emmanuel so juma lukanga vs the dpp and 3 others 2023 tzhc 23589 17 november 2023

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 113 OF 2022 [Original Criminal Case No. 247 of 2020, in the Resident Magistrates Court of Geita] EMMANUEL S/O JUMA @ LUKANGA……………………………………… APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS…………………..1ST RESPONDENT MUSA S/O EMANUEL @DAUD……………………………………..2ND RESPONDENT LEONARD S/O HANIRA @RWABUTUNDWE……………………3RD RESPONDENT ELISHA S/O MUHOZA @SUMUNI……………….………………..4TH RESPONDENT JUDGMENT Oct. 19th & Nov.17th, 2023 Morris, J The appellant above earned both conviction and sentence from the Resident Magistrate’s Court of Geita (trial court) in criminal case no. 247 of 2020. Together with the 2nd, 3rd and 4th respondents; the appellant faced an offence of cattle theft contrary to section 268 of the Penal Code, Cap 16 R.E. 2022 (the Penal Code). Allegedly, the offence was committed on 5th June 2020 at Mgusu Village within the District and Region of Geita. The charge read that the four accused stole eighteen (18) 2 cattle valued at Tshs. 18,000,000. The subject livestock purportedly belonged to one Robert Paul. After the trial court finding the appellant, 2nd and 4th respondents guilty of the offence, it convicted them and consequently passed the sentence of a 15-year imprisonment term for each. The appellant was disgruntled with such findings. He thus filed this appeal. His appeal is premised on four (4) grounds. However, in the interest of brevity and coherence, they may be merged into two grounds only. He contends that the trial court erred to rely on a caution statement which was not audibly read; and that it wrongly convicted him in the case that was not proved beyond reasonable doubt. When the matter came up for hearing, the appellant fended for himself; unrepresented. However, the 1st respondent was represented by Ms. Tabitha Zakayo and Ms. Sarah Perias, learned State Attorneys. Service to the 2nd, 3rd and 4 respondents was fruitless as their whereabouts is unknown. I ordered the matter to proceed in their absence. Being a lay person, the appellant mainly prayed to adopt the grounds of appeal. Nevertheless, he amplified them by explaining further that: PW1 did not identify the cattle because only 3 herds of cattle were brought before the 3 court instead of 18 herds allegedly stolen; his purported cautioned statement was not read aloud after being admitted; thus, the case against him was not proved beyond reasonable doubt. In reply Ms. Zakayo submitted that, PW1, Robert Paul stated that he was keeping his own and his father’s cattle together. That each cow had ‘MK’ and ‘25’ marks on the limbs. She contended that, PW2 (Bandino Shija) confirmed that he was keeping his cattle in the PW1’s barn. And that his cows had unique identification marks depending on skin colors. However, as stated by the appellant, Ms. Zakayo argued that PW4 corroborated the evidence of PW1 and PW2 to the effect that three cows which was brought before the court were identified by their owners because two were red in color and one (it died before trial but its hide was tendered in exhibit) was white. The state attorney also submitted that PW6 was not only an eye witness but also a person whom the appellant had solicited to buy the stolen cows (reddish and whitish). To her, so long as the appellant did not cross examine regarding identification of cattle, he cannot justify his arguments at this appellate court. 4 Nonetheless, she clearly admitted that per page 40 of the trial court’s proceedings; the caution statement was not read loudly. However, to the 1st respondent, such anomaly does not exonerate the appellant because the remaining direct evidence proved his guilt sufficiently. She cited section 62 (1) (a) of the Evidence Act, Cap 6 R.E 2022, and argued that direct evidence is the best of all. Moreover, to Ms. Zakayo, the offence was proved as all elements of the doctrine of recent possession, per Issa James v R, Criminal Appeal No. 110 of 2020 (unreported) were established against the appellant. That is: one, the appellant was found in possession of stolen cattle; two, the stolen cattle were proved to belong to the complainant; three, the stolen cows were stolen recently; and four, the allegedly stolen herds of cattle were proved to related to the case in court. In line with the above contentions of parties, I will determine the grounds of appeal. Nonetheless, all grounds combined, the issue to be answered is whether the prosecution proved the case against the appellant on the required legal standard. As correctly admitted by the 1st respondent, the appellant’s caution statement (exhibit P4) was not read after being admitted (page 40 of the proceedings). The omission is fatal 5 in law. That is, failure to read the exhibit after being admitted intrinsically undermines the accused’s right to a fair trial. Indeed, he is denied the right to know the content of evidence tendered against him. Consequently, his defence is accordingly unaligned with the negation of such content. The foregoing position is also recapitulated in Issa Said Issa v R, Criminal Appeal No. 435 of 2020; Mfaume Daud Mpoto and 2 Others v R, Criminal Appeal No. 419 of 2020; Bulungu Nzungu v R, Criminal Appeal No. 39 of 2018; Aniseth Ibrahim and Another v R, Criminal Appeal No. 227 of 2018; Stephen Jonas and another v R, Criminal Appeal No. 337 of 2018; John Mghandi @ Ndovo v R, Criminal Appeal No. 352 of 2018; Semeni Mgonela Chiwanza v R, Criminal Appeal No. 49 of 2019; and Fale Shija @Migungumalo, Criminal Appeal No. 555 of 2020 (all unreported). On the foregoing basis, therefore, the purported caution statement of the appellant (exhibit P4) did not meet the threshold of the law enough to be relied on by the trial court in establishing the appellant’s guilt. I proceed to expunge it from the court record. In consequence, thus, the first ground of appeal is sustained. 