NA TZHC Dar es Salaam4

ap.;::i-QO\· ""'i *"N.)A!fiif.41l/HA4111i!iii!1,1Fi>R'"'.'¥ '"'."' ...,.,•• _ , _ '*. . · -.... "'.';JJr' ¥iiij f>' ·: . . . -~~ }Vfc ·-·. IN THE HIGH- COURT OF T/i.NZ/u"IIA AT D1 SALMM CRIMINAL APPEl\L NO: 67 OF 199, _. : ' ; ~ .' .. ORIGD~AL CRIMINAL C/\BE NO: 1333/.994 OF THE DISTRICT COURT OF ILJ\LA DISTRIC'l':.~ .~§;UTU BEFORE: KABUTA E,'3q RI!}SIDENT MAGISTRATE S1\.ID MOHAMED AIMAS AND 2 OTH:TnP.S • .,,.... • - ~ •• irJ>PEtLANT REPUBLIC...•re•-- a1 w• ■ U UL • versus: 4= WWW - 4i · ni.-cRESPONDENT JU:OOM.1!:NT ................__.... ~,,. :tn this appenl, three appellcinto, n,3mely ,~AIDI MOHAMED AllU\.St RAJli.BU /$DALI.AH DENDEGO, and CH/'llli.,:~S :t--L\SINGJ\ nppcaring in that order as the first, second and third a.ppellants but were at the trial the fiz;st fifth and seventh accused persons respectively were together ' with fo\ll' other accused persons v,ho ended up being acquitted, jointly and together charged, bGfore the Ilala District Court_ that sat at l~isutu, with offences in three counts hcing t!,or~e of conspiracy to commit a felony contrary to section 384 of the Penal Cod~ (first count) breaking into a building and commiti,ng a feloD1 c/s 298(1) and 265 of that Code (second count) and for the· seventh accused alone with neglect to prevent n felony./ c/s 383 of the same code (third courit). The first and the third appellan~s were each upon conviction tor the

said offence~, sentenced for ·the first c1nd, the second counts with ? and 8 years imprisonbtent respectively, As for the second afpellant.upon the trial lenrncd Resident Magistrate substi.tuting the offences charged with that of the fifth accused being on accessory after the fact to the offenees in question and convicting him for tha.t, She imposed on him a sentence of 5 ycnrs imp~isonment. The sentences of the first and third appellants were ordered to run concurrently• Before me, the said appellants were represented by Capt. John Sanze• learned advocate of the Maire:, and Co. Advoca.tes · while the respondent Republic was ~-· epresented by Mr C~dowu 1 learned State /,ttorney. Capt Joh_ll San?,c made submissions on all the five grounds of appeal in the filed amended memorruidum of appeal before Mr Chidowu in reply expressed his having found the· wholQ case rather compll.ca't-€d and he left the -eott'-'"t .an unanswered question pooed being that of whether' or not to -.support the conviotion or not. /1.t the end of this judgment ha ld.J.l ~~ve been favoured with that a.nswcr. . '•f· ' . ,, I ".'; ,, To re-evaluate the evidence thD.t \'las before I the trinl Cou:~t, the following is clear. The Yomen El'l)ba1::isy h~s its offi-:.es along the United Nations 11oad in DSH. Those offices are guarc'ed by watchmen who work in shifts. There \<1as however not kept a.ny register in which

there would be re:co1•c1.ed the shifts for I the watchmen on duty, It turned out that for the purposes of this appeal, the PWl "'ho had been on duty during daytime pr0 ~eGding the fateful hour, by the due time for handing over the nighc shift that is i at 6.00 pm there 'was no relieving Hatch.man, Tc.is relieving watchman I was no other than the PW2 who was reported sick. "1j ' The seventh accused • took over the night shift from.the PWl at 8,00 pm after_ they had agreed that in case the PW2 would not turn up en the next morning due to his ·11 \ continued illness, the PWl had to relieve the1' seventh accused. Th.e PW3 who is the Embassy• s /tdministrc?..tive Officer, supported the evidence 1 about the seventh accused being on duty at that hi5ht when he said 'I that after he had parked his motor vehicle at'9.3O pm he enquired from I ', the seventh accused about the sudden change i~ shift and tha.t 1:I I . is 1_,;h~m be learnt that the PW2 had been reported sick. Ii , There is a. Gap in the evidence from the time the PW3 left the seventh accm~ed on night Ghift nt th:c1t sce,1e. ·i.l 11hen on the next day the PW2 reported for duty at 8.00 am and the PWl also did so at I' 30 minutes later, no watchman was seen on cluty.; Or rather the seventh 1,1 ,1 accused was not anywhere to be seen. These \.-1 itnesses explained 'I 'low they found the place broken into snd tha.t some

