19761230 TZHC Tabora

11 : . . . . IN THE HIGHCCUiT OF TANZANIA .

I

AT TABORA S •. • • • .•. APPELLATE JURISDICTION . . ' . •. ' C (Tabora Pegistry) (Hc) CR]YINAL APPEAL NO. 131 OF 1976 (C/F Cr. App. No. 136 of 1 97 6 ) 517 OF 1973'::.. • ORIGINAL CRININAL CASE NO. OF THE DISTFICT COURT OF TAi3ORA DISTRICT AT . TABORA Before H. E. D. Sisya, Esq., P.R. Magistrate. •iJOSEPH ANDREW '' " APPELLANT 2.NASHAKASHABAN) (Orig.Accuseds) versus - •T1E REPUBLIC RESPONDENT (Orig. Prosecutor) CHARGE. 1st Ct Robbery inth violence c/s 286 and 285 of P. Code. 2nd&3rd..Ct: Unlawful pos5esj.on of freari'ànd âmmuni •. ..-: tion C/S 13 (i) and 31 of`th& 'Armi and Ammunition Ord. Cap. 223 of :the Laws. 4th & 5th Ct Theft c/s 265 of the Penal Code. JUD.GMET .....: : APIiANC, J: . .. ' ,.. These two appellants, JOSEPH ANDREW AND MPSHAKA SHIAN, were convicted of five offences, namely (1) Robbery with violence c/ss. 285 and 286 of the Penal Code, (2) and (3) Unlawful posse- ssión of fire arm c/ss. 13 (1) and 31 of the Arms and,Ammunitjon Ordinance, Cap. 223 of the Revised Laws and (4) and (5) Receiving Stolen Property c/s 311 (i) of the Penal Code. Joseph Andrew was sentenced to a substantive term of imprisonment of fourteen - years while Mashaka Shabani received a substañivetm of.impri- sohment of twelve years. They have appealed from the convictions and the sentences, The facts are well reviewed in thc lengthy and dscerning judgment of the trial court. It was not in

dispute that the rifle, exhibiL 2. 5, the subject matter of counts (2) and (4), belonged to the 3rd Battalion of theTanzania Peoples Defence Forces I (T.P.D.F) which is based at Lugalo i n Tabora. It disappeared from the custody of one Private Celestii Andrew an or about 29/5/'3. Also n evidence and not in dispute was the fact that the corking pin, exhibit D.6, the subject matter of counts (3) and (5), belonged to the same 3attaljon. It disappeared along with an rifle on or about 25/9/73 store. Both the exhibits 5 and 6 disappearedfrom I the Battalion's in very perplexing and suspicious circumstances. However, it is consoling to note that some disciplinary actions were taken against Private Celestin in the one case. The facts also show, manifestly, that a very dreadful armed robbery, Was perpetrated in the shop of P1x.2 Salum Omariat Kakola in Tabora district on 29/12/73 at night. A landrover 'stamp.ed'"I(.IL.IMO" pull.e,d up at the shop-and Salum and his wife • , heard a voice calling " hodi. " Salum had then repaired- to bed' and his wife FJ.3 Salim& 'unsuscipiously took a blazing pressure- : lamp and then proceeded to the door. She opened it and saw -. 2-. T two men standing in the eaves of the shop, one carrying a gun with a bayonet. She alleged that the man with the gun was the appellant Joseph Andrew. She also observed that there were other people in the landrover, but

