JUDGMENT Aloyce Njovu Others vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA PC. CRIMINAL APPEAL NO. 34907 OF 2024 (Arising from Songea District Court in Criminal Appeal No. 24731 of 2024, Original Criminal Case No. 179 of 2024 of Songea District Primary Court at Maposeni) ALOYCE NJOZI .…………………….………………….….……………… 1ST APPELLANT VASCO NUNGU ……………………….……….….……………………… 2ND APPELLANT IGNAS MBAWA ….…………………………….….……………………… 3RD APPELLANT CHARLES MBAWA …………………………….….……………………… 4TH APPELLANT ALFONCE FLOWN ……..…………………………...….………………… 5TH APPELLANT VERSUS FRANCE ALOYCE KOMBA ………….……………..……………………. RESPONDENT JUDGMENT 26th March & 08th April, 2025. KAWISHE, J.: The above-named appellants were arraigned before the Primary Court of Songea at Maposeni (trial court) with the offence of theft contrary 1 to section 258(1) and 265 of the Penal Code (Cap. 16, R.E 2022). They denied the allegation, however after trial they were found guilty, convicted and sentenced to a sentence of conditional discharge for a term of three months. Apart from that sentence, each one was ordered to pay TZS. 500,000.00 as compensation to the respondent. Aggrieved with the decision of the trial court, the appellants preferred an appeal before the District Court of Songea (first appellate court) which upheld the sentence given to the appellants and enhanced an order for compensation from TZS. 500,000.00 to TZS. 640,000.00 for each appellant. Still dissatisfied with the decision of the first appellate court, the appellants have approached this court by way of appeal. In their petition of appeal, they have six grounds of appeal reproduced as follows: 1. That, the first appellate court erred in law and fact by upholding the trial court’s judgment while the case was not proved beyond reasonable doubt, and holding that the contradiction does not go to the root of the case while the said contradiction goes to the root of the case and prejudices the appellants’ rights. 2. That, the trial magistrate erred in law and fact by deciding the case while the prosecution failed to call the witness who lead direct investigatory evidence as to how both accused were apprehended in connection with the crime at hand. 2 3. That, the first appellate erred in law and fact by deciding the case while the issue of visual identification taking into consideration circumstance and scene of crime was weak in identification of the same. 4. That, the first appellate court erred in law and fact by deciding that the appellants were directly involved in the commission of crime due to the presence at the crime scene while the appellants expressed that they were at the crime scene for the purpose of rescuing the victims which was not wrong under the eyes. 5. That, the first appellate court erred in law and fact by ordering the appellants to pay compensation at the tune of Tshs.640,000/= while the appellants were not the one who stolen. 6. That, the trial magistrate erred in law and fact by deciding the matter contrary to the law. The factual background giving rise to the trial of the appellants and subsequently, the decision from which this appeal arose, may be briefly stated as follows: In early morning hours of 18th July, 2024, the respondent (PW1) was informed that, his motor vehicle which was used in transporting his maize has incurred an accident at Mwelule area within Songea District. He went at the scene of the accident and found the appellants taking the bags of maize from his motor vehicle. He also noticed that, there were other motor vehicle accessories which were missing including the battery. According to the testimony given by PW2 (Deo Ndunguru), who was among the victims in the accident, on 18th July, 2024, at around 5:00 hours 3 the appellants went at the area where the accident occurred and before rescuing them from the accident, they started taking maize bags and a total of 40 bags of maize were taken. PW3 (Nicholaus Ndunguru) told the trial court that, on the fateful day he was informed about the occurrence of the accident. To his dismay, after arriving at the area of the incident he saw the fourth and fifth respondents taking bags of maize from the motor vehicle which was involved in the accident. When he asked them why they were taking the bags of maize, they replied that they were ordered by the chairman to take the maize since they paid money to send the victim of the accident to the hospital. When put to their defence, the appellants did not dispute on the occurrence of the accident. They also admitted that they went at the place of the incidence and helped the victims. The appellants denied to have stolen the bags of maize and added that the bags of maize were taken by the respondent himself after sending the victims to the hospital. As stated earlier herein above, having scrupulously evaluated the evidence on record the trial court found the appellants guilt of the offence 4 they stood charged with. Subsequently, they were convicted and sentenced accordingly. Before this court, the appellants had the legal service of Mr. Raphael Matola, learned counsel whereas the respondent appeared in person. By the parties’ consent, the hearing of the appeal took the form of written submission. At the outset, the appellants’ counsel informed this court that the first, second, third and fourth grounds of appeal will be argued jointly and the fifth and sixth grounds of appeal will be argued separately. In his submission in respect to the 1st, 2nd, 3rd & 4th grounds of appeal, it was the appellants’ counsel view that the respondent failed to prove the charge leveled against the appellants to the required standard. He supported his