Court name
High Court of Tanzania

Director of Public Prosecutions vs Elias Mwashitete & Another () [1997] TZHC 23 (17 December 1997);

Law report citations
1997 TLR 319 (TZHC)
Media neutral citation
[1997] TZHC 23
Coram
Mwipopo, J.

Mwipopo J:
This appeal has been taken by the Director of Public Prosecutions against the acquittal of Elias s/o F Mwashitete as the first respondent who was the first accused in the lower court of Mbozi District Court and of Joseph s/o Michael as the second respondent who was the second accused in the same trial court. The acquittal was from charges of armed robberies contrary to ss 285 and 286 of the Penal Code as amended by Act 10 of 1989.
G The appellant at this stage was represented by the learned Mr Mulokozi State Attorney whereas the first respondent Elias s/o Mwashitete was represented by the learned Mr Mkumbe Advocate. The second respondent Joseph s/o Michael has gone underground and can't be traced through his H addresses given to the police at the time of his arrest and even through his address given to the trial court at the time of his acquittal being PO Box 304, Mbozi Mechani of Mlowo village c/o Ten cell leader James s/o Shangwa. Both sides asked the court to proceed with the appeal with the present respondent and defer the appeal against the second respondent to another future date in order to I do quick justice to the first

appellant who has always been attending this court both by himself in person and his advocate, The A Mbeya RCO (Regional CID Officer) undertook to continue looking for the second respondent in order to serve him to appear for this appeal.
The written grounds of appeal of the Director of Public Prosecutions were summarized by the learned Mr Mulokozi that the trial court was wrong to acquit the first respondent despite the B overwhelming evidence that the complainants traced the robbers' motor vehicle from the scene of the armed robbers at their Iporoto Village Primary Cooperative Society's go down to the house of C the first respondent at Lungwa Village; that part of their sixty-five bags of coffee stolen and loaded in the robbers motor vehicle at gun point within their sight found their way to the house of the first respondent and the same forty-five bags were properly identified by their owners that the first respondent was seen and identified handing the stolen sixty-five bags of coffee at his house; and D lastly, that the doctrine of recent possession should has been applied to find the first respondent guilty of armed robbery as charged in view that the first respondent was found with the stolen sixty-five bags of coffee hardly five hours after they were robbed from the Iporoto Village Cooperative Society. The other ground of appeal involved an order for restitution of the forty-five E bags of coffee seized by the police from the first respondent to the same first respondent. The learned Mr Mulokozi argued that since the identity of the sixty-five bags of coffee had been well established to belong to different peasant members of Iporoto Cooperative Society by their special F numbers and as shown in Exhibit P4.
On the other hand the learned Mr Mkumbe for the first respondent has vehemently opposed this appeal and supported the decision of the trial Mbozi District Court in acquitting the first respondent G as well as ordering the forty-five bags of coffee to revert to him. The learned Mr Mkumbe Advocate argued that no eye witness identified the first respondent to have been seen at the time of the robbery at Iporoto Cooperative Society.
The learned Mr Mkumbe advocate further argued that the identity purportedly made by PW2 of the first respondent at his house while he was with the occupants of the robbers lorry was dubious and Hunreliable for it was based on clothes only at a long distance, 100 paces away at night or dawn, and that the same clothes were not proved to belong to the first respondent.
Similarly, on the identity of the forty-five bags of coffee found at the house of the first respondent, I the learned Mr Mkumbe argued,

A that they belonged to the first respondent who was a good farmer with 61/2 acre coffee farm from which he harvested them and he told the police about them even before they searched his house.
The learned Mr Mkumbe further counter argued that since the family of the first respondent was not B at home for the entire day of 6 September 1995 it was possible that the villagers from Iporoto village who testified as PWs two, four, five and nine and who had kept vigil over the first respondent's house from 5.00 am until 6.00 pm when the police came are the ones who broke his house and planted inside that house the weighing machine of Iporoto Cooperative Society and C marked the forty five bags of coffee of the first respondent with their respective membership numbers in order to fix up the first respondent with this offence.
The ownership of the coffee, according to the learned Mr Mkumbe, was properly held by the trial D magistrate that it should be determined in another civil suit. He cited the case of Athuman s/o Mwarungwe v R (1) as an authority that ownership dispute over property should be determined in a civil suit.
The Trial Magistrate, the learned Mr Safari, seemed to disbelieve the entire story of the prosecution E witnesses that they followed up the lorry of the robbers from their village of Iporoto up to the Lungwa village of the first respondent. He also held that the failure of the Iporoto villagers to mark the numbers of the robbers lorry, to block the road so that it could not leave the first respondent's F house, to raise an alarm and to summon the help of the villagers of Lungwa as well as to call the Lungwa village leaders to testify in court made them untrustworthy of any credibility. The trial magistrate further believed the testimony of the first respondent and held based on the credible defence of the first respondent that the Iporoto villagers are the ones who broke the house of the G first respondent planted in his house the weighing machine of Iporoto Cooperative Society and marked the bags of coffee of the first respondent with their numbers in order to incriminate the first respondent with this crime.
H At the first time the respondents were taken to the Mbozi District Court on 11 September 1995 there were three accused namely Elia s/o Mwashitete the present first respondent who was the first accused, Tobias s/o Mayele who was the second accused and Joseph s/o Michael who was the third accused the present second respondent. The charge sheet too contained two counts of armed robbery contrary to ss 285 and 286 of the Penal Code in the first count and the store I breaking and stealing contrary to s 296(1) of the Penal Code.

