Naftari 0002

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000023983 OF 2024 (Arising from the District Court of Tarime in Criminal Case No. 06 of 2021) BETWEEN NAFTARI EDWARD.......................................................................... APPELLANT VERSUS REPUBLIC.......................................................................................... RESPONDENT JUDGMENT OF THE COURT 21/10/2024 & 14/01/2025 Kafanabo, J.: This is an appeal emanating from the District Court of Tarime (hereinafter referred to as the 'trial court') in Criminal Case No. 06 of 2021. The Appellant herein was charged with the offence of stealing certain animals contrary to sections 258(1) and 268(1) and (3) of the Penal Code, Cap. 16 R.E. 2019 (hereinafter the 'Penal Code'). According to the particulars of the offence, it was alleged that on the 8th day of August 2020 at Nyabikondo Village within the Rorya District in the Mara Region, the Appellant stole two cattle worth TZS 1,600,000/= the property of Charles Makore Mkori. The Appellant pleaded not guilty to the charge and thus the matter proceeded to full trial. The trial court was satisfied that the Respondent proved the case against the Appellant beyond reasonable doubt. The i Appellant was thus convicted and sentenced to serve fifteen (15) years imprisonment from 7th December 2021. The Appellant was aggrieved by the decision of the trial court and lodged a notice of intention to appeal on 13th December 2021. However, for some reason, the appeal was not lodged on time. The Appellant was, thus, compelled to apply for an extension of time to file the appeal and was granted an extension of time by this Court on 7th August 2024. On 22nd August 2024, the appellant filed the present appeal marshalling six grounds of appeal whose substance is reproduced herein below. The first ground was that the prosecution failed to prove the case beyond reasonable doubt. Second, the trial court only considered the prosecution's case. Third the appellant's business was buying and selling cattle, and on the fateful day, he was in the said business and was not involved in the cattle theft as alleged. Fourth, the police officers did not accept his defence that he had a valid permit for transporting cattle and fifth he was convicted simply because he was transporting cattle at night in the absence of direct evidence. The sixth and last ground was that the trial court erred in law and in fact in accepting the PW2's evidence. At the hearing of the appeal the Appellant entered an appearance in person and the Republic was represented by Mr. Julius Katesigwa, a learned State Attorney. When the parties were invited to address the Court on the appeal, the Appellant requested the Republic to commence their submissions against the appeal which Mr. Katesigwa courteously agreed. 2 In opposition to the appeal, the Respondent commenced to submit against the 2nd ground of appeal. It was submitted that according to the trial court's proceedings on pages 32-34, the Appellant was duly heard and the Appellant relied on the defence of'alibi', but he was not successful because the defence he raised did not meet the legal requirements of alibi according to section 194(4)(5)(6) of the Criminal Procedure Act, Cap 20. R.E. 2022, also citing the case of Hamisi Bakari Lambani v. Republic, Criminal Appeal 86/2008. Therefore, it was submitted that the Appellant was heard but his defence had no value in law. As regards the 3rd ground of appeal, the Respondent submitted that the Appellant testified that he had never been involved in cattle theft, and on the fateful day when arrested, he was in the business of buying and selling cattle. However, on page 32 of the trial court's proceedings, the Appellant testified that he had never been in the cattle or cow business. Therefore, the 3rd ground in the petition of appeal goes against his testimony in the trial court. Opposing the 4th ground of appeal, the learned State Attorney submitted that the Appellant did not tender any document proving that he had a valid permit to transport cattle and that no witness was called to testify that he had a permit to transport cattle. As regards the 5th and 6th grounds of appeal, it was submitted by the Respondent that the Appellant challenges the testimony of PW2 as regards him transporting cattle at night. However, PW2 saw the accused and talked to the accused for more than five minutes and thus he knew and identified 3 the accused. PW2 also identified the cattle that were brought back from where they were hidden by the accused citing the case of Nyakuboga Boniface v. Republic, Criminal Appeal No. 234/2016. It was further submitted that PW2's testimony connects well with the testimony of PW3 and PW4 and thus there was corroboration in their testimonies. The 1st ground of appeal is challenging the proof of the case beyond a reasonable doubt. The learned State Attorney submitted that the Republic called five witnesses and tendered two exhibits in court. PW1, Charles Makori, who identified the cow tracks, PW2 saw the Appellant taking the cattle to where they were hidden. He also questioned the accused on ownership of the cattle. PW3 is the witness who was hired by the accused to transport the cattle by boat and he identified the accused. PW4 also followed the tracks of the stolen cattle. PW5 was