19780818 TZHC Mbeya3

- -- IN TIM HIGH COURT OW TLNZdNL T I']BEYf. APPELL1TE JUISDICTION HIGH COURT CRIIflNAL i.PPEdL NO. 10 OF 1978 ORIGINAL CRIbNAL CLSF NO. 370 OF 1978 O' THE DISTRICT COURT OF NJ01tBP1 DISTRICT T NJOlE I BEPOBE Y. S. NPERELLA, Esq., DISTRICT MAGISTPATE 1 4 JOSEPH SENG'ONGO EDWILRD MWALE ......... ... .,•..•••. . . . ..Pi.TLId itdffiUSI NGII (i6ina1 Accused) Versus A rriirrj L.a. 1)tDTmT .L.LSSL)4JJ.J (1 . 2Q ...,.,......o...o.*....,,,.........,o..i.LJLJJ \TTVT9 1JJ4LLL\ (Original ?rosecutor) CHIRGE: DeuanCLing pr.porty with menaces with intent to steal c/s 292 of the Penal Code Vol. 1 Cap. 16 of the Tanzania Laws. LTDCdN\TT Sid.:ATTA, J., — The-se are throe conjoined appeals from a decision of the District Court of Njombe District whereby the appellants, Joseph Seng!ong'o (first appellant), Edward Mwale (second appellant) and. Naurusi Ngaribila (third appeflant), were convicted of demanding property with menaces with intent to steal1 contrary to s. 292 of the Penal Cede, and echa sentenced to a tern of three years' .iuprisonnent. Was the learned trial magistrate justified in accepting the prosecution story? That is the principal issue ±aisod in these appeals and upon its answer the results depend. The prosecution story, in brief, was as follows. On the afternoon of May 12 0 1977, together with the third appellant, a driver by occupation, the first and second appellants, who were

: lice oonstcCblc?, visited. Igando village. The first appellant, who, like the second appellant, was dressed in a police unIform, was carrying a rifle. On arriving at the village the trio went to the h:use of one Ilusa H akwete. Musaeeted. then, after which the appellants introcluced\ themselves as hounds of justice from Njonbe. They said th0y load cone -a search louses in the locality for property stolen "on the way to Zambi" It was the first appellant who was talking, while the second qvDullant was busy recording down something in writing. Nusa refused to allow there to search his house as they had no search warrant. The rain could enter his 'castle', but the agents of law could not, without a search warrant, go in. The app —llants were not, however, prepared to be defeated by iOusa a the oueid of the sanctity of one's refuge. The second appellant erode it clear bey:nJ a goain of d ubt to Musn that the intended search was of "hi.a oroor" and. if he, Ilusa, resitod it he would. be shot. Imeed.i&tely after that threat was, :red.c, the first all dilant, as though to lend his weight to it, sh k his un. The conduct of the two appellants convinced Husa that he was talking tD thugs ond. io.'b h.-unds of justice. He gave up the struggle fr his rights. The appellants then searched. the house. They found nothing in it of interest to them. The ' • '4 —2- riiist two appellants then said

that they were oinc to take Musa to Njoube for d1x?ber investintion". Did they take him to Njube? Let P14, Salim Mianbalamba, who was an eye—witness t:; the aileod drama, take up the story: "They then led Makweta at the 'un point. The first accused then led Mdota at the un point. They said they were takini him for further investil2ation. The second accused was fllowin and I followed them behind. Maurusi (third appellant) told me that the matter is now critical and we have to piay shs.4,600/= to save Makwcitas s;ul. I said I had only shs.600/=. kiaurusi said it could have helped it. Maurusi has no connectiun with us. I felt that the thugs have entered. I thought that the police cannot demand money. I then told my secretary to open ( a cash—box) and I recorded the nuiiber of the notes. I approached the secnd accused and I cave him sha.6001=. I was attempting to save the life cf Makweta. I was very much afraid that the accusod would have destroy (sic) the life Makteta t '. The shs.600/= havind been paid, the appellants released Nakweta and left the villace.. _-ccordinC to the prosecutin case, all these events tok piaec t oh ut 2.00 p.m. None of the appellants denied havinc visited the villade on the day in question. &ch one of thou claimed that he was there for perfoctly leitiLiate reasons. They emphatically denied to have conducted themselves, in the iñnner which was alleced by

