused) ( samwel ( 5th) any my friend here. s,Jfiani (8th accusec) and the one who is here (Athumani Ha~ ~d accused)n Actually they t0ld me that I should not worry. After breaking they w---uld send me anywhere I pleased t,,, enj "'Y myself. , They promised me shs. 1sb ;eoo/=· . 2fl fact at that time we_ did- not specifkally say that we would steal s,-.methingo we only said we Should_ break. We went t~· the police. They were to come on tJ..14/87 at 11. 30 P• ri1. they said they would come at that time. · on 12/4/87 I arrjved at 9.00 p.m. I was on night ehift with an .... ther persnn. I did not have the tablets. I had given the tablets to the policeo My commander was instructed tn act to pretend to have swallowed the tablets and to sleep. Yes the golice came at 6.30 p.m. They in p,...slti-,ns. At r~ughly 12.00 midnight they had n ... t come. We th---ught they had known .,,,.. ... ,.__~ :'-,lice went away lndeed these pe..-.pl (! did not come at all. on 13/4/87, r -met sufiani, he asked me what the matter was~ I als~ asked why. He said he should re-arrange. we a~::-eed the miss.ion shnuld be earned on 18/4/87, a saturday. on that day c-:: 18/4/87, in the morning, we agreed t~ change a· militia guard. I told this pers~n t~ be w:l th me. I t--,ld him that people could break in but he sh0uld fnlinw instructi~ns, in the morning 2nd accused came. He went and saw sufiahi. He was made to enter.- - 4 - He ine_~~ J;M ·l~er as I had eonnected them to the o-ther watchman:. T.hey went and spoke w1th him. The watehmcn later tcld ~e that he would also get shs.t50,000J-. That was jn the morning. Before the evening we eent the matter t . . the police. The poliee came at 6.30 pm. 'f.1\~y werit int0 p~siti..,ns. At rounghly 10.-00 p.m. · suf l.eni 'Passed /"l'U't ..... f the gate. He came t~ patrol. He )l,,l&t. passed, t ... sh-"'w h~ mself. At about 11.45' p.m. The gate was <'.'pene I had n~t cl~sed. H~ ftime wj th three f:i. rst. They entered. They were the t5ra,; accu•ed (J"'hn) Then sebastian and a watchman entered. six ente,ed .l n all. The ,..,ther had foll<'.'wed and we allowed the:m t,-.. entel'• They &l'!t&.!'ed and with the use <'f tyres ~te,P· iJ;!,ey bz,-,l(e tl.e d'"'--r• ·r was and my fr:lend k{ent to tR• gate. _They went; brnke open; they wanted to ferry out the 9"'"ds t-, c-utside the d·,..,or, not the gate. They were insl~e the gate. The pnUce were. in hiding in the same area. TW~. penple went "Ut of the gate. They came back with a ven:t9te~ That was roughly at 3.00 ao rn. Then the veh.i ••e tame, entered. They were f·our in all in the vehjfe• They entered. 1n all in the fence doing the c,peaat!.---.n. We•e eight they had Tz62920 a lorry. They sta.Jtt~~ t" 1-,ad in. They loaded in half the property Whfn the p~lhe pounced nn · them· and they were all arrested • .I lfw, j.he P.~ .... ple wh-, were arrested. They are all here ifl: •rijft• Whe tn,ry .remained.. It was towedo It could l'li-,t eta.ft. .lt ente»ed wall. B~t it did n,.,t start. $<, '-te went ,: . . . the p"lice station; in a police van and ·t1'e taet--i-yr:i vehicle. When they were arrested they were eaying uthis man has br,.,ught me; that man has br".'lught me 11 • They wera try;ng t,., bajl- each other. They t .... ~k 0ut 59 1'~a~• ... f · sewj ng __ machines, some bales 0f cl'"'ths., sewing · th.ad. They were a 1 ·•t -f things., sufian br .... ught me ,~ablet.s; whlte jn c0l,-,ur. i handed over small tablets). •. J ean c:-:unt them. They are. They are 34 tablets." yhe Gen·trpl Manager ...,f vJ-...,rkers Gatments Manufacturers Ltd., James Kaluml:,ata (PW2) c:"nfirmed in his evidence in the court bel.-.w that he had been inf,-,rmed that would-be-burglars would "e!"'me to .the fact--ry. He sai.d _he rep0rted to the pr-lice and on ~- 1,.11.1987 i.n t~e m.... rnj ng he f-.und the fctct0ry b r<' k en into.• He.identifjed the ·thjng; whkh had b~en stolen frnm jt (the factory) - 5 - Ass1stant rnspect~r Ahmad Hassan (PWo1) is the police - "fficer whn organjsed and led the police ambush team. He explajned t~ the same effect as the evidence of pw.3 on how they caught the appellants 1~adjng the g~nds fr<"m the factAry and arrested them. In their defences the appellants told the c0urt below vari~us st,...des on h-.w each was arrestedo They all claimed to have been arrested at p<."!ints or places away frnm the fact..,ry and mr,st --.f them claimed that they had been arrested because they djd n~t have their identity cards with themo The learned trjal magistrate had no difficulty, and I think 2• d.ghtly, in accepting the pr<"secution evidence and rejecting the defences ,-,f the appellants. There was in my view, ample evidence led on and adduc,;d by the prosecution in this case shnwing beyond all reason:1ble doubt ✓ the appellants were caught /that red handed stealing -from :he factory;mentioned in the charge /g·,."ds and by witnesses after br-=aking there. For besides- the evidence nf pw.1, PW.2 and PW.3, tnere was also the evidence c-f Kajitan Mwapila, (PW.4) an""ther w.':!.tchman at the factory and one who gave evidence c,-rr,:,b0ratjng that of pw.3, and Nndya ychana (PW.S) who was• the nwner ~f the vehkle used in the loading <'f the st~len properties,. pw. 5 i:estified that his turnbny fnr the vehicle, was ·Saidi Halfani (wh0 was tlc::. Ct.,.._ <>ccused in the court pelr,WJ) and the driver was Andrew Thawi (who was the 7th a;!cused). •Althl"lugh he (PW~S) had a~sjgned the two persons the tasks. of carrying char~~ intr, the ,City during the ped.nd of the incident which gave .rl.:l!,se t, this case, these- two pe,...,ple failed tc, go f,...r tMs assignment; h'e later learned fre'lm the police that his vehicle had been usEd in a theft and his. two employees; had been arrested in C•"'nnectinn with that thefto The defences nf the appellants, in the face nf the over- whelming evjdence -,f the prl"lsecuti0n in support of the charge cann<,t be possibly true and the learned magistrate was right in rejecting them. The appeals, by the appellants to this court clearly lack merit and are hereby dismissed in their entirety. AT DAR ES SALAAM 11th NOVEMBER, 1988