The same original charge sheet was substituted with another charge sheet on 4 December 95 after A the second accused Tobias s/o Mayele was on 20 November 1995 under 98(1) of the CPA by the withdrawal of the charge in his favour. The present two respondents were left in the present charge sheet to face the trial. The substituted charge sheet contained only one count of armed robbery contrary to of ss 285 and 286 of the Penal Code having left out the previously second count of store B breaking and stealing contrary to s 296(1) of the Penal Code.
As much as issues of credibility of witnesses and findings of facts are left to be determined by the trial court there seems to have been grave errors in the finding of the facts of the trial court which C need to be corrected by this court on first appeal. The background of the crime which occurred in Iporoto village twenty kilometres away at the scene of the crime was not considered seriously by the trial court. I better start from there. From the testimonies of PW1 Witson s/o Songa the Manager of Iporoto Rural Cooperative Society, PW2 Mateso s/o Kailon, PW3 Festo s/o Namoyela, PW4 D Fabiano s/o Kamola a committee member of Shanwe Iporoto Cooperative Society, PW7 Raisi s/o Malimoja the village Executive Officer (VEO) of Iporoto village government and PW10 Eliakim s/o Ali the watchman of Iporoto village Cooperative Society the sequence of the events was that at 3.00 am after midnight a lorry and a saloon car came to Iporoto Cooperative Society's coffee godown to E store break and steal coffee from it. PW10 the watchman sneaked into hiding in time to see what occurred. When the thieves started breaking the store he went to ring a bell signifying danger and most of the villagers came out from their homes in full vigour to give help to the watchman to F apprehend the burglars. But, they were met with a terrifying firing of bullets by the armed robbers which kept all the villagers at bay far away and in hiding. The armed robbers continued loading the sixty-five bags of coffee worth Shs 5,516,00/= and left undisturbed. But, it occurred to some G villagers that they should follow the lorry which was not moving very fast with bicycles to see where it went. Among such villagers was PW2 who followed the lorry for twenty kilometres until the lorry ended up in Lungwa village at the house of the first respondent. They didn't know where the saloon H car had gone. They kept in hiding about one hundred paces away from the house seeing the coffee bags being unloaded into the house of the first respondent without raising an alarm until the lorry later left that house for another unknown destination after 5.00 am. They decided to keep vigil over that house until morning when they informed the village leaders about this incident but the I

A village leaders and people refused to render them any help for fear of retribution from the first respondent until 6.00 pm when the police came from the District offices at Vwawa where some of the Iporoto villagers had gone to seek help. During the day more villagers continued pouring around the house of the first respondent until they became a big crowd. Some came with bicycles others B walked on foot for four hours such as PW7 who left Iporoto on foot at 8.30 am and reached the house of the first Respondent at 12.00 noon. Out of the whole crowd no villager from Lungwa village gave them any help of keen interest to enquire what was happening. But, no doubt it was a big C unheard of event in the vicinity for the house of first respondent to remain under guard by strangers from an unknown village. The village leaders of Lungwa were quite nervous and apprehensive of the whole episode, for the police found them at their village government's office also, waiting for the D police to come most likely.
With this background, which was not considered by the trial court in its assessment of the evidence as a whole, I find as a true fact all this narration of prosecution witnesses did happen.
E Since there was firing of guns at Iporoto village all the witnesses from Iporoto knew that the robbers were fully armed and meant business with their guns. It was expecting too much from them that they should have seized the lorry while it was unloading the coffee at the first respondent's house. Similarly they could not have raised an alarm for they could have been easily killed by F exposing themselves to the armed robbers. Failure to identify the numbers of the lorry can be easily be explained in the same vein of being scared to note such numbers and being novice peasants. Further they successfully traced their coffee and kept guard of it until the police came to give them assistance -- fifteen hours later on. The Iporoto villagers are courageous and vigilant citizens who G played their preventive role to protect their property to the best of their intelligence and means for which they ought to be congratulated. With this background I also dismiss the findings of the trial court that the Iporoto villagers are the ones who broke into the house of the first respondent and planted their weighing scales there and printed the bags of coffee of the first respondent with their H numbers in order to incriminate the first respondent. I find the opposite as testified by the prosecution witnesses to be the truth that the forty five coffee bags found in the house of the first respondent were deposited there by the armed robbers out of the loot they stole from Iporoto I Cooperative Society at gun point. Similarly, the weighing scales of Iporoto

