kufakulala kajendaje vs republic 2001 tzca 26 2 april 2001

IN THE COURT OF APPi^l OF T a NZANI a AT K3£Y a (CORf»K: " " ------ * — — ------ J . a . , LUBUVA, J.A. And kUGAKINGIFU, J . a . ) ------- ------------ --------- ------------------------ m. -4m . w ■ ■■ ■t. f ' . M P - ‘ ^ ^ • C M * INAL APPEAL NO. 95 OF 2000 BETWEEN KUFAKUL,;L A K A J E N D ^ E ...... . .............. .iPPELLANT -mND THE IWPU,;LIC ........*....... . ............. RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Kbeya) (Hon. Nr. Justice Mehome) Dated 5th April, 1994 in Criminal Appeal No. 5 of 1994 J U D G M E N T LUBUVA, J.A. ; This is a third appeal. It arises from j.gurusi Prin>ary Court Criminal Case No. 161 of 1993, where, the appellant and one Sofia Mwanangumila, who has not appealed, were charged with and convicted of cattle theft contrary to sections 265 and 285 of the Penal Cole. They were sentenced to a term of five years imprisonment. They successfully appealed to the District Court. The Director of Puolic Prosecutions was aggrieved, hence, the appeal to the High Court. At the High Court, the appellant, Kufakulalu Kajendcije and the other, Sofia Fwanangumila, were respectively referred tc as the first and second respondents. The High Court (I-chone, J.) 2 heard the appeal in the absence of the respondents who were not served. The summonses were returned with the endorsement that the respondents had escaped after their acquittal on appeal to the District O u r t . On the basis of the endorsement on the summonses, the learned jud(re was satisfied that it was proper to proceed v/ith the hearing of the appeal in the absence of the respondents because the respondents had escaped after their successful apoeal in the District Court, So, upon hearing the State Attorney on behalf of the Director of Public Prosecutions, the appeal was allowed and the order of acquittal v/as set aside. The sencence was enhanced to eight years imprisonment against each of the respondents. In this appeal, the appellant is represented by Mr. Mkumioe, learned advocate, while the respondent/Repuolic, is represented by Mr, Fiulokozi, learned Senior State Attorney* Mr. Mkumbe had filed a £ ■~-ur - point memorandum of appeal. However, when the appeal was called on for hearing, he opted to argue two points and abnaoned the rest of trie grounds. These are, first, that there was no sufficient evidence to sustain the appellant's conviction. Secondly, that a wrong procedure was followed when the judge proceeded to hear the appeal in the absence of the appellant and enhance the sentence. Regarding the absence of The appellant when the appeal was heard, he said it was a gross irregularity on the part of the learned judge. In the first place, he said the provisions of section 34 (4) "■£ the Magistrates' Courts Act, 1984 /Hereinafter*to be referred to as the are very clear. Under the provisions of tnis section, the court is required • /3 3 "to order notices to be published in the newspaper three tiires before proceeding with the hearing of the appeal if the appellant could not be served, he stressed. '.Secondly, he also submitted tnat the judge fell into another grave error in enhancing the sentence to eight years imprisonment without giving the appellant an opportunity of being hoard. This, he said a mandatory requirement under section 29 (a) (i) of the Act* In the circumstauoe, he submitted, the proceedings were a nullity. Responding to this submission, Fir. Fulokozi, learned Senior State Attorney, conceded that it was wrong for the learned judge in not complying with the mandatory provisions of section 29 (a) (i) of the Act. He said failure to give the appellant an opportunity of being heard before the enhancement of sentence rendered the r)roccedings a nullity. We are in full agreement with the learned advocate and the Senior State attorney. The provisions of section 2.9 (a) (i) of the Act unambiguously clear. They provide to the effect that no conviction or conviction and sentence shall be substituted for an order of the district court substituting an acquittal for a conviction and no sentence shall be enhanced unless the accused or convicted person, as the case may be, shall have first been given an opportunity of jeing heard. The learned judge took the view that as the summonses were returned unserved, the appellant had escaped after the acquittal. Therefore he found it proper to proceed with the hearing