PC CRIMINAL APPEAL PETRO NYAWAMBURA

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA PC CRIMINAL APPEAL 000019350 OF 2024 REFERENCE NO. 202407122000019350 (Arising from the Criminal Appeal No. 000012730 of2024 of the District Court of Tarime at Tarime, Originating from Criminal Case No. 202 of2024 at Tarime Primary Court) PETRO NYAWAMBURA............................................................. 1st APPELLANT JUMA MWITA............ .............................. 2nd APPELLANT VERSUS IBRA SIMION NCHAGWA RESPONDENT JUDGEMENT 03"1 & 10“' September, 2024 M, L, KO MBA, J.; This is the decision against an appeal by the appellants who was dissatisfied by the decision of the District Court of Tarime (the first appellate court) where the Magistrate uphold the decision of the trial court that the offence was proved to be committed. Appellants were convicted of an offence of stilling contrary to section 265 of the Penal Code, Cap 16 and sentenced to six-months imprisonment each of them and were ordered to Page 1 of 15 pay complainant the total of TZS 3,400,000/= which was divided equally to both. It was alleged by the respondent that on 30/3/2024 around morning hours at Gwitiryo village in Sirari special District without bonafide claim of right appellants stole honey from bee hive owned by respondent worth Tsh. 3,400,000/. When the charge was leveled against appellants, both denied the offence hence full trial. Basing on complainant case, the trial Magistrate convicted appellants and sentenced as narrated. Dissatisfied with conviction, appellants unsuccessful appealed to Tarime District Court (the first appellate court) with nine grounds of appeal where it was found that appeal lacks merit and was dismissed. Tireless the appellants knocked the door of this court with another nine grounds of appeal challenging the decision of the 1st appellate court which found the identification of appellants then accused person was done as per law and the offence was proved to the required standard. The grounds of appeal as listed by the appellants reads; 1. That, tiie teamed Magistrate erred both in law and fact for upholding conviction and sentence to the appellants whereas there was a gross variance between the charge and the evidence. Page 2 of 15 2. That, the Learned Magistrate erred both in law and fact for upholding the conviction and sentence to the appellants whereas die offence was not proved beyond a reasonable doubt. 3. That, the Learned Magistrate erred in law and fact for upholding conviction and to the appellants whereas there were no exhibits tendered and admitted before the court to prove the case. 4. That, the Learned Magistrate erred In law and fact for upholding conviction and sentence to the appellants whereas there were serious contradictions of evidence between prosecution witnesses. 5. That, the Learned Magistrate erred in law and fact for upholding conviction and sentence to the appellants whereas there were possibilities of mistaken identity in terms of WAZIRIAMANI VS THE REPUBLIC1980 TLR2S0 6. That, the Learned Magistrate erred in law and fact for upholding the conviction and sentence to the appellants whereas there was a unilateral change or amendment of the charge without affording the appellants the right to a fresh plea. 7. That, the Learned Magistrate erred in law and fact for upholding the conviction and sentence to the appellants whereas there was a misapplication of circumstantial evidence. 8. That, the Learned Trial Magistrate erred in law and fact for upholding an order for the appellants to pay compensation to the respondent whereas there was no basis or valuation conducted to prove the amount. Page 3 of 15 9. On other grounds to be stated orally to the court during hearing by the leave of the court When the appeal was scheduled for hearing, Mr. Joseph Gideon Lameck represented both appellants while respondent appeared in person without any representation. Mr. Lameck started to argue his appeal with the 1st ground and submitted that the charge as quoted at page 1 of the trial court judgment shows the offence occurred 03/03/2024 but the evidence show the offence was committed on 30/3/2024. Further, he submitted that there is also contradiction on time when the crime occurred, in the charge it was said it was on 06:00 am but in the evidence it is said to be occurred at 05:45 am as seen at page 4 of the judgement. It was his position that contradiction make the offence not to be proved beyond reasonable doubt. He cited the decision of Godlisten Raymond Mosha @ Gibson vs Republic (Criminal Appeal No, 247 of 2020) [2023] TZCA 17676 where court rule that if there is variance in evidence and the charge sheet then the charge has to be amended otherwise the offence is said not to be proved. On the 5th ground he argued that by the time the offence was committed there was no enough light and the witness failed to explain how he managed to see accused while relying the principle established in Waziri Page 4 of 15 Amani vs Republic. He went on submitting that witness did not explain the time spend in observation and it was not said if there was any impendent bearing on mind that there was dark. He complained on the findings of both lower courts on identification. On ground number 7 about circumstantial evidence he complained that it was not proved basing on the conditions to such type of evidence because it is impossible to establish circumstantial evidence when the time and date of commission of offence is not known and supplied this court with the decision in Shilanga Bunzali vs Republic, Criminal Appeal No. 600 of 2020 and analysed that basing on date and variance in time the condition of link is failed to be established, also the identification was not proper and there is likelihood persons who was at the scene was not the appellants and urge this court to find the circumstantial evidence was not correctly invoked. Mr. Lameck then combined 2nd, 3rd and 4th ground about proving the offence beyond reasonable doubt. It was his submission that when there is variance in the charge and evidence the offence