malimi ezekiel ngumila others vs republic 2006 tzhc 130 24 april 2006

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 317 OF 2004 (CF's) HC.CR.APP. NO. 318/2004 & 319/2004 (Original Cr. Case No. 30 o f2002 of the Rm's Court of Mwanza at Mwanza Before: R.L. DA VID, Resident Magistrate) 1. MALIMI s/o EZEKIEL NGUMILA 2. DUNI HASSAN @ MWAGOGA S ................... APPELLANTS 3. ABDUL OMARY AZIZI Versus THE REPUBLIC.....................................................RESPONDENT 2/11/2005 & 24/04/2006 JUDGMENT RWEYEMAMU. J: This is a consolidated appeal. It deals with the appeals of Malimi Ezekiel Ngumila, Duni Hassani @ Mwagoga and Abdul Omari Azizi with numbers (Nos. 317,318,319 all of 2004) respectively. They emanate from a decision in Rm. Cr. Case 30/2002, where 15 persons were arraigned and charged with armed robbery. At trial the three appellants were 10th, 7th and 15th accused respectively. The 1st, 2nd, 3 rd, 4 ^ ^ gth^ 13 th were acquitted while the three; the 7th Duni, 10th Malimi, and 15th Abdul were convicted and sentenced to 30 years imprisonment. The 14th Mabula was sentenced in absentia as he absconded before full trial. The facts of the case were brief although the trial took a long period from 19/6/2002 to 30/8/2004 before completion. In the meantime the 14th accused then in remand, escaped under mysterious circumstances, as per ruling dated 22/3/2004, and the 15th escaped but was rearrested. Briefly the facts were as follows: On 18/8/2000 in Mahaha village, a house of Pw2 and Pw5 wife and husband respectively, was broken into. The husband was away. They stole a number of articles including Pw5/s gun which they snatched from Pw2 as she was trying to escape through the back door. She runs to Pw3's house, but none of the bandits were identified at the scene of crime. Thereafter, the mishap was reported at Kabila police station. Six people who were among the accused were arrested and seen at the station by Pw4, of police CID. A month later that is on 29/9/2000, Pw1 a police officer and his colleagues received a tip off that there were some people in a minibus at Igoma locality headed for Magu. They made a follow up of the bus, where a number of occupants were arrested; they included that bus's driver and conductor. A search followed in the course of which the appellants and the 14th accused were each found to be in possession of various parts of firearm. When the parts were assembled, they made up a gun with the serial number which identified it as the one reported stolen from Pw5. They had no permit to own such firearm. That; together with the manner they were carrying it - in separate parts coupled with the prior information the police were working on; they arrested and charged the appellants with others. Conviction of the three appellants and their colleague the 14th accused, was based on credibility of Pw1 and application of the 2 doctrine of recent possession. I quote the relevant part of the judgment; "Again the 7* and lCfh accuseds were also arrested at Nyamuhongoio in possession o f the other parts o f a short gun when assembled it formed a short gun with Serial No. 978853 stolen at Pw*'s home. Despite the fact that the evidence are circumstantial still this court draws an inference against them and the same has been proved beyond a reasonable doubt so as to....... the doctrine o f recent possession in respect o f the f h, lCfh and 15th accuseds to apply as the Court o f Appeal stated in Ally Bakari and Pili Bakari V. R (1992) TLR 10 at Page 15 and I quote:- "...... where the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond a reasonable dought and must be clearly connected with the facts from which the inference is to be inferred". In our situation the stolen shortgun recovered in pieces and latter on assembled gives the direct evidence o f the nature o f the offence which committed at Mahaha village. To this court an inference is drawn against the 7 h, l4 h lCfh and l$ h accuseds who stole a gun on a robbery event took place at Pvf's home". That inference was drawn from the evidence of Pw1 including information given during cross examination of that key witness as hereunder; "XXD bv 7th accused: The mini-bus had move the 16 Passengers, the incidence was witnessed by other passengers including the residents o f that area. You are arrested and found in possession o f ammunition. On that day I arrested nine suspects and you are among those I arrested. You were in possession o f the bandits part o f the short gun. I arrested you since you had no permit to repossess the same. I don't know your occupation. I don't investigate this case. Sgd: GJ. Kadasso RM 22/ 10/2002 XXD bv l(fhaccused: You hid this put o f the short gun in the abdomen and you covered it with your shirts. I arrested you for further interrogation. It's true your statement was recorded, but I didn t record it Sgd: GJ. Kadasso RM 22/ 10/2002 XXD