19890313 TZHC Dodoma

J.T DODOI'!IA (coaAM: L3LNG.L J0L, OM!R, J0L0, And iLILI Ag. J.A.) CRIMflLL jiPrL NO 68 OF 1987 rr") Ai.L..J GO 1 I •

YORLM NDUMIZI 3n, KIL NDUMIZI . • • 013 I1DUMIZI J PqT T.TYA jffJ.T LTPt. 5,,

VRSUS rrTrrT .LALJ VTTDT TEl J.Lld 0 0 0 o e o o o 0 • • • •RLS20IME (ppeal from the conviction of the conomiCrimes Court at Dod.oma (Ruauinbika, dated the 7th day of May, 1989 in 1 — Economic Crimes Case No. 3 of 1986

JDGNT OF TZI COURT NIL&,I.4.t • The five apllants were charged with and convicted of cattle th&ft in the Economic Crimes Court Sitting at Dod.oma and presided over by M. Justice Ruhumbika. Upon their convictions the court sentenced appellants 2 to 5 to 14 years imprisonment and the 1st appellant to 7 years imprisonment "on ac(ount of his advanced ago". The is over 70 yoars old.. The 5th apço ilant JIJD MLCMKJ @ YLLIFL was tried. in absentia under the provisions of Sections 37 (4) (b) and 49 (i) (a) of the Eoononi.ic Crime and Org'anizod Crime Control Act No. 13/84. In this appoa1 the 5th appellant was still absent, be has not been arroeted si.ne he jumped bail bofoTe trial. However all the appellants are oxigiug both --their convictions and sentences, The summary of the facts in this case is as follows: The oomplaiit $7LNT LE (P:.i) is a big time cattle onor at • Ha2ldsli Vi1lago in Dodoma ru'al District. On 5/9/85 at about mid—night s a group of cattle thieves invaded his cattle boma and while they were in • • the .ct of driving away tho cattle, he woke up and in the company, O thoo other male members of his household won -b out to see what was happening. • They tried to follow and confront the thieves. The moon was shinning so tile oomJ?laivant 9a tooaize one of the thieves as hi - ......./2 - 'I 2- neighbour the 5th appellanto But when the thieves threatened to shoot them if

they persisted in following them, they retreated and returned homoo The following thorning they decided to follow, the hoof and foot prints, these went on foi a whole day until the marks disappeared at a place where it was obvious the animals had been loaded onto a truck. Suspecting that the cattle had been taken to Dar as Salaam, the complainant and his companions decided to travel to Dar es Salaam where they combed the cattle mär1ets at Pugu and Kimara On 9/9/85 the complainant saw and identified six head of cattle at Kirnara abbatoir to be his stolen animals. He seized the animals. with the assistance of a policeman on duty (POWb5) and had the herdsman arrested. The herdshn explained, that the cattle belond. to one Joseph Chipilipili (P0W02) who inthe meantime had had the 'thieves arrested when they tied to sell the cattlo to him.- The arrested thieves are the present apellants and the 5th appellant who absconded, They were all taken to Magomeni Primary Court and charged and later -transforoci to Dodoma to face this chargee The defences of appellants 2 to 4 who are brothers were similar in so far as their reacns for travelling to Dar es at that particular period, was conôerned. —namely that they travelled to Dar as Saläam not for the purpose of taking the stolen cattle as alleged: by the prosecution, but to go and look for the' relatives of'thc wife or concubi"ne of the 2nd

appellant, the wife who had just died at Dodoma. The let appellant said that he travelled. to Dar os Sipyr to visit his son Job Chilimba and that he took advantage of travelling with the Ndumizi brothers, the other appellants because he had never been to Dar as Salaani. They all denied taking part in -the theft of the complainant's cattle saying that they were elsewhere when it happened The 1st appellant said ho was at his home at Ihumwa Village, the 2nd appellant that he was at Makole at the house of Rashidi Kasuga (D1705) -ten his wife Adija, who was than admitted. at Dodoma Hospital. The 3rd api'llr said he was at home at Ihumwa and later went to Dodoma on hearing of the death of his sister in laws The 4th appellant said. that he was on duty at Mirembe Hospital where he works as a watchman With regard to the -timr and place of their arrest, they explained, that they were arrested at the house of Joseph Chipilipili after Chipilipili himself had invited them to his homo when they met him at Kariakooe They added that Chipilipili must have arranged for their arrest to save himself as the 'stolen cattle had been found ith his herdsman at his homa. 3 - The trial court rejected those explanations and alibis. The court chose to believe the prosecution -case. to the effect that the appallant.s were found with the stolen cattle in Dar os Salaarn on 9/9/85, four days after the theft