did not she see their faces. The two st:-angers asked her tc call her husbEnd and as she turned to do so, the two men and another one burst into the shop. They met with Salum in the hall-way and grabbed him. They remarked that they were suepecting him of having some elephant tusks illegally. In the commotion which ensued, one of. the invaders gave a vicious Iron 11 bar blow to Salima which 'ractured her arñ. She was then forcibly thr6wn out of the house.. The jxi :mäthent two things happened, both of them ghastly. Salum received even more devasting blows. "e was at one stgo smashed with a hammer on the head and knocked doin senseless., A doctor later reported that he had su'tained :.. 'riu1ipie'?fr'act'ure's o the" skull. Salum could not identify any ofthe three assailants,. The .th:ee asailants the searched his shop. This fearsome encounter wa vitnessed by PW.5 Nsabila who by chance had arrived at the ho1. to pay off a debt* dsabila ran away in extreme fright but• :ted to raise the alarm was at a- ce.. 3ut the bandits fired off one shot, apparently in terrorem, and no body came to the shop before. . they hd.driven off and disappeared., According to • Msabila, he identified theperso:9 who was holding the gun. He alleged that. be was the ápèIlant Joseph Andrew. The bandits madeoff itih: dshSh. 7,-OOQ/. and goods worth Shs. 8 2 000/=. As it were, the Police were s:til1

investigating this robbery when in the beginning of November, 19731t'hèy rëc-ived a tip-off from Al. 18 Nsckolo that a certain gang wanted to sell a Iiiitary Rifle to him0 Acting on that information the Police arranged on 6/11/73 at night to 'iay-lay the gang at Itetemia, which is a point along the rc'a:1 from Tabora tD Pangale where the transaction would have taken place. In cons.quen.e, the Police caught five people in a landrover. These appe11nts were among them. The Police found them with, among other things, the automatic rifle, exhibit P.5,, the e.orkiaig p.i,.. exhibit P.6 1 and three live bu1lets, e:hibt P.7 Polce compared these bullets iqitbsthse ihich.they,had 'picked up at•the shpp of Salam, exhibit .1, and fo'inci that they were cf the same. calibre. The learned Magistrate, as e then was, also examined • the two sets, and was of the same view.. On 12/11/73 an identification parade ias conducted and the • five people who were arre,sed at .Ietemia were joined by ' Several other people., There was only one identifyingwitness - Salima, and the purpose was to. find cut whether any: of the five people was also in the gang which committed the robb,Cr.yin Salum's shop., Salima identified the.second appellant Mashaka but not the appellant. . Asked, in court, vhy•5he.failed. to identify the first appellant,. she replied ,.t,iat she WMS that time still unwell and confused. The

appellazts deaiec! all the offences. Tha first appellant Joseph fndrew,c1airned that ho was at Urabo throughout on 29/10/73 1' the day the. robbery took place at Kakola in Tabora. He, explained how he came to oe arrested at ItetemLa bn 6/11/73 , He stated tht he had come to Tabora town to have a gocd time. He.dr.ank and then sedicd a w,oman in.apü. He agreed.to her''suggestion that they go and make love at herhousé at Itetémia' and they set off to that place. On the way they hailed a landrbyêr., which appeared from the rear and the.person icharge that 1.androver agread to picc them up..' After travelling a . .bort distance they..were aknbu.shed. by s.everal , people• who identified' themselves a4 Po1ice men, He was bewildered. te pro.èoted his ... • . , / 3 , ,• ., . I. -3- innocence and professed ignorance abrut the gun. and the other items which were found in the landrover. He would not, know the name of the woman with whom he was going to: sleep. With rgardto the second appellant Mashaka Shabani,1e saic that he ias a privatc in the T.P.D.F. and that at that time he was stationed at 1,,Arambo Barracks. e claimed that he was not in Tabora between 27/10/73 and 4/11/73. He said he was at Dar es Salaam on a private trip. The learned Magistrate propily observed that if this aiiegatrcn is true then this appellant could not possibly have been one of the bandits. who committed the

