20111104 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

ATDODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 68 OF 2011 (Original Criminal Case No. 113/2010 of Kongwa District Court at Kongwa) JOSHUA MDACHI & ANOTHER ................ APPELLANTS Versus THE REPUBLIC .......l.l.........l.........•......... RESPONDENT

JUDGMENT 14109120.11 & 04/11/2011. KWARIKO,J: The appellants herein and three others were arraigned before the trial court with two counts as follow: In the first Count the five were charged with the offence of Interfering with Necessary Services contrary to section 326 6A (a) and 6B(e) and secondly the offence of Stealing contrary to sections 257 (2), 258 and 265 both of the Penal Code Cap. 16 Revised Edition 2002. It was alleged by the prosecution that the five 23Id day of December 2010 at Sagara had jointly and together on the village within Kongwa District and Dodoma Region willfully and unlawfully destroyed water pipe line system measuring 1176 feet valued at Tshs. 24,780,000/= and one Air valve valued at Tshs. 320,000/= all 1 total valued at Tshs. 25,100,000/= which were intended to be used for purpose of supplying or distributing water to the public from Sagara village to Kongwa Urban, the property of Kongwa District Council. The five were also alleged on the same material day and place to have stolen the mentioned property. The five had denied the charge and therefore their full trial. The facts of the case which led to this appeal from the prosecution can be recapitulated as follows: The Police Kongwa headquarters had on 22/12/2010 received information that there had occurred water pipes theft at Sagara village and the same were to be transported in a lorry from the

scene. A team of policemen led by the OC CID ASP Jacob Kiango PW2, left on 23/12/2010 to intercept the lorry carrying the water pipes from Sagara and arrived there at 00.01 am when they were able to find the lorry loaded with water pipes at Iduo village. The lorry was stopped where some people jumped from therein and disappeared into 1st appellant was found the farms. When they approached the lorry the 1st and 4th accused persons who were the therein along with the then 2nd appellant was arrested shortly mechanic and driver respectively. The as he had run away from the lorry into the farms. Upon interrogation by the police team NO. F 5242 DC Chedi, PW1 4th accused said the first and DC Evarist, PW2 present, the then Vt and appellant had hired them from Gairo to carry the water pipes at a price nd of Tshs. 200,000/= and the 2 appellant was only given a lift in the lorry. The 1st appellant revealed that the water pipes belonged to the 2 then 51h accused person who was arrested in court while attending another criminal case. The water pipes were identified by the personnel from Kongwa District Council one Hamisi Ramadhani, PW4 and were admitted as exhibit P3 collectively while the Air valve was received as exhibit P2. The lorry was admitted in court as exhibit P1. In their defence the 1 ' and 4th accused persons, Ramadhani Pembe and Bakari Masudya respectively seconded the

prosecution evidence as that they had been hired by the 1st appellant herein to take the pipes from Sagara village to Gairo and the owner was not known to them. The 2"' appellant was only offered a lift in the lorry. On his part the 2' appellant supported the 1st and 41h accused persons' story in his respect. The 1st appellant accounted that he received a phone call from unidentified person from Gairo who asked him to find transport to carry the water pipes. Since he was seeking 1st and 4th accused persons. school fees he took the job and hired the He was asked to go to Msingisa village where they could get proper information as to the water pipes. That person joined him at Sagara and many people loaded the water pipes. They were intercepted by the police and the other people ran away from the lorry. The 1st appellant charged that the police refused to take him to that unknown person so that he could answer all about the pipes. He was also hurry to add that no one appeared at Sagara as the owner of the pipes. 3 44 At the end of the prosecution case, the then sth accused person Yusuf Joseph William was acquitted as he was found with no case to answer, while the 1 s' and 4" accused persons were acquitted after they had defended themselves at the end of the trial. The appellants herein were found that the charge had been satisfactorily proved against them and were accordingly

found guilty, convicted and sentenced each to twenty (20) years and two (2) years 1st and 2nd counts respectively. The sentences imprisonment for the were ordered to run concurrently. The appellants were not satisfied with the trial court's decision hence filed this appeal each with own grounds of appeal which have been heard together. The first appellant complained that his defence was not considered and that the police refused to trace the pipes owner hence was neither a nd thief or a buyer of the same. As for the 2 appel'ant he maintained that the trial court erred to refuse his defence that he was only a passenger in the lorry. When the appeal was called for hearing the appellants reiterated their grounds for appeal. Whereas Ms. Shio learned State Attorney appeared and argued the appeal on behalf of the respondent Republic 2rc appellant's appeal for reason that the evidence and supported the 4 proved that he was only a passenger in the lorry. As for the 1 appellant Ms. Shio support:ed his conviction in relation to the 2' count of Stealing and charged that the trial court had no jurisdiction to try the offence against the appellants in respect of the 1st count which is an Economic Offence triable only by the High Court unless otherwise consented by the DPP. She prayed that the proceedings in that effect to be nullified. The issues to be decided here are two folds; Firstly,

whether the prosecution case proved the case as required in law against the appellants and Secondly whether the trial court had no jurisdiction to try the offence in the first count. 1st issue this court is of the same opinion that the As for the offence of Stealing had been proved beyond reasonable doubt against the 1st appellant. This is so because he did not dispute that he was the one who took the lorry to Sagara where the water pipes were loaded and carried away. He only deny that the water pipes did not belong to him but was instructed to act on behalf of another undisclosed man. This is bizarre since a person cannot act in such a courageous way on instruction from unknown person. Also, the 1st appellant was not ready to mention the name and address of the said person so that the police could trace and find him. Hence the complaint that the police refused to trace that mysterious man is unfounded since he did not furnish enough information to that effect. He was responsible with the theft of water pipes as the proved property of the complainant. His defence had been sufficiently considered and rejected by the trial court. 5 As for the 2uid appellant the evidence is clear that he was only a passenger in the lorry as explained by the driver and his assistant. Had the 2nd appellant been connected with the water pipes the 1st appellant would have explained so. Thus, his

conviction on ground that he escaped from the lorry is unfounded since he said that after the police hambushed the lorry he jumped out like the others and started walking home where he was shortly arrested by the police. Thus, his conviction was not justified and the same is hereby quashed. I have secondly gone through the law in relation to the offence in the first count of Interfering with Necessary Services contrary to section 326 6A (a) and 6B (e) of the Penal Code and I agree that the same is an Economic offence only triable by the High Court unless otherwise delegated by consent by the Director of Public Prosecutions. (See section 26 and Paragraph 12 to the Ffrst Schedule of the Economic and Organised Crime Control Act, Cap. 200 Revised Edition 2002 read together with section 3 (d) of the National Security Act, Cap. 47 Revised Edition 20025. Thus, the trial court had no jurisdiction to try the offence under 1st count and thus its proceedings were null void and are quashed. Due to the nature of the evidence on record in respect of the 1st count I would not order a retrial of the same before the court with competent jurisdiction. The 1" appellant being a student and first offender his sentence already served in respect of the second count will save the interest of justice. Thus, the appellants' appeal is allowed as explained and they are ordered to be released from prison forthwith unless otherwise lawfully held. It is ordered accordingly.

JUDGE 04/11/2011 DELIVERED AT DODOMA. 04/11/2011 Appellants: All Present. For Respondent: Ms. Nsana State Attorney. C/c: Ms. Komba. (MA 1NARIKO)

JIG E - - 141/2011 7