19900727 TZCA Dodoma

IN THE COURT or' APPEAL OF T.AH ZA!JIA; AT DODOMA ( COP-AJ;i: RAJiiillIIAlH 2 J .A.- 2 luid ~IFALILA 2 J .A,.) CRII\IDJAL APPEAL i'JO • 13 OF 1989 5 BETtrlEID:i 1. JDH.Amrn A'IBUI,:tmI 2~ ·JUI-IA MUSSA 3. mmIBA Jill-IA I smGO 0 • • ~ i'..PPELLANTS 4. YUSUFU HJOKA 5 • ISSA lTKULlillWE 6,. ISJ:.IJ.,,IL .A.EHED IGHOrJGO AiTD ·J.:GE REPUBLIC .. • t • • ' (Appeal from the· co;.wictio11 of the High Court of Tanzania at Singida) (Bub.u;;1b~ka 1 J,t) dated the 4th day of July, 1987 in Economic Crimes Case Eo,.10 of 1986 JUDGHENT OF ·T.GE COURT In the lligh Court of Tanzania a·i; Singida, sit-'(;i;,1g as i.1 F.oonomio Crimes Court, the appellants were cl1.nrged with cattle ·0heft contrary to Paragraph 12 (1) (3) of the First Schedule of Act No. 13 of 1984 and Section 59 (2) of tl1e sa.11e Act. The nu.mber of cattle otolen was 160 . •}; va,lued at Shs,. 89,000/=,. 1..t the "lirid ·0l.1e appellan·~ Ju;·,1al1ne-Athur,lal1i -..J . -' "~· • '--./ ! I l was the fil~st ac01.~ed~ Ju.ma Hussa the se~ond accused, Hemba Juma Isingo t the third' accused, Salum Ismail who was acqw.tted 1 tl1e :fot.i.xth accused, Yusufu Hjolca. t1.1e fifth accused, Issa Flm.ler.ge the sixth accused and Ismail. /J1iued Ighongo the seventh accused" For ease of referenc_e we s!iall keep the s~~e deoignations in this appeal. On 11/2/85, the complainan-c Xharnisi ~a.lura (PW.1) was out grazing his livestock when at around_ 3 p.m, he saw to use l1is own words, "a mob surging towaTcls me 11 • -.He had 16o heacl of cattle and 25 goa·iis... Although he calls this group of people a mob., :it would appear ·clie ,eople were friendly enough to begin witho They gr~eted him, then four of them approached him and asked him whereabout they co,,,1.ld fincJ. ga,.1e., Before he replied, one of these hunters turned bandit and pointed his gu,."1 at his face forcing him to sit dovm. They ·a~kcd hira how nany herdsnen they were. One of then fetched a rope nnd tied hin with it. They then drove away ail his cattle telling him that they would shoot him if he made a;,y trouble. l@on.g this mob he recognised -~.:.io four who had come forward a11d asked hir.1 about gaii1e- These arc the second accused wl:.o pointed the gun at hirJ, the fourth accused who hclcl ai10ther gun, the fifth accused who , took off his shirt ana. used it to blino.-,fo1.d him, a11d the sevci.1th accused who fetched a fibre rope and tied hi.:, hai1ds 8.J."1d legs wHh i-t * Later that evening, when people at his hone sayr only the goats return without him and the cattle, they knew soraething had gone wrong, so they raised a:1 alarm a11d started to trace him.. A big search for the 0·0010;.1 cattle was mountede Part of this search party 1-rcnt to Misuraa Vill2,€e where Juma Seler.ia11i (PW~2) a relative of the complainant lives. They informed hin of the tl:oft of the cor:1plaina11 t 1 s ca·ctl e a11d he join eel the search party~ On 18/2/85 the search party arrived at the !10me of one NalJod Ka,ya11da where ai-.iong his herd, they identified one ox to be part of the comp1aina11t I s stolen cattle, it had all tho bra.nd.s and. aarkings of tb.e complainant I s cattle. Kayanda explained that ho had got that ox from the first accused ,,. in excha11ge for seven tins of millet? and he led thea to tho hoii1e of the first accused after showing thera the docu;;1ent the fi1~s1 accused had produced when selling the oxe When confronted, the first accused adraitted selling the o:;;: to ICaya11da and explai::.1cd th2.t !1c had. himself got i:'.i. from the ~ acct.