19881122 TZHC Mbeya

IN 7E. HIGH COURT OF TANZANIA . AT IBEYA C(X!IC CRIMES CASE NO , 5 OF 19J7 (ifbeya Economic Cr. Case 3032 of 1936) Ti RTUBLIC versus 1. ABAS WILSON NBILA 2 AT1{ANA33 MLAI:JILE J U D G E M Z N T. The tro accused. persons, namely ÀBAS WILSON LBILA, standing as the 1st accused, and one ATIiANASI BLAJILE, standind as the 2nd accused, are jointly char:ed with the econoruuic offence of c:tt1e theft contrary to paragraph 12(1) of, the First Schedule and 5. 59(2), both of Economic and Organized Crime Control Act 1984, it being alleged that on 10th daj of August 1986, at Upagarna Village, within the District and Region of Hbeya, the two stole 86 heals of cattle, valued at shs.4,OOOJ ' . the property of MIKIDAD MEILA, They have all deruied the chare. Thereupon, the prosecution, led., at first by Mrs Malcuru, and later by Mr. Lundu, larned Stbe Attorneys, have called seve:i witnesses to. establish the chare. They are the P.1.1, one J0101 CHALANILA, a peasant resident of Upagama village and son of the conrolainant, Mikidadi. Mbila, the P.1.2, one MIKIDADI LLBILA, the complainant, resident of Tagama vil1ae; the P.1.3, one ASiLRI s/o AMANI, a herdsbjr resident of Upagama village; the P.1.4, one RAJABU 3/0 WIANYAGIE, the village chairman for Upagarila village; the P.15, one No.C,1905 P/C ROBERT, a police officer of Rujwa Police Post, the F.I.6, one No.B,2)00 SgL ISMAIL, a police officer than stationed at ihujewa Police Post and the P,T;1,7, one STILN /o Mk.PONYA, then the herdsman of the lost cattle then 119 for the complainant, one MIKIDADI o/O NBILAO As for the defence, the two accused persons have c;iven their defence on oath and three witnesses have been called in their defence. They are the D.1.i, one JAILO /o MLAJILS, a peasant resident of Ukwaheri village and uterine young brother of the 2nd accused's father, one Samuel; tKe D.4.2, one DAHOK /O IhIATIJINGA, a raaident. of Utengu1e- Usongu, and cloan friend of the 2nd accused; and the •. .3, one WILSON IhBILA, ooUtd II4 OTO'OX JOAOU pOtitIOO OtO. 11C t1ZO oOTTOJ TUJOc1Jj Ott. (pesnool.9 st) IITT oq 04.vwjrtja o. q p . onxsttt uoeq pUtt otq. o. tçpx000U OL1 'oxttz13r pu:' 3Utt io'cuw 00TITTA et. JO JcJOSflO O19 o'ttt fl0J ptt? 'jTTCLial XOCISU) Otto JO )Jfld oqq. quxnq UTAUtt JO pUSUOOU SUM SUq pps '99/0/6 t:o 'PTtiw o,xUZU'[ put' s13uT otto 'uewet -tTiw oip o!11. olq. tttVpi JOtfl oq. rqir .xocIsUJ ottO ./q uoqt'oci JV1.PUct sii 't'TTqN UOS1j °"° •a: t'tt '9/9/ P° y9/L16 uooMq.t'q pu000 "02tItA oq. jo S4aGJJa quowdoeAop etq ut YLOOTct tricuinqs U uBeq pUt oti suosjed rtoj ZVOM2 St? 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JO JOtflUj = 3 3 W It was then on 10/8/86, when the 1st accused was ai large that the theft of caltle of the said riikid-adi is said to have been committed by the two accused persons in the company of five other unknown persons. It is also undisputed that on the material day of the incident, the one STPI1h I14TONYA was the herdsman who was grazing such cattle. It is he, supported by the P. J3, one ASRI f4iANI, who has claimed, in particular, that it is the 1st accused, while assisted by others, who actually drove away the cattle in çuestion. That comes out throughou-t the evidence as adduced on the prosecution side. On the other hand, the involvement of the 2nd accused appears to be o.bscuxe. He does not fieature throughout as having been either seen by both the said Asheri Ainani and the said Stephen hatonya, nor mentioned by the said Matonya to other villagers, including the village obairnan (P , W.4), to whom the said Iatonya is said to have first reported the incident. For instance, i0he evidence of the P7.3 one Asheri Ilmani, that of the five persons he saw driving away the heads of caltie, he was able to identify only one person, the 1st accused, one Abas libila who happened to go closer to him in order to drink water from the other side of N'honga river, as by then the others were seen with the cattle at a distance of about 4001,11 from him. And when reporting to the village chairman (P.w.4), the said Tatonya (P.q.7), is said to have stated that he could identify only one person, that is, one Abas W. Mbila, (1st accused). The 2nd accused's involvement in the commission of the offence becomes the more suspect in the light of his defence of alibi, wherer he has alleged and fully supported by the D1.1, one Jailos lUajile, and D.W.2, one Damson s/o hwamjinga, that on the day of the incident he was at tJtengule. Also undisputed is the fact that on 10th August 1986, some heads of cattle beloi ing to one Jfikidadi ibila, (P.TT,2) disappeared overnight from the grazing ground but got recovered the following day at a distant place, called Tuiya, within sajuic iipag2ma vi11a8e They are said to have had their mouths tied up to prevent -them from bleating aloud. Sixty five such heads of cattle are said