19760625 TZHC Arusha

T; IN THE HIGH COURT OF TNZANIA P ARUSHA

APPELLATE JURISDICTION HIGH. COURTCRIMINAL' AFP.EAL' NO. 24 OF 1976 oRIGINAL.'cRIMiIAL C.:SENO. 666 OF 1975 OF THE DflTRICT COU1T F AUSHA 'DISTRICT AT ARUS HA Before J.J. Icwawa Esq., ----------- Resident Magistrate VALERIAN SIRILI --- - - -- ---- ----------- - - - -- -- APPELLANT verss (Original Accused) THE REPUBLIC ------------------------------ -

RESPONDENT (Original Prosecutor) J U D G.M E N T Jonathan, J. • In the Dis:trict' Court were three acu&.i persons charged in the same sheet consisting of two countsi The fftst count related to the first accused only and charged that, the 6cduied on Or about Decembc 6,'1974 at Government Stores', Arusha'stol352 ofmild steel valued at shs. 70,000/-, being the property ofGovernment which came into his possession in the course of his service with Government. The second 'count was against the 2nd accused, • now the appellant, and the third accusdd, charirig thorn jointly for. recoiing the said sthel bars wuilkno.wing they had been stolen. Both accused were acquitted of their respective charges. The appellant, on thd cthcr hand, was convicted as chargecl..and sentenced to 6yeats' imprisonnbnt, froim Which he petitions • this court through his ,advocateMr. Mahatane and Mr. D'Souza. I note that the latter during, the trial appearel for ,thc 1t accused. It was canmon ground that the frct accused as a clerk at Coruworks on December 6, 1974 took delivry of 352 'bes of mild stOel at Gverriment Stores, Arusha for Governitient constJuction project at Monduli. These were howev.r not ccinveyecl th.r; they were instead hauled on a vehicle driven by P.W 2 'to 4 hc'uscat.Oljord. P..W 2 in his evidence said he had taken those bars there on thc order. of the. first accused who duly accompanied him

on board the vehicle. " It however transpired that he had made a statement to the police 'in which h said the first accused had accompanied him only up to Ngaronnro, an inconsiderable distance from Government Stores, from where thO witness was to be led to the destination by two youths in a peugeot pick-up. In sriew of' this the learned resident magistrate very rihtly gave the first accused the benefit of doubt when he said in his evidence that he hc1 not acornpaniod P.W '2whatovLr and that he had thly instructed him to afflood the bers.at Mondul,' The bars as I have saif' were diverted to Oljoro. From there on December 14 they were transported -oñ' a lorry driven by ôr. S8AB ANI KAMBOWE (P.w'4) to the go-down of one SHAH, f'as±an businèsmthding 'tra in .biilding materials at Moshi. SHABANI in his qyidence said that he was approached at Arusha by someone driving a car with identification number MS 9299 who wanted to hire his lory to haul some iron bars to Moshi. Having agreed on the price the hirer-led him.to.,a place at Oljoro where he found the bars. They were dulyput on the lorry 'and SHABANI'S instructions from that man were to drive to Moshi and to offload the bars atRombo Store. Undisputedly this is-.ownedhy SHAH.. Therehe met bhe asian and foiind the hirer havin.j pr'ececied'him. ' The offloading done and payment made he went away,. In the meantime the pOlice had been

alerted /on and thr.y bad to bC/a look-out fOr 'the lorry whith 1 hau3Le,,1 the - ars t. Moshi, on Dcember 21 Polica sergeants MaOr:.DdON (.W. 1) and VICTOR (P..W 9) upon coming across it had it stcppcd. HABANr was still the driver. 2- He admitte1 having trans:rt.1, th ir"n b'.rs on that lorry and cff. lOaiei tham at W'shi. He 'luly t:c"k them 't: SHAH'S gcd.:wn. The steel bars were &till there. Arising fr m inf ormatik n gathered from SHABANI an. SHAH the ap ellant an th 3rd accused were itnrnediatèl intervicw but n charg.s setns t. have been preferred against the appellant until abc'ut a nv nth Intr. Now, as vigorously sbmi4ted by Mr. Mahatane at great length th6rU are a number of cntradiction in the prosecution case, t' jhich the learned trial magistratd in his' otherwise arefUl judgment des .nct seem to have directel his mind. These are in regard t. what SHA3ANI and SHAH told the investigtin p lice sergants. This is in three main aspects. Firstly, accordino t P..W.1, SHABPtNI told them he hal been hired by one,Valerian which -appears t be the appellant's first name, and another c..rscn who : cwn'1 a car with registration No. ARC 546. P.W 9, fc r his part, ' 1é not seem ta have heaci the name Valerian; all SHA3ANI t i them was he know his hirers (sic) and .vciunteered to sh'w 'them the man (sic). SHAJ3ANI oh the other, hand, testified ciézrly't the effect. that he c. uld not