cannot be said to be proved beyond reasonable doubt. He went on submitting that 1st appellate court errored to uphold conviction while there was contradiction in Page 5 of 15 evidence while citing the testimony of the PW1 as reproduced at page 2 of the trial court judgment. Complainant said he saw accused with bucket then he was wondering where did accused got that honey, he was wondering how did the complainant know that the bucket has honey. To him, that is self-contradiction as was in Tumaini Frank Abraham vs Republic, Criminal Appeal No. 40 of 2020 CAT decided that among the reasons which make a court not to believe a witness is when he contradicted his testimony. On the 6th ground counsel complained that when charge was amended, appellants were not given time to plea as at page 6 of the trial court judgment show the accused were charged with stealing 34 bee hives although the recent charge read stealing of honey. The record is silent if the charge was amended. On the 8th ground he submitted that the punishment of paying respondent TZS 3,400,000/ was too excessive as the complainant did not mention amount of honey which was stollen. He was asking how was the trial court know the value of the honey stolen while complainant did not testify on that and insisted on principle of who allege must prove. Counsel went on submitting that the fact that 1st appellate court uphold the punishment is unwanting as it invites any person to claim anything without proof while supplied the decision in JM Hauliers Page 6 of 15 Limited vs Access Microfinance Bank, Civil Appeal No. 274 of 2021 that a person who claim must prove his claim. He finally prayed this court to find the appeal has merit and allow it. The appeal was resisted by respondent who combined ground number 1 up to 6 and submitted that he complained on the honey stealing at police station who then prepared a charge which was read to appellants during trial while insisted that the case was about honey and the date in which the offence occurred was 30/3/2024. Respondent insisted there was no variance on their testimony as they complained about honey stealing. On the 3rd ground it was his submission that failure to tender exhibit should not make him lost his case. On the 4th ground he insisted that SM 1 and SM2 testified about buckets which had honey and appellants did not deny that fact. Responding to the 5th ground about circumstantial evidence it was his position that it was correctly invoked and the trial Magistrate considered testimony of both side. He went on submitting that appellants failed to explain their whereabouts on 30/3/2024. About the charge he submitted that accused were reminded of their offence, they give testimony and he, the respondent cross examined them.. He insisted the charge was in the honey stealing. Page 7 of 15 Respondent combine 7, 8 and 9 ground and submitted that he was not a lawyer and that contradiction on provision of law should not prejudice him while praying justice has to be done. Clarifying on the value of honey, he submitted that appellants has taken honey in 34 bee hives and he was asked by police the price of honey and it was police officers who make calculation basing on the market price. He elaborated that one bucket is sold at TZS 100,000/=. Clarifying on the time when the offence was committed, he submitted that it was 06:00 am and the appellants passed near him, further, he said SM2 informed the trial court that he saw them around 5:45 am with honey. The variance on dates from charge shit and testimony he repeated what was said by the 1st appellate court that it was a typing error. He prayed this court to find the appeal has no merit. During rejoinder Mr. Lameck explained that the case went on full trial that means appellant denied the offence not as was presented by the respondent. About the value of the honey, he insisted the claims has to be proved in court not at police station as respondent submitted. From submission it means 34 buckets were stollen and he wonders how was it possible for a person to carry 34 buckets in a motorcycle. He prays the appeal to be found with merit. Page 8 of 15 This is the second appeal as previous hinted, the first appellate court uphold the findings of the trial court. The trial court was best place to see and assess the demeanor of the witness (See Shaban Daudi vs Republic, Criminal Appeal No. 28 of 2001) while the first appellate court had a duty to re-asses the entire evidence and ultimately arrive to its own conclusion as was in Mwita Cornel Philimon @ Gaucho vs Republic (Criminal Appeal No. 306 of 2020) [2023] TZCA 17822 (10th November, 2023). The first appellate court is also the final court of facts. See Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694 (9th November, 2022). At the second appeal, the practice is that the Court should very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below. See, Salum Mhando Vs Republic [1993] TLR 170 and Joseph Safari Massay vs Republic, Criminal Appeal No. 125 of 2012, When I read all grounds of appeal collectively, I find the major issue for determination is whether complainant manage to prove to the required standard that it was the accused who committed the offence as per rule 5 Page 9 of 15 of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations GN No. 22 of 1964 (the Rules). Complainant who appeared as SMI testified that he saw one of the alleged thieves carrying three buckets in the motor cycle and during cross examination he said the crime took place at night of 29th March to 30th March, 2024. SM2 testified during trial that he saw three young men carrying bucket each. And he wanted to know, they replied they carry honey. There is no further information on the value of honey neither the number of buckets recovered. That is to say, basing on complainant case they saw four backets of honey. When convicted, the trial Magistrate, apart from sentencing appellants, he ordered appellants to pay to complainant TZS 3,400,000/= as a value of honey said to be stollen. One may wonder how did the trial Magistrate got the value of