Court name
Court of Appeal of Tanzania

Peter Mtengo and Four Others vs Republic () [1989] TZCA 3 (13 March 1989);

Law report citations
1994 TLR 112 (TZCA)
Media neutral citation
[1989] TZCA 3

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

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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

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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

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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

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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

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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

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

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