p:roperty'must have gone missing. The P\:12 sc1id that he made a. report ,to th8 Sa1ender I I Bridge Police Station. ,, 1 11 1, 1 'l'he PW4 who is a police CID Officer and a bne who carried out investigation:3 in this case te::1tified as to how 1 while accom:i1anied by the 0/C CID and the OCS they visited the scene in the ~resence of the PWl PW2 and Ptv3. They noticed at the scene thd hooks for r;rill.,.door I had been opened, \-JOoden doors to both the l'C~~p_tiort and the office of the PW3 had been broken into. On the floor they picked a. pa.ir of scissors, one big spanner and one screw driver 1;1hich were suspected to ',1 have faoili ta.ted the breaking. The PW4 tendered these i terns and the same :re marked Exhibit P2. The PW3 who easily identifiJd. 1·1hat had gone missing, - . - said• th-·t upon noticing that several papers had been scattered on the floor, found the snfe in which I used to be kept us. dollars 11,Lr00, 'I'Shs 800,000/:-:, 150 new passports, 2110 Yemen revenue stam7,s, two sul)...ma,chine guns of USSR mal<e, 270 rounds of ammunitions, -::,.,o pistols of USSR mc1ke 2 rounds of rnnmunition for pistol, two magazines, four permit books, three regiGters for the F~e1-t:- 1a one for embassy income, one for recording passports, another for recordine revenue stamps and a certificate of right of occupancy for that 3mbassy as well as many more Embassy documents and a.

register which kept record of all Embassy property, ,e1as missing. ,\ l:!e now embark on two stages of investigations that led to I recovery of some of the stolen property and efforts thot led to the ax-rest of accused persons c:s suspects who had been named in connection with the commission f the offences charg~d. First, the trial court heard from PW6 wl:o happens to be a COM partjl secretary for Nzasa, Chalambe in l>fuagala nrea that on the 26/10/1994 at about 5,00 pm he heard noise from c1 motor vehicle he later recognized to be e. prick-up in \·1hich there were carried several people and luggage. T}?..e PW6 went 011 to say that he not only informed his nci~hbours but also to a nearby police post that at Kirungw ·area there had gath red several people whom he suspected. He went on to say that the policemen at Charambe Police Post Communicated with the PolicGat,Mbagala. Indeed a rniliU.a member at Mbag;.,.la, Charambe po~ice post who testified as the PW? one BAIDI ICONJ:x) said that upon receiving th;;i.t report from the PW6 about suspected Criminal, somehow a further report was made to reach the police at the Kilwa Road Police Station. It is then that the PW5 ASP Masenga who is the 0/C CID of that sta.tion accompanied by one ASP Kicongo visited the scene of incident together with the PW6 and the PW?. On the way there were seen a motor vehicle carrying the suspects which

0rove in the opposite direction. At the scene they recovered some of the stolen property which included a broken safe 7 two BMG gun which 11a.s buried underground Nos. 7944-4474 and ?9444538, one mQ~8Zine, 51. rounds of ammunition for SMG, two bags used tor koepin.'}; piGtols; 29 p.-,ssports and different office documP.nts. ·'·• . ,,. ,.. . ~- ~ ;. .~:• '· These were taken by the PW5 to the Police .St.6tion c::t Kilwn. Road, Police .1tation. '.l'he PW4 on the other hand teotified that on the nex day on the 27/10/1994 ,-1hile accor:1"i:Kll;ied by ln:..,pector Patrick visited they searched the scene where the 2.bovA"":'nr.1med property had , - ·,I 'I been recovered c1nd they found 54 rounds of ampiunition buried in the soil four rour:.ds of ammunition covered with paper 'and one biG lr...nif e and one bag for keepi".1.,'~ a ground for water. The::-,c properties \;rhich were recovered ' ' on the 2<:/10/1994 and on the 27/10/199~- are mn.rkcd '.~xhibit P3 and P4 oolleetivel:r. !: I .I Scconc.:;.y efforts that i-,ere ww:;ed in the course of inveGti,;ations that I led to the errest of the acr.used persons ore to the following effect. · lj I The PW4 acco;npanicd by the PW2 on the 26/10/1996 ,, went to the home of the seventh 1.ccused where they lcc1.rnt from thci wife of the accused that ·) i, he had not returned from duty. It does not come 11ouL -..;~ucU,··lj,· how the seventh

