john so daudi another vs the republic 2023 tzhc 18640 3 july 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA DC CRIMINAL APPEAL NO. 71 O 2022 (Originating from the decision of the District Court ofKaiambo at Matai in Criminal Case No. 48 of2022) JOHN s/o DAUD................................................. MESHACK s/o CLEDO................................... ^^.....^k^^^^L'PPELLANT

VERSU

THE REPUBLIC RESPONDENT

JUDGMEN 24* May, 2023 & MRISHj^L^^^^^^^^ This ^Mnal appeaF^b^gement underscores, among other things, the importaf^pf copying with the procedure of the law in order to arrive at the just and timely decisions for the benefit of parties who knocks the doors of the courts of law to seek justice. The appellants John 7o Daud and Meshack 7o Cledo have been languishing in prison for almost a year now, for the offence they believe would not have led them therein had the District Court of Kalambo at i Matai (the trial court) properly directed its mind on the substantive and procedural laws governing trial of criminal cases. Before the trial court the appellants stood jointly charged with one count of Stealing Animals contrary to section 258(1) and 268(1) and (3) of the Penal Code, CAP 16(the Penal Code). It was alleged that on 04.05.2022 at Safu Village within Kalambo District in Rukwa Regjoji, the appellants wilfully and unlawfully did still two animalsTtohys/it cd'yits valued at 1,500,000/= Tshs. the property of MetsbnX/o SilondwaXX ' The appellants pleaded not guiltyJto tbeZh'atgetand the matter went to a full trial after which thytrial courf^conVicted and thereby sentenced each of the appellants tb|serveta^5^yeaf®custodial sentence believing that the prosecffiion, hM|prweddts*case against the appellants beyond < X N'~“' any reaspnable^’dgubfe^ NX

NX NX In or^er to e^erriseeits legal duty, the prosecution paraded four V\ prosecutiomyvitnesses and tendered three exhibits before the trial court. The four witnesses were Geremano s/0 Semu (PW1), Metson s/o Silondwa (PW2), E.9528 D/Sgt Vitus (PW3) and J. 2005 D/C Ibrahim who testified as PW4. On their side, the appellants fended for themselves under oath as DW1 and DW2 respectively. They had no documents to tender as exhibits. 2 Having been discounted by both the convictions and sentences imposed upon them by the trial court, they have lodged the present appeal in order to protest their innocence. Their petition of appeal is clothed with four grounds which can be paraphrased as follows: - 1. That, the charged offence was not proved beyond reasonable doubts as required by the law, 2. That, the trial court erred in law andNi^fa.ct by coyvictijhg and sentencing the appellants relying ohxprosVcyJicfrire^idence while kk XX misconceived that the prosecutfen^iglejailedXto explain how the appellants managed^fo^pass^ith The alleged stolen cows from Tanzania to Zambia:,while tnerejs aWpcedure on how to pass with cows from.one coWryWanother; 3. That, tnebtria|r'court erred in law and in fact by convicting and fsentencing the^appeH'ants basing on contradictory prosecution sentencing the appellants relying on testimony of PW2 who testified in court that he managed to identify the cows

through head without showing a special mark. 3 During the hearing of the appeal the appellants appeared in person, unrepresented while the respondent Republic was represented by Mr. Simon Perez, Senior State Attorney. Addressing this court in respect of their grounds of appeal, the appellants just requested the court to adopt their grounds of appeal as their submissions in chief and proceed to allow the present appeal, quash their convictions; set aside the sentences imposed on them and let them a they discoveredgtyvo heads^df^cowg/at Zambia village, PW1 and PW2 failed to describe thejniarks^fthe cows alleged to have been stolen by He alsd'submittedfthat the prosecution failed to bring two Zambians by the names of Geofrey s/0 Sichula and John s/0 Simutengu to testify before the trial court as the persons alleged to have received the stolen cows from the appellants, in order to prove that the appellants sold the said cows to them. 4 Mr. Perez also faulted the trial court by admitting the court proceedings of a Zambian court without considering if the procedure of dealing with documents of a foreign court was followed. He went on to submit that the said proceedings which were admitted by the trial court as exhibit P3 and acted upon to convict the appellants, have two shortfalls. One, that the judgment and proceedings of a Zambiarkcourt do not deal with the appellants, but they