to have been so recovered. Such, were, according to the defence case as testified by the 1st accused and fully corroborated by the h all the 1eads of cattle the P.W,2 had by then, the elanation being that when such cattle were divided between the PT.2 and in June 1986, the P.W,2 took 68 of them, while the D.3 took 58, and that prior to the death of their late father, from when they inherited such he-4s of cattle, neither the P1.2 nor the DJ.3 had an7 cattle of is =4= I•t is however, the version for the prosecution tiu6 when the father of the P.142 and DW3 died., in 19787 the F0W02 had 43 heads of cattle and their father loft behind for them 90 heads of cnti1e These were then divided between the two, each getting 45 cattle They however continued, to keep 'them at the same kraal, Then, in 'the words of the PW.2, his cattle multiplied, amouiiting to 86 mature heads of cattle at the time of the alleged theft, It is further the evidence of the PW2 1 quite at variance with that for the defence that t.ie three heads of cattle he sold to one hohamed sometime in August 1986, were so sold after such incident of theft. On this it is the evidence of the D.W3 that such three heads of cattle were reported io have been sold to the said Nohamed some few days before by the h117, one Stephen Natonya, when questioned by the villagere on 11J8J86, after recovering the 65 heads of cattle. The issues 'that call for the determination of this court and upon which the gentlemen lay members were required to give their opinions can be stated as follows: (a) Iere the hoods of cattle belonging to one hIKIDADI MBILA stolen Qfl 10/8/86? ('b) If so, now many were the? (c) Who stole such heads of cattle? .Aftcr summing up to the two gentlemen lay members the two have returned a unanimous verdict that the two accused persons are the ones who stole 86 herds of cattle belonging' to the said IiIILIIOADI MBILA, as charged They have dismissed all the evidence for the datence to the extent it goes to dissociate the accuseds of the offence as afranie up. Undoubtedly, though in terms of su'b.(3) of 0;16 o'the Economic and 0r. Crime Control Act 1984 as amended. by Act i'Io.12 of 1987, a presiding judge is not bound 'by'the opinions of lav members on the q-ues-tion of guilt of an accused porson, 'shore such oginion is unani- mous and prooceds from the minds of enlightened and experienced people like the geirbleaio:. ]ay members who have been sittin,':; with me in this case, it will certainly he for very compelling reasons that the presiding judge will find, himself duty-bound. 'to so dissociate himself with them. = 5= That is exactly, with great respect to the gerrtlemen lay members, the position I find myself in this case, as I shall demonstrate 9hortly he reinaft er. I proposa to deal with the three issues seratim • Now starting with the issue as to whether ondho alleged day CH the incident, the heads of cattle in question were actually stolen O not, it is on the evidence before this court, m,r considered opinifl that the:sr were not at all stolen. Ther, were, rather deliberately let to disappear overii.;ht by the hrdoman, the FW.7, out of a prmedi- tated plan mainly to I)lunge the 1st accused into prob1erris, I say so for the following reasons. Starting with the evidence of the PW.7 1 one Stephen ]tato:iya, his appears to me to be very unrei..iable one. He • started by telling this court that at about 10 a,rn, while he was out grazing the cattle in question the number of which, bb claims he did not lcaow, there appeared first one man who told him that he was looking 'or buffaloes, while others were hidden. That means in simple term, that he was by then isiable to see the other persons. is that turned out not to msko sense, he changed his version and claimed that as such one man was approaching him the others were walking behind him jnA he could see them. Then as ho was questioned by such ran the others, being six in nujiLer turned in and ordered him to sit dcmii after which he got tied in, It was the 1st accused who tied him up las two arms with a tree bulk, (myoto), frontwise. .10 has further claimed, that the other person he recognized was the 2nd accused and the eJdes± son of one Ken1e, resident of Njenjo, an area a bit away from TJpagama. He was then blindfolded with a piece of cloth by the 1st accused. Then while blindfolded, he was taken by two persons into the forest at Lasiti area. : has further claimod.that such group of persons were armed with ;uns: the 1st accused carrying a short';un while the 2nd accused carried v rifle, jie has further claimed, that he was led into the forest h,r two persons of whom one was of Sukuia tribe and the other of 3an : iu tribe, he has further claimed that he recognized the tribes of the two persons who escorted him as being of Jangu and Sukuma tribes by the languces they used in talking