19981130 TZCA Mbeya

IN THE COURT OF APP.t:AL OF Tl\NZJNIA AT l\iBEYA ( CORAM: 0f~~~:IP.H.'.:~'\JI, J. A., LUBQ.V.:h_J. A•.~½lJQ1~GNGIRA, J •A.) CRH E:.4.L APPI;:;;\I., NO. 34 OF 1997 1. 9493 Cl?L. 1rm,1BO K,a\.'\fGOKA)· . 2. 9551 C!?L. S'l'A~EY JOHN ) • • • • • • • • • • • • • • • • • I\PPELLA~TS VERSUS THE REPUBLIC ... ............................. . " RE-:iPONDENT - (Appeal from the judgment of the • I c0urt of ·ranzania at Mbe,ya . i ----··- -{;:r.A, M·. Shayo - PRM; (E. J. ) dated ' 10th August, 1996 in SDC) Criminal Appeal No.' 44 of 1996 ---------- JUDGlV•ENT OF THE COURT LUGAKINGIRA, J •• i. : Ii The appellants, Cpl. Tembo lVMangoka and Cpl. Stanley John, were convictc:d on a count of conspiracy to commit an offence and another of aiding a prisoner to escape and were sentenced- to concurrent terms of four months' imprisonment. That was .. way back on ·16.04.96. Their appeal to the High Court was dismissed in its entirety and_they_ further appealed. ·The background of this unfortunate turn of events was that on 22.11.94, while at Tukuyu Prison as prisons officers, the appellants were assigned to escort to court a c0nvict, one Ambokile Kipomela. On their way back to the prison after the court session, the convict dived into an apparently waiting taxi which drove off. It is not known whether he was ever found. ../2 ... I I '- ·---- ~~-------------------=...::,-"""'JJ 2 Mr. Mulokozi, Senior State Attorney, who appeared for the respondent Republic was unable to support the crmvictions. We think he was correct. There was hardly any evidence of conspiracy. In a charge for that offence un6er section 384 of the Penal Cede, it is essential for the prosecution to prove the existence of an agreement between the conspiring parties. In this case, however, it seems to have been bad coincidence thut the appellants were detailed to escort the convict___when - --·--- he was planning to ---·-----· escape. --··----- -- They were randomly ~J,i selected to escort the convict the very same mrirning that 'the· convict esca1,ed. There was no evidence to link them with the taxi driver, with the_ two men the taxi driver brought all the way from Mbeya to Tukuyu, or with the sister of the convict who hired th~, tcUCi for the two men~ The circumsta.nces aurroundirig ti-w convict' s entry into the taxi under the appellants' helpless stare, point more to laxity and negligence than prior agreement~ In the same vein, we think there was no evidence of aiding but factors o:f negligence. The convict I s exit from the -pr.isoil- 1 was not rec,,rded in the Occurrence Book. But that was the responsibility of another officer, one Deo, who was discipl-iz;ied.'-.for......the orr:ission. ____TI:_le_ appellants carried no gun when they were supposed to have one. That was an act of negligence and serious negligence ~oo. According to the taxi driver, the convict entered the taxi without handcuffs but the appellants said he was handcuffed. The testimony of the taxi driver, who vrn.s accused._No. 3, was accomplice evidence which required corroboration. There was no such corrouoration • • • • /3 :1 I i ·---~---~~--t:J ... 3 Even assuming that the appell;::1ts omitted to h2ndcuff the convict upon lr:, aving court, th3t, too, w2s a.'1 act of negligence in the circumstances of this case~ In the absence . . of· any evidence that the appellants knew of the convict's· planned escape er thbt they would be assigned tcJ escort him, it is lagally impossible to say that their acts and omissions were calculated to aid the ccnvictis escape. The offence of aiding a prLsoner to escape under section 117 of the Penal l,.' Code, p:r.e.supposes so.me c0nsciou-s---act or omission on the part of the aider to facilitate the escape. We are unable to find evidence of this on the part of the appellarits. Finally, it is noted that the appellants were charged under sub-3ection (2) of section 117. Under the sub-section the offence is corernitted by conveying or causing anything to be conveyed into a prison with intent to :f acili ta·te the escape of a prisoner. There was no scintilla of evidence that the appell:mts conveyed or caused to be c0nv2yed anything into the prison. The charge and the evidence were thus at variance and since there was no amendment, the trial and C<'mvicticms had no basis in law. We allow the appeal and quas!l the convictions and sentences which have long been served. ' I I I I L , 4 DATED at imEYA this 2nd d3y of April, 2001. ----· A. S. L. Ramadhani JU;]TIC.ii: OF APPEAL D. z. Lubuv.a 'f JU3TICE OF APPEAL i K. S.· K. Lugakingirc:1 JUSTICE OF APPEAL I certify that this is a true copy of the original. (1. : j (A. G:f ~arija) D3PUTY REGISTRAR . ·•' • IN THE COURT OF APPEAL OF TANZAtiJIA AT Ai1USHA CIVIL APPEAL NO,. 44 OF 1999 THE ATTOR.HZ'I GENERAL OF TANZANIA •••• ~~•, •• APPELLANT. VffiSUS . MFAHiiMIKO CCEI='JJsu LIMITED ••••••••••••• • ••RESPONDENT (Appeal fran the decision of the High Court of Tanzania at Arusha;)'i (Mros1' J,.) dated the 30th day of Navember~ 1998 in Civil Case m,. 63 of 1992 ·..__ -- ORDER MAK.AME, J ,A.: Orders as to c•sts. · JATED at ARUSHA this 29th d~ of Aul}lst, 2001,. J]SI'IC]i QF·AEf:'EAL R.H. K!SANGA JUSrICE . OF APPEl\k K,.S.K. LUGAKINGIRA ,I1l3TIC~ ·OF AFPEA,:r,., f-·< I certify that this is a true copy' of tl'te brigirull. , ', r·L---r---·-'"-f· .. {J. ,/{,· ,A,_ __.. -i.•. , . f' .L.K6 iIAMBALI j,/ .· DeyUTY RFflISTRAR