Fredrick Mwanandenje vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA CRIMINAL APPEAL NO. 40510 OF 2024 (OriginatingfromCriminalCaseNo.20/2023ofResidentMagistrateCourtofRukwa) FREDRICK MWANANDENJE................................................. 1ST APPELLANT RICHARD SUMPA @ ROMANA.............................................. 2nd APPELLANT VERSUS REPUBLIC................................................................................ RESPONDENT JUDGMENT MWENEMPAZI, J; Before the Resident Magistrates’ Court of Rukwa (trial court), the appellants were prosecuted for the offence of cattle theft contrary to section 258 (1) and 268 (1) and (3) of the Penal Code R.E. 2022 (the Code). It was alleged by the prosecution that on the 07th day of April, 2023 at Kalambo ranch area within Nkasi District in Rukwa Region, the appellants, did steal 6 heads of cattle valued at Fourteen Milion (TZS. 14,000,000/=) the properties of HAMIDU MAGESHA @ MHANDAGANI. When the charges were read over to the appellants, they both protested their innocence. However, on conducting full trial, both appellants were 1 found guilty, convicted and sentenced to be imprisoned for seven years. They were dissatisfied. They thus appealed to this court challenging the trial court’s decision mainly on the ground that, the trial court erred at law by convicting them (the appellants) on an offence which was not proved beyond reasonable doubt as the ingredients of the offence charged were not proved. When on the hearing date, the second appellant did not appear and so Ms. Safi Kashindi Senior State Attorney representing the Republic, submitted that, under Section 383 (1) of the Criminal Procedure Act, the appeal by the 2nd appellant be dismissed. This court did dismiss the appeal by the 2nd appellant, and proceeded with the 1st appellant alone. As he was invited to argue for his appeal, he simply asked the court to consider the said ground of appeal as they were. The learned Senior State Attorney submitted that they oppose the appeal by the appellant and that, since the appellant has filed five grounds of appeal, they pray to respond by commencing with the 2nd ground and proceed to the 5th, 3rd, 4th and lastly, the 1st ground of appeal. She then started off that, in the 2nd ground of appeal the appellant complains that the evidence by the prosecution had contradictions. She 2 insisted that the said ground has no merit. That, the prosecution evidence had no any contradictions commencing with PW1 at page 11 of the proceedings, the witness explained how he got information that his cows were stolen. And he then made efforts to communicate with the leadership and straight away they commenced to look for the cows. That, the appellant was arrested with six (6) cows belonging to the PW1. She added that this evidence was corroborated by PW2 at page 14 and PW3 who was the police officer who seized the cows from the appellant who also signed the said seizure, in which was also corroborated by the evidence of PW4 who is one of the employees, whereas his duty was to inspect the ranches. In that, Ms. Kashindi insisted that in the prosecution evidence had no any contradictions. That, the failed to cross examine on the contradiction if at all the witnesses were inconsistent with their statements. The learned State Attorney added that, it is the principle of law that, the failure to cross examine on important matter in court it is obvious that is a sign to accept the truth of the said evidence. She stated that there are many decisions which relied on the principle, and she referred this court to one of the cases in Kanaku Kidari vs Republic Criminal Appeal No. 3 326 of 2021, CAT (Dodoma) at page 9, and prayed this ground to be dismissed for want of merit. Submitting against the 5th ground of appeal in which the appellant has faulted lack of exhibit to prove the offence. Ms. Kashindi submitted that this ground is baseless. She clarified that; in this case five exhibits were tendered. She proceeded to name them as; Exhibit P1 - cows which were stolen as seen at page 13, Exhibit P2 - Certificate of seizure as seen at page 16, Exhibit P3 - handling over document, Exhibit P4 - Caution statement of the second accused person and Exhibit P5 - Caution statement of the first accused person. That, all the exhibits were to prove offences against the accused person. And therefore, under the circumstances the fifth ground of appeal has no merit. She again prayed for this ground to be dismissed. Ms. Kashindi submitted against the 3rd ground that, the trial court considered both side’s evidence in arriving to conviction of the appellant. She clarified that what she has stated is seen