Zanzibar Shipping Corporation v Mkunazini General Traders (Znz Civil Application No. 6 of 2005) [2006] TZCA 32 (17 November 2006)

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Zanzibar Shipping Corporation v Mkunazini General Traders (Znz Civil Application No. 6 of 2005) [2006] TZCA 32 (17 November 2006)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM: NSEKELA, J.A., MSOFFE, J.A., And KAJI, J.A.)

CRIMINAL APPEAL NO. 230 OF 2004

1. OMARI MOHAMED CHINA ………………………………..… 1^ST APPELLANT
2. MAMLO ALLY BAKARI ………………………………………. 2^ND APPELLANT
3. CHARLES NANDUTA ……..………………………………….. 3^RD APPELLANT
4. WILSON BERNARD HODI ……………………………….…. 4^TH APPELLANT
VERSUS
THE REPUBLIC …………………………………………………….. RESPONDENT

(Appeal from the conviction of the High Court of Tanzania
at Mtwara)

(Mandia, J.)

dated the 22^nd day of February, 2000
in
Consolidated Criminal Appeals Nos. 65, 66, 67, 68 of 1998
----------
JUDGMENT OF THE COURT

KAJI, J.A.:

Omari Mohamed China, Mamlo Ally Bakari, Charles Nanduta and Wilson Bernard Hodi, who are the 1^st, 2^nd, 3^rd and 4^th appellants respectively, were among ten suspects who were jointly charged with various offences in Criminal Case No. 3 of 1998 in the Resident Magistrates Court of Mtwara at Mtwara. For the purpose of this appeal the appellants were jointly charged with two offences as follows:-

1^st Count: Conspiracy to commit felony contrary to section 384 of the Penal Code.

2^nd Count: Armed robbery contrary to sections 285 and 286 of the Penal Code.

The 2^nd appellant Mamlo was also charged separately with two counts, namely:-

5^th Count: Being in possession of goods suspected to have been stolen or unlawfully acquired, contrary to section 312 (1) of the Penal Code.

8^th Count: Unlawful possession of firearm contrary to sections 30 and 31 of the Arms and Ammunitions Ordinance Cap 223, read together with sections 56 (1) and 59 and paragraph 21 of the First Schedule to the Economic and Organized Crimes Control Act No. 13 of 1984 as amended by Act No. 10 of 1989.

All of them denied the charges against them. However at the end of the day the 2^nd, 3^rd and 4^th appellants were found guilty as charged and were convicted accordingly. They were each sentenced to ten years imprisonment on the 1^st count and thirty years imprisonment and 12 strokes each on the 2^nd count. The 2^nd appellant Mamlo was also sentenced to a fine of shs. 10,000/= or 2 years imprisonment on the 5^th count, and seven years imprisonment on the 8^th count.

Sentences of imprisonment were ordered to run concurrently for each appellant.

The facts leading to the case can briefly be stated as follows:–

During the night of 14.1.1998 PW14 Maulidi Salumu’s house at Mnyambe, Newala District, was invaded by a group of bandits who broke the rear door and stole therefrom an assortment of property. One of the bandits was armed with a firearm. This bandit fired in the air to scare those who might have come to rescue PW14 and his family. PW14 was hit so hard on the head with an iron bar that he lost consciousness for nine days. The bandits also beat some of PW14’s family members including his wife PW15 Sophia Dadi and his sister-in-law PW16 Shakila Dadi. The bandits who had a motor vehicle left for Mtwara with their loot.

The matter was reported to the police who, through investigation, arrested ten suspects including the appellants, and recovered some of the stolen properties.

In their defence the appellants and their confederates-in-crime denied to have been involved in the offences laid against them. However at the end of the day the 2^nd, 3^rd and 4^th appellants and three others were found guilty as charged and were convicted accordingly. The 1^st appellant and four others were acquitted.

The 2^nd, 3^rd and 4^th appellants were aggrieved with the conviction and sentences. They unsuccessfully appealed to the High Court at Mtwara.

The court concurred with the decision of the trial court that the appellants fully participated in the commission of the offences charged. The Director of Public Prosecutions also successfully cross-appealed against those who were not found guilty, the 1^st appellant Omari being one of them. The 1^st appellant was found guilty and convicted on the 1^st and 2^nd counts. He was sentenced to ten and thirty years imprisonment respectively.

The 1^st, 2^nd, 3^rd and 4^th appellants were dissatisfied with the decision; hence this second appeal.

In their separate memoranda of appeal, the 1^st and 2^nd appellants each preferred eleven grounds of appeal while the 3^rd and 4^th appellants twelve and 17 respectively.

However the essence of all grounds revolves around total denial of committing the offences charged, disputing the identification of the stolen properties, and challenging some of the caution statements in which they were implicated.

At the hearing of the appeal only the 1^st appellant was present. The other appellants had opted the hearing to proceed in their absence. The 1^st appellant did not add anything material to his grounds of appeal.

The respondent Republic was represented by Mr. E. P. Ntwina, learned State Attorney. The learned State Attorney relied heavily on the caution statements in which the appellants were implicated, the recovery of some of the stolen properties found in the hands of the 1^st, 2^nd and 4^th appellants, and the totality of the prosecution evidence.

As already demonstrated, the 2^nd, 3^rd and 4^th appellants were found guilty by the trial court. Their appeals to the High Court were dismissed for want of merit. They are still protesting their innocence in this Court.

As a general principle, a court of second appeal will normally not interfere with concurrent findings of fact of the two courts below unless both courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there are misdirections and/or non directions on the evidence (see: Salum Mhando v. R (1993) TLR 170).

In the instant case the two courts below found as a fact through the evidence by various witnesses, that on the material day it was the 3^rd appellant Charles Nanduta who was driving the motor vehicle Registration No. MT3396 Exh. P.7B which was involved in the robbery. In his testimony in court the 3^rd appellant admitted to have driven it, but he denied to have participated in the robbery. He said he was hired by unknown people for an unknown mission at Newala, and that he ended up at Newala and did not proceed to the scene of crime at Mnyambe village. The trial court found as a fact that there was ample evidence that apart from driving the motor vehicle which was involved in the robbery, he also involved himself heavily in hiding the loot in his father’s shamba at Mbae according to the statement of his watchman Yusuf Mkadimba Exh. P.26. The learned judge on first appeal concurred with the trial court on this finding. We are in total agreement with the concurrent findings of fact by the two courts below that there was ample evidence that the 3^rd appellant fully participated in committing the offences charged. We are aware that Yusuf Mkadimba did not give oral evidence at the trial after returning to his unknown village in Mozambique. His statement was tendered as evidence under section 34 (B) (2) of the Evidence Act, 1967. We have carefully perused the record and we have been satisfied that, before being admitted as evidence, all the preconditions prescribed under section 34 (B) (2) were satisfied.

As far as the 2^nd appellant Mamlo is concerned, there was ample evidence by PW12 ASP Mnyampala and PW18 No. C.7758 D/Sgt. Hamisi that it was the 2^nd appellant who showed them a gun which was in an inhabited hut at Amkeni village. According to the Ballistic Expert Report Exh. P.20, it was the very gun which was involved in the robbery.