20110930 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA (CORAM: MUNUO, J.A., MBAROUK, J.A., And BWANA, J.A.) CRIMINAL APPEAL NO.239 OF 2009 OMARY MOHAMED KANONDO ............................. APPELLANT VERSUS THE REPUBLIC ...............................................• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) (Lila, J.) dated the 15th day of July 2009 • I m: Criminal Appeal No. 116 of 2009 JUDGMENT OF THE COURT 28th September, 2011 and 5th October 2011. MUNUO, J.A. The present appeal arises from Criminal Appeal No.. 116 of 2007 in the High Court of Tanzania at Mtwara wherein Lila, J. upheld the conviction and sentence imposed on the appellant in Kilwa District Court Criminal Case No. 36 of 2007. In the said case, the appellant faced two criminal counts namely; -1- Count 1: Being in unlawful possession of a fire-arm c/s 4(1)(a) and 34 of the Arms and Ammunition Act, 1991 for allegedly being found in possession of one ''gobore" without a permit on the 6th May, 2006 at about 15.00 hours at Nangurukuru Village in Kilwa District within Lindi Region. Count 2: Being unlawful possession of Ammunition c/s 4(1)(a) and 34 of the Arms and Ammunition Act, 1991 in that at same time and place, the appellant was found in unlawful possession of three rounds of ammunition without a permit. On the fateful 6th May, 2006 at about 2p.m., PW2 Ahmed Mwichande Jongoo was driving a bus registration number T853 ALK from Kilwa-Masoko to Nangurukuru. The conductor of the said bus was one Sharifa Said Ally Bungara who testified as PW2. The appellant, Omary Mohamed Kanondo, who was familiar with the said bus driver and conductor, asked for a lift which entitled him to travel without paying bus-fare. He was allowed to occupy the staff-seat from Kwamkocho and he was apparently leading to -2- Nangurukuru. He had a bag which the policemen who deposed as PWS and PW6 suspected so they trailed the bus. Somehow, the appellant suspected that the policemen were tracking him so when the bus reached Nangurukuru, he disembarked with his bag and went to the house of one Ally Chipate who deposed as PW3 at the trial. Ally Chipate stated that the appellant found him talking to one Said Ally Mbawala who testified at the trial as PW4. PW3 knew the appellant before so when the latter put his bag down and asked for a place to relieve himself, the former showed him where the latrine was so the appellant left his bag where PW3 and PW4 were sitting and he proceeded to the latrine. Meanwhile, PWS and PW6 were still tracking the appellant from a distance. PWS stated that he saw the appellant running into the bush behind the latrine. PWS No.F6916 PC Joseph and No.E8734 PC Godwin then approached PW3 and PW4 and asked them where the owner of the bag was. They told the police that the owner of the bag, the appellant was in the latrine. It. was then that the police alerted them that the appellant escaped into the bush and -3- abandoned this bag there, pretending that he was going to the latrine. Thereafter PW3, PW4, PWS and PW 6 went to a nearby police road barrier and upon opening the bag, they found in it clothes, a gobore and 3 rounds of ammunition, the subject of this appeal. A search for the appellant who was known to PW3 was mounted after confirming that he was not in the latrine. In a word, the appellant abandoned the bag at the feet of the two old men and fled into the bush. Since the appellant was known to PW 3 he was subsequently arrested and charged with the present offences. In his sworn defence, the appellant stated that he was apprehended at Ikwiriri within Utete District, selling clothes from house to house. The Kilwa police took him from Kibiti Utete police whereafter he appeared in court to answer the charges against him. The appellant categorically denied that he was found in possession of the gobore and three rounds of ammunition. He called one witness, DW2 Omary Rashid Kindamba to say that the appellant found him in prison and -4- asked him to come to testify that on the 6th May, 2006 the appellant's wife sold tomatoes to DW2. The trial court grounded a conviction on both courts as follows: o Count 1: 8 years imprisonment, o Count 2: 2 years jail; the sentences to run concurrently. The gobore cum home made gun and 3 rounds of ammunition retrieved from the appellant's bag, Exhibit Pl and P2, were handed over to the police. The appellant denied possession of fire-arm and ammunition. Aggrieved by the conviction and sentence, the appellant appealed to the High Court but the appeal was unsuccessful. Thereafter, the appellant lodged this second appeal. The appellant was unrepresented. He reiterated his innocence before us and disclaimed ownership of the gobore and 3 rounds of ammunition, saying that the prosecution witnesses mistook his identity. The appella·nt prayed that his appeal be allowed. - 5-' . Mr. Prudens Rweyongeza, learned Senior State Attorney for the respondent Republic, supported the conviction and sentence on the ground that the evidence adduced by the six prosecution witnesses, overwhelmingly established the prosecution case beyond all reasonable doubt. The identification of the appellant was water-tight, the learned Senior State Attorney contended, for the appellant boarded PW1's bus carrying the bag he abandoned at PW3's home in broad daylight. The learned Senior State Attorney observed that the bus driver and conductor were familiar with the appellant which was why they agreed to give him the staff-seat for which he did not pay any fare. Furthermore, when the appellant went to PW3's home and abandoned his bag there pretending to go to the latrine but instead escaped into the bush, PW3 had no difficulty identifying him because he too knew the appellant before. The defence of alibi raised by the appellant was not the least probable under those circumstances, the learned Senior State Attorney argued. -6- i I The issue is whether the gdHt of the appellant was Ii 1: established beyond all reasonable dou?t. Ir It is trite law than an appellat~: court should not interfere ,11 i'l with findings of facts by the trial cou~ with had the advantage of 1: II hearing, seeing and assessing the ~redibility of the witnesses f 11 unless there is justification for doing so. Such interference would 1: 1: be justifiable where there are i: apparent inconsistencies, Ii 11 discrepancies or a poor evaluation 6f the evidence by the trial I . Ii court or where the trial court overlopked a material fact. There 11 are numerous authorities on this, i~buding Silvanus Nguruwe 'I :1 versus Republic (1981) TLR 6~; and Goodluck Kyando i I versus Republic, Criminal A~peal No.118/2003 {CA) I, (unreported) in which the Court obs~rved that'.""" I "it is trite law that ever}1 witness is entitled to II credence and must be believed and his I, i, testimony accepted unl~,'ss there are good and cogent reasons for not ~elieving a witness". 11 i We scrutinized the evidence adduced at the trial and found 1.' . i 11 . no ground for finding the identific1tion of the appellant by PWl, 11 Ii I I -7-i JI Ii ,11 l1 I ,I I ",, PW2, PW3 and PW4 doubtful. In view of such strong evidence, I the defence of alibi raised by the appellant was not plausible. I We are satisfied that the lear~ed Senior State Attorney I rightly supported the decision of the l~arned judge. The learned I judge correctly upheld the conviction/ and sentence. The appeal is devoid of merit. / We accordingly dismiss the appeal. I I th DATED at MTWARA this 30 day of S~ptember, 2011. II' E.N.MUNUO JUSTICE OF APPEAL ~Pe4 / ~ I \~ M. S. MBAROUK ll ~ JUSTICE OF APPEAL , ~~~· t S. J. BW;NA JUSTICE OF APPEAL I I copy of the original. ' I D