and applying the doctrine of recent possession they"mora deemed to have toon thorn. In this ippeai MBZI who appeared for the appellants argued six grounds of appeal, grounds five and six being 91 sentence. However when Mih IEh rose to answer the appeals on behalf of the rospondent Republicp he challenged the competency of the 5h appellants appeal on the ground that iib did not file any notice of appeal in acdorclance with Rio 61 () of.the rules of this Court. In the circumstances, he said, there i noappeal before this Couit in respect of this appellant., Mr. Mbezi conceded -the point but asked. us to exercise our discretion in the nuttor cnd bran -b oxtonsion of time io the 5th appellant in which to file • hin notieo he think Mr. Bernie's objection is well taken. The notice dated 14/5/ 8 7 is only in respect of the four appellants. Accordingly the 5th appellant did not comply with the provisions of Rule 61 (i) of the Court of Appeal Rules, his appe&l ±E therfore incompetent and we strike it out. With regard. to Mro MbOZ1 application for the extension of times e think this would have boon a roper case to use our discretion in favour of - 5th appellant if he had submitted himself to the process of this Courti We hold this v1ew because we think he was improperly tried inabsential. We do not think sufficient effort was made . to trace him to compel- his attendance as required by

the sedtion ie 3ection 37 (4) (b) of the Economic Crime and Organized Crime Control ict 13/e4 which allowe trials to. proceed in the absence of accused persóns. The court thado specific orders in respect of bot1 the absconding 5th pellaniand. his surët;iizs before the trial started., but to—date no visible efforts seem to have been made to give ef:ect to this orde We think this situation is very unsatisfactory, it.makes a mookery of court orders and gives the unfortunate impression to the public that there are no obligations attached to signing s11rety bonds. In other words it is a-i empty ceromony, Ie ask the High Court which granted bail to take immediate - actThn azinst both the fugitive 5th appellant and his sureties. We cannot in these circumstances exercise our discretion in favour of one who - has abused the jJicial proess. . Gouid2 of' the appaal cam easily be disposed 'of. In this ground, Mr., Mbezi complained, that ±O trial judge erred in law in failing to obtain the opinions of the :La.r members who sat with him and also in I-I ti4 to ui t c té ! orn44M * in ?A N00iomto Qw.ne y44pr jhQ g1.1 Cotwt Un1U tlio a$.i'ay tti$ Of 9e!iOmló Q8 dowt ao e,4or e ty j thoe is kero ;o s4 th á tq 1s IAy Members and cbtaiii their opinions. In this ease as th :eS jt eo c1or the decision was wwinrnua. 10 Top in the complaint in thjs gromndv In ozM3 Mr. Wozi complained that the trial

court erred in tolding that thirty not six head of cattle toon l from the øompit. At the hearing of the ;%ppeall Mr. Mbez% vwgLwd , at th evidence on record supports finding of e.x ioa4. of eattle having booi stolen not thtir and that the eomplatnsnt inflated the figure in hir later roporto to gain more %vantag, In t4Q 'nry ;first stemt ! 0 the comp3.int made to t4epo]4, he at on abadsg scoo aft the he found tba1 six lid pf o&AtIp #41 boon ston be c4 $s u: r to tty in hi subs uppt is to oxIYlain ie discrepancy saying tha$ 2q th six because he had seen six of his qtoj#A $tfl 4t imara., is exp1aaio* contradicts the very ianaage he AW 04 in his f1ral He aaid.ti l • !$poanza kuliesabit ngt ombe hao nikaggpdma breaba çbo s. ta rra ibiwa abao i ad mawili mjtko wanne"a..eo..... It other irda be said "when I started to count the eattle.. I d1'scsve. that 'six head of cattle had been sto.en two beUe four cows",, In our view nothing could be clearer. Bare he wa $1, about the !total nuznbc of animals stolen not just those i4h was founa at kimara abbatbir We think in the Circumstances it be safer to rely an the first statemet i'athz' thW the latr could bamp boen influenzod by considerations of self interest. 'The trial co1$s tuwjaous view that "30 boad. of .OatI1O is the eGrc figure ts be t&e* in eferenee to 6 bead of cattIe! is 'QiereCe aare om4ingly ve 4p!4eld the oQmI)laimt in this

groual & thai i4tt ax he*ii of cattle wsre 'stolen from the to c,ha the asia of i 4-04 •••• jrlad tJa the evidence whh Was UWd tO cnviot -5. beU' ]Jy ci 14aj, it %as Wro2 çr thp Li cort to rejoet th alibis of the appel lants and ponv1 *q,,tj4g thep as cr, We !TOU1 I1CQ to stao . bzi hielf iced i4 t1e coue of the it is pot r•t to eay, -tiat, thevt iist 28 ejits s !h.1y st44, as * ev4c of P,WA vho saw a n& z3p oiised th 5 a oUnt&t the ti.mç o eft. even the circumstantial ej whj.e was ed. ,wa of the fironst lmtanoa tbr oese ho if t32r evidence is d as it wag f paw the appellants with the si1.44 otio only four ayqi after tho tjaeft. On the mom, ing of 9fl/5 the four apIlts w en t to a City 1toher Joseph Chipilipili and offered to sell him aix 14 of cattle., These are the very ones which were identified by the oner P.W.i. His idntjfloation of the head of cattle was not chlongca4 by anyone • Indeed, all the appl].ants did was to deny that the six head of cattle were at any time in their possession and that P.W.2 framed them to save himself * li&s story and as to heyi • they had fouad themselves at P.W.2s hozse where they were std. , reoctad by the trial court. n attempt was made to make ea.it4 out of the differences in the evidence of P9W.2 and PJ.3 regardi, tho time the apl1ante hail been seen with the cattle at Kimsra. PJ.2 told the trial couz't that he t'ent to Kimara in the cpmy