recognize the ma who had hie1 him. He was qually clr th - t tb.. appellant was not the 'ne;.that p ':sn was . fat as the appellant. He ad:1echowever, that pers ri had a cr w th rgistr ticn N • JS 9299. Secndly, th e 1 rnee rsi'ant mritr t mae a fin cirig that SHABANI,:cotlsis tent with what was attributed to him by. PW I and ,P.W' 9, vciunteeredt show ,e the man, Fr(,M'a cl'se scrutiny of the eva'ênce 'of these tw , witnsses it ' .s nt h uever appear that h.. inf act tock them ti th h usc.. f ...ith r th.. pellant or that of the third accusei. P.0 1 s i he v lunto..r t show them the man, but he is nct clear which mana h'a. in,thind 'r,.ac.rding to him and. P.W 9 SHABANI t ld them he h"I 'bean hire I'h 'two men.' On this point P'.W 9'testif tf. the same" ff act but vagul. He saId: , fl ltQ•The -lriver'vclunteorud t. shw us't' man The 'Iriver further tl',T'Us thatfl-cne of his , hirers c)ne 'I a hoer tore cml anc'ther:' a shç.p atr'1 that they were nuijhbou.s. I saW them and areste.E tlem .........,.." ' ' ' P.W 4 in his evi-Lenca lid rit say, nor was hc ifhe had taken the police tc the h uses CF the tw accus.1, but it scrns clear to me having regard t;: he genaral tinst f his eVi ence, that had he been askel he w'uldhve:si he n them'there. It has hcwev r, a L)c1nt' cut by 'Ir. Mwj.pcpc for the Republic that P.W -1 in ilis eviknce 'at an ,':hr st:ge said SHASANI t ok the m. to

the appIlant's h,use.' The ScrIpth&W P.W 1. as having said under crrss-ey"minti n y tho. ap chant thus • ' ' , '•••O .1 went t tho' eccu,s,. l's hu on the 22/12/74. I was acc'maani:l by. Shbani. I asked him t me tr thTn ]iCc st''tin ml rec rd his stat6mcnt'..0 I du mt kn:w extIy when the accuse1 s s'tatemnt 'jqas recc.r 'edir. The underlining is 'mine. I,,am unbla t V .. infer from this that the witness'w.is saying.hè was tJ t ''the a1pel'lant' hPus'e by SHABRNI, fl . especially'so as PW 1 iii h i s evilonce-in-chi3f cñ'this point had said he had.flffianaie 1' to'" tracq Vaerian an). thfl.. taxi owner. It may also be r$upi5o5ed,. I think, taa I SHABANI taken tieitnesses to, the app.ellant's Fi use they i uli mist £ r eO'Dly have 'arres'o 1 him forthwith.. The patience, claima,,I .t' h've d.n CXerciSfladfl.b'y PW I and P.W 9 seems t he uncharacteristic of th ouneral, approach of the pc:hice in such cases.- ,I w ul.',l accc.rlingly açroe with Mr. Mahatane ./3 -3- -• that there was n..t asuffcient hSisJ f t r the 1ariod magistrate's firidng t1-at SHAi3ANI t k the tw ' p lic serçjeants tt the appellant's -hdUse. There is lastly, thL m'tt r whLthr SHH ri nti nl the apcllant's ame to P.W.1 and P.

