Magige and Another v. Republic Crim. App. 236-M-70; 29/7/70; Onyike J.

Magige and Another v. Republic Crim. App. 236-M-70; 29/7/70; Onyike J.

The two appellants, members of the Police Force were convicted of breaking into a building at the New Alimasi Prospect Plant, Mwadui, with intent to commit a felony. The guarding of the plant and offices was the sole responsibility of the Tanzanian Police. Evidence was given by a night watchman guarding the administration offices. Heard four banging’s at the plant, whom he identified as the appellants who were supposed to be on guard. He stated that he did not go to find out because; it was not part of his area to guard. The trial magistrate found that the plant had been broken into by the appellants or with their knowledge. On appeal the credibility of the night watchman was challenged on the ground that he neither raised an alarm nor reported what he saw; that he either heard nothing or was a party to the crime.

            Held: (1) “This appeal calls for a clear appreciation of the principles which should govern an appellate court in an appeal on a question which should govern an appellate court in an appeal on a question of fact and the credibility of a witness is essentially a question of fact”. (2) An appellate court should not disturb the finding of fact by the trial court, based on verbal testimony, unless it is manifestly unreasonable. (WATT v. THOMAS [1947] 176 L.T.R. 498, Rex v. Karia Mawji [1949] 16 EACA 117 Daudi Mwabusilo v. John Mwakiwila [1967] H.C.D. 59).” “Where, however, the matter turns on proper inferences to be drawn from established facts or relates to issues which are susceptible of being dealt with wholly by argument the appellate court is in as good a position as the trial court and can more readily set aside the judgment of the trial court (See Platt J. in JUMA ALIBAX SAID v. R. [1967] H.C.D. 383 and Lord Robson in KHOO SIT HOH v. SIM THEAN TOUGH [1912] A.C.

            (3) “Turning to the instant case, I hold that I am bound by the learned magistrate’s view of the credibility of P.W. 5, based, as it was, on the witness’s verbal testimony. Was there anything inherently improbable in that story? It is said that the witness should have raised an alarm or rushed to the scene or reported the matter if he really heard and saw what he testified to. The simple answer to this was furnished by the witness himself. The section where the incident happened was barred to him and was in the assured security of police guards. It would be unreasonable to expect the witness to suspect the Police and to go to investigate. He held his peace and left it to the police to do their job. Unfortunately the Police guards turned bandits.” (4) That the appellants were police officers on duty was an aggravating factor and the sentence of 15 months imprisonment was appropriate. (5) Appeal dismissed.