19920819 TZHC Tabora

:'\ 1: . 1 IN THE HIGH il COURT OF TANZANIA il.T TJJ;l)Rt.. l~PELLATE JURISDICTION I . ;, ( Taboia liagist.r-y) ·.i . '1I (HO) CRH.lINif iiPPEAL NO. 107 OF 1990 ORIGINAL CRit~~f.L CASE NO,. :.265 of 1989 ·11· 1: •. · OF THE DISTlifCT',:i, CQURT OF $,NY/.NG.li. DISTRICT AT SlllNYANGA . i' l. :Before t..E.JU MSIGrfA Esq• t RESIDENT Mt..GISTRATE I 'I·'I" I I\ ;: ,, r t· ELI1.S JOAKIM '!• • •:•• • o • • • • • • • • • • • • • • • • • APPELLANT [i 1\ I ·\ · (Original. Accused) 1 \'. , Versus I · 1! TEE REPUBLIC, •• ~••••••••••••••••••• RESPONDENT II Ii \ i (Original Prosecutor) !. .i\ iL ,i ' . J 'U D. G E M E N T. ...,-,; 1 ,\ I', 1 Qharges: 1\ 1! . 11\ :\ 1st Count: House breaking c/si\ 29f ( 1 )· of the Pen2.l Code Cap. 16. 1\ ':\ 2nd Count: Stealing c/s 265 of the l'enal Cbde Cap. 16. i1 / Ni..TJ:TI' L~. 1 1 ' ,Ii, ,I ,i ·11 " l :, Indicted and prosecuted, before lsm.:~a.nga District Cburt 1 rtas ELIAS S/0 JOHAKIMU 1 herein to be called the app~llbt, facing two dounts - House breaking 11 i . c/s 294 ( 1) of the Penal .COde - 2 - Ste~ling ,I " c/s 265 of the Penal Code Cap.

16. At the end of the dey, the appellant, ' \wa~ found guilty and convicted, as charged 1 ·and sentenced to two yea.rs imprisonment II d.n I, first count, and five years iraprisonment on 2nd count t without ord.~ri:,ng the same to run, either, concurently 1 ·or consecutively. However, the Fublic\1 Pr~secutor, before the above sentence, 1 told the court, that the ,1.ppellant had.II pr,6vious convictions - s-tore breaking and stealing c/s 296 ( 1) of t.he Penal Code 1\ 1 Cai. 16 - Criminal Case Ho. 94/89, and the appellant in mitigation prayed as fol+owst . 11, 11 . ,j I\ ',I " I prey for liniency. I;\ p~~ that, my other sentence I am currently serving, Ii I'. be considered in sentencing me. This i~ a.11. n 11 ,, I 1\ ,l I '1 The trial and sentencing magistrate, di:rected as follows,- \ ··1 11 i,I' \ \: 1\ I '•1\, I (_1 irn· 'I , 1,i 'i i\ n It is further ordered, that as a 2nd ~ffender, and. bec2,use he was senteticed to six years impr:i.sonr,,ent, in the previoL1.S conviction, these sentences shall be served coj_1secutively, the resultant effect, being he shall serve a total of seven ( 7) years imprisoru:1Gnt. 11 ~i_;he appellant aggTieved, has appealed agc1inst conviction, contcnd:1.;.1g that the ·I qu.ali ty and quantity of the evidence, at ,hand, did not prove the charge. prefercd. beyond rca.sona.ble doubt. :lhile ,the sufficiency ano. q1..:;::.1i·:;y of evidence is to be