accused finalJ_y got to be arrested. The' P1:/4 continued that on the 29/l.0/1994 P('ting on informA.tion received froril Buguruni police· station :1 ' that one Kibongo who. lives a.t Kigogo ,·.'as one o'f ·:1 th0 I suspects in connection with the of:.'(mcr,s charged in this case, arreofod thc first accus.ed 1 on the c:1/11,/1994~ It is then thDt it was le ~nt .that ,, the sixth accused driving another vehicle registr . ~tion number TZB 8304 Nissan Saioon ·, Exhibit l? h2.d carried four suspects amonGst whom, 1-12..s identified one Nzela. The PW4 admits that the other suspects have not y~t been arrested but that 1 the sixth accused got arrested alone; Livingsto~e 'oado It is this vehicle - J' - Exhibit P7 wtich was driven to Manzesc \-,hero they approached the fifth accused I, and struck o.r. agreement to hire the motor vehicle,r-Jsisti:-rition number , 11 MB 4o31 Isuzu pick up to carry a safe to Mbc~:-.la 6.t a hire charse of Sha 10,_000/::.·-. The fifth accused on being arrctited confirmed that indeed " I he had been hired by four people ,-,ho had been driv:en in J~xhibit P7 driven by the sixtr. ac_cused. The seventh accused ,'.'.1 lao, o~ beinr, arrested confirmed that he was together with the other suspcc sin Exhibit P7 driven 1 by the sixth accused when they went to hire cx~ibi ,t P5. The two vehicles drove back to the Yeman Embassy where they pi~i-;:0C:. ,the safe which

was carried in tr.(: Exhibit P,5 ~md later off•-loodcd at Mbagala Charambe. - 5 The P\14 continued to say that when he learnt from the first accused that upon being approached by the sixth accused driving Exh P2 and four suspects including Nza.la and being asked for the supply of gas he took them to the second accused who supplied the gas. The next move i was to hire a motor vehicle registra~ion number TZD 6037 - Exh P5 driven by the third accused and the fourth accused acted as a turn-boy. The gas-cylinder_s were off-loaded at Mbagaro. .. Charrunbe where welding works on the safe were carried out. The PW4 continued to testify that the seventh accused was awarded shs. 40,000/- upon the lost from the safe being divided amou.ngst these around. In his writte.n statement the seventh accused never said anything about thi_s piece of evidence. It does not come out clearly as to what 'the others shared out of the cost. The seventh accused finally got arrested at Dodoma and he had to be brought to Dar cs Salaam. ,\faen the PW4 put the I! seventh accused to interrogation, he ;:admitted participation in the eommi_ssion of the offence and added 'that for purposes of •onspiracy they ha:d met and agreed upon ;the commission of the offences on two days 21.10.1994 and the 22~10.1994~ The seventh ., accused has not denied this evidence in his defence statement, The PW4 tendered before the trial

court the broken into safe which is ~ked Exh PB. Gas cylinder,s are marked Exh.P.9. When the accused persons were called upon to give their qefence they •in turn denied commission ,, of the offences. The· fust appellant admits being appr~ached ,. by the sixth accused and Nzala together with other people ,who required gas for a motor vehicle which had a defective excel.' The first appellant ' ' also said that even after he had witnessed the breaking of the safe as well as sharing the loot, he left the scene after he had been warned that he should not report the matter to anybody• After the appellant had explained the matter to his wife he late~ rep:irted the matter to the police at Buguruni but only to be put under arrest shortly. The second appellant or rather the fifth accused person who was convicted of being an accessory after the fact to the effonee charged in counts one and two_, admitted the facts that .he got hired by the sixth accused persons and other people not in court at a charge of sha. 10 1000/=· and.that he indeed took ••••/6- 6 - the s8'e to Mbago.ra, Charrunbc, witnessed the breaking of the safe_, saw the seventh accused open the gate of the Embassy ete, The third appellant who was th.c seventh accused or remarked earlier produced a. written submission and as any written defen•e ot an accused person who is a remand prironer, there is g;t"ea:11 diffioulty to

