19850215 TZHC Dar es Salaam

IN THE HIGH CCJURT CFTii:N~A AT DAR ES SALAAM. APPELLATE...........,. JURISDICTICN ··. HIGH CCiURT·,cRIMlN:AL APPEAL Nu. 98 OF 1984 ORIGINAL CRIMINAL C,1S"fi1 NO. 1060 tF 1984 CF THE D!S'l'RICT. CCURT C,F !LALA DISTRICT Alf l< 1SUTU . Before J. E.:C~ -MASSf,NC1fE, Esq., Princip.al .--~es±dent Magistrate - ' . . aAMADHANI Mu HAMED ••• __., •..•• --~--• •••••••• ; • • • • • • • • • • APPELLANT ,_.;• · ( Original Accused) . . versus, THE UNI~ED REPUBLIC ........... ~ , ••••••.•••• ~- • • ~· • RESPONDENT 4 ~, (Original Prosecutor) J... ..U ~~ o .~ 1,f~~ N/r w.J. Maina, _J. The appellant, Ramadhani ·Mohamed;.· and two other persons whom I , ' ... "c.,. . :· I lib.ell ref er to r-espeeti ve_,ly as the first and second accused, were jointly c6nvioted of' bei'ng in po'ssessio,,. of' property, suspected to have been stolen or unlawfully obtained co~trary·to section 312 of the ' . Pene'i Code. They were each sentence-d.to_aix !fiOnths imprisonment. This appeal_' is !!tfainst the conviction and sen~ertce. ,- Mr.- Mehoi-a, le~J1ned counsel for the appellant argu~d that the learned triai ~agi;tr8te er~ed in beli~ving the prosecutiori evidence which learned .cou.n.11·e1 :.. ; sl!lld . was co.atr·adiotory, Leariied eoun.sel also submitted thet ~he _trial ciourt was wrong in .rejeoti.ng ·.~he. defe.aoe. Miss Mepalala;·iear.aed State Attorney .said 1he could .not support the . - r. . conviction mainly because, she submitted~ the learned trial magistrate .. . . did nt>t consider the defence at all. She said that i..tas an inour.rable error a.n.d she urged the court to quash, the conviction; She cited the ease ·of· Balili~a Jul~s vs. Republic I Dar es Salal'.lm. High Couz:t Criminal Appe•l No1·177 of 1977 which she s~id tor1owed ~he decision or Weston J, in Loo ~hl'.lrt-Smith 1 v. R. 19.65 E. A. 211. I thin'( ~.I should dispose of'.·the / :, subrnissio~ . made by Miss Mapalala· first because that is. eruoi al f o~ the determirtation of this appeal. What the learn~d St8te Atto~ney said in effect is that because the ·trial court did not consider the defence, that was an incurrable error and the_oonviction must be quashed~ In the case of Lockhart-Smith v. Reeu,b_lio cited above, Weston, J. quashed the oonvietion because ha held that the trial magistrate's reasoning in whioh he said that he believed the proseoutio.ri and rejeoted the defence wee ''incurrably wrong and no· convietio.l'l based on it can be sustained." In the Bal!°lima . oase, however, Samata, J. said specifically that he could not agree"with· everything il\ the Loctchart-Smi th oMe, al though he agreed that the failure by the trial magistrate to consider the defence w~s erroneous! .... ~. /2 2 The learned judge in the B_a.lilima' s case then rroceeded to reevaluate the evidenc_e. a~d, o.ame· to his own conclusion, It is therefore- not cor:r~ot to···say that the court in Balilima' s case followed the' decision in- the Lockhart- Smith case• It is now necessary to consider whether this court si tt~ng as a first a.prellat$ court should evaluate the evidence and come ~o i t19 own oonclusions, or whether it should q_uash the conviction simrly. beba.use the trial court did not consider the defence. !n the case of, :i;linkerrai Ramkri@·ha.n l'and~a v .. R. 1957 EA 336 the Court of Ap£eal for Ea.stern Africa held, after raviewi.n 6 several English cases, that a. first a:rrellate court can reevaluate the evidence and ciome to _its own conclusions·, Similarly in Okeno v- R. 1972 EA 32 the· Court ot Apr-ea.l said a.t.. fa,ge 36 '!The first' -a.p.-ell.-a-te court must reconsider the ~vid.ence, evalu·a:t~\i_t.:it!3elf a.n_d draw its own- conoluslons in deciding whether the judgement of the trial .court should be urheld, · as well of course, ~ deal wi tn· any questions of law raised .ork the a.pFeal. 11 In a more recent case, Jumanne Salum r.a?Ji v. R . High CQ\irt {Dar es Sala.am Registry) Criminal Appea.l No•· 261 of 1977, Kisanga,, J .