~sed in exchange for so;:1e goats.11 Hq also surrendered the remaining sL~ tins of millet ho had received in exchange for t~e ox. This in:fornation led to the arrest of tb.e third accused. 3 Earlier on 14/2/85 Ju11a Lyang~ (Pw.4) the Chairnan of Mpako Village where the third accused lives, was ret1.1n1ing home fror,.1 the ponbc shop at about 4 p,.n,, wl1e11 he heard the noioe of a large herd of cattle at the hoi:!e of the third accused where he· had. got the cattle f'ron, the third · accused told M.i-:i that tho cattle wore stolen property. In his capacity as Chaircian, l1e told tl1e tl1ird accused tl1a t ho was under arrest. As soon as he had said. ;this, a person emerged froi3 the house carrying a gun and ora.ered him to put his hanchl up~ ]mother nan e;oergecl fror,1 the house+ Together they ora.erecl hiiil to -leave -~110 premises irili-:iedic,tely anc.l they saw \ him off to his house with a threat that if he iilade any noise his house " would be set on fire. The second accusocl is the one who tlu~eatened him with tho g1.,1n,, Next clay he went back fo the home of the tl~ird accused and " asked hiw abov.t the cwents of tJ10 ·previous evening, Tho third accused ·told him that accused No. 2, 6 and 7 we:re Bonbcrs of the gang of thieves who hac1. stolen the cattle., In fact ho ;:-Jentioned tJ.1ese three 11 as those ho stole tl1e cattle with"• All the appellants except t!1c fifth and seventh .accused persons elected to make statements from tho dock. The sixth accused .:was uot in C01.i.rt~ he had. earlier jun.peel bail 2.nd t:10 Court decided to proceed against him in his absence under tl10 provisions of Section 37 (4) (b) of the Econo:oic and Organised Crime Control Act 1984,. In his clefencc~ the first accused described how a group of people he called at his hone.stead anc.l alleged that he hacl .sold to ifabori .ICaJranda an ox which was one of. the cor.1plainan,t I s stolen cattle. Bu.t he denied selling a.1,y 1102..d of cattle to Kayancla o:i;:- that he had obtained it fron tb.c third accused,. He said that PW.2 aud PW.3 were lying .. \ -- 4 The second accused denied any invol vomont in ·i;he theft of tho conplainantf•s cattle. Ho said that ho was sinply arrostocl one norning as ho was walking on the road. . Bo adcl.cd that PW .1 rs· iclontific2.tion of h.i.ra was mistalrnn and denied Pw.4.t s allegation that he hacl found hiu at tlle honostcacl of the third accused.. The third accused denied tho trl.,1.th of tho evidence of PW o2 and PW .3 com10cting hi1:i to the o:,;: sold to Kayand.at Jiu cloniecl selling arry ox to tho first accused as alleged a.."ld said that tho evidence of PW .4 rcg2..rding / a large herd of cattle at his ho:;-.10stoad was a pack of lies. He never told hir.i anything about tho identity of 2l1Y cattle thief. The fiftli accused explained t.h2.t ~10 could not have talrnn part in the cattle theft because during tl.:o rel ova..--it periocl 5 ho was bc:reavocl of his aunt and cu.stem forbade hir.1 to go 2.nywhere • T'.ie si.Xth accused was absent fron -:;i~c Court but the seventh accused clcscribed his arrest and assauH by aili tia..':lon and denied ro1y involvorient in the theft Qf t.:.10 r:onplainant' s cattle·. Ifo addecl that both PW,.1 and. PW.4 wore lying against llio. After considering the ovidance nt length, tho trial Cov..rt found I that as accorcli:.1g to tho oviclonco the first and. t:.1ircl ac01..i.sod persons wore not at tho scone, they could not b.nvo boon part of tho g2,ng which forcibly, stole tho conplainant's cattle, bu.t uncler tho provisions of Sections 306 (1) of Crinil1c1.l Procedure Act, ·a:nc':. Section 43 (1) of