20060424 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 10 OF 2005 ( Original Cr.· Case No. 820 of 2003 of the District Court of Mwanza District at Mwanza Before: D.S. NDUNGURU, Resident Magistrate) ,. ) GODFREY s/o NGOLO STEPHEN@ GEORGE ...................APPELLANT Versus THE REPUBLIC ........................................................RESPONDENT •.. ) . 10/10/2005 & 24/04/2006 JUDGMENT RWEYEMAMU, l: The appellant Godfrey s/o Ngolo Stephen@ George was charged with three others of armed robbery c/s 285 & 286 of the penal code as amended. They were acquitted while he was convicted and sentenced to 30 years imprisonment. That was on 16/6/04. The facts of the case were uncomplicated. On 12/7/2003, Pw 1 and her boyfriend Pw 2 were on a late evening frolic in Kitangiri Bwiru locality of Mwanza Township. They were suddenly ambushed by thugs who were armed with sticks and machete. They snatched a :.:):r-'.: mobile phone from Pw2 by cutting him with the machete; beat him ' ,.· and when Pw 1 tried to retrieve the phone, they threatened to cut her •with a machete. The bandits also stole money and a licence from Pw 2• The two sought help from their friends who were drinking in the ~ nearby bar. They stopped a taxi, shouted but the bandits escaped. 1 Pw2 proceeded to Kirumba police station to report, while he asked his friend one Clement Pw3 to escort Pw1 to her home. On the way . ... ,., · •· · home, Pw 1 noticed those bandits, raised an alarm which led to chase and apprehension of the appellant. His colleagues escaped. The mob caught the appellant; they started beating him in the course of which a phone fell from his pocket. The appellant was taken to the police station ,. with that mobile phone make Nokia PI; where Pw 2 had already reported the missing phone and its number 0744-048246. At the station, the ap~ellant was searched by Pw4 a police officer, in the course of which a phone line (sim card)- with Pw 2's stolen phone number was found- in his pocket. Pw 2 received wounds from the attack, for which he was treated at SekouToure hospital as per PF3 C. (P Exh.3). Godfrey n~w appeals both convictions and sentence for reasons contained in his 7 grounds of appeal. Those grounds summarized ... revolve arouhd the following issues: That the magistrate was biased and should have disqualified himself from the case: That on the facts and in light of amendments to the law, the offence disclosed was not that of armed robbery, particularly because no weapons were produced: That he was not properly identified particularly because no Identification Parade (ID) was conducted; That the case was not proved because persons who answered the alarm were not called to testify. The learned state attorney Mr Kiria for the republic/respondent supports conviction. Let me begin with the issue of bias. That claim arises from the following background. Trial in this case commenced after PH on 1 17/3/2004 when Pw testified. After a couple of adjournments, the case was fixed for continuation of hearing on 14/4/2004. Hearing 2 • however was rescheduled to an earlier date; 6/4/2004, when the prosecutor stated that; hearing had been brought forward because a key witness, Pw 2 who had been in Dar es Salaam was present and would be going abroad for study for a long period. After that submission, the appellant claimed that he was sick and prayed for adjournment. The other co accused were ready to proceed with hearing. The court rejected Godfrey's prayer for adjournment and ' proceed to record the testimony of Pw2 - the complainant. From then on, the appellant decided to keep quiet. Hearing was adjourned for 19/4/2004. On that date the appellant prayed that since the ~ magistrate had refused his prayer on 4/4/2004, he was biased and should disqualify himself. He also added that he had seen the magistrate coming from his chambers with the complainant. He did not specify th~ date when he saw them. And that the magistrate had enterefered with his cross examination of a witness. In a ruling dated 3/5/2004, the magistrate overruled the appellant - after which the latter chose to remain mute for the rest of the trial. The issue I have to decide on this ground is whether on the above facts, the claim of bias against the magistrate was found and if the magistrate erred when he refused to disqualify himself. I have gone through the trial magistrate's ruling complained of at page 12 - 14 of the proceedings. I am satisfied the magistrate • reached a proper conclusion that the appellant's reasons were not sound nor did they disclose fit grounds for disqualification. Godfrey's prayer after hearing that Pw2 was about to travel, and knowing he was a key witness was clearly aimed at preventing justice being done 3 ~by ensuring that his evidence would not be taken. I agree with the learned magistrate's observation based on the case he cited of R v. Shariff Hamad (1992) TLR 277 & James v. National Coal Board (1957) 2QB 67that: '~s the dutyc of disqualification for proper reasons is matched by an equal duty not to disqualify myself serve/except for proper reasons, and the parties not to be encouraged to believe that, .by an application for the disqualification of Magistrate they can have their case heard by a Magistrate thought to be more likely to decide a case in their favour" Bias in judicial proceedings is said to arise 'when something is done which creates 'even' a suspicion that there has been an improper interference with the course of Justice' - Rex Vs Sussex J.exp. Macarthy (1924) I KB 256, 259 cited with approval by the late • Lugakingira J.