19800618 TZHC Tanga

IN THE HIGH COURT OP TAA AT PANGA APPEL.UTg rURISDICTION CRIMINAL APPEAL NO.74 OF 1979 C/F CRIM. APPEAL NO.8 OF 198 0 (Oxig. Criminal Case No. 164 of 1978 ( of the District Court of Muheza INDIAELI ULCt!I • .......,......APPELLLi1T VERSUS TRE REPUBLIC .. . . .. . . ... . . .. RESPONDENT harg.: Stealing by persons employed by the Public 'Service c/s .270 and 265 of . . . the Penal Code. - JUDGEMENT Sisya, J:- The two appellants, No. C 472 D/C GABRIEL CHIWIPE and No, C 5628 PC OLOMI, were jointly charged before the District Court at Muhoza with the offence of stealing by parsons employed in the public sorvice contrary to section 265 and 270 of the 1nal Code. The offending objects wore six and half bags of cardamon valued atshs.8,125/60 "which came into their possession by virtuo of their omploment," The trial was presided over by B.P. Moshi Esq., Resident Magistrate (as he then was), Tanga. Both appellants woro convic- •tod as charp,od and they wore each sentenced to throoyoàrs imprison- Theso sentences aro, with the greatest respect, prima tacia, illogal because they are below,thc minimum term of five years imprisornent laid down by the statute, SEE - section 5 (ci) of the Minimum Sontôncos Act, 1972. 1 may, however, be doaling. with ' this issuo of sontonco later in this judgomont. SuIT ice it to say hero that both appellants are now appealing and their appeals are consolidated. For purely purposes of Convonionco I shall, hereafter, retain the description of the appellants as they appeared in the Court below: •../2 I Gabriel being the first accused whereas Olomi wai second accused. . At this juncture I feel I musts first of all, dispose of the fourth ground of appeal in the amended petition of appeal of second accused and the arguments advanced thereon by his learned counsel, Mr. Bishota.: The said fourth ground reads and I quote:- 84 That the learned Senior ResidentMagistrato had no jurisdiction to try the oase s it being a case filed in the District Court of Muheza District within the exclusive jurisdiction of the Muheza District Magistrate." At the hearing of this appeal Mr ishota for the second accused submitted that at the time Mr.: Moshi presided over the trial in the District-.'Court at Muheza he was Senior Resident Magistrate atatiiod atTanga it mu.et be conceded that Mr: Moshi was, indeed, as he still is, statione4 here at Tanga I cannot vouthsafe, however, that he was then Senior Resident Magistrate as he himself signed in the record of prooceedinge in the instant matter as Simply 1 1W' which I take to stand for Resident Magistrate Be it as it may Mr Bishota for Second accused submitted further that District Courts were established by Subsection (i) of Section 5 of the Magistrate's Courta Act, 1963.: With respect s I agree that District Courts are indeed a creation of statute, namely the Magistratets Courts Act, Cóp 537 of the Laws. The relevant provision may, conveniently, be quoted and it reads.:., "s...(i) There is hereby established in every district £. di$z'to-court which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the district in which it is established "; lMx' Bishota went on to submit that under subsection (3) of Section 5 *f the same Magistrate's Court Ait, 1963, as amended by Act No. 5 of l974 the Chief Justice has power to confer upon a district Court established for any dstriot jurisdiction over any other contignáus &jstrjct or distrióte.: This must s however # be by an order publiChed in the Gazette: Again, it must be conceded that this is what the :- 3Aw 837s According to Mr.: Bishota jurisdiction is conferred on s Curt and not on an individual A district Court, went to argue Xvq, Biehota, is presided over by a district Magistrate posted to-u 0 13 that particular distriot He 4onc,e,ded that by 'dufinition aq,ct Magistrate includes a Resident Magistrate but he we24 on to argue that for a Resident Magistrate to have jurisdiction in a district Court he-.-tst specifically be posted to the district where the said district Court is situate Mr Bishota went on to contend that in the I stantiatter he was not aware of any Government Notice published ñ'the Gazette whereby the Honourablo the Chief Justice empowered the District Oourt Thnga, where preeuably Mr Bishota felt Mr Moshi was posted, to have jurisdiction over Muheza DiStriat According to Mr Bishota, since Mr' Moshi was not t therefore, posted to Muheza District Court s he did not have jurisdiction to hear the case He added that Mr Moshi would have had the necessary jurisdiction If the case was filed in the Court of the Resident Magistrate, Tangs. Howe?er went on Mr Bisbota to argue s the nere fact that Mr. Moshi presided