t:10 Econonic ancl Organised Crinc Control l~ct 1984, tl:..e Court fow.1cl thc!J guilty of rocoivirig stolon property contrary to Section 311 of t!.10 Penal Coclo, because circur:1s:,c1111cos und.cr which they roceivod the ox s!lowocl. that they know or ought to have knmm th?,t tho ox -W0G 0·tolon propel'ty _. T.c10 Court sentoncocl each of then to· seven ye2Xs inprisoni.Jonto · The Court fow.1d the case --- 5,- against tho sccondy fifth 9 sixth ancl seventh accused pr.ovod a."1.cl found tl1on guilty as c~12.,rgodo It so,1toncod 02.ch of then to 13 years impriso1mont. li.t the saJ:1O tir.10, and as inclic2.tod. earlier, the Court founcl that tho case ag2.inst tho fourth accused h2~d not boon provccl boc2.uso his identity had not boon established., It therefore acqui ttod his.. All t~10 sL--;: accused who wore co,wictod 9 jointly lodged -chis 2.ppoal which is agai;_1st both their convictions and sentences. Mr~ i':lbozi lodged five grolli"1ds of apporu. on behalf of tho appclla."1.ts, but for convenience we shall start with tho examination of ground 3, which is to the effect that tho cviclonco adclucocl at the tricl. of the appellants was not enough in law to establish ·0l:eir guil te In suppo~ct of this ground Mr. Ivlbczi a.."1alysed the evidence against each appellant,. For those appellants Lo~ accused 2, 59 6 ancl 7 w::o were convicted :-,1ainly 0~1 tl10 evidence of PW .1, Mr,. l\lbezi argued that tho trial Court should not have acted on tho evidence of this -wi tnoss without corroboration l:)Ccause of the unfavourable circu.,1stanc1cs under whicl1 he identified these appellants9 and that where the trial Cou.::-t f01md corroboration such as in tl10 evidence of other accused persons, this was inaclequate., With regard to the rest of tho appellants such as tho / ~ and third accusecl persons 7 he said that PW .2, PW~3 and PW.4 who-~e evidence i:iplicr-d;ed them, should have been treated as unreliable partic1 ::_arly wllon · tl1e · :ian at tho centre of the controversy i .. c~ lfabori Kaya·,1:Ja was not c2,llecl to give evid0i1Coo As for PW~4, Mr., 111:iozi submitted th.:t as tt.at witness was drunl-c at tho tine, ho was not in a position to pe:::,oivc 'a11-;thing, in any case he said, this witness provocl hinself unro: ..~.ablo 1-,·1oi1 i:n one place ho said b.o reportecl. tho incident at l:..ccused 3 1 s homestc2./ to tho cell loacler n.ncl in another he sa,id ho did not 11 -, 6 J.l'l asscssi:.1g t'..1c evidence of PW., 1 t tho trial Court 1;.o"l;ed that dt~ough t~w cattle thieves took souotiDC witl1 the conplainant questioning hin about ga;Je a.ninalG °'"1c1 -c110 nUi--;iber of hcrc~si;lOi.1, still ..1..1 u,.10y · " 1 n 111 cl ecic~oc, · ' orcLor to bo on +J.1•.,o ",~afc u ~ si· c1.e'f ~ no+ f:o ;:,c+u 011 tn' o , v u - evidence of PW .1 unless it was corrobor2.tecl by so:10 other cvid.cnce. It w2,s on the basis of tl1is reasoning the:c tho Court acqui ttec1 tl10 fourth accused. We thinl{ with rcspcc:t that t:1.e acquittal of the fourth accusocl was ,:1acle in error. Initially the cattle thieves did. not approach PW.1 r.ienacingly, they posed as hunters, tb.eir guns could not therefore have _ frighto:;.1cd PW .1. He talked to tl1en norr.1ally until tl1cy shed their sheepskins. In our view PW .1 hE:.Cl wcr3r opportunity to observe closely his visitors. m.1en they tu.r11ed. hostile, he had alreacly narkod them~ fort-L,mately o;.tly four out of the t1ob approached hi□ r.12,;.dng it oven easier for hi11 ·!;o maxlc "iihei:1• lli.at is why l:.e w2,s able to say what each of the four did to hil:1. In these circvnstancos