19930421 TZHC Dar es Salaam

l_____--'\t ~ . ~ . " IN THE' HIGH COURT OF TANZANIA ~~ A'.£ DAR ES SALAAM PC HIGH COURi CHIMINAL APPEAL N0.18 OF 1992 .. (From Ghe decision of the Distric,; Court of Kibaha at Kibaha in.Criminal Appeal No.2/92) EZEKIEL MRISHO ... . . ... .. . APPELLANT ~ ~ Versus THE REPUBLIC RESPONDb'N :r JUDGMENT '. . MREMA; PRM (Ext~ Jur.) .. This is a second appeal bv the appellant E~ekiel Mrishot bt having .ur.successfull~ appealed against the decision of the Primary ·-0ourt of ~kuza, Kibaha District to the District Court of Kibaha,· .. He h~s now appealed against the judgment and sentence passed by ibe • l • District c,ourt. At the primar:v court ,;he appellant was charged with ro bbE:rv with violence c/ s 285 and 286 of the Penal Code. ?he primarir, co·..i_r,; was satsfied with the evidence tendered before i "t and • . found vhe ?ppellant guilty as charged but that court lacked juriedioiio:1 to impose Lppropriate sentence befitting ,;he nature of the offence and accordinglv bhe learned magistrate referred the matter, apparenilY under the primarv cour~s criminal procedure code, to the district court for sentencing. When· ,;he mat,;er was placed before the learned Principal :~isliric-~ Magisirate Mr. Kimenya, who was then the Distr:i.g'G_ Magistrate i/c Kibaha District, on 11/5/90 he senGenced the appel+ani to 15 years cus~odial de~en,;ion but before he did that he made the, I • · following remark: · : ", "Court: This case has been transferred to this Cour·t for sentencing u/s 47 of the Magistrates Act No.2 of 1984. The accused has been informed ., the same." I have examined section 47 01 ~he Magistrates• Courts Act, No,2 of ·' 1984 which in mv view, and I think I am right, does not support lhe above quoted passage. Xhe proviso to subsection l(a) of sect~on ,, simply stat es: 11 47(1) ·where anv proceeding has been instituted , . in a primarv court, it shall be lawful, at any time before judgeme~ ( the emphasis is mine), . for- · ... (a) the primary court, with the consent of•the dis1,rict couri; or a court of a resident magisi;rate •· having jurisdiction c;o ·Gransfer ,;he proceedings ·: · ·, • ... ·. .• :. ,, - 2 to such district court or court of a resident magistrate or to some other primarv court, or (b) . . .... . . ... .. . ..... . . (? ) .. . .. .. . ...... . . .. . . . The importan1' words under the sub-heading (cited above) are 11 at any time before judgment.'' In the present case the trial magistrate in the primary court where the proceedings commenced gave judgment in that case and he referred the matter, as opposed to transfer, to the District Court for the aspect of sentencing onlv. The district magistrate was in no doubt, in my view, wrong to deal with the matterr as if the proceedings were transferred to him for trial, or ravher r.~ to say that they were transferred to him in terms of section 47(1)(a) o! the Magistrates' Courts Act for sentencing. In my opinion the the f'ase was committed to the dis·trict cour·G for seniiencing under paragraph 3 Part II 1io ·i;he Third Schedule of the Primar:v Courts ~riminal Procedure Code and for Ghe avoidance of doubt the proviso under tha1i paragraph sGates: ''3·. Where a primar,, court convicts am, adult of .. an offence and, on obtaining information as to the charact~r and ant~cedents of such adult or as to the circumstances or prevalence of the offence, the court is of the opinion that they are such that greater punishment should be imposed for the offence than the court has power to impose the court mav instead of dealing with him in anv other manner, commit the offender in. custody to the dis-Gri ct court for sentence. 11 Now having put the record clear, I believe, I will now deal with the grounds of appeal before me. '..