the honey. Rule 7 of the Rules provides that; 7. Courts not to go outside evidence In deciding all cases, the court must confine itself to the facts which are proved in the case and the matters it is deemed to know or may presume under rules 3 and 4. A court must not take into account any fact relating to the case which it hears of out of court except fads learnt In the presence of the parties during a proper visit to any land or property concerned In the case. Page 10 of 15 In the case at hand, complainant did not indicate the value of the honey neither the number of the buckets claimed to be used to carry stolen honey. That was not in the dictates of law. Another area which needed attention of this court is on proving the offence to the required standard as on charge sheet versus evidence adduced. The charge sheet was reproduced at page 9 - 10 of the trial court judgment and show that the offence was committed on 03/03/2024. However, complainant testified that the offence was committed in the night of 30/03/2024. There is variance on charge sheet and the evidence. It was the submission of the counsel for appellant that the variance makes the offence not to be proved and the respondent insisted on what was decided by the trial court that it was a typing mistake. There is a need to know what does the law provide about charge sheet. Primary Court Criminal Procedure Code which is found as the third schedule of the Magistrate Courts Act, Cap 11 (the codes) provides; 31-(1) At tiie commencement of the trial, and immediately after the court has made any amendment or addition to the charge, the court shall read and, if necessary, explain the charge to tiie accusedperson. Page 11 of 15 (2) After reading the charge, the court shall either itself state the facts on which it is founded or require the complainant to state shortly such facts. (3) After the charge has been read and, if necessary, explained to the accused person and a statement of the fact has been made, the accused shall be asked whether or not he agrees the charge is true. The charge sheet should always indicate material things (includes date, time and place) on which the alleged offence was committed. The need to do so is not far to get, it will enable the accused to know the case he is going to face and prepare himself for his defence. From the quoted provision of the code, the trial court had two major things at the first time when accused appear in court. One; to read and explain the charge to accused person and two; to state the facts or allow the complainant to state the facts. The charge which was the cause of the trial as found in court record indicated the offence was committed on 03/03/2024. It was the Magistrate who read the charge sheet and explain facts to appellants. In all these circumstances the date in which the offence claimed to occur was mentioned. The Magistrate at page 10 of the judgment ruled that was typing error. If that was the position, there was a chance to amend that Page 12 of 15 charge before commencement of the trial as the Magistrate and the complainant were in court on the very first day when the charge was read to appellants. I find from the charge, the accused were made aware of the case they are facing with regard to the time of the incident and place so that they would be able to marshall their defence. The Court of Appeal once said; When a specific date of the commission of the offence is mentioned in the charge sheet, the defence case is prepared and built on the basis of that specified date. This defence Invariably includes the defence of alibi. If there is a variation in the dates, then the charge must be amended forthwith and the accused explained his right to require the witnesses who have already testified recalled. If this is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal as a matter of right. Short of that, a failure ofjustice will occur. [Emphasis is mine] See Anania Turian vs Republic, Criminal Appeal No. 195 of 2009 (Unreported). Am aware the trial court and the first appellant court got refuge in Osward Mokiwa @ Sudi vs Republic, Criminal Appeal No. 190 of 2014. The same court in the year 2016 insisted the importance of charge sheet to have date and place where the offence was committed so as to meet the justice, it was in Mayala Njigailele vs Republic (Criminal Appeal No. 490 Page 13 of 15 of 2015) [2016] TZCA 253 and Godlisten Raymond Mosha @ Gibson vs Republic (Criminal Appeal No. 247 of 2020) [2023] TZCA 17676 as cited by counsel for appellants. The 1st appellate court discourage the application of the recent decision principle on account that not every variance cause miscarriage of justice and to him appellants were not prejudiced as seen at page 5 of his judgment. In September 2023 the Court while cerebrating the case of Godlisten Raymond Mosha @ Gibson vs Republic (supra) at page 6 said it is settled position when there is variance in charge sheet and evidence, the charge remains unproved. In the case at hand, how can it be said the complainant managed to prove the offence against appellants while the date which was read and explained to appellants was different from the evidence adduced by complainant. So far as the charge was not amended, the charge was not proved and it cannot be said the justice was done. In Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015 the Court stated that unamended charge involving a variance or uncertainty as to dates is tantamount to such charge remaining unproven entitling the accused person to an acquittal. See also Godfrey Simon and Another vs Republic Criminal Appeal No. 296 of 2018 CAT at Arusha. Page 14 of 15 I find the offence was not proved beyond reasonable doubt, the appeal has merit and is hereby allowed. I set aside conviction uttered by the trial Court and order the release of appellants from custody unless there is good cause to retain them. DATED at his 10th day of September, 2024. M. L. KOMBA JUDGE Judgment delivered in the presence of the respondent and in the absence of the appellant. Kl4' M. L. KOMBA Judge 10th September, 2024 Page 15 of 15