over the trial in the District Court at Muhoza did not, ipso facto, convert it into a Court of the Resident Magistrate. The proeeedlngs that, nevertheless, followed wero f therefore, a nullity and they imiet be so declared. With reepect Ifr Bishotats. argument on this poit'nmot be acdeptedg Not only because it sounds absurd but also because it has no basis in law; This Court takes judiôial notice of the fact that Mr Moshi was then posted to Tanga by the Honourable the Chief justice to be the Resident Magistrate. in charge in the whole of Tanga Region 2ea He has power to sit in the Court of the Resident Magistrate as well as in the District Courts in Tanga Region. His trisdiot&on as Resident Magistrate extends, in both Criminal and Civil cases, regionalwise. A region, teedless to say, comprises districts and Muheza is asa matter of judicial notice, a district of Tanga Region to which Mr Moehi was posted. I therefore, hold that Mr. Moshi had the necessary jurisdiction when he eat in the case and ' hat the District Court at Muheza was lawfully constituted when it wao presided over by bim I' 4 Now getting down to the facts of the case, evidence was given at the trial by one MASHAV. RAMADHAI (PWI) to the effect that on the night 'of 23'1277 at about lOO a,m,' he was awakened from Sleep by S knock at the door of his brotherts house at Maguzoni village. The record, according to the text of the evidence of PWEp shows the date J as 131277 However, this appears to have been a more slip of the pen on the part of the learned trial Magistrate Who in his judgement quoted the date to have been 21277..The said brother of PWI, one BAWI RAWHAKI (pW2), himself was then away on safari to Tan Thinking that it was his brother who knocked at the door PWI opened it only to find that be was confronted by three persons. The first person Who did most of the ta]jcing wore a brownish stripped P—shirt. This later turned out to be the first aôouaed, The second person was in Police uniform and carried a gun On his Shoulders,. This later turned out to be second accused. The third person who appeared young and wore a shirt and a pair of short trousers was not identified. The first accused then held PWI by the hand and introduced himself as a Police chief He, first accused, also showed him, i.e. PWI, his identity card. There was electric light which PWI had switched on. Thereafter the first accused took PWI into the bedroom Where -there were six and a half bags of oardamon He PVI, was then asked by first accused whose bags those were Upon being told that they belonged to his brother and that he was intending to take them to Gapex at Muheza on the following day the accused then told him i.e. PIT, that he was under arrest for stealing the said bags of cardamon. They, therefore, told him that they were taking him to the Police station together with the cardamon. Thereafter the two accused persona carried the cardamom to the road They also forced him to carry same to the road \' At the road they stopped a passing lorry and put the six and a half bags of cardamom in it" They too boarded the same vehicle with pWI The latter and first accused sat at the back of the lorry, According to PWI there was moonlight on at the time. They were driven to Muheza and dropped at . a place Which was later found to have bee• I ..-.--.. . • •4 • -. I I 4 near the NM O CZ and the Coinjiorka depot. The seoond accused was left at the road with the bags of cardamom Whereas the first accused and the third and 'unidentified person led him to what they alleged was the Police station. Nevertheless they took him to a house which also had electric light. The first accused then gave him j,e. PW]7 a piece of ôloth and told to sleep He P'WI, noticed that there was already another person who was asleep in the same house. There was also Police vnifoi'm han.ng on the wail The first accused and his companion then went away. Later the e first accused rturned and this time he took him, PWI4 back to -the road and told him to wait for transport which would take him 'back to Mag.zvri It seems PY1 managed to get a lift back to Magxzani On the morning of 24/12/77 his brother , PW2, arrived and he reported to him what had happened PWX and pW2 then went to the Police Station, Muheza and reported the itter No. A 7605 D/Sgt o Kimweri ('W5) and Inspector ExavA Jones 1PWG) then accompanied PWI to the p.aoe where the acoused had allegedly off loaded the bags of cardamon. There was a path starting at the said spot which led to the olice station.' At the same spot PW6 picked up some particles of ordamon which he tendered at the trial as exhibit s Eth. P.Ii On 25/12/77 during the morning hours pW6 conducted an identifica-.' tion parade at which all Policemen took part. PWX then went and, without hesitation, identified the first and second accused perSon to be the ones who took away the bags of cardamon Thereafte, PW6 eut and searched the houses of the accused persons but he recovered npthing therefrgm In his sworn statement in his defence the first accused• eted that on 2(V12/77 he was admitted at Ubwari Hospital, Mheza because he had malaria fever and a bvi1 This was con:fiz,ed b) the ediea1 aeajatant one E * S O Mtand.ya DWX) who attended to him' 1 . .