£he appeal before the district cour~ was dealt with bv another District Magistrate other than Mr. Kimenya - who sentenced the appellant to 15 vears, imprisonment. The appeaJ, was heard by Mr. Masaki, the Senior District Magistrate who suQceeded Mr. Kimenva as Ghe district magistrate i/c of Kibaha. The learned dis""Grict magi::nrate dismissed the appeal for lack: ot menitous grounds and confirmed ~Ghe sentence. . :Che appellan1i put up six grounds of appeal bu-G on going 1ihrtush, .all of them there is not a single one futuring as an exceptional ground that would call .for consideration and decision. £he. important point for consideration and decision is whether or noi ihe facts established constituted the offence of robbery with violenef within 1ihe meaning of section 285 of the Penal Code. • ... - 3 - The relevant evidence for c6nsideration is whether the appellant committed the robbery offence which was accompanied with violence either immediately before or after the alleged robberv is ihai of Hamadi Juma (PW2 - SM2) and Nuru Juma (PW3 - SM3). It is clear fr.om the evidence as established at the primar,, court that the appellant me1i PW2 at a "pombe club on 24/10/89. It would appear· that the two men left the club while drunk and this view is supported bv PW2's vounger brother Nuru Juma (PW3), the relevant words are as follows:- "Nakumbuka tarehe 24/10/1:39 saa 1. 00 ( usiku) Eziekeli alikuja na Hamadi wakiwa wamelew~ shati mkononi.1t According to Hamadi (PW2), 1,he appellant met him (PW2) at the "pomo, club" at about 8.00 pm after PW2 had ordered a bot-Gle full of palm wine (pombe ya mnazi). On the other hand the appellant told the trial co~rt that on the date material to this case he was at Pengo club from 4 pm. Where he was drinking pombe. At 6 pm Hamadi (PW,) joined the appellant but PW2 did not have money. He (PW2) borrowed money shs.120/=, from the appellant who reluctantly, according to him that PW2's parents were not in good relationship with the appellant: lent the monev to PW2. £hat PW2 promised to return the money on the same day after drinking. Then a·li 7.00 pm the appellant and PW2 went to the homes1iead of PW2's parents but while on the waJ PW2 remov~d his shirt and gave it to the appellant to hold it as security. On reaching PWl's homestead PW2's mor;her Khadija asked her son (PW2) why he was not wearing a shirt. According to the appellant PW2 told his mother that he owed shs.120/= to the appellant. PWl then turned to the appellant and asked:- ''~ ....• why coming here when we do not talk to each other (umefuata nini na wakati hatusemi mimi na wewe? 11 ) The appellant answered PWl that her son Hamad owed him monev. PW2 now wanted to snatch away the shirt from the appellant but the latter resisted. It was also the appellant's story that Khadija (PW1) on seeing the fracas between the appellant and her son Hamadi (PW2) she -Gold the BiJµellant to take a piece' ,t khanga together wi·r;h the shirt and -Ghen leave her home. Thai lihe appellant would re·i;urn the clo Ghes after Hamadi refunded the money to "the appellant. The appellant left P:vl' s home and took ,:;he clothee to his friend George fearing th,n on -the way PWl 1 s famil;r would atta~k him in view of their misunderstanding between them. On the way home the appellant me·i; "sungusungu 11 who were already informed of the episode. That ~hey assaulted the appellant who did not disclose to them where he hid the cloGhes until he reached the CCM office. :£here he found Hamadi (PW2) hc;1d been arrested ap:d was tied with a rope. Finallv ·Ghe appellant surrendered -~he •lo'·thes (exhibits) after having been assured bv the sungusungu that he would be refunded his money by PW2. However the sungusungu, according t~ the appellant referred the mutter to the police who then decided to charge the appellant with the offence of robbery. Now from the evidence and circumscnnces under which the alleged crime was committed the quesGion thm; ought; to be asked by both the lawer courGs was whether the prosecution proved its case beyond reasonable doubt as required bv the law. i have carefully examined the proceedings which took place before Ghe primary and district courts. _In mv view both the lower courts erred in law in not putting into acco1nt the appellant's defence. The appellant's defence was not weighed and then considered whether or not it contained any trulh as to raise anv rea~onable doubt agains~ the complainant's case. Secondly it was not considered whether or no~ the appellant and PW2 were drunk when the fracas between them ensued. £here is the evidence of PW2 who undoubtedly stated that he was drinking