19800513 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

APPELLATE JURISDICTION HIGH COURT CRrnflAL APPEAL NO.111 OF 1979 ORIGINAL CRDVIINAL CASE NO. 475 OF 1979

OF THE DISTRICT COURT OF DAR ES SALAAM DISTRICT

AT KISUTU Before K.A.KASSIM Esq; SENIOR MAGISTRATE JOSEBi HAJVIADI.......... . . . . . . , . . . . . , . . , .APPELLANT versus THE REPUBLIC............ •. . . . . .. . . . ..... .RESPONDENT CHARGE: 1st Count-Being in possession of property suspected to have been stolen or unlawfully obtained contrary to section 312(1)(a) of the penal code cap 16 Vol.1 of the laws; as ammended by Act No.26 of 1971. 2nd Count - Corrupt transaction with agent contrary to section 3(2) of the Prevention of Oorruption Act 16 of 19710

JUDGMENT MAPIGANO, J. - There is no substance whatever in this appeal. It seems to be one of those appeals which are admitted to hearing solely as a matter of courtesy to counsel0 In the final analysis the verdict turned on the credibility of the witnesses, which is a factual issuo, and I see no good reason why the finding of the trial magistrate on that issue should be disturbed. Indeed, even the learned counsel for the appellant has himself come around to agree that it is hardly possible for an appellate court to disturb the decision of the learned magistrate. The appellant Joseph Hamadi was convicted in the district court of two offences, namely, being in possession of property suspected to have been stolen or unlawfully acquired ( a shirt) contrary to section 312(1)(a) of the PenalCode, and corrupt transaction with an agent contrary to section 3(2) and (3) of the Prevention of Corruption Act, 1971, He was. sentenced to six months imprisonment and 11 -2 - three years imprisonmerrt, respectively, which were ordered to run concurrently. He is appealing against the convictions0 It was a very short case. The facts showed that the appellant who was a sweeper with the Dar es alaam Port was seen by a militiaman, PW1 fmiri, standing inside a godown hiding a shirt by tying it round his leg underneath his trouser0 As he was starting to go to another place the militiamen stopped and

arrested him. The mililiaman than seized the shirt and asked him how he came to possess the ahir -t0 In response the appellant took out a skis.lO/-. note and gave it to the militiamen pleading: "leave me, V I am a brot.12er of yours, take this for your tëa. The militiaman received the money and informed him that he wo4d charge him for stealing the shirt and for giving a bribe, He V took him to the police station where the charges were framed. As it happoned, all that transpired at the godown was observed and. hea''d by PW2 Godwin. The testimony of PW2 fully corrobo- rated that of the miitiaman. The appellant admitted that he was in possession of the V shirt0 He also admitted that he gave the money to the militiaxnan But he denied that he committed the offences charged q claiming that the shirt had earlier been given to him by the militiamen himself and that the money was a Loan which the militiamen had asked for. The learned magistrate believed the two prosecution V witnesses and rejected the version Of the appellant. The appellant would have me differ with the decision of the - learned magistrate. I am unable to do so. is a general rule this court mu.st V proceed on the basis that vis-a-vis an appellant court, a trial court is in a better position to judge the credibility of the witnesses. There is nothing material v.hich can lead, me to think that the learned magistrat was wrong in his assessment of the credibility of the witnesses. I will uphold the convictions and as there is nothing to be said against the sentence this appeal must fail. V • c4 -3 It iS dimissed in its entIrety. Delivered. Appellant absent Mr. safari for the Republic. ik- Bar es Salaam (D.P.MAPIGANO). 13th Mày,1980. JUDGE 7 . - j