· as he then was, in Ahamadu M. Ntimba & Another Vs Republic Cr. App. 21/95 (Bukoba registry - unreported) See also; R Vs Hashim s/o Mohamed Mfaume (1968) HLD 272 where the late Saidi J. as he then was noted when considering the issue of transfer of cases in order to ensure fair trial that; " --a clear case must be made out that the accused person has a reasonable apprehension in his mind that he will not have a fair and impartial trial before the magistrate from whom he wants the case transferred. ... There must be distinct events giving rise to a reasonable apprehension" (Emphasis mine) There is nothing in the trial court record indicating anything contrary to usual judicial conduct of proceedings to justify the conclusion of bias. Surely a reasonable apprehension of bias can not be 4 'said to arise because the magistrate acted to ensure that vital evidence was recorded. He acted properly as noted in his ruling; 'Yt is the role of a magistrate to control proceedings-and to intervene when there is unnecessary prolonged cross examination, in order to serve republic time" ' (page 13 of the typed proceedings.) As to whether the facts disclose the offence of armed robbery, ~ the state attorney submits and rightly so; that the offence committed was armed robbery as envisaged by Act 10/89, because of the use of dangerous and or offence weapons. See a number of TCA decisions on the issue among them Chacha Mgeni Keremi v R, Cr. App. 47/95 (Mwanza registry-unreported); and (1995) TLR 278, as one Michael Joseph V R held; "(i) Though there is no express and specific definition of what constitutes 'armed robbery' it is clear that if a dangerous or offensive weapon or instrument is used in the course of robbery such constitutes 'armed robbery' in terms of the law as amended by Act 10/89. (ii) Weapons are not confirmed to fire arms only; other types of weapons such as knives are also included'~ In this case Pw2 and Pw1 were attacked and a phone stolen using a dangerous weapon - machete. That weapon was used to forcibly take several articles and the mobile phone from Pw2 and prevent Pw1 from retaking the phone, as described. It is not always _necessary or even possible that when a person is charged with armed robbery, the weapon used has to be produced. What is necessary is that the weapons used and the natures of their use are credibly described by the complainant/witnesses. That was what happened in this case. In light of those facts, the trial court rightly found that the 5 "offence committed by the appellant and his friends was as per existing law and practice, armed robbery. I now come to the submission regarding absence of Identification Parade report. The learned state attorney is right that an ID· parade is not always necessary nor does 'its absence render witnesses evidence less of credit':-Jandika Makwarija and Ano. v R • Cr App. 175/91 ( CAT Dodoma registry-unreported) Evidence of ID that extra judicial parade "is not substantive evidence-but admitted for collateral purposes" See Moses Deo v R (1992) TLR 43 and Dennis Nyankonda v. R, Cr App. 159/1990 (Mwanza registry-unreported). The learned state attorney submits that the appellant was clearly identified by Pw 1 and Pw2 on different occasions and that; in the circumstances of this case, it was not necessary to conduct an Identification parade. I agree. On the facts Godfrey's conviction was based not on the evidence identification as such; rather on the evidence found credible of Pw 1 and Pw3 that he was arrested/ apprehended after they saw him and raised an alarm, he run but was caught shortly after. He was not as lucky like his friends who also run and were not caught. And · as fate would have it; the stolen mobile phone fell as he was being beaten by the mob and at the police station, its line found on him following a search by Pw4 • clearly identified as belonging to the complainant. The identification by witness led to apprehension then finding in possession of which he offered no explanation. The appellant elected to remain silent in his defense. This was a case of being caught red- handed. The Chain of events from identification - 6 \ • · 'apprehension and being found in possession was not broken but fellowed one after another - producing sufficient evidence. In such circumstances there was no need of ID parade. Godfrey complaif)S of the prosecution's failure to call witnesses who answered the alarm raised by Pw1 and Pw3 . The learned State ' Attorney submits that:it is not always necessary in order to prove a case, to call all witnesses who witnessed a fact in issue. That indeed is the law as per section 143 of the Tanzania Evidence Act, 1967, and as elaborated by the Court of Appeal in several cases among them; Yohanis Msigwa V R, (1990) TLR 148; ''no particular number of witnesses is required for proof of any fact. What is important is the witness's opportunity to see what he/she claimed to have seen and his/her credibility" In the present case, the court believed Pw2 and Pw3 who identified/apprehended the appellant and witnessed recovery of the phone PI shortly after the attack; plus Pw4 the police officer who searched him and recovered the stolen sim card/phone line. That was credible evidence of possession for which the appellant offered no explanation. (It is important to point out that Godfrey remained mute . , after Pw2's testimony on 6/4/2004, although on that date he had not made his unsuccessful prayer for the magistrate to disqualify himself. That prayer was made on 19/4/2004.) The court acted properly in drawing a negative inference on the appellant's recent possession of a recently stolen article. I have noted in another case I dealt with recently James Kisabo @ Mirengo and Yusuf abdallah fadhili v. R HC. Cr. App. 338&339/2004 (MZA registry - unreported) that; 7 \ . "the proper avenue open to an accused who is not satisfied with the trial court ruling on a legal issue which is not appealable, is to, wait and raise the issue on appeal, but not to refuse to be further involved in the subsequent proceedings, as Yusufu chose to do. His conduct was ill advised and had serious consequences, as I proceed to show'~ \ When the accused acts otherwise, chooses not to exercise his right to give reasonable explanation or any explanation at all when the offence discloses pqs'session, he justifies the court's decision to draw a negative inference. I a nutshell, I find the appellant's appeal against conviction and sentence to have no merit and dismiss it. "It is so ordered". •, Sgd: R. M. RWEYEMAMU JUDGE 24/04/2006 Date: 24/4/2006 Coram: Hon. R. M. Rweyemamu, J Appellant: Godfrey s/o Ngolo Stephen @ George - present For Republic: Mr. Kiria SA B/Clerk: Mr. M. Said Court: Judgment delivered this 24th day of April 2006. Right of Appeal Explained. Appellant: I hereby give notice that I shall appeal to the TCA. Court: Notice received. Copy of Judgment and proceedings to be supplied to the appellant by 1/5/2006. J Sgd: R. M. RWEYEMAMU JUDGE 24/04/2006 8