makumbi ramadhani makumbi others vs republic 2009 tzhc 227 30 march 2009

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA

APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 148 OF 2004 ( Original Criminal Case No. 29 o f2003 of the District Court of Mwanza District at Mwanza before G. J. Kadasso. RM) 1.MAKUMBI RAMADHANI MAKUMB^ 2. NASSORO MPUYA MIHAYO 3. SHUKURU RICHARD @ SEBA 4. MASHAURI MASAGA @ KULWA ^ APPELLANTS 5. HASSAN SAID SELEMANI 6. SAMWEL PETER TUNGU Versus THE REPUBLIC............................................ THE REPUBLIC 20.03.2009 - 30.03.2009

JUDGMENT G. K. RWAKIBARILA. J This is a consolidated appeal by Appellant No.

1. MAKUMBI RAMADHANI MAKUMBI, Appellant No.2 NASSORO s/o MPUYA MIHAYO, Appellant No.3 SHUKURU RICHARD @ SEBA, Appellant No.4 MASHAURI MASAGA @ KULWA, Appellant No.5 HASSAN SAID SELEMANI, and Appellant No.6 SAMWEL PETER TUNGU who lodged appeals Nos. 148/2004, 149/2004, 150/2004, 151/2004, 152/2004 and 153/2004 respectively, challenging their convictions and sentences in Mwanza Resident Magistrates' Court Criminal Case No. 29 of 2003. After the consolidation, their appeal before this court remains with No. 148 of 2004 alone. All the six appellants were formerly tried and convicted in that criminal case No. 29 of 2003 with their respective ranks in brackets as Appellant No. 1 (first accused), Appellant No. 2 (fifth accused), Appellant No. 3 (sixth accused), Appellant No. 4 (third accused), .Appellant No. 5 (fourth accused) and Appellant No. 6 (second accused). One Ibrahim Silasi Nyangisa Manyangu who was the seventh accused during their trial was found not guilty and acquitted. The charge against them had two counts. The first was conspiracy to commit a felony c/s 284 of The Penal Code, Cap. 16 (Vol. 1, R.E. 2002). And the second count was armed robbery c/ss 285 and 286 of the same Code, as amended by Acts No. 10 of 1989 and No. 27 of 1991. All the six appellants were sentenced to concurrent sentences of seven and thirty years imprisonment in the first and second counts

respectively. The summary of evidence which led to their conviction in both counts is that, the National Microfinance Bank (NMB) has a branch at Misungwi township in Misungwi district, within Mwanza Region. By 29.05.2002 PW3 SOPHIA MABERE was a manager of that branch- and on that day, they closed the bank on that occasion with a balance of Shs 78,931,550/= which was stored in the strong room. PW5 E 512 PC RWEHUMBIZA and E 2464 PC THEOPHIL (who did not testify in this case) were duty routine sentries at that bank on that day at night. At around 01:30 AM on 30.05.2002 when PW5 and PC THEOPHIL were still on their routine duty sentry at that bank, a gang of thugs equipped with rifles, explosives, shells and other weaponry equipments stormed that bank. There followed a brief exchange of fire because PW5 and PC THEOPHIL were instantly overpowered and forced to, retreat for purposes of reporting to their boses. In a twinkling of an eye after the sentries' report, PW1 ASP SHABANI KIMEA who was by that time Mwanza Regional Crimes Officer (RCO) got a first crime report and, before dawn on 30.05.3002, he was already in command of a special task force to repel or apprehend the thugs who staged a robbery at that bank. He assigned PW2 ASP HAMIS HASSAN HOLOLA who was Misungwi OC- CID cum Kwimba OCS to erect police road blocks to all roads which create exits from Misungwi. PW2 implemented PW

l's instructions and, on top of that, conducted shuttle trips along those roads with a police M/vehicle. Several detectives like PW4 C 2871 Det. Sgt. LEONIDAS and PW8 C 4581 Det. Sgt. MECHALESI accompanied PW2 in that M/vehicle during that mission. As a commander of that task force, PW1 rushed to the locus in quo and witnessed the debris which was caused in the bank premises. The thugs were no longer there. He proceeded to collect some remains from the debris which were part of the Exhibits P.1-P.25. Remnants of that kind were like 43 cartilages, several pieces of timber and a blasted strong room door which he tendered as Exhibits P.12, P.14 and P.22 respectively. While still at the locus in quo, PW1 gathered clues from the neighbourhood on how the thugs arrived there. One of them was PW6 ASHURA PHILIPO whose husband SELEMANI SALUM didn't testify due to sickness. According to PW6, when she was in bed with her husband (SELEMANI), at night on 30.05.3002, shortly before gunshots and blasts were heard from the locus in quo, she first heard foot paces close to their residence. Both PW5 and SELEMANI walked outside to inquire on what was wrong. One of the thugs ordered SELEMANI to return to bed but the latter initially resisted. There followed a confrontation among them in which SELEMANI used his machete to slash on the body of that thug. PW6 assisted SELEMANI to overpower the thug.