of the app].iants to view the animals at about 8 a.m. P.U,3 said this as impcsibie ixeae he )aad himself seen t4q 2nd. and 4th apl1at5, offloading the oattls &A Kira around noon and that these two bail ffred. to sell the ottie to him. We do riot linow y P.W.3 sai4 it (a.5 'oss:i1e fo P.W.2 io hav bepri at imaa ii da mor4. The tria'. oourt oberved that anrthizg ould have ppe2ied btteen a.u, W1Ofl Pd2 visite4 ICinra. and I n.m. when P.W. arrived. We aoe. e apilm1 coi4ld have tempoarjly taken the catiae ou ot' the pryg eyes o' unwanted ople and returned them when the •biatioi as "caLrn". In faot there is nothing to set w1y .W.2 shoild. have chosen to frame bie iocett geste, PSop.o -from his own aro in Doderna • think the trial court righty accepted. is evidence as The ti.al court also i.sed the statement (P.3) of the dead hedsman Oe ITlaMawa to lnk the appellants to - this offence. But &, Thzi v oqgght o challeA& the adissibtlty of this statonent 'ying &at it was ipproperly admitted. under $etion 34 B of th .den Lot. We tI.ts sta1mont was properly admitted in • under thNt section because it complies with all the co44i01 / -6- envisaged by the section naxr,eJy that it is written, it maker could. not be cafl.ed. as a. witness because he is dead and the matters it contains are -relevant facts. The only problem- with this document pertainS to th be attached to it. The events it

describes appear to have taken place in J.uust, 1985 and it is endorsed to have boon recorded on 3/9/850 Quito clearly then what it dcscribes cannot refer to the events under investigation because both the events and the recording of the statement took place before the 'theft in this case on 5/9/850 The record of trial does not contain any explanation on this anomaly. We therefore decided. to disregard this statement completely. But even without this document we think there was left enough other evidence to support the• prosecution case that the appellants took part in the theft of the complainantts cattle. The trial court rejected the appellantst various alibis to think rightly. The alibis were introduced in the course of the defence case contrary to what section 41 of the Economic and Organized Crime Control Let provides. It was thus entirely in the discretion of the trial court to decide what weight if any to give to the alibis,. Ite do not think the trial court erred in exorcising the discretion in the- matter in the way it did.. In 'tthG dircuinstazicos qe. are satisfied that the appeilants were properly convicted. • •. Ie.stly.we shall consider together grounds 5 and 6. In these two . grounds the appellants complain that the trial court erred in • imposing two different sentences to the appellants and that in any case the sentences imDosod on the appellants were

excessives e wish to, state that the process of sentencing is not a mechanical function. On the contrary it is a function calling for tho utmost mental effort to ensure that the sentence to be imposed not only fits the offence but the ofend.er. This is exactly. what - the trial court sought to achieve in this case • lifter a careful consideration s the trial court - concluded that it was, in the interests of jus tico to impose a shorter terin of imprisonment to the 1st appellant than that meted out to his younger coUeags. , 10 endorse this approach in the circumstances of tb.ia case where the difference betweex the age of the let. appellant and that of the other appellants is so wide. . ... - s to the severity of the sentenoeit which were imposed., we. 'would not have been inclined to interfere if we had, fotitd like the trial court that 30 head of cattle had been stolen particularly iihen the fact of the appellants having boon armed with lethal weapons is taken into account. - - III -7- But we have found that only six head of cattle were stolen Would the trial court have imposed the same sentence if they had found as we have that only six not thirty head of cattle were stolen? No do not think so, in any case we are not certain, accordingly we resolve this uncertainty in the appellants' favour. For all these reasons we dismiss the appeals of all the four appellants against

convictions as well, as the appeal of the 1st appellant against sentence, We allow the appeals against sentences of appellants 2 to 4 9 and sot aside the sentences of 14 years imposed on them and instead sentence each of them to 7 yaars imprisonment. Consequent upon our finding that only six head of cattle were stolen, the order of compensation made in favour of the complainant for the unrecovered 24 head of cattle falls away as now all tha stolen catle were recovered. The order of compensation is accordiln-gly,sot aside. DAD at DODOMA thiijth day of March, 1989 1 ' R0 He KIS.A1'TGA -- / '1__•

JUSTICE OF APPEAL A. M. A. (I&4B

JUSTICE OF APPEAL L. M. MFALIIA - ,. JUSTICE OF APPEAL / I crify that this is' tro copy of the original. -. \ / / ( ss cA.IJAa ) - DEJTY RGISR.