• (a.s he tho~ was} refused· to follow the decision_ of ~thi~ o~ur-t in the Loak.har-t~mi-tif l'.ia~e and~. after referring t~ -~he oases ~/r~rtdza. a.nd z:uu;-- - .,, . .. '.:. ·,, Olteno ·.cases said a.e follows: "In the rr~ent case; the trial which wa.s b·etore a '· district ma~strate was without a jury,. and the rrinoi-rles to be aprlied a.re those la.id' down t -·' b' 1.lle ': .. Court of AI'Peal in the cas·es which i have just ··: referred to above- That' is to s~' thfs Court must • ·c:onsider the evidence, ev·aluate _it its elf and draw its own conclusion. So that where, as in this case, ·:"'1t is alleged that the trial magistrate :failed to ·6onsider the aFrellant's defence, this alone cannot oonsti tute a. valid ground for allowing the arreal and quashing the sentence as the learned State 'Atto:i'riey contends- If' the court did tba.-t it -w:ould <be failing its duty. 11 .•••• •./3 3 With respect, I agree with everything in that ra.ssa.Je• This court sitting as a first arrellate court has the duty to re6onsider and eva;luate the evidence adduced at the trial a,nd in doirig so it wil°~ have to consider also the defence and any other matter which· the ·-trial magistrate may have failed to take into consideration in his j,.ciger.ont .• . ., I shall now turn to the evidenc.e adduced before the trial cou.111• There was only one prosecution witness, Corporal Goodluck• ,"He ,said that he was on patrol duties with other rolice Offic·ers .in the Ci,ty of Da.r es Salaam. They had a La.nd Rover. At 4 a.•m• t·hey saw _the a~pellant and three other rersons rushing a cart. which oonta.in·ed., iron· J,a.rs. They susreoted them, arrested al_l of them and when they tai'lii<i to explain where they got the iron bars_, the I'ol;_ioe arrested them and e:ent them to the Police Station. In his evidence the a:rpella~t- claimed '.tbt he was walking along the street on his way from a dance whel'.l ~e .met· the Police who demanded to see his identity card. The appeliant said that he did not have his identity card and he was arrested and FU,t i_n the· Polioe Land Rover- On the way they met other r-olice Officers and then saw three rersons who had been arrested allegedly in roasesston ot. a· cart• Those people were made to rush the cart and the owner lett while the others were sent to the rolice Station• It was argued by the learned counsel for the arrellant that r.w.1. Goodluck gave contradictory evidence :.:.n that in examination • in • chief the witness is alleged to have said that all three aooused rersons were rushing the cart but during cross-examination he said that the arrellant was in the vehicle while the others rushed the cart. I hay~ examined the evidence on record. r.w.1 Goodluck said that four rersone were. pu.shinfl the oart. The appellant was one of them• During cross-exuinat1on, the witness elaborated and said that while pushing the cart, the fi~st accussd was in front• The second and third accused and the one who later esoa.t.:ed were rushing from the ba.ok and the sides• It was only after they we-re arrested that the arrellant was ordered to get into the rolice vehi•cle. together with the other one who later eecared• . Then the first and second accused were made to rush the oart- The witness saids ttA,11 the four were arrested at the same time- Two were placed in the vehicle and 11 two were made to walk• .. , .J4 4 It is not correct to ea.y tha.t the appellant was in the .Land liovel" before the others were arrested• They . were .all arrested together• The appellant's allegation that he .was alon~ ,.-when ,be .was 1U"re11.ted. cannot _be t:ru.e• It could not be ·true-that -the l'o.li,oe Of'fi'G:e..r oent the arr-ell.ant to a. scene. where other r.eorJe ,.}lad been. arreeted .. The roai ti on arrea.~ ol ea.r e._nd evi, dence este.b):i shed ·l)c,1,oa;d r..oas~nabl~ • •. •• I • • • J • • dou.bt that the a.rrella~t and. his 90-:-a.coused .were arrested togetber :The - \ e.f~llant -wa.~ pror~rly oqpv,fc.r;·ed ~~d .::the seni;_e~ce is not e~ceesive-- .., ~ ~;~ . ~7': ·: . . In. i~~ Ies~l t,{ t'Jie ;~f~'.~al .•• ~ ,r_ 'r.f- .~· I ·.i 'j '• ;DAR :·'!fS s~_MM 1;. ~~ 1985 '-. b,_ :ijohora for the arrellant Mi,.ss i«arale.la.,., S.tate AttornQy., for t~e Republic• ) {°1 .,:, ,; ~·· ":...'._.