ELIAS JOAKIM v REPUBLIC 1992 TLR 220 (HC)

 ELIAS JOAKIM v REPUBLIC 1992 TLR 220 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

19 August 1992 F

Flynote

Evidence - Testimony by children of tender years - Voire dire test - s. 127(5)

Evidence Act 1967.

Criminal Practice and Procedure - Sentencing - Accused found guilty on two counts -

Criminal Procedure Act 1985.

Criminal Practice and Procedure - Sentencing - Accused currently serving another G

sentence.

Criminal Practice and Procedure - Sentencing - Offence committed falls under the

Minimum Sentences Act 1972.

-Headnote

Elias Joakim, the appellant was charged and prosecuted before Shinyanga District H

Court of two counts - house breaking c/s 294 (1) and stealing c/s 267 of the Penal

Code. The appellant was found guilty and sentenced to 2 years' imprisonment on the

first count, far below the minimum mandatory sentence prescribed by the Minimum

Sentences Act 1972. On the second count the appellant was condemned to 5 years' I

imprisonment, without the trial

1992 TLR p221

KATITI J

Magistrate ordering the same to run, either, concurrently or consecutively. The A

convictions were procured basically on evidence tendered by children of tender

years.

In mitigation it also transpired that the appellant was serving another sentence.

Aggrieved with the conviction and sentence the appellant appealed. B

Held: (i) Competency in giving evidence in so far as the child of tender years is

concerned, is not a matter of age, but of understanding;

C (ii) where a child of tender years gives evidence sworn after a successful voire

dire test, and that he understands the nature of the oath, his evidence so given is as

good as that of an adult;

(iii) it is trite law, under the Minimum Sentences Act, 1972, Section 5, that

where the value of the property obtained during the commission of the scheduled

offence exceeds shillings five thousand, the minimum sentence imposable is five years

D imprisonment;

(iv) it is judicial practice that where in an indictment consisting of several or

many counts, that have attracted convictions, the sentence imposed and assigned to

each count shall be ordered to run concurrently, if such related offences arose out of a

E single transaction, or are part and parcel of a single plan.

Case Information

Appeal dismissed. F

Osward, for the respondent.

[zJDz]Judgment

Katiti, J.: Indicted and prosecuted, before Shinyanga District Court was Elias s/o

Joakim, herein to be called the appellant, facing two counts - House breaking c/s 294

(1) of the Penal Code - and Stealing c/s 265 of the Penal Code Cap. 16. At the end G

of the day, the appellant, was found guilty and convicted, as charged and sentenced to

two years imprisonment on first count, and five years imprisonment on 2nd count,

without ordering the same to run, either, concurrently, or consecutively. However,

the H Public Prosecutor, before the above sentence, told the court, that the

Appellant had previous convictions - store breaking and stealing c/s 296 (1) of the

Penal Code Cap. 16 - Criminal Case No. 94/89, and the appellant in mitigation prayed

as follows: I

1992 TLR p222

KATITI J

A I pray for leniency. I pray that, my other sentence I am currently serving, be

considered in sentencing me. This is all.

The trial and sentencing magistrate, directed as follows: B

It is further ordered, that as a 2nd offender, and because he was sentenced to

six years imprisonment, in the previous conviction, these sentences shall be served

consecutively, the resultant effect, being he shall serve a total of seven (7) years

imprisonment. C

The appellant aggrieved, has appealed against conviction, contending that the quality

and quantity of the evidence, at hand, did not prove the charge preferred beyond

reasonable doubt. While the sufficiency and quality of evidence is to be tested, too, to

D be visited is the aspect of sentence, that was meted out, or should have been meted

out, to the appellant.

The facts of the case, significantly speak for themselves thus. On the morning of

18/7/1989, PW.1 Justina d/o Mazinge, left for work after locking her house. When E

she came back at 5 p.m., same day, she was welcomed back by the doors, that were

open and ajar. Her count of her properties, disclosed that properties including glasses,

plates, spoons, electric iron, handbag, etc. valued at shs 23,885/=, had been stolen

therefrom.

The obvious question was, and now, is who broke into this house, and stole. The F

Prosecutor, produced PW.2 Zacharia s/o Maganga and PW.4 Kelvin s/o Lumbeli, both

aged twelve and seven years of age, respectively, and who after a successful voire dire

test, gave evidence on oath. PW.3 Zacharia s/o Maganga, narrating how he saw the G

appellant entering the complainants house, at about 2 p.m. has this to say:

The accused that day, came and called Kelvin, who he sent for cigarettes. He

gave him money. Kelvin went for cigarettes. When he left, I saw the accused enter

Justina's house H by the door leading to the annex rooms. He went and kept for

long. About 1/2 an hour, later on, I saw him come out carrying sack full of things, on

his shoulders. He came to the place I was, put his luggage down and told me, that, I

should tell Kelvin, to keep cigarettes I he had sent for, as he was in hurry, and he

could collect them, after he sent his luggage. He wanted to

1992 TLR p223

KATITI J

A take his luggage and go. I told him, see Kelvin was coming from afar.