the oviclenc·e of idc;.1tification given by PW.1 once accepted as it was, w2..s quite capable of stancling on its om10 Wi·Gh rcg2Xd to ·c:10 second. accused, ho w2,s subsequently seen by PW .4 still totting his gun at the l10rac of tho third accused. We do i1ot s'.1are M1·b 1'ibezi 1 s view that this witness w2,s unroli2.ble. If he w2.s dnu1k, ho was qu.i to capable of' noticing tho o.er.tgor posocl by the presence -of guns~ c"..lld in spite of Hr., Hbczi' s nisgivings we arc satisfiocl that ~10 returned to tho -~hircl accused I s hooc the following day to f'ollow up the 32.tter. For those reasons~ we arc satisfied that tho second, fifth and seventh accusocl persons were properly idcnti:'iod to h~ve boon ncnbers of tfi.o g011g which robbed tho conplainant of his cattle that afternoon on 11 /2/85 8.J.'1.cl thc>.t therefore they wore properly' convicted ... J..ccordingly, we di Swiss t!1oir appeals against convictioi-is • ••• ,,/7 7 We now turn to the second gro1..111c.l of appeal whic:.: concerns the first and. tJ.:ircl accused persons. In this grollil.d Nr,. m1Jozi conplained that bearing ii1 ni~1d that these accused. perso:n.s were not fo1.mcl in 2,ctual or constructive possession of tho stole,1 c2:Gtlc 5 the trial Court erred in 1 12.w in convicting then for that offm1ce4' third accused persons should have boon 2.cquittecl for two rcasoEso First, because t.tcy were not found. in possession, actual or c_onstructivo, of any of tl10 stolen cattle~ Soconclly 9 ho s2.,icl 9 tb.o trial Cou.rt could not use Section 43 of tJ.10 EconoJJic and Organised Crinc Control Let to convict tho accused of the offence under Section 311 of tl1e Penal Coclo because it is not an econonic offence cogn2-to to tl:e one chargodo We t?.~inlc ·Gb.o first re2,son could only apply to tho first accused. Tho stol ell cattle was fo1.md with one 1fo,bori Kayanda who e.::rplnil'1cc.l th2..t ho bov.ght it fI'or.1 tho first accused 2,nct proc:ucod oviclonco to ·ch2,t effect. If his explanation was acceptocl 2,s it was by tho ir..vestigators, tho burden sl~iftoc"":. -to tho first accv.socl to explain where ho cot it. Ho in turn oxplai,wd t~12,t ho :.i2.d bought tho o:;;: froa tho thircl 2,ccusod 5 ho clicl not procluco any supporting eviclonce 9 but tho .cvidm1co by PW.4 to tho effect that tllo third accused rJc,nt ionocl accused 2, 6 2..nd 7 "as those ho stole tho cattle ui th 11 lent support to t11is assertion by ·:;ho first accused~ We thoroforo think matters would have boon easier for tho prosocutio;.1 if thoy had only ch2,rgocl t~10 third accused wJ.:o offered no explanation apart fron general denials regarding his poGsossion of this Wo now t11m to tho second ror,s0;1 ac'tvanced by r-ilr., l:lbozi.. In convict inc; tho first ancl third accused for t!10 al tornative co1.mt of \ Ill"' - ' - 8 recoi.ving uncle:.:- Section 311 of the Ponal Code the Court sto:1ied& 11 Sectim1 28 of the L.ct provides for tho applicability of tho Crioinal Procedure Code /ii.ow tho _Criuinal Procedure l~ct, 1985 (i~ct l-T o.• 9 of 1985i7. Looking \ at section 306 ( 1) of tho CriL1i110,l Procedure Act, 1985, w;1ich do2..ls with 11 alter112,tive verdicts", wo fincl ·i;l12,t 11 w!1en a person is chugocl with stealing 2..i.'1Ythi11g and t11e Court is of opinion that ho is not guilty of that offence but ho is guilty of an J offence in respect of thc..t thing under one of the sections 302, 304 1 311 an.cl 312 of tho Pond Cocle, he ;:1cy be convicted of that of:i:'ence altl1ough he was not ch2,rged with it". Tho offence of being in possession of stoler.. property knowingly (or