19700729 TZHC Mwanza7

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IN THE HIGH COURT OF TANZANIA (In the District Registry.) AT MWANZA. Appellate Jurisdiction. CRIMINAL APPEAL NO. 236 OF 1970 Original Criminal Case No. 744 of 1969 of the District Court of Shinyanga District at Shinyabga Before M.II.Somhoj&, District ilagictrate. MAGIGE s/c KILINUIJYENGE, ) . . . .- . . . . . . • . . . . . APPELLL1'JTS. JOSEPHAT s/o HIKINDI. ) ( Original Accused.) vs THE REPUBLIC. . . . . .' . . . . . . . . , . . . • RESPONDLNT. (Original Prosecutr CHARGE:. Breaking into a building with intent to commit a felony under section 297 of the Penal Code. JUDGMENT. ONTItJKE, J. The two appellants, members of the Police Force, were charged in the District Court of Shinyanga, before the District Magistrate (M.M. Scmbojà Esq.), with breaking into a building at the Now Alamasi Prospect Plant, lVlwadui, with intent to commit a felony c/s 297 of the Penal Code. The facts in this case can be briefly stated. The two appellants wce on guard duty at thd New Alamasi Prospect Plant from 10 p.m. to 6 a.m. in the night of 14/15th September, 1969. They took over from other police- men at 10 p.m. and were themselves relieved by another policeman e.t 6 a.m. of 15th September. To appreciate the evidence it would be necessary to describe tho Plant in some detail. The evidence on this point was given by P.i. 14 (IvIallack Philip), the general superintendent at the New Alamasi Mine.

The: New Alamasi Prospect Plant complex comprised a plant and administration offices. The offices were separate from the Plant and were about 400 yards from it. The offices were guarded by a night watchman whose hours of duty were from 10 pormi. to 6 a.m. P.W.5 was the watchman on the material date. The guarding of the Plant was the solo responsibility of the Tanzanian Police. Public access to the plant was forbidden0 The Plant comprised 2 sections, namely, the Cyclone Plant section and the Ball Mill section, both ware housed on the ground floor of a storey building. It was in the Ball Mill Cection that the final concentrates were treated into diamonds and stored before despatch to Mwadui. Access to the Ball Mill can only be gained through a door secured by Chubb padlocks 1 the keys of which wore held by the Plant Foreman (P.w.6) and Police iT.CO. i/c of Security of th Plant. The roof of the Ball Mill Section was cevored with heavy corrugated iron plates welded to steel structure. 3 sides of the Mill were built with steel supports on which were welded expanded metal sheets on the out-- - side and heavy corrugated iron plates on the inside. The 4th side was built with steel supports on which 22 gauge corrugated iron shoots ware attached with hooks, the nuts of which were spot—welded to prevent removal. When the Ball Mill is opened it makes considerable noise because

tremendous force has to be used. The Ball Mill was not in operation on the 14th September being a Sunday. It was this Plant, with its heavy construction that the appellants guarded in the night of 14/15th September. It was discovered in the morning of 15th September at about 7.30 F. m. after the appellants had signed off that the Ball Mill was tampcd with. It appeared that Oxy—Acotylcne had boon used to cut the bolts sccuMnrha corrugated iron shoots to the iron posts on the 4th side of the Ball iill. Admission into the Ball Mill was then gained by removing 2 corrugatocY iron shoots without in any way tampering with the door to the Mill. There was evidence that P.W.4, a Police Corporal, visited the plant, at about 1.15 a.m. that night, on the usual inspection patrol. This S. —2- witness s -bated that he met the appellants on duty. They wore awake0 One was at the door to the Mill and the other was upstairs of the building housing the Cyclone Plant and Ball Mill0 The witness inspected the whole area and found everything in order. There ware electric lights in the plant. Shortly after the departure of this withcsss0thing happened. The account was given by P..5 the night watchoan who was in charge of the administration block. This witness stated that he heard great noise as of baflging against iron. He heard 4 such bangings. He went around a garage and from his own section he saw

two parsons standing outside the plant. The witness continued - I did not go to find out. I did not go there because it was restricted for poopl3 to go there • . . I did not bother because it was not part 0± my area to guard. I have never visited the Plant area. I did not report of what I hoard because it did not happen in my area. Had there been no restrictions I would go to see what was happening. The appellants, in their defence, denied the charge. They admitted they wore on duty at the Plant from 10 p.m. to 6 a.m, that night and wore awake throughout. They made the usual rounds to make sure that everything was in order. They saw nothing and hoard nothing that night. Jpart from the Police Corporal on patrol duty nobody came to the Plant that night, they stated. The learned magistrate than reviewed the evidence. He believed the story told by P.W.5 and accepted as a fact that the Ball Mill was broken into that night when the appellants were on duty. He then posed thc question :io then could break if they were awake and present?" He than held, in effect, that the appellants broke into the Mill or were party to breaking into the Mill. He convicted the appellants accordingly. The iain point in this appeal turned on the credibility of the niht watchMan (P.v.5). The main criticism was that the learned magistrate was not justified in accepting- the story of this witness. Mr.

