20190909 TZHC Mwanza

..: f ,i llli" IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY)

ATMWANZA HC CRIMINAL APPEAL NO. 257 OF 2018 (Appeal from the Judgment of the District Court of Serengeti at Mugumu (Ngaire, DRM) Dated 23 rd of September, 2016 in Criminal Case No. 154 of 2015 SAMWEL CHA CHA@ MAGIGE ........................ 1sr APPELLANT MATIKO s/o MAGABE@ MAKONO ~················· 2ND APPELLANT MWITA s/o JOHN @ MAGERE ........................... JRD APPELLANT VERSUS - I THE REPUBLIC •••••••••••••••••••••••••••••••••••••••.•••.••••• RESPONDENT

JUDGMENT 10.07.2019 & 09.09.2019 M.K. ISMAIL, J In the District Court of Serengeti at Mugumu, the appellants were charged and convicted of cattle theft, contrary to the provisions of section 268 (1) and (3) of the Penal Code, Cap. 16 R.E.

2002. Through a charge sheet which was placed at the appellants' door, it was alleged that on 25 th October, 2015, at about 1230 hours, at Mukundusi village, within Serengeti District, in Mara 1 Region, the Appellants stole 28 heads of cattle valued at TZS. 11,200,000/=, the property of Chacha Nyamhanga, PW 2 in the trial proceedings. It is gathered from, the trial court's proceedings that the appellants who were arraigned in court, vide Criminal Case No. 154 of 2015, pleaded not guilty, necessitating conducting a full trial. At the conclusion of the trial proceedings, the trial magistrate was ' convinced that the appellants were guilty of the charged offence. Consequently, they were all : convicted and sentenced to imprisonment for 15 years, and payment of the sum of TZS. 11,200,000/=, as a compensation ,for the loss inflicted on the victim of the theft incident. Brief facts of this case are to the effect that on the fateful day, PWl, who is PW2's livestock keeper, woke up and noticed that the rear part of the cattle kraal had been broken into and some of the herds of cattle had gone missing. He immediately relayed the information to PW2 who was in Bunda. PW2 came and immediately identified the cattle that had gone missing, as he had marked each of them with some unique marks such as "V"; "11 "; "4" and "22". The incident was reported to Natta Police station and

other 2 I neighbouring villages. Search of the stolen cattle partly I succeeded, whereby a paltry six herds out of 28 were recovered. The recovered herds were locat1d at Merenga village while at the I I hands of the appellants, who were apprehended as they were about to cross Mara River. The I appellants did not have any I livestock permit. The appellants 1ere then transferred to Mugumu I Police Station. The appellants we~e subsequently arraigned in court facing a count of cattle theft to lhich they pleaded not guilty. The I trial court found them guilty and convicted and sentenced them to imprisonment and payment of cobpensation. I Aggrieved by the trial court's conviction and sentence, the ' appellants filed separate appea1J to this Court. In the first appeal, I registered as Criminal Appeal No. 257 of 2018, the first and second appellants preferred a joint appeal with six grounds of appeal, while the third appellant preferre~ his own appeal, registered as I Criminal Appeal No. 258 of 2018. Noting that both of these appeals challenge the same judgment which convicted and sentenced ' them jointly, it was decided th~t the two appeal should be I consolidated and be determined \together. Consolidated grounds 3 i of appeal can be paraphrased as follows: One, that the trial court I erred in law and fact. by failing i: to consider defence evidence, i' choosing instead, to refer to

it ori sample basis. Two, that the trial I I: i magistrate erred in law and fapt by relying bn circumstantial i! evidence which was full of doubts and highly unsafe to base I , j' I conviction and sentence thereon .. Three, that the trial magistrate I 'i erred in law and fact in relying fn shaky and falsified evidence I tendered by prosecution witnessJs. Four, that the trial court erred I when it connected the appella~:ts, who were prrested in divers 1. . places and times, to charges they:' never committed. Five, that the I I trial magistrate erred in law and falt by convicting and sentencing I I the appellants while the prosec~tion had not: proved its case I I beyond reasonable doubt. Six, thdti the trial magistrate erred in law ! I I and fact when it allowed PW2 to tbnder pictures whose origin was I . I not established. Seven, that the tripl magistrate erred in law when I I he shifted burden of proof to the a~pellants. I . I ·I I At the hearing of the matter, the appellants fended for I I themselves, while the respondent yvas represented by Ms. Ajuaye I I ' ' Bilishanga, learned senior state attdrney. Noting that the appellants 4 were lay persons who did not enjoy the services of a legal practitioner, I guided that presentation of the arguments in respect of the appeal starts with the r~spondent, while the appellants would submit last. This guidance was warmly embraced by

