19980211 TZHC Mwanza

,.... 1.· •• --· -< IN.'I'HE HIGH COURT 0~ TANZANI!A - ' AT MWII.NZA .M>PELLAJJ:E JURISDICTION MWANZA REGISTRY. HIGH COURT CRil1INAL APPEAL NCl.,34 OF 1997 (Original Criminal Case No.36 of 1997 of the District Court of Geita District at Geita Before: K.M. Mrisho Esq, District Magistrate) JULIUS MLAGALA @ JINJll. • u ••• •• o............. APPELL'I.I'Il' · · (Orig.Accused) Versus THE UNI'IED REPUBLIC ••••o•••••••••••••••••• RESPONDENT (Orig. Prosecutor)

JUDGMENT I-CHALL!, J. The appellant in this appeal one ~ulius Mlagala @ Jinja was jointly · charged with three other accus.ed persons with office brealdng c/s 296 ( 1) of the Penal Code, Cap.16. TM appell~t wee ~ete-d of the offenee and was sentenced to 8 years imprisonment. His co-accused namely Samwel s/o Sayaloi@ Mairusu and Joel s/o Maige@ H~bi were also similarly convicted~ sentenced for the offence, while the 4th accuoed one Machemba@ Zacharia was aequi tted •. The appellant and his c~aecused who were also c.onvicted and sentenced, were aggrieved with both the conviction .and sentence; they have all appealed to this court against the· entire decision. of the trial subordinate court. They each prepared a separate appeal. When the three separate appeals were processed and submitted to my learned brother judge Mrema for admission on 24/?/97 he admitted to hearing only one of those appeals, that is, Griminal Appeal No. 34/97 filed by Julius s/o Mlagala@ Jinja, while the. other two appeals namely Criminal Appeal No~·. 37/97 and· 38/97 filed by Joel, ME3ige @ . Habi and by Samwel s/o Sayabi@ Mairusu respectively were inadvertently not admitted, and were returned to t~:.r~gistry as such. The clerks in the Criminal Registry were not diligent enough to detect the inadvertence on the rionadmission of the two appeals in question, the same remained unadmitted1 although were posted

together.with c:oo.minel ~ppeal.No.34/97 that was admitted • . Then Criminal t.:ppeal No.34M was :fixed for hearing before me. on 6fej98. It was then discovered that the two app.ea.ls in. qU:e£tion had not yet been· · admitted to hearing, henee the same could not he heard on 6/2/1998·~ - 2 - Secondly', ,even assum:i,ng the ~WO appeals in question had been admitted to . ., . ·. . . . 0 •. ,: .. . hearing, yet 'the same could. not be heard on 6/2/98 as .the same had not been fixed for hearing on that· d,ate, and also there. w9-5 no o~der made prior that ·the said two· appeais be . consolidated with Criminal Appeal . No.34/97 ,. and be ', · heard together.· Under these circumstances, I ordered that ~nly Criminal Appeal No".34/97 filed by Julius s/o Mlagala@ Jinja be heard on 6/2/97, whil~ Criminal Appeals Nos. 37/97 and 38/97 be sent to a judge for admission ' '' .· first, rold thereafter the same be fixed for, hearing on the same date when ' ' the presiding judge may in his discretion direct that _the i;;wo appeals be consolidated and be heard together. ·It is my hope t_hat this order will be acted upon by the Registry Staff in the .riminal-section. Tha~ said, ! now re:v:ert to the submissions that were m_ade by counsel at· the heaiJng of this appeal No •.34/9.7• . ?he_ appellant Jtµ;iW3 s/o Mgala @ Jfnja w~ repre~ented by Mr. Galati, learned advocate, whi.le Mr. Mbago learned

.Senior State Attorney appeared for the Republic/iespondent. . .- ~ ·, However, ·,Mr:<Mb ago .did not seek to oppose the appeal; he readily conceded ··to·:-~he ' entire appeal. :Mr. Galati ·argued three ground:5· of appeal .which were listed in the *r· ,,,,.,,.;__,.,: '';)"• petitfon ·of app~?i. which he drafted, and filed on behalf of his client, the' appellant. On the first ground of appeal Mr. Galati ,submitted that the ' ' . learned trial magist:cate erred in convicting the appellant -W;ith the offence charged viithout ·there. being evidence tb establish_ a,I>pellant•_s ... : _· ' . participation • .,) '. ' 'in the commissio•n of the i=l1leged offencie~ In ar-guing grolirul 1 of the · appeal Mr. Galati also r.aar.ged gro':illd 3 •of the appeal which' states that the only ·available evidence that tends to implicate the app~llant with the ·. chatge is· the evidence o.f one. ].sihand~:.~thumani ·Ndege'. ·(P.W~1) who told . · the :court that he was told b-:}" a turnb.oi_.~f Lu,shanga b~ that the said turn- . ' . : • ,., . ·!.' boy 'had seen the appellant on the morning... foiloWing .. ·t.he .. incident of offence, •· . '·.. . ,• . , ··loading timber pieces on to the Lushanga bus. lhtr-. Galati sublni tted that the turnboy of Lushanga bus did not tel3tify at the trial, 'so hi~ report to i?.w.1-.·/3.bout appellant's act of loading timber on to the 'Lushanga bus on 5/5'/96 i~

