Court name
High Court of Tanzania

Pagi Msemakweli vs Republic () [1997] TZHC 24 (29 December 1997);

Law report citations
1997 TLR 331 (TZHC)
Media neutral citation
[1997] TZHC 24

Lugakingira J:
This is an appeal against conviction and sentence, the appellant having been convicted of cattle C theft at Magu District Court and sentenced to eight years' imprisonment.
On the night of 2 July 1994 twenty-five head of cattle were stolen from the boma of PW1 Edward Tumbo at Shigala village in Magu district. Acting on a tip, he proceeded to the appellant's home at Igwisi village in Urambo district where he arrived ahead of the appellant. A few days later the D appellant arrived with two other men driving thirty head of cattle. PW1 identified three among them as his own and reported to the Sungusungu. The appellant and one of his companions were arrested and subsequently charged with cattle theft at Urambo District Court in Criminal Case No E 48 of 1994. To avoid trouble the appellant offered to repay the stolen cattle and gave PW1 the three he had identified and an extra twenty two at Kaliua Police Station. Following this event the charge was withdrawn under s 98(a) of the Criminal Procedure Act and the accused persons were F discharged. But PW1 was not that lucky. When the cattle arrived at Shigala there shortly appeared a certain Mazoya who seized them all claiming that they had been paid to PW1 unlawfully. Presumably it was from this turn of events that PW1 was prompted to make a fresh complaint at G Magu and this led to the appellant's arrest and his being charged in this proceeding.
The appellant offered no defence at the trial, stating that he had nothing to say, and called two witnesses, none of whom was helpful to him. Mr Nasimire who argued the appeal on behalf of the H appellant took three points: first, that there was no description or consistent description of the cattle and none were tendered; second, that the trial court did not hold a preliminary hearing; third, that PW1 had no more complaint after being paid and the matter was concluded with the withdrawal of the charge at Urambo. He also persistently referred to two accused persons but I I think that arose from a misreading of the record for this proceeding involved the appellant only.

It is true, in the first place, that none of the twenty five cattle were tendered and this apparently A because fate had conspired against PW1. While PW1 believed that Mazoya kept the cattle with the Village Executive Officer (PW2) or the Ward Executive Officer (PW3), these two denied receiving them. In a word, the cattle had vanished. And there is something interesting about this Mazoya. A B man of the same name from Urambo district stood surety for the appellant at the trial. Assuming, just assuming, that the two Mazoyas were one and the same person, it would appear that the appellant had a hand in the seizure and disappearance of the cattle. As regards description of PW1's original cattle, I am satisfied with the evidence of description adduced by PW1 and his son C PW4, namely, three parallel marks on the cheek and two on the left thigh. And I think neither the failure to tender the cattle nor any defect in the description of three of them had any significance in the circumstances of this case. The appellant had no answer to the prosecution case, and since a D strong case had been made out against him, his conviction was inevitable. In particular the fact that he repaid the cattle was an admission of theft which the trial magistrate was entitled to take into account. He did and said: `It does not appear to me that the accused would have decided to refund the three identified cattle and pay further twenty two head of cattle to PW1 just for fun if he had no E involvement in the incident.' I agree, and in circumstances like these the court does not have to see the stolen item or to be particular about its identity.
It is equally true that the trial court did not conduct a preliminary hearing as required by s 192 of the F Criminal Procedure Act, 1985. Subsection (1) of s 192 is couched in what appears to be mandatory terms and the provision applies equally to accused persons who are represented by advocates as to those who are not so represented. The question now is whether the omission was fatal to the proceeding. I do not think so. The purpose of a preliminary hearing is to identify matters G which are not in dispute so as to cut down on the number of witness and promote a fair and expeditions trial. Unless, therefore, the omission to conduct a preliminary hearing has resulted in an unfair trial leading to a failure of justice, it cannot be held to be fatal to a proceeding. It was not H suggested to me that the appellant had an unfair trial and my examination of the record does not suggest so either. He cross-examined all the prosecution witnesses and at some stage he brought in a defence counsel who subsequently withdrew. He was given the opportunity to defend himself and to call witnesses and elected to make use of the latter. I

A I therefore see no justification for this complaint on procedure and I will say no more about it. It is perhaps not irrelevant to remark also that s 192 has not proved to be as useful as it was expected to be. In subordinate courts one can hardly speak of meaningful preliminary hearings, where any B are held, and in the High Court it is by a large a plea taking exercise.
Finally, it was contended that since PW1 was paid and the charge was withdrawn at Urambo there was no basis for another complaint. I do not agree. The charge at Uramba was withdrawn under s 98(a) of the Criminal Procedure Act and as Mr Mbago who appeared for the Republic rightly pointed C out, the withdrawal did not operate as a bar to subsequent proceedings being preferred against the appellant on the same facts. The fact that PW1 was paid, or tricked into a phoney payment, did not undo a criminal act which was already complete and the offence of cattle theft is not capable of D compromise. This proceeding was therefore properly preferred against the appellant.
The sentence was above the minimum but I think it was deserved. The trial magistrate cited the fact that cattle theft was alarming in his jurisdiction. I will add that the appellant is a daring character who Edeserves no leniency. He could steal cattle at Magu and drive them fearlessly for hundreds of kilometers to Urambo. Such men are dangerous. The entire appeal is thus without substance and it is dismissed.