views by pinpointing the weaknesses of the prosecution testimonies that; firstly, there was no prove that 40 bags of maize worthy TZS. 3,200,00.00 were stolen by the appellants, there was no evidence to prove the number of bags of maize which were loaded in the motor vehicle. Secondly, there was no evidence to prove that the stolen bags of maize were found to be seen in the hands of the appellants. Thirdly, the first appellate court pointed out that the appellant was the key witness 5 while it is not correct. Fourthly, the mere presence of the appellants at the scene of crime does not in itself prove that they committed the offence they stood charged with. He added that, the key witness’s (PW2) evidence was not credible since the incident occurred at around 5:00 hours when it was still night time and he failed to explain on how he identified the appellants taking into consideration that there were more than 50 people at the scene of the accident. He pointed further that, while PW2 told the trial court that, Ima was among the accused person but there was no a person in that name charged with such offence. Submitting on the fifth ground of appeal, the appellants’ counsel argued that, the first appellate court ordered for the appellants to pay compensation to the respondent while there was no proof of the value of the stolen maize. He contended that, the respondent’s evidence failed to prove the value of the stolen maize and the lower court just used the value of the maize which was stated in the charge which was not proved by the respondent. He added that, the lower courts misdirected themselves in 6 ordering for compensation while the respondent in his evidence never prayed for an order for compensation. Arguing on the sixth ground of appeal, the appellants’ counsel contended that the trial court’s proceedings were tainted with irregularities since the appellant’s were not given a right to cross examine witnesses and their co-accused. He amplified that, accused persons have the right cross examine witnesses and their co-accused and short of that makes the appellants’ denial of the right to be heard which is the constitutional right. Lastly, he prayed for the whole proceedings and decision of the lower court to be quashed and set aside. In his reply, the respondent supported the findings of the lower courts. He averred that the findings of the lower courts were firmly grounded on proper evaluation of the evidence presented by the parties. He added that, all the elements of the offence of theft contrary to the provisions of 258(1) and 265 of the Penal Code (supra) were proved by the respondent and his witnesses to the standard set by the law. To bolster his stance, he referred to the case of DPP vs. Shishir Shaya Msingh, 7 (Criminal Appeal No. 141 of 2021) [2022] TZCA 357 (16 June 2022) TanzLII and Jonas Nkize vs. The Republic (1992) TLR 213 (HC). Replying to the fifth ground of appeal, the respondent admitted that, there was no evidence given before the trial court to prove the value of the stolen bags of maize and he never prayed for the payment of compensation. However, he argued that, granting an order for compensation is vested within the jurisdiction of the court. He added that, the lower court after evaluating the available evidence and looking at the value of the stolen bags of maize as stated in the charge, it had the power to asses the amount of loss incurred by the respondent and proceed to give an order for compensation. In respect to the sixth ground of appeal, the respondent argued that, the trial court proceedings clearly show that the appellants were accorded with the right to be heard. That they were availed with the right to be heard, they were given the right to cross examine all witnesses paraded during trial. He added that, the right to cross examine witnesses is not an automatic right but is granted by the court where the evidence of one accused person implicates the other. He cited the case of Mattaka & 8 Others vs. Republic [1971] E.A 495. The respondent submitted that, in this appeal there is no any procedural irregularity to render the trial court’s proceedings and decision nullity. There was no rejoinder submission made by the appellants as ordered by the court. Having heard and followed the submission from both parties, this court is set to determine the merit or otherwise of the appeal. In my view, the whole grounds of appeal and submissions made by the parties entails that there are four major issues which need a keen determination by this court. The first issue is whether the appellants were accorded with the right to be heard. The second issue is on whether the appellants were properly identified. The third issue is on whether the charge leveled against the appellants was proved to the required standard. The fourth issue is whether the compensation orders given by the lower courts were proper. In addressing these issues, the court will have determined all the grounds of appeal. Starting with the first issue on whether the appellants were accorded with the right to be heard, it is the appellants’ claim that, their right to be 9 heard was infringed. They were denied the right to cross examine the witnesses and their co-accused. The respondent argued that, the appellants were accorded with the right to cross examine witnesses but the right to cross examine co-accused is not an automatic right. It was argued by the respondent that the appellants were required to request for the leave of the court first. From the competing submissions of the parties, this court has to visit the records of the trial court to ascertain on what happened during