ATHUMAN HUSSEN v REPUBLIC 1988 TLR 246 (CA)

 ATHUMAN HUSSEN v REPUBLIC 1988 TLR 246 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame JJA and Omar JJA

H 15 December, 1988

Flynote

Criminal Practice and Procedure - Admission - Admission before the police and later before Magistrate - Accused cautioned before admission - Whether admissible in evidence.

Criminal Practice and Procedure - Evidence Child of 13 years - Whether his evidence admissible.

Criminal Practice and Procedure - Sentencing - Factors to consider before passing sentence.

-Headnote

The appellant was charged with and convicted of the offence of cattle theft contrary to ss. 56(1) and 59(2) of the Economic and Organized Crime Control Act, 1984, read together with para 12 of the First schedule thereto. He B appealed against both conviction and sentence on the ground that the evidence adduced by the prosecution did not establish the guilt of the appellant beyond reasonable doubt.

Held: 

(i) The statement that the accused made before the magistrate was admissible in evidence since he was told C that he was a free agent;

(ii) the evidence of the 13 year old herd boy was admissible in evidence;

(iii) the appellant deserved the sentence as the judge bore in mind the relevant factors in assessing the sentence.

Case Information

Appeal dismissed.

No case referred to.

Lyimo for the respondent

[zJDz]Judgment

Nyalali, C.J., Makame and Omar, JJ.A.: The appellant Athumani Hussein, was jointly charged in the Economic Crimes Court, at Shinyanga, with one Halfani s/o Luziga, alias Makambi Luziga alisa Masanja s/o Mahona, for the F offence of Cattle theft, contrary to sections 56(1) and 59(2) of the Economic Crimes Control Act, 1984, read together with paragraph 12 of the First Schedule to the same Act. The other person was acquitted but the appellant was convicted as charged and was sentenced to the maximum term of imprisonment prescibed for the offence, that is, fifteen (15) years.

He was aggrieved by the conviction and sentence, hence this appeal to this Court. He appeared in person to argue his appeal, whereas the respondent Republic was represented by Mr. Lyimo, learned Principal State Attorney. Six grounds of appeal were submitted by the appellant but they all boil down to one H essential ground to the effect that the evidence adduced by the prosecution did not establish the guilt of the appellant beyond reasonable doubt.

From the proceedings both in this Court and the court below the following primary matters are not at all in dispute I between the parties:

On the 25th February, 1985, twenty right head of cattle belonging to Everist Lubangula (P.W.1) and Mtawazi Mbaya (F.W.4) were stolen at gun point at Kipalapala, Tabora District, while being looked after on pasture by P.W.4's son, that is, Simon Mtawazi (P.W.3). Two days later, that is, on the 27th February, 1986, a stock movement permit was issued in the name of Masanja s/o Mahona of Mabama village. It is common ground that both the appellant and the person who was acquitted were at the material time residents of Mabama village. The latter was known by the name of Masanja s/o Mahona. Five days later after the theft of the cattle, that is, on the 2nd C March, 1986, the stolen cattle were sold to Mashauri Shoroma (P.W.2) at Urambo, Urambo District in Tabora Region. Thereafter, P.W.2 assisted by one Charles Buyunge, drove the cattle to Nguruka in Kigoma district, where they arrived on 9th March, 1986. There the cattle were resold to Joseph Msumbi (P.W.5) and one Iddi Kukobela. D Thereafter on the 3rd April, 1986, the cattle owners, that is, P.W.1 and P.W.4 found 10 of the stolen cattle in the cattle-kraal of Iddi Kukobela. While they were in the process of alerting the police, five of them were slaughtered in the course of the former's butchery business at Nguruka. The remaining 5 head of cattle were in so poor a state that they were not worth recovering by the owners. It is common ground that on 15th April, 1986, the appellant was spotted near a bus stand in Tabora township and was apprehended by the police. It is undisputed that he was apprehended after being pointed out by P.W.2 who had been searching for him ever since the stolen cattle were traced to Nguruka. Furthermore, it is common ground that after his arrest, the appellant made a statement to the F police in which he admitted being in possession of the stolen cattle on 26th February, 1986, later disposing them to P.W.2. He promised to refund the stolen cattle and for that purpose he took the police to his parents' homestand in Mabama village in Tabora district. His parents refused to oblige. On the 19th April, 1986, appellant was taken before a Primary Court magistrate, that is, Ashura Hamis (P.W. 7) to whom he made an extra-judicial statement reiterating what he had stated to the police. Subsequently, he was taken to court and charged.