It is not timely and opportune at this juncture, to hear from PW.4 Kelvin s/o Lumbeli,

who picks therefrom, and tells us thus:

B Sometime last week, I remember I saw Elias pass with an empty sack. He went

to the direction of the machine. He later came again, and stopped where we had been

playing. He stopped there, and asked me to go for cigarettes. When I came back, I

found him with a sack, which now was no longer empty, but full of things. When he

saw me from a C distance, he put it on the ground, and came running for the

cigarettes before he went back for his luggage and he hurriedly vanished away with

it.

With this and such evidence, was the defence that, the appellant was at 2 p.m. with

D DW.3 Mama Dina, who had invited him for food. However DW.3 while

conceding, the appellant went to her, she denied she had invited him for food, and

added that he only stayed there, for two minutes. The appellant also added, he had

been attending E meeting at the oil mill, which DW.4 Yusufu Leonard the oil mill

chief clerk discounted, saying that, the appellant had been sacked as an employee

long before 18/7/1989, and could not therefore attend any meeting, and that in any

case, there was no such meeting, on that day at all. F

With such evidence, the trial court found PW.2 and PW.4 credible, establishing that

it was the appellant, who broke into the complainants dwelling house, and stole, and

hence the conviction. The appellant is complainingly attacking the trial Magistrate,

for relying on the evidence of children of tender years - PW.2 and PW.4 to convict

him. G The appellant seeks, that the evidence by PW.2 Zacharia s/o Maganga and

PW.4 Kelvin s/o Lumbeli, be discounted because of their tender ages.

With a lot of respect, what we wish is not always the right thing, or even legal -

wishes are not horse rides. The course of action, that has to be taken, as and when a

child of H tender years (child of, or, below the apparent age of fourteen years, - see

Section 127 (5) of the Evidence Act) has to give evidence, is not just wished, but

dictated by Section 127 (2) of the Evidence Act 1967. That is, under the above

subsection, a child of tender years may be sworn, if he understands the nature of oath,

or may give evidence I unsworn,

1992 TLR p224

KATITI J

if he has sufficient intelligence, and understands the duty of telling the truth, so that

it A should in my view follow that, competency in so far as the child of tender years,

is concerned, is not a matter of age, but of understanding. And to crown it all, the

appellant is worth learning, that the trial Court, may even competently rely on the

testimony by a child of tender years, when such child of tender years, has given such

B testimony on the side of the prosecution, to convict the accused person, if it is fully

satisfied, that the child is telling nothing but the truth, and has warned itself, of the

danger of acting on such evidence, in the absence of corroboration. And where a child

of tender years, gives evidence sworn after a successful voire dire test, and that he C

understands the nature of oath, his evidence so given, is as good as that of an adult,

and it is treated that way, and such evidence may only require corroboration, if it is

accomplice evidence, or is such evidence which as a matter of practice or requirement

of law, corroboration is necessary. D

In this case, PW.2 Zacharia Maganga and PW.4 Kelvin s/ Lumbeli, gave evidence

sworn, after a successful voire dire test, that, they knew the nature of oath, and each

ones evidence, is as good as that of any adult. If, Justina d/o Mazinge left her house

locked, and she came back and found broken into, and goods stolen, and if PW.2 E

saw the appellant entering and later coming out with a sack full of things, a sack that

was also seen by PW.4, with the appellant's alibi that he had been at the meeting, and

or that he had been invited by Mama Dina all denied, and smashed by the appellant's

witnesses, the conclusion reached by the trial Magistrate, that it was the appellant

who F broke into the house, and stole, is as sound as granite, and gives no room for

successful attack. In the final analysis, the convictions on both counts, are upheld.

The last point, to be dealt with in this case, is the aspect of sentence. The trial court,

G imposed two years imprisonment, on first count, and five years imprisonment on

2nd count - no more, no less. But there followed another order, that the sentence of

six years imprisonment, the appellant was serving upon previous conviction, run

consecutively with the above sentence, according to the trial court. "the resultant H

effect being, he shall serve a total of seven years imprisonment." May I say, with

attendant due respect, that the above is provokingly attracting comments - first - on

the legality of sentence on first count - two - the trial magistrate failure to show

whether such sentences shall run concurrently or consecutively with the sentence on

second count, and - three - the propriety of ordering sentences based on separate

indictments I and trials, to run

1992 TLR p225

KATITI J

consecutively, and - 4 - the arithmetical or additional accuracy. I shall hereunder deal

A with each, of the above aspects.