to hire as he le'ew both languages, and has maintained that both -the 1st and 2nd açcuseds were among the persons who drove cw;r the cattle. Such claim on the identification of the two persons who are said to hive escorted him into the forest get shattered when one considers his later claims on cross examination by the learned defence counsel when he claimed that he could not talk both Sukuma and Sangu languages and that the two persons who escorted him talked to him in Kiowahili. Then there is his claim that when he had been left out in the forest and had managed to untie himself • he ran back to the village where he first reported the incident to the village chairman (P.W4) who then sent out the hWl, one Jonas, to inform the h2 at hujewa. He has further added that such pieces to of cloth and tree bulk used to tie aim were handed tile police. He went on to sar that on that day he sustained bruises and ell1ng on his arm Yet according to the evidence of the ih.H4 7 it appears that when he reported. the incident to him,the PHL7 mentioned only the 1st accused as being the only person he recognized among such group of alleged invaders. There was no mention of the 2nd accused or - eldest son of one 1 - GELE.It is also to be noted that there was 1, no mention of the alleged firearms nor by whom the same were said to have been carried, The FH4 denied to have ever seen any bruises or m'ielling cii the PW,7 T arms adding that 7 he reported to have been blindfolded and tied on his arms with wônrou-b pieces of cloth which could easily be tornout, whica then the FJ,( produced and later took them with him to His place of residence Such test i- mony of the P.H4 is implicitly corroborated, by the P.T-i.5, the police officer who inves- tigated. -the case, for such witness has made no reference to ouch alleged piece of cloth and tree-bulk used to blind- fold and tie the arms of the I fH7, as having ever beeti received by the police as enhibi -ts, nor to have ever isued any PP3 for the PW7's alleged injuries. Then there is the Ph 7 .2 1 s testimony that he was told by the Pa1,7 among other things, that i:e had been badly beaten by such cattle rustlers and that it Was a tukume. man who had he- lped to untie him, 'Ihat,howevar, has been denied b 'the :f107 So one of the twr witacases must have told lies, how taking such inconsistences together as to what is said -to have happeand to the PH,7 when the cattle in c;uestion are alleged to have been stolen by the accuseds while assisted by five other persona, it becomes clear to me that none of the alleed note of blindfolding and tying the P,W7 's arms did ever thee since. It is all fictic:n Neither, 13 it true that any of the accused :ersons was ever , seen carrying any firearm at such grazing grounds as alleged. For according to tue iW01, it appears that tne i W.7 2 wh)n reporting the incident to the village chairman, he only talked of bdits having carried, three fireaxns but could not tell what kind of such fireams were, and who carried them. Furthermore, contrary to the testimOny of both the P,W3 and the P7, before this court, the 13.3, one Asheri Amani, is on record, in his statement recorded by the police and tendered before this court as Ththibit Del, to have categorically stated that the 1st accused, one Àbas Kbila, who was the only one he recognized, had on that day carried only a stick4 It was further his testimony that anong the alleged six persons who were seen driving away the cattle in ciuestion only one of them had a shortgun. There is no where a rifle, or any other gun being mentioneth It is, however, to be noted that the shortgun that was produced before this court as an exhibit was followed by the D.N6, o. 13,2900 Sgt. Ismail, at the home of the 2nd accusedts father, upon being informed by the P.W.2 that the father of the 2nd accused had a shortgun which he claimed had been used by the 2nd acc US odrcaten the P0W.7 when the alleged theft of cattle was comiitted 0 At the sane time as noted earlier, the young brother of the father of the 2nd accused, one Jailos lIlajile (D.w1) was also by then owning a rifle gun, and the two brotS.iers were all residents of tikwà.heri vi11ae By then the 1st accused was then living at such village and had his sister married by the 2nd. accused. Hence the impli- cation of the 2nd accused as well, by the P72, in the alleged theft and the subsecruent claim that both the 1st and 2nd acouseds were carrying fireams: a shortun and a rifle on such dy of the incident. That then was the starting point of the allegations that the 1st accused was carrying a shortgun while the 2nd accused carried a rifle. Also casting doubt is the number of persons alleged to have been involved in such alleged raid. It is for instance, the evidence of the P.W7 one Stephen ratonya, that seven persons were i:wolved. Of such persons, five of