It is apparent from the proceedings, both in this Court and the court below, that the following matters are in dispute between the parties: It is the prosecution case that the appellant was one of the three persons who stole the cattle at gun-point and he later fraudulently obtained a stock theft movement permit to enable him take the cattle I away from the district where he had stolen them. On the other hand, the defence case of the appellant is a general denial of the prosecution case and an assertion that A after his arrest he was assaulted by the police into making an incriminating statement which he later reiterated before the Primary Court magistrate.

The basic issue in this case is whether the appellant was involved in stealing the cattle in question. The prosecution relies on three pieces of evidence. Firstly, there is the testimony of the herdsboy (P.W.3) who was looking after the cattle. It was in broad daylight and he was certain that it was the appellant who held the gun and held him in restraint while his accomplices drove away the cattle to a safe distance before he released the boy and followed his accomplices. The appellant claims that the evidence of P.W.3 cannot be relied upon as he was too young. We do C not agree with him. P.W.3 was 13 years at the time and was sufficiently mature to be trusted by his parents to take out cattle to pasture and guard them. We are satisfied that we can also rely on him to tell the truth.

The second piece of evidence is that of P.W.2 to whom the appellant sold the cattle. We are aware that his evidence has to be treated with caution, since it is apparent that he has an interest to serve on account of being one of the suspects. The evidence of P.W.3 however corroborates that of P.W.2. The third piece of evidence is the extra-judicial statement made by the appellant to the Primary Court magistrate (P.W.7). Although the appellant submits that his was just a reiteration of the admission allegedly exterted from him at police station, Tabora, we are satisfied that, even if there was such prior extertion, P.W.7 succeeded to reassure F the appellant that he was a free agent at the time he made this later statement. In that statement, the appellant admitted being in possession of the stolen cattle a day after they were stolen. That admission alone would suffice to convict him under the well known doctrine of recent possession. When that admission is taken together with the evidence of P.W.2 and P.W.3, no reasonable tribunal can come to any other conclusion except that the appellant G took part in theft of the cattle concerned. He was thus properly convicted.

As to the sentence of 15 years' imprisonment, we agree with the appellant that it is a severe sentence since it is the maximum prescribed by law for the offence. We have, however, to ask ourselves whether it is not merited in the H present case. In answering this question, we take into account the factors considered by the trial court - that is - the appellant used a gun in committing the offence. The use of a gun raises the presumption that the appellant and his I colleagues were prepared to kill in order to steal the cattle.

The other consideration is the prevalence of cattle rustling in the area involved.

We take judicial notice of the fact that such prevalence has made the inhabitants of Tabora district feel so insecure that they have resorted to vigilante activity known as 'Sungusungu' for their own protection. By imposing severe sentences, whenever the occasion arises, the courts will re-assure those inhabitants that the State is prepared and willing to protect them provided witnesses come forth and testify.

The last consideration is the fact that so many cattle were stolen by the appellant and his accomplices. None has really been recovered and the appellant ought to be deprived of the opportunity to enjoy the money, totalling shs. 88,000/- which he got by selling the cattle to P.W.2. This deprivation is better achieved by keeping the appellant in jail for many years to come. For all these reasons we cannot interfere with the sentence.

In the final analysis therefore, this appeal must be dismissed in its entirety and we order accordingly.

Appeal dismissed.

1988 TLR p250

F