in other te.r:is receiving stolen property) fall □ under section 311 of the Penal Code. To sinplily this point, soc~ion 43 (1) of fl.ct Ho. 13 of 1984 provides as follows: When a person is cl1argoc'_ with an econm.1ic offence c1,nd tte Court iD of tho ~pinion that he is not· guil·i;y o:f that offence but is guilty of row other ( ocoi10:1ic) off once coenato to tho one c:1c11i;ocl the Court L1ay convict that person of t:~at other ( ocononic) offence al tl1ol1gh he was not c:.22.rgcd with it. ffiraclrnts Supplio£V., We therefore, constru.o p2.ragrn.ph 12 ( 1) 2nd (3) tl1rougb. soctton 43 ( 1) of tho Act CJS read together witl1 section 28 of tho Act 2.11cl n.s furt!.,.or read together with soctio;.1 306 ( 1) of the Crirainal Proccc.lm·c 1:..ct, 1985 we:.. we find a. ncl hold. tl12,t al though 2-ccusecl Ho• 1 wns cl12..l'gcd with th2,t off once of cattle· t}1cft, ancl 1~as founcl to hc,vo received a stolon ox knowii.1gly th2.,t ·i;J:e s2Lrn we,s not a l2,wf1-1.l property of accused Ho. 3.,. wl10ro he got it fron, , tl10 c1ccusoc.l cannot cscv.,pc tl,.o purview of this clre.conian stntu.tc - tho Econo1:1ic and Org.:i.11.iscd Crino Control Let, 1984 (Act No. 13 of 1984) 11 • This· being a trial of· c::.n cconoIJic offence~ it is cloe.I' th<1.t t:10 trial Court used Section 28 of tho Econor.1ic 2-nd Organised ·crir:10 Control Act 9 1984 to bring into plny tho Crir.1inal Procedure 1~ct w.b.icl1 i~1 section 306 , 1) quotoc',. above allows n trial Court to enter 2, conviction for n.,'1 offence unc.1.or Section 311 of tho Penal Cocle where tho orir;inal charge was stealing., But section 28 provicles: J "Except as is provided 1n this Part to tho Contrary, tho proceq.uro for arraignnoni; and for tho hearing and dotcrnination of cases under this 1:..ct sl:all be in accord- ance with tho provisions of tho Crininal Procoduro Codc 11 • This :-:1ca.11s that c.,--:cept where a particular procedure is specifically proviclcd in tho Acts tl1e procedure for trying cases ~l<lcr the Let shall be in accordance with t.b.o provisions of t11e Crinin<1l Proccclure Act., Tl10 procecluro for entering altc:i."'l1ativo verdicts is specifically provided in tlio l~ct under Section 43 qv..otcd above by tho trial Court, Since t1.:o Act provides e, specific proccclurc for this purpos~, Section 28 f orbic1.G trial Courts to look back to the Cri..,1inal Procodu.ro I.ct, accordingly trial Courts cannotg "oonstnw pare.graph 12 ( 1) and (3) throug!1 Section 43 ( 1) of tho Act as roac1 together with Section 28 of t:ie Act ~1c.l as fli. rther reacl together with :3oction 306 ( 1 )· of t!lo Crininal Procedure ii.ct 198511 , when entering an alternative verdict. A trial Court when trying an econonic offence can only enter 2,ltorL1ative verdicts under Section 43 of tho Act w!1ich lays down t!.1at t!:.o alternative vcrchct soug.1.r'c to be enter cd av.st not only be in respect of 2..11 oconor:1ic offonco, lJut one which is cognate to tho one cl12..Tgecl. Section' 43 is therefore 1.1orc restrictive than Section 306 in t!lo Gri:Jinal Procedure Act hence t!1e two cannot be r-eacl toeot:1or. Under Section 43 of tho l~ct, the trial Co1-ll't had. to ask it:solf first whether tl10 offence u.n::.lor Section 311 of tho Poi1al Code or any 1Pther offenco under. conGicleration is an econordc offence 7 soconclly i:2 so':, is it cognate 10 to tho offmico cllargoc':. i.