bear names of the'two Zambians wh'o were convicted and sentenced to 12-month coraditioraluiisertaitgg, Two, the two documents ought not to b,e jelied\upon»byithe tri,al court for failure Assistance in Criminal Matters ^^Gap 25^R.E. 2022(the MACMA). Having analytecffilte abiS^e sfiortfalls^the learned counsel requested to this courtjto e^pung&exhibitWRS from record. He also submitted that if the court agrees to.expunge the above documents from record the V !A \ r ■> X &X the appellan&which are exhibits Pl and P2. However, to him such evidence is not credible because the villagers who arrested the appellants did not testify in the trial court in order to prove the case against the appellants. Mr. Perez finally submitted on that point, that due to those gaps in the prosecution evidence, the charge against 5 the appellants was not proved to the required standard. He therefore, reiterated his previous stance that his supports the instant appeal. I have passionately considered the submissions of both parties in the present appeal and I have also gone through the trial courts record, the exhibits tendered as well as the impugned judgment only to satisfy myself whether complaints of the appellants, asMindicated in their petition of appeal, have merit. It is worth noting that both parties^are arphe that^tne prosecution case was not proved beyond any reaspnabl^dS^fe^hie cardinal

principle in our legal system and in^nner jurisdictjons^^ch follow the adversarial system is that in any crirpinal^^^^^luty of the prosecution is to prove its case^^nd any^els^nabl^oubt. "(1) whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 6 (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof ties on that person". [Emphasis added] I have bolded the above quoted words purposely to show that it is imperative for the accuser to prove existence of any fact he desires the court of law to give judgment in his favour and thatthe burden to prove the same lies on him. There is no doubt that in the case atshand'the accuser is the” respondent Republic and the fact in issue is\tfie^stea1ihg\of cattle. In the circumstances, I will be/guicled by<the alabye principle of law to see whether the prosecution deserves ’the, right to be given judgment in its favour. tne evidence or^wr'and PW2 together with the exhibits tendered by rvvo diiu^rvwt. Harper uie uidi cuun rtxorub, rvvi luiu uie iridi cuuri that on 04.05.2022 he was awakened by his son one Sauli who told him that two cows were missing in the cows shed. That, having tipped about that PW1 informed the village leaders and joined them to search the missing cows by following

their foot prints which led them to a Safu river in Kalambo District. While there they discovered that the cows were crossed to Chilwa village in Zambia. On 07.05.2022 PW1 received a call from one Felix 7o Sumuni who informed him he had found cows meat in Zambia; so he asked him to go there and look for it. It is also the testimony of PW1 that he responded that call and went to Chilwa village with one Givas s/0 Obeti where he rotind two cow heads es % and two accused whom he named as John s/vSimtengu<and Geofrey 7o Sichula, the Zambians, who told them that^t^ey^go^those cows from the appellants. PW1 toldzthe ti^IwuiOhat one of his cows was black in colour with big horns?1 and'anomer-jone'was also black, but had Nx xk a white spot colour on thekentre’o'Tits head. V/ \\ W That thereafter^RWl gorabacl^Waijizania and informed village leaders V] ' of Saf^a.bwtxth^/inGidences^hen the appellants were arrested and interrogated wh^reby<ttrey all confessed to have stolen the cows. During cross e^i^ination|feWl said the appellants were arrested at home with no cows. PW2's evidence shows that after being told by PW1 about the missing cows on the night of 04.05.2022, he assisted PW1 to go and look for the said cows at Safu River. He also told the trial court that on 07.05.2022 8 PW1 received a call from people of Zambia and crossed over there to look for his two missing cows leaving him