h!:3arsay hence inadmissible. I quite. ag1:ee with this submission. However, even assuming that the turnboy from Lushanga: _bus had testified at the trial;· his· evidence would not have. proved. :beyond reasonable doubt that . the timber which the said tu:tllboy s~ the ~ppellant loading on to the Lushanga bus on 5/5/9(!, were : the same·. timber which had peen stolen from the ' ' · scene of crime. In. fact there w'as a witness who testified before the trial · court and who stated ~mphat.:i.c.ally that he ~aw the appellant loading timber . ' on ,Lushanga bus in the ·morning , following the commission of the off e nee. T.hat witness is Majeshi s/o Lushanga (P.W~5). ·:However, as I have stated abov~, even.P.W.5. did not describe the timber which he saw appellant J.oading on Lusha1,1ga bus in _the· morning on 5/5,/96 in order to prove that . that timber was one and the same timber whiqh ts alleged .to have been stolen from the sceµe during the commission of .the offence in point. !A/3 Mr. Galati, learned advo.cate for the appellant rightly· argued in · ground 2 of appeal, the learned trial magistrate convicted the appellant with the offence merely on the weakness of his defence .when the said magistrate remarked in his judgment t}:.ms: 19 With much respect I have gone · through' the evidence as adduced pn both parties and found all accused persons had relying (sic) on defence of

alibi that during the material time they were not at the locus in quo~: The .fact that the 1st and the 2nd accused were on safari and that the 3rd accused was sick is irrelevant to this ' . ease. However the 1st and 2nd accused had not submitted any document like · bus ticket to support that they were not at the locus in quo. 11 ~~ Obviously the above quoted-except from the judgment of the learned trial magistrate is a misdirection in law •. With due respect to the learned trial District 'Magistrate, the defence of alibi by an accused cannot be held to be irrelevant simply because the· same i~ not .supported by a bus ticket in which the a~cµsed travelled away ·from the scene or locus in · quo.~ A person can trav,el by pus without necessarily_ being issued with a .. ticket particularly where th~ bus conductor had charged an illegal and . •. •exorbitant fare. This is a common feaHi're in many bus travel these days. At any rate an accused person: is not re1quired in law to establish or prove bio defence of alibi beyond reasonable doubt~- It is sufficient if the 'defence of !£!:.ibi is plausible and is offerred or raised in accordance with ·the law. Moreover, as·Mr. Galati correctly argued, it is always the prose- cution that has to prove the charge on an accused person beyond reasonable doubt. This burden does not shift unless the law creating the offence states otherwise• .Jln

accused person has only one duty 1 tha;t is of raising a reasonable doubt in the minds of the court which doubt is always treated in his favour and where by he ·~eri ts his acquittal. In the instant case, there were so many shortcomings on the prosecu- •tion· case. Firstly there was no ·evidence adduced to e!3tablish a legal · nexus on the appellant in the commission bf. the offence charged. The appellant was not one of the watchmen at the scene of crime. He was not seen at that piace prior or shortly before the commission of the offence • •••••• /4. . 4 - c The only evidence that raises a mere suspicion, however .a very unreasonable suspicion, is that the appellant was seen loading timber on to the Lushanga bus on 5/5/96 in tp.e morning. What is wrong with that? J.s I have already discussed and found above, there are no circumstances which are established which raised a reasonable infe,rence that the 'timber which the appellant was seen by P.W.5 and by an alleged turnboy from Lushanga bus loading on that Lushanga bus in the morning following the alleged theft was the same timber the subject matter of the offence with which the appellant was charged. I did state a.fore that the Republic did not support the conviction. Consequently, on the foregoing discussions and findings, I am quite satisfied that this appe,al is meritoriou.s, I allow the same in its entirety. I quashr the conviction and set aside the sentence of 8 years imprisonnent which were entered and passed on the appellant by the trial subordinate court. It is hereby directed and ordered that the appellant by the name of Julius Mlagala @ Jinja be released from prison forthwith unless otherwise lawfully further detained. Order accordingly. ,Appeal allowed. ~ _M.D. NJHJJ.11..

JUDGE 7/2/1998 11/2/1~ Coram: M.D. Nehalla, J! For appellant: Mr. Galati, /~dvocate. For Repiublic/Respondent: Mr. Feleshi, Stat.e f.ttorney c.c. Milka Mohamed Courts Judgment delivered in chambers at Mwanza in the presence of learned counsel for the parties. This the 11th day of February, Right of' appeal explained. ,; J.,T MWANU 11/2/98