THE DIRECTOR OF PUBLIC PROSECUTIONS VS THEOBALD TLUWAY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 7531 OF 2024 (Originating from District Court of Babati in Criminal Case No. 5 of 2023) THE DIRECTOR OF PUBLIC PROSECUTIONS.......................... APPELLANT VERSUS THEOBALD TLUWAY.........................................................1st RESPONDENT FAUSTINE AMMA.............................................................2nd RESPONDENT SAMWEL DANIEL.............................................................3rd RESPONDENT JOHN WILLIAM................................................................4™ RESPONDENT HAMIS ISMAIL.................................................................5th RESPONDENT JUDGMENT 10th July & 12th August, 2024 D. C. KAMUZORA, J. The respondents were aligned before Babati District Court (hereinafter referred to as the trial court) charged with two counts of stealing certain animals contrary to sections 258 (1) and 268(1) and (3) of the Penal Code [Cap 16 R.E 2019]. The allegations as stipulated in the particulars of the charge are to the effect that, on 27/07/2021 and 28/07/2021 the respondents did still 2 oxen/bulls each day making total of 4 bulls all valued at TZS. 4 million the property of Safari Tarmo (PW1). The respondents Page 1 of 21 pleaded not guilty hence, the matter proceeded to a full trial. The prosecution paraded three witnesses and tendered no exhibit while the defence side had a total of seven witnesses. A brief factual background underlying the instant appeal as could be gathered from the record is that, on 27/7/2021, PW1 got information from his son (PW2) that the respondents went to their home and took two bulls. Upon return, PW1 found his two bulls missing and upon making follow up, he saw the respondents with his two bulls which were slaughtered and cooked. That, on the following day on 28/7/2021, PW1 got information again from PW2 who was grazing the cattle that the same people, the respondents took two more bulls. PW1 decided to make follow up and found the respondents with his two bulls which were also slaughtered like the previous ones. According to PW3, the investigator, the respondents were responsible for stealing and slaughtering PWl's bulls. In their defence, the respondents flatly denied to have committed the offences, although they both agreed that PWl's bulls were taken and slaughtered but, by the villagers. After hearing the matter, the trial court was convinced that the prosecution failed to prove the case against the respondents to the standard required hence, acquitted the respondents. The appellant was irked by the Page 2 of 21 trial court's decision thus, filed the instant appeal on four grounds of appeal as follows: - 1. That, the learned trial magistrate erred in law and facts in holding that the prosecution failed to prove the charge against the respondents beyond reasonable doubt without properly considering the evidence adduced by the prosecution before the trial court. 2. That, the learned trial magistrate erred in law and facts in holding that the testimony o f PW2 needed corroboration to ground conviction. 3. That, the learned trial magistrate erred in law and fact in holding that the prosecution evidence was tainted with contradictions. 4. That, the learned trial magistrate erred in law and facts in holding that PW3's failure to disclose that on 27/7/2021 he went to the crime scene together with the OC-CID Babati to harmonize the situation created doubts to the prosecution case. It is on record that the appeal was disposed of by way of written submissions. Mr. Raphael Rwezahula, learned state attorney represented the appellant while Mr. Kuwengwa Ndonjekwa, learned advocate represented the respondents. Page 3 of 21 In his submission in support of the 1st ground of appeal, Mr. Rwezahula argued that, the respondents were arraigned before the trial court for two counts as stated above and the ingredients of the offences were all proved by the prosecution. He referred the evidence of PW1 who testified that his four (4) oxen were stolen on 27/07/2021 and 28/07/2021 and his evidence was so supported by PW2 and PW3. That, it was established that it is the respondents and who stole PWl's four (4) oxen as they were properly identified at the crime scenes by PW2. That, the evidence adduced by the prosecution was based on the identification by recognition because, PW2 claimed to have seen the respondents at their home on the material date of incident on 27/07/2021 at 10:00 hours armed with traditional weapons. That, they did put him under arrest and took two oxen from the kraal. That, on the following day that is on 28/07/2021 at 10:00 hours, PW2 was grazing his father's cattle and the respondents went there and forcefully took two oxen. The learned state attorney further argued that, in both two (2) incidences, PW2 properly identified the respondents by recognition as they live in the same village and that the 1st, 4th and 5th respondents were Dabil Village leaders while the 2nd and 3rd respondents were social leaders. That, Page 4 of 21 the incidences took place on a broad day and the distance was close for they held PW2 under hostage while taking the oxen therefore, the factors for possible mistaken identity were eliminated. He insisted that, PW2 recognized the respondents in all two incidences in connection to the commission of the offences and the identification was more satisfactory and reliable than visual identification of a