behind in Tanzania. He also told the trial court about the arresting of the appellants whom he said they confessed to have stolen cows from PWl's cows shed and handled them over to the Zambians. When cross examined by the " % appellants, PW2 responded that the appellants were found with no From the above pieces of evidence,,it appears thafetjieevidence of PW1 j z- and PW2 leaves a lot to be desired. This is<because-first, the evidence of the two prosecution /witnesses shows^tljat none of them saw the appellants taking thealleged stoler^cows from PWl's cows shed. PW1 menUo0pr6fie^auli|Chls^©^hi& the person who told him that the XK J) two cowS3werexmissihgS3but for the reasons known to the prosecution that importanrwitnes^was not called to testify in court in order to corroborate^he testimony of PW1. In my view that person was in a good position to know about when and how the alleged missing cows were taken. Did they break out the cow shed or was someone seen breaking the shed, taking them out and disappeared with them? Those were some of the crucial questions to be 9 answered by such person. Failure to call him leaves a reasonable doubt whether the appellants are responsible for such stealing. Second, the evidence of PW1 and PW2 varies with the particulars of the charge sheet in the sense that while the particulars show that the owner of the alleged stolen cows is one Meston s/0

Silondwa (PW2), the evidence of PW1 and PW2 reveals that the owner ofithose cows is one Geremano */o Semu (PW1). That raises dd^btwhetlilh^he^ffence was committed by the appellants and^ik becomes>diffi^ylt to know Three, despite claimingamat he found add, discovered the two cow heads and identified, the^sameztoibe fiis) PW1 failed to tender any exhibits to proyesthat those cb'teheads?were exactly of the cows alleged stolen from his^cow/shed^on 04:05.2022. The fact that he found two cow heads (at Zambia, is''-not enough to prove that the same were of the stolen cows. Evemhis identification is not enough because his testimony shows that he^only found parts of the slaughtered cows. Four, despite claiming that PW1 found two Zambians who told him they received the two alleged cows from the appellants, none of those foreigners testified before the trial court to prove that the cow's meat they were found with were sold to them by the appellants. In the 10 circumstances, it cannot be said that the appellants are responsible for the stealing of those cows because the two Zambians did not testify in court and the appellants were prejudiced by missing the opportunity to cross examine those persons. It is a trite law that failure to call a material witness is a procedural irregularity which occasions miscarriage of justiceX(See Allen Frank Maguzo vs Republic, Criminal Appeal No.

4®bf®021;.Aziz Abdallah vs R [1991] TLR 71; Pascal Sele vs R/CdminakAppeabNOh 57 of 2017 (Unreported) and Omari Huss,^^a[i^liudg^^an id Another vs R, Criminal Appeal No. 547 of?2017. In. the case of Aziz Abdallah (supra); f the Court of Appeal statedkthat:z-><x ex w. w sg? "Failuref^call suc^rri’aferial^wltnesses who are within reach but arg„not^calleg-wjthoilt^ufficlent reasons being shown by the ’prosecutmnjs'fatal." In the present case^ the prosecution failed to bring those three persons (the two Zambians being inclusive) without any sufficient reasons and they were within reach. Failure by the prosecution side to call important persons who are Sauli, Felix s/0 Sumuni and the two Zambians as indicated above, had in my view, occasioned miscarriage of justice on the part of the appellants. ii Being accused of stealing, the appellants were entitled to have the right to hear the testimonies of those persons and to cross examine them. More so, had those crucial witnesses been brought before the trial court, the appellants could be in a good position to prepare their defence in order to encounter the serious allegations levelled against them. The above brings me to another important issuexwhich touches the procedure of dealing with documents in the foreigmcounwfor purposes of proceedings in a criminal case pending® a cour&ofhawn Tanzania. The law is very clear, as

