RUNGU JUMA v REPUBLIC 1994 TLR 176 (CA)

 

RUNGU JUMA v REPUBLIC 1994 TLR 176 (CA)

Court Court of Appeal of Tanzania - Mwanza D

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 105 OF 1993

25 July, 1994 E

(From the decision of the High Court of Tanzania at Mwanza, Masanche, J)

Flynote

F Evidence - Evidence of a child of tender years - Whether such evidence may be

received without a voire dire - Section 127(2) of the Evidence Act 1967.

Evidence - Evidence of a child of tender years - Corroboration - Whether a child's

evidence may be corroborated by the defence evidence of the accused. G

Criminal Law - Robbery with violence - Appropriate sentence for robbery with

violence - Sections 285 and 286 of the Penal Code, and the Minimum Sentences Act

1972 as amended by Act No 10 of 1989. H

-Headnote

The appellant was convicted of robbery with violence and sentenced to fifteen years

imprisonment by the district court of Musoma. His appeal to the High Court was

unsuccessful and, instead, the sentence was enhanced to thirty years. He appealed

further to the Court of Appeal. His main ground was that the conviction was wrong

because it was based on the evidence of the complainant, a child of tender years. I

1994 TLR p177

Held: A

(i) As the offence was committed in broad daylight, and the appellant was

well known to the complainant before the incident, and the complainant immediately

mentioned the appellant to his father and later to the Police that he was the one who

assaulted him and stole his cattle, it cannot be said that the complainant could have

been mistaken in the identification of the appellant as his assailant and robber;

(i) As the offence was committed in broad daylight, and the appellant was

well known to the complainant before the incident, and the complainant immediately

mentioned the appellant to his father and later to the Police that he was the one who

assaulted him and stole his cattle, it cannot be said that the complaint could have

been mistaken in the identification of the appellant as his assailant and robber; B

(ii) A child's evidence may be corroborated by the defence of the accused

and in this case the appellant's admission that he was present at the scene of the crime

on the material day and that it was the complainant's description of the appellant to

the Police that led to his (the appellant's) arrest does, to some extent, corroborate the

complainant's evidence; C

(iii) On the totality of the evidence the appellant was rightly convicted of

robbery with violence as charged and in view of the amendment of the Minimum

Sentences Act 1972 by Act 10 of 1989 the High Court rightly enhanced the sentence

to thirty years imprisonment. D

Case Information

Appeal dismissed.

Case referred to:

R v Okello Bayenzi s/o Anyaro [1938] 5 EACA 140.

Lyimo, for the Republic. E

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the Court:

There was no dispute in this case that one, Malima s/o Mang'azi, PW1, had his F

sixteen head of cattle stolen on 13 October 1991 while grazing them at Nyamike

Village within the district of Musoma in Mara region. It was the case for the

prosecution that immediately before such stealing the thief attacked Malima Mang'azi

with a panga causing him to suffer grievous harm. G

Investigation regarding the incident culminated to the arrest of the appellant and a

charge of robbery with violence contrary to s 285 and 286 of the Penal Code was

preferred against him. In the alternative to the charge of robbery the appellant was

charged with causing grievous harm contrary to s 225 of the Penal Code.

The district court at Musoma heard the case against the appellant and after a full trial

the learned resident magistrate came to the conclusion that the charge of robbery

with violence against the appellant had been proved beyond reasonable doubt. The

appellant was accordingly convicted and sentenced to fifteen years imprison-

1994 TLR p178

MNZAVAS JA

A ment. In addition the district court imposed corporal punishment of twelve

strokes of the cane and an order that the appellant refunds sixteen head of cattle to

the complainant, PW1.

Dissatisfied with the decision of the district court the appellant appealed to the High

Court on the ground that the district court erred in acting on the evidence of PW1 (a

child of tender age) that he had identified him (appellant) as his assailant B and

robber. In dealing with the question whether or not the complainant had identified

the appellant as the robber the High Court (Masanche, J), said inter alia:

C `... Issues of credibility as is known are best judged by the person who tries the

case. This is because the judge is able to watch the demeanour of the witnesses who

testify.... However one aspect of the case: PW.1, the complainant, is said to be a

juvenile. The magistrate I notice, has recorded that Section 127(5) of the Evidence Act

had been complied with. The D learned magistrate however, did not conduct a voire

dire at least to show why he thought the witness understood the nature of oath.'

After quoting the provisions of sub-sections (2) and (3) of s 127 of the Evidence Act,

1967, the learned judge said: E

`Coming to the instant case, I am in no doubt whatsoever, satisfied that the

child must have understood the nature of oath. Even if for sake of argument, the child

did not understand the nature of oath I am satisfied that the child had sufficient

intelligence "to justify the reception of F evidence". . . The complainant in his

evidence in chief, was able to break down the numbers with regard to what beasts he

had. He said he had 184 head of cattle, 29 goats and 3 sheep . . . Such breakdown can

only be done by an intelligent boy.'