stranger. To buttress his arguments, he referred to the case of Mussa Saguda Vs Republic, Criminal Appeal No. 440/2017, [2021] TZCA 434 The learned state attorney also argued that, PW2 named the respondents to PW1 immediately after the commission of the offence on both two occasions. That, it is a settled law that naming a suspect at the earliest possible opportunity is an assurance of the person's credibility. He referred the case of Jumanne Issa & another vs Republic, Consolidated Criminal Appeals No. 54 of 2021, 120221 TZCA, 328. He pointed out that, PW2 was a credible witness who made a sequential narration of events on how the respondents invaded him, restrained him and took four (4) oxen. That, he narrated to the court on how he identified the respondents at the scenes of crimes thus, his testimony ought to have been believed by the trial Page 5 of 21 I court. He urged this court being the first appellate court, to step into the shoes of the trial court and analyze the evidence adduced during trial. Arguing the 2nd ground, the learned state attorney faulted the trial court for holding that, the testimony of PW2 needed corroboration to ground conviction. He submitted that, in acquitting the respondents, the trial court discredited the testimonies of PW1 and PW2 for being family members and that the evidence of PW2 needed corroboration from independent evidence as PW1 and PW2 could have fabricated the case against the respondents. The learned state attorney argued that, credence of a witness is not how he/she is related or close to another witness but whether or not the evidence adduced was credible. He referred the case of Oyombe Ochieng' @ Julius vs Republic, Criminal Appeal No. 135 of 2020, [2022] TZCA, 341 where it was held that the law does not prevent relatives from testifying in the same case and that when weighing up the credence of the witnesses the issue for consideration is not how related the witnesses are but whether the evidence adduced was credible. As to the 3rd ground, the learned state attorney submitted that, there was no material contradiction in prosecution evidence thus, the learned trial magistrate erred in holding that PW3's testimony contradicted with the Page 6 of 21 testimony of PW2 and PW1. He pointed out that, at pages 3 and 4 of the typed judgment, the trial magistrate observed that, PW3 testified that the owner of the stolen cattle was Safari Tarmo (PW1) but PW1 testified that the stolen cattle were taken from PW2 hence, a contradiction. The learned state attorney argued that, the above piece of evidence, does not contradict each other rather a true fact. That, PW1 was the owner of the stolen oxen the fact which was not contested during trial and the said oxen were taken by the respondents while they were under the supervision of PW2 thus, no contradiction. The learned state attorney further submitted that, the second contradiction pointed out by the learned trial magistrate was on the evidence of PW3 who testified that he was assigned to investigate the file on 27/07/2021 at 08:00 hours whereas it was alleged that the second incidence occurred on 28/07/2021 at 10:00 hours. He argued that, there was no contradiction because PW3 was assigned to investigate the file after the first incidence which took place on 27/07/2021 and the second incidence was on 28/07/2021 while PW3 was already assigned the said file. He argued that, if at all there were contradictions as pointed by the trial magistrate, the same are minor and they do not go to the root of the case. He maintained that, Page 7 of 21 the purported contradictions do not water down the prosecution case or eradicate the fact that PWl's cattle were stolen on the mentioned dates. He referred the case of Said Bakari vs Republic, Criminal Appeal No. 295 of 2021, [2022] TZCA, 125, in which the case of Dickson Elia Nsamba Shapwata & Another vs Republic, Criminal Appeal No. 92 of 2007 (Unreported) was referred. He insisted that, the testimony of PW2 who was the eye witness and who identified the respondents by recognition, is the best evidence in this case and his evidence was well corroborated by PW1 who is the owner of the stolen cattle. That, after the matter was reported to police station, PW3 was assigned the file to conduct investigation and he went to the Dabil village and found the respondents and other villagers have slaughtered the stolen cow and divided the meat amongst themselves. Submitting on the 4th ground, the learned state attorney faulted the trial magistrate for holding that PW3's failure to disclose that on the 27/07/2021 he went to the crime scene together with the OC-CID Babati to harmonize the situation created doubts to the prosecution case. He reiterated his submission on the 1st and 3rd grounds above and insisted that, the doubt pointed out by the learned trial magistrate is immaterial and cannot shake the prosecution case. The learned state attorney urged this Page 8 of 21 court to step into the shoes of the trial court and analyze the evidence on record and allow the appeal. In reply to the 1st ground of appeal Mr. Ndonjekwa, counsel for the respondents argued that, it was the duty of prosecution to prove its case beyond all reasonable doubts. He submitted that, all prosecution witnesses testified on their personal opinions and feelings rather than the actual facts of the matter. That, the respondents are the residents of Dabil village and some of them are leaders thus, mentioning and, or identifying them