comprehend whether the accused is denying the often.oes Jharged. The learned trial resident ma,gistrcite arrived at the degisione I ,hat I have referred to and the appeal at hand is in respeot ot the said deoision. In response to the grounds of appeal, ., I will stal't with the tvst ground of appeal by agreeing with, ,, t:1e defehce that :indeed tl\e trial ~urt erred vthen it convicted.the first and the seve11th astu5ed pe~sons with the offences of conspiracy to commit a feloey and breaking into an office. building and stealing os it did• aee the eaee of Ignatio 1\thumani and Anober· v Rep. (1970) HCD 180, The said aeqused persons ought to have been convicted of onl,y the affenoe in the seoond court since there had not been adduced any I . evidenee from the prosecution to prove the offence in the f:L,at •• 11 ' ~u:rti That the seventh.accused ha~ confessed that there had been ~nspi.t'aoy meetings required corroborat,ion which was missing, I seiondly, the reasons that led :to .:the acquittal of tthe ~econd accused ought to lutve applied as well in acquitting the first accused~ The first accused W9'5 neither seen at the stene "f crime or at the place where the stolen property was found ,1 ' before he was taken there by the vehicle that carried the gas,. eylinders with the second accused. 'The first accused desei-ved rui aoqu:i,ttal. As for the fifth acouscd being made on

accessory after the fact, I run fa:r from persuasion that.there was enough eviden•e to support that finding, The fifth accused did neither reeeive 1'lo, aesist another person or others with knowledge that the latte> we:re o-r was guilty of an offence in'Cll'der to enable him or them escape punishment. At best the fifth ~ccused was a driver of motor vehicle and he responded to his motor vehicle being ~ d to transport the stolen safe from the Yemen Embassy to Mbaga!;a Cholambe,_ Had the learned trial resident magistrate caretu!ly read and understoo~ the definition ?f the terminology "ao,eseo.r:, after the factti as defined in section 387 of the Penal Code, she would not ha.ve convic-~0<.: the fifth accused a.s she did• .. I - 7 ... We now turn to tho seventh accused person. The seveath a.eeused person was indeed an employee of the Embassy as a wat.hman. He had entered into an employment agreement in September 1994 and hn.d not only., ree~ived the salary f~ that month but had also asked for and been pa.id an advaMe sa1ai-y tor O•tobcr 1994 in s-u.11 of shs. 2,500/-. I run in l'\gl"eement-with the trW ~ourt that indeed the .sevenib, ~p.tsed was 011 employee ot the Yemen Embnssy~ The seventh ~~ed " •ook ovel' a shift £:rom the PW2 on the day in question b\lt11 ,, ~ ~ot to be seen at his plnce of work on the next day. !ke !: sevon;h ateused had been seen later in Dodoma betore

he.got; arrested i.n-•onneotion with the offe~ce: charged. The '4~ ot the seventh ae~used is not oompatible with innooen.e ot a person who had met committed the offence charged. His defe~;e statement in written form does not raise any- re~ble doubt to the p?"oseoution 1 s oo.se. The seventh accused WM 1)1'ope,9.y ,,thf second court. ,I ,onv~.ted af -hhe offences charged in • I Ms for the sentenoe which o.ppe~s to hn.ve oont~aTened the pro~ions of seotion 170 (1) (o) of_Jh~ CPA, 1985 for the I , l~ed Ree:Lden_t Magistrate h~s not yet ~been appointed io ·e. poet of Senior Resident M~gistrate, the srune is hereby 10n~ed·by this court Mis required.by provisions of ee..on • ("I) of the CPJ\ 1 1985. · May be before I may eonclude, let me point out tov~hings that did not esoe,pe my observation whil~ dealing with t~s appe4t F'ir'<St. besides what turned out to be'rathcr clumsy invest\g-s.Uc,ns " or rather ·1na,tion on the part of the police on whom good •itizens mad~ report, even our learned resident magistrate appeors to have '! been _ever• burdened by a serious oase whioh was more a:- less I ·"9-e4mmensura'be wi, th her ~hol't experience at the bench. For this .the •~t?"ative machinery charged ~th duty to ass:i.gn '•a.es• it is humbly remarked that to such freshly appointed magistrates I ' _.,.ses of the nature like the one at had should be left to those· ~th T tonger experience and

