19751224 TZHC Arusha

2 * IN TH HIGH CO1JRL. OF TAIIZANIA

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APELILATEJURISDICTIQ RIGU COURT CR.IILNAL ApPEAINO. 86 OF 197. ORIGINAL CII:INAL CASE HO. 63 OF 1974 OF THIE DISTRICT COURT OF NASAl ])13TRICT AT MONDULI BEFORE: C. W. Kt-IE,IA, Esq. 2 District 1iastroe 1. LECTION LAGILOI\IYIKE) O . '- ' iiivnir '--- TtT --'-'C'.Ti - - 1 I_-PPELIAVITS 3 LAIRUPBE S.LLUMKI ) / Orig±ia jccue - .4. MALONGO LEGILWE ) veft'sus . . THE REPUBLIC ......................... RESPOi'1DNT° (Original Prosecuto') ,.. JUTDGEiEHT 0 TYAL[.LI AG. J • .• . . This: is conso1idatpd : spea1 cOncdrning four appellants, :iel Lectio,,A Igilonyikè, hereiiafer rofëred to as the 16t appellant; Sumari Kiiagwè hereinafter - referred. to : as • the 2nd appellant, Lairunbe Saitunki (hereinafter called the 3rd aeilarit), and Malonb Legilanwe, herinaftor- called the 4th apeiiaht. They.ore jointly chaiged'and convictod with .äiiothor pereon, nenely Shwagha s/o Sinda, who is not appoa1in, with the offence of cratin disturbance c/s 89(b) of the Pnal Code in the first count and with Robbery with violence c/se 285 and 286 of the caine Code in the second * count. They- vcre sentenced- to 9 rioxths iiarisonncnt and • 7 years :Lmprisonnent on the first and second: respoctiyely and, ordeed to ay h.51O/ compen sation to P..i, VJ P.J.2, P.1.3, P.L4, P.05, P.1.6, P.J.7 and P.1.8 in different amounts sjcc-ifiod in the order. They are nv7 appealing to this court agaiilst the convictions,

sentencs and orders. * The iacte of the case according to the prosoculion are that on7/3/74 9 P.J.I, P.\7.2, P.7.3, P.W.4, P.W.5,P.7.6, • '.7.7, P.J.8 and P.7.10, who do send. hawking business, were - 0 the arkst place at Torati Sinianjiro, selling', their merchandis'b when the -1st apeiiant wont to P.7.1 nrI took soni. cloth which P.7.1 was offering for sale and lt a eJi it aL od ai n is cloth wi uhout pa,r1n for i b P.1.1 \rTcnt aitor tho let aopel±ant o recover the cloth and a struggle issued between the two. The 4'h appellant - (Malongo Legiianw) went to assist the 1st ape1iant and while so aseistiu;, the 4th appcLlani hit P.7.1 with a stick on the he-ad and P.0.1 foil down unconscious. Other people at the iarkt joined in the struggic, either on the side of - P.0.1 or the -side of the 1st appellant. Those iihp joined on the side of P.0.1 wore P.7.2, P.0.3 9 P.0.4 9 Zappel— P.1.7 9 P..8 and P.i.lO. Apart from .4th.L those who joined lant on the side of the let appellant wore the 2nd appellant Sunari Kilag'wo, the 3rd appellant (Lairuilbe Salunilti), and the - other person who is not appealing (Shwagha Sinda) and many others. - •- - - -2- Most of the prosecution witnesses vrcre seriously injured during that struggle or f.lghG. ihilo the fgnt was taking placo tue rierc±aandiso of the prosecution witnesses was stolen. - The defic. co-so o:L .the ls apeeliant consisted. in