-oo 02:ttlo t:1oft'... If t110 answer to ~.;ho firot ques · ].on is in t!10 negative as it obviously is in this c2.so, that is tho end of tllo Datter., The first e.,:,.1d t!1ird accused persons could not therefore be convictoc'.. for rocoivir...g 2.,s c::.1 alternative to stealing c2,ttlo m1clor Section 43 of tho Act• We havo asked. ourselves whether unclor tho facts of t!10 present caso.9 t!.:cro is another oconoIJic anc: cog-t12,to offcmce to _cattle theft for wl1ich unclcr Section 3 (2) of ·i;hc L.ppollato Jurisdiction Let 1979 we could. convict c1..t lee.st tl10 first 2-ccus.ocl. Thorc is 1101~0, not oven under the stock tl:of·i; Orclinanco~ Wo t:.rnroforo agree with Nro :,ibozi tl1at t!.rn only course of notion open to tho tri2,l Court was to c:cqL1it t!1e first anc1 tJ.1ircl acc-..rnoc.l persons 11 G:·01mcl 4 of tllo ncnoranclu;.-j of appeal concerns t!.10 Gi:::;:th accusocl., In t11io cr01.r.1cl I.Ir., r,ibozi co;:;-iplainod t::~r. t tl10 t;-ial Court erred in law in proccocli:-ig with t.'.10 02,,so 2X1(1. subsoqu.p11.tly co;.wictL-ig ai.1d sontenci:1g tl"o fifth appellant ( 6th u.ccusod) in !1is abso;1co. Ci ting a decision 01' tb.is Court in PE'.FER l'Tl.1:EDO & 4 01:i:o:E·IERS vs .. REP"UBLIC Criainal Appo2,l Eo,. ..§§ of 1"967, Mr., Mb.ozi argu.otl t~1at t.J.o tri2,l Court sl:ould not hc1vo p.:::-ocoo:.1_oc.1_ against tb..is acct.lsocl 1..1rn:or Section 37 (4) (b) of tho i~ct without first ,Jaldng efforts to got l;.im. It is correct th2;i; in tho MTEGO case, thio Court fotmcl that ·,/:. o tri2..l Court had. wrongly proceeded against Cl,11 2.ccusod in his absence, but th?.,t was a case w.'.~ore no visible efforts wore :-.1acle to trace t!:ie 2,ccv.sod ·i;o co;:1pol his at·~o:;.1c..3Jlco., In the present c,,,so, t1:oro is cvillonco of stroneous efforts llavL1g boon naclo to trace both t!10 c1.,ccusoC::. and his f:lUrotjr.. Tllo surety was sl1bsoquontly broucht 1:iof'oro t~10 Court ancl i:1:::-i'..o to Zorfoi t part of l1iG bmiclo We arc 11 therefore sa-ci::ficd that tho trfo.,l Cou.rt in thi_s cnso properly e:r.:ercisod tho :rowers under Section 37 (4) (b) of the /,cto The nc::i:t qt,rnstion is whether tl10 case ngainst tl1is 2.ccused wc..s proved beyoncl roason2.ble doubt II We riote th.."l,t t!rn tri2.l Court convict eel this accusccl on two factors~ Firstly, on tho inplica-'iiion by his fellow accused No,, 7 &'1.d that this iDplic2..tio:r1, was corrobor2,toc"'.. by -~110 evidence of PW ~4 on t~10 basis of wlla,t tho tl:ircl accused told hi,,1 regarding those who stole tho cattleo We think this cvic'cencc is very tonoous~ If tho third and sovc:nth accused persons S[',icl ~wt!1ing against J.;!10 sixth accusecl, they retractocl or repudiated it, so tb.at w~1at they tolcl a t!1ircl p2,rty cannot i tsolf corroborate 'iihat l1c1s boo:n ropucliatocl. ·11:,.oro wr.s no other oviclenc e ;10t oven fron PW~ 1 who w2,s 2.t t1~o scone~ Socom~ly, that ho jumpecl bi:,il ~ 11.~10 trial Court I:olcl J.;:12.t this circvs1::,t2.nco provoc.l tha.t tl10 sixth 2,ccusccl h2.cl a guilty .conscience otk~o1"'v1iso b.o wo1.1..ld 11 h::.vo braved it all 211.cl taL:on t!:o bull by t::e horns 11 • 'We agree th2,t t~1is is the 0xplanatio;_1 2,nd. pGrhaps a very strong c:;:pla:.1ation for one Ji;o junp bail, but it is not t!.::.e only one., An innocmt ;:-.1an 02..n clociclo to junp b.dl for other rc2,sons 311cl c ortainly it c2J1.l.1ot · be tho bas is for a conviction .,r whore as in tl1is case tl10r0 is no other evidence egainst tl10 accused.,. In those circu.--:J.stai,cos t-ro think t:.lo.."t; t.'..--..c convictioi1 of tho sLsr:th accused caiu,ot be supportcdo Tho positio:i .