cannot be evidence that they stole PWl's cows. He wondered why PW1 did not report the matter to the police if at all the respondents stole cows for two consecutive days. The respondents' counsel further submitted that, PW2 testified that he lived with PW1 in the vicinity with other villagers. That, the fact that PW1 remained silent while thieves were stealing cows raises a lot of doubts and such evidence cannot be relied upon for convicting the respondents. He pointed out that, at page 50 of the typed proceedings DW4 testified that he knew PW1 as his fellow villager and he saw many people slaughtering cows and he told the court that he did not see the respondents at that time. That, at page 53 of the typed proceedings, DW5 the ward executive officer, Page 9 of 21 testified that he found so many people more than two hundred. That, some village members were chosen to go to the district commissioner where they told the district commissioner that villagers took four cows belonging to PW1 according to Iraqw customs. To him, the prosecution failed to prove their case as to the established principle as burden of proof lies on the prosecution side. That, with those doubts, the trial court was justified to acquit the respondents. To buttress his arguments, the learned advocate referred the case of Sultan Seif Nassor vs Republic [2003] TLR 231. In reply to the 2nd ground of appeal, the learned advocate submitted that PW1 and PW2 are father and son and PW1 testified that he was not at home when the respondents stole the cows rather, he was informed by his son, PW2. That, PW1 testified that his neighbors reside about 30 meters from his house thus, the prosecution had duty to call them to testify in court. He was of the view that the trial magistrate was justified to hold that PW2's evidence needed corroboration of other witnesses to support the fact that the Respondents stole the said cows. He referred the cases of Republic vs Kerstin Cameron [2003] TLR 84 and John Makolobela Kulwa Makolobela & another V Republic [2002] TLR 296. Page 10 of 21 On the 3rd ground of appeal, the learned advocate submitted that PW1 testified that he did not see the respondents stealing cows and PW2 testified that the Respondents stole cows. That, PW3 testified that he saw many people armed with traditional weapons at the place where cows were being slaughtered but did not mention to have seen the respondents slaughtering the cows. The respondents' counsel was of the view that, the trial magistrate was correct to hold that the evidence of the prosecution was tainted with contradictions. On the 4th ground of appeal, the learned advocate argued that criminal justice demands that evidence of a witness should leave no doubts. He submitted that, being a police officer who was at the scene of crime, PW3 was supposed to disclose the fact that the OC-CID also went to the scene of the crime as testified by DW5. That, this creates doubts as to whether PW3 thoroughly conducted his investigation incriminating the respondents. He maintained that the trial court was correct to acquit the respondents thus, urged this court to dismiss the appeal and uphold the trial court's decision. Having gone through the parties' rival submissions and the trial court's record, there are two issues for determination; one, whether the prosecution evidence was contradictory and uncorroborated and two, whether the Page 11 of 21 prosecution side proved the case against the respondents on the required standards. In the course of discussing the above issues, this court will assume its duty as the first appellate court and re-evaluate the evidence from the prosecution as well as the defence side. Starting with the 1st issue, the learned trial magistrate observed contradictions in the prosecution evidence. At page 4 of the typed judgment, the learned trial magistrate pointed out that while PW3 testified that the bulls belonged to PW1, the said PW1 testified that the bulls were taken from Shanel Safari (PW2). He also pointed out that while PW3 testified that he was assigned the case for investigation on 28/7/2021 he never told the court who reported the matter. At page 5 of the typed judgment, the learned trial magistrate observed that PW3 narrated that in his investigation he discovered that the respondents stole PWl's oxen but never disclosed the source of information. I have dispassionately considered the observations made by the learned trial magistrate. At the outset, I wish to point out that there was no contradiction material to the merit of the case. The contradictions referred to by the learned trial magistrate in my respectful view, are not contradictions. The argument that PW3 narrated that the cows belonged to Page 12 of 21 PW1, but the latter informed the court that the cows were taken from PW2, is not a contradiction. PW1 still maintained the fact that he is the owner of the stolen cows/oxen and PW2 maintained that the cows belonged to PW1 and he was just a care taker. In simple words, the evidence reveals that PW1 is the owner of the cows allegedly to have been stolen but the cows were stolen in the presence of PW2. On the argument that PW3 failed to disclose the source of information, it is on record that PW3 was the investigator of the case. He testified that, in the course of investigation he discovered that the respondents stole PWl's cows after he collected information from different people and recorded the statements. While on cross examination, PW3 testified that on 