9. PW I in his evi'ionc.-in-chief saiJ SHAH tiLl them the stàel hers. wr.. br -u.;ht there by SHA3ANI KANBOWE. Hcwevpr under. Mr. D'S uza's cr ss--axeminoti'n h said SHAH told him • ha had kcwn Valorian f:r a lan•7 tirn, bu.;hc -Jcs nc - t say whQthar het - 1d him 86 .n the same -ey. P•W 9 in Fiis-:ecctbt also said • •SHAFI nnti ned, presumably 'n the s me iay, the n:ma Valerian to them. H(_wovar, SHAH in his evil ncc shi' that althctigh he had known • the appeliant as his'regu) -ar custmr he. i-i net k, his name and that • he ilid. not m.ntic'n the name Valeri-an EL th cletuctis. It waS itherwise the tostim ny (f SLiAH that, the appellant who • .. hai been his regular cust rner apr , •acho'1 'hIm at his hiuse while eating and re'ques to -i fr space in his g- 1 wn . f r off:iing his steel bars,' this hecuse the lorry an which they wera carrie.:l was not suitible fer transp:rting-them tr thir..d-stin'ation. He had no caup tc' suspect him, s h-'- granted hjs request. He was to take them away, ht s-aid, as s. :.n as he got lorry suitable for that prpose. In the m.'efltirne the pliccem S . The appellant in his vi ncc sal, i. ll)-fl rec.1ving a message frem the two detectives n IJ cenber went tJ th' pc-lice station t be tc 1 1 he w c' nn ct' 1tn Yi. thft, if which he however, knew nthing.' :1-ia s'i si wasal1cweJ.' t-. go. It was not until March 1975 that he was "in nU D lice. He

attributed the charge...a'inst him tcl o fram-u.- by sLrxj ant Mejcr 'DICKSON and another eskari with wh m .ho h'a' ha' -ccnsi.ns t 'quirrI. Replying to the proscutcr he sci I 'h i'I n t nw SHAH and"he had not oven been his cstomar. Th thir I - accu' I ±I-1 his ,.vi:ience almitt d he heard • the appeilnt were neighbrurs an' e' ch -f thia h-:l a ihcp. He admitted tc C cwning a taxi w_tl" t xi 1 'ntificti fl N . 1.06. HL does n(t h wevr say if this is oith r the v hiçU. ;ith reg1str"tir - n Nc'. ARC45 r that with MS 9299. W. ''ido owe normally .lrive nt hver • it. . It. : Was Iriven by diffarent pa l" m time ttime. He utterly denie'i any cinnacti p with the theft, . -. • . The le'rne'1 magistratein c nvictin th ajp.allant relied on the evi'nce of SHAH anl that f, th-.. tw: j 1ic'e.dtect1ves. As . regaris the former, he seens t-. hav 2 had 'nc.. :1 iiht whateoeer - that he was an innocent raeiv r. -I have myseif closely examined his evidence. In his examinati n-inchief, as air aLly nc'te:1,' he said the appellant fallc.wel -him it his h use.. . He thn s ; aw thb lorry loaded wih the steel bars. UITXIr cr ss-exnati n, h,:wevr, he hd-this to add, among other things:" . • . The sec , .nl eccu-1 (appellant). First daM to • my shop.' At this tImehe. i't not cme with 'th)ai'un '. hars. 'ha next time he came, he came tc so me at hcm We off 1 al I thc ir n ears at iziy cc'mpcunl ..." It

wcul'l eem fr. m this that the appliInt. ha 1. ap-r:"ah him, presumably' in the same subject, provi',usly t'.- th. date of cffloading - • the bars at his yard. That the arr:eUent shculd have saen him • a g cl time in alvnne .ourht, 1 think, €::h:tv watnec'l him 'that the reaso. • . the appellant was giving f r 'fflaiinq thro miqht well nct b true. • It seems tc'ne, unct.-nvincing that he - caul'I. have been taken in by the • .• . a'peilant's repesentaticn that, h-c was. çn.g't- hire a lorry ti /the transport the steel bars fr m Arushe or wheever he may have said/were, steel but, that because that lcrry w;ul'l t he -sUitablu en' ugh to ccntinue • bars the ti bey n:i M shi Township he w1I 'ask .be have the lo'd off- lGacle:l, at hjs go- lawn.. It sh.ul- -1 net h:-vctakn SHAH lcng to detect -a. .e.. . :. - '•- • - ......./ 4 -4- the lie in such representation. He shoiil1 really h've' wanted to know •:., • what was preventing the appellant as a pru'ient rñn of business from - :'i • hiririg - :alorry that was capable of hauling the steel bars all the way uptOtheir destinaioñat.orie 5trotch.. •., Quite apart from kowing his name there is a lot thewithess does not appear to have known abnut . he appellant anl..consithuring the vast amount of goo ,ls and the fact that, as owrir of ..a hardware shop he was himself trading in such goods, facts as those should havL put him on his guard,