the parties. Ms. Bilishanga began by saying that the respondent did not support the sentence passed . against the appellants as it contravened the provisions of section 170 (1) of the Criminal Procedure Act, Cap. 33 R.E. 2002 [CPA), in that, the trial magistrate imposed a sentence that exceeds her sentencing powers. She observed further that the offence with which the appellants were charged and convicted of was not a scheduled offence. Meaning that the limit imposed by the cited provision is five years. She argued further that an alternative to that was to have the sentence confirmed by this Court, which was not done in the circumstances of this case. She wrapped this point by submitting that this illegal sentence can be· rectified by having this Court invoke the provisions of section 366· (i) (ii) of the Criminal Procedure Act and substitute the sentence with one which is appropriate. 5 i' ,; 1: I I Ms. Bilishanga went aheadI to submit that, she supports the I ' , i conviction of the appellants. lrvoking the doctrine of recent I. I I possession, the learned counsel argued that the doctrine is I I applicable upon fulfillment of sev~ral conditions as follows: i I . , 1. The property stolen must t:be I subject of the charge;

I I I 2. The property must be that of the compldinant and that the I~ , same was stolen; I ' I i ' 3. It must have been reported and found i shortly thereafter; '1; ; and . 1 l 4. It must have been found i~ the hands of the accused. . i I To buttress her submission, lshe cited the I case of Magesa 1 I' I Chacha Nyakibali v. Republic, qriminal Appeal No. 307 of 2013 I : 'I (unreported). Referring to page 11 of the proceedings, Ms. I . Bilishanga asserted that PWl d~scribed features of the stolen I cattle, arguing further that her ~estimony was ;corroborated by i ' PW2' s testimony who also descritjed special marks. The duo, she i! I argued, reported the matter tq police and laid a trap that I I eventually nabbed the appellants. Submitting on PW3 and PW4, I !

1. Ms. Bilishanga argued that the mar:.~s described· by PW2 were of the 6 cattle that they saw and that they arrested the appellants, took them to the village office, before they handed them to the police. She contended further that there is no dispute that the cattle which were found with the appellants were the property of the complainant, PW2. On the pictures, the learned counsel conceded that doubts exist on how the same were tendered, and the fact that marks were not described on the tendered pictures. The counsel further conceded that the provisions of section 202 of the Criminal Procedure Act were trampled, as far as certificate of enlargement is concerned. She also submitted that no certificate of seizure of the said herds of cattle was not submitted in court as part of the prosecution testimony. She was quick, however, to argue that such omissions did not prejudice the appellants' rights. She contended that the arrest was done by lay people who do not know anything about seizure and certificates, and the truth remains that they were found with a stolen property. Ms. Bilishanga further contended that the defence testimony shows that the appellants bought stolen cattle, an admission which she contended cures the deficiencies. Further, the learned counsel asserted that there is no evidence to prove that the appellants bought the cattle from 7 anybody, nor did they

produce1 any permit that shows that they allowed to trade in cattle. In sum, the learned counsel urged this Court to find that the prosecution witnesses were credible. The appellants' submissions were, not unexpectedly, brief. They maintained their innocence and were still very critical of the trial court's finding of fact and law. The 1st appellant argued that the prosecution did not produce the seized cattle as an exhibit. He contended further that pictures submitted were not credible and reliable, more so since the said pictures showed nothing to evidence their involvement. He prayed that their appeal be allowed. The 2nd and 3rd appellants supported the submissions made by the 1st appellant. The 3rd appella~t reiterated the contention that the case was a sheer fabrication, adding that if not, then evidence would be adduced in court to prove that they were involved in the theft. They repeated the call to have their appeal allowed. Let me begin the disposal ',by first addressing the issue of tendering of exhibit P.E.1, a photograph of 6 herds of cattle which were allegedly stolen and fou'.nd in the possession of the 8 ; appellants. The counsel for the respondent has conceded that though the photographs were admitted in evidence, the same did not conform to the requirements set by section 202 of the Criminal Procedure Act. She further conceded that what is stated as marks on