28/7/2021 he also witnessed the respondents and other people slaughtering two bulls. Therefore, the evidence of PW3 had no contradictions. On the argument based on uncorroborated evidence, the learned trial magistrate pointed out that since PW1 and PW2 were father and son, there should be another witness to corroborate the evidence of PW2. Reference was made to the case of Bariki Kinyaiya vs Republic Criminal Appeal No. 220 of 2007 Court of Appeal of Tanzania (unreported). Page 13 of 21 While I agree with the position set in the above cited case, I do not agree with the conclusion made by the trial magistrate which suggest a mandatory requirement to corroborate the evidence of witnesses who are relatives. Even in the case that was referred by the trial magistrate, the court stated that the need to corroborate evidence of relatives is not the law but in court's views, it important to avoid untruthful evidence. It insisted for each evidence to be considered on merit thus, corroboration of relatives' evidence will depend on the circumstance of each case. For instance, where the incident was witnessed by other people than relatives and the circumstances accommodate their appearance, it will be necessary for those other people to testify in court to corroborate the evidence of relatives. In the matter at hand, there was mob moved by all villagers against the owner of the cows as they took, slaughtered and ate PWl's bulls in public. At the time of stealing the cows, PW2 claimed that he was the only one present and he later informed PW1. The circumstance of this case does not accommodate corroboration for no one else was present at the time of incident who could corroborate PW2's testimony. The trial court was therefore bound to assess the evidence of PW2 and accord it deserving Page 14 of 21 weight with reasons. That was not so done thus, it was not proper to discredit that evidence merely because it was not corroborated. I therefore agree with the learned state attorney for appellant that the trial magistrate erred in holding that there were material contradictions in prosecution evidence and in holding that the evidence of PW2 needed corroboration. I therefore find the 2nd, 3rd and 4th grounds of appeal to have merit. On the second issue on whether the case was proved beyond reasonable doubt against the respondents, there is no dispute that the duty to prove criminal offence lies on the prosecution side and the standard is beyond shadow of doubts. The evidence on record is very clear and indeed, there is no dispute that 4 bulls belonging to PW1 were forcefully taken and slaughtered publicly at Dabil Market square in two different dates; on 27th and 28th July 2021. The reasons advanced by the defence witnesses for such move was that, PW1 blocked the road used by villagers thus, they gathered and slaughtered his bulls to compel him to unblock the road. The evidence also reveals that many people were involved in the saga which made PW1 and even the police officer who first went at the scene not to approach them Page 15 of 21 in fear of being harmed. The dispute is whether the respondents herein were responsible for taking and slaughtering PWl's bulls. Three witnesses testified in support of the prosecution case. PW2 claimed that on the first date, on 27/7/2021 he was at home when the respondents armed with stones and sticks went there asking for his father (PW1) and mother. He informed them that they were not at home and they ordered him to sit down while they opened the cattle boma (kraal) and took out two bulls. After they had left, PW2 phoned his father (PW1) and informed him of the incident and mentioned to his father the respondents' names as people who took the two bulls. Having received such information, PW1 made follow up and saw the respondents escorting his two bulls which were later slaughtered at the market square. The record further reveals that on the following day, on 28/7/2023 PW2 was grazing the cattle when the respondents went there and forcefully took two more bulls. PW2 informed his father (PW1) who was at home and upon receiving the information, PW1 informed the ward executive officer who went at the scene and found the bulls being slaughtered. PW1 also witnessed his bulls being slaughtered and identified the respondents at the scene. PW3 is the police officer who was assigned to investigate the matter. He testified that, the report was made at Page 16 of 21 the police station on 27th July, 2021 when the first two bulls were slaughtered and he was assigned to investigate the case on 28th July 2021. Upon making follow up he discovered that two more bulls were taken and slaughtered on that day and the respondents were mentioned as people responsible for stealing and slaughtering all four bulls. Upon being cross examined, PW3 explained that on 28th July, 2021, he went to the scene at Dabil village on 28th July, 2021 and the respondents were among the people he found at the scene slaughtering the bulls. He did not take action for he was unaccompanied by other police officers and the villagers were carrying traditional weapons. On the defence side, all defence witnesses conceded to the fact that 4 bulls belonging to PW1 were taken and slaughtered in public at Dabil market squire and they admitted that it was wrong. They only denied being responsible for taking or slaughtering the bulls. DW1, Theobald Tluway (the 1st respondent herein) testified that he is the village chairman of Dabil village. He claimed