19960605 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.15 OF 1995 (ORIGINAL CRIMINAL CASE NO.1601 OF 1992 OF THE DISTRICT COURT OF !LALA DISTRICT AT KIVUKONI BEFORE RUGAZIA ESQ., RESIDENT MAGISTRATE) 1. SAID SALUM ) .. 2. RICHARD CHITAKO ) ............ ~ .......... APPELLANT. VERSUS THE UNITED REPUBLIC ......................... RESPONDENT KALEGEYA, PRM. (Ext. Jurisd.) REASONS FOR DECISION Said Salum and Richard Chitako featuring, in this appeal as 1st and 2nd appellant respectivelly had appeared before the Ilala District Court at Kivukoni as first and second accused in that order, charged jointly and together, in three counts with Burglary c\s 294 (1st count); stealing c\s 265 (2nd count) and neglect to prevent an offence c\s 383 (3rd count) all of the penal code. At the end of the trial they found themselves convicted on 3rd count and each sentenced to two years imprisonment. Aggrieved they filed this appeal. Unfortunately, at the time of hearing the appeal Said Salum was reported dead in which case his appeal abated, and the appeal procee~ed against the 2nd Appellant only. Immediately after the hearing of the appeal, hollow as the evidence on which the conviction was based manifestlr exhibited and as conceded also by the learned State Attorney, Mr. Kamgisha, who didn't support the conviction, I .allowed t~ appeal and reserved my reasons for doing so(that was on 24\4\96)which I am now detailing. • Facts which are undisputed in this case are as follows: on 22nd A~gust, 1992 (Pwl) one Sospeter Muhongo, a lecturer at the University of Dar es Salaam and who resides within the campus of the University had orqanised a party at his residence which party subsisted into the early hours of 23rd August, 1992. When the party ended at about 4.am he and his wife escorted home some of .ht• tr.ianGM \.Ui£,no a ft1And 1 11 vahtcu.a, dom:t.nc; baak at about . 6.00 am he found his residence broken irito and a sport~ Hercules •. : 2 : bicycle together with 2 6-band Grunding and Phillips Radio Cassettes, all valued at shs.202,000/=, stolen. Now for the disputed part. Upon finding his residence broken into and his property stolen PW1 testified that he started hunting for Said Salum and Richard (2nd Appellant) who he believed were on security guard (as watchmen) and supposed to be nearby - that is in the Hall Manager's Office. According to this witness, Richard was found asleep in the Hall manager's office, and it took him (PW1) 10 minutes to wake him• up while Said was found in another block and both claimed to have heard no noise or related which could warn them of the Commission of the offence. He emphatically stated that though Said Salum was a Hall Manager and Richard a janitor there was a system in existence then at the University where these officers worked as part time watchman as well. Apart from this, he deposed further, that he suspected that thieves were people conversant with the sorroundings and who new that he was not around though his vehicle was in his garage. PW2's (PW1's wife) evidence tallies with that of PW1 although she added "you must have conspired with the thieves". The prosecution closed its case with PW3, a police office who simply acted on reports of PW1 and directions of his superior in arresting and charging Said and Richard. In defence Said Salum admitted being a Hall Manager but disputed being a watchman or there being any at the place though he stated that under him were cleaners. His witness ( DW3} confirmed his post as a Hall-Manager disputing that in that capacity he couldn't be a watchman. Richard stated that though a cleaner the Dean of students had appointed him an acting Janitor at the time and disputed being a security guard. His witness, DW2, supported him. Before going on, I think it is proper at this stage to make an observation 6n the charge. The charge as it appears clearly is defective. The appellant and Saidi were charged with Burglary ( 1st count), stealing ( 2nd count) and Neglect to prevent an offence ( :3rd count). Clearly this is not the way; it should have been framed - there is no way the accuseds could be held to have committed Burglary and theft while at the·sametime be said to have been negligent in their duty thus occasioning the commission of the off enc es in counts 1 and 2. Such a format applies in charges where, in a fitting occasion, if supported by evidence, the accused (s) can be convicted on all counts. There is no way the appellant and Said could be convicted on all the 3 counts. 