JUDGMENT Faraji Saidi Haule vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA PC. CRIMINAL APPEAL NO. 23922 OF 2024 (Arising from Songea District Court in Criminal Appeal No. 12504 of 2024, Originating from Songea Urban Primary Court in Criminal Case No. 43 of 2024) FARAJI SAIDI HAULE …….………...……………….………………………. APPELLANT VERSUS SAID HASSAN CHAUGA ………………….….……...…………………… RESPONDENT JUDGMENT 07th & 26th November, 2024. KAWISHE, J.: Before Songea Urban Primary Court (the trial court), the appellant was charged and convicted for the offence of theft contrary to section 258(1) and 265 of the Penal Code (Cap 16, R.E 2022). Dissatisfied with the decision of the trial court, the appellant unsuccessful appealed before 1 Songea District Court (the first appellate court). Once again, the decision of the first appellate court was not in his favour. Hence, this second appeal. Before this court, in his petition of appeal the appellant has three grounds of complaint which I wish to reproduce herein below regardless of grammatical errors. The grounds of appeal are: i. That the appellant court erred in law for holding the decision of trial court while the respondent side had not proved his case beyond a reasonable doubt and the court sentenced the appellant contrary to the law. ii. That both the trial court and the appellate court erred in law for the same erroneously mistake on the correctness and legality of the charge sheet and herein attached as "PK" attachment. iii. That both the appellate court and the trial court erred in law for not considering the contradiction evidence raised on date records committed the offence on the charge sheet and stated by respondent lead by his counsel. In an albeit brief, the factual background of this appeal are as follows: Before the trial court it was alleged that on 27th January, 2024 at around 05:45 hours at Refueling Filling Station within Songea Municipal, the appellant did steal a motorcycle make Haojue red in colour with registration No. MC320 DYD with chassis No. 156FMIAD3F18637. It was alleged further that the motorcycle was the property of Saidi Hassan and its value was TZS. 2,600,000.00. To prove the allegation, the complainant 2 paraded two witnesses and tendered two exhibits which is the motorcycle registration card and a receipt. According to the testimonies given by the respondent, it was on 26th January, 2024 at around 22:00 hours, he went at Refueling Filling Station and met with the appellant who was the security guard at Refueling Filling Station. He gave the motorcycle to the appellant on an agreement that he would pay TZS. 1,000.00 on the next day, that is on 27th January, 2024. When the respondent went to take his motorcycle on the 27th January, 2024, he never saw the appellant and he met another security guards who were on duty. That the appellant was called by his phone number and he replied that he was going to the farm and he will be back soon but he never appeared. The matter was reported at the Police Station, the appellant was arrested and when he was interrogated, he denied to have committed the offence. The second and the only witness called by the respondent was his father, Hassan Chauga who told the trial court that the stollen motorcycle was his property. He testified further that, he was told by he respondent that the motorcycle was stollen on 27th January, 2024 at Refueling Filling Station where he parked it. He also tendered two exhibits which are the 3 motorcycle card and the receipt which were admitted as exhibit P1 collectively. In his defence, the appellant agreed to have worked at Refueling Filling Station as a security guard but he denied to have committed the offence he stood charged with. When cross examined by the complainant’s counsel, he replied that, it is true that, people used to park the motorcycle and cars at Refueling Filling Station but on 26th January, 2024 he was on duty but he never received a motorcycle from the respondent. He replied further that, he left the Refueling Filling Station early in the morning on 27th January, 2024 and later on he was called through his phone and asked on the motorcycle and he replied that the motorcycle which he did not know its number was taken by a person and he was paid TZS. 1,000.00. It was from the above testimonies the lower courts found the appellant guilty, convicted and sentenced to pay a fine of 50,000/= or serve a term of three months imprisonment in default of payment of fine. He was also ordered to pay TZS. 2,600,000.00 as compensation to the respondent. 