Judgment Hitira 1

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA

AT GEITA CRIMINAL APPEAL NO. 14761 OF 2024 (From the Economic Case No.05 of 2023 in the District of Bukombe at Bukombe) 1. HOSEA JAMES @ HITIRA 2. MASUMBUKO KUBINGWA………………………………………....APPELLANTS

VERSUS REPUBLIC………………………………………………………..……..RESPONDENT

JUDGMENT Date of last order: 03/07/2024 Date of Judgment: 11/07/2024 MWAKAPEJE, J.: In the District Court of Bukombe, the Appellants herein, Hosea James @ Hitira and Masumbuko Kubingwa, were charged and convicted of theft contrary to sections 258 and 265, malicious damage to property contrary to section 326(6A)(6B) of the Penal Code, Cap. 16 R.E. 2022 as read together with Paragraph 7(1)(a) of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2022; Occasioning loss to a specified authority contrary to paragraph 10(1)(2)(3)(4)and (5) of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act; and Possession of goods suspected of having been stolen or unlawfully Page 2 of 18 acquired contrary to section 312(1)(a) of the Penal Code, Cap. 16 R.E. 2022 read together with Paragraph 7(1)(a) of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2022, being the 1st, 2nd, 3rd, and 4th counts, respectively. The background of the present appeal was introduced by the testimony of PW2, Jidendei Malemi, a militiaman. He stated that on 19/04/2023 at about 20:00 hrs, while en route to guarding the watermelon of one Mr Walangi, he saw Appellants coming from the path through the direction of the transformer while carrying on

bicycle items which he suspected to be iron or steel from the transformer. He called PW4, the Hamlet chairperson, and informed him about the incident. PW4, through the help of other persons who were neither brought to court nor identified, procured the arrest of the Appellants who had wires. He called the area Counsellor, who informed the police about the arrest, and after their arrival, they took the Appellants to the police station. PW4 testified that after the arrest, the Appellants confessed to having stolen the items from the transformer and that they had been selling them to one Sadick Ahamada Bushumbiro, the third accused person. Page 3 of 18 Following this piece of evidence and from the other five prosecution witnesses, including investigation officers of Bukombe District and TANESCO employees from the Geita Regional Office, the Appellants were convicted for the 1st, 2nd, 3rd and 4th counts. Discontented with the decision of the trial court decision, the Appellants lodged the present appeal on the following grounds: 1. That the trial Magistrate Court erred in law and fact to convict the Appellants while they pleaded not guilty to the offences alleged to them. It was the duty of the Court to follow up in detail to determine why the Appellants pleaded not guilty.

2. That the Trial Magistrate Court erred in law and facts in convicting the Appellants by using Hearsay Evidence given by the Prosecution side. For example, the Prosecution Side failed to fully go to the scene to see where the electrical equipment was stolen Thus, the investigation of this case was poor. No police officer who proved in Court visited the place where electrical equipment was stolen.

3. That no any Witness was brought in the Trial Court to prove that he saw the applicants stealing the Electronic equipment.

4. That the trial Magistrate Court erred in law and fact by convicting the Appellants without following in detail whether they had a connection to commit the offences alleged to them.

5. That the Trial Magistrate Court erred in law and facts to convict the Appellants with the excessive conviction of 20 years each, without considering the defences given by them, Page 4 of 18 6. The Trial Magistrate Court erred in law and fact in convicting the Appellants without a complainant from TANESCO CO. That is why even the third Accused was acquitted. The appeal was argued orally. The Appellants appeared in person, while the Respondent Republic was represented by Mr Musa Mlawa, a learned State Attorney. Apart from their filed grounds of appeal, the Appellants had no further comments, allowing Mr Mlawa, who opposed the appeal, to address the advanced grounds. Mr Mlawa argued that the first, second, and third grounds of appeal collectively lacked merit. He contended that the prosecution is responsible for overseeing the investigation of criminal cases as per section 16 of the National Prosecution Service Act, Cap 430 R.E. 2022, rather than conducting the investigation or visiting the crime scene. The prosecution's role is to coordinate the investigation process. Mr Mlawa emphasised that the evidence leading to the Appellants' conviction was mainly circumstantial, based on the testimony of PW2, Jidendei Malemi, who stated that while patrolling the area as a community police officer, he observed the two Appellants around 2000hrs near the TANESCO transformer. Using a

