20041221 TZCA Dar es Salaam

. IN THE COURT OF APPEAL OF TANZANIA ATDODOMA (CORAM: SAMATTA, C.J., LUBUVA, J.A. and MUNDO, J.A. CRIMINAL . APPEAL NO. 21 OF 1998 -"': BETWEEN . 1. JEREMIA SAMSON MSAMBA ) 2. CHARLES MWENESI ) APPELLANTS 3. SYLVESTER JOHN NOEL ) AND THE REPUBLIC ............................ RESPONDENT . (Appeal from the decision of the High Court of Tanzania at Dodoma) {S.B.Lukelelwa, PRM EX.J.) dated the 31 st day of March, 1998 ln (Appeal No. 26 of 1997) JUDGMENT OF THE COURT SAMATTA, C.J. : · On the night of April 17, 1996, Bahati Ngoli, a secondary school student, was asleep in a house of his elder brother, one Cpl. Lusuro, at Kigamboni, within the Municipality of Dodoma. He was alone. He had not locked the main door to the house. This omission was to prove a terrible mistake. At about midnight, three men burst into the house. At least one of them was armed with a sharp weapon. As to what happened thereafter on the night, we shall tell the story in the boy's own words. This is what he told the Dodoma District Court when he gave his . testimony against Jeremiah Samson Msan1ba (first accused) Cl1arles Mwenesi (second accused) and Sylevester John Joel (third accused) who, according to the prosecution case, were the persons who broke into his brother's house: " I noted that some persons [had] got hold of me, covered my face with a piece of cloth; ... [they] took me o.utside the house. They covered my mouth and [warned] that I should not raise an alarm. They took me away from that house. They took me to a place which I could not tell. [One of them] mentioned the name of Masimba but I could not tell who was Masimba. They ordered me to walk; while walking they stabbed me on the arm [and] several times on the face. They stabbed me five times then I managed to escape. I removed the piece of 2 ... cloth from the face and managed to kick one of them on his private parts. . .. It took me almost two hours to locate [my brother's] house. When I arrived [there] I found everything missing in the room ... " Bahati said he was unable to identify the burglars. He did tell the trial court, however, that the burglars stole a number of articles, including his two pairs of long trousers and- a short-sleeved shirt, which he identified at the trial. Richard LusuEo, who had travelled to Mpwapwa, returned to - his house two days later. Later he· told the trial court that the following articles were missing from the house: two bags with assorted clothes, two mattresses, a bicycle bearing serial number 0- 1812069, a small radio, a towel, two wrist watches, two mosquito _nets, and a cooker of chinese make. The assorted clothes included several pairs of trousers. Accompanied by one Godfrey Modeli (PW4) and PW5, Dickson Mathias, who half way parted with hin1, two days later Corporal Lusuro e1nbarked upon a journey of tracing his stolen property. The story he unveiled in the witness- box in this connection was a very interesting one. We propose, even at the risk of making this judgment unduly long, to quote hi1n in extenso. This is what he told the trial court: 3 " We arrived at a pombe shop [and] found two persons, one-eyed, and the second with no any defect had on a pair of trousers which I identified. [When] those two [persons] noted that we were talking about them they started to depart. [They] were the first accused and third accused. They sta_rted getting out. I asked the third accused;. [he] started to run · away. I raised an alarm stating "a thief'. The first accused [echoed the alarm and] escaped. We arrested the third accused with the help of some people. [The] people started assaulting him but I asked them not to do so. ·I questioned the third accused ... I wanted to know where he got that pair of trousers. [He] stated that he was with the one-eyed person who had run a'\-vay but promised to go to the second accused . . . The third accused called out [the] name Charles, [and] there appeared the second accused where he was. When the second accused came the third accused asked [him to] return the articles they stole. He told him that if they returned the articles stolen he 4_ has been promised that they [were not. going to] be taken to police station. . . . The second accused showed a bag, a pair of trousers and one shirt. The second accused [begged for forgiveness saying that] he had reduced that pair of trousers to his size [and added that] he was ready to pay for that. The second accused admitted that he sold the big mattress to one Ta\-vakali of Chinangali. The second accused stated that in· the [robbery] they \-Vere three, together with the first and third accused. He was a stranger to a place where I live but the second accused stated that