However, SELEMANI and PW6 quickly retreated to their residence after another thug suggested to his colleague to shoot at SELEMANI. Another source of the clue to PW1 was PW7 SHUSHE NJILE who was by 30.05.2002 a watchman at one Mapinda's shop. Shortly before the gunshots and blasts started, several people passed near that shop at a site where he was taking cover. Two of them approached him. There was adequate electricity lights there. They ordered him to leave that place. Before obeying their orders, he marked the appearance of accused No. 1 MAKUMBI RAMADHANI MAKUMBI whom he later properly identified during an identification parade which was supervised by PW14 ASST. INSP. PETER CLEMENT 4 on 01.06.2002, and hardly two days after invasion at the bank. In fact the residence of PW6 and her husband or the Mapinda's shop where PW7 was guarding were estimated to be within 20 and 100 paces from the locus in quo. And before PW1 left the locus in quo, the bank branch manager PW3 combed in the debris at the strong room and recovered only Shs. 3,960,550/=. Then she determined that the thugs seized a total of Shs. 74,900,495/= as per the charge sheet. It has already been mentioned how Shs 78,931,500/= were left in the strong room on the previous day, i.e 29.05.2002, at closing hour. On 30.02.2002 in the morning while PW1 was still in command of the task force at the locus in quo, PW2 got an

information from men who were repairing the road towards Ngudu/Magu direction how they saw a convoy of several men traveling with three bicycles and suspicious luggages, plus oneof their colleague with injuries transported on one of those bicycles. PW2 ordered their squad in that police M/vehicle to trail the route which the road workers said that was followed by men in the convoy. At a certain stage, PW2's squad met Appellant No.4 MASHAURI MASAGAJA @ KULWA along that road and questioned himabout themen in the convoy. This Appellant No. 4 directed PW2's squad in a wrong direction which ultimately led members of that squad in a face-to-face encounter with the men who were still repairing the road. In their conversations which followed, members of the squad were informed by men who were still repairing the road how Appellant No.4 was among men in the convoy and how he (Appellant No.4) was the one who was ridding one of the three bicycles where the injured colleague was carried. At that stage PW2 and his squad hurried towards Appellant No.4 and ordered him to lead them to where he left his other members of the convoy. Then Appellant No.4 led PW2's squad towards a place where members of his convoy were resting at the shade of tree. When PW2's squad was about 50 paces from the said shade of the tree, members of the convoy "smelt a rat' and took to their heels but in different

directions. PW2's squad members quickly reallocated themselves into different groups which chased convoy members severally. Then in course of this endeavour, PW2, PW8, PW4 and other members in their squad who did not testify in this case intercepted and arrested immediately Appellant No.2 NASSORO s/o MPUYA, Appellant No.3 SHUKURU RICHARD @ SEBA and Appellant No.6 SAMWEL PETER TUNGU. Appellant No.4 was the first to be arrested after he led PW2's squad to that tree shade. And Appellant No.5 HASSAN SAID SELEMANI was joined with other appellants after, he was arrested by civilians in some places in Kwimba and joined with appellants. But Appellant No.l was joined in the group of appellants after his positive identification in an identification parade by PW7 (a watchman at Mapinda's shop) and a cut wound which PW6 deposed that it was inflicted on his (Appellant No.l) body by PW6's husband one SELEMANI. In their defence all six appellants denied involving themselves in this offence. They narrated how they were arrested in different places in Misungwi and implicated in offences of both counts by detectives who arrested them or civilians who found them attending their respective activities in Misungwi. Mr. Mwita, a learned state attorney who represented the Republic opined that Appellants Nos 2,3,6, and 4 were identified, arrested and implicated adequately in this case after the latter

led PW2's squad to the shade of the tree where the convoy members were resting. And he put it too how Appellant No.l was properly joined in that convoy due to the cut wound and his positive identification by PW7 in an identification parade which was supervised by PW14. But the learned state attorney did not support conviction of Appellant No.5 who was arrested afterwards by civilians. It is opined by this court that by the time Appellants Nos 2,3,6 and 4 (who led PW2's squad) were arrested, they were in possession and control of the weapons, instruments or loot which were within the Exhibits P.1-P.25. Some of these appellants like Appellant No.3 tried to escape with a bag which had three SMG firearms (Exhibit PI) before he was intercepted and arrested. Therefore Appellants Nos 2,3,6 and 4 were arrested before they slipped away to mix up with civilians at places which were not far from where they rested in order to enjoy the shade of the tree. Moreover, there were cautioned statements and one extra judicial statement in which appellants conceded taking part in. the 7 conspiracy and robbery constituting this matter. Exhibit P.26 is a cautioned statement by Appellant No.6 which was recorded by PW9 D 1496 Det. Sgt. PAULO. Exhibit P.28 is a cautioned statement by Appellant No.4 which was recorded by PW10 E 8591 Det. CPL RUPETO. Another is the Exhibit P.30 cautioned statement by