torchlight, he saw them taking electrical equipment, particularly a wire, from the transformer and loading it onto their bicycle while wearing reflective gears resembling TANESCO Page 5 of 18 employees. Due to previous theft incidents in the area, PW2 became suspicious and promptly informed his colleague, Hamis Julius (PW4). When PW4 and PW2 arrived at the scene, they apprehended the Appellants successfully. Additionally, Mr. Mlawa argued against the Appellants' claim of no independent witnesses at the scene. He referred to the case of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16, where the Court of Appeal convicted the Appellants based on circumstantial evidence, which did not absolve them of their involvement in the crime. Consequently, he urged the dismissal of the grounds of appeal, as the evidence presented supported the case against the Appellants. Concerning the fourth, fifth, and sixth grounds of appeal, Mr Mlawa argued that the testimonies provided by the prosecution witnesses were corroborated by independent witnesses, establishing a link between the Appellants and the alleged offence. TANESCO employees, including PW1, Ereutherius Katemana, and PW5, Eng. Michael Peter visited the scene and confirmed that the transformer near where the Appellants were located had been damaged, with the wires in question originating from that transformer.

Therefore, the absence of a TANESCO witness was unfounded, and he requested the same to be disregarded. Page 6 of 18 Regarding the acquittal of the 3rd accused person, Mr. Mlawa mentioned that he was charged with possession of stolen property, a charge not brought against the present Appellants. However, the said charge was not proven against the 3rd accused by the prosecution, resulting in his acquittal. The eyewitness account provided by PW2, which was independent, was not contested, and the trial court relied on the identification used to identify the Appellants, ensuring its sufficiency as documented on page 26 of the trial court's decision. Mr Mlawa emphasised the significance of independent testimonies, as established in the case of Vuyo Jack vs Director of Public Prosecutions (Criminal Appeal No. 334 of 2016) [2018] TZCA 322. In rejoinder, the 1st Appellant requested to be released, while the 2nd accused person disputed the circumstances surrounding his arrest and involvement in the incident. Having carefully gone through the arguments of the parties, I will deal with this appeal in a manner I consider useful. Thus, I will deal with the grounds of appeal in seriatim. However, in so doing, this being the first appellate court to determine whether the offence was proved to the required standard, I will revisit the evidence adduced in the trial court, make a self-analysis

and come up with my own findings. This position has Page 7 of 18 been stated in several Court decisions, and to sample a few, see the case of Juma Kilimo vs Republic (Criminal Appeal 70 of 2012) [2012] TZCA 51; the Court held that; “Being the first appeal, it is trite law that it is in the form of re-hearing.” Also, the case of D.R. PANDYA V R (1957) E.A 336, Jamal A. Tamim vs Felix Francis Mkosamali and Another (Civil Appeal No. 110 of 2012) [2013] TZCA 342 (3 May 2013), where it was stated that: “Undoubtedly, this being the first appeal, it is trite law that it is in the form of re-hearing. The appellant is entitled, in law, to have our own consideration and views on the entire evidence and our own decision thereon.” [Emphasis Supplied] Regarding the first ground of appeal, which I consider lacking merits, section 228(3) Criminal Procedure Act, Cap 20 R.E 2022 is well articulated and provides as follows: (3) Where the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. From the above dictates of the law, it is undeniable that the Appellants pleaded not guilty to the charges concerning their involvement in the commission of the offences they were charged with. However, it is also undeniable that the trial Magistrate proceeded to hear the case, Page 8 of 18 whereas the prosecution presented witnesses to prove

the case, and the defence was also accorded an opportunity to give evidence claiming their innocence. Indeed, what transpired is what the law requires; thus, pleading not guilty to the charge happened to be one thing, and being found guilty is another, as the evidence determines the innocence of the accused person. I therefore dismiss this ground. Regarding the second ground of appeal, it is the Appellant’s concern that the evidence relied upon in convicting them was hearsay evidence. To appreciate this, I find it prudent to travel to the evidence which led to the Appellants' conviction. It was the prosecution's evidence that PW2, having seen the Appellants with the items he suspected to be electrical equipment, did call PW4, who organised the arrest of the Appellants. In the typed proceedings of the trial Court on page 30, PW4 alluded that PW2 informed him to have seen the Appellants wearing a reflector jacket while carrying on the bicycle the wires from the electric transformer, the items admitted as exhibits and were relied on. The description stated by PW4, especially the reflector jacket, which facilitated the arrest of the Appellants and was seized, is all hearsay as PW2 did not in his evidence state to have communicated such to PW4. Hearsay evidence being not acceptable was stated in the case of Leopold Page 9 of 18 Mutembei vs Principal Assistant Registrar of Titles,