rightl^submittedS^Mr^Perez that, before any such documents can be ofodbced^before^he court of law in Tanzania, the Director of Public Rros|cutiqns«is>.sup’p0sed to request an appropriate or document ffpm ayforeigrrcourt to be produced before the court. This isiproviddGkunder^section 10(a)(b) of the MACMA which provides as "The Director of Public Prosecutions may request an appropriate authority of a foreign country to arrange for- (a) Evidence to be taken in the foreign country; or 12 (b) Documents or other articles in the foreign country to be produced, for the purposes of proceedings in relation to a criminal matter in Tanzania". Going by the above provisions of the law, it is clear that section 10(a)(b) of the MACMA provides two options the Director of Public Prosecutions (DPP) can follow in order to enable evidence emanating from a foreign country to form part of proceedings in a mat^Mtending^m^ Tggzanian court of law, DPP may request such apprapfiatekauthdiOty to arrange for documents or other articlds^the fdreigrfflcpuntiy/to be produced for the purposes of proceedmgs'imrelation to a&iminal matter in Tanzania. In th^resent it\isvnot in dispute that evidence adduced by PW1 and PW2^in^he tri||court mentioned the two Zambians as the ones who were found with two heads of cows alleged to have been stolen in Tanzania. The evidence of those prosecution witnesses also reveals

that the two Zambians, who were prosecuted in Zambia for being unlawfully found with alleged stolen cows, told PW1 that they obtained such cows from the appellants herein. 13 In my view before prosecuting the appellants, the prosecution through the Office of Director of Public Prosecution ought to comply with the procedure enshrined under section 10 of the MACMA in order that the trial court could properly be moved on the prayer of tendering the foreign court proceedings and inventory (if any) of the two heads of cows. its judgment It is my considered opi^ton QnatNjy admitting such foreign court proceedings^vitWMcSf^^^tPjth^above procedure, the trial court misdirected itself.and^iUwas^wrong for it to act on those documents (exhibit P3) toXgrotind conviction against the appellants. In the \\ \\ \\ W circumstances, thelsaid documents were not supposed to form part of the trial court^proceedings; hence I expunge exhibit P3 from record for failure of the trial court to comply with the procedure of admitting the same. What remains is the evidence of PW3 and PW4 together with exhibits Pl and P2 which are the caution statements of the first and the second 14 appellants respectively. The issue is whether such evidence was sufficient to ground conviction upon the appellants herein. I will start with the caution statement. It is alleged that the appellants confessed before PW3 and PW4

that they are the ones who stole two cows, matched them to Safu river in Kalambo District and sold them to the two Zambians on an executory consideration of 1/100,000/= Zambian currency, though the same was not honourecKeven untiMhe appellant's apprehension. However, I have noted that a zpersdn^fFo^gi in the caution statements is not the one^hl is alleged^Hhave'lD^en the owner of the C a stolen cows. According to.the ^pfbsecutiqrk evidence, the owner of the \\ Z alleged stolen coyvs is RWl.^Bat observation is fortified by the evidence of PW2 who^rnentioried Pwi^as the owner of the alleged stolen cows and ipe^enfTaikby^estifyirig^that PW1 went to Zambia to search for his cows leaving him afeSafu Village. In my view tfiat-makes confusion and indeed, leaves a reasonable doubt whether the appellants' voluntary confessed before PW3 and PW4 to have stolen the two cows from PW2. If that is not enough, I have also gone through the proceedings of the trial court and its impugned 15 judgment to satisfy myself if the trial court considered the evidence of both parties in the course of composing its judgment. The said proceedings clearly show that when PW3 and PW4 prayed to tender the caution statement of the 1st and 2nd appellants respectively as exhibits, each of the two appellants raised an objection on the admission admitted the documents as exhibits Pl anebP2 re&pectiveiivl However,