they were shown the place by the first accused. Second accused stated that they sold the mattress and gave [the bicycle] to one Ismail to sell it. Second accused stated that the bicycle had been sold and they [had] already received Shs.20,000/=. The second accused produced those articles by himself after he had talked with the third accused . .. [At the] police station they were searched and the second accused was found with a wrist watch which I identified to be 5 mine . . . The third accused admitted that the wrist watch belonged to me. I asked [for] some assistance to trace ... Ismail. On the way to Kizota where it was alleged is the place where he lives the third accused pointed out that Ismail was the person we were meeting. We arrested this person ... Ismail ad1nitted to have been brought a bicycle by the second accused to find him a person to buy it. Ismail stated that he sold the bicycle to one· Hamisi. Ismail . . . stated that he was not sure of the house of Hamisi but ... another person called Dogo would show the house of Hamisi. We found Dogo who took us up to where Hamisi lives but did not [find] him. [His] in-law told us to come later. I took the second and third accused to Police Station. Late in the evening I was provided with another police man and militia man and went to Hamisi's [house] but [only found his in-law], one Magomeni. Magomeni stated that [Hamisi] \Vas not there [but the bicycle was]. I identified [the bicycle] by the serial number. We took the bicycle to 6 the police station. Magomeni promised to bring Hamisi." The evidence of Godfrey Modeli and Dickson Mathias substantially tallied with that of Cpl. Lusuro. The testimony of the Corporal to the effect that when he was searched at the police station the third accused was found to be in possession of a wrist watch and he, the Corporal, identified it as one of his two missing watches was supported by ·the evidence of Police Constable Anthony, the policeman who conducted the search. All the three accused persons gave evidence on oath. They ·. denied having been involved in the robbery they were charged with. The second and third accused also categorically denied having been found in possession of some of the stolen articles. Concluding his examination_;in-chief, the third accused stated: "I deny all what was adduced by the prosecution witnesses." This accused was the only one who called a witness. The witness' testimony consisted of only two short sentences: "What I know is that the third accused was once arrested. l don't know you (the second accused)." The learned trial magistrate analysed the evidence laid in the scales at some length. In the upshot, he found the case against each accused to have been proved beyond reasonable doubt. He 7 proceeded to convict the accused of the robbery; he sentenced each of then1 to fifteen years' imprisonment. All the three accused were aggrieved by that decision; they preferred an appeal against it before the High Court. The appeal was heard by Mr. S. B. Lukelelwa, Principal Resident Magistrate (as he then was), in exercise of his extended jurisdiction. The learned Principal _ Resident Magistrate entertained no doubt, after he had scrutinised the evidence laid in the scales, that the learned trial magistrate was perfectly entitled to find, as he did, that the accused's alleged guilt had been proved beyond reasonable doubt. He dismissed the appeal against convictions. He then proceeded to consider the - legality of the sentences imposed on the accused. He held that, since they were anned with a dangerous or offensive weapon at the time they perpetrated the robbery, the accused were, in accordance with the provisions of Minimum Sentences Act, 1972, as amended by s. 5 of Act 10 of 1989, liable to be sentenced to not less than thirty years' in1prisonment. Having arrived at that opinion, the learned Principal Magistrate set aside the sentences of fifteen years' imprisonment and sentenced each of the accused to thirty years' imprisonment. The accused were aggrieved by that decision, hence the appeal before us now. We shall hereinafter _refer to the first, second and third accused as the first, second and third appellants respectively. . 