Ministry of Lands, Housing and Urban Development and Another, (Civil Appeal No.57 of 2017) [2018] TZCA 213; thus, such evidence cannot ground a conviction. I, therefore, find merit in this ground. About the third ground of appeal, the Appellants contend that no witness testified to have seen them stealing. Mr. Mlawa refuted this claim by stating that PW2 testified to have seen the appellant committing the offence of theft. From the trial court’s proceedings, it was the testimony of the PW2, Jidendi Malimi, on page 22 of the typed proceedings that; “... I saw two people who had one bicycle and a touch, they were coming from a transformer unit which is at Kiziba village. The said two had several iron/steel on their bicycle; they had loaded them on a bicycle carrier.” [Emphasis supplied] The evidence above states that PW2 saw the Appellants carrying the wires on a bicycle from the transformer unit with a torch light. He did not see them stealing, as contended by Mr Mlawa. Not only did he not see them stealing, but he did not state the intensity of the light used, nor did he describe their complexion when he saw them coming from where the transformer was located. This kind of evidence and identification is unacceptable. In the case of Juma Hamad vs Republic (Criminal Appeal No. 141 of 2014) [2015] TZCA 79, it was clearly stated that: Page 10 of 18 “When it comes to the issue of

light, clear evidence must be given by the prosecution to establish beyond reasonable doubt that the light relied on by the prosecution witnesses was reasonably bright to enable identifying witness to see and positively identify the accused persons. Bare assertions that there was light would not suffice. It is not enough to say that there was light at the scene of the crime, hence the overriding need to give sufficient details on the source of light and its intensity.” Furthermore, PW2 did not testify to having seen the Appellants stealing; he only suspected the wires they carried were obtained from the transformer. Mr. Mlawa’s argument is unsatisfactory as he seems to have described what he hoped must have happened rather than what PW2 had seen. This is because the only evidence that linked the Appellants with the offence was a mere passage through the path from the transformer's direction. To me, this does not necessarily mean that they committed the crime; see the cases of Damiano Petro and Jackson Abraham vs R [1980] TLR 260, and Lidumula Luhusa @ Kasuga vs R (Criminal Appeal No.352 of 2020) [2021] TZCA 418 I am aware of the position through which circumstantial evidence grounds conviction, as stated in the case of Mathias Bundala vs Republic (supra) referred by Mr. Mlawa. However, the said circumstantial evidence must irresistibly point to the guilt of the Appellant; see

the case Page 11 of 18 of Gabriel Simon Mnyele vs Republic (Criminal Appeal 437 of 2007) [2010] TZCA 97, where it was stated that: “ It is common ground that for circumstantial evidence to found a conviction, it must be such that it irresistibly points to the guilt of the accused. From the authorities, we are settled in our minds that when a case rests on circumstantial evidence, such evidence must satisfy three tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, (iii) the circumstances taken cumulatively, (iv) it should form a chain so complete that there is no escape from the conclusion that, within all human probability, (v) the crime was committed by the accused and none else.” The circumstantial evidence against the Appellants in this appeal was twofold. First, they were observed walking from the pathway leading to the transformer while carrying wires, and second, whether they were the same persons identified by PW2 who were later arrested. These pieces of evidence alone are insufficient to support a conviction, especially considering the lack of evidence indicating any restrictions on public use of the pathway near the transformer. Furthermore, the identification of the individuals

allegedly seen by PW2 was inconclusive, as it remains unclear whether the individuals apprehended were the same individuals who were seen by PW2, given the absence of any indication that PW2 was present during the arrest. Consequently, the chain of evidence is Page 12 of 18 broken, rendering the current evidence inadequate to convict the accused of theft. Essentially, the Appellants were convicted based on mere suspicions, as highlighted in the proceedings of the trial court on page 24, where PW2's testimony during cross-examination raises doubts as he stated that: “Nilihisi mnatoka pale kwa sababu wanakujaga wezi pale kwenye transformer.” From the above testimony, the evidence of PW2, who introduced the tale of the arrest of the Appellants, was on suspicion. It is a settled principle of criminal justice that in criminal charges, suspicion, however strong it may be, is not enough to ground a conviction. This has been repeatedly pronounced in numerous court decisions. See Mpunzu @ Elisha Mpunzu vs Republic, (Criminal Appeal 12 of 2002) [2004] TZCA 3, Elia John vs Republic, (Criminal Appeal 306 OF 2016) [2019] TZCA 303, and Amrani Hussein vs Republic, (Criminal Appeal 13 of 2019) [2021] TZCA 136 to mention a few. In the present case, had the trial Magistrate focused on the evidence adduced, he would not have reached the decision to convict them with this type of evidence. This