the titnesses for the prosecuti n from the vii lr. " -'d- ° the fi.rst p hint, he visited the villaoe in i' one icnes John of Iyayi in respect of whom he had a warrant of arrest. He travelled toethor with the second appellant who alle. ;odly had an assioont of criminal investiatin at Inyala vil1a;e. On reachinc Iawa, he (the first appellant) was t ad by the villaco chairman that lynyl was 19 k.u. fruu there. The chiirnan kin 1 1y instructed the third appellant to lead. him there. The said Aoes John was nowhere at that village. Havinj missed her, the three appellants proceeded to I;and..; villae. There they visited the huse of Nakweta and inquired ab.ut the whereabouts of They received no useful inforriati n. The trio spent abut an hur talking to Nakjetaa man they had not known before. I.fter that, at ab:ut 1.00 p.m., they left fr, Mbeya, where the first two appellants journey had commenced. 9'"nc, oecond apoliant t s story was substantially on the same lines. The third aiel1ant's yarn was that on May12, 1977, heias instructed by the owner of a hotel at Iawa to escort the first appellant to Iyayi where a suuroons was to be served Shortly after recoivinc this instruction he saw the second appellont arrjvin and jinin the first appellant. Pom I 1 uia the three then travelled to There they visited iakioas huse. lftcr inquiries rerdin' the whereabouts of the person who was to be

served with the suam ns hod pruved fruitless, the trio loft for I aioa. There the third pp an's j. urney ended. The learneCl trial ua;is trato .nalysed the evidence at a fairly 0Teat ±egth. In the upshot he was satisfied that the appellants had conducted themselves as was alle,ed by the prosccutin. Just before convictin; the appellants as charred, the learned tri 1 :ia.::istrate observed: U 4j Uxe • would have iLie accuids have camr'i 1-.-t;pc1 4 :l2fl tiit they have been cbarj• . with. I: only . ..... . /3 S •.4- -3- think that the accused would have been chared with robbery yet the prosecution have decided to chare the accused with a less ffence 11 . I pause here to obsoe that if the learned DnilstrAte had ferried the opinion cuntaining in that passage before the Ae dfunce case was cl:>sed, it was his luty, in the inturestsof justice, to invoice the provisi.ns of S. 209(1) of the Criunal Procedure Codc and order the o.ltorati:n of the charaet by way of substitution. Pororly variance between a char:2e and evidence was rearded as not rendering the chare defective for the imposes of that sectin. That view was, however, : ven a uortal blow by the decisirn of Geores, C.J., as he then was, in Daucli S/o Othietho VR, (1970) H.C.D. n.221. If I may say so I entirely aoe with the reasonin and the conclusion in that case. To revert to the present c'.se, the loomed trial ;.ia.

istrate, after criticisinL' the prosocuti.n for havin:; laid a idnor chare at the doors of the appellants, proceeded to convict the op chants as chored. I find it n.Tq v&ew as to whether the learned :ia..istmate was riht in law in obsrvinç that the prosecution story, which he believed as being true, disclosed the offence of robbery. It is enu.h to say, I think, that if that stuy were true, the appellants WCTC at least uilty of stoalin, contrar to s. 265 of the Penal Code. Why do I hold that view? That I will tell. I apprehend the law to be this: if depandinj pr...porty with zoenaces with intent to steal is suncossful, that is, the pors.n &Danlinq obtains property, the offence of itealina is corioitted. The frown of sction 292 of the Penal Code is directed aninst these whose do;ianci is unsuccessful. The decision of the learned :.iaistrate has been attacked by Mr. Thkunjoba, counsel. for the appellants, fron several frnts. In the forefront of his criticisn, the learned advocate contended that the prosecution story was suspect because, as he put it, all the eye—witnesses of the alleed offence 'vare ceobrs of one fa:ily. With respect, I disadTeu. While it is true that one of the eye—witnesses was the wife of the 'cooplainant', Musa Mokwcta, there is not even a shadow of evidence on record that Saliu Mlcothalaioba, Fy14, was related by blod or :arriaco to the co1plainant or his

wife. Of course all the eye—witnesses were residents of I, 'ando villa:e. I cannot see any reason why their evidence should be doubted •;n that .ounJ. If a court of law were to act only on evidence of oncuies or stranors I an as certain in uy :ind as I aoi that the earth and the n: n are not one and the s e thin•; that in uany, if not :est, cases the interests of justice wul:1 be defeated, "-'.. eno .ie or stran ors usually would have no business t: be present at the tjije when an offence is perpetrated. Mr. TuicrnjJbo Thither arued that the Ca: ;.lainant and his collea'uus did not suck assistance fr :.1 the :j..::bo pclico:ocn :iha arrived en the scone hot 1:10 after the apcllants :d loft the vi1la.'e and that that ooissi..n sh..uld hve ;ron rise to a naMe 1• - uht in the nind of the learned : istrote .abeut the duilt of ha. a: eli'nts. With eat respect, I oi unaMe to ivc that contention c i'_nLoanoe, as it flies in the face of evidence on record. That evidence r'j.j tat the co:lainant and his colloa(ues rc:•;rted what had befallen . . . -4- 1VLkweta to the palicenen frou Njabe. If those plico:on took no positive step in tracking down the thieves, I cannt see why that should be uade a ground for doubting the veracity of the witnesses' evidence. Specifically arfing on behalf of the third appellant, Mr. Tukunjoba su'biittod that even if it was true that the offence ws coLittod )