the stolen cattle were not identified or explained in the course of tendering the photograph. The respondent's escape route is ; that the appellants have admitted that they bought stolen property. My scrupulous review of the proceedings ·does not tell me that the appellants did, at any point in time, confess that they bought stolen cattle. None of the appellants admitted to any such allegation during their defence testimony. Part of the 1st appellant's testimony is found at page 31 of the typed proceedings and it states as follows: "He told us to wait him so that we should go with him to the Auction, we waited him (sic) fot a long time and later saw a motor vehicle, police officer and Park Rangers came and arrested us. The 3rd accused wh~n he saw (sic) the police he run (sic) away, we did not know what was going on. They chased and caught him. They asked where about (sic) of others, we replied reached (sic)fhere and found the 3rd 9 accused with others when he knows (sic). The (sic) searched the surroundings and found nothing, they began to beat us and forced to show cattle. We told them we had not seen 1 the cattle yet .... " The rest of the appellants were equally in denial. In the circumstances where none of the appellants admitted to the commission of the theft act, it remains that the question on whether the appellants were involved with the alleged theft is a one

of evidence, one of which is the photograph which was adduced in court. As a general principle, phofographic images are admissible in evidence, subject to fulfillment of requirements of the law, specifically, section 202, which requires that the maker of the photographic print or enlargement should be a person duly appointed by the order of the Attorney General, and that production of the said photographic print should be preceded by a certificate duly issued in that respect. This was not done in this case. As if this is not a serious infraction, the prosecution failed to produce the photographer to testify in that respect. This was not done in the course of the trial proceedings and the net effect of all ' this is to render the tendered document inadmissible and lacking in evidential value. This position is inspired by the decision of this Court 10 in Republic v. G 2573 PC Pacificus s/o C/eophance Simon, Criminal Case No. 45 of 2013 (HCT at lringa) (unreported). The Court (Kihwelo, J.,) held: "The prosecution did not produce the photographer to testify, despite the fact that during the production of exhibit "ID 1" the prosecution submitted that the maker would be produced later in court to testify, but this did not happen, hence rendering exhibit "ID 1" of no evidential value as it is not part of the evidence on record." See also the case of Peter Masanja Makansi v.

Republic, Criminal Appeal No. 327 of 2007, CAT at Mwanza (unreported). Of mightier impact is the fact that though the part of the stolen herds of cattle were recovered, . identified by the victim (and pictures thereof were taken and tendered in court), the same did not constitute one of the exhibits tendered in court during trial. This has been the gravamen of the appellants' complaints in one of the grounds of appeal. The complaint is that, while description of the marks and all other physical features enumerated during the tendering of the pictures were accepted with relative ease, there was no visual sight or physically observation on the stolen cattle by the trial magistrate. This is so because the same were not tendered 11 I as an exhibit and no explanation wbs forthcoming for such failure. I . This is quite strange and incompr~hensible since: these herds of I cattle were recovered and place~I in the hands of police. The I ;! I failure constituted a serious flaw, and it cannot be said that the prosecution discharged its burden ,of proving the' case, just as it I ! : cannot be said that the trial magisttate made a sound decision in 1, the absence of this vital evidence. I~ Ismail Rashid v. Mariam Msati, , I I I ., Civil Appeal No. 75 of 2015 (unrepbrted), the Court of Appeal of I . I Tanzania cited the case of Shemsa: Khalifa & 2 ot~ers v. Suleman 1 I i Hamed, Civil Appeal

No. 82 of 2q12 (unreported), and held as j: ! follows: " .. .it is trite law that judgme~t of any court must be grounded on the evidence proberly adduc~d 8uring trial I otherwise it is not a decision at alfJi" Ii i: The quest for tendering of th~ stolen cattle ·becomes more prominent in the circumstances wh~re. as in the present case. the i i ! counsel for the respondent sought t<D invoke the doctrine of recent I I' possession. This doctrine is applicable!: subject to fulfilment of certain r fundamental conditions, as firmly hel~ in a number of cases. In Abdi I . Julius @ Molle/ & Another v. Republfc, Criminal Appeal No 107 of 12 2009, the Court of Appeal made reference to the holding in Joseph Mkumbwa & Samson Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007 (unreported), in which the position of the law with regards to the doctrine of recent possession was propounded in the following terms: "where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as a basis of conviction, it must be proved, first, that the property was found with the suspect, second that the property is positively proved to be the property of the complainant, third, that the prqperty was recently stolen from the complainant,

