PETER MTENGO AND FOUR OTHERS v REPUBLIC 1994 TLR 112 (CA)

 

PETER MTENGO AND FOUR OTHERS v REPUBLIC 1994 TLR 112 (CA)

Court Court of Appeal of Tanzania - Dodoma

Judge Kisanga JJA, Omar JJA, and Mfalila AgJA

CRIMINAL APPEAL NO. 68 OF 1987 F

13 March, 1989

(Appeal from the Conviction of the Economic Crimes Court at Dodoma, Ruhumbika,

J)

Flynote

G Criminal law - Theft - Doctrine of recent possession.

Criminal Practice and Procedure - Failure to file a notice of appeal in accordance with

Rule 61(1) of the Court of Appeal Rules 1979 - Whether appeal is competent.

H Evidence - Defence of alibi - Whether conviction and sentence were valid in law.

-Headnote

The five appellants were charged with and convicted of cattle theft by the Economic

Crimes Court. The court sentenced the second and fifth appellants to fourteen years

imprisonment and the first appellant to seven years imprisonment `on account of

advanced age'. The fifth appellant had jumped bail before trial and was tried and

sentenced in I

1994 TLR p113

absentia under ss 37(4)(b) and 49(1)(c) of the Economic and Organised Crime A

Control Act No 13 of 1984. When this appeal was filed before the Court of Appeal he

was still absent.

Held:

(i) Where no sufficient efforts have been made to submit a culprit who

was tried in absentia to the process of the court, the Court of Appeal cannot B

exercise its discretion to allow an appeal out of time, to do so would be a mockery to

Court Orders and might give an impression to the public that there are no obligations

to sign bonds;

(ii) Since the appellants did not file the notice of appeal as provided for

under Rule 61(1) of the Court of Appeal Rules, 1979, this appeal is incompetent; C

(iii) The trial court did not err in exercising its discretion with regard to the

appellants defence of an alibi, thus they were rightly convicted;

(iv) The process of sentencing is not a mechanical function but that calling

for the utmost mental effort to ensure that the sentence imposed not only fits the

offence but also the offender; in this case it was in the interest of justice to impose a

shorter term of imprisonment to the first appellant than that meted to his younger

colleagues. D

Case Information

Appeals dismissed.

No cases cited. E

Mbezi, for the appellants.

Benne, for the respondent.

[zJDz]Judgment

Mfalila, AgJA, delivered the following judgment of the court:

The five appellants were charged with and convicted of cattle theft in the F

Economic Crimes Court sitting at Dodoma and presided over by Mr Justice

Ruhumbika. Upon their convictions the court sentenced appellants two to five to

fourteen years imprisonment and the first appellant to seven years imprisonment `on

account of his advanced age'. He is over seventy years old. The fifth appellant G

Jared Machilika alias Mnyalifa was tried in absentia under the provisions of ss 37(4)(b)

and 49(1)(c) of the Economic Crime and Organized Crime Control Act No 13 of 84. In

this appeal the fifth appellant was still absent, he has not been arrested since he

jumped bail before trial. However all the appellants are challenging both their

convictions and sentences. H

The summary of the facts in this case is as follows: The complainant Ernest Majebele

(PW1) is a big time cattle owner at Handali Village in Dodoma rural District. On 5

September 1985 at about midnight, a group of cattle thieves invaded his cattle boma

and while they were in the act of driving away the cattle, he woke up I

1994 TLR p114

MFALILA AgJA

A and in the company of three other male members of his household went out to

see what was happening. They tried to follow and confront the thieves. The moon

was shinning so the complainant was able to recognize one of the thieves as his

neighbour the fifth appellant. But when the thieves threatened to shoot them if they

persisted in following them, they retreated and returned home. The following B

morning they decided to follow the hoof and foot prints, those went on for 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 es Salaam, the

complainant and his companions decided to travel to Dar es Salaam C where they

combed the cattle markets at Pugu and Kimara. On 9 September 1985 the

complainant saw and identified six head of cattle at Kimara abbatoir to be his stolen

animals. He seized the animals with the assistance of a policeman on duty (PW5) and

had the herdsman arrested. The herdsman explained that the D cattle belonged to

one Joseph Chipilipili (PW2) who in the meantime had had the thieves arrested when

they tried to sell the cattle to him. The arrested thieves are the present appellants and

the fifth appellant who absconded. They were all taken to Magomeni Primary Court

and charged and later transferred to Dodoma to face this charge. E

The defences of appellants two to four who are brothers were similar in so far as their

reasons for travelling to Dar es Salaam at that particular period was concerned -

namely that they travelled to Dar es Salaam not for the purpose of F taking the

stolen cattle as alleged by the prosecution, but to go and look for the relatives of the

wife or concubine of the second appellant, the wife who had just died at Dodoma.