the third ap;ollant could not rightly have been held to have been a participant in its perpotratiofl because he, the third appellant, had asked the other appellants, before the shs..600/= was surrended, to relase Nakwota. It is true that at one stage of the cirona the -third appellant, had asked his cello- aguos to release Naketa and it is true that this was before the shs.601/= was paid. It is equally true, hwever, that after the other appellants had shown reluctance to accede to his proposal, the third appoillant started playing the role of negotiator on behalf of the other appellants. At no tine did the third appellant exhibit disappreval of what the other a, pollonts were doing or saying. That c .nduct puts hi squarely within the aubit of the provisions of s. 22(c) of the Penal Code. In this cennectin it is not irrelevant, I venture to think, to quote Salin answers when he was being cross—exanined by the (tird) appellant. The witness said, in part: "While the 'other accuseds were leadin' l'Iakwota the accused was not very far frau the other accusods. The accusod do::anied shs.1,400/ to save Naketa' s soul" • In his testi:uny the third appellant tried to explain why Makweta should be wicked to testify falsely a"ainst hiu He clainecl that he had 'otjly daged the witness' :;otor vehicle when he was enployed by the witness as a driver. Strangely, the pallant did not confrnt

Makweta when he was in the witness—box on that point. Neither did he put the nattor to Nakweta's wife. The explanation was clearly an afterthought. Having considered the evidence on record anxiously and, I hope, carefully, I respectfully aee with Mr. Liwanyika, counsel for the Republic, that there is no ground for faulting the learned trial nagistrate's acceptance of the prosecution case. As for the apels against sentence, I have no hesitation in saying, as I do, that if the first and sec..nd appellants are feeling the heavy fist of the law that is plainly what they deserved. The tb appellants wore e.iployedreserve law and order. Insted, using *n that was intended to be used for the purpose of which they were eaoployed, they behaved as agents of terrorisu. If anything, the sentences they received were n the lower side. I cenfira the se.tees. In view of the fact that the third appellant was a civilian who just fell prey to the te ptation offered by the ther appellants t : :akc easy :i fey, I think there shoul& have been distriction between his sent-ace and these ir": sod on the other appellants. His crininal conduct was :. t ye as that of the other appellants. I reduce the sentence inposod 'n hi: - t.. .no f two years' iupris nuent. Before parting with this case, there are flu r two cbserv -ti ns I shuld like to :iako for the benefit of the loarncci trial angistrato, although

they cia nut in the least affect the conclusi ns I have reached on the case. It is on record that the first a: dllant had indicated, before '-. -5- c.)ing into the witness-box, that he intended to call soue witnesses. None of theta testified. The record is silent as to whether later the appellant abandoned the idea of calling the witnesses. in view of the fact that Mr. ikunjaba has not raised the issue it wauld be safe to presu.ae that that was the case. I should like to ;.:ake it abundantly clear, however, that when an accused person abandons the idea of calling a witness or witnesses the record of the case should reflect that position. The second ubseati.n I wish to ako relates to what happoned when the second appellant was in the witness-Lox. Lfter the appellant had been cross-exaodned by the prosecutor, the learned :agistrate asked the appellant a few questions. In the course of doing so, the learned :.astrate extracted 'evidence' fruu the appellant that on May 13, 1976 he (the a;poiiant) had been convicted of robbery. That was bad character evidence and it was ina(b IssIble since there was no justification for its introduction in evidence, the appellant having not attacked the charaer f any of the ;rosetiori wttnesaes and having not led any evidence as to his go:ad character. I do not know whether this piece of evidence influenced the learned trial agistrate in convicting

the appellant. I ao satisfied, however, that the learned nagistrate would inescapably have coie t. the saae conclusion if he had not adnitted in evidence that ei' s±inony. Subject t0 thereduction of the sentence which was :ietod out to the third appellant, I disoiss the appeals. .- - ....... B.. SLi°TTA JUDGE. Delivered in Court this 18th day of iuist, 1 978 , in the presence of Mr. Tukunjoba, counsel for thu appellants, and Mr. Mwanyika, counsel for the Republic. B.. SiLTTd T 11 Th C i U .1) iii. I-EY iIIGII C0[RiT 19t1i ,1fust