them including the two accused persons are said to. have been the ones uho drove away the heads of cattle after th PW,7 had been blindfolded, with his arms tied up, hen two of the seven invaders led him into the forest up to LK3ITI point, where he was left alone and the two invaders wont away. Yet it is the evidence of the Pi.3, one Amani Asheri that when he saw the heads of cattl" boi:.g driven away 3 = six persons were so driving them. That is what °Jio told the police in his statement admitted as Exhibit P.1. In such statement there is no mention as to whether any other person was seen running with •a bag to join the six persons whom he said were -rithin his sight. But then in his testimony before this court, the P.'J.3 has claimed that he at first saw ±ive persons including the two accuseds of whom he Was able to identify only the 1st accused. It was then irhen he was cross-examined by counsel for the accuseds that he added that shortlr after seeing such five persons lie si another man running to join them. We are then left to ask ourselves where Was the seventh person, who Was in the group of two who are said to have escorted the P0,7 into the forest up to the point called. LAITI. Then looking at the P,jT,3's recorded statement Exhibit D.l. We find his statement to the effect that he was warned by the 1st accuzed not to tell anybody about their act of drivin: asay such heads of cattle lest those heads of cattle grated by the PW.3 should be stolen by them as well. Yat in his testimony before this court the P.W.3, stated, among other things, that when the 1st accused went close to him and on being asked where they were taking such heads of cattle so driven away the 1st accused told him that they were transfering them to Nenje. village and did not tell him anything more, he therefore believed the 1st accused. It therefore follows that the warning alleged to have been made by the 1st accused was not at all made. Another aspect of suspect on thecredi'oility of the P.W.3's evidence is his assertion that he was able to identify the heads of cattle as belonging to one Hikidacli (PW.2) by outs on their ears. This sounds incredible, wher. one considers his stateent that he s4 such heads of cattle from a distance of 400m. It is in my judgement, practi- / cally imoossikle to tell such identification marks from the alleged distances All the foregoing, considered, my suspicion that the alleged theft could have been a deliberately worked out plan to plunge particularly the 1st accused into trouble out of a grudge hiarbourodby one Gasper N. Mbila, is the more precipitated by the evidence of the Pl1.7, that in the moriüng of the same day of the incident tho said Gasper Mbila called at the kraal where the P h.7 Was keeping the cattle in question 4 That place is said to have been quite distant from TJpngama vilLage residential nrea I r, =9= I am therefore left to wonder, what did he go Kv2y for? Yet it is the same Gasper hbila who is said to have accused the 1st accused before the ILU, Mbeya, as one of those who impeded development efforts in the villeie, he also accused the ls± accused of having pzt his puddy on fire and he is 'the very person who is said to hive assaulted the Dh.3 on 3/8/80. Next, I come to consider •t:..e qiestion as to how many heads of cattle got stolen or, at least, actually disappeared, as alleged. It has been alleged. for the prosecution and the some has been accepted by the gentlemen members that 86 heads of cattle did so disappear on the day of the incident but 65 of theta were recovered the following day, leaving a net loss of 21 heads of cattle. Nitli due respect to the gentlemen lay members, I am enclined to -take the contrary view and agree with the defence version of the story that only 65 heads of cattle were involved all of which got recovered. I take such view for the following reasons. I take the P..W.2's claim that on the material day of the incident 86 heads of cattle disapoa.red as unacceptable for being incredible, First, take the p.W.2t 5 evidence that before their late father died in 1978 he had hi. s own heads of cattle artiount ing to 43, And when their father diel he left behind a total of 90 heads of cattle which were then divided between him and the DW,3, each aetting Q heads of cattle but continued to keep them together at the same kraal until 1986, when the D.W3 took away his and sent them to Ukwaheri village. It was then the evidence of the P.02 that his heads of cattle had then ever since 1978 multiplied to 86 mature heads of cattle, and had 13 1ves kept at his residential area at Upagerna village. Yet a bit of mathematical analysis shows that, adding up his alleged own 43 heads of cattle to his share of 4 heads of cattle received from the lot of 90 heads of cattle said to have been inherited from their late father, in 1978, after 1ho death of their