tested, too, to be visited :is, tho aspect of sent::=mcc, t'.1a·~ was meted. ou:t, or should. lia\te bce11 neted outt t0 th·e appellant. 1 , The facts of the oc::se, significantlY speak for thmnselves ·:;~ms., On the mor11.i..ng of 18/7/1989, r:i'.1 JUSTII'Ti.. D/0 IVi.i;.ZDmE,' left for wo1•k a.f·~er locld.11g he.r house. :lhen she car.1e back at 5 p.m., sar.1e day, she was welconoc. back by the doors, that we1·e open and ajar. ITcr count of her propertiost· clisolosed that pi•oportios including (,'lasses, p~atest spoons, electric iron, hc_,,aclb2.g, e.t.c. v2.lu0d at Shs 23,885/=, had been stolen th~rofrof.lo J:he obvious question wa,s, and now, is 1-L10 b1'olrn into this :.,o:.:so, and stole. and .... , ...T,"71171--;-,- -;:·,:,r•LJ- ~ S I'/,0 LUtBELI, -.J •• 1jo•Gh aged twelve and. seven years of age I rGspocti vely, and ullo 2Ste1• a successful voiro dil•o test, gave evidence on oath. ~ ii.2 Z.::.c:c;L"'--L'~ 3/0 r,4.,G:'.l~G,:., narrating how he saw the appella.."lt entering the cor:1plai.hani;s hm'.3G t at about 2 p.G. has ·this to Sc3J7 ~ - 11 Th0 accused that da,y caue, and called K.BLVIE, who he sen-t for cigarates. IIc ga:vo hiw r.1ono:,;·. I(olv::.;1 wen·~ for cigarattes. ,/hen ho lof,i;, I saw ,liilG accnsod 011,i;or JUS::CINJ., 1S house by the door loading to the ulmox roor.1s. Ile wont and topt for long. I.bout ½ an ho~:J:'r la,Gor on, I saw him come out o ~ sack

full of thj_ngst on his shoulders. H.o carJo to tho placG I m1s, p1x~ h:Ls luggage down and told. mo, that, I shol.-:.lc1. tell ICELVIlT t to keep cigarot~~ohad sent for, as he was in hur1'Y, and he could. co lloct th0i;1, aft or ho sent his h.iggac:;c. =o wantocJ. to ta.kc bi's lugg2,go and go. I ·:;old hiri: 1 sea KELVIiJ was cor.1ing from afar. 11 J:Jii is now til:10l;y ancl. opportune at this junctu.ro, to hoar fror:1 ~7 ;~.4 KELVIN 3/0 Lu11i8EL.:~, who pj_cl;:s ·i;lJ.or'::froD, and tolls us thusij- - 3 " Sot:d;L10 last wook, I l'.OD.cr.:bcr I saw ELIJ.S c'l.ircc·tion of the nc1china. . :~e later ca1~10 aga.i11: 1 2.,ncl stopped where wo ~ad boon pla~{ing. :fo sJ.;op1)ccl there, and asked r.:G to go for cigarct-~00. '.J.1.011 I c2.r.1c back, I found llir;: 1-1ith a sack, ·aJ.ricll now w~s no longer empty, but fv.11 of things. .J.10;_1 ho snu nc fror:, 2. distai:l.co, ,h o pu·1; J.u • '.).. on .J..h I 1., • G c;rounc 1 2.ncl. 021:10 running for the cig2,1'0-'i:;tcs bof ore he Woi1·~ be.de for hislugga.go and ho hv..r:,iodly vanished. aWa'j• 1• -'-1.,., tl ·:ii·i;).::i_ this and such evidence, was tho cicfonco that, tho appellant ,·ms at 2 p.m. wi·i;h n:1.3 l<llJ.J-. DINL, ,1]10 harl invi tad lti.D for food. llowovor D:7.3 u~xi.lo co11cod.in3, tho 2,p~::iolJ.2.nt wont to her, ·she. dori.iod sho· had. invi·:;ocl l:i.::.;-::. for foodt 2110. 2.d.dod tha:t ho onl3r stayed thoro,

