ramadhani omari paranjovu others vs republic 1987 tzca 46 12 june 1987

IN THE COURT OF APPEAL OF TANZANIA AT DaR ES SALAAIi CQRAM; MAKAME, J.A., KESANGA, J.A. And OMAR, J.A. CRIMINAL APPEAL NO. 83 OF 1986 RAMAH3ANI OMARI PARANJOVU. . . . ,APPELLANTS At© 2 OTHERS VERSUS ■ TEE REPUBLIC.................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Iringa) (Mwailca.su, J.) dated the 1st d.ay of November, 1986 in Economic Crimea Case No. 8 of 1986 JUDGMENT OF THE COURT OMAR. J.A.: The three appellants Appellant 1, Appellant 2 and Appellant 3 were charged with and convicted of unlawful possession of Government trophy contrary to Para 16 (b) of the First Schedule and Section 59 (2) of the Economic and Organised Crime Control Act, 1984 xead together with Section 67 (1) of the V.'ildlife Conservation Act, 1974. P,W,1 Shaban Meduga an employee of First Appellant in his farm at Mbigili Village stated that one day between 19th and 23rd June, 1985 as he arrived, at the farm in a, motor vehicle accompanied by First and, second appellants he found two people o£ Somali origin digging a pit in the Tobacco Kiln. First appellant told him that the pit would be used to store elephant tusks whioh would be brought later, P,V,1 helped to dig the pit assisted by first and second appellants and other poople, Tb® t h “ d day a t “ IS M a b o u t 3 a a th e 1 „ the f ara a a o t o r vehioie • • 0 tusks were sent **» M d b u r ie d • - »*> *** “ the B t whioh was ^ Bari^ ...../2. Second and third appellants were seen by P.W»1 in the vehicle together with a number of other people who took part in unloading the tusks. Mohaiaed Maduga another employee of the first appellant appeared from his hut and saw the vehicle unloading the tusks. P.U.3 to the Poli.ce Station and brought two policemen Sgt. Mwarabu and Sgt, Togwa who witnessed those activities of the night - but from a distance. PjW,1, P %W J and P»W*5 Sgt* Togwa oil agreed in their evidence that it was a very dark night only P,\7.1 claimed to have recognised three people two of whom that is second appellant and the 4th accused (who was acquitted) turned out not to be there -at all on P.V/.l's own admission later. The third appellant whou P.l/«1 -claimed to have recognised will need detailed examination a,s to how he P.l/.l was able to see him in such darkness with only one torch used to assist in the unloading and burying of tusks, Tha^ night the police did not make any arrests, they waited till morning when they returned to the farm and arrested P.'/.I who was there and took away 684 tusks which were buried there. The question for consideration is whether the testimony of P.W.l the only identifying witness and an alleged accomplice is worthy of credit a.s to base conviction of the three appellants on it alone. Mr, lakiia., learned Counsel for the three appellants urged that the eou£t should not accept his evidence as truthful. He said that the test applied by the court in accepting the evidence of P.w.l was a wrong test. It was wrong for the court, Mr. Lakha pleaded., to rely on the demeanour of P.W.l to forgive his shortcomings and to hold that hie role in the crime as an accomplice was minimal. The learned, trial judge convicted the three appellants by relying on the sole evidence of P.V/,1 as to the dentity of appellants. - 3 - As to his role as an accomplice we have to see how P.W.l came to be in this situation. He was merely an employee on the farm whose duties as he stated, were to weed the plants like sunflower, maize and beans and to clear the bush and also to act as Watchman of the farm.He had. already worked for two y^ars before this matter of the tusks occurred^. In law on accomplice is a person who concurs in the criminal designs of his collabo-ratoFs. and joins in some way or other in the execution of those designs or is privy to it or aids in some form or other, We hold that the quast-ion whether a person was merely a trap witness,an employee of accused or spy or decoy or really an accomplice will have to be decided on the facts of each case. In this case P,W,1 was ordered by his employer the first appellant to do some digging of the soil and later by the agents of his employer to bury the tusks and guard them* This he did in the course of his employment and when he wa.s called upon to give evidence against his employer he readily complied. To make P.w.l responsible for all the peccadillos of his employer would, be to construe his job on the farm more widely than what it actually is. We agreewith the trial judge that P,W,l's involvement in this crime if at all was minimal and unintentional. Others who pa.rticipa.ted and who knew the weight of the undertaking threw money at him twice- and made promises for more in future, if he behaved, P.W*1 claimed that one person threatened to kill him if he did not behave^ One does not thra,w money at his partner in a,- lucrative business of this kind. One gives it to him with d.ue solemnity. Surely P|Wtl could not have been one of them. So though prudence requires that the court should, look for corroboration of the testimony of an accomplice because of the legal presumption that an aeeomplioe^-s evidence is unwrothy of credit unless corroborated in material particulars, we think that in this particular case his evidence could safely ba accepted where it can be believed. ...... / 4 . - 4 - About the identity of the three appellants we have no doubt that first and second appellants who travelled with P.’/.l from the pombe shop to the farm in broad day light and who gave orders to him about what to do with the consignment of tusks which would be sent to the farm later, were properly identified and there could be no mistake about their identity and their involvement. Their •orcy^Gtion for this offence was proper and we see no reason to interfere. regard to the third, appellant P.Y/.l made too many contradictory statements about the identity of people thct night who went to the farm with the tusks. All other witnesses who were there like P.W.3 'a'nd P.W.5 and who strained, their eyes to see what was going on fould not recognise one single person among the many people that arrived with the vehicle. When P.Y/.l was being cross-examined in court it transpired that the statements made by him to the police about the presence of certain people at night were at variance with his testimony. For instance he said in his testimony thatx.second accused (now Appellant 1) was there with the gang at night. When he was reminded that he did. not say that in his Police Statement made soon after the offence, he agreed that he was mistaken because of the lapse of time. About the short, fat and bald headed man he said he recognised him betause of his appearance and. that he was the driver of the vehicle, La.t§r in his cross-examination he said the driver he had identified had absconded but he managed to identify the third appellant who was also short, fat and bald headed. But this one was sporting a beaj?d, and to add to his certainty he said it was he who thre\tf money, Shs. 1,600/= at him as the vehicle was leaving the farm. In the same breath he ■ retracted this statement and said the thfiower of money could have been someone else sitting beside him. He further stated that the third appellant brought out a. pistol and threatened to shoot him if he ever divulged what transpired that night. We do not know what caused, this out burst from third appellant, /r *••••/ J m - 5 - We think that all these were merely to bolster his identification of the third appellant that night. As if to say that a good, doal had passed between them that he could not have been mistaken about third appellants identity. We are of the firm view as is Mr. Lakha, that the identification of the third app<?llEnt was unfair and unreliable. We give the third appellant the benefit of the doubt and find that he is not guilty as charged, we allow his appeal end. acquit him of this offence. He is to be released forthwith unless otherwise lawfully held. As for the first and second appellants we hold that their conviction is sound and. their appeal is hereby dismissed. As for the 12 Years imprisonment for both appellants v/e do not think it is a. day too long considering that 342 elephants had been killed to obtain this quantity of tusks and to satisfy the avarice of the appellants and. the likes of them. The sentence is hereby confirmed, DATED at BAR ES SALAAM this 12th day of June, 1987. L. il. i'iAKAlTE JUSTICE OF APPEAL R . H. KISAICA JUS TIC „■ OP APPEAL A. II. A. OflAR JUSTICE OF APPEAL I certify that this is a true copy of the original. / A . (J„ H. ilSOFFE) DSPUTY REGISTRAR,