6 The second ground of appeal is that the case was not proved beyond reasonable doubt. To the appellant, PW1 did not identify the allegedly stolen cattle because not all 18 cattle were before the court; and the ones availed were not specifically identified by their unique identification marks. To the 1st respondent, the offence was proved basing on the doctrine of recent possession. To determine whether prosecution satisfactorily established the appellant’s guilt; the Court will re-evaluate the evidence on record. The evidence re-appraisal approach is adopted because this is the first appeal. See, for instance, Mussa Jumanne Mtandika v R, Criminal Appeal No. 349 of 2018; Kaimu Said v R, Criminal Appeal No. 391 of 2019; and David Livingstone Simkwai and 8 Others v R, Criminal Appeal No. 146 of 2016 (all unreported). The evidence of PW1 (Robert Paul) is to the effect that: on 5/6/2020 during night hours his 18-herd including 8 cows belonging to his father (PW2) were stolen. He informed his father about the theft. On the next morning they both reported to Mgusu police station. That his cows had the identification marks (‘MK’) and (‘25’) on the right and left limbs respectively. On 5/7/2020 evening, while at Biharamulo, he received a call 7 from police that they had found about 8 cows at Machinjioni area. He, thus, went to Geita police post on 8/7/2020 only to be given 3 cows and one hide. Further, PW2 (Bandiho Shija) testified to the effect that he kept his 7 cows to PW1. Some cows had marks on their body while others had no any mark. Some had ‘25’ identification marks on the left legs and that some were reddish in color while others were spot-dotted (‘madoa madoa’). On 6/7/2020 PW1 reported theft incidence to him. They reported to Mgusu police post. Nevertheless, PW4 (D6439 SGT Isack) testified that he received information that at Lulembela Village one person called Martine was caught with two stolen herds of cattle. He went at Lulembela village and arrested Martine. That the latter told him (PW4) that the cows were stolen from Mgusu village by him together with his friends (Emmanuel Juma, Daud and Mussa Emmanuel). PW4 also stated that he knew Emmanuel Juma. Therefore, he arrested the latter at Machinjioni-Geita. It was further testified by PW4 that Emmanuel Juma (appellant) told him that he was given the cows by Elisha (4th respondent) to take them to Masanyiwa Msomi. And that the latter admitted receiving the same from 8 the appellant. Moreover, PW4 averred that he went at Masanyiwa cow shed/barn and found four cows; three reddish in colour and one white- coloured. Then, he filled the certificate of seizure (exhibit P3). Upon inquiring from the Mgusu Officer Commanding Station (OCS), PW4 was informed that there was a complaint regarding stolen 18 herds of cattle. PW4 testified further that the complainants (PW1 and PW2) identified three cows from exhibit P3. Allegedly, the fourth (white) cow died but they were given its hide. Consequently, the three reddish herds of cattle were admitted as exhibit P4 and one white-coloured cow skin/hide was admitted as exhibit P5. However, PW2 stated (page 30 of the proceedings) that in the Masanyiwa cowshed, he identified three red-colour cows one white. But PW6 (Masanyiwa Make Msomi) accounted that he saw the appellant with four cows leading to Katoro on 5/7/2020 (Two were red, one with mixed color and one white-colored). Further, PW6 averred that the appellant told him that he was selling all cows at Tshs. 1,200,000/=. After negotiations between them, the price was reduced at Tshs. 600,000/=. On being suspicious, he informed the police (PW4) who arrested the appellant while he was still in possession of the cow. 9 Notwithstanding the above narrations, it was testified by the appellant that he was arrested on 23/06/2020. Then, he was taken to and beaten at a place that he did not identify. However, he stated that despite denying that he was not involved in the Mgusu-theft incident, the appellant stayed in police lockup for 27 days before being arraigned in the trial court on 17/7/2020. Axiomatic in criminal justice system is the adage that, the accused should only be convicted on the strength of prosecution case. See, hereof, John Makolobela and 2 Others v R [2002] TLR 296; Twinogone Mwambela v R, Criminal Appeal 388 of 2018; Hassan Singano @ Kang’ombe v R, Criminal Appeal No. 57 of 2022; and Paschal Yoya @Maganga v R, Criminal Appeal No. 248 of 2017 (all unreported, except the first one). From the evidence of prosecution there are some apparent contradictions. I will state them. One, PW1 testified that he went to police station on 8/7/2020 to identify the cows. However, PW6 testified that he was given the cows by PW4 for safe keeping. And that PW1 and PW2 went to identify them at his place (not police station). Two, PW6 testified that the appellant was arrested at his (witness’) place with the cow which he 10 was negotiating to sale on 5/7/2023 while PW4 testified that he arrested the appellant after receiving the information from Martine of 21/06/2020. Further, PW4 testified that the appellant told him that the cows were at PW6’s place. Three, PW6 testified that two herds of cattle were red, one with mixed color and one white color but PW4, PW1 and PW2 stated that three cow were red and one white-coloured. Four, while the evidence of PW4 and PW6 is to the effect that the herds of cattle were four, exhibit P3 (seizure certificate) indicated that the cattle seized were five (5). That three were red; one white spot-dotted; and one white. Exhibit P5 partly reads; “1. NG’OMBE WATATU WEKUNDU NA MMOJA ANA MADOA MEUPE ZOTE DUME . 