for two El.i.nutos. •.,j10 2,p3:J•.::lJ.2,,1r;; also added, 113 b.e..cl boon attoncling Dooting 2.t tho oil 1:1ili, which D~i.4 YC..:KFC; L:X)iJ..JID tho oil r.1ill chief clorl;:: discounted, saying ·liht:t, -the appull2. nt hc..c: boon sacked as an ooployoo long before 18/7/1989, and :'could not _t4oroforo e::;·co;J{. a;.13-· nooting, 2,11d. that in any c,isc, there wc1s no such r:icoting; on that day a.::; c:-,,11 • .i'ith such oviclonco, the trial court fol,mcl 'i\i.2 and rw.4 c.1·cic~:1.1Jlo, establishing th2,t it ·aas tho i:!ppolla.nt, Nho broke into tb.c conplainants dwelling honso, and stole, a,J.'li:. :1onco tho conviction. ~!:110 c1ppcllant is coii:plainingly atto,cl;:ing tho trial i.agistrato, for relying on tho evidence of cluldj;cn of • 1 CY.l.C.OllCO by •·n - 'c····· ,. ..,. 2 Lr1. · i -.... ·,:~J.LL . ·.1a .r.::. 1,0 L.: ' t.J/' .,·a.·•• ,;_a,n .. ·.:~: . d ,t.',i:. -···• 4 Ab .rv s;·o 1·-L···,•.:_•.·),~---LJ.-. rr-m1VIIT _ , 1..,"'o cliscotmtod bocanso of ·:;hair t'3nd.or ngos. ~iith a lo-'.; rospoc·~, what we Nish iR not always tho ri2,h-c ·t.,.:Li.1;, or oven loc;2..l - wishes arc 110·!; horsetf'.;cf ride. T~o. course of action 1 ·::;.,,2"-;; >r,s to be J.;d;.:on, as and when 2. o1Jild. of t..:mdor years (cJJ.j_lcl of, or, below tho apparent o.,go of fourteen years, - soo Joction 127, ( 5) of ·i;hc :;:;vidonco ..·..ct ) l).2,s to gi vc ovidonoc, is not just

11ishcd, but dictat~. by Section 127 (2) of ·cllo :1'vidonco /.ot 1967. iI1hat is 1 1..mclor the above subsection, o, child of tent.or J'OcU'S r.1ay lie sworn, if ho t.-;ndc:;~i.:rl:an:1.s tho nature of 02:th, or r.10,y give cv:i_c:.c~1co Vl1SWOrtlt if he has sufficient in"liclligoncG, and t.mdorst.2.nds the dt.:ty of tel Ung tho truth, so that it shov.ld ii.1 n:, view follow that,,'.conpctcncy in so far 2-s th,:, child of tender years, is concG1~nod, is not c. r:1c,·btor of age 1 but of t.mc~o:;;st;:,_.ncling. ~-.nd. "1io crown it a.11 1 the c'..l)pollant is wor-th lca.11115.116 , that the ·i;J::!."~l Oou:et ♦ m~ cveh - 4 competently rGly on J.;hc testimony bl a child of tender years, whcm such child 1 of tender years, when such child of' tender years, has given such testimony on ' tho side of the prosecution, to convict the accused person, if it is fully j satisfied, that the child is telling nothing bu.t tho truth, and has warned 1 ' itself, of the danger of acting on s1;1ch evidence, in the absence of corroboration. ·; And where a child of tender yeai-s, ~fves evidence sworn after a successful voire dire test, and that he understands , I the nature of oatht his· evidence so g:i.ven,is as good as that of an ad.ult;a.nd it is treated thc,,t wey 1 and such evidenoe ~' may only require corroboration, lf it' is accomplice evidence 1 or j,s such evidence . ;!, which asa matter of

practice or reclhirement of law,corroboration is necessary. · In this case, Ni. 2 ZACH..:lRLi. MAGI.HG,.\ and ru.4 KELVIlJ s/o LTJ1..J3ELI, gave evidence r swoJ:n, a.fte~ a successful voire dire ~est, that, they knew the na;;;m•e of oath, and each onEls evidence, is as good as. that of any adult. If, Jl,1STINA d/o NJ..ZiliGE left her house lockedt and she caine back 'and found broken info, and g'Oods stolen, . ' e..nd if f;f.2 saw the appellant entering and later corJing out wi·~I: a sack full of things, a sack that was also se~h by ~}1•4., with the appellant's alibi that he had · or that he . been at the meeting, ai~ha.d been invi,ted by M,\1'1/i. DINA all deniecl, and smashed by the appellant ts witnesses, the conciusion reached by the JGrial 1.iagistrate, that it was the appellant who broke into the hbuse, and stole, J.s as sound as g:rani te, and gives no room for suocessf~l a,Ji;-~ack. In the final ai1alysis, the oomrictions on bo·th countst are uphel~ The last point, to be delt with in this case, is the aspect of sentence. iaprisoment 011 2nd count .,. no mo:re; no less. . The trial court, imposed two years imprisonmen·~, on first com1t, ancl five yea.rs :a.:i.-b there followed another order, I that the sentence of si..~ years imprisonment, the appellant w~s se1Tving upon previous conviction, run consecuti vezy with the above sentence I according to 11 Ji;he trial courJc.