The legality, or illegality, of sentence on the first count cannot pass without

corrective comment. It is trite law, under the Minimum Sentences Act. 1972, section

5 that where the value of property obtained during the commission of the scheduled

offence, (1st B schedule), exceeds five thousand shillings, the minimum sentence

imposable, is five years imprisonment. In this case, the appellant stole property worth

Shs. 23,885/=. Similarly, where the accused has a previously been convicted of

scheduled offence, in the proceeding five years as the appellant had been, (store -

breaking and stealing Cr. C Case No. 94/89) and is subsequently convicted of another

scheduled offence, the minimum sentence imposable, is five years imprisonment. It

would seem to me, that the appellant was legally and sentence wise, cornered, with

neither front, nor rear, through which to escape, the Minimum sentence of five years

imprisonment. The illegal D sentence of two years imprisonment is therefore set

aside, and five years imprisonment imposed, instead.

Again, the trial Magistrate had left the sentences, on counts (1) and (2) hanging, may

be in the parlance, of Section 36 of the Penal Code Cap. 16 "the same to be executed

E after the expiration of the former sentence, unless the Court directs, that, it shall be

executed concurrently, with the former sentence, or any part thereof, they were to be

presumed run consecutively - See Ali Mohamed v R. [1968] HCD No. 63. But the

judicial approach has been that, where in an indictment consisting of several, or many

counts, the trial court convicts the accused on such several or many counts, it has to

F impose and assign each count, that attracted conviction, a separate sentence, and

shall indicate therein, whether the sentences are to run concurrently, or

consecutively, and not leave them hanging. As it was pertinently observed by the

Court of Appeal in the case G of Hussein T. Kabeka and Others [1980] T.L.R. 267 -

"A sentencing Court will never go wrong, if on deciding to pass concurrent terms of

imprisonment, on an offender, it inflicts sentence on each offence and then directs

the sentence so passed to run concurrently, and no more." H

When to decide whether a concurrent, or consecutive sentence, should be imposed is

in my view not a gordian know it is not with respect, an inextricable difficulty. The

judicial view and approach, on when concurrent sentences, should be ordered, is

abundantly and oversupplied in the case law. Citing a few examples, will be as

graphic, as will I suffice in my view. In the case of Musa s/o Bakari

1992 TLR p226

KATITI J

v R. [1968] H.C.D. No. 239, it was held that, it was universal practice, in the A

absence of good reason to the contrary, to order the sentence for related offences, of

house breaking and stealing, to run concurrently, or where the charged counts,

attracting convictions, arose out of single transaction, or are part and parcel of the

same transaction, or are part and parcel of single plan of campaign concurrent

sentences B will be ordered - see Jayantilar Laiji Kara Shah v R. [1968] H.C.D. No.

328, Ray Raphael Lameck v R. [1967] H.C.D. 190 27 and Joseph A. Kashamakula v R.

[1970] H.C.D. No. 201, Just to mention a few. Thus, it is the judicial approach, that

where in an indictment, consisting several or many counts, that have attracted C

convictions, the sentence imposed and assigned to each count, shall be ordered to run

concurrently, if such charged offences are related, arose but of single transaction, or

are part and parcel of a single plan. That is, without rule, or order, to the contrary, a

good working rule is that consecutive sentences, should not be passed for offences

arising D out of the same transaction, as the sum total sentence resulting therefrom,

may often prove to be too great considering the circumstances of the case. - See R. v

Kaktercum [1972] 56 Cr. App. R. 298. In this case, house - breaking and stealing, are

so related, and interconnected operationally, that the sentences should have been

ordered to run E concurrently. For obvious reasons therefore, I hereby confirm the

sentence on 2nd count, and further order, that the sentences on the two counts, shall

run concurrently.

And finally, I verily confess, that I would at this juncture have rested in peace, if it F

were not for the trial Magistrate order, that the previous sentence of six years earned,

in a different trial, run consecutively, with the present sentence, which is five years

imprison, but computing it have the "effect of being, he shall serve a total of seven G

(7) years imprisonment". I come, to this aspect, not because the order was made, and

it had to be made in view of the appellants prayers for judicial intervention, otherwise

the command by the provisions of section 36 of the Penal Code take its course, but

more, I come in because, if as the trial Magistrate ordered, the sentences imposed in

H different trials, should indeed be served, consecutively, in the parlance of section

36 of the Penal Code - each sentence to be executed after the expiration of the former

sentence they add up to eleven years imprisonment. As I understand, consecutive

sentences are accumulative, one sentence being served after the other, - they add up I

arithmetically. If this be so and I am convicted it is, six years imprisonment earned in

the previous trial,

1992 TLR p227

and five years imprisonment earned in this case, served consecutively can only A

add-up to eleven years imprisonment, and not seven years imprisonment, as the trial

Magistrate erroneously added up. With the correction, the appellant shall serve the

two sentence consecutively - eleven years imprisonment. The appeal is dismissed,

convictions and sentences upheld. B

Appeal dismissed.

1992 TLR p227

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