Cooperative Society was stolen and brought to be kept in the house of the first respondent by the A armed robbers themselves.
As argued by the learned Mr Mulokozi State Attorney the issue of the identity of the forty-five bags of coffee was conclusively proved to belong to the different members of the Iporoto village villagers because their numbers were found marked on the bags and as per their cooperative society's office B book exhibit P 4. To find that the villagers of Iporoto village went and broke the doors of the house of the first respondent and marked the bags with their own numbers is quite absurd for the very Iporoto villagers testified otherwise and the first respondent was not there to see. After all according C to the testimony of PW2 the wife of the first respondent was in that house for the night, morning and until 2.00 pm when she left the house not to return again until when the police came and found nobody in that house not even the children and both 2 wives of the first respondent who lived there had abandoned the house, and the first respondent testified not to know where they went. D
The next issue for consideration is the identity of the first respondent. Both the learned Mr Safari and the learned Mr Mkumbe Advocate held the view that the identity was not safe to base a conviction on it since it was dark and only the clothes of the first respondent were identified and they E did not know each other prior to the day of incident. Further, the identifying witness was standing in hiding one hundred paces away and that no identification parade was made to ascertain if the prosecution witnesses fully recognized the first respondent. F
The only witness who identified the first respondent was PW2 Mateso s/o Kailon. He testified that he saw and identified the first respondent by clothes with a shirt which was reddish with blue dots. This piece of evidence came out of re-examination of this witness (PW2) by the public prosecutor Inspector Sangija. Why didn't he bring it up during examination in chief? Even during cross G examination of this witness (PW2) no question was asked on the identity of the first respondent. So, this question of identifying the first respondent was wrongly admitted in the first place for re-examination and must arise out of cross-examined questions -- unless the court permits such H new questions in which case the other side must be given time to cross examine on the new question arising out of the re-examination. The first respondent was not given such chance to cross examine PW2 after he testified on re-examination that he identified the first respondent from his clothes. On this legal ground of improperly admitting evidence of identification of the respondent I

A in re-examination without affording chance to the first respondent cross examine on it coupled up with other valid reasons on identity of first respondent referred to by the trial magistrate and the learned Mr Mkumbe I find that the first respondent was not properly identified at all to have seen the B armed robberies when they were unloading the stolen coffee at his house. Since none of the prosecution witnesses identified anybody at Iporoto village and improperly identified the first respondent at his house the defence of alibi of the first respondent that he slept with his first wife at his Vwawa house remained unrefuted by the prosecution.
C The next issue for determination is whether the first respondent is guilty of receiving stolen property. Why did the robbers bring the coffee to the first respondent's house? Can it be necessarily inferred that he conspired with them to keep it for them for storage purposes in order to share the loot. There are many possibilities to it but three possibilities seem to be cogent to have D been the case. The first possibility is that the first respondent was part and parcel of the armed robbers as their planner or financier etc and that they brought the forty-five bags of stolen coffee as his share of the loot. In this situation he would be a principal offender and guilty of armed robbery as E charged. The other possibility is that the first respondent was not one of the principal offenders and guilty as charged for armed robbery but a mere receiver of the stolen property as a usual customer -- buyer of the stolen coffee or as a usual storer of the stolen coffee for a fee. In this second possibility he would be a guilty receiver of stolen property for which he could be convicted F as such under s 311(1) of the Penal Code or if the doctrine of recent possession can apply he could be convicted of the principal offence. In this case the doctrine of recent possession would not apply to him for he was not identified to have slept in that house. But, his wife, who was in that house and left the premises at 2.00 pm to hide away from her own house should have been visited G with this offence and so charged. She wasn't even charged for the weighing scales which was found hidden under the bed-mattress in one of the five bedrooms of the first respondent!
H The third possibility, that since the first respondent testified to have mentioned to the police before searching the house that he had forty-seven bags of coffee in his house he too might have been a victim of house breaking and stealing by the same armed robbers as was Iporoto Cooperative Society. The robbers are intelligent people, they might have planned to go and rob the I first respondent just

after robbing Iporoto village. They succeeded in breaking the door, but out of the fear that they would A be caught with the marked forty five coffee bags of Iporoto they dumped all the forty five marked coffee bags of Iporoto, kept for themselves the remaining twenty bags from Iporoto which possibility had no good marks on which marks they to erased on the way from Iporoto to Lungwa village and B added up another loot of forty-seven bags of the first respondent which were unmarked to go away with a total of sixty-seven bags of coffee that night!
With these reasonable possibilities it is not easy to use circumstantial evidence to convict the first C respondent with any criminal offence because circumstantial evidence does not irresistibly lend to only one inference that the first respondent received the forty-five bags with guilty knowledge that it was stolen. Had it been his wife who was at home it would have been a different matter.
As for the weighing scales the Public Prosecutor was very funny to have not included it in the D particulars of the offence although it was not disputed that it belonged to Iporoto Cooperative Society. Nevertheless, it was already returned to the same complainant. The finding of the trial court that the forty-five bags need another civil suit to establish its ownership was erroneous and it is hereby quashed. The same forty-five bags were conclusively established to belong to the E respective peasants of Iporoto Cooperative Society as per Exhibit P 4. The same be returned to them immediately. Otherwise, this appeal is dismissed for the over given reasons. F

A