2. NG’OMBE MMOJA MWENYE RANGI NYEUPE DUME.” Five, the alleged stolen herds of cattle were 18. PW1 was informed by police officer that eight cows were found at Machinjioni area; four were found at PW6’s place; and two were found with Martine. Apart from the three which were tendered as exhibit P4 and one hide (exhibit P5), the record is silent regarding the others. Six, the details of the cow that 11 alleged died before the trial commenced (regarding, for instance, what befell it; when and the handling of its remains) remain a mystery. Seven, the record is also silent regarding Martin who named the appellant to be the culprit. In law, minor contradictions in evidence which do not significantly affect the remaining evidence on record ought to be ignored. I make reference to the sound holding of the Court of Appeal in DPP v Daniel Mwasonga, Criminal Appeal No. 64 of 2018; and EX. G.2434 PC George v R, Criminal Appeal No. 8 of 2018 (both unreported). The above solid position notwithstanding, in my view, the pointed contradictions earlier are not; even by stretch of imagination, minor. They are so fundamental enough to raise reasonable doubt to prosecution evidence regarding the appellant’s involvement in the alleged theft. Further, it is my found view that the doctrine of recent possession does not apply in this case against the appellant. The evidence of arresting officer (PW4) is to the effect that he arrested the appellant after information from Martine of 21/6/2020. That evidence is closely in line with the evidence of the appellant that he was arrested on 23/6/2020. Therefore, the appellant was not found with the cow but PW6 had them. 12 Further, the prosecution evidence left doubt with regards to the chain of custody of Exhibit P4 and P5. The evidence of PW4 is to the effect that he seized the herds of cattle from PW6. The latter testified that he was given the said cows for safe-keeping. No any evidence was tendered to prove how the herds of cattle moved from the police station to PW6 and then to court for admission. That is, there is no proof as to why, how and when the herds of cattle were taken back to PW6 and how they were taken back to the court for admission. This casts doubt to the prosecution case too. The proper chain of custody may be proved by documentary or oral evidence. Failure to establish the chain of custody is fatal. I am guided by the principle hereof from the cases of Agnetha Sebastian v R, Criminal Appeal No. 389 of 2020; Ernest Jackson @Mwandikaupesi and Another v R, Criminal Appeal No. 408 of 2019; Huang Qin and Another v R, Criminal Appeal No. 173 of 2018; and Paul Maduka and 4 Others v R, Criminal Appeal No. 110 of 2007 (all unreported). In the last case, it was held at pages 18 and 19 that: - “By ‘chain of custody’ we have in mind the chronological documentation and/or paper trail, showing the seizure, custody, 13 control, transfer, analysis, and disposition of evidence, be it physical or electronic. The idea behind recording the chain of custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime – rather than, for instance, having been planted fraudulently to make someone appear guilty.” Moreover, the evidence of PW6 raises a lot of doubts in prosecution case. He is not coherent regarding how he came into possession of the herds of cattle. At one point, he testified that he reported to police after the appellant purported to sale the cattle to him. But, according to PW4, the appellant had already been arrested at that time upon information from one Martine. In other words, in exclusion of PW6’s evidence; the appellant was arrested basing on the information of the said Martine who was neither a co-accused or a witness. I wish to repeat myself here for ease of comprehension. PW4 testified that his informer told him of Martine being seen with stolen cows at Lulembela Village following which whistleblowing Martine was arrested. Further, the latter allegedly confessed that he, with other accused persons, stole the livestock from Mgusu village. To me, the trial court was 14 denied an opportunity to hear from Martine who should have knighted the missing details in one complete plexus. In law, the court may draw adverse inference where a material witness is not called to testify in favour of the pertinent fact to the trial. Martine’s quandary fits in the same situation squarely. I so hold against him. See, Nkanga Daudi Nkanga v R, Criminal Appeal No. 316 of 2013; and Mashimba Dotto Lukubanija v R, Criminal appeal No. 317 of 2013; Boniface Kundakiza Tarimon v R, Criminal Appeal No 350 of 2008; Paschal Yoya @ Maganga v R, (supra) [all unreported]. Hence, the second ground of appeal has merit too. In the upshot and for the stated reasons above, I find that the prosecution failed to prove the case against the appellant beyond reasonable doubt. I hereby allow the appeal. Consequently, the trial court’s conviction is quashed and sentence therefrom set aside. The appellant is, thus, to be set free from custody straightaway unless he is still being held therein for another lawful cause. I so order. 15 The right of appeal is duly explained to parties hereof. C.K.K. Morris Judge November 17th, 2023