and lastly, that the stolen thing constitutes the subject of the charge against the accused. The fact that the accused does not claim to be the owner ' of the property does not reliev_e the prosecution of their obligation to prove the above elements .... " While evidence with respect to items two, three and four of the doctrine have no meaningful dispute, a cloud hangs around the first item and this could only be ·proved by having the exhibit tendered in court and let the trial magistrate assess if what is alleged by the prosecution side is indeed what happened. 13 Absence of this exhibit denied the appellants of the opportunity to I cross examine, discredit or rebut evidence of the prosecution i I against them. Such omission has a consequence of failing to invoke ! the doctrine of recent possession sihce nobody is sure if what is i I alleged to have been stolen is what rvas allegedly impounded and !, I , identified by the victim at the police I station. It is also proper to contend that, absence of the catt1JI as an exhibit means that the 1 trial court's decision was merely basbd I on narrations made by the 'i witnesses and other extraneous issu~s which would be proved by I !, tendering and admitting the recovJred cattle. This is more critical I i after the photographic prints were odjudged improperly procured I and tendered in evidence. The ! appellants would be

rightly I, presumed to be the perpetrators of lthe I theft incident had the said I cattle been tendered in court. The respondent's counsel has submitted on the absence of a i certificate of seizure. She, however,] attributes such failure to what I ; I she argues as the manner and circumstances I , under which the 1, appellants were arrested. Her conterition is that since the arrest was 1, done by villagers who are not aware of this requirement then I I production of the said certificate is dispensed with. I find nothing 14 conv1nc1ng or placating in this argument. Section 38 (3) of the Criminal Procedure Act lays a mandatory requirement for issuance of a certificate of seizure and production thereof as an exhibit in court, whenever the property said to have been stolen is allegedly found with the accused person. As rightly conceded by the counsel for the respondent, this was never produced in court, suggesting that none was available. Failure to produce it constituted a fundamental violation of the law wh,ich weakens the prosecution's case and rendering it unproven to the standard required by the law. The situation could not be more aggravating in the circumstances where even the proRerty said to have been seized was not tendered in court as an ex~ibit. This position is fortified by the holding in Ridhiki s·uruhani v. Republic, DC. Criminal Appeal No. 40 of 2011 (unreported).

This Court (Teemba, J) held: "According to the provisions of section 38 (3) of the Criminal Procedure Act, it is mandatory that the officer ! seizing the property must issue a receipt not only acknowledging that he seized the property but also to bear signatures of the persons present during the search and seizure ... the issue here is, why did the police fail to issue a certificate of seizure? It is assumed here that, there was none and that is why it was never produced as exhibit to 15 support the prosecution. For this reason, the prosecution case was not proved beyond reasonable doubt. The allegations of search and seizure were not proved." ' Thus, even assuming that the respondent's contention on the arrest of the appellants is true, that they were arrested by villagers, the villagers subsequently enlisted assi~tance of the police who took over the matter and placed the appellants and the stolen cattle under their custody. Nothing prevent~d the police from complying with these requirements. I take inspiration from the reasoning in Ridhiki Burhani's case and hold that the trial court committed a serious error when it flinched its: eye on this fundamental requirement. Overall, I find that the prosecutiqn case became so weak and seriously wanting when it solely relied on the word of mouth from I the witnesses who claimed they saw the appellants with stolen cattle, without

producing the stole.n property or a certificate of seizure to prove that the stolen property was actually found in the ' hands of the appellants. Further reliajnce on the photographic prints which have since been adjudQed irregular and, therefore, inadmissible means that the residue,' evidence was too insignificant 16 and unreliable to rely on as the basis for convicting the appellants. I hold that the prosecution failed to prove the case beyond reasonable doubt. Before I wind up and without prejudice to the foregoing findings, it behooves me to say a word or two about the respondent's admirable concession on the excessiveness of the sentence imposed by the trial court. The trial magistrate, sitting as District Resident Magistrate, imposed a sentence of 15 years of imprisonment against each of the dppellants. The respondent's counsel is of the view that this sentence was far in excess of the sentencing cap set for her rank. It is trite law that a sentence can only - in law - be justified if it conforms to the provisions of the law and, more specifically, the provisions of section 170 (1) (a) of the Criminal Procedure Act. This provision states, in no ambiguous terms, that subject to other provisions of the law on minimum sentence, magistrates below the rank of a senior resident magistrate cannot impose a prison term that exceeds five years. The proceedings are clear that