·. regarding t!10 apponl convictiol1.s is tb.oreforo as follows: We c.lisDiss tho appoo.ls of the soconcl accused Ju::1a Hussa, tho fifth accused Yusuf'u N joka and the seventh accusocl ·1m:12.il JJ.mod Ighon150 • We allow tllo 2,ppeals of tho first accused Jur;l'an:no L.t~1ur.12.ni, tl10 third accused !l'Ior.1ba J1,1Da Isingo a.ncl t:10 si?:tll accused Issa 1'11:ulonee. We quash • • 12 .,. tl1cir co1wictio11G.9 sot c1.,sido their ro3poctivo sentences c~1cl we order tl:::oi:r ir.1T.1oclie,to relonso fron prison. 1..mloss they or any of tho:n 2.ro otherwise lnwfully hold. Lastly wo sb.all clo2.l with tho q1,1o □ tion of sontoncos in respect of t.'10 appel12.,11ts wl1oso appo2,ls against c_onv~ction we h~vo clisnissocle· Thero arc two ground.s relc,ting to sentence.. It is st2,tccl in Ground one. that tl10 judg·;:10nt a:ncl sentence of tho tric.l Court is a nullity for want of sigt1aturos of tho Lay Mo;:ibors. Durii1g tJ.10 !:.caring of t~10 appeal,. Mr., Hlbozi subnittocl that tho ju:::lgwont, sc11tenco Mel orclcr of conponsation arc 2.11 null and voicl because tl10y wore not signed by t!.1e 12.y Heobers of t~c Court~ He submitted further tJ.12.:1; .Section 3 (2) of t~10 Appellate Jurisdiction ;~ct cannot be called in aicl to enable this Court to sentence tl:o 2,ppollants because that Section onvif32..{;os a Gi tuation wllor0 tho accused 2-I'O properly sentenced. First of all, 2.nd this was concoclocl by :Mr o r.Ibozi aft or boiLg shmm tho original record, tho judgnent was signed by tho Lay lfo::1bors of tho Court• We think this confusion cotllcl have been avoic.locl if care had boon ,, to.kcr1::wllon preparing records that all copies rcfloctccl this f2.cta The juclgne11t is thorofor0 ve.lid. u11c.lcr Sect-ion 16 of tho !..ct.. B-,;.t the sentence aad order of compcnsn.tion wore not so si&,nod, tl'~oy wore only signed by tho prosicling judge .. · What t:1011 is tlle position of such 2. sentence which _is not sign.eel by the other ~.iowbcrs of tho Court. Tl:o st2.T-cing point is Section 16 of the Econonic a.p.c~ Orgn.nised Crime Control° 1..ct 1984 which providesg .... ,./13 J .... ., 13 All questions to be clocickld by tho Court inclu.d.ing tho decision w11cthor it finds the e,ccusccl norson J: guilty or not cuilty, sl1cll bo dociclccl by ar,;reoIJ.cnt of najori ty of t!10 00;;1bors, any nonbor diff oring fron the views hole!. by tho ?.lajori ty of tho r.1or:1bcrs shall rccorcl tho rec.son::; for his d.iffcrc;1cc ancl they shall f.om n. part of t!10 record of the proc codings of the Court. In our view tho iaport of this provision is that t:10 valiclity or otherwise of a juc'igaent, sentence oi' order passed by tho oconomic Court, depends on tl10 full participa.tion or non-participation of tl1c whole Court. If the rocorcl clearly shows that all t!10 ;ao;:,1bcrs of tho Court took pert in tho proccodin.,.gs and thci.t tho resulting juclgncnt, sentence and.other orders aro :oajority decisions of tl10 1:1cnbers 3 th.at ju(lb.ro.cnt, sentence 2.ncl order arc valid irrespective of tho p:roced.u.ral irregularities that r.12,y crop up e.t tho end ioOo sO1:1O ;.1embcrs of tho Court forgetting or overlookinG' to sign tl1e rocorclo In 0·0hor worols, t!1e 2,bso:.1ce of sone signatures on the record cannot invalidate ,an otherwise valic1.. decision. arrived 2,t in accord2..11Ce with the provisions of Soction 16 of tl1e Ji.ct. Tho record can be reg1..llarised by obtainins t~1e missinG signatures" In tho present ca,se, tho record. s'.1ows tl:at after delivering the juc.gnent, • I the Court retired to consic1or ·i;ho sentence., It roc0;.1vcnod on tho s25.10 dc1,y 4/7/87 2.nc.l apparently after a short tine 6 The presiclinc judge then pronounced sentence and t~o conpensation order6 The previous fornat