at page 6-10 of the trial court’s judgment, and therefore the ground stands to be dismissed. Submitting against the 4th ground, Ms. Kashindi submitted as the appellant faults the prosecution evidence that the trial court did not evaluate the evidence properly. She stated that the impugned judgment 4 starting from page 10 to 16, the trial court thoroughly evaluated the evidence until arriving to its decision. In that she insisted that the trial court properly evaluated the evidence before making the decision, and therefore this ground also has no merit it stands to be dismissed. The learned State Attorney then submitted against the 1st ground of appeal which stated that the prosecution failed to prove the case to the required standard. She submitted that, the appellant was charged with the offence of animal stealing Contrary to Section 258(1) and 265(1) and (3) of the Penal Code. That, the evidence brought proved ingredients of the offence as the appellant was found with the Stolen cattle from the ranch of PW1. Ms. Kashindi insisted that the appellant was found in possession of recently stolen property. In support of her argument, she cited the cases of Orestus Mbawala @ Bonge vs Republic, Criminal Appeal No. 486 of 2022, CAT (Songea) at page 18 and, Salum Ally Salum vs Republic, Criminal Appeal No. 9 of 2021 CAT (Arusha) at page 16-17. She then winded up by submitting that, in proving their case, exhibit P5 was tendered by PW5 in which it was the caution statement of the appellant herein. She added that, Exhibit P2 was tendered by PW2 as seen at page 16, and these exhibits were not objected while being 5 tendered. In addition to that, she stated that, the certificate of seizure is evidence that proves the accused is the one who was found with the property. Therefore, all the exhibits and evidence proved the case against the appellant, and in turn the prosecution proved the charges against the appellant beyond reasonable doubt. In so doing, she prayed for this court to dismiss this appeal. The appellant had no rejoinder, and therefore it was this court’s turn to determine this appeal to its finality. I did go through the entire records of appeal before me and the submissions made by particularly the learned State Attorney. It is my holding that the only determinant issue here is whether the charge against the appellant was proved to the required standard ofthe law. Upon re-reading the testimonies of PW1 (the complainant), PW2, PW3 and PW4 one finds that, the testimonies were direct and clear that the appellant was readily caught by PW2 being in possession of the stolen cattle. Nevertheless, PW1 and PW2 undeniably identified the stolen cows through the marks they had, and there was no any other person who had claimed that he his cows have been stolen. 6 In his defense, the appellant just stated that it is true he was employed by PW1 but he has not committed the offence he is charged with. Like the trial court, I am not satisfied with the explanation given by the appellant at the trial court. It is well stipulated under Section 3 (1) of the Stock Theft Prevention Act Cap 265 that; “'11) If any person is found in a specified area to be in possession of any stock in circumstances which may reasonably lead to the belief that such stock has been stolen, such person shall, unless he gives an account which satisfied the court that the possession was lawful, be deemed to have stolen the same. ” Moreover, PW5 recorded the caution statement of the appellant, in which it was tendered in evidence in court without any objection, whereas it was admitted as Exhibit PE5, and in it, the appellant freely confessed to have stolen the cattle herd from PW1’s ranch. From that admission made by the appellant in his cautioned statement without being repudiated or retracted, I am forced to hold that this appeal has no merit, despite the fact that the burden of proof is always 7 on the prosecution and it is a trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence. However, as observed by the Court of Appeal of Tanzania in the case of Mohamed Haruna @ Mtupeni and Another vs Republic, Criminal Appeal No. 259 of 2007 (unreported) that: “....the very best of witnesses in any criminal trial is an accused person who freely confesses his guilt. ” For the foregoing reasons, it is my firm holding that the charge against the appellant at the trial court was proved to the required standard of the law. In that, <I find no merits in this appeal and consequently proceed to dismiss it in its entirety, and the decision of the trial court is hereby upheld. It is so ordered. Dated at SUMBAWANGA this 25th day of October, 2024. T. M. MWENEMPAZI JUDGE 8