trial magistrate, before whom the trial was conducted, was of a rank of resident magistrate, in charge of the District Court. This is a judicial 17 officer of a rank lower than that of a senior resident magistrate, and one whose sentencing powers are capped to five years of imprisonment. There is no gainsaying, that the prison term of 15 years levied on the appellants was far beyond the cap, and manifestly excessive. Clearly, it fell outside the scope of her sentencing powers for non-scheduled offences like this. The settled position of the law, as elucidated by a multitude of court decisions, is that the consequence of this flagrant infraction is no less than rendering the sentence unlawful. On appeal, such anomaly can justify intervention of the Court with a view to substituting it with a fitting sentence. In Bernadeta d/o Paul v. R (1992) TLR 97 the Court held, inter alia as fallows: " ... that an appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where it appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive". 18 The reasoning in the just cited case was inspired by the decisions of the defunct Court of Appeal for Eastern Africa in R v. Mohamed Ali Jamal (1948) 15 E.A.C.A. 126; and James Yoram v. R (1951) 18 E.A.C.A.

147. In Yusuph Abdallah Ally v. The Director of Public Prosecutions, Criminal Appeal No. 300 of 2009 {unreported) the Court of Appeal provided further impetus on the general, stance of non-interference with sentences by observing as follows: "It is important to note the well settled principle of law as enunciated in much celebrated case of the Dingwal v. Republic ( 1966) Seychelles Law Report, 2015, and as quoted with approval by this Court in Robert Aron v. Republic, Criminal Appeal No. 68 of 2007 (unreported) thus: .. .an appeal court will only alter a sentence imposed by a trial court if it is evident that .the said trial court has acted on a wrong principle; overlooked some material factor; or if the sentence so imposed is manifestly excessive in view of the circumstances of the case . .. an appeal court not empowered to alter a sentence on the mere ground that if it had been trying the case, it might have passed a somewhat different sentence." Such intervention by the appellate Court derives its legitimacy from section 388 of the Criminal Procedure Act {supra). This sparing intervention is exercisable only if, as would be the case in this matter, :ng I i' I, the irregularity sought to be remedied is of/, humongous proportion, i t I , and has occasioned a serious miscarriage of justice. Few would I, I , r , I , argue that a sentence of 15 years impose(/jI on the

appellants , does I , not constitute a mammoth irregularity whiJh I is clearly a ~iscarriage , i' of justice. i I I: I Since I have made a finding to the ittect that the prosecution I has not proved the case beyond reaso~able doubt, discussion on i I, I , sentencing powers takes a backburner, ,~ince the sentence cannot I. ': survive where the conviction is faulty 1,br has not be~n justifiably I: secured. Consequently, I allow the appeal, I set aside the conviction and the sentence, and order the /immediate ,rel,ease of the I , appellants from prison, unless they are dtherwise lawfully held. I . It is ordered accordingly. / I DATED at MWANZA this 9th day of /September, 20l 9. ~~' . M. K. ISl~Al(L -, I JUD1t;E /: i /1 I I, I .i I 1-ih I, -'6U I' I: Ir [, I, ,,I, ,, i' I l , Date: 09 /09/2019 Coram: Hon. M. K. Ismail, J Appellants: 1st 3rd Present ,', r I I / I I Respondent: Ms. Gisela Alex, State Attorne :' y 1 ,', B/C: Leonard I' i'' i Ms. Alex: / i The matter is for Judgment today a~d we are ready to receive /, it. Sgd: M. K. lsmpi/ JUDGE i 09.09.2019/ I Court: I I, ,I Judgment is delivered in champer, 1n the presence of the Appellants in person, Ms. Gisela Alex, t~arned State Attorney for the respond t l!_~,}he presence of Mf. Leonard B/C, this 09 day of th Sept . \t i ~ G ~~ il ~JJ . sm,~il .:r JUDGE AtM .'.'./ i ;t _,dJ I 09th Septf!mhet;;;C 19 I i i" r ,I I I. ,,'' I 2tB / I