mw203099 salehe abdallah vs republic 1981 tzca 14 19 october 1981

IN THE COURT OF APPEAL OP TANZANIA

AT PAR ES SALAAM (CORAM: Mwakasendo, J.A., Makame, J»A. and Kisanga, J.A.) CRIMINAL APPEAL NO. 11 OP 1981 BETWEEN « MW 203099 SALEHE AEDALLAH. . .................. APPELLANT i. AND THE REPUBLIC................................ RESPONDENT * (Appeal from the Judgement of the High Court of Tanzania at Dar es Salaam) (Biron, J.) dated the 30th day of January, 1981- in Criminal Appeal No. 90 of 1980

JUDGEMENT OP THE COURT MAKAME, J.A.: In the District Court of U al a at Kisutu the appellant SALEHE AEDALLAH, who used to be a militiaman, was sentenced to a substantive jail term of three years consequent upon his conviction forstealing goods intransit and for corruption. On the count of stealing he had been charged with two other persons who were acquitted. Sir Philip Biron, who heard the first appeal, euphemistically refrained from commenting on the acquittals: we too think the appellant’s co-accused were lucky to escape conviction. To the first appellate court the appellant petitioned against entire decision of the trial court but during the hearing of the jkpeal* he revised his stance and confined himself to the second county^the ono alleging corruption. Mr. Raithatha, learned counselj appears for the appellant in the High Court as he did again before us. A l o r r y wlikih wm» U lP M n l'ly o n rry in « nnvprnl m f f f a o f c lo tlr ! ni mu |.va-Lt»l, wad on wlUuU Miu Lun L tn«l u lliara w ere, waa utopped by the Police at a gate in the harbours area. Corporal Prank, P.W.1, one of the policemen at the gate and when he accosted the appellant and his companions the appellant gave him shs. 2,000/- to grease his palms. There was evidence by another policeman, P.W.6 P. C. Martin, in support of P.W.I’s story. P.W.6 was present at the scene and he was actually the one who had

closed the gate to prevent the lorry from driving past. It is quite true, as Mr. Raithatha urged, that a militiaman, P.W.7 MWIBAGE, who was also at the gate made no mention of any money being given to P.W.1 by the appellant. We do not think, on the evidence, that that fact detracts from the credibility of the Prosecution story. Biron, J, dealt with that issue specifically and remarked that there was no evidence as to hov/ close to the vehicle Mwibage was. We agree, and wish to add that there is in fact an indication in Mwibage’s evidence that he was not very close to the vehicle: He says P.W.1 went to examine the vehicle, which must imply that the vehicle was not right where Mwibage was„ It is not necessarily surprising either that in his evidence P.W.4 D/S^t. Major Victor did not mention being told about the bribe when he got to the scene. It is correct that, ordinarily, offences committed in the same transaction would attract concurrent sentences. However, that is not to say that in every such case the sentences imposed may not; be ordered to run consecutively. There may be circumstances which make a court feel compelled to impose consecutive sentences. Biron, J. ordered the two sentences of three years each, imposed by the trial court and ordered to run concurrently, to be consecutive. Y/e do not understand Biron, J. to mean, as Mir. Raithatha attempted to persuade us to

hold, that he made the order simply because the two offences, that of stealing and the other of corruption, were not cognate. That the offences were not cognate ..as merely one of the factors Biron, J. took into account, as he was entitled to. He also took into account the fact that as a militiaman on dutv, the appellant breached his official trust, the seriousness of the offencc cf corruption per se, and the prevalence of the crime. The principle propounded in the case of LUHOGWA (2 T.L.R.(R) 47) to which Mr. Raithatha helpfully referred us, is a useful guide. We do not however think: that Biron, J. overlooked it, nor are we of the view thet the learned judge should have necessarily referred to it in so many words We are of the considered view that the first appellate court took into account relevant factors and that it properly srarcised its powers in ordering the sentences to run consecutively. Further, we find some merit in the argument by Mr. lyimo, learned counsel for the respondent Republic that although the two offences in this case can be said to have been committed in the same transaction, the distinguishing feature is that they are in fact intrinsically two different offences. We find no merit in this appeal and accordingly we dismiss it. D;.J?SD at DAR ES SALAAM this 19th day of October, 1981 (y . m . m . m w a k a s e n d o )

JUSTICE OP APPEAL (L . m . m akam e)

JUSTICE OP APPEAL (R . H. KISANGA)

JUSTICE OP APPEAL APPEAL. I certify that this is a true copy of