8 The first appellant, Jeremiah Samson Msamba, passed away before this appeal was heard. In accordance with the provisions of Rule 71(1) of the Tanzania Court of Appeal Rules, 1979, his appeal was marked to have abated. The second and third appellants appeared in person at the hearing of the appeal. They attacked the judgn1ents of the trial court and High Court on several fronts. The thrust of the second appellant's criticisms . was that neither the doctrine of fecent .possession nor the-repudiated confession was a safe peg on which to hang the appellant's conviction. According to the appellant, no independent witness gave evidence in this case to corroborate the assertion that he was found in possession of some of the stolen property. On his part, the third appellant contended that the two courts below ought to have found that the pair of trousers, whose .ownership was ·in dispute, was his property and that he had confessed to having taken part in the robbery because he had been subjected to. a beating. Like his co-appellant, the third appellant also contended that neither Bahati nor his elder brother, Corporal Lusuro, mentioned, in the course of their testimonies, any specific identification marks on the property they identified as theirs. Appearing for the respondent Republic, Mr. Mulokozi, Principal State Attorney, strenuously urged us to hold that the appellants' .convictions are sustainable. He · contended that the 9 doctrine of recent possession was properly invoked in this case and that the learned trial magistrate was perfectly entitled to use the appellants' confessions in arriving at his decision. According to the learned Principal State Attorney, the confessions must have been true because they led to the recovery of some of the stolen property. We have given careful consideration to the rival arguments and in the upshot we are of the settled opinion that there is no warrant for faulting the learned Principal Resident Magistrate's judgment. While the appellants' criticisms of the evidence of Bahati and Corporal Lusuro on the question of identification of the exhibited property other than the bicycle are not without some merit, we are of the opinion that the prosecution proved beyond reasonable doubt in this case that the appellants confessed to taking _part in the robbery. We readily agree with Mr. Mulokozi that the · story that the appellants made the confessions as a result of torture they allegedly had been subjected to is an afterthought. Neither during the cross-examination of Corporal Lusuro, Godfrey Modeli and Dickson Mathias nor during their own testimonies did the appellants make even a faint assertion that they had confessed because of the torture they had allegedly been subjected to. On the contrary, the implied thrust of each appellant's defence was that no .confession was made. When they appeared before us during the 10 hearing of this appeal the appellants impressed us as being fairly intelligent young 1nen. Neither of them offered any reason why Godfrey Modeli and Dickson Mathias should have been so wicked as to assert in their evidence, as they did, that the appellants confessed to robbing Bahati of some of the property which was later listed in the charge-sheet. The evidence of the Corporal, which was amply corroborated by the two witnesses, plainly demonstrated that the third appellant was a party to the robbery. His taking to his heels when the Corporal raised an alarm at the po1nbe shop during broad day light is consistent only with a sense of guilt. Again, as pointed out by Mr. Mulokozi, the recovery of so1ne of the stolen property which resulted from acting on the confessions demonstrates, in our opinion, that those confessions were genuine. Like the two courts below, we are of the opinion that the bicycle, which the appellants admitted to have been in possession of and handed over to Ismail for sale, was clearly identified by Corporal Lusuro as being one of his stolen articles. The appellants n1ade not even a faint asse1iion that it belonged to them or one of then1. The appellants having been found in possession of this property only a few days after the san1e had been stolen, we respectfully agree with the learned Principal Resident Magistrate that the learned trial magistrate was perfectly entitled to invoke the 11 doctrine of recent possession and find, as he did, that the appellants took part in the robbery of the same and the other property. The appellants have also appealed against the sentence of thirty years' imprisonment imposed by the learned Principal Resident Magistrate. We can find no merit in that appeal, too. That sentence is the minimun1 prescribed by law for the offence the appellants were convicted of. For the reasons we have given, we dis1niss the appeal in its entirety. - D t DAR ES SALAAM this 21 st day ofDece1nber, 2004. ~~~~~ 1/ <f ' ,A c. .., . ~. 4 G~ ! . _ -0 ·. ff'-:tf-lfit> ,~,.-~~ r1 l!- / 1 0 I :;; fl}; \~ -:-' B. A. SAMATTA . :(\ u \, tst'.,.l-••'-->-,':)J,,~:i:-.. ·1 . .r>...- CHIEF JUSTICE ,,}! i\\(.,p /;I" J? N , ~;i: ~:~"' ..~/.; . ~ D.Z.LUBUVA . ...,--~-:-~~- . . JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL I certify that this is a true copy of tlWinal. 12