trail before the trial court. I have scanned the trial court’s proceedings and found that the right to cross examine the prosecution witnesses was fully availed to the appellants. However, such right was not availed to the co-accused. The right to cross examine co-accused has been discussed in a number of decisions. In the case of Mariki and Others vs. Republic [2016] TZCA 70 (TanzLII) wherein the Court of Appeal referred with approval the defunct Court of Appeal for Eastern Africa in Mattaka and Others v. R [1971] E.A 495 which observed that; ''It is well established that where accused person gives evidence that is adverse to a co-accused, the co-accused has a right to cross- examination (See, Ndania Karuki v. R (1945) 12 EA.CA 84 and Edward Msengi v. R (1956) 23 EA.CA. 553)” The Court went on stating that: 10 ''It is well established that where an accused person gives evidence, that evidence may be taken into consideration against a co-accused, just like any other evidence, evidence which is inconsistent with that of the co-accused may be just as injurious to his case as evidence which expressly seeks to implicate him, should we think, give rise to a right of cross examination ………………… that where an accused wishes to cross- examine his co-accused, he should be permitted to do so as of right, subject of course, to the overriding power of the court to exclude irrelevant or repetitive questions" I have considered the circumstances of the case at hand, in which the appellants’ testimonies never implicated each other and find their right to cross examine each other was not denied. Thus, the right to cross examine was not denied to the appellants. Consequently, the first issue is answered in the affirmative. Dwelling on the second issue, whether the appellants were well identified, I have gone through the first appellate court’s original records and observed that, the same was thoroughly discussed by the court. At the onset, I wish to state categorically that, the issue of identification of the appellants cannot and must not detain much time. The evidence given by the respondent and his witnesses shows clearly that the appellants were properly identified. Even in their testimonies and submission in this court shows that they were present at the scene of the accident. They never 11 denied to be present at the scene of accident. This makes the issue of identification to be not tenable and the second issue is answered in the affirmative. The third issue is on whether the charge leveled against the appellants was proved to the required standard. As I have stated early herein above, this is a second appeal. Therefore, I wish to state categorically that, the second appellate court rarely interferes with the factual findings of the two subordinate courts. This principle was laid down by the Court of Appeal in the case of Director of Public Prosecutions vs. Simon Mashauri (Criminal Appeal No. 394 of 2017) [2019] TZCA 22 (TanzLII). The Court stated: "We wish to preface our decision by stating from the outset that this is a second appeal. It is now settled law that where there are concurrent findings of facts of the two courts below the Court should not under normal circumstances interfere with such concurrent findings of facts. However, if such courts below have misapprehended the substance, nature and quality of such evidence which result into unfair conviction in the interest of justice, the Court may interfere." Also see the case of Director of Public Prosecutions vs. Jaffari Mfaume Kawawa [1981] TLR 149, Joseph Leonard Manyota vs. 12 Republic, Criminal Appeal No. 485 of 2015 and Karim Jaffary vs. Republic, Criminal Appeal No. 412 of 2018 (both unreported) It is the appellants’ complaint that, the respondent failed to prove its case against him. The main basis of their complaints is on the failure of the respondent to prove the number of bags of maize which were loaded in the motor vehicle. That there was no evidence to prove that the stolen bags of maize were found to be seen in the hands of the appellants and the mere presence of the appellants at the scene of crime does not in itself prove that they committed the offence they stood charged with. All these complaints were refuted by the respondent who claimed to have proved his case against the appellants to the required standard of proving a case beyond reasonable doubt. As submitted by both parties, the standard of proof in criminal cases is the proof beyond reasonable doubt. This principle has been stated under section 3(2) (a) of the Evidence Act (Cap. 6, R.E 2022). Also, there is a plethora of decisions reiterating the same, including the case of Jonas Nkize vs. R (1992) TLR 213. Therefore, while being guided by the above 13 principles, I will proceed with the determination of the issue whether the offence was proved to the required standard. On the complaint that there was no proof of the number of bags of maize which were loaded in the motor vehicle, I find this complaint is baseless. The respondent’s complaint before the trial court was on the number of stolen bags and not on the number of bags of maize loaded in the truck, the appellants’ complaints is with no merit. On the complaints that their mere presence at the scene of crime and the stolen bags of maize were not seized in the hands of the appellants, I find the evidence given by the respondent and his witnesses clearly proved that the appellants were seen stealing the bags of maize. Under such circumstances, there was no need of conducting search to find the stolen property while there was direct evidence proving that the appellants were the ones who stole the