G The learned judge then concluded that `the conviction was well deserved' and

dismissed the appeal against conviction. As for the sentence of fifteen years

imprisonment the learned judge was of the view that robbery with violence where an

offensive weapon is used, as was in this case, the appellant should have been

sentences to thirty years imprisonment under the Minimum Sentences Act, 1972, H

as amended by Act No. 10 of 1989. Accordingly the sentence of fifteen years

imprisonment was enhanced to thirty years imprisonment.

Still dissatisfied the appellant has come to this court.

Before us the appellant who was not represented by a counsel recapitulated his

defence in the High Court that the district court erred in convicting him of the

evidence of the complainant, PW1, I

1994 TLR p179

MNZAVAS JA

who was a child of tender age. He also told the court that the court of first instance A

refused him to call some of his witnesses. He recapitulated his defence in the district

court that on the material day complainant's cattle had strayed into his (appellant's)

shamba and that he reported to his cell leader who gave him a letter to the

agricultural officer who came to the shamba and assessed the extent of damage

caused. According to his defence while he was away looking for the cell B leader and

the agricultural officer the appellant and his family cooked up a story that he had

robbed him (PW1's) of his cattle.

In rebuttal Mr Lyimo, learned Principal State Attorney, told the court that the C

appellant did not tell the trial court that he had more witnesses to call after DW1 and

DW2 had given evidence. In support of his argument the court was referred to page

ten of the typed proceedings where the appellant is recorded to have told the court: `I

have nothing to say, as I intend to call no other witness'. If this statement D by the

appellant is anything to go by appellant's defence before us that he was refused to call

some of his witnesses is bogus and an afterthought.

The learned Principal State Attorney conceded to appellant's argument that the

complainant was a child of tender age and that his real age was not established. E

Equally it was agreed that the learned trial magistrate did not subject the complainant

to a voire dire to enable him to form an opinion whether the complainant was

`possessed of sufficient intelligence to justify the reception of his evidence' as

required under s 127(2) of the Evidence Act, 1967. F

However despite this omission by the learned resident magistrate Mr Lyimo

submitted that the appellant admitted in his defence that he was at the scene of crime

on the material day and that it was complainant's description of the appellant to the

police that led to the arrest of the appellant. This, it was argued by the Republic,

showed that the complainant could not have been mistaken in the identification of

the appellant as his assailant and robber. G

The learned Principal State Attorney invited the court to dismiss the appeal. With

respect we agree that on the evidence tendered in the court of first instance the

appellant was rightly convicted of the offence of robbery with violence as charged H

the non-compliance of s 127(2) of the Evidence Act, 1967 notwithstanding. The

offence was committed in broad daylight, the appellant was well known to the

complainant before the incident and the complainant immediately mentioned the

appellant to his father and later to the police at Kiabakari that he was the one who

assaulted him and stole his I

1994 TLR p180

MNZAVAS JA

A cattle. Apparently the evidence showed that soon after the incident (at about

8am) the appellant decamped from his house and only surfaced in the evening, at 7

pm, and handed himself to the Police Station after finding that his family had been

arrested. We are also of the view that appellant's admission that he was present at the

scene of the crime on the material day does to some extent B corroborate

complainant's evidence that it was he who attacked the appellant and stole his cattle.

That a child's evidence may be corroborated by the defence of the accused is evident

from the decision in R v Okello Byenzi s/o Anyaro (1). C

Before we conclude we would also like to mention another blatant lie by the

appellant. Before us he said `the complainant did not have any injuries on his body'.

This statement is diametrically opposed by his statement when cross-examined by the

public prosecutor. There he answered `I don't know how he sustained the injury on

his left shoulder'. D

The medical report - exhibit P1 was to the effect that the complainant had a cut

wound on his left shoulder which was four inches long and two inches deep.

E On the totality on the evidence we are satisfied in our own minds that the

appellant was rightly convicted of the offence of robbery with violence as charged. In

view of the amendment of the Minimum Sentences Act, 1972 by Act No. 10 of 1989

the learned judge was right in enhancing the sentence of fifteen years imprisonment

imposed by the district court to one of thirty years imprisonment. Apparently the

High Court judgment is silent regarding the sentence of twelve F strokes corporal

punishment imposed by the district court. Having convicted the appellant of robbery

with violence the district court had no alternative but to impose corporal

punishment. Such sentence is mandatory under the Minimum Sentences Act, 1972 as

amended by Act No. 10 of 1989. In the event we affirm the sentence G of thirty

years imprisonment awarded by the High Court and that of twelve strokes corporal

punishment imposed by the district court. The order of compensation by the district

court also stands.

In conclusion the appeal is hereby dismissed in its entirety. H

1994 TLR p181

A