Lugakingira, J.: The appellants Joram Mkanghule and Meshack Chilimbe, to whom I shall hereinafter refer as the first and second appellant respectively, were before the Primary Court at C Makang'wa, convicted of robbery with violence and sentenced to seven years' imprisonment each. They unsuccessfully appealed to the District Court, Dodoma, and further appealed.
Mr. D.C. Mbezi appeared for the appellants before this Court and raised a preliminary complaint. It is D an important one and I desire to give it consideration. The appellants had engaged him to file and prosecute their appeal before the District Court. Mr. Mbezi duly filed the appeal on 6th March 1984. The appeal came up for hearing on 1st August, 1984, but neither he nor the appellants were served E with the notice of hearing. Mr. Mbezi informed me that the appeal did not even appear on the court's cause list. However, the proceedings of that date appear as follows.
Cormm: D.H. Lukindo, D.M.
Appellants absent.
F Mr. Mbezi for the Appellants absent.
Memo of appeal together with lower court record perused.
G Sgd.
D.H. Lukindo, D.M. 1/8/84
The court's judgment follows immediately, and is dated the same day, ending with: "Right of appeal to High Court is open."
H Mr. Mbezi's complaint is justified. First of all, the right of appeal cannot be open as such. To grant such liberty, in effect an indefinite period of appeal, is contrary to s.25(1) of the Magistrates' courts Act, 1984 which prescribes a period of thirty days. Any period of limitation has its purpose, the most obvious being to avoid chaos in the business of the courts. It is therefore improper, indeed I irregular, to behave as if limitation did not exist or matter. But I need to say
more on this subject since the appellants were not prejudiced by, but stood to gain from, the A indifference of the appellate magistrate.
Secondly, the proceedings cited above are not free from ambiguity. They could be construed to imply that the appellants and/or Mr. Mbezi were absent on their election. I have perused the entire record and it is evident that no notice of hearing was sent out. It may also be true, as claimed by Mr. B Mbezi, that the matter did not even appear on the cause list. It seems that some magistrates are tempted to regard as trivial appeals from primary courts and to dispose of them as a sort of nuisance. Unfortunately, that attitude is wrong as it overlooks the legitimate anxieties of the parties to the case C and, more seriously, it is not available for a court to substitute its attitude for the express provisions of the law. Appearance at the hearing of criminal appeals from Primary Courts is governed by the provisions of s.34 of the Act aforesaid. Generally, an appellant, whether in custody or not, is entitled to be present at the hearing of his appeal, and the court is enjoined to cause notice D of the time and place at which the appeal will be heard to be given to him or to his advocate. There are two exceptions to this rule: Notice need not be given to an appellant who has not indicated in his petition that he wishes to be present; nor need it be given to an advocate unless the petition is E signed by him or the court is otherwise informed that he is instructed to appear at the hearing. In the instant case the petition of appeal was signed and filed by Mr. Mbezi. In view of the provisions aforesaid, I am satisfied that the lower court proceeded irregularly in failing to notify Mr. Mbezi or the appellants of the date of hearing. F
It now falls to consider the effect of this irregularity. Section 37(2) of the Act is relevant in this respect and, in so far as this case is concerned, it provides that the decision of a District Court shall not be reversed or altered on appeal on account of any error, omission or irregularity in any process G unless such error, omission or irregularity has in fact occasioned a failure of justice. To my understanding, a failure of justice does not mean the conviction of an accused or the dismissal of his appeal; rather, it means failure to give the accused or the appellant a fair and just hearing. I am not prepared to say in this case that there was such a failure of justice. The appellants were in fact given H a fair and just hearing notwithstanding their absence and that of their advocate. As indicated in the proceedings of 1st August, the petition of appeal was perused. Even in his judgment the appellate magistrate further stated that he did not agree with the grounds of appeal, an indication I that he gave them consideration. It follows, in my view, that there was a
A fair hearing and the decision of the lower court cannot be disturbed on account of the irregularity. The appeal therefore stands or falls on its merits.
Two matters were taken before me: the identification of the robbers and the reception of doubtful B confessions. Mr. Mbezi, with Mr. Mwambe's support, submitted that there was unreliable evidence of identification and that otherwise the appellants were convicted and their first appeal dismissed on the basis of involuntary confessions. In view of these arguments, I propose to recount the facts at some length.
C The complainant was a cattle dealer. On 5th August, 1983, he went to Nkwenda village the appellants' home place, to purchase cattle and had a pouch containing 20,000/-. Being a stranger in the area, he picked up a friend (PW2) who was a resident of Nkwenda. Around 4 p.m. they came to a D pombe shop where they found both appellants. They told the appellant of their desire and appellant directed them to his home which PW2 knew. They hung around until between 5 and 6 p.m. when PW 2 led the way to the second appellant's home. They were there shown four cattle by the E second appellant's brother but since it was getting late, the second appellant's father, one Simatya, told them to make payment the following day. The complainant and PW 2 turned to go and it was then between 7 and 7.30 p.m. in their estimation. A short distance from Simatya's homestead, PW halted to answer a call of nature. Shortly, the complainant was accosted by two people whom he F identified as the appellants. They asked him where his colleagues were. He duly informed them. In that instant he was attacked and felled and relieved of his pouch. He raised alarms and PW 2 arrived in time to see the appellants flee. More alarms were raised but nobody came to help except women G who were peeping and retreating into their homes. They went to report to the village secretary but he could not help saying that the appellants were fearsome characters. He directed them to the Ward Secretary. The following day the second accused was arrested at his home. The first appellant was H reported to have left for Nkulabi village the previous night. He was followed there and arrested. It seems that upon their arrest the appellants were given a beating and this led to their making written confessions. The second appellant went further. He led the way to his house and indicated a spot under his door saying he had kept the money there. The soil was removed but no money was found. I The appellants were subsequently charged.