of the- appeal and enhance the sentence. This was clearly wrong. The fact that the summonses were returned 4 unserved with the endorsement by the village Chairman was, with respect, sufficient warning signal, as ic were, to the judge that the previsions of the law still had not been complied. To proceed .vith the hearing of the appe-al and enchancing the sentence as was done in this case, fatally affected the proceedings. Even granted that the appellant had escaped as the judge held, it is inconceivable that, that was taken as justification for non compliance with the mandatory requirement of section 29 (a) (i) of the Act. On this ground, and as both Mr. Mkumbe and Mr. Mulokozi, learned Attorneys are agreed, we are satisfied that the proceedings before the High Court were a nullity as a result of not complying with the' mandatory provisions of section 29 (a) (i) of the Magistrates1 Counts Act, 1984, As the proceedings were a nullity, this ground alone is sufficient to dispose of this appeal. However, we could go further. Even if we were minded to accept that the proceedings were proper, we do not think that the evidence was sufficient to sustain the c nvicti'n. Mr. Kkumoe was firmly of the view that the 26 head f cattle f~und at the kraal -f the appellant were n ;t conclusively identified by PW1 and PW2. He said, PW1 merely gave a description ~f a general nature. In support of the conviction, Mr. Mulokozi strongly urged that tne cattle bore the characteristic Sangu cut marks in --neofthe ears. He also said that after the 26 head of cattle left had different distinctive Sukuma marks imprinted on one of the legs. 5 Nt* Mulok''\ziTs submission is n~t sup-ported by the evidence on record. The evidence rf PW1 is c -ntradicted by the evidence c.5129 P.C. Benedict (PW4), another prosecution witness. At the trial in the Prircsy Court, in cr.-ss exandnati:.-nt he said: ^KLalamikaji aliweza kuwatairbua n g ’ombe kv/a alama mbalimbali, n g ’on.be walioachv/a kv/a mshitakiwa 1st accused hawana t'fauti na n g ’ombe wa mlalamikaji na chap a ni ya kisukuma na mlalamikaji aliweza kuzitair.bua n g fombe hizo kwa chapa na kv/a r k-.ngx, (Su2) Another witness, Francis s/o Gonelamenda,^Village Chairman, also stated; ::Ng'ombe ha-' waliweza ku^ndoka na- askari walikuv/a na alama irkato katikati ya masikio upnnde wa kulia ulibakia na ngo-zi katikati. Na upande wa kushoto ngozi ilitolewa katikati yote, na n g ’ombe wali-'kuv/a wamebekia v/alikuv/a n g ’<~-mbe ambazo zina alama hiy> hiyo.:: Clearly, this evidence by the investigating officer materially contradicts the evidence of P¥1 and Ptf2. It sh ws that the 1C head of cattle, the subject of the charge, did not bear the marks as described by the complainant (PVl) and P W 2 . On the contrary, this evidence shows that all the cattle left at the kraal of the appellant and the 18 taken f r _m the kraal, had the same :iSukumo-‘ marks of identificatien. These, ore serious discrepancies in a criminal charge. In the circumstances, we agree v/ith Mr. Mkumbe that the prosecution can hardly be said to hove .r~ved the case bey "nd all re as '-noble doubt that the cattle f -und v/ith the appellant belonged to PW1. ♦.. /6 6 For these reasons, we allow the appeal, quash the c n v i c t i o n and set aside the sentence, as the appellant is cut of bail, we iroke no '>rde.r as to his release. With regard t ? Sofia Mwonangunila, we are aware that he did not appeal. The appeal against hiir, by the Direct~r of Public Prosecutions was consolidated and dealt with together with that of the appellant. In the High O u r t , the appeal against him suffered the some irregularities as the appellant. As Sofia Kwnnangumila did not appeal, in ■"rder f rr us to rectify the irregularity, v;e shall invoke the court’s povrer of revision under section 4 (3) of the Appellate Jurisdiction Act, 1979, suo motu. Accordingly, proceedings and judgment in High Court (PC) Criminal Appeal No. 5 of 1994 in respect •-f Sofia Mwanangumila are revised by setting aside the decision of 5,4,1994, quash the conviction and sentence ogainst ^ is to be released fr^ir, the custody forthwith unless otherwise lav/fully held. It is so ordered* DATED at la.^Y^ this 2nd day .-f April, 2001, A, S. L. Ramadhani JUjTICE Ox*1 iiPPii/iL D , Z , Lubuva JUoTICE OF APP ijaL K, S. K, Lugakingira JUJTICE OF^APPLri, I certify that this is a true copy of the original ( A. cl Vtyarija ) DEPUTY REGISTRAR