if not at the time the request waamie, at least by the time the lorry brought the g'ois there,tht they might turnout to be sto2en proerty. Overall, it is a little unthinkable that he ccuid have been taken in so realily by the representation he attributes to the appellant and I find myself l-ss incline I than was the learned resident a an innocent receiver. rjiagiztrnte to say so conclusively tha t he ws .. :The lower..coiirt did hbaver correctly observe that, it subsequently having transpiro T to the witness that the bars had been stolen, he must have felt thore was a need to exonerate himself and that his ev1dece was tb be received with caution* inacquithng the first accused the magistrate ptly cted the decision p this Court in Bartholomew Daniel v. Republic (1969) H.C.D. Nc. 8 0G, in Which Chief , Justice Georges saU, inter-alia, that in orlar to convict or 'ie evidence of a person who has an interest of his own to sorve, such cilence must be carefully examin.. 1 . The lowr court in that case had not so warno itself aol as thre was no corrol5ctation the Chief Justice allcw..J that aopoal. It is not entirely clear if in this case as regards thL case against the apoellant the loanei 1 trial magistrate Preciqted the need to look for corrphorative viden.ce. There certainly . .. was a cryin need to look for evidenca corroborating the eviluncc of P.W 8, albeit he may have beeh,

consistent as the lôwer c urt noted. The court acting on the evidence, of P.W I and PW 9 found that SHABANI hd infect tell them he had been hirel by the app11at. This seems to have been treatel as cvi lence supporting the adcout of P0W 8. I am bowever in agreement with Mr. Mh tane that., SHABANI having said categorically that, he cannot;.rècogni,ze.his hirer and that he cud not name him to the detectives anttht the Prosecution-not having sought to impeach his credibility, it was not open to the -court to draw the ....-. .. conclusion that he hal in:f €hmed the hirer as Valerian, especially considering the conflict to be found on this point between the evidence f the two. detectives and that of SHAH. The claim by the detectives did not therefore avail as evi:ience CorrObOrating the stry of P.W 8. Mr. Mwipopo has then sUg there is to be found corroboration in the fact that P.W 4 took the detectics to the appellant's house, but as I . attempted to show earlier, the evidence des not if act show if he took them there; all in.liatiens are mereiy.that the detectives in the course of their invetigticns ha-I to occasion to take P.W 4 along with them to the appellant's house. . The learned magistrate While reviewij the defence of the appellant had this to say, among other thinjs; "The second accusal, has nt unlike thCr accused persons flatly denied the charge against him ;.... I am not

altogether clear what he hal in mind h the words "flatly denied", but if he is saying that he lid net specifically make a statement denying the chafge, ,Iiould say he gravely misdirected himself for, the appellant said he i: 1ot know anything about the steel bars. That, with respect, was as goc '1 a denial as any cou.1d bC. Hav!hq in mind the conflicts in the proses'2tion evidenc,e\which the trial court clii not cal with adequately, if all, thefailure to hold an identification pare t affcrl, as the. trial court vry fairly noted, a less -biased setting for P.W 4 and P.W 8 to pick up the culpritif that was possib1e -and - consideriOg a nUmber of misdirections of some of which fef9rence hs been- made above, which seem t have 5 weighed unduly on the mind of the trial magistrate, I would thinkthe appellant should have the benefit of dc:;.uhto Accor'diflgly, the appeal is allowed ahi the cowictin and sentence sot aside. The appellant should be set at. li.erty if there is no other lawful cause for detaining him. P .M. JOIATiAN, JUDZ4E Judgment delivered in pen court this 25th day cf June, 1976. • / / /;• • P.M. JCNAYHAN,

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