the investigator of the case. It was, therefore, submitted that all witnesses and the testimonies pointed to the accused as the one who was with the cattle and PW1 was the owner of the stolen cattle. The Appellant simply adopted his grounds of appeal and submitted that he is now incarcerated but the trial court did not consider his defence. He thus prayed the Court to allow his appeal and release him. After hearing the parties' submissions, it is fitting for this court to determine the appeal in light of the grounds of appeal, the evidence on record, the submissions made, and the law. It is also important to point out that, although the Appellant set forth six grounds of appeal the same can be disposed of by considering the first 4 ground of appeal as other grounds boil down to whether the trial court was correct in holding that the case against the Appellant was proved beyond reasonable doubt. After reviewing the record of the trial court the following matters come out clearly: One, PWl(Charles Makori) was the owner of the cattle, but at the time the same were stolen, they were in the custody of his younger brother who was looking after them after PW1 had handed over the cattle to him on the evening of 7th August 2020. PW1 also acknowledged that the Appellant was his younger brother, as indicated on pages 12 and 13 of the trial court's proceedings. Two, it is this younger brother of PW1 who informed PW1 on 08/08/2020 via phone that two cattle belonging to PW1 had been stolen but did not name the person who stole the cattle (see page 12 of the trial court's proceedings). Three, the said younger brother of PW1 in whose custody the cattle were stolen was never named nor called to testify as a witness to prove that he was truly in possession of PWl's cattle and that the same were stolen from him. Four, the said younger brother of PW1 was never called to testify and identify what cattle were stolen from him. PW1 acted on the information he received from the said, unknown, younger brother. Five, they followed the tracks of the cattle and along the way, one villager informed them that the Appellant had passed there with the said 5 cattle heading to Sonjo Village and then to Lukuba where they found the cattle but they did not find the Appellant. Later they found Thomas Msalika, PW3, who transported the cattle to Lukuba by boat. Six, PW2, Kakungu Joseph, at night hours, saw the Appellant with two cattle, one being a red cow and the other with red marks on the neck, and the Appellant had a permit which matched the description of the cattle taking them to Lukuba. Seven, PW3, Thomas Msalika, testified that the Appellant went to him with a red cow and a white cow with red marks on the neck. The appellant gave him a permit showing that he had purchased the said cows. PW4 also testified that through PWl's wives, he learned that the stolen cattle were two, a red cow and a white cow with red marks on the neck. Eight, PW5 identified the cattle they seized as exhibits being two, one with brown colour and the other one white (see page 24 of the trial Court's proceedings). Again on page 25 of the proceedings, PW1 was recalled to identify the cattle but he identified them by marks TZRorya041 and a crescent shape which has red marks. Now, as alluded to herein above, and in light of the above, did the Republic prove its case beyond reasonable doubt? To answer this question, the Court will be guided by the relevant law that is sections 258(1), 268(1), and (3) of the Penal Code, Cap. 16 R.E. 2019. Section 258(1) of the Penal Code provides that: 258. -(1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use 6 ofany person other than the general or special owner thereofanything capable of being stolen, steals that thing. Moreover, sections 268(1) and (3) of the penal Code reads that: 268.-(1) Where the thing stolen is any of the animals to which this section applies the offender shall be liable to imprisonment for fifteen years. (3) This section applies to a horse, mare, gelding, ass mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig. Given the above, the prosecution as per section 3 of the Evidence Act was required to prove beyond reasonable doubt that the Appellant stole the cattle from the general or special owner. However, in light of the evidence on record PW1, the alleged owner of the cattle stolen, handed over the alleged stolen cattle to his younger brother who had been taking care of them since the evening of 7th August 2020. The said cattle were allegedly stolen from the custody of the said younger brother in the morning of 08/08/2020 and it was the said unidentified younger brother of PW1 who informed PW1 about the said theft. However, the said younger brother of PW1 who could prove that the cattle were stolen from him was neither identified by name nor called as a witness to prove that PWl's cattle were stolen. Since he was the custodian of the cattle he was the one supposed to identify alleged stolen cattle by their colour and special marks. However, he was not called as a witness and there was no iota of explanation as to why he was not called as a witness. Christopher, the one who was found with the cattle in Lukuba, was also not called as a witness. 