robbery on 29/10/73. : As' to the events which led to his arrest at Itetemia,...his versl iori was that he had gone there to pay his fri'nd a visit and that he had only'Aicen picked up by the landrover on his way back to town. The main issue was and is' identification, ahd it is overly clear that the icarned Magistrate perceived it. He reviewed the eqidence on this point quite exhaustively and in his assessment, he 'came to'the conclusion thã.t Salima and.Nsabila were impressive and reliable witnesses. e"held the view that Salima' had sufficient oppertunity to observe the three robbers who entered her shop. he believed her explanatihn as to herailurè.t'o' identifythé first appellant on the' paradeo .He found some corroboration in the fact that the gunfound in the possession of the appollants on 6/11/73 answered Salima's description of the" zgun whichone of the robbers wided on 29/1 0/731 and in the fact that the bullets found at the robbery scene were similar'with the three bulle'ts which were discoverCd'with the appellants* e: dismissed the alibis of the appellants as untrue. I have carefully considered this question of identification. It is a question of fact.. I will direct myself in terms of R v. Yafesi Mayamba and Others (1948) 15 EACA 71 that:- "Where a question of fact has been tried by (a magistrate), and there is no. question of misdirection of himself by the

(magistrate), an appellate cóürt which is disposed to come to a different èonclusion on the evidence should not do so uhiess it is satisfied that any advantage enjoyed by the trial (pagistrate) by reason of having seen and heard the witnesses could not be sufficient to explain or justify the (magistrate's) conclusion. The appellate court may take the view that, without having seen or heard the witnesses, it .. is not in a position to come to any satisfactory conclusion on the printed evidence." DCCjjOns in similar vein abound in the law reports. With, respect, I am not satisfied, as the appellants asserted and . Vould'have'mek believe, that the' learned'Magistrato did not take proper advantage of his vantage position and think that it will be improper for me to say that the learned Magistrate came to an erroneous conclusion as to the respective credibility h:attaChed to the evi4ence of the two prosecution witnesses and that given by these two appellants. sto theothor four charges, the learned 1"agistrate also believed the prosecution case As towhat led to and how the ambush was set. . rejected the appellants' stories to the effect that they were ignorant and innocent passengers in the landrover.; Obviously, the most crucial 'witness for the prose- cution was PW. 18 •Nsokolo. I. have read his detailed account as to how it cme to his knàwledge that a gang had a rifle which, they

wanted to dispose Of, how he alerted the Police, how .14 - 4. - members of that gahg assembled:i.n town and how they.. drcve ,off towrdsPángaie. •. I•(thiilk;it was a moving narr.ation;...an& Im. of the opinithn that the learned Magisrate was entit].e4 to accept anc'..aQt.on it. In the circumstances, he was also jistified in registering .the four convictions against the appellants. Some obetvâtions 1ave been made about the prosecution not calling certain Po1ie Officer who was involved in arranging the inbush and the owner of the landrover which took thL Culprits to Itetemia. Ir my opinion, the nc'n- availabili.ty of the evidence of those two people did not detract anything material from the prosecution case. I now turn to the sentences0 As shown at the outst, the appellants were awarded sibstantive terms of imprionmert of fourteen and twelve years respectively. The firtàppellaiit three pxovious. relevant convictions in terms of the ;.Minimum Act, i972 i1ih ap'plieth The learned Magistrate felt that the appellants cservd stern.., sentences in view of ,.te frightful violence they wreaked in the shop of Salum. 1here is po doubt th&t they dealt with Salum and us wife in the mostsavage manner. It s by gract of God that Saluri survived thai shattering blow It should also be noted that around that period, there as a spate of armed robberies which left several people deac and this

naturally aroused public wrath. There wei- ec ails for stiff sentences from thc courts and extra viilancc from the r'ol..ice. The courts on their part were expected to repond to those calls ositiveiy1 I thLnlc, therefore, th-t the sentences correspcndei to the gravity of the offencos and that they were richly warranted. 1ccordingly, both the appeals fail and are dismised in every ; escto .,. • .. .- Pronounced in Court0 :istpe11.prn, ; :. .. •.. 2rd Appellent absent (did not with to appear) Mr.T.eijba. for the Republi. Tabora, D. P. MAPI&1NC, 30th December, 1976. JUDGE. I certifythàt thisisTh true copy áf the Origiria1,