th&_ resul ta.nt effect being, he shall servE1_~ t~tal of seven l..~ imprisonment•" !;fay I say, with attenda.11·(; due respect ,Ji;hat the above is I provokingly attrac-l;ing comments - first ,_ on the legality of sentence on first count - t-wo - the trial magistrate failure to show whether su.ch sentences shall run concurrently or consecutively with the sentence on second count, and - three the propriety of o:rclering sentences based on separate indictments a.11d trials, Jco run consecutively, and - 4 - the arithmetical or addition~- accuracy. I shall herem'ld.er deal wi-1:;h each, of the above aspects. The legality 1 or illegality, of seritence on the firs-b corurt ca.11not pass wi thou.t corrective cor.1r,1ent. It is trite _law, 1.mder the Ninim1.u:1 Sentences 1..ct. 1972t Section (5), that where the value of property obtained clrr..ring· the commission of the · sched.1.!led offence, ( 1 st' schedule) , exceeds five ·thousand shillings, the mini.rJun1 sentence imposable·, is five years imprisol'll:'lent. , 5 , J.11 ·~his case, the appellant stole pl'operty ,rn:i:'·~a Ll.o 23 ,885/=• Similarly, where the accused. has a ):."eviously been convicted of scheduled offe,1ce, in the preceding five yeai's, as the ap:· ::llant had been, (store - brealdng and stealing Cr. Case No. 94/89) and is ,.,ubsequently convicted of aJ.1o·~her scheduled offence, ihe minimum sentence imposable,

is five years imp~isoment. It would seem to me, that the appellant was legally and sentencewise 1 conered, with neither front, nor rear, through which to escape, the I\linir.n,1111 sentence of of two years imprisonment five years imprisonment. '.l.1he illegal sentencen-s therefore set asiclc, and five years imprisonment imposed, instead. Again, the trial J!Iae,'istrate · had left the sentences, on counts ( 1 ) and ( 2) hanging, may be in the par·J.ance, of Section 36 of the i-:enal Code Cap. 16 " the same to be ex~cutecl after the expiration of the forner se:t?-~~_£e 1 unless !h,~9urt direc,:ts, tl?,at 1 _it shall be executed consurrently, wi-~l~ former ~aj;_eJ1ce, or any par:G thereof, they were to be presumed run consecutively - See 1..LI N0H1.l\1ED Vs.!_ij.1,268) HCD No~ 63 But the judicial approach has been that, where in an indictment constisting of several, or E1any counts, the trial oow."t convicteb the accuoed on such several 01" many counts, i-'i; has fo impose a.rd assign each count, ·tha;i; attracted conviction, a separate sentence, and shall . to indicate therein, whether the sentences arc ./:::11 c::i::cur:rently, or sonsecutively, and not leave them hanglns. 1.s it was partinently observed by the Court of 1tppea1 1 in the case of P''.:SEIN T. KL.BEK!.. .tJf.D 0'1:'.:JBS ( 1980) ;l'.L.l1. 267 - t, .... - - ~ . ·•------------- " / .. sentencing Cou.r_t_ wi_JJ._