Appellant No.2 which was recorded by PW12 E 5787 Det. CPL ELIAS. And there is an extra judicial statement Exhibit P.35 by Appellant No.3 which was recorded by a justice of peace one PW13 MARY KASANGA. However some other extra-judicial statements like the Exhibits P.29 and P.31 were not taken into account because justices of the peace who recorded them were not called to testify during appellants' trial. But in the cautioned statements Exhibits P.26, P.28 and P.30 or the extra judicial statement Exhibit P.35, there are synoptic accounts on how Appellant No.l, Appellant No.2, Appellant No.3, Appellant No.4 and Appellant No.6 took specific roles in the conspiracy and robbery constituting this matter. Salient roles mentioned therein with the status of appellants in bracket are like expertise in firearms (Appellants Nos.l and 6), expertise in traditional medicines (Appellant No.2), expertise in ridding bicycles (Appellant No. 4) and expertise in xplosives (Appellant No.3). All this show how Appellant No.5 HASSAN SAID SELEMANI who was arrested by civilians was not properly implicated in this matter and his appeal is allowed. He should be released forthwith, unless otherwise lawfully confined there for other reasons. But other appellants namely Appellant No.l MAKUMBI RAMADHANI MAKUMBI, Appellant No.2 NASSORO s/o MPUYA MIHAYO, Appellant No.3 SHUKURU RICHARD @ SEBA, Appellant

No.4 MASHAURI MASAGAJA @ KULWA and Appellant No.6 SAMWEL PETER TUNGU were properly implicated in the conspiracy and robbery on this matter. Their appeals have no merit and are dismissed entirely. Their sentence of thirty years imprisonment is the minimum under Act No. 10 of 1989. But no order for compensation was made. And in this matter, appellants used three sophisticated typical conventional war sub-machine guns, around 100 bullets or more, explosives and other ammunitions. So that they should show cause why their sentences should not be enhanced, corporal punishment awarded and compensation orders made against them. G. K. Rwakibarila

JUDGE 28.03.2009 Date: 30.03.2009 Coram: Hon. G. K. Rwakibarila, J 1 st — ^ nd All six appellants are present in person For Republic: Mr. Kajungu, SA for Republic Court: Judgment pronounced in open court at Mwanza this 30th day of March, 2009 and Appellants Nos 1, 2, 3, 4 and 6 are called upon to show cause why the sentences should not be enhanced, corporal punishment awarded and compensation orders made against them. Their replies are as follows: - Appellant No.l Makumbi Ramadhani Makumbi states: "It was bad luck to participate in this offence. I pray for leniency/' - Appellant No.2 Nassoro s/o Mpuya Mihayo states: "J pray for leniency, thirty years are too many. I pray on court not to increase that sentence." - Appellant No.3 Shukuru Richard @ Seba states: "The sentence o f thirty years is too much. I pray on this court on the name o f Jesus not to increase the 30 years sentence which is already too long." Appellant NoAMashauri Masanja @ Kulwa states: "J have poor health. I pray for leniency. My health has not improved since my arrest and sentence." - Appellant No.6 Samwel Peter Tungu states: '7 pray for leniency. I was not originally involved in the conspiracy. I pray on court not to increase the sentence o f thirty years imprisonment which I am currently serving."

SENTENCE Prayers by five convicts (whose appeals have been dismissed) not to enhance their sentences have been considered thoroughly. In fact I have warned myself too much on the same. But circumstances under which both offences in this matter were committed display one of the most aggravated types of robberies in this country because three sub-machine guns, about 100 bullets or more, explosives and other sophisticated weapons were used. These convicts teamed up into a syndicate of dangerous criminals who are fit to be contained by a maximum sentence stipulated in u/s 286 of The Penal Code, Cap. 16, Vol.l (R.E. 2002). So that Appellant No.l Makumbi Ramadhani Makumbi, Appellant No.2 Nassoro s/o Mpuya, Appellant No.3 Shukuru Richard @ Seba, Appellant No. 4 Mashauri Masagara @ Kulwa and Appellant No.6 Samwel Peter Tungu are sentenced as follows: 1. Each of them is sentenced to LIFE IMPRISONMENT.

2. Each of them should suffer twelve (12) strokes of corporal punishment, i.e six (6) strokes to be inflicted on each of them forthwith and six (6) other strokes to be inflicted on each of them after expiration of six (6) months from today.

3. All of them should compensate NMB Misungwi Branch T.Shs 45,000,000/= for the money which was not recovered. This compensation to be implemented by way of distress on any li property or properties belonging to all convicts or some of them who own property or properties anywhere in Tanzania. G. K. Rwakibarila

JUDGE 30.03.2009 Right to appeal in time to the Court of Appeal of Tanzania has been explained thoroughly to all the five convicts whose appeals were dismissed today. G. K. Rwakibarila

JUDGE

AT MWANZA 30.03.2009