bv l& haccused: You are being changed with in unlawful possession o f fire arm and that o f armed robbery. I didn't witness the armed robbery at Mahaha. There were eye witnesses who witnessed the incidence. You are found in possession o f the buit, you set aside with one o f the detectives. I dint know if you are also employed in that mini­ bus. Sgd: GJ. Kadasso RM 22/ 10/2002 RXXD bv P.P. The bult was in possession o f the l$ h accused, the barred and.......... ammunition was with Duni, the other part was in possession o f Malimi ( I ff1accused). Sgd: GJ. Kadasso RM 22/10/2002" In defense, each of the accused/appellants gave bold denials, explaining instead that they were arrested some where else near the reported cite. They were not believed. The trial court found 2 pieces of evidence credible. That the robbery did take place as described by Pw2, Pw3 & Pw5. That the appellants were arrested with the stolen gun as described. Having so found, it 4 proceeded to find them guilty as charged on the doctrine of recent possession. The three appellants are basically opposing the decision on grounds that; they were charged under a wrong section of the law; the doctrine of recent possession was wrongly invoked; that recovery of the stolen gun was testified to by one witness Pw1 and finally that the magistrate was biased. The learned state attorney Mr. Bulashi submits regarding defective charge that the appellants could not have been charged with S. 287(c) on 19/6/2002 because by then the law had not been amended: That the doctrine of recent possession was rightly invoked. The gun was stolen on 11/8/2000, and found within a month, a period recent enough for the doctrine of recent possession to apply. I agree, particularly because from the nature of the recovered article, it is not one which can pass hands easily unless if exchanged between hands of fellow criminals; which in any case is not in issue - as none of the appellants attempted any explanation of possession - they instead denied it in total. I find this ground baseless. I am satisfied on the facts and evidence that the event which took place in Mahaha village was armed robbery. Now regarding credibility of the evidence of possession. I am satisfied like the learned state attorney, that the fact of possession was established based on the evidence of Pw1. The argument that only one witness testified is well answered by the state attorney that Pw1 was the leader of the team - which made the finding. It was not necessary to call more than one witness to prove that fact. What is material is the 5 credibility of such a witness. As per section 143 of the Tanzania Evidence Act, and as elaborated on by the Court of Appeal; "no particular number o f witnesses is required for proof o f any fact. What is important is the witness's opportunity to see what he/she claimed to have seen and his/her credibility". Yohanis Msigwa R V (1990) TLR 148. The court found that police witness Pw1credible, and I have no basis to reverse that finding. After all there were no reasons to suggest that he fabricated a case against the appellants. If he was an overzealous investigator or arresting officer, he could have done the same in respect of the other persons he had arrested and charged. On the issue of partiality, I find no evidence of the like. First, a number of people were arrested, charged but acquitted. Only those found in possession were convicted. As can be verified from the record (P. 4 proceedings) the magistrate even almost dismissed the case, due to in ordinate delay by the prosecution, and castigated the prosecution machinery on the escape of the 14th accused, in his ruling of 22/3/2004 All that, show that the magistrate was doing no more than to control proceedings as he should. Bias or partiality is said to arise "when something is done which creates even a suspicion that there has been improper interference with the course o fjustice" - as held by my brother the later Lugakingira J, as he then was in Ahamadu M. Ntimbi & Another V R. Cr. App. 21/95 (Bukoba registry - unreported) following with approval the decision in Rex Vs Sussex J. exp. Macarthy (1924) I. KB 256, 259. As I have just said, there is nothing on record indicating anything contrary to usual judicial 6 « cdnduct of proceedings to justify a conclusion of bias. This ground of complaint has no basis and is refused. In brief, I find the appeal in respect of all the three appellants to have no merit. Their conviction and that of the 14th who escaped, was deserved. The appeal is accordingly dismissed. Sgd: R. M. RWEYEMAMU JUDGE 3/ 5/2006 Date: 3/5/2006 Coram: Hon. R. M. Rweyemamu, J Appellants: Absent For Republic: Mr. Bulashi - SA B/Clerk: Mr. M. Said Court: Judgment delivered this as per coram above. o rd e r: Copy of Judgment to be sent to the appellants immediately. File forwarded to District Registrar. Sgd: R. M. RWEYEMAMU JUDGE 3/ 5/2006 7