4 The appellant in this appeal appeared in person and fended for himself whereas the respondent had the legal services of Mr. Eliseus Ndunguru, learned advocate. By consent of both parties, the appeal was disposed of by way of written submission and the scheduled orders were were adhered to by the parties. Arguing in support of the appeal, the appellant submitted on the grounds of appeal collectively. The appellant argued that, the lower courts erred in convicting him while there was variance between the charge sheet and the evidence given by the complainant He argued that, while the charge sheet states that the motorcycle has Registration No. MC 320 DYD, make Haojue with Chassis No. LC6PCJK25P0037710 and Engine No. 156FM15AD3F78637 but the evidence given by the complainant reveals that, the stolen motorcycle has Registration No. MC 320 DYD, make Haojue with Chassis No. LC6PCJK25P00377 and Engine No. 156FM15AD3F78637. He added that, the contradiction has led into injustice and the charge was to be amended in accordance to the provision of section 234 (4) of the Criminal Procedure Act (Cap. 20, R.E 2022). He prayed for the decisions of the lower courts to be quashed and set aside and the appellant be set free. 5 Countering the appellant’s submission, the respondent’s counsel submitted that, on part of the respondent there was no witness who mentioned the chassis or engine numbers of the motorcycle except for the motorcycle’s registration number. He added that, the available evidence proves without any shadow of doubt that the appellant did steal the motorcycle. Emphasizing his stance, the learned counsel cited the case of Woolmington vs. DPP [1935] AC 462. Lastly, he prayed for this appeal to be dismissed. In a brief rejoinder, the appellant reiterated his submission in chief. He added that on page 10 last paragraph of the copy of judgment the trial court said that, after passing through the evidence submitted with exhibit P1” (as recorded) involved the details of the said motorcycle with No. MC 320 DYD, make HAOJUE, CHASSIS No. LC6PCJK25P0037710, ENGINE No. 156FM15AD3F78637, that it is the card of the said motorcycle submitted by respondent which was used to testify on the stolen property. He insisted that the exhibit P1 is part and parcel of evidence delivered by the respondent. He summed up by stating the difference and contradictions on the charge sheet and the evidence given has resulted into an injustice to the appellant. 6 I have gone through the grounds of appeal, submissions made by both parties and the original records in this appeal which are centered at proving the case beyond reasonable doubt. From the submissions made by the parties, I find the main issue which needs to be determined by this court is whether the offence was proved to the required standard against the appellant. As I have stated early herein above, this is a second appeal. Thus, I wish to state categorically that, the second appellate court rarely interferes with the factual findings of the two subordinate courts. This principle was laid down by the Court of Appeal in the case of Director of Public Prosecutions vs. Simon Mashauri (Civil Application 394 of 2017) [2019] TZCA 22 (TanzLII). The Court stated: "We wish to preface our decision by stating from the outset that this is a second appeal. It is now settled law that where there are concurrent findings of facts of the two courts below the Court should not under normal circumstances interfere with such concurrent findings of facts. However, if such courts below have misapprehended the substance, nature and quality of such evidence which result into unfair conviction in the interest of justice, the Court may interfere." 7 Therefore, while being guided by the above principle, I will proceed with the determination of this appeal accordingly. In his submission, the appellant has argued that, the offence was not proved since there were contradictions between the charge and the evidence given by the complainant in respect to the particulars of the chassis and engine numbers. That, while the charge sheet states that the motorcycle has Registration No. MC 320 DYD, make Haojue with Chassis No. PC6PCJK25P00377 and Engine No. 156FM15AD3F78637, the evidence given by the prosecution reveals that, the stolen motorcycle has Registration No. MC 320 DYD, make Haojue with Chassis No. LC6PCJK25P00377 and Engine No. 156FMIAD3F18637. The respondent’s counsel vehemently disputed the appellant’s submission. He argued that, there were no such contradictions in the testimonies given by the respondent. That what has been stated by the appellant is unfounded in the present appeal. This rival submission called for a revisit to the original records. Thus, I keenly perused through the submission and the original records particularly the charge sheet. 8 The respondent’s learned counsel submitted that, among the complainant’s witnesses none of them stated the chassis and engine numbers of the stolen motorcycle. Upon perusal, the trial court’s proceedings at page 7 to 9, PW1, Saidi Hassan Chauga testified that the motorcycle registration number was MC 320 DYD. That, he handed the motorcycle to the appellant on 26th January, 2024 with an agreement to take it on the following morning that is on 27th January, 2024. The same evidence was given by PW2 who mentioned the registration number of the motorcycle and tendered the receipt and registration card of the motorcycle. No place at page 9 to 11 of the trial court’s proceedings he stated the chassis and engine number as claimed by the appellant. Concerning the contradictions claimed by the appellant, the charge sheet reads: … Chassis Number PC6PCJK25P0037710 Engine Number 156FMIAD3F18637 whereas exhibit P1 reads motorcycle with registration No. MC 320 DYD, make Haojue, Chassis No. LC6PCJK25P0037710, Engine No. 