19900305 TZHC Dodoma

IN TID COURT OF IiPPAL OF TANZMTIA AT DODOIIA- (CORP'j"I..'I1iCLi, J. A. J., And iJLLILA, LA0) CRINflTAL £PPEALNO .66 OF 1987 BDT MI.NGtJiLDL KaJLGEJ. • e a • • a a • a a • a • APPELLAUT MID fW T OT Of TV'?c .LLLJor'mT £jJW).LUV• •• a a a a a 0 0 a • a • (Appal from tc conviction of the High Court of Tanzania at Dodoma) (Riumbika, J. dated the 22nd day of April, 1987 in conomic Crimes Case No. 11 of . 1986 JUDGLT OF TI COURT pvrO T t) .t.. The appellant LIG1RDA IcLLAGU was scntenccd to a jail tcrm of fourteen years by thc- Economic Crincs Court, concqucnt upon his conviction for the thcft of some cattle. He was also ordered to concnsatc the owner for the animals not rc cove-red and to pay Sho • 3, 000/= to -tic herdsman 9 P11.2 1'KOLO TLGO, for the injurics PU.2 sustc.ncd during tic ticft. The appellant is complaining against the trial Court s dccision and before us be appcarcd in person. Er. Thrariibc, learned ;3tctc Attorney, rcistcd the appeal. On 14th Scptcmbcr 19852 at Chikola Village, Dodoma District, PW.2 Pw01. was out in the busii grazing some animals bclonging to J APOLINARY SONGOLA. The bcnts were 104 he-cd of cattle-, seventy goats, end ten sacep. jt about 4 p.m. PT,2 was oct upon by, four people wio cut iim with a bill—book, blind—foldcd him 9 and ne-dc away ithi all tic animals under his care. On the mOrrow a scorch for tic animals was mounted and on 16th Scptcmbcr 1985 9 thet is two days after the theft, fifty seven head . a. • /2 / —2'. of ca.ttic and nine of the sheep were traced to a place called T.konze. With thc animals were four people, thrcc of whom managed to get awcy. The forth one was the appellant who got. arrested, with tiic help of his own uncic, PN.5 YOA YOT, as it turned out. The owncrship of the animals recovered was not controverted.. In his Mcmoranduin the appellant raised a nuithcr of geounds most of which were devoid of substance. The relevant ones were mainly that the owncr of the animals should not have been bclicvcd bc cause he is a proven liar; the appellant's uncle and t.e herdsman were not truthful witnesses; and that if the herdsman had really seen the appellant among the people who accosted him in the bush he would have alerted. the, villagers. In reply Hr. Mwambc submitted that against the appellant was not only of the testimony of PW,2 who claimed to have identified the appellant as one of the people who rustled the animals, but also the evidence of PTr.3 TT-11' GA SidlEI, P03 IaLIID AWAKY and PW.5 regarding the circumstances of tiie appellants' arrest, Lt the trial the appellant conccdcd that he was arrested where and when it was alleged he was; only he asserted that he had nothing to d.c !rith the animals. He was innocently going home from the tom and decided to go via PTT.5 's place at .konzc. The.n he heard an alarm he joined some women who were r.uming. He was arrested and tckcn to where some cattle more and told that he was a cattle—thief. At arc of the view that the evidence on record does not really prcscn- much difficulty. Thc appellant is quite right that PTT.1 furnished the trial Court with some untruthful information, that he was iim:cdiatcly present when the aDpcllcnt ras being arrested.. However, apartfron the fact that PL1 later onicd iis lies, t..:c ieorta.nt tiing is t..ict tac trial .13 I -3- Court did, not in any way rcly on that bit of PIT. 1 'S cvid.cncc to arrive at the finding that tha appellant •cms one of the cattle thieves. It relied rathcr on the evidence of PT'T. 3, PW.4 and PT,5 the people who actually participatcd in apprchcnding the appellant. The evidence of PW.3 and PW.4 was to the effcct that thc four people including the appellant, were with the cattle and that the four people resorted to their heels. The witnesses were abic to apprchcnd only the appellant. The trial Court bclicvcd TWO and PW.4 and wc have not been able to discern any factor wkici would persuade us to fault the trial Couxt's rcliancc on thc t,:stimony of these two uitncsscs. Thcrc wasp in addition, the testimony of tie appellant t5 uncic, PW.59 the person who caine to the aid of thc others in arresting the a.ppcllt. To our mind, it does not make sense to say that PT'T..5 AS grudgcs against the appellant over some identification papers to help the appellant in securing bail for thc apcllant's uncle, evidently some other uncle, because the appellant's own cvidcncc was that PIT,5 did render the assistance asked for. - PW.5 testified to finding the appellant being ohascd by people who were crying out that the appellant was a thief. He did not say that he found the appellant running at some women, The appeliant told tilC Court of tria.l that PW.5 asked him why he was running. He does not say what his rcply was, s indicated earlier on g the ippOlant also disputed PW.2's claim that IIC, the appc ilant, was actually one of the four people who confronted him in tnc bush, c note that the trial Court unhappilyommitcd to make a specific finding on this. This is a first appeal so we arc entitled to evaluate this piece of evidence and we have had to ON a look at it* a e . • /4 al y —4- Having clone so, wc crc satisZid that the herdsman had reliable cnoui opportunity to scc and identify thc appllcnt as y according to PW.2's cvidcncc, the appellant was the firs -t one of the four maraud.crs to accost him. P1.2 's evidence therefore goes to buttrcss the evidence of PW.39 PU.4 and PW.5 . rather; if you like, tLliS one picoc of evidence of identification at thc scnc was givcn crcdcncc by the cvidcncc rc.g'erding the circ -Lmotancc6, of the appcllantts arrest as related, by PtT.3 9 P1.4 and P11.5. ITo arc satisfied. thc.t L.c appellant was properly corrvictcd and vie accordingly dismiss his appeal against conviction. Also we sec no reason to interfere wi -Li tc qcntencc and order tc appeal against which we disr,usc, Thc punisnncrrt is well dcscrvcd. Apart from d.cpriving P11.1 of a large nuabcr of 1is beasts, tLic an -ti—people donduct madc sevcral villegcrs abandon tc.ir occupations and trek the bush for two whole days searching for tc ar,mals. Besides, P1-162 wan cut with a bus—knifc and left to spend the nit in the wilderness. During -the bearing of this appeal the cucstiofl was raised as to or not tc Lay Members of the Court nad taken tac oat.i as rcquarcd by t:c Law. The records in our hands did not indicate that the Lay Members had bccn sworn so the original record bad to be resorted to and checked. The oatiz were there alriht and our records should have reflected this fact. -5- DAITM at DODOMt thia 5th day of -Iaxch 9 199 0 . L.M. NAKJJ JIJSTIC OF 32PJAL L RLiLD:LfuI JM3TIC3 OF APPELL L.H. ItLILA JIJSTICTJ OF JLPPLL I ccrtii'r that this is a -truc copy of -thc oriinak. (33. ICLIJOE) DPL]TY RGLTRPR