despite the repeatedfemplainf^M^appellants from when they were adducing theip^ewdence^cin inquiry, up to the time they entered their defences iri^the mainTase,the trial court did not consider such complair0®n its^judgmeij^ihstead, it relied solely on the n prosecution evidencetwithoutsassigning reasons for departing from the appellants' evidence><\ \\ This being^the first appellate court with power to re-evaluate the evidence of the trial court, and come to its own conclusion, I find that there is a need to do so. Like I have said earlier, the trial court reached its decision without considering the defence evidence. The above court's finding is fortified by the impugned trial court's judgment, particularly at page 2 where it reveals as follows: - 16 "This court having passed through the evidence adduced by prosecution witnesses, has framed one main issue which is: - (a) Whether 1st and 2^ accused stole two cows of Metsoni s/o Siiondwa"[Emphasis added] From the above excerpt, it is obvious that the trial court composed its judgment based on the prosecution evidence only. Another anomaly is that though the appellants were mentioned inftthdifemedliss^sas the 1st and 2nd accused, their testimonies wefe^not Gonsiaeretrby the trial court in its judgement. That caffebe a^eftairi§dj|rormpage 2 up to page 3 of the typed trial court's.jucigment In my perusal of th^tria^couft

proceedings, it seems the appellants ULA far^by telling tne trial court that he was beaten by the kA ly|thatj\but also during the inquiry hearing and at the ,^the appellants reiterated their previous stance that they were beaten before making their statements and that they did not still the alleged stolen cows. All that evidence was not considered by the trial court in the course of composing its judgement. It is my view the omission to do consider the appellants evidence and failure to assigns sufficient reasons for deciding 17 against the appellants was contrary to the requirement of section 312(1) of the CPA which provides, intel alia, that: - "Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the persona! direction and superintendence of the presiding judge o'r^magistrate In the language of the court and shall coniaiiwtepoint^r points for determination, the decision thereon:<.andxthe reasons for the decision, and shall beKdated^and^signed^by the presiding inquiry ihMespect ofithe two caution statements, the trial court assigned reasons for overruling the appellants objections, but in its judgment no such reasons were given. Since, no reasons were assigned by the trial court as to why it did not believe the evidence of the appellants who strongly denied to have 18 made their

statements voluntary before PW3 and PW4, then I am of the considered view that their confessions were involuntary made. Section 27(3) of the Evidence Act provides clearly that: - "(3) A confession shall be held to be involuntary if the court believes that it was induced by any threat; promise or other prejudice held out by the police officer to whc^itwas made or by any member of the Police Force or oy^any^ othen^person in W' authority." _ Basing on the shortfalls which f have pointed -aboye, I am of the settled \\ belief that the confession|ralleged to'"have b’eep made by the appellants before PW3 and PW4> were, induced<by threat and torture held out by \.X Xlk f. I first appellant, X (■( XX Hence,X find thafthadxthe trial court properly tasked its mind to assess the weight^^Lt^'two caution statements and the circumstances in which the same were obtained, it would have not admitted them as exhibits for being tainted with some vitiating factors as I have pointed above. Consequently, I expunge exhibits Pl and P2 from the record. 19 Besides, while supporting the present appeal Mr. Perez confined his discussion on grounds number 1 and 4 of the appellants' petition of appeal. However, considering the fact that in the course of determining the main issue above, I have discussed in detail how the prosecution case was marred by plenty of discrepancies, I do not see any need to widen

the scope of my discussion because the first ground suffices to The above being said, I find that his is not a fit case to order a retrial. I therefore allow the present appeal, quash the convictions meted on the appellants and set aside the sentences and all orders imposed on them by the trial court. Meanwhile, I order that the appellants be immediately released from the prison remand unless otherwise held for some lawful courses It is so ordered. Judge 03.07.2023 Dated at Sumbawanga this 03rd Day of July, 2023. Judge 03.07.2023 Date 03/07/2022 Coram - Hon. K. Saguda, Ag.DR 1st Appellant Present 2nd Appellant Present Respondent Present B/C J.J Kabata Ms. Ashura for Respondent: The matter is coming for Judgment before Hon. Mrisha, J who is on other official duties. We are ready for hearing the judgment. * Sgd: K.S Ag. Deputy gistr 03/07/2 22 21