ROBERT MGIRE v REPUBLIC 1994 TLR 174 (CA)

 

ROBERT MGIRE v REPUBLIC 1994 TLR 174 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

B CRIMINAL APPEAL NO. 51 OF 1994

25 July, 1994

(From the conviction of the High Court of Tanzania at Mwanza, Mrema, J)

Flynote

C Criminal Practice and Procedure - Appeal - Summary dismissal of appeal -

Whether summary dismissal of appeal without re-appraisal of evidence proper.

-Headnote

D This appeal was against the summary dismissal decision of the High Court on the

appellants appeal against conviction by the District Court for house breaking. Both

counsels for the appellant and the respondent concurred that this was not proper case

for summary dismissal.

Held: the evidence on record on this case required a re-appraisal and had that been

done the judge would have found that there was reasonable doubt as to the

appellant's guilt. E

Case Information

Appeal allowed.

Kahangwa, for the appellant.

F Lyimo, for the respondent.

[zJDz]Judgment

Kisanga, JA, delivered the following considered reasons for judgment:

G When this appeal came up for hearing, counsel for both sides addressed us and at

the end of it we allowed the appeal but reserved our reasons to a later date. We now

give reasons for doing so.

This was a second appeal arising from the decision of the High Court (Mrema, J)

dismissing summarily the appellant's appeal against conviction by the District H

Court for house breaking and the sentence of five years' imprisonment. Before us the

appellant was represented by Mr Kahangwa, learned advocate, while Mr Lyimo,

learned Principal State Attorney, was for the respondent Republic. Mr Lyimo did not

seek to support the appellant's conviction. He shared Mr Kahangwa's view that this

was not a proper case for summary rejection by the High Court. The evidence on

record was such as did require re-appraisal, and that had this been done the learned

judge I

1994 TLR p175

KISANGA JA

could not have upheld the decision of the District Court. With respect we agree A

with the concurrent views of both counsel.

Very briefly the facts of the case were that the complainant's house was broken into

at night and a number of items of property were stolen from there. About three days

later the appellant was found wearing a T-shirt which was adequately identified as

part of the property stolen from the complainant's house. On being B asked, he

immediately explained that he had bought it from his co-accused (first accused), and

another co-accused (third accused) who was then present claimed that he witnessed

the said transaction between the appellant and the first accused. In their defences at

the trial, both the first and the third accused persons C denied any involvement in or

witnessing the sale of the T-shirt in question to the appellant. However, both the first

accused and the appellant who was the second accused, were convicted for the

offence already mentioned; the third accused was acquitted. Again as intimated

earlier, their appeals to the High Court were D summarily rejected, and while the

appellant has appealed further to this Court, the first accused has not.

The complainant's neighbour (PW2) watched the incident that night through the E

window in his own house and by the help of electric security lights stated that he saw

and identified the first and third accused as being among the four persons who broke

into the complainant's house. However, he categorically stated that he did not see the

appellant there. Now the question is, if the appellant took part in the commission of

the offence, why did PW2 not see and identify him? F

The appellant was found wearing the complainant's T-shirt and upon being asked he

readily explained that he had bought it from first accused, and that explanation was

duly supported by third accused who was present them. We are finally of the G view

that that explanation could possibly be true. Indeed the first and third accused

persons in their defences at the trial completely denied any involvement touching on

the T-shirt in question. That, of course, could only be expected because it was in their

interest to try to prevent the shift of blame to them. The H view, that the appellant's

explanation could possibly be true, finds support in the appellant wearing openly the

complainant's T-shirt bearing the complainant's initials RZ on it. If the appellant

were the thief or a guilty purchaser or receiver, it seems to us most unlikely that he

would have worn it so openly and in the locality where the complainant could reach

easily. I

1994 TLR p176

A We are certain that had the learned judge addressed himself to these matters he

would have found that at least they did raise a reasonable doubt in his mind as to the

appellant's guilt. It is for that reason that we upheld the submissions by counsel for

both sides and allowed the appeal, quashing the conviction and setting aside the

sentence with the order to release the appellant forthwith unless he was otherwise

lawfully held in custody. B

1994 TLR p176