Pagi Msemakweli v Republic 1997 TLR 331 (HC)

 

PAGI MSEMAKWELI v REPUBLIC 1997 TLR 331 (HC)

Court High Court of Tanzania - Mwanza

Judge Lugakingira J

CRIMINAL APPEAL 134 OF 1996 B

29 December 1997

Flynote

Criminal Procedure - Preliminary hearing in terms of s 192 of Criminal Procedure Act 1985 - Failure to conduct preliminary hearing not fatal to proceedings unless such omission resulting in unfair trial leading to failure of C justice. Criminal procedure - Withdrawal of charge in District Court in terms of s 98(a) of Criminal Procedure Act - Withdrawal does not operate as bar to subsequent proceedings being preferred on same facts. D Stock theft - Where accused had offered to refund number of cattle stolen, irrelevant that no consistent description of cattle given or that none were tendered. -Headnote The appellant was charged with cattle theft in a District Court. The appellant offered to repay PW 1 E the stolen cattle, after which the charge ws withdrawn under s 98(1) of the Criminal Procedure Act and the appellant was discharged. However, the cattle were seized from PW 1 by one M, claiming that they had been paid to PW 1 unlawfully. This led to PW 1 making a fresh complaint which led to appellant being charged, convicted and sentenced. 

On appeal, it was contended that F there had been no consistent description of the cattle and none were tendered; that the trrial court had not held a preliminary hearing and that PW 1 had no more complaint after being paid and that the matter was concluded with the withdrawal of the initial charge. Held: (i) That neither the failure to tender the cattle nor any defect in the description of some of them had any significance in the case - the fact that the appellant had repaid the cattle was an admission of theft which the trial magistrate was entitled to take into account, which he did, and in these circumstances the Court does not have to see the stolen item or be particular about its identity; H (ii) That unless the omission to conduct a preliminary hearing had resulted in an unfair trial leading to a failure of justice, which was not the case in casu, it could not be held to be fatal to a proceeding; (iii) That the withdrawal of the charge under s 98(a) of the Criminal Procedure Act did not operate as a bar to subsequent proceedings being preferred against the appellant on the same facts - the payment or phoney payment made to PW 1 did not undo a criminal act which was already complete and the offence of cattle theft was not capable of compromise. 

Case Information 

Appeal dismissed. 

Nasimire for the appellant 

Mbago for the republic 

[zJDz]Judgment 

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 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 E deserves 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.

Editorial Board Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice of Tanzania Secretary & Managing Editor

Dr. J.T. MWAIKUSA, Senior Lecturer, Faculty of Law,University of Dar es Salaam Members

The Hon. Mr. Justice B.A. SAMATTA, Justice of Appeal,Tanzania Court of Appeal

The Hon. Mr. Justice H.M. HAMID,Chief Justice of Zanzibar

The Hon. Mr. Justice H.A. MSUMI,Principle Judge (J.K.) of the High Court of Tanzania

Mr. SHAIDI, Principal State Attorney

Attorney General's Chambers, Dar es Salaam

Mr. A.M. MISKIRY, Senior State Attorney,

Attorney General's Chambers, Zanzibar

Ms. K. ORIYO, Chief Corporation Counsel,Tanzania Legal Corporation

Mr. S.J. JADEJA, Advocate of the High Court of Tanzania

Mr. B. LUANDA, Registrar, Court of Appeal of Tanzania

Ms. M. SHANGALI, Court of Appeal, Administrative Assistant

Dr. P.J. KABUDI (Assistant Editor),Senior Lecturer, Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1996] T.L.R.

Judges of the Court of Appeal of Tanzania in 1996

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.S. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

8. The Hon. Mr. Justice D.Z. Lubuva Justice of Appeal

Judges of the High Court of Tanzania 1996

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice A. Bahati Puisne Judge

12. The Hon. Mr. Justice H.A. Msumi Puisne Judge

13. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

14. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

15. The Hon. Mr. Justice E.P. Moshi Puisne Judge

16. The Hon. Mr. Justice L.A. Kyando Puisne Judge

17. The Hon. Mr. Justice W.H. Sekule Puisne Judge

18. The Hon. Madam Justice E.N. Munuo Puisne Judge

19. The Hon. Mr. Justice J. Masanche Puisne Judge

20. The Hon. Mr. Justice J.B. Mchome Puisne Judge

21. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

22. The Hon. Mr. Justice J.M. Mackanja Puisne Judge

23. The Hon. Mr. Justice J.J. Mkwawa Puisne Judge

24. The Hon. Mr. Justice E.K. Mwipopo Puisne Judge

25. The Hon. Mr. Justice E.N. Rutakangwa Puisne Judge

26. The Hon. Mr. Justice J.H. Msoffe Puisne Judge

27. The Hon. Mr. Justice A.C. Mrema Puisne Judge

28. The Hon. Madam Justice A. Bubeshi Puisne Judge

29. The Hon. Mr. Justice S.N. Kaji Puisne Judge

Judges of the High Court of Zanzibar 1996

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1996 TLR p1

A