20180924 TZHC Mwanza

. ".:.'_, IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HIGH COURT CRIMINAL APPEAL NO. 250 OF 2017 {Arising from Criminal Case No. 363/2016 of Tarime District Court before Hon. M.B. Mpaze - RM) MAGIGE MAGIGE @ KIMITO ....................................... APPELLANT VERSUS THE REPUBLIC ....................................................... RESPONDENT JUDGMENT BUKUKU, J.: Magige Magige @ Kimito, the appellant herein, and two others, Nyamahemba Wambura @ Chawali and Mniko Chacha Mniko, were arraigned before the District Court of Ta rime in Musoma Region, where they were charged with the offence of cattle theft c/s. 268( 1) and (3) of the Penal Code Cap 16 R.E. 2002. At the end of the evidence in support of the charge, when the prosecution closed its case, the trial court found that, a case is not made out against the accused, Nyamahemba, who was the first accused. For that matter, in terms of section 230 of the Criminal Procedure Act Cap 20 R.E. 2002, the said Nyamahemba, was acquitted. 1 The trial court having heard the complainant and the accused persons and their witnesses and the evidence, fourid the third accused, Mniko Chacha (who by then was DW2) to have no case to answer hence he was also acquitted as per section 235(1) of the Criminal Procedure Act (supra), and the appellant herein, upon conviction, he was sentenced to serve five years imprisonment. Aggrieved by both. the conviction and sentence, he has now appealed to this court. Brief background facts of the case were that, on 03/12/2015 at around 23.00 hours at Nkende Street within Tarime District, thieves, stormed at the homestead of PWl Magabe Magancha and stole six (6) heads of cattle. He raised an alarm, and people gathered at his house. Having been told what had transpired, the said people began tracking the stolen cattle on that same night. They followed the foot prints up to Nyankunguru Village where, at a certain homestead, (allegedly that of the appellant), the foot prints could no longer be seen. According to PWl, who is the owner of the stolen cattle, they managed to get the hamlet chairman of Nyankunguru, and together with other villagers, they managed to search the houses of the appellant, who by then was not in homestead, and in the third house, they found two heads of cattle, which allegedly belonged to PWl. 2 According to PWl, he identified his cattle since they had marks. One was red in colour and had a mark of ''IMS"on his hump (nundu) and had stretches on the arm. The second one had white and black dots. PWl further told the court that, when they enquired about the four remaining heads of cattle, they were told that they were grazing. The hamlet chairman sent someone to collect the said cattle, who then brought them. PWl further told the court that, they then went to the VEO Office, entered into a written agreement and he was given back his cattle and they left. In his defence, the appellant denied committing the offence. He told the court that, on 12/12/2016 he left for Mugumu to look for his cattle, until 13/12/2016. While there, he was informed by his wife that, some people (wafuata nyayo) came to their homestead looking for stolen cattle. According to the appellant, he decided to return home that same night but found those people had already left and had taken his properties. On 14/12/2016, he made a follow up on his properties and in the process, he was arrested by police from Nyamwage, who took him to Somani police, and on the following day he was interrogated, and on 15/5/2016, he was arraigned in court. 3 '·· All along, the appellant claimed that, the conflict is due to a Land Dispute which existed, between himself and Nyamahemba. He claimed that, the case was fabricated against him. When the appeal was called on for hearing, the appellant appeared in person and was not represented. On the other hand, Ms. Mwanahawa Changali, Learned State Attorney, appeared for the respondent/Republic. Her stance was that, they were opposing the appeal. In his Memorandum of Appeal, the appellant lodged nine (9) grounds of appeal. Noticeably however, the contents of his grounds of appeal are to a larger extent, fall on two main grounds. The first is that, the case against him was not proved beyond reasonable doubt. It is also his contention that, the trial court wrongly invoked the application of the doctrine of recent possession. Of course, I will also consider one more complaint that, his defence was not considered by the trial court. At the hearing of the appeal, the appellant did not have much to say other than emphasizing that he did not steal the cattle. Ms. Changali chose to converse the appellant's appeal generally, but focused on the two points I have pin pointed above. 