156FMI5AD3F78637, there is a difference in the chassis number on the first letters, “L” and “P.” However, the appellant also committed a typing error on the numbers as well. He stated that exhibit P1 reads Chassis No. 9 PC6PCJK25P00377 while, exhibit P1 correctly reads LC6PCJK250037710. Yet, the court did not disregard his complaint. Does the difference on the chassis number occasion injustice to the appellant as he claimed? Has it dented the prosecution’s evidence? In answering these questions, I would like to state clearly that, not every variation on the charge will dent the prosecution’s case. It is a trite law that, the variation has to be weighed if it went to the root of the case. For instance, where the accused fails to understand the offence charged with. Or where the difference in the charge sheet and the prosecution’s testimony is material and go to the root of the prosecution case. In this appeal, did the variance claimed between the charge sheet and the evidence lead to the disclosure of the offence not known to law? In my view, the variation claimed by the appellant did not lead to the material difference between the allegation in the particulars of the charge and the evidence in respect of the motorcycle stolen. I hold so due to the fact that, the appellant was able to defend himself before the trial court. Also, he admitted that, he is a security guard at Refuel Filling Station and they accept motorcycles and vehicles to be parked at the station. He further 10 admitted that on 27th January, 2024 he handed a motorcycle to a person in the morning but was not the appellant. It is my considered view that, this court is duty bound to decide whether the contradictions are minor or they go to the root of the matter. This principle was emphasized in the case of Matera Simango @ Masana vs. The Republic, Criminal Appeal No. 517 of 2019, where the Court of Appeal cited with approval the case of Mohamed Said Matula vs. Republic [1995] T.L.R. 3 stating that: “Where the testimony of the witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the inconsistencies and contradictions are only minor or where they go to the root of the matter.” From the excerpt quoted, the Court of Appeal instructed courts below to undertake to resolve inconsistencies and contradictions when they are raised in a case or an appeal. I have weighed the contradictions claimed by the appellant on the variation of the two letters of the motorcycle’s chassis number, and the prosecution’s evidence, to see if it caused any injustice to the appellant. As I have hinted earlier, the contradictions did not go to the root of the matter. The offence was established by the prosecution. There 11 is no dispute that the appellant is a security guard and he handed a motorcycle to a person who was not the respondent. He is trying to challenge the chassis numbers which in my view, even if were not stated, the fact that, the motorcycle was stolen, and the respondent tendered the registration card of the same, it was enough to prove that he was the owner of the motorcycle at that material time. The contradictions were minor and did not dent the prosecution’s evidence. See the case of Yustus Aidan vs. The Republic, Criminal Appeal No. 459 of 2019 where the Court stated that: “Be it as it may, if there was any such contradiction in the dates, it did not affect the central story of the prosecution that the appellant met victim on the night of 02/04/2014 and was taken to hospital on 04/04/2014 where PW5 attended her. Similarly, the variance regarding the person who took PW1 out of the mud house in which she was raped had no bearing on the prosecution's evidence. Neither did it dent PW1’s credibility.” [Emphasis added]. Being guided by this authority, the contradictions claimed by the appellant did not affect the central story of the complainant that the motorcycle was given to the appellant and he stole it. If he had clean hands, why he did not cooperate with the respondent when he was informed that the motorcycle was stolen until he was arrested. I see no reasonable ground 12 to interfere with the concurrent findings of the two courts below. I could only interfere with the concurrent findings by the two courts below had I found that such concurrent findings of fact resulted from misapprehension or non-direction of the evidence on record causing injustice. See the case of Director of Public Prosecutions vs. Jaffari Mfaume Kawawa [1981] TLR 149, Joseph Leonard Manyota vs. Republic, Criminal Appeal No. 485 of 2015 and Karim Jaffary vs. Republic, Criminal Appeal No. 412 of 2018 (both unreported). As a result, the issue raised, whether the offence was proved to the required standard against the appellant is answered in the affirmative. In the event, I find the appeal has no merit and it is accordingly dismissed. The decision of the first appellate court is upheld and confirmed. It is so ordered. DATED and DELIVERED at SONGEA this 26th day of November, 2024. E. L. KAWISHE JUDGE 13 COURT: Judgment delivered in the presence of the appellant, Mr. Faraji Saidi Haule in person and in the absence of the respondent. Right of appeal explained. E. L. KAWISHE JUDGE 26/11/2024 14