Nyamiga s/o Waryoba vs Republic (High Court Criminal Appeal No. 56 of 1997) [1998] TZHC 2424 (2 December 1998)

IN 'THE HIGH COURT OF TANZANIA AT MWANZJI. APPELl.,A'IB JURISDICTION (Mwanza Registry) HIGH COYRT CR,IMI,NAL. APPEAL NO;. 56 OF 1997 Origi'nal Criminal Case No. 46 of ']997 of the District Court of Bunda District at Bμnda· ~ Before A. I1·agafu, (Mrs) . Principal District Magistrate . . . . :. .· . ,.' . ·•· NYAMIGA S/0 WARYOBA 0,00000000••••••0•0•000_0••0 APPELLANT . . . ·: ·. (Original ccused) versus: . THE P.EPUBLIC ••••• o •.• o. ••••••• "'. •·• o ••• o·• ~ •• •·•·•-o o. RESPONDENT (Original Pros.ecutor) .:.. JUDGEMENT MR.EMA, J. Nyam.iga Waryoba, the appellant in· this appeal, was the third ac,cused Jn the O Original case No.· 46 of 1997 iit :'B'unda n{st;ict Court .Him .and twc:, otl:'/;:rs stood charged with cattle theft c/s 268 (1) and (3) . , of~ the Penal .Code 0nd at the ,conclusion of the -·trial Nyatniga and the first :accused Ryoba s/o }1gozi · ,ere l"'.Onvicted. ,ind sentenced ti statutory minimum sentence of five ;years imprisonment. ·. Ryoba Mgozi ·has· n6t appealed but the appellant Nyemiga has appeald against the conviction and sentence• At the trial it was established in evidence,. also not. co+itroverted . , . .··. . . in this appeal, to the effect that three heads of cattle beli;mging to the complaiant Rhobi d/o Hwita (PWl) were stolen from -he;r; cattle kraal in the night following the early morning hou'.s of 11-2-,97 0 .Upon discovery of the theft alarm v;as raised and PWl' s,ne;ighbours -went in ' •••: • ,• • ••• •,: • (:...r pursuit of the cattle on being guided by their hoof markso The exercise however did not bear fruit but wh:i,.le PWl was at her hornestead two people from Ki tararnanka village b~?ugh"t; info~mation to her_ to the. ef_fect that one of her stolen three heads of cattle was se0n at some place in that village 1

,. ,- . (Kitaramanka). That tke,-heqd of .. cattle was in the possession of three peisons. These three per,sons ·· turn§/:F to be the appellant and hrn others, all relatives as per the ev;idence on record. J'wlong the people who saw them in possess.ion of the cattle were Thomas Kanyerere (PW2) and Maulid Juma (:t=>W3)f >the·· ltter having beeri fn the group searching for the stolen ·. ' 1 The appellant nd his two relatives fa.i;led to produce a permit ' - . as evidence to ;:;how :th_a.t .they ,1kre ::i..n Lawful possession. of the head of cattle and 1;1hether it was true in fact that they had been tracking the ,: an±niaJ'.:,frorn ne Mrancta' at Bi taragur to one Lukiko at Kwigutu. As the appellant claimed to the'' vtl tnesses that he was Mrandai s herdsman the ) r. '!, • ,., ·,• • . • • witnesses :sought' l t worthwhile s2nding someone to Mranda to verify the assertion. But as it turned out Mranda denied that he ever knew the ' ·-.· ... w ----· appellant nor had sent arty ·or1e·""to··send his cattle to -n _L11ldko. And when P\rJl arrived at the scene on 12-2-1997 she immediately identified her cattle r,iot only by the "V'' cut brand marks on the animal ears but ··: alfio by: its khaki colour and the fact that ;it ':had a newly born calf that was left at home when its mother was stolen. The second accused '·, was a young boy df 12 years 9f age. According to PW2 and PW3 they -· - .. ···decided-to beat the boy so as to extract further information as how ,.they g6t the head of· cattle . . It was then that the 2nd accused told the w:i_ tnesses that his brother the first accued (Ry.oba) ':-oke him ,up and told him to accompany :? them while tiacking:,the cattle to one Lukiko. Shortly thereafter Ryoba ·arrived on his bicycle and claimed that the cattle was his property. Whether the 1st accμsed had .. any. movement permit, it -is the evidence of ·( ... ... .. "*": . 4 .. '.. . . :,, PW2 ,.1.and PW3 that the accused Ryoba asserted to the effect that he .L · r : .. :: failed to obtain one because the village executive officer was not present to issue oneo Also that he ·bought the cow.at Taira village exchanging it for 5 bags· of m·aize) and .;;as tracking it to Lukikoo The explanation did not satisf'sj the ite;;ogator~ and in the result the