servi~e. 1 Secondly, sub•r~te :f'lll'ta have oftcnly been reminded to strictly abide b y ~ • of ~~ion -~ t,2 of the CPA, 1985 as well as GN. 192 PJ0J.ishad -~~ on the 11 ,_,1988 for purposes of conducting a preJiminary hQ~ing ~.-med at determining matter h_eld in dispute and these that ,ee no;1 Had the iea?'?led resident magistrate abided by tho sll!~ manda~OJJl P»ffl.SioM it is hoped that may be the proaeettt:i.on ~ not have •f1led all thedi prose<rut!on ~tnesses. •.,, .../8- . •· - 8 Thirdly as for the sixth accused who was not defended by an 1dvocate but raised a defence of alibi which turned out to r,e his springboard to his winning his liberty, it thereby fell upon the trial court to have had, in the ;interest of justice, i:1formed the accused persons under sec~ion 194 of the CPA,1985 II that in case they expected to raise n defence of alibi they ou :_;.1t to have so informed the court before the prosecution choned its case. Fourthly, I entertained lingering. expectations that the ii prosecution ought to have. ventured in this appeal to have I . cross-appealed against acquittals of the second and the sixth accu3ed persons. There was evidence ~.:1.i~s-~ the second accused ,II I thut he was the 11 expert 11 who worked on the breaking of the safe • ·:[ I whil~ they were at Mbngala Ch:.:u-anibe. _The: second accused despite ij ' doin:; so on hire or reward ought to hqve

apprehended in his mind ' ' that that which h~ wa.s advancing crimiinn.1• activities. He ought to have suspected the safe to hav0 uo0:n stolen property and that by breaking it in a bush he was assisting c:dT.i:nals to escape punishment• And as for the sixth accused he wns all along together with the accused persons from the time the Emb.issy was broken into, the two ,· vehicles were hired for transporting the !safe and the gas cylinders, I anc'. als·o when the safe was broken int6. i JI ,: With the foregoing observations made but without any prejudice to the result in the outcome of the appeils convictions of the first and second appellants are quashed ilhe'.sentences ,I they have been • ser,ing are hereby set D..Side. The first 'and second appellants should be released from custody un1esJ otherwise lawfully held. The conviction and sentence of the third:appellant are respective~ ' set aside in respect of the first count.,. However the conviction j! of the third appellant in respect of the,: second count is left I uncisturbed while the sentence of 8 yJars imprisonment which requires I cor. firmation is hereby confirm-:.-·.: .... ~de.,.. so-::tion ·'· • I- I 170 ( 1) of the CPA, I Finally, the learned Resident J.1frigistrate 1 s order that the motor vehicle registration number MB 4031 Isuzu white in colour- Exh P5 to be kept in safe custody cannot, Jn law be supported. The sam0

is quashed. Instead it is ordered that Exh P5 should be returned to its owner fo~thwith-• ,.. I i: •I ,i I 9 1 :1 Appeals of the first and second app,llants allowed whil.e that of the third appellant is dismissedl Ii M.G.C.KAJERI I' PRir~CIPAL m::siDENT MAGISTRATE . :l 1 i (E~EN;i•D rISDICTION) For Appellant: Capt. John Sonze leorned 1dvbca.te is pr(';sent. 1 1 Ii For Respondent: Mr. Chidowu learned State Attorney is presel\~• 0 It I· '! .: i I I CERTIFY THAT rr IS A TRUE COPY OF THE'ORIGINAL. 1: 11 ,!! i 1 11 i I ;I I, Ii 11 --!_\.\\\ , ~ I\ :'., . •• \ •,_· "-•

DISTRICT DEPUTY RIDISTRAR Ii ! DAR F,S. SAL/I.AM• .....,...---r---.,.-~