The first appellant said that he travelled to Dar es Salaam to visit his son Job Chilimba

and that he took advantage of travelling with the Ndumizi G brothers, the other

appellants, because he had never been to Dar es Salaam before. They all denied taking

part in the theft of the complainant's cattle saying that they were elsewhere when it

happened. The first appellant said he was at his home at Ihumwa Village, the second

appellant that he was at Makole at the house of Rashidi Kasuga (DW5) tending his

wife Adija, who was then admitted at H Dodoma Hospital. The third appellant said

he was at home at Ihumwa and later went to Dodoma on hearing of the death of his

sister-in-law. The fourth appellant said that he was on duty at Mirembe Hospital

where he works as a watchman. With regard to the time and place of their arrests,

they explained that they were arrested at the house of Joseph Chipilipili I

1994 TLR p115

MFALILA AgJA

after Chipilipili himself had invited them to his home when they met him at A

Kariakoo. They added that Chipilipili must have arranged for their arrest to save

himself as the stolen cattle had been found with his herdsman at his home.

The trial court rejected those explanations and alibis. The court chose to believe the

prosecution case to the effect that the appellants were found with the stolen B cattle

in Dar es Salaam on 9 September 1985, four days after the theft, and applying the

doctrine of recent possession they were deemed to have stolen them.

In this appeal Mr Mbezi who appeared for the appellants argued six grounds of

appeal, grounds five and six being on sentence. However when Mr Benne rose to C

answer the appeals on behalf of the respondent Republic, he challenged the

competency of the fifth appellant's appeal on the ground that he did not file any

notice of appeal in accordance with Rule 61(1) of the rules of this Court. In the

circumstances, he said, there is no appeal before this Court in respect of this

appellant. Mr Mbezi conceded the point but asked us to exercise our discretion in D

the matter and grant extension of time to the fifth appellant in which to file his

notice. We think Mr Benne's objection is well taken. The notice dated 14 May 1987 is

only in respect of the four appellants. Accordingly the fifth appellant did not comply

with the provisions of Rule 61(1) of the Court of Appeal Rules, his appeal is therefore

incompetent and we strike it out. E

With regard to Mr Mbezi's application for the extension of time, we think this would

have been a proper case to use our discretion in favour of the fifth appellant if he had

submitted himself to the process of this Court. We hold this view because we think

he was improperly tried in absentia. We do not think sufficient effort was F made to

trace him to compel his attendance as required by the section ie s 37(4)(b) of the

Economic Crime and Organized Crime Control Act 13 of 1984 which allows trials to

proceed in the absence of accused persons. The court made specific orders in respect

of both the absconding fifth appellant and his G sureties before the trial started, but

to date no visible efforts seem to have been made to give effect to this order. We

think this situation is very unsatisfactory, it makes a mockery of court orders and

gives the unfortunate impression to the public that there are no obligations attached

to signing surety bonds. In other H words it is an empty ceremony. We ask the High

Court which granted bail to take immediate action against both the fugitive fifth

appellant and his sureties. We cannot in these circumstances exercise our discretion

in favour of one who has abused the judicial process. I

1994 TLR p116

MFALILA AgJA

A Ground 2 of the appeal can easily be disposed of. In this ground, Mr Mbezi

complained that the Trial Judge erred in law in failing to obtain the opinions of the

lay members who sat with him and also in failing to sum up the case to them. We

think this complaint confuses the role of lay members in an Economic Crimes B

Court and Assessors in the ordinary sitting of the High Court. Unlike the ordinary

sitting of the High Court, the decisions of the Economic Crimes Court are either by

majority or unanimity, there is therefore no need to sum up the case to the Lay

Members and obtain their opinions. In this case as the judgment makes it so clear, the

decision was unanimous. We therefore see no merit in the complaint in this ground.

C

In ground 3 Mr Mbezi complained that the trial court erred in holding that thirty not

six head of cattle were stolen from the complainant. At the hearing of the appeal, Mr

Mbezi argued that the evidence on record supports a finding of six head of D cattle

having been stolen not thirty and that the complainant inflated the figure in his later

reports to gain more advantage. In the very first statement which the complainant

made to the police, he said that on checking soon after the theft, he found that six

head of cattle had been stolen, but he changed this number to thirty E in his

subsequent statement. He tried to explain this discrepancy saying that he first

mentioned the number six because he had seen six of his stolen cattle at Kimara. This

explanation contradicts the very clear language he used in his first statement. He said:

F `Nilipoanza kuhosabung'ombe hae nikagundua kwamba ng'ombo sita

wamoibiwa ambaoini ni madume mawili majike wanne' . . .

G In other words he said `when I started to count the cattle, I discovered that six

head of cattle had been stolen, two bulls and four cows'. In our view nothing could be

clearer. Here he was talking about the total number of animals stolen not just those

which were found at Kimara abbatoir. We think in the circumstances it H would be

safer to rely on the first statement rather than the latter which could have been

influenced by considerations of self interest. The trial court's unanimous view that

`thirty head of cattle is the correct figure to be taken in preference to six head of

cattle' is therefore unsafe. Accordingly we uphold the complaint in this ground and

say that during the night six head of cattle were stolen from the complainant's boma.