bags of maize. This stance is supported by the appellants’ defence that their mere presence at the scene of crime does not prove that they stole the alleged bags of maize. The fact that they agreed that they were at the scene of crime as good samaritans connected them to the prosecution witnesses’ testimony that they saw them stealing the bags of maize. According to the trial court’s proceedings, the 1st and 3rd 14 appellants did not cross examine PW1 on that testimony. This means that they agreed with his testimony to have seen them stealing. The legal position on failure to cross-examine, was clearly stated by the Court of Appeal in the case of George Maili Kemboge vs Republic (Criminal Appeal No. 327 of 2013) [2014] TZCA 203 (30 October 2014) where it cited with approval the case of Damian Ruhele vs Republic (Criminal Appeal No. 501 of 2007) [2012] TZCA 269 (1 March 2012) where the Court stated that: “It is trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence.” Also see the case Athanas Kibogoyo vs R Criminal Appeal No. 88 of 1992 (unreported) with the same principle. Guided by the Court of Appeal’s decision, the 1st and 3rd appellants agreed with the PW1’s testimony. The 2nd, 4th and 5th appellants cross examined the witness. His response was that he found them at the scene of crime stealing the bags of maize. The witness testified that he tried to obstruct them and introduced himself as the owner of the maize they were stealing. He replied to the trial court’s query that he found all the five appellants at the scene of crime a fact which was not denied by the appellants. That PW1 15 called his conductor who narrated to him who stole the maize. His testimony was corroborated by that of PW2 who was an eye witness. He saw the appellants stealing the 40 bags of maize. He also narrated the incident to PW1. They claimed that, PW1’s testimony was hearsay. In my view, they could not dent PW1’s testimony who told the court that he found them stealing and obstructed them. That, the victims of the accident were taken to hospital. In addition, the PW2 testified that DW4, the fourth appellant lent him some to take the driver to the hospital. The 4th appellant did not deny that. Also, PW3 testified to have seen the 4th appellant assisting the 5th appellant in carrying bags of maize. Upon inquiry they responded that they had lent some money to the driver to be taken to the hospital thus, they were getting back their money by taking the maize. The evidence of PW2 an eye witness was corroborated by PW1 and PW3 in proving that the appellants stole the bags of maize. The fourth issue is whether the compensation orders given by the lower courts were proper. The appellants lamented that, the first appellate court erred in law to increase the compensation without considering that there was no evidence adduced by the prosecution side to prove the value of the bags of maize purported to be stolen. That he took the price 16 mentioned on the charge sheet which was TShs. 3,200,000/= and enhance the compensation from TShs. 500,000/= each to TShs. 640,000/= while it was not proved. The respondent replied that, the first appellate court was correct to re-evaluate the evidence and come out with its findings as it did. In his view, the issue before the trial court was to prove theft as he did. The issue of compensation is at the discretion of the court. As stated earlier, the appellants did not deny to have been at the scene of crime. They aided the victims as they claimed. They lent them money some money which suggests that they took time in the scene of accident. Yet, PW1, PW2 and PW3 testified to have seen them at the scene of crime a fact which they did not disputed. This defeats the complaints on identification. Thus, they are linked to the offence they were charged with. I am not oblivious of the value of the stolen maize was stated in the charge sheet, for the interest of substantive justice, I agree with the decision of the first appellate court in enhancing the compensation to recover the value of the bags stolen at the tune of Tshs. 3,200,000/- since it was proved that the appellants were seen stealing the bags of maize. Re- evaluating the evidence and coming up with a different finding is a settled position laid down by the Court of Appeal in various cases. For instance, in 17 the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) the Court observed that: “However, sitting as first appellate Court we are guided by rule 36(1) (a) of the Rules which empowers the Court to re-appraise the evidence on the record and draw its own inferences and findings of fact subject, having regard to the fact that the trial court had the advantage of watching and assessing the witnesses as they gave evidence.” See also Jamal A. Tamim vs Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012 (unreported) and Martha Wejja vs Attorney General and Another [1982] TLR 35. Give the position of the Court of Appeal in re-evaluating evidence the first appellate court, I find that the first appellate court was justified to come up with its finding to that extent. As a result, the issue of an order for compensation is answered in the affirmative. Consequently, the appeal is unmeritorious and is hereby dismissed. It is so ordered. DATED and DELIVERED at SONGEA this 08th day of April, 2025. 18 E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Raphael Matola learned advocate for the appellants and in the presence of the respondent in person and in the presence of the 1st, 2nd, 3rd and 4th appellants and in the absence of the 5th appellant. Right of appeal explained. E. L. KAWISHE JUDGE 08/04/2025 19