3 -·· . , , ;;;ellant ;ri.i his cc:illeague:S together with the animal' were ta.ken to plice' statiori ir further inter'rogationo, Finally, the three suspected persons were taken to court and charged accordingly. The appellant: ( third accused, simply stated on oath that on .·112-97' he was at home •. He was visitd by the 1st accused Ryoba who we.nt there 'to buy foodo. The.t he (DWl) spent night there and left the appelkit 1 s homeste;ad ::;:t -l 0 0Q p.m. ,:on ],:2-2-97. That is all what the appellant told ·the tl'.'ial ·co'lμ't.,. · In short, the apP.llant,t s st_ory amounts · to deafence: di .ali·bi.; _, The' app1:lnt fild ;sevn groutlds of appeal which ho,Jever are (.:..;.. 1~" : • ' " .. • .• ;~~etetive ::'f ·each other and for that reason: ·r ,ill deal with them "·r• ';) ; .. . generally- beJ·aue essentially they are attacking the evidence on record • . 'l1he .appellan:f optd ?t,:to b:e present at the };learing of the 8i)pea,J.,. 0 .11.s for the ,Respondent'.""Republic tr.e Learned State attorney, • I ',; .J. .. : , \ ,·,'• . . ·· . , • , • ,'_' '... . ..• -• !, .. ., • : , :: ·- t.· ·' ... •·.. . .. , r,. Felesr appeared _nd argued ,ori be}:lalf. .IJ.e suppo;td the conviction ':.' ..s.nd ente.nce. ' ',' '.PP: appellant's first gr--,unr1 _")f c:ppeal qntradicts what the appel],.ant told. the trial e,ourt. ,At· the t.riat,; .he cla,imed tha,t he never moyed from his hornestead betwee·n :ll..;.2-97 and l.?'!"'2-9'Z. In hi? first ground, of appeal he: adrr!i ts to have beE::n C<?-ught ;m the way, though , apIJarentl.y denying h1;1ving been caught wi;h the_ al:,Lege. cow•: He offered no explanation as why PW2 and PW3 testified against him the way they did. . .. . ., . --- .. . .. : .- .. - . . , .· c·. -; There is no doubt that the cow whic_h was said to have been found in the appellant's hends 11y PW2 and PW3 was produced in court as exhibit in the presenpe of the appellant and his colleagues (aqcuseds)., The trial court ·i{ ~ did not have good cause, either in Law or fact,. to refuse accpting the evidence of PW2 and PW3c Further, the cow that wa&-·· found· with the ~ appellant via.ii properly identified by the complainant (PiJl) "as h~r property 0

".; ·· she (Pil) 'even br6ght ":to the cotil·t thfti:ti t~~ t was r~~ent±y born by th·:dfputed ¢'<3./ • arfd:':the - tr'ia:1' ·dow;-t ;iserved that· the· d'in bore the same co':1..'ouF bf its mothet', 'The 1st accused' Ryoba {DWlS 'JhO at first had claimed to the people that the coii Jas b.:t:- pfpei'ty also gave a negative. 'st'i:Jr:; before thee trial. courto. He.admitted to have tnet the people in .cormection wLth ·stolen cat'ti·e ·'11hat while on his who raised alarm ,• along ;,.,qlthe village road he found the people sitting" beside t:he roado · He \vas ordered by the said people to stop there and then and· t1~~;;,told he was a cattle -thief., , 1A,s why the. witnesses testified against him the accused claimed -. th,at he waB not in good terms ,.Ji th the. village chairman- of Migungani and as such. the c.h3.irmnn urged he_ witnesses to- implicate him. But Ryoba never disclosed the nature of their alleged unfriendly relationship. In the to,tali ty of eviqcmc I agree with the Learned State ;.,;.,,atto~:μey,,c1s I. did on 2·d2-98 when.I dismisse_d the appellant~s.appeal .!.. .i ...... ..:_, ... ,•. ... ,1. after hearing -:1t, that this appeal is baseless •. The appellant and ...: _; . ::·- •'• were others/ 'round with PWl' s cow only one ctay after the same was stolen.

• .. :r, · .1:. ,\ ..,-_ Him (appellant) and 1st accused totally failed to exculpate themselves as how they obt;;;ined the cow. rt f)llows therefore that they were thieves directly connected with the three stolen heads of cattle belonging to the complainant (PWl) • Thus, in any vew, I agree with the Learned was . . . . . trial Distric't Magistrate_ thi:lt he doctrine of recent possessionbroperly applied in the instant· case. I accordingly affirm my decision dated 212-98 that this appeai is frivilous-and vexations, hence dismissal a:r1d sentenc - to remain undisturbed. \ •·i\ ✓ ·<~-- Co. MREMA '·' . . JIJ])GE