In ground 4 of the memorandum of appeal, Mr Mbezi sought to I

1994 TLR p117

MFALILA AgJA

challenge the whole basis of the appellant's conviction. He complained that the A

evidence which was used to convict the appellants being wholly circumstantial, it was

wrong for the trial court to reject the alibis of the appellants and convicting them as

charged. We would like to state as Mr Mbezi himself conceded in the course of the

hearing that it is not correct to say that the evidence against the appellants was

wholly circumstantial. There was the evidence of PW1 who saw B and recognised

the fifth appellant at the time of the theft. But even the circumstantial evidence

which was led was of the strongest kind. For instance there were witnesses who if

their evidence is believed as it was, saw the appellants with the stolen cattle only four

days after the theft. On the morning of 9 C September 1985 the four appellants went

to a city butcher Joseph Chipilipili and offered to sell him six head of cattle. These are

the very ones which were identified by the owner PW1. His identification of the

head of cattle was not challenged by anyone. Indeed all the appellants did was to

deny that the six head of cattle were at D any time in their possession and that PW2

framed them to save himself. This story and as to how they had found themselves at

PW2's house where they were arrested was rejected by the trial court. An attempt

was made to make capital out E of the differences in the evidence of PW2 and PW3

regarding the time the appellants had been seen with the cattle at Kimara. PW2 told

the trial court that he went to Kimara in the company of the appellants to view the

animals at about 8 am. PW3 said this was impossible because he had himself seen the

second and F fourth appellants offloading the cattle at Kimara around noon and that

these two had offered to sell the cattle to him. We do not know why PW3 said it was

impossible for PW2 to have been at Kimara in the morning. The trial court observed

that anything could have happened between 8 am when PW2 visited G Kimara and

1 pm when PW3 arrived. We agree. The appellants could have temporarily taken the

cattle out of the prying eyes of unwanted people and returned them when the

situation was `calm'. In fact there is nothing to suggest why PW2 should have chosen

to frame his own innocent guests, people from his own area in Dodoma. We think the

trial court rightly accepted his evidence as true. H

The trial court also used the statement (P3) of the dead herdsman one Mandawa to

link the appellants to this offence. But Mr Mbezi sought to challenge the admissibility

of this statement saying that it was improperly admitted under s 34B of the Evidence

Act. We think this statement was properly admitted in evidence under that section

because it complies with all the conditions envisaged by the section I

1994 TLR p118

MFALILA AgJA

A namely that it is written, its maker could not be called as a witness because he is

dead and the matters it contains are relevant facts. The only problem with this

document pertains to the weight attached to it. The events it describes appear to have

taken place in August, 1985 and it is endorsed to have been recorded on 3 B

September 1985. Quite clearly then what it describes 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 September 1985. The record of trial does not contain

any explanation on this anomaly. We therefore decided to C 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 complainant's cattle.

The trial court rejected the appellants' various alibis, we think rightly. The alibis were

introduced in the course of the defence case contrary to what s 41 of the D

Economic and Organized Crime Control Act provides. It was thus entirely in the

discretion of the trial court to decide what weight if any to give to the alibis. We do

not think the trial court erred in exercising the discretion in the matter in the way it

did. In the circumstances we are satisfied that the appellants were properly convicted.

E Lastly 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 on

the appellants and that in any case the sentences imposed on the appellants were

excessive.

F We wish to state that the process of sentencing is not a mechanical function. On

the contrary it is a function calling for the utmost mental effort to ensure that the

sentence to be imposed not only fits the offence but the offender. This is exactly what

the trial court sought to achieve in this case. After a careful G consideration, the trial

court concluded that it was in the interests of justice to impose a shorter term of

imprisonment to the first appellant than that meted out to his younger colleagues. We

endorse this approach in the circumstances of this case where the difference between

the age of the first appellant and that of the other appellants is so wide.

H As to the severity of the sentences which were imposed, we would not have been

inclined to interfere if we had found like the trial court that thirty head of cattle had

been stolen particularly when the fact of the appellants having been armed with

lethal weapons is taken into account. 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 and not thirty head of cattle I

1994 TLR p119

were stolen? We do not think so, in any case we are not certain, accordingly we

resolve this uncertainty in the appellants' favour. A

For all these reasons we dismiss the appeals of all the four appellants against

convictions as well as the appeal of the first appellant against sentence. We allow the

appeals against sentences of appellants two to four, and set aside the sentences of

fourteen years imposed on them and instead sentence each of them to seven years

imprisonment. B

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 twenty-four

head of cattle falls away as now all the stolen cattle were recovered. The order of

compensation is accordingly set aside. C

1994 TLR p119

E