fatl,:er the P.N.2 had a -total of 3 heads of cattle0 how then could it be said that such heads of cattle had multiplied to 86 instead of saying that they had decreased. I-To doubt 'er the P,.2r s claiz that in'1978 he had a total of i8 heads of cattle, true, then such heads of cattle would. have multiplied much more. One would ±hrefore have expected to hear as to wiiy they had not multiplied to a greater number, but instead the number went down, main, taking the evidence of the P.W.1, one Jonas Chalamila whom the P 'h2 claimed to have also known the heads of cattle he had before the division of cattle iiherited from their 13 late father, told this court thh; the P.1h2 had 22 heads of such cattle4 Why the diffenoe 9 Further, while the F,h2 de:.Aed to have received 68 heads of cattle as his share out of the inherited 1s of cattle, his sony the F.hi admitted that the PAh2 had received such heads of cattle, Then there is the PI.2's claim that when the 36 mature heads of cattle disappeared he had 13 calves looked after at his home. That has been shattered by the P'144, the village chairman, who denied that the P.W2 ever kept such 13 calves at his home, arguing lich it could not have possibly been so, because the mature ones were being kept at a very distant area 4 Then there is the evidence of the .hl that by then there were only 4 calves being kept and grazed at the P.W.2 's home. All that then amounts to nothing but a frame up. On the other hand, the story by the 1st accused, one Abas Wilson Mbila as fully supported by his father the D.f.3, sounds very reasonable and more convincing. It has, in fact, been also admitted by the. P.W.2, the complainant, one Mikidadi iibi1a, that when such heads of cattle were divided between himself and the D.l31 the lot accused was also present. According to both the 1st accused and the D.W.3 the division was made sometime in June 1936. It is then their evidence that by then there were 126 heads of cattle to be divided between the P.l'1.2 and the DW.3. Itach took 50 heads of cattle. However, the PN.2 being the eldest son jii the family was further left with 10 more heads of cattle to enable meet any possible claims on their deceased father's estate. So in effect the P. h2 took with him 68 heads of cattle, which were then left under the care of tAl P.h7, one Stephen Matonya. The two denied that the P.J.2 had ever had any other heads of cattle of his own other than the 68 shared out as his share of inheritance out of their late father's estate. There is then the evidence that out of such heads of cattle three of -them were in the very month of August 1986, sold to one Mohamed Mrisho, of thengule. Although it is the claim of the Ph.1.2 that he sold the same sometime in August 1986, but after the alleged theft had been committed, it is the evidence of the 1st accused and the ]h.W.3 that such three heads acre sold before such alleged theft. To that effect it is further the evicie:ice of ihc F.W.4 that when the 6 heads of cattle came out of the bush and were recovered on 11th August 1986, the P.Ir,7, who was the herdsman did, not bring to their attention that any heads of cattle were missing. hith such state of evidence in mind ? I find the e1anation given by the defence on the number of heads of cattle the F.W.2 aually had on the da; of the incident more reasonable and convincing. 11 = It is, therefore, my finding that on the day of the incident the PW.2 had only 61 heads of cle which disappeared on 10th August 1986, but Were recovered on 11th August 1986, According to the PW04 ten of such heads of cattle and not all, had their months tied with pieces of cloth. Now accepting as I do that only 65 heads of cattle disappeared on 10th August 1986, ana all of them were recovered as they came out of the bush on their own on 11th August 1986, I pose and ask iyse1f, were it true that who...ever took such heads o' cattle had an intention to permanently deprive the owner of the same, how come that they were all let free when th*;;ere able even to have the mouths of some of them tied up 9 This then goes to further cement my view that such heads of cattle were not actually ao1en as alleged but must have been deliberately out of a worked out plan., left to stray in order to provide the ground for false allegations against the 1st accused in particular, and one Casper Mbila, must have been the person behind such plan. In the circmnstanoes, I, have no hesitation in finding the two accuseds not guilty of the offence charged and acquit them accordingly of such offence. Delivered in open Court at Itheya,' this 22nd day of November 1988, in the presence of Lunu, learned State Attorney and the accuseds, their defence counuel, i:Ir. Bateya'ega, having been reported on leaven r,J ,A I.11'IAIKASU JUOG 22/11/88. 1. Mr. Thomas Bangu (scL) Lay member 2, Mr. Martin Mgedzi (Std,) Lay member,