palm wine when the appellant appeared. PW3 confirmed that when the appellant and PW~ reachect PWl 1 s homestead both appeared drunk. The appellant ale• told the primarv court that he started to drink from 4 p.m~ up to 7 pm. When he and P-W2 lef·1; the club and went to PW2' s home with a view of getting his refund- from PW2 who had borrowed shs.120/= ·to o~y pombe. From this evidence therefore, in my opinion, clearly shows that both the appellant and PW2 were drunk and possibly incapable of knowing exactlv what Ghev were doing, or knowing that what they were doing was illegal. It is pos~iblv true that the appellant 3natched the khanga from PW3, PWl's daughter and then ran awav wiih it when the appellant realised that PW2 was not refunding the money to him. If that is reallv wha~ happened the appellant must have acted in an civilized manner if no·c ~nupidl:v wi -Ghout sealizing wnat would have been the consequences thereof. AS I have said the element of unsoundness of mind due to the effect of alcohol ought to have been borne in mind bv the trial court or the first ~ppellaie court before recording conviction. It is not also in dispute that from the pombe club both PW2 and the appellant went to. PW2's home. Both the courts below believed ~he prosecution's evidence that the appellant accompauied PW2 ~o his home for the purpose of robbing him, but con~ersely the appellant claimed that he took Ghe company of PW2 in order to have PW2 refunded the monev to him. As I have pointed - 5 - out above the two court believed the storv given bv the prosecution and gave no reason whv the appellant's evidence was not put into view, From the evidence and the appellant's behaviour soon after leaving Pengo Pombe Club I am of r;he view thali lihe naT;ural course of events did not seem to support the complainanli's allegaliion that the appellant was all out to rob the complainant. The uppellant, no doubt, was very well know to the PWl, PW2 and PW3. From Gheir evidence I am moved to believe that these witnesses from the same family enjoyed good relationship with the appellant but at the time when this episode happ~ned it would appear for one reuson or another that relationship had broken down. A robber, in mv opinion would not lead PW2 who knew the appellan-G very well to his parents with a view of robbing them. It was s~ated in evidence lihat when the appellant reached PWl's home Khadija (PW1) was surprised to see her son Ha~edi (PW2) without wearing a shirt, the shirt 0PW2's shirt) •.,ias wi·Gh the appellant, according to Khadija. PWl was heard telling ihe primary court as follows: "···· .• tarehe 24/10/89 maJira va saa 1.00 za usiku wolikuja mshitakiwa akiwa na mwanangu Hamadi. Nilipomwangalia Hamadi nilimuona hana shati, shati analo mshi ·rnkiwa E~iekel mkononi. Hapo ndipo alip•oniambia kuw2 oliku.1.-Ja ameapa kukanvaga kwangu lakini leo amefika, nilimuuliza kwa nini au kwa shari? Ndipo aliponiambia kuwa anamdai m-GOto wangu pesa shs.12O/= kwani amenunulia pombe zote ••..• " The above quoted statement· was corrobora-Ged by HH' s son, Hamadi (PW2) and the relevant words are as follows: "Nvumbani mama mzazi aliuza kuna nini? lVlshitakiwa al~tamka ..•• mimi nina mda mrefu sijafika nyumba hii lakini lee nimekuja, na kuja kwangu mimi namdai Hamadi. Ndipo mama aliposema kuwa kama mnadaiana mwende huko sic hapa, hapo mirni nikakataa kama hanidai ndipo akaniachia na kuingia ndani, kulikuwa na khanga juu ;ra kamba akaichukua ••••••• alimsukuma mdogo wangu akaanguka chini, hapo alimvua nguo alivovaa .....• na kuanza kukimbia huku akisema - aliakae nifualie atakiona." Nuru Juma (PW3), PWl's daughlier, also had ·r;he following io say~ ''···•··· Alipofika msh~akiwa alisema ana miaka 3 hajafika kwetu lakini lee cimefika, hapo mshitakiwa alisema anamdai kaka Hamadi ndipo walipoambiwa na mama waende wakactaiane kilabuni, hapo walianza fujo ndipo mshtakiwa alipoingia ndani na kuchukua khanga iliopo kwenye kamba na alipotoka nje alimpiga ngumi na nikaanguka chini ndipo alini:fungua ··nguo nili ,roluwa nimejifunga na kukimbia nazo khanga 2 na shati .1 huku akisema atakaenifuata ndivo kifo chake •..