also answers the fourth ground, which I find Page 13 of 18 closely related. By upholding this stance, I saw no need to delve into the remaining two grounds. However, I should highlight a few points regarding whether the prosecution's case was proved beyond a reasonable doubt as mandated by section 3(2)(a) of the Evidence Act. In addressing this question, I will specifically focus on the charges and evidence brought against the Appellants. I will commence with the first count of stealing; the Appellants were collectively charged for the offence of stealing the assets of TANESCO valued at Tshs 2,838,200/=. The third accused person was absolved of any wrongdoing because he is a licensed entrepreneur specialising in electrical supplies and was lawfully in possession of the items in question. Astonishingly, the presiding Magistrate proceeded to pass judgment and sentenced the Appellants as charged with the said count. This seems preposterous to me, considering that most items seized belonged to the third accused, who was subsequently acquitted. Even if the Appellants were found guilty, their culpability should have been limited to the items they were individually suspected of stealing, excluding those attributed to the third accused since there was no evidence connecting them with the said items. Page 14 of 18 Furthermore, it seems incongruous to levy charges against the Appellants

on various dates in April for the theft of equipment they were not found in possession of. The items allegedly found in their possession were nine copper wires and eight earth rods, the alleged offence on 19/04/2023. Apart from this, there is no tangible link between them and the alleged thefts occurring on various dates in April 2023. Moreover, no documented evidence in court indicates any theft incidents from the transformer in that specific area during the month in question. Therefore, it was unjust that the Appellants were convicted of a crime they did not commit, as they did not have items matching the stated value in the said count. Concerning the second count, the Appellants were accused of maliciously damaging electric copper wires and earth rods from a transformer. Even though there was no evidence of them being seen tempering with the transformer, we are told the Appellants were found in possession of 9 copper wires and 8 earth rods. However, we have not been told if the transformer from which it is purported to be stolen had such appliances. PW1, in his testimony, mentions his co-worker at Bukombe District, Flument Mayunga, who informed him of the incident and the arrest of the Appellants. However, Mr Mayunga was not brought to testify in court. To me, the said Mayunga was a crucial witness in Page 15 of 18 addressing the facts and substantiating the damages and

whether the said equipment of the same quantity and size came from the said transformer and was the property of TANESCO to connect it with what the Appellants were found in possession of since he was stationed at Bukombe. His absence draws an adverse inference to the prosecution; see the case of Aziz Abdallah v Republic (1990) TLR 71, as referred to in the case of Alhaji Ayubu @ Msumari & Others vs Republic (Criminal Appeal 136 of 2009) [2010] TZCA 20, where it was stated that: “The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, can testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.” [Emphasis supplied]. Regarding the third count, one should note that to prove the offence of occasioning loss to a designated authority, it is imperative for the prosecution to present evidence demonstrating the financial detriment or injury inflicted upon the authority due to the actions of the Appellants rather than mentioning it on a charge. This evidence should include financial reports, testimonies from witnesses, expert opinions, or any other pertinent documentation that bolsters the assertion of loss. I should also insist that the prosecution must

establish a direct link between the Page 16 of 18 Appellants’ conduct and the financial harm suffered by the said designated authority. In the case at hand, the two TANESCO employees who provided testimony failed to present any report pertaining to the loss of Tshs 11,721,691.09/=, which was occasioned by the Appellants. It was, therefore, wrong for the trial court to convict the Appellants on the offence that was not proved. The fourth count pertains to the offence of possession of stolen goods suspected to have been stolen. The doctrine of possession of stolen goods requires proof of five elements. The elements were well stipulated in the case of Joseph Mkumbwa and Another vs Republic (Criminal Appeal 94 of 2007) [2011] TZCA 118, that: “For the doctrine of recent possession to apply as a basis of a conviction, it must be proved, first, that the property was found with the suspect; second, 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 supplied] The prosecution seems to be far from meeting the above-stated conditions. It is purportedly stated that the Appellants were found in possession of 8 pieces of copper earth rods and 24.12 meters of copper wire, all valued at Tshs 1,164,000/=.

Unfortunately, neither the charge sheet nor the evidence stated the owner of the eight copper rods and Page 17 of 18 wires. The items were not substantiated to belong to TANESCO, as no marks or explanations distinguished them from others. Also, there was no proof that the said copper rods and wires were stolen from the transformer. Despite the accused purportedly being found in possession of the said items, the burden of proof did not shift to the Appellants as far as section 3(2)(a) of the Evidence Act, Cap 6 R.E. 2022 is concerned. In the case of Omary Said @ Habibu & Another vs Republic (Criminal Appeal No. 302 of 2014) [2015] TZCA 284, it was stated that: “It is the principle of law that in all criminal cases, the burden of proof rests upon the prosecution to prove the charge against the accused person beyond a reasonable doubt. The burden never shifts to the accused. What the accused has to do is to raise a doubt on the prosecution case.” [Emphasis supplied] Additionally, the Appellants were charged with section 312(1)(a) of the Penal Code, Cap. 16 R.E. 2022 read together with Paragraph 7(1)(a) of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E.

2022. To me, in the circumstances of this case, where there was no proof as to the value of the items purported to have been in the possession of the Appellants, it was, therefore, wrong for them to be charged with Paragraph 7(1)(a) of