-._\ He was discharged from hospital on 22/12,/77 and his discharge oertificate is ExhiJXA) He was told to rest and not to report on duty for two days. The malaria fever disappeared but the boil persisted: He was weak and he could it valk properlyff His brother Nicholaus and a neighbour of his at the Police lines, one PC. Justina (DW2) used to give him company. In addition to that DW2 used to assist him with the cooking According to first accused from the day he was discharged from hospital he used to walic to the PoliOe Station from where he used to get transport to the hospital Where he was still attending as an out patient and where he also used to make use of toilet facilities as his house did not have any lavatory, DW2 Said that she used to give the first accused company in the evenings until 27/12/77 when the latter was transferred to Tanga. However, according to her the first accused used to go for treatment at the hospital by taxi which used to pick him up at the house. The second accused who also gave a sworn statement in defence stated that on the day in question he reported on guard duty at the bank at 5030 p.m. He was in Police uniform and he also had agen. He was with one P.C. Thabit but the latter withdrew at 7.45 p.m, because of painsa.in his bowe1s He himself,. remained, on duty.' with the bank watchman one' Ranadhani 1ilkuria (pW4) intil 600 aji on 24/12/77 when he was relieved Viile on duty he remained outside the bank building until 200ari when he entered because of the rain. The learned trial magistrate, quite correctly, observed that the \ case against the accused persons depended entirely on' the question of identification given by PWIT After reviewing the said evidence of pWL the learned magistrate was satisfied that the identification of both accused was sufficiently established. He rejected the defence of alibi raised by both accused as the sane did not raise any reasonable doubt in his mind, I shau first deal with the first accused In his petItion of • . 4- 7. ppetl the first accuaed'adrances several reas ot appeal, ninely / that PWX had been to the .Thlice station for more than twenty—four hOurs: when he attended the identif cation parade at vhich the accused were identified; that the Clothes which PWI said hel wóre Were not found in his house; that there was no proof that there was electric light in the house where PWI was; that Exb PO-1 0 the partiQ.eS of cardamom picked up on the road, could have been spilt there by ayone not necessarily connected with the ease; that he could not have travelled to Maguzoni, 35 miles away, at midnight after parting With DW2; that the trial Court iguored his poor health and that the prosecution had failed to prove its case beyond doubt, At the bearing of the appeal the first accused ubnittod that PWJ. and PW4 contradicted each other on whether or not 'there was moonlight on the iteral night. He contended, therefore that the learned trial magistrate ought not to have acted on the evidence' of PWI without corroboration. In his judgement the leamed trial magistrate directed himselt in the following terms s As it can clearly, be noted from the reOord, the case against both accused persons depends entirely on the identification evidence of 2111 Whose evidence, as rightly pointed out by Mr Mrainba, becomes of prime siguificance in the case 4 As such the testimony of IM must be carefully tested in view to finding out whether or not it is absolutely water..tight, particularly so When as it is accepted, the said identification took place during the night In arriving at m W decision in this case I an clearly mindful of the well bwwn principle of law, Which needs no elaboratjon that in a or{nal trial of the nature presently facing both accused persons it ia the duty of the prosecution to establish, by adducing legally acceptable evidence, the guilt of both acouseds in connection with - the charge preferred agnthst them beyoimd a reasonable doubt and that it does not rest upon the accuseds to prove that they are - innocont This boils down to the only question Which, in my flew, the court shall have to detezthie