• 11 6 - From the chree quo-r;ed statements, unless ·c;here is evidence to the contrary, one tends 1io believe the appellant's story that he had lent some money to PW2. The reason given b:v the appellant for going to PWl's residential premises was to recover his debt from .PW2, and then reason Ghe appellcin 1i rei t era1ied to F,Jl. I1i was not for 1ihe appellan1i 1io prove his case bevond all reasonable doubt. If PW2 did noG owe money GO the appellant whv did PWl, PW2 and PW3 not raise anv alarm to draw attention to ·cheir neighbours about the appellant's evil act? If PW2 was innocent in the w~y he tried to appear before the Grial court whv was he himself also rounded up by sungusungu and taken to the CCM where himself and 1ihe appellant stayed until the following morning. This is found in his own statement where he said: 11 • • • • • • • • wakati ·tiunarudi tuliku·rnna nae njiani akiwa hana chochote. Tulipelekwa wote CCM na kulala pale mimi na mf,htakiwa ..•• " Back Go the pombe club mv mind is not also settled about what PW2 told 1ihe trial court. The following, only the relevant portion, is what PW2 stated: " •••.•.• ali·Gokea mshi tnkiwa baada :va kukaa na kuniB.mbia wewe wwana unajua umekatazwa kunywa pombe kw8 nini unakunywa? Unafahamu mimi ni nani? Nilimwambia wewe ni askari sungusungu. Aliniambia hivi sasa uko chini ya ulinzi vua shati lako na sasa twende n:vumbani kwenu. Tuliondoka na njiani nikamwambia anipe shati langu akaka1iaa, tulipokaribia nyumbani tulianza kuvu1iana kwa nguvu ······" Assumming that; what PW2 1iOld "the court wos what really happened on that dav, this having taken place a-G s club where other persons other than PW2 and the appellan~ were expected Go be present. If the prosecuGion wanGed the court to believe this kind of story why no witness who was present at Ghe club not called to sa:v what really transpired at the club between the appellan1i and PW2? From the club 1io PWl's homestead did it mean that 1ihe two persons - appellant and PW2 never meLl any person? lhese questions and others are left unanswered and this in my view verv clearly shows that there was a lo1i to be desired in the case for prosecution. The appellanG did not den:v having gone to the complainant's house. Als• he did not denv to have had some friction between himself and ,. t· '· i PW2 and also exchanging some words with PW2's mo1iher resulting into tak1ng away by the appellant PW2 ;' s shirt and a piece of khanga from PWl. Although in law it was wrong on the part of the appellant to ~ake the law in his hands ~o seize the alleged property in order . - 7 , C to hold i"G as security for his shs.120/= he len"G "Go PW2, in my view, i "G was .also gravely wrong to held "Ghat 'the appellant robbed the complainan"G (PW1) violently contrary "Go section 285 and 286 of the Penal Code. The appellant was alone whereas PWl was with PW2 and PW3. There was no evidence to show ~hat the appellani·was armed in any way, and after all the incident took place at PWl's homestead where PWl had all the opportunity ~o resist the alleged robbery by raising alarm, or even ~o use reasonable force as permitted by the law to prevent her property from being stollen or otherwise. The appellant by taking P\Jl's property without taking appropriate legal actions to cover his debt would doubt I believe committed some criminal offence but no1 the offence of robbery with violence as alleged at the primary court~ Indeed he acted stupidly and irrationally but as I have said the aspect of alcohol ought to have been put into consideratiori. In sum, for the few observations I have herein stated, I am satisfied ~hat if ~he two court below painstakingly analysed and considered the evidence before them the way I have attempted in this appeal the conviction against the appellant would not have sustained. Both the conviction and sentence were illegal and in the premise I hereby quash Ghe conviction and set aside the sentence with the result that the appellant is to be released forthwith from prisons unless he is otherwise held/detained for any other lawful purpose. A.C. Mrema, PRM Ext. Jur. Judgment delivered this 2~14/93 in the pr~sence of Miss Kasuka Senior State Attorney for the Republic. the appellant is absent. • A.O. Mrema, PRM Ext. Jur. 21.4.93