19840427 TZCA Dar es Salaam2

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IN THE COURT OF APPEAL OF TANZANIA i . ~

AT DAR ES SALAAM ' (CORAM:.' !2.USTAFA, J.A., JVJJ\.KAfvlE, J.A. AND KISANGA, J.A.), ( CRIMINAL APPEAL NO" 3 OF 1982 i I• 1-

BETWEEN

SEIFU MASUDI ,- • • • • • • • APPELLANT· • AND THE REPUBLIC. • RESPONDENT (Appeal from the Judgment/Conviction/Sentence/ Finding/Decision of the High Court of Tanzania at Dar es Salaam ( Sir Biron, J.) dated the 14th ,) day of May, 1981 in Consolidated Criminal Appeal Nos. 91/8~, 92/~o. 4/81, 5/81 and 13/81 JUDGME:,rT OF THE COURT Mil.KAME, J .A.: _The appellant SEIF J.t1ASUDI was one of the sev,=n people· who were jointly tried by a panel of three magistrates at Kisutu for conspiracy to steal a,nd the theft of some cigarettes worth more than Shs. one million. All the seven were found guilty on both ~ounts .. and convicted, and each was sentenced to a substantive, J~il term of eight years. The appellant was one of the five who went on to appeal to the High Court but his appeal was entirely dismissed. His advocate, here and i:n the High Court, was Mr. Lakha .. The trial court wa~ satisfied, and the High Court concurred, '· that the railway wagon containing a load of cigarettes destined for Dodoma was removed from Line 8 and shunted to the Hides Shed siding sometime after 7 p.m. on 1st June, 1979 when_the appellant ,". 't· 1 ~~ ' had ~lready taken over from a fellow Assistant Yard Master, P.W.9 JUJv'iA Wi\ZIRI MANGO. Mr. Lakha contended before us that there was not sufficient evidence necessaril_y leading to such a finding and that, in any event, even if his client had

already.taken over from ,,. --~ P.W.9 when the wagon was shunted away, hP. would not necessarily hav8 seen or known that the wagon was being moved. . ,• . .,' ~ ~ ·1 \' t g~-·: .' • • • • • • 0 • • /.2. ·..r . Fo:r his part Mr,:. t1wnnyika 1 learned Senior State Attorney, contended :hat there was enough clear evidence on record from which to infer necessarily that the appellant not, only knew what was going on., · and was party to_ it, but also' that, by virtue of his . : c;ition, he was inchargf~ of the illegal operation. In our view 1 Sir Philip Biron, who heard the first appeel meticulously reviewed the evidence touching on the appellant and carefully considered his defence. In our opinion~ the learned • judge was •right in reaching the con~lusion that the appellaht's I':. appei:11 had no merit.. In arriving at that decision the learned judge relied partly on the evidence of P .. W. 12°· KAROLI MCHUNGUZJ:, the driver of the only train engine working that evening, who moved the wagon to the Hides Shed where the cigarettes were later removed, ···-..,., ~nd ~~o •aid the appellant had already reported on duty when he, P.·,. 12, was doing the shun-ting; the convinci'ng testimony of the militiaman ' P.W. 7 RAMADHANI S~LUM, according yo which the appellant conducted himself most oddly after the witness had reportP.d to him that the wagon was missing; and the evidence of P .. W.13

MOHAMED SALUM Bu·rTo. Taken together, these pieces of evidence portray the appellant's '· ·unusual behaviour which was completely iliconsist~nt with his pro.testations of i~_nocence. It is not without significance that, throughout his rath?r long performance in thewitness box, the appellant made no reference at all to P.W.T's clearly incriminating evidence. We are unable to say that the two courts below err~d in ' ' ;,, concluding that Mr. Lakha's client was amon0 thos; who conspired to steal, and who actually stole, the wagon-load of cigarettes. This appeal therefore fails and we accordingly dismiss it entirely. We now wish to deal with another point raised by Mr. Lakha, that the trial was in any case a nullity. Mr. Lakha submitted two I reasons in suppott of his contention. First, he said, the judgment was isgned by only two of the three magistrates assigned by the appropriate authority to hear and determine the case. Second because, from Page 82 of the (typed) proceedings, only one.of the three magistrates took evidence .. With ,great respect, while Mr. Lakha is correct in both factual assertions, we are unable to go along with him as to I what the outcome should be. We wish to say first that, for the purpose of disposing of Mr. Lakha's submission, we propose to ••eo•e•e/3. r. W·-'t:onfine ourselves to the situation as far as it concerns his cleient only. We have had to

resort to the original record and; 1aving done so, we discovered that the typed version of the record • t does not tell the whole story. After ~he actual hea:c::.ng had been concluded on 21st May, 1980, the third magistrate, Mro Kassim wrote, on 26th May, 1980: I have given very careful consideration to all the 11 evidence presented in this case. My firm conclusion is that a}l the nccused persons are guilty as charged". (Signed) Thereafter, on 1st July, 1980, the other two magistrates, Mr .. Mandia and Mr. Shayo, delivered and both signed their own long 'judgment .. In our considered opinion, the t"':o magistrates, were ih fact cc::incurring with the earlier dAcision of their brother m~gistrati,e. Thr=: decision was thcir,~fore made by all th,~ three magistrates, arid Was Uhanimdus. '.A. MUSTAFA

JUSTICE OF APPEAL L. M. JV1A.KAME . I

JUSTICE OF APPEAL of the or.i,ginal.