namely; whether the evidence of 2 - 'T. . . - 8 - identification earl, upon the evidence on record and in the circumstances of the caàe, safely be accepted as free from the possibility of error'. With respect, I agree. +bat this extract contains. a correct, • restatement of the position at law particularly as laid down in the celebrated case of Abdafla bin Wendo V.R (1953) EAC 0 A166 wherein±t was held that: Subject to certain exceptions it Ia trite leW that a fact may be provd by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identi- fication, especially when it is Imowa that conditions fàvôuring a correct identification were diffjcu1t. In'. such cfrcuiastanceS what Is needed is other êvidéice, wbbtber it be circumstantial or direct ojnting to guilt, • from which a judge or jury can reasonably conclude that the evIdence of identification, although based on the testimony of a single witness, can safely be aàoepted as free from the possibility of error" In his decision on the issue of identification of the accused persofls the lear1led trial magistx*to howevex' relied solely on the oral estimony of PTtI He was satisfied that there was eloctrió light in the house at Maguon1 which was switched on at the tine; that the accused taflced to PWI; that thereafter the accused and pI travelled in the same lorry to Muheza.; that there was moonlight and y at Muheza, PWI was take by first accused to a house which alshad electrict light which was 114' The learned trial magistrate was perfectly an -titled to believe PWX asi a witness' After all he saw and heard him in the witness box. This cLrt has not had that opportunity and it cannot be said on the evidezjce on record1 that the learned trial magistrate palpably abused that reat advantage. However 1 the issues involved in this case are more #han that of mere credibility because t as It has been said, even If the mist honest/witnesses can make a mistake. That is why it becomes necessary, in a case such as the present one, to look for other evidenoe* direct or circunstantial pointing to accusedts guilt. The first accused complains that there was no proof of the £ac't that -there was electric light in the house at Maguoni ±f first accused kept his ears open he would have heard PW2 confixm that there indeed Ia electricity in his house at Ivlaguzoni. The fact remAins however 1 that, on his own evidence, PWI was awakened from sleep at the material time, Indeed in talking to he accused PWI must have had an opportunity of observing the 8v-jsjtors" We 1 however, do not IthoW how long the dialogue tick inSide the house S As 'regards the moonlight the first accused argued that -there was • contradiction on this point in the evidence of PWI and PW4• Frankly I do ,. not see any contradictIon This Court takes judicial notice of the faci that there is moonlight during the rainy season or even on a rainy night The material question is, howe-v-er, how bright the said moonlight may be; Bright or not bright the evidence is silent as to how close or far Apart PWX and the first accused sat to each other ju the lorzy At Muhesa the evidence of PW'I shows that he had another opportunity ,f seeing the first accused in electric 1ight' Again he 1 however, did not spec!y for bow long he remained with the first accused The learned trial magistrate was of the view that "the circumstances as described above were favourable to proper and unmistaken Identification notwithstanding that it was during the night ". During oroes.-enination by Mr Mramba who appeared for the first accused at the trial Inspector Exaud, PW6 stated that he asked PWI to lead him to the house where first accused took him whereupon he was taken to the house of second accused' IWI talked about finding another Policeman sleeping there According to PW6 however, the second accused was living alone in that house PWI did not say who opened the said house nor did 2W6 say how close or far apart the houses of first and second accused are from each other S .110. / I 10 Because of the foregoing 1 on my part, do not think that circumstaoes surrounding a correct identification were so favourable as to exclude the application of the rnle laid down in AbdaUa Wendos case in this caee • The learned trial magistrate, however, did, also, not end at,that He went further and relied on the identification parade at which the accused persons were picked up and whiOh he riled was fairly conducted. However, during cross—examinat.on by Mr Mramba who p as aforesaid, appeared for the first accused at the trial pWI conceded that he saw both accused persons at the Police station on 24/12/77. The identification parade was conducted on the following day That being the case