nelson jamily vs adeline odassi others 2016 tzhc 2317 15 march 2016

IN THE HIGH COURT OF TANZANIA

AT MBEYA PC. CRIMINAL APPEAL NO. 23 OF 2013 (Original criminal Case no. 868/2012 from Uyole Primary Court and Mbeya District Court Criminal Appeal No. 35/2013) NELSON J A M ILY .................................................. APPELLANT

VERSUS 1. ADELINE O D ASSr 2. MARIETHA MUSA RESPONDENT 3. ODASSI ARON 4. THE REPUBLIC

JUDGMENT Date o f last Order: 15/02/2016 Date o f Judgment: 15/03/2016 A. F. NGWALA, J. This is a second Appeal. In the first appellate Court, Mbeya District Court the Appeal was unsuccessful. The Appeal originates from Uyole Primary Court, wherein, the Respondents were charged with the offence of Cattle Theft contrary to Sections 265 and 268 of the Penal Code (CAP. 16 R.E. 2002). The facts giving rise to this appeal may be briefly stated that, on 24th November 2011 at about 5:00 his two goats were stolen by the Respondents. The Respondent defence was to the effect that, the goats were taken under their custody because they had destroyed flowers and crops. l The trial Court was satisfied that the appellant had failed to establish an offence against the Respondents. The Respondents were acquitted under the provision of Rule 36 to the third Schedules to the Magistrate Court Act (CAP. 11 R.E 2002). Dissatisfied by the findings of the trial Court, the appellant challenged that decision in the District Court. His Appeal was found to be devoid of merits. The Appellant has knocked the door of this Court in this second Appeal. His four grounds of Appeal are reproduced as follows: “l.B oth District Court and the Primary Court erred in law in holding that, the Charge was not proved despite strong and sufficient evidence on the appellant side.

2. Having satisfied itself that the Respondent admitted before the street executive officer that, they took the Appellant got and signing o f the document payment o f Tshs. 140,000/ = together with the small goat to the Appellant the District Court erred in law and in fact in holding that there was no element o f criminality to the Respondents.

3. The District Magistrate erred in law fo r treating the agreement which was executed by the Respondent when the case was already pending on Appeal as compensation instead of admission on the part the Respondent that, they did not steal the Appellant Goats and their ready to return the same.

4. The District Magistrate erred in law fo r upholding the decision o f the Primary Court despite strong grounds made by the Appellant and documentary evidence signed by the Respondent after finalization o f the proceedings o f the Primary Court and payment o f the party o f the liability in favour o f the Appellant when the case was no Appeal. ” In Reply to the Petition of Appeal the Respondents stated as follows “ 1.Regarding ground number one to the petition the Respondents had stated that, the Trial Court and the District Court heard the partied impartially and evaluated the evidence adduced before it and everybody was afforded the right to be heard.

2. On ground number two, the Respondents had countered by saying, the act o f giving back the goats and payment o f Tshs. 140,000/ = amounted into theft. They contended that, they reported before the relevant authority about keeping the goats.

3. On the third ground, by returning the goats and making some payment was only meant to solve the matter in an amicable way and the agreement was consented by both parties”. As the Appeal was lodged before this Court; It become imperative for the Republic to be joined in this case in terms of provisions of Section 34(1) (b) to the Magistrate Court Act (CAP. 11R.E. 2002). At the hearing of the Appeal, Miss Zena the learned State Attorney declined to support the Appellant’s grounds of Appeal on the reason that, they were not valid grounds through which an Appeal could stand. The learned State Attorney supported the findings of the 1st appellate Court. With respect to the first ground of Appeal, this court is of the considered view that, the offence of Theft with which the Respondents were charged was not proved by the Appellant beyond reasonable doubt. The first appellate Court had evaluated the evidence well with regard to the elements for the offence of theft. The intention of depriving the owner permanently and asportation of the thing capable of been stolen had not been proven beyond reasonable doubt. It is crystal clear from the records that, the Respondents had detained Appellant goats following destruction of crops and flowers. It is in the record that they did so in order for the owner of the said goats to go and collect them or otherwise. It is worth pointing out

at this juncture that, the offence of cattle theft which constituted of intention and fraudulent taking of the animal was negated by the Respondent’s conduct of immediately after detaining the same they reported the incident before the relevant authority within their locality. For the purpose of convenience grounds number 2 to 4 are consolidated and disposed off together as they involve the same issue. It not contended that, the Appellant and the Respondents had executed an agreement dated 20th May 2013 wherein, the Respondents had refunded 2 goats and paid Tshs. 140,000/= in favor of the Appellant. The finding of the appellate Court that, by virtue of endorsing the agreement, the Appellant had in fact confirmed the assertion by the Respondent that, no theft of whatsoever description had occurred but rather the Respondents had detained the goats is justified. Here is justified. There was no intent to deprive the same. It goes without saying that, for the purpose of argument, even if this Court says the offence of cattle theft was proved “though it is highly disputed” yet the appellant grounds could still meet an uphill on the reason that, the Respondents returned back the two goats and were subjected to pay money at a tune of Tshs. 140,000/= as a compensation for the loss of the Goats. This is in line with the decision of Edwin Isdori Elias vs. Serikali ya Mapinduzi Zanzibar

[2004] T.L.R. 298 It was held that:- “On second appeal the Court is only supposed to deal with questions o f law, where the findings o f the fact are used on the correct appreciation o f the evidence, if both Court below completely misapprehend the substance, nature and the quality o f the evidence, resulting in an unfair trial, the Court must, in the interest o f justice, intervene” In view of this decision, I do not see any reason to interfere with the findings of the two subordinate Courts because the Appellant had received the two goats and money at a tune of Tshs. 140,000/=. Accordingly, this Appeal is dismissed in its entirety. A.F. NGWALA

JUDGE 15/03/2016 Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA

JUDGE 15/03/2016 Date: 15/03/2016 Coram: Hon. A. F. Ngwala, J. Appellant: Present 1st Respondent: Absent 2nd Respondent: Absent 3rd Respondent: Present For the Republic: Mr. Rogers (State Attorney) C/C: Mihayo Court: Judgment delivered in the presence of the Appellant, 3rd Respondent and 4th Respondent Court: Right of Appeal to the Court of Appeal of Tanzania explained.