4 To begin with, Ms. Changali submitted that, they support the conviction and sentence because, the appellant was found guilty according to the doctrine of recent possession. Ms. Changali argued that, the appellant herein, ran away after seeing the victim and other people, and that, according to the evidence, recent procession was proved beyond reasonable doubt as per the testimony of PWl who told the court that, his cattle were stolen at night and when he traced them, he found there were at the appellant's premises. She further submitted that, having searched at the appellant's house, they found two of PWl's cattle which he identified them due to their mark, before the chairman who witnessed the search, together with PW2. The cows were tendered as Exhibit Pl and therefore, it is obvious that, the doctrine of recent possession was proved beyond reasonable doubt, citing the case of Juma Bunyige V.R; Criminal Appeal No. 33/2011 (unreported). For that matter, she prayed that, the appeal be dismissed. In his reply, the appellant had nothing to add. There is no gainsaying that, the appeal before me stands or falls on the appellant's complaint that, the doctrine of recent possession was not correctly invoked to convict him, and that, the trial court found that the 5 • Ii •·' prosecution has proved its case beyond reasonable doubt hence convicted him accordingly. In disposing of this appeal, I have found it convenient to start with the issue of the doctrine of recent possession. The law governing the successful invocation of this doctrine is well settled. Applicability of this doctrine was succinctly summarized in the case of Joseph Mkumbwa and Another V. Republic; Criminal Appeal .No. 94 of 2007 (CAT - unreported) in which the court held:- ''For the doctrine to apply as a basis of conviction, it must be proved first that the property was found with the suspect, second, that the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant, and lastly, that the stolen thing constitutes the subject of the charge against the accused(emphasis mine)'~ This is the position of the law as of today so far. In the case of Ally Mbelwa V. Republic; Criminal Appeal No. 109 of 2015 (CAT- Unreported) the Court stated as follows:- . 6 ,, • • "The doctrine can only be invoked if it is shown through evidence to the satisfaction of the court, inter alia/ the place where the alleged stolen property was retrieved, in whose possession was found, the complainant to positively identify the property by special marks as opposed to bare assertions/~ In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the alleged stolen property, and only discredited evidence on the same cannot suffice, no matter from how many witnesses. In the instance case, are the above mentioned conditions stated in the above cited cases found in the evidence adduced by the prosecution witnesses? I think no. I will explain. It is not disputed that, there is no evidence tendered to show that PWl the complainant had described his stolen cattle before he saw them at Nyamwigura village, allegedly at the appellant's third house. The law is that, properties suspected to have been found in the possession of accused persons should be identified by the complainant conclusively. In a criminal charge, it is not enough to give a generalized description of property. And a 7 - ,., proper identification in court is that, the complainant should describe the property before it is shown to him so that when it is eventually tendered and the description confirmed, it· can be clear to the court whether or not the identification was impeccable. It is obvious in this particular case that, when PWl first testified in court, this is what he said: "....... The said cow is red and have a mark of IMS {nundu) and there is stretches on arm {sic). The second cow had white and black dots'~ This is after they had seen the two cows. But when PWl was recalled to testify, this is what he told the court:- "The said cow is one is read {sic) it has mark on his right hand IMS, the second mark I cuted {sic) three times, the Z,d ear I cuted {sic) twice the back right leg had four stretch marks, on the neck there are two stretch mark {sic). The second cow had black and white dots, I cuted {sic) the ear 8 f • ,~ Thereafter he prayed to tender as evidence the said two cows. Obviously, PWl's description of the marks on the two cows came after he had seen them. There is also the issue of the search conducted into the homestead of the appellant. According to PWl and PW2, a search was conducted, and into the third house of the accused, they found the two heads of cattle. PWl further told the court that:- "VEO asked where are the cows of the accused, Nyamahemba said at grazing {sic} the chairman sent one person and went to collect them they were brought We went up to VEO Office we make {sic} writing agreement {sic} I was given my cows and left'~· One wonders, if at all there was an agreement in writing, why then was it not tendered in court? In the absence of a seizure certificate, the search and the seizure of the two bulls remains doubtful. After all, when the search was conducted, the appellant was not in the homestead. Who then signed the certificate if any? The said hamlet chairman who allegedly witnessed the search was not called to testify. 9 vi There is also the submission of Ms. Changali who forcefully argued that the doctrine of recent possession was proved beyond reasonable doubt, citing the case of Juma Bunyige V.R (supra). I have read the said case. In fact, in that case, the doctrine of recent possession was not proved and that was why the appeal was allowed. In view of the deficiencies in the prosecution's case as outlined herein, I am constrained to find that, this is a fit case for me to interfere with the findings of the trial court. I therefore allow the appeal by the appellant, quash the conviction and set aside the sentence imposed on him. I order his immediate release from prison unless held there, for other lawful cause. Order accordingly. A. JUDGE Delivered at Mwariza, This 24th September, 2018. 10