never go 1}:.~r.mg, if _EP_ deciding to~"1!3S cq_i:i_ourrent j;erJif.S._J)_f_j.:".!12.12.sonmep:~, on an offe:ndg 1. it ir@cts sentence on ea(?].i ,offence, and -'.;hen directs the ~ep.tence so passed to run concurrently, a.11:d.,.~!2.,~_e." 1T'.t1en to decide whother a concurrent, or consecutive sen·~ence, should be knot imposed is in my view not a gordian,L it is not with respect, un in~tricable difficulty. The judicial view and approach, on when concurrent sen·tences, should be 01·dered, is abundantly and oversupplied in the case law. Citing a few examples, will be as g:rapbic, as will suffice in my view. In the case of HO'S/.. S/O B!Jcti..RI VS. R. (1968) H.C.D. No. 239, it was held ·cha,•;;, it was ttni versal practice 1 in "iihe absence of good reason to the contrary, to order the sentence for related offences, of house breaking and stealing, to run 00110tU'rently, or where the charged counts, attracting convictions, arose out of single transaction, or are part and parcel of the same transaction, or are part 2,1.1d parcel of sin2;le plan of campaign co11cur1~ent sentences will be ordered ..,. see JAY/U~ILlill LAI JI Kl.BJ. SHAH Vs. R. ( 1.96.§_)_Ko,Q !p •l'fo •~_328 a ~1,Y_]¥'~'}.AEL LlJlECK Vs,. R. ( 19€1)..lkQ..D. 190 27 and JQ.S'&JI .li-• Kf..SHJJ•UJCULJ~ Vs. J.it.. (1970) Jl•C..P, No 1 201J jus-i; -to nention n :.:~cw ~ __ :,t:rc: vi·'.; ::..3 t::.:te judicial

approach, ... 6 -'cha;i; where in an incli'c·hment, consisting S<JV,,rd or r::c111y comics, that have a-t~a~ac·i;ed convictions, the sentence imposed arrl assigned. to each ootm·c, shall be ordered to rtm concurrently, if such charged off enc es are related, arose but of single transaction, or a:re part and .roe.L •:f single plan. Tb.at ist without rule, or order, to the contrarY., a. good working rule,lthat consecutive ' . sentences, should not be pas~ed for offences arising out of the same transaction, as -'che sum. total sentence resulting therefrom,ma;y often prove ·to be too great considering the ci:rct,mstances of the case. - See R. Vs. Kl1STERCU}~ 1272) 56 J Cr.J..)~PP• R•.

298. In this case,house - breaking and stealing, a.J.'e_Eela.ted, and interconneoted opeJ:'ationally, that the sentences should have been ordered to run obncurently. For 01:rtiotts·· :reasons therefore, I hereby oonfirm the sentence on 2nd covnt, and ft.1.rther order, that the sentences on the two connts, shall run concurrently. 1'..i.1d finally, I verily confess, that I would at this janctui'e have rested in peace, if it ·were not for the trial :r~gist:rate order, that tho previous sentence of six years ei:i.rned, in a different trial, run consecutively, with the present sentence, ·-Which is f;ive years imprison, but computing it have the tt .~:f_eot of beinp;t 11.0... .s.la&ll serve a. total of seven (7) ·2ears l..tlPJ.:'_:(s_o.}1£1~ I come, to this aspeet, not becatwe the o::.:c'..e:· w2.a r.12.(1e, and it l1a.C:L to be made in view of the appella.,."'lts prayers for judici,.1 intervention, o·tho:cwise the command by the provisions of section 36 of the :i:"enal Code take i·(;s 001.,,.rse, but .mo1·e, I come in because, if as the tri. -1 Magistrate ordered, the sentences imposed in different trials, should :' "ieed be served, consecutively, in the :par'J.p,nce of section 36 of the :: enal Code ~ each sentence to bo e::rncuted a.ft er the expiration of the form£?.r sentence they add up to eleven yeaxs imprisonment. As I understand, consecutive sentences axe accurnulati ve, one

eentonce being servecl after the other; - they add up aritbmetically. If this be so ral'ld I am ,convicted it is, six years imprismunent earned in the prev.i.o·,..1.n ·:;rial, and five yea.I's imprisonment earned in this ·case, served consecutively, can only add--:-up to elBV<m yeo,rs imprisorunent, and noJ~ seven yeaxs imprisoru.1cnt, as the ti-ti.al Magistrate erroneously added up. 7ii th the correction, ·tllo cllJl)ellant shall serve :the two sente1J,ce consecutively - elev~n years imprisoru.1ent. ;B1e appeal is dismissed, convictions and sentences upheld. D~_livered t'.1is 19th day of Lugust 1992. ,/ ,, f ,,. .TODGEc Parties: , Mr. Oswai-d S·tai;e Attorney :.n ,-~ RopubJ,io. Ap}.'Jel'.!;ants alJscnt.