that on the material date of incident, he was at the poiice station together with John William (4th respondent herein) for they went there to report PW1 for blocking the road. That, he was informed by Faustine Ama (the 2nd respondent herein) who was at the village about the villagers who Page 17 of 21 went to the house of PW1 with traditional weapons. DW1 claimed to have phoned and informed Hamis Ismail (the 5th respondent herein) who was the village executive officer (VEO) and the police officer by the name or Kimaro about the incident. That, after a short time the 5th respondent went to the police station and they all together went to village accompanied by a police officer by the name of Josephat Chacha (PW3). That, they went to the village office where he signed the visitor's book before going to the scene. Since there were many people and who resisted the leaders, they were unable to approach the scene and the police officer went back to the police station. That on the second day on 28th July, 2021, the villagers slaughtered two more bulls belonging to PW1. That, DW1 reported to the OCS and Division officer. He witnessed the PWl's bull being slaughtered but denied being responsible for taking or slaughtering them. DW2, Hamis Ismail (the 5th respondent herein) supported the fact that on 27th July, 2021, he was phoned by DW1 and informed about the incident. He decided to report to the police station where he met the 1st and 4th respondents herein. They both left to the village being accompanied by a police officer one Joseph Chacha to the scene. That, people were complaining against PW1 for blocking the road with stones. They found Page 18 of 21 villagers who had gathered at the market square and the police went back to the police station for more manpower. He also tendered visitors book to verify that the police officer went to the village on that date. He added that, on 28th July, he also got information from the 1st respondent that two more bulls were slaughtered by villagers. That, on 29th July, 2021 they summoned PW1 and reconciled the matter resulting to unblocking of the road. The visitors book and a letter summoning PW1 were admitted as exhibits DEI and DEII but their contents were not read in court thus, will not be accorded any weight. DW3, Faustine Amma (the 2nd respondent herein) and DW6 (the 4th respondents herein) narrated the same story as DW1 and DW2. DW4 and DW5 testified to have witnessed the bulls being slaughtered by villagers and DW7 (the 3rd respondent herein) who was a militiaman, also claimed to have seen the villagers slaughtering the bulls. In considering the above evidence in totality, this court is convinced with the prosecution evidence that the respondents were responsible for forceful taking and slaughtering PWl's bulls. I say so because, the evidence by both prosecution witnesses proves that they were seen taking, escorting and later slaughtering the bulls in all two days. Despite their defence that Page 19 of 21 they were not at the scene, the prosecution witnesss saw them and I see no reason to doubt such evidence. It is clear that all defence witnesses were village members of Dabil village meaning that, they knew if not all, at least some of the village members who were at the scene. They admitted to have witnessed the slaughtering in the bulls by villagers and neither of them was able to mention any of the villager involved in that incident. In fact, their defence did not counter the prosecution evidence revealing that they were seen by PW2 forcefully taking the bulls and PW2 and PW3 at different times slaughtering the bulls. Unlike the learned trial magistrate who was of the view that PWl's evidence was hearsay because he was told the story by PW2, I do not find PW l's evidence to be hearsay. His testimony was in respect of what he was informed by the person who witnessed the taking of the bulls and in respect of what he saw when the respondents were escorting and slaughtering the bulls thus his evidence cannot be considered as hearsay. Likewise, I do not agree with the holding of the trial court based on contradiction in prosecution evidence. As well pointed above, there was no material contradiction in prosecution evidence. In fact, PW2 was able to identify the respondents for they were prior known to him and he mentioned their names to PW1 who also identified them when he saw them escorting and slaughtering the bulls as he knew them even before the incident Therefore, I am of the considered view that the respondents forcefully took four bulls belonging to PW1 without his permission and slaughtered them hence, permanently depriving him the ownership. I therefore find that the prosecution evidence was water tight proving the offence against all respondents beyond reasonable doubt. Therefore, the trial magistrate erred in concluding that the offence was not proved beyond reasonable doubt relying on contradictions which could not stand to vitiate the prosecution case. I therefore find the 1st ground of appeal to have merit as well. In concluding, I find the appeal to have merits and I allow it. The decision by the trial court is hereby quashed and set aside and in lieu thereof, I find the respondents, Theobald Tluway, Faustine Amma, Samwel Daniel, John William and Hamis Ismail guilty and are all convicted with two counts of stealing certain animals contrary to sections 258 (1) and 268(1) and (3) of the Penal Code [Cap 16 R.E 2019]. DATED at BABATI this 12th August 2024.