Musa and Ngozi v. R., Crim. App. 148-M-70; 11/6/70; Onyiuke, J.

Musa and Ngozi v. R., Crim. App. 148-M-70; 11/6/70; Onyiuke, J.

The appellant were convicted of stealing by persons in public service c/s 270 of the Penal Code. 1^st appellant, a juvenile, was sentenced to 2 years imprisonment and the 2^nd appellant, an adult, was sentenced to 2 years imprisonment and the 2^nd appellant, an adult, was sentenced to 2 years imprisonment and 24 strokes. The appellants were employed in the Electrical & Mechanical Division of the Ministry of Communications, Transport & Labour, Mwanza. When the appellants decided to steal, they approached the watchman to facilitate their access to the yard and bribed him in order to secure his cooperation. On 21^st November the appellants told the watchman that they proposed to visit the yard at 9 p. m that day. The watchman contacted the police. Two policemen were detailed to the yard to lie in wait for the appellants. When the appellants emerged the watchman opened the gate for them. They entered the yard. When they returned to the gate they were challenged and searched by the policemen. Three spanners and a torch light were found with the 1^st appellant. Both appellants were taken to the police station. Later the 2^nd appellant accompanied by the 1^st appellant took the policemen to the spot from which they hauled the items over the wall. The Ministry spokemen testified that “there was no procedure which would require the accused to go back to duty after office hours”. However there was some discrepancies in the testimony given by the watchman and the policemen with respect to discovery of some items. On appeal to the High Court the defence agreed that (a) the magistrate failed to direct his mind to the material contradictions in the evidence of the two policemen, (b) The Magistrate having disbelieved the watchman’s testimony in respect of how the starter and the propeller shaft came to be discovered, erred in relying on the remainder of this witnesses’ testimony, (c) the magistrate misdirected himself in concluding that the appellants were the one who pointed out the place where the exhibits were found; and (d) the magistrate failed to apply the provisions of the Children and Young Persons Ordinance, Cap. 13 Supplement 56 in the interest of the appellant.

            Held: - (1) “I agree that the purpose of pointing out contradictions in the testimony tendered by the prosecution is to weaken their case and to create doubts as to the guilt of an accused person. The effect of such contradictions would depend on their seriousness and materiality. In this case 5 witnesses tendered evidence as to where and how the stolen items were recovered ….. it was only ….. the watchman who testified that the items were found  in the possession of the appellants and were recovered from them. The position then is that all prosecution witnesses concurred that it was the appellants who pointed out the place….. the appellants admitted in their evidence that the items were recovered behind of the wall of the yart. Furthermore, there were other factors which pointed irresistibly to the guilt of the appellants. In these circumstances the guilt of the appellants. In those circumstances the discrepancies or contradictions in the testimony tendered by the prosecution were neither material nor capable of raising any doubt as to the guilt of the appellants.

The rejection of part of the testimony of the watchman does into necessarily make his whole testimony suspect, or discredited……. (2) “For purposes of sentence the 1^st appellant must be regarded as a person under 16 years. Section 2 of Children and Young Person Ordinance, Cap. 13 define a young person as a person who is 12 years of age or upwards and under the age of 16 years ….. I am of the opinion that the purpose of s. 22(2) of Cap. 13 are to make prison sentence an inappropriate and unsuitable method of dealing with a juvenile delinquent. It permits the imposition of prison sentence, only as a last resort. I think that there must be something on record to show that the sentencing court has considered the provisions of s. 22(2) of Cap. 13 and its reasons for imposing a prison sentence instead of some other method authorized by law. In the instant case there is nothing on record to show that the learned magistrate considered the provisions of s. 22(2) of Cap. 13 and it cannot be assumed that he did so …..” (3) Only appeal against sentence by 1^st appellant allowed.