Rugarabamu contended that it was inconceivable that, had tilo witness seen and heard, he would have done nothing. The learned State Attorney, Mr. D'Souza, felt himself unahlc to support the conviction which was based on the credibility of P.W.5. Pa ut his submissions very clearly and with great plausibility. The substance of his submission was that the fact that P.W.5 neither raised an alarm nor reported what he claimed to have scan and heard, raised serious doubts about his credibility. Either P.J,5 did not hear the banging in which case his credibility is destroyed or he heard it and did nothing because he was a party to the crime in which case his evidence required corroboraticn and there was none. This appeal calls for a clear appreciation of the principles which should govern an appellate court in an opeal on a question of fact and the credibility of a witness is essentially a question of fact. Lord Simon in .WATTvs, TH 0M1S 94j7 176 L.T.R. at page 498 stated that - The decision of an appellate court, whether or not, to reverse the conclusions of fact reached by the Judge at the trial must naturally be affected by the nature and the circumstances of the case under consideration. Continuing ha said: If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a

whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting tosbimony by a tribeal -3- which saw and heard the witnossos, the appellate court will boar in nind that it has not enjoyed this opportunity and that tio view of the trial Judge as to where credibility lies is entitled to great weight. That is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth. Like other tribunals, he may go wrong on a question of fact but it is a cogent circumstance that a Jude of first instance when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witness before him and observing the manner in which their evidence is given." In REX v. ICitIL & MiWJI L949J 16 117 the Court of Ippeal of last africa hold that - "In the absence of any indication that a trial Judge had failed to tako some material point or circumstance in account it would be impossible and improper for the court of appeal to say that he had come to an erroneous conclusion as to the respective credibility hi attached to the evidence of the Crown witnesses and that given to the appellants." Finally in DLUDI MWBUSILO v JOHN i'WiKIWILi 59617 HOC.D. Note 59, HamlyJ said- "1n appellate court should re—assess the

credibility of witness only if there are circumstances of unusual nature which appear in the record." In that case the learned Judge set aside the judiiient of the District Court. and restored that of the primary court. The position than is that an appellate court should not disturb the finding of fact, by the trial court, based en verbal testimony, unlese it is manifestly unrcasorable. Whore, however, the matter turns on proper 4111, infcrnces to be drawn from established facts or relatos to issues which arc susceptible of being dealt with wholly by argument the appellate court is in as good a position as the trial court and can more readily set asidc the judgment of the trial court (Soc Platt J in JUMI iLIBiX SiIDv i J19677 H.C.D. 383 and Lord Robson in KHOO SIT HOH v SILl TIN TOUGH 11917 Turning to the instant case, I hold that I am bound by the loarnf: magistrate's view of the credibility of P.W.5, bascd,as it was p on the witness's verbal testimony. Was there anything inherently improbable in that story? It is said that tho witness should have raised an alarm or rushed to the scene or reported the matter if he really hoard and saw what he testified to. The simple answer to this was furnished by the witness himself. The section where tho incident happened was barred to him and was in the Losurod security of police guards. it would be unreasonable to expect the witness to

suspect the Police and to go to investigate. He hold his peace and left it to the police to do their job. Unfortunately the Police guards turned bandits. Since this was the main point of cornplei:t I would dismiss the appeal against conviction. The learned magistrate sentenced each of the appellants to a term of 15 nlonths imprisonment subject to confirmation by this Court. Though the appellants were first cffendors the learned magistrate regarded as a factor in agravation that the appellants wore police officers assined to protect a very sensitive industry who turned crirninals themselves. The sentence was in the circumstances appropriate. I confirm it. -4- ORDER: Lppc.1 dismissed. Sentence confirmed. Delivered in c..n Court this 29th clay of July, 1970. ji (G.c.M. oNYIDKE.)

JUDGE