a denial of the prosE;cution case though ho acinits being present when the- fight took pLce but; he ailegee that ho was nit by one of the prosecution witnesses for no- reason at all. The defence en so of the 2n appellant (wno was cho •5in accused at the trial) consists also in a denial of the prosecution case and of aii alibi asserting thet he was away at Lorakare when the fight took lsoe. The defence of the 3rd appellant (who was the 4th accuse ,l oP; the iIial) consisted in a general denial of the prosecution case. That of the 4th appellant (who was the 2nd accused at the trial) consisted in a general denial of the prosecution case and an ascorijon that he did not participate in the fight which he observed only as an on looker. So the first poirh; for consideration in ths.case is whether the appolinJztc or any of them participated in the fight. I'fone of the prosecution witnesses mefitio d .th. .2.rd appellant (Lairumbe Salunt:i) as having taken any part in the fighting. There is therefore no evidence to support his conviction on the first count.As to the other appolle-.nts, tnoy were mentidnod bi all ne prosecution witnesses. who wero. generaiwy consistent in dc-scribing the roles played- by each of the apoilants. I would therefore say that the let 21,1d and fourth appellants participated in the fight. The next poirilt or consideration is she thor their participation in the

fight enopacted to the offence charged in the first count. The answer on the facts and the ovidonce must be yes. They wcrc therefore rightly donvictod on the first count. It has to b.c nontioriod hero, the record 0f the trial shows tInt iii. let neocilant appnro.Itl pleaded guilty on the firs ; count and. was convicted on his- plea, but sentence was reserved uxiti] th bonclusioh of the trial, which however proceeded as if' the let appslioac had not pleaded guilty. It would seen that this hapsced because the trial magistrate- forgot th. .t bho let a -opclln.nt had already been CoilVictod on his own pica. I would say that his was an irregularity but which in the present caso was a very fortuinte irroular1t.T in so far as justico is concerned since the purported pin. ot g'ailty wouicL very likely . have been held to ho ecj'u.ivocal or aabiguous. The next point lea co).Lsiae-r tie..:. in this case is wJ.oth:.r the second count is not bad in leer for duplicity. The particulars -of the offence charged. in the second count state: -3- uThe same ersons jointly chardeci on the sane day, date and place did steaJ C1(YG.ilOS, namely: ohukas, 'mnikia, trou.s.:rs shirto, onoy, ushanga and vibuyu all valued at approxin toly 15 9 307/= boin; the property of . IJobaro s/o Polosi, IN-Eoira s/o isanbwa, 11 3a1jiieJ s/o Andrew, Meiai s/o gnkuoli, Justine s/a pelcsi,Thobias s/a Lazaro, ala1eai .s/o

nanynaga, 1'mrito s/a Longoni, and Samal. s/ö Abx?.ham and i:aaodiatcly before ouch stealinnd iioTidtoly af or such stealin d i d to the said irsos in order o ObbE1n cht said oropert Q Now, it io obious fran these oarticularo ad the iac JO of the cane lant hcrc wore as many offonces of robbery allegecll con ittod ao thor were nany complainants. In other words; incc tL'ore wore ten complainants, there was bound to be ten oepara;o offeicee, all of which appear in a singlc count. This was wrong' in law which requires each separate offence to be charod in a separate count. The second count was therefore bad in law by rcaoon of duplicity. The next point for conaidornticn is what effect if any does this irregularity have on t,ho proceedings It is trite law that duplicity will not affect a conviction unless the circumstances of the cane ard such th t the appellant must have been prejudiced tieroby or such that there must have been a miscarricec of justice. In the present ceo:;, it in JnIpOO:3iblO to know from i1O partcu±ars of 6i10 oIenco what property was stolen from whom. Moreover the fac s of bite case si ost that 7then the fihtviao ing on, there were people who toan advantage of the cncral confucian and stole somo of the • unattended property. Such property cannot by any stretch • . of iLia;mnntionbo constuod to have been stolen by the appellants. It was ieorf ore neccanary in

tile present case for i.• particula's 'be pnt out which property was taken • fran whom and by viho. ii•thout such particulars and in the light o'I ho fn,ct f the case, it is vDry doubtful if IC p ollaits r']ly IsuOO C case 11aeu thon I iould tierof ore hold that dupJ.icit in. th present case did prejudice the apes. lanto and I will quash the conviction on these cend count and cot aside the sentence and so it is ordered. As to the first count in respect of wiich a sentence of only 9 months was iipood, appeal is disn.iscd in its cnirety, but sliaco imn anntcncc was imposccL on 30/11/74, t.als will result in the ieeucdiate robes of the ap)ollans 11 from jail unless held for ot1er lawful causL.. cfl, L4 ( (F. L. 'ALALI) AG. J1JDG. Judgoneilt. .. • ..•. . .