19760421 TZHC Mwanza

1L IN THE HIGH COURT OF TANZANIA AT MWANZA -. - APPELLATE JURISpICTION HIGH COURT CRThINAL APPEAL NO. 43 OF 1974 ORIGