19890724 TZHC Dar es Salaam

,_ l , / IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM HIGH COURT CRIMINAL APPEAL NO. 18 OF 1988 Original Criminal Case No,1181 of 1988 bf the District Court of Ilala District at Kisutu Before G.B. Matui; Esq., P.R.Magistrate Mil.JOJO ESPERIU·S . . ... .. . . . . ... . .. APPELLANT Versus THE U~ITEU REPUBLIC ••••••••••••• RESPONDENT JUDGMENT RUBAMA, J. MAJOJO ESPERIUS was convicted of grevious harm and sentenced to five years imprisoncont. He has appealed against the conviction nnd sentence. The learned trial magistr~te found ostablis~ed that on the j night of 11th September, 1988, the appellant attacked th3 Manager of tho ~ufungira Social Clu~ situated at Mwenge in Kinondoni District. He had been seen attacking the sai~ manager of the social club by three ·people: the complainant hims~lf: Godian Majani (PW1) and two female attendants: Chiky Mohamed (PW3) and Joice Mwaisoloka (PW4). Due to this attack the right eye of the co~plainant was completely damaged and had to be removed. The co0plainant (PWl) was operated on at Muhiobili Hospital on the same day by Dr. Milka Mafwiri (PW5). Mr. Elmaamry, learned advocate arpeared for the appellant. · He argued all the filed fiv~ grounds of appeal. His first ground of appeal concerns the crodibility of Godian Majani, the Lufungira Social Club's manager that the learned trial magistrate had held had been grievously harmad by the appellant and his other colleagues. This witness was the fi~public's \... \ ·1 .. first witness. He had testified that ~~ile lYint on the ground, the appellant had twice attacked him on his eye, .• He maintained that there was light at th~ Club and could thus easily see his attackers. He had not at any time lost consciousness. Mr. El-Maamry submitted that Godian Majani could. not ~hile on the ground have seen his attacker. He rnaintained-.that even ·the learned trial magistrate ,on p.5 o.f his jud'B'ment admitted as much. The learned trial magistrate ha~ thi$ to say on the matter: "••• I had some difficulties in believing particularly 'having regard td t~e fact that he was·· on the ground when he 1as being assaulted ••• " Mi!S Korosso, learned State Attorney for th~ Republic -~n _supporting the conviction stated that the fact that the complainant was lying on the ground did not ~ea» that he was hin.dered ·· · f rom. i"d en t"f · 1 ying h"1s assai·1a n t s; i·t="'efl:ti·rcly d"pend,e>d ~ - on the position that complainant was lying.· Sfue contended that fro~ the detziled evidence given by the complainant, it was . clearly"•-shown that he had seen his assa=ilanta, On re-examination of the evidence on record, I hRVe no hesitation in finding that the complainant testimony reflected truth. !_accept the submission by Miss Korosso that the fact that the complainarit ~~s lying on tho ground ai the time he. was being attached had not made2im (the complaina?t) unable to see and identify his attackers. Clearly, judging from tha detailed nature of his evidence, tho complainant's sight had not, during the assault been impaired. This apart, I do not read the learned trial magistrate's judgment on this issue of, identification of the appellant by the complainant of going to ~upport Mr. El-Maamry's submission that the learned trial magistrate also felt the complainant could not have correctly identified the appellant as one of his attackers. All the trial magistrate had said in his judgment was that he 11 had some difficulties in believing particularly having regard to the fact .that the Lcomplainan,!7 was on the gr,ound when he was b~-ing · a.ss aul te d •••. " (emphasis supplied). This sen tenco showe ·;that the learned: trial magistrate was. at this time consido·ring l :, ·... ·\ : •• ,j I. .. I - 3 - the evidence of· the complainant alone and not together with the - rest of the evidence as he should.have done but when he .discharged . his obligation of considering the evidence as a whole, his initial "difficulties" wore eliainated. He found the evidence of the complainant being corroborated by other evidence. Mr, El,Maamry's secon~ ground of appeal boncerned the credibility of two female e □ ployccs of the Lufungira Social C~ub, He submitted that as these two witnesses were working under the complainant, they were bound to concur with the evidence of their bo~s, tho complainantr Further, Mr, El-Maamry sub~itte~ that the learned trial wagistrate had not warned himself of the special relationship that had GXistcd between the co □ plainant ·and the two witnesses, Miss Korosso submitted on the Jther hand that the fact that the two othor identifying witnesses were working under the complainant in no way negated their credibility, She- submitted that these two witnesses evidence was supportive of that of the 'c om p 1 a in an t , I accept the submission of Miss Korosso on the credibility of the two other identifying witnesses, The learned trial magistrate clearly shows in his judgment that he had been satisfied with the credibility of.these witnesses, That address by the learned trial' magistrate in'very clear and strong language eliminates in my mind any feeling that his failure to wirn himself I about the possibility that the two witnesses evidence was I ; influenced by the .fa~t that the complainant. was their superior I at th&ir working place in any way affected the trial magistrate's I , view of the case. The learned trial oagistrate's decision in r taking this evidence as going to corroborate the evidence of the complainant was proper and fully justified by the evidence on reoord, t Mr, El-Maamry's third ground of appeal was that s,23 of the Penal Code had been improperly invoked in that the appellant- had not assaulted tho complainant. The ~ppellant had intervened in fracas to stop it. Miss Korosso in reply to this ground of appeal rightly submitted that as the learned trial w~gistr~te had found the appellant had participated in assaul~~ng the complainant, invokation of s,23 of the Penal Code was proper, I ---- ...... ) -- -,_ .!,_ •'l .. ,_ ~· iv ~~.~ •r,' ·!· ,,, '· .J .,. -·· .. , ·,·- .•·:. ,l' ~ '~·-- H• ~ i> 4 - '' I have above ~tate.a that the learned trial magistrate's finding on the e±edibility of the thrGe identifying witnesses was fully supported bi ihe evidence on record. In this regard, I find ~hat the learned trial magistrate's h~ndling of the defence evidence in no way prejudic~d the defence case. Capt. J.J. Mkono (DW2) could not say whether or not the apyellant ha~ taken part in assaulting the complainant while. 8taff Ser~ent penis Lekisa (DW3) adoitted wh:!-le under c·ross examination· tha:t ' he knew nothing about ihe case. Lastly, Mr. El-Maamry argued that the sentence of five ye~rs ioposed on the appellant was exeessive as the appellant was a fi r$.t off onde r. Miss· Keros so submitted that th~ imposed sentence· was fitting considering the damag~ caused on tha ccimplainant i.e. that the assault led ~o the complainant permanently losing his right eye. I accept the submission that the injury on the complain<lnt was very grave and the imposed 0 sentence not excessive.· If anything it appears to me a 'oit on the leni~nt side. For reasons outlin~~·above, I see no merit in the appeal which is dismissed in· its entirety.· ,-·-· .. ~\,_w- '~~ . Yahya Rubama· Judge 24.7.89 :... ) ·-'.. ' ,·,l •'•.., ·.. ··.. '\ ·:"': : f .j. ; ~ ·.· •. ' .: ,. 1. ·• . ·X. .. ••. .: ·• .i '· .,,, ' '. f' .. '.,·...~ . ;:_\ Al •.