the Whole ercise of conducting the parade was futile; particularly so when PI goes on to say, 'Bef ore the parade I pointed the first and second accuseds 'to a certain policeman as persons who stole from mo, I told one Klnweri" This turned out to be PW5 tho r himself made absolutely no en-tion whatsoever of this fact No wonder that he never did so because it seems he simply neglected What PWX told him; a rather distressing feature of negligence of duty or a case of outright inefficiency on his, ie PW5, prt All in all y the evidence of PWI on this aspect of the case renderac the whole identification parade and the results thereof 'ugatory The learned trial magistrate ought, therefore not to have taken the same into account Once this evidence of the identification parade is excluded, which I imistdo, -then the Question that arises is apart from the oral testimony of PWI, what other evidence s direct or presumptive, is there pointing to the first accuseds guilt? I see none Although, PWI gave a vivid description of the T.shirt which first accused wore at the material time it seems absolutely nothing was indeed done by the investigating officer to look for it The search orders which were tendered in Court show that the investigating officer was'er3e interested in !kmrd cash and cardamon" only In a case such as the present one the investigating officer must be able to work' out a full list of what clues will be useful in pointing to the accused .personts guilt. CoimnonsenSe, I dare say, also has its NOW / I 11 owa part to play in such matters Again as aforementioned, when I'WI was asked to show the house where first accused took hin to and y albeit tempomrily, accommodated him he took pW6 to the house of second accused AU in aiI on the evidence on record s I do not think that It can positively be said with moral certainty and to the exclusion of eyexr paradventure of doubt that first accused.t S identification in thia case was fully establlshed Tuniing to second aOcused 2 the evidenes against him inot, in 1 aot7 as strong cpared to that against the first accused. FWI said to his evidence that he saw the second accused at Mazoni inside the house la The second accused wore police uniform which as we all know includes a cap On the way to Mttheza it seems second accused sat in the cabin At Muheza PWIj said that second accused remained behind at the road with the oardamon The opportunity of seeing and oberving second accused was p therefcre, less compared to that with regcrd to first accused The second accused raised the defence of alibi He stated that he was on guard duty on the material night The learned trial magistrate directed himself on this aspect of the case in the following terms: "Ian mindful that it does not lie upon them (i.e. accused) to preve the facts they rely uponto establish their alibi and that it IS sufficient if the alibi as it stands raises a doubt in the mind of the Court that it might be trme" With respect, this is the correct statement of the law on this point. However in the instant case it was established, on the prosecution ewn case, that second accused was indeed on guard duty at tIe bank Thia. was testified by PW4 who was on duty with him. I. .. ./12 I I 12 Indeed there was a period 9 between midnight and 200 am when .PW4 said that he did not see the second accused, This was however, beause PW4 entered the bank building whereas second accused remained outside Even then pW4 cane out later and said that he did not see the second accused the later gave a highly plausible explanation for his apparent temporary disappearance, if I may call it so He said that he was behind the bank s pW4 conceded that he neither looked for nor called at the second accused at that time and that there was a shed behind the bank where one could shelter himself from rain which was falling on that night From 200an. onwards they were together in the 1ank. To me this sounds more than enough to raise a reasonable doubt in this instant case •.. Indeed 9 there is a lacuna as to the distance between Maguzoni and Muheza The first accused says that it is 35 miles If so then it satisfies me the more that second accused could not have been the person Whom PWI saw on that material night Particularly so when it is not known how the "viSitors" travelled to Nizri. For these reaaons: and on my evaluation of the evidence on record I Oo not consider it safe to uold the convictjons The same are s thref ore 9 quashed and sentences passed thereon set aside.: Unless the oused persons are being held on some Other lawful grounds they are tobe released forthwith. 1 / p - - •De1'yered In open Court at Tanga this 18th day of June 1980 (H.E.D.Sieya) udge