7 The said mysterious younger brother of PW1 and Christopher were material witnesses who were not called to testify. It is also clear that the Respondent was at liberty to parade her witnesses the way they deem fit. This finds support under section 143 of the Evidence Act [Cap. 6 R.E.2019] which provides that: 'Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.' The said position has been echoed in a plethora of authorities; see the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Gabriel Simon Mnyele v. Republic, Criminal Appeal No. 437 of 2007, and Nicodemus Awe and 2 Others v. Republic, Criminal Appeal No. 155 of 2014 (both unreported). However, if a party, in this case the Respondent, fails to call a material witness without justification this Court is entitled to draw adverse inference against the failed party. See the cases of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020), Aziz Abdallah v. R [1991] T.L.R 71 and Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) where the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavorable to the person who withholds it.' 8 Therefore, since the Respondent failed to call the PWl's mysterious younger brother as a witness, the trial court should have drawn an adverse inference against the Respondent and thus would have created a reasonable doubt. Moreover, this means that the testimony of PW1 as to the number and identity of the cattle stolen remained to be hearsay and thus inadmissible and should not have formed part of the evidence that was considered in convicting the Appellant. See the case of Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) and section 62(1) of the Evidence Act, Cap. 6 R.E. 2019. Therefore, the said testimony of PW1 regarding the number of cattle and their identity thereof is expunged from the record. Moreover, it is not in dispute that the Applicant was not arrested with the cattle and was not seen stealing the cattle in question. Also, the person who was found with cattle (Christopher) was not called to testify that the Appellant was the one who handed over to him the alleged stolen cattle. It literally means that the Respondent failed to prove that the Appellant was the one who stole the cattle from the custody of the PWl's younger brother. Identity of the cattle is also an issue, PW1, PW2, PW3, and PW4 testified that amongst the cattle that were stolen one was red and the other was white with red marks on the neck. But PW5, the investigator of the case, testified that the cattle stolen were two one with brown colour and the other with white colour. The testimony of PW5, contradicted the testimonies of other witnesses and a certificate of seizure he tendered which was admitted 9 as exhibit P.E.l. The Testimonies of other witnesses and the contents of exhibit P.E.l indicated that the coluor of the cattle was red and white not brown as testified by PW5 (the investigator of the case). It is also clear that brown and red colours are not the same. Moreover, when PW1 was called to identify the stolen cattle he identified them by marks TZ Rorya 041 and a crescent shape which has red marks which was a new feature not mentioned before by any witness. This is another contradiction which if coupled with the brown colour mentioned by PW5 should have been considered a reasonable doubt on the prosecution case as it raises a question of whether the cattle admitted as an exhibit were the same as those allegedly stolen from the mysterious younger brother of PW1. Likewise, PW2 and PW3 testified that the Appellant had a permit that showed that the Appellant had purchased the cattle and thus allowed to transport them. This was another contradiction in the Respondent's case and went to the root of the case because it defeats the provision of section 258(1) of the Penal Code on theft. If the prosecution witnesses testified that the Appellant had a permit for the cattle he had then how can theft of the same be established in the absence of the person from whom the cattle were stolen (younger brother of PW1) and Christopher (in whose custody the cattle were found). Further, in the absence of evidence that the permit was fake or fraudulently obtained, it is clear that the evidence of the prosecution is contradictory and has inconsistencies that go into the root of the case. The 10 K decisions in the cases of Matera Simango @ Masana vs Republic (Criminal Appeal 517 of 2019) [2021] TZCA 621 (29 October 2021) and Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 are relevant. In light of the foregoing, this Court is of the view that if the trial court had considered the above matters it would not have reached the decision it did, and thus wrongly convicted the Appellant. Therefore, this court hereby quashes and nullifies the finding of guilt and conviction of the Appellant. The court further sets aside the sentence imposed by the trial court and acquits the accused of the offence of theft of certain animals. The Court further sets the Appellant at liberty and, unless held for any other lawful cause, orders his immediate release from the detention facility where he is currently held. It is so ordered. Dated at Musoma this 14th day of January 2025. K. I.' Kafanabo Judge so Judgment was delivered in the presence of Mr. Michael Kayombo, a learned State Attorney for the Respondent and in the presence of the Appellant. K. I. Kafdnabo Judge 14/01/2025 li J Court: Right of Appeal explained. K. I. Kafanabo Judge 14/01/2025 TH/.; 12