Axwesso Tlatlaa v Marietha Leonard

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI (PC) CRIMINAL APPEAL NO. 9735 OF 2024 (Arising from Criminal Appeal No. 19 of2023 of District Court of Mbulu at Mbulu and originating from Criminal Case No. 103 of2023 of Endagikot Primary Court) AXWESO TLATLAA................................................................................ APPELLANT VERSUS MARIETHA LEONARD..................................................................... RESPONDENT JUDGMENT " J1 * 2^ July and 1^ October, 2Q24 MIRINDO, J.: Marietha Leonard and Axwesso Tlatlaa are neighbours in Landa Village within Mbulu District. Sometime before 2022 Marietha Leonard used to lease her farm to Axwesso Tlatlaa. Nevertheless, from 2022 Marietha Leonard stopped leasing the farm to Axwesso Tlatlaa and in November, 2022, she planted maize. She brought a charge of maize theft against Axwesso Tlatlaa, before Endagikot Primary Court. The evidence before the primary court was that on 26 May, 2023, Axwesso Tlatlaa was seen harvesting maize from the farm that was once leased to him. It was the child of Marietha Leonard, one Daati Tluway who was tipped that some people were harvesting maize on the farm. The child conveyed that information to her. She went to the farm and found Axwesso Tlatlaa along with other persons harvesting the maize. She successfully charged Axwesso Tlatlaa, 1 with maize theft before Endagikot Primary Court. The valuation report tendered in evidence indicated that the maize plot harvested was to the tune of fifteen sacks of maize worth of 1,390,900/= TZS. The appellant was ordered to pay a fine of 50,000/= TZS or to suffer a prison term of one month, and to compensate the respondent the amount stated in the valuation report. Before the High Court, Axwesso Tlatlaa, is an appellant having unsuccessfully appealed to Mbulu District Court. The appeal is on three grounds and it was argued by way of written submissions. The complaint in the first and second grounds of appeai is that the conviction is against the weight of evidence. The plausibility of the Marietha Leonard's (the respondent) charge of maize theft has been questioned before this Court. The appellant argued that he was neither arrested with fifteen sacks of maize nor were those sacks of maize tendered in court. The respondent's reply submission is that the appellate District Court properly evaluated the evidence and arrived at a fair judgment. This is a second appeal on a matter originating from Endagikot Primary Court. As opposed to the Court of Appeal, the powers of the High Court on a second appeal from a primary court are very broad in terms of section 29 (a) of the Magistrates' Courts Act [Cap 11 RE 2019]. Section 29 (a) provides in part that in its appellate jurisdiction, the High Court has power to 2 to take or to order some other court to take and certify additional evidence and, whether additional evidence is taken or not, to confirm, reverse, amend or vary in any manner the decision or order appealed against...so however that the decision or order as altered shall not be in excess of the jurisdiction of the court of first instance.. Section 29 (c) empowers the High Court, in the exercise of its appellate jurisdiction: (c) to make any other decision or order which might have been made by the court of first instance. Speaking of these provisions in Archard Muhandiki v Asteria Mulwani and Thobias Tegamaisho, Civil Appeal 11 of 1992, the Court of Appeal noted with particular emphasis the import of section 29 (c): ...In fact section 29 (c) gives the High Court more powers that this Court under section 4 (2) of the Appellate Jurisdiction Act, 1979...The Court of Appeal can only do what the court from which the appeal comes could have done. But the High Court can do what the original court i.e. the Primary Court, and not the District Court, could have done. In light of the provisions of section 29 (a) and (c) of the Magistrates' Courts Act, the High Court has in essence the power of rehearing notwithstanding the approach taken by an appellate District Court. With these legal principles in mind, I proceed to re-evaluate the evidence on record and arrive at fresh findings. The charge of theft is largely based on the direct evidence of three complainant's witnesses. 