I will start with the question of identification. It occurs to me that Mr. Mbezi's argument was based A on a misapprehension of the facts. He thought, and argued, that the complainant and PW 2 met and parted with the appellants at 4 p.m. when in fact they parted after 5 p.m. The four were therefore together at the pombe shop for more than an hour. It is significant that the appellants themselves B denied meeting the complainant or PW 2 at all. Apart from the familiarity arising from the pombe shop meeting, it is equally evident that complainant had ample opportunity to see and identify the appellants at the time of the robbery for he saw them arrive, had a conversation with them, and could even make out who did what. He said: C
Basi tulipozunguka nyumba ya yule Simatya mwenzangu akasema nimsubiri ajisaidie kwanza. Wakati ninamsubiri mwenzangu, washtakiwa hawa wakaja pale nilipokuwa nimesimama. Kitu cha kwanza D mshtakiwa wa pili aliniuliza kuwa mwenzako yuko wapi. Baada ya kumjibu yupo anajisaidia nikakuta nimepigwa kichwa na ngumi kwenye shingo. Akanizoa na kunidondosha chini. Ndipo nikaanza kupiga kelele ... Mshtakiwa wa kwanza alikuwa akinitazama, huku ameshika miguu nikiwa nimedondoshwa chini. E Wakati ule napiga yowe mshtakiwa wa pili alikuwa anachukua pochi yangu iliyokuwa na fedha.
The time of the incident was indeed given as 7.30 p.m. but that was the guess of peasants which F should not be taken seriously. Hence, if in fact the complainant and PW2 left Simatya's at 7.00 p.m. as the complainant stated, and the robbery took place just behind Simatya's house, according to both the complainant and PW2, there could not have elapsed an interval of half an hour. It is G moreover evident that despite the so-called 7.30 p.m., and the use of the term "usiku", it was still possible at the time easily to make out a familiar person. In cross-examination by the first appellant, the complainant further said:
Niliwatambua washtakiwa hawa kwa sababu nilionana nao kuanzia mchana... Ilikuwa saa 1.30 usiku, H ilikuwa rahisi sana kumtambua mshtakiwa. I
A Even PW2 arrived in good time to see the appellants, although both counsel were again inclined to see the evidence differently. According to the complainant,
Ndipo nikaanza kupiga kelele mwenzangu akasikia na kuja anakimbia. Washtakiwa walipomuona B wakakimbia.
According to PW2 himself, who also knew the appellants from long before,
C Mara nikasikia mlalamikaji anapiga kelele. Nilienda huku nakimbia nikakuta mlalamikaji kaangushwa chini na washtakiwa hawa. Nilipofika kutaka kuwashika walikimbia. Wakati wanakimbia nilimuona D mshitakiwa ameshika mkononi mkoba wa mlalamikaji ... Tuliwafukuza lakini hatukuweza kuwashika.
From this evidence, which the lower courts believed, I am equally satisfied that the appellants were properly and perfectly identified. The familiarity and the circumstances prevailing gave no room for Emistaken identity. As pointed out by the learned trial magistrate the behaviour of the first appellant was also significant. For no apparent reason he abandoned his home for Nkulabi at 3 a.m. the same night. He could only tell the trial court that he was drinking pombe at Nkulabi but, certainly, that was F not a calling that would have necessitated such an unusual and risky journey. Mr. Mbezi's other observation on identification was on what he called the arrest of the second appellant's brother. He thought that this indicated uncertainty on the part of the complainant and PW2. In fact, this was G another misdirection on the evidence. The man who was picked up was Donald Nkanghule (DW1), the first appellant's brother, not Simon Chilimbe (DW2), the second appellant's brother, and the former was taken along to disclose the whereabouts of his brother. When he did so, he was released.
H There was then the issue of confessions. If what the appellants alleged was true, the confessions were of course inadmissible. However, I am unable to find that their reception prejudiced the appellants. A careful reading of the lower courts' judgments shows that reference to the confessions and the circumstances in which they were obtained are matters arising in the summaries of evidence. I But in arriving at their decisions both courts carefully confined themselves to identification. I therefore see no merit in the argument
which, in any case, is irrelevant once it is found, as it, was, that there was accurate identification. But A one thing merits attention. Even though the confessions as such might have been inadmissible, the fact that there was an unusual state of affairs in connection with the second appellant was relevant and admissible under rule 9(2)(b) of the Rules of Evidence in Primary Courts, G.N. No. 22 of 1964, as it tended to prove a conduct from which the second appellant's guilt could be inferred. It B matters not, in that context, that illegal means are used in getting at the fact: see also Kuruma Son of Kaniu v R.[1955] 1 All ER. 236; (1954), 21 EACA 242.
On the whole, with respect to both learned counsel, there is no doubt about the appellants' guilt and C the propriety of their conviction. The appeal is accordingly dismissed. There is only one matter to put right. The trial court had no power whatsoever to order the attachment of the appellants' parents' cattle or money to compensate the complainant. The obligation to furnish compensation is D solely the appellants' and it's none of the court's business that they have no property of their own.
Appeal dismissed.
E