was strictly followed wherein spaces :for tho signatures of tho Loy Morabers wore provided at tho end of tho sentence and order of conponsation ~ Tho rocorcl, particularly frot1 tho wording of tho son·i;e:;.1cing rcra2..rks 9 t inclic2,too that tl10 Lay IvlGI:1bcrs wore not only ii1Volvocl in the decision but .wore also present in Court boc2,uso 2..t tho end they wore t:1ankod and disc!1argod.. T:1orcforo, since in the present case t~~e record 0~1ows that tb.c Lay Honbors took a full part in tho clccision r.12ldnc process, the • ➔PA-*@.Ui :P~.~,A}#;.A¾,#' ,1 ~ ,! " • • MY*'·~~--~".--·- - 14 sentence 2,ncl order of compcnse,tion ca.nnot be nulli tics• The oversight whicl: led to the Le..y rJionbors not nppe:ncling their sigi.12,turos on the rocorcl, cnn "be corrcctocl by sunr:ioning tho□ c.ncl asking then tq sit,11. But, if the rocorcl hnd inciic2,tcd that tho trie.l Court pcssecl tho sonto:nco end oado t~10 coCTponsc.tion orcler in contravention of Section 16 of· t~o Let ioeo that such decisions wore not oajority decisions of the Court, the ·position would have boon that tho trial Court woulcl be rogardecl to b.2.ve fail eel to perforrJ its clv:Gy in accorcl2,nce with tho law• -This Court would thon h~vo quashed tho sentence 2,,1cl tb.o orders 2..nd cit:'.cr roai ttocl the record to tho trie,1 Court 2.nd cliroct0c1. it to co□ply wi t:1 i:10 lc.w or 'it could itself h2.vc assunccl jurisdiction lli1clcr Section 3 (2) of tl10 !~ppoll<'..tc Jv..riscliction Act 1979 2,ncl ,pnssccl sentence on tho appellants. That Section which oopowcrs this Court to 2..ssu.,:ic jurisdiction of the tri2.l Court providosg For all purposes of a.,."ld incidental to tho l10aring and cloten1in2,hon of 0,~iy 2.ppoal in the exercise of t!.J.c jurisdiction conf crccl upon i"G by this f~ct, tho Court of 1:..ppoal shall, in 2.clclitioi.1 to any other poucr,:i nuthori ty end juris,-1.. iction conforccl by this l~ct, he.vo tho power, authority 2..x1cl jurisdiction vostocl in tho Court fro□ w!1ich t:10 appcn.l is brought o Tho oain purpose of t!.1is section is to speed up tho clotomination of appeals by enabling this Court to step into tho s~ocs of tho trial Court, but as we hacl occassion to st2-to in Ilo.,ssw Mzoo Mfe,ur.10 v • R. /j98j] TLR · ffiv.fl thiG docs not norm that this Court will stop into tho sl1oos of tho High Court in every co.so where ·i;ho IIig!1 Cov..rt fo..ils to perform its duty. It will all clcpcml on tb.c circunsto.ncos of 02.ch cnso, ancl t~1.erc way well bo c0,sos w!1crc it will be comiiclorocl sore approprio..to to roait tho case back to t]lo IIich Court to qo d.02..lt wi tl1 \ ., 15 We tlioroforo direct tho trial Court to reconvene 2..nc: rogulD,riso its sontonco c,ncl order of cowponsc1-'do11 by gottinG the_ Ley Ifox;ibors to sign tho rocorcl.. In Gro1..i.ncl 59 tho appoll;:,,nts- cor.1pl2,incd th2,t tl10 scn·i;oncos arc excessive in tho circUJ.,10tc.ncos., We clo ;10-i; agree. Tho 12.rGo nunbcr of cattle which was forcibly stolen, the tllro2,ts by tho use of firoarr.1s and that only one hoc>.d of C0,ttlu w2,s rccovorocl, ccllcd :for n. sovoro sentence. T!10 sontoncos of 13 yo2.rs inpoood on tho throe appellants whoso appoc'.ls e.,gainst conviction we b.2,vo dismissed wore in our view· wi"\ihin tho spirit ·of tl10 Act. Accordin6 ly, we also disoiss tho e.,ppoals against tho sentences. DA~:ED at A-oclo~ 1990. L .It. MAK.Ii.ME JUSTICE OF lPPEAL A. RfJ:IJ:J)llilJ.H JUSTICE OF 11.PPE.t.L L.I~. MFALIL!. JUSTICE Oli' APPE!~L ..) copy of tho origirial • . .t#~f/r 1.'.,·.' •.,..,. (J ;,H. rrnOFFE) <-· SENIOR DEFLY.i:Y REG!STRJ..R