3 A proper course to take and which should have been adopted by the prosecution was to charge the 3rd count in the alternative. Why? The law is clear, and as properly stated in the case of Kisalu Mtaki VR (1982) TLR 195, the reason behind is, " where a set .of facts may be an offence against two or more sections, the practice of preferring.alternative charges should be resorted to, to avoid contravening s.21 of the penal code, which in no doubtful terms, prohibits the punishing of a person twice for the s,ame offence". Further clarification is found in the case of Cosmas s\o ~Ys!ndaga VR (1955) 22 E. A.C.A 450 cited with approval in John Biseko VR (1978} LRT No.59, where it was held that where it is uncertain which crime the facts of the transaction, will in law constitute, it is permissible to insert in the charge, counts specifying.all the alternative offences, of which it is likely that the facts of transaction may justify conviction, where such offences, can be lawfully joined in the same charge. So that, in principle the preference of the other1charge, in the alternative, is unquestionable. The trial court in the present case seems to have realised this for it proceeded to give a verdict on the third count and kept silent on count 1 and 2 which is the proper course to take in counts charged in the alternative as propounded.in various cases - the principle being that where there are alternative counts and conviction is entered on one count the no finding should be made on the other (i.e. RV John Katua (1981) TLR 257; Jumanne s\o Abdallah VR ( 1967) HCD 396; Abdallah Mohamed VR (1968) HCD 177) including the three cases already referred to]. Notwithstanding the proper direction by the trial court at that stage, we should ask ourselves, what is the effect of that kind of a charge in law? In my view the charge was duplex in that it charged two sets of distinct offences for which the appellant could not have been convicted on them all. In my view this way a serious error as it seems to have prejudiced or embarrased the appellant and Saidi as in their brief defences they seemed to have concentrated on establishing that they were not watchmen, a defence for 3rd count and said nothing on 1st and 2nd counts. In my view_it was a serious error to omit indicating that the 3rd count was in the alternative to the 1st and 2nd counts as it did·not enable them prepare their defences accordin;ly. It was by mere chance that there was' no evidence concerning counts 1 and 2. This in itself therefore makes the conviction unsound, but there is yet more than this. In convicting the appellant and Saidi the.trial court, after satisfying itself that it believed PW1 that they were on duty as watchmen concluded, •·• ., ... I 4 : "Be that as it may, it is clear from the evidence established so far that since the accused .were supposed to guard the area but fell dead asleep instead there was total neglect to perform their. This led to the Burglary which is an offence u\s 383 of the penal code. That having been so found there is no way they can escape liability. This is so because much as the accused were officially employed as Hall Manager and cleaner respectivelly yet, by accepting employment on part-time basis as watchmen they had to perform all the duties of a watchman" -- ( emphasis mine). With respect to the trial court there is no evidence on record to support such finding. This actually is the crux of the· matter. The mere assertion by PW1 and his wife that the appellant and Saidi were watchmen is not enough. Although PW1 stated in cross examination by 1st accused, "You were on duty as a watchman which is a normal thing at the University. After closing hours some Hall Managers work as watchmen", the prosecution should have gone further to prove this by calling at least one of the University officials dealing with personnel to explain how Hall Managers and Janitors can at the sametime work as watchmen which in normal circumstances cannot be. It is not surprising that the accused simply and briefly in their defence disputed being watchmen which defence .remained intact till the end. It is not surprising also that this forms the core of complaint in the memo of appeal: that the court simply believed PW1 when there was no evidence from the employer showing their terms of employment and related. No wonder Mr. Kamugisha, learned State Attorney for Republic\Respondent, noting this obvious hole in the prosecution case did not support the conviction. To whatever extent the trial court could analyse and find PW1 and 2 credible, it could not, in their testimonies,find sufficient evidence to establish that the appellan~ and Saidi were watchmen. I do concede that irideed the appellant may have been at the place at the time but apart from they having disputed this we can't conclude that they were there as watchmen ·on the mere assertions of PW1 and 2 without· relevant evidence from the University administrative officials to establish that. Proof on this being wanting I find it unnecessary to consider whether, if it had been established that they .were indeed watchmen, the offence under s. 383 Pen~l Code wo~ld have been proved. 5 (L. B. Kalegeya) AT DAR ES SALAAM PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION 28TH MAY, 1996 r Delivered on the. f ~. !~J11f in the presence of.~~. ~~JL£ State Attorney, for the Republic/Respondent and presence/ abeMte& of Appellant. · (L. B. Kalegeya) PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED URISDICTION