3 The testimony of the complainant is that when her son Daati Tluway informed him that her farm was being harvested, she went to her farm, saw the appellant harvesting the maize. Other than asserting that the appellant chased her away, she gave no further details. In response to questions of clarification asked by the Court, she stated that the appellant was harvesting the farm along with his children. There were five of them. The second witness Daati Tluway testified, in response to questions of clarification asked by the court, that "he" saw the appellant on the farm. He was wearing a gray T-shirt and black trousers. They were eight of them. The third witness, Mei Tluway testified seeing three persons harvesting maize. The appellant was dressed in a gray T-shirt and black trousers. None of the complainant's witnesses saw the appellant taking the maize from the respondent's farm. The third complainant's witness stated that: Tarehe 26/5/2023, mshatakiwa alivuna shamba letu na kubeba mahindi ambayo alipeleka kwake." There are no details how the appellant carried the maize from the appellant's farm to his compound. There is no evidence of asportation, an essential element of the offence of theft. As correctly argued by the appellant there is no evidence of fifteen sacks of maize because such evidence was never tendered before the trial court It remains to consider the assertion of three complainant's witnesses that they saw the appellant harvesting maize. The extent to which this assertion is probable depends on the credibility of these witnesses. There is some reason to 4 doubt the credibility of the complainant's witnesses and the plausibility of the complainant's charge. There is unexplained silence as to why the complainant and her witnesses did not raise an alarm upon finding the appellant harvesting maize bearing the complainant's account that the respondent chased her away from the farm. In cross-examination, Daati Tluway, conceded that he did not raise an alarm. Why was the appellant not arrested soon after being caught red-handed harvesting the respondent's maize? In explaining the delay, the respondent testified in Kiswahili that: Tarehe 26/5/2023 akapeleka watu wake shambani na kuvuna mahindi yangu. Shahidi wangu aitwaye Petro Nada akampigia simu mtoto wangu aitwaye Daati na kumuuliza, "mbona shamba linavunwa?". Ndipo Daati akanipigia mimi na kunieleza kuwa shamba linavunwa, nikawaambia hali yangu sio nzuri hivyo asinisumbue. Akaja nyumbani na kunieleza tena habari hiyo ndipo nikaenda shambani. Nilipofika shambani nikamkuta mshtakiwa ambaye alinifukuza. Nikamtuma Daati kwenda Ofisi ya kijiji ambapo katibu alikataa kuwazuia wasivune. Tarehe 28/5/2023, nikaenda kwa Katibu aliyeniambia niondoke kwa sababu hajui kinachoendelea. Nikaenda Ofisi ya kata, ambapo sikumkuta Katibu Kata ndipo nikaenda kituo cha Polisi. Mshtakiwa alikamatwa na mgambo tarehe 12/6/2023 na kupelekwa Ofisi ya Upelelezi. Of interest here is the complainant's assertion that she sought the assistance of "Katibu" who declined to support her. She reported the matter to a police station. It appears that both village secretary and ward secretary were unsupportive to the respondent's complaint. On 26/5/2023 a village secretary refused to intervene and 5 prevent the appellant from continuing harvesting maize. On 28/5/2023, ward secretary refused to assist the complainant because he or she knew nothing about the issue. Nothing is said about other local government authorities and the complainant neighbours. Nothing is said about the village chairperson, ten-cell leader or ward counsellor. It is not clear why the respondent did not immediately report the incident to police after failing to obtain the support of village and ward secretaries. A valuation report of the damage of the respondent farm was written on behalf of Mbulu Town Council on 5/6/2023 and addressed to Mbulu Police Post. It is not clear when the valuation report was received at Mbulu Police Station and why the appellant was only arrested on 12/6/2023. It has been repeatedly held by the Court of Appeal that inexplicable delay in arresting a familiar or well-known suspect is a sufficient ground to doubt the credibility of prosecution witnesses. This principle has been articulated in Kulwa s/o Mwakajape v R, Criminal Appeal 35 of 2009, Hassan Mawazo v R, Criminal Appeal 11 of 2014, and Abubakar Hamisi and Two Others v R, Criminal Appeal 87 of 2004. In Hassan Mawazo v R, Criminal Appeal 11 of 2014, the unexplained delay of two days to arrest a well-known suspect was considered to be one of the grounds to discredit the testimony of prosecution witnesses. In these circumstances, I doubt the credibility of the respondent's witnesses regarding the charge of maize theft. 6 The valuation report points to the damage of the respondent's farm and is not by itself evidence of theft. The respondent is at liberty to pursue a civil action if she can mount sufficient evidence in that course of action. For these reasons, I allow the appeal and set aside the concurrent findings by both Endagikot Primary Court and Mbulu District Court. DATED at BABATI this 2nd day of September, 2024 f.m^Frindo JUDGE COURT: Judgment delivered in chambers this 10th day of October 2024 in the presence of the appellant in person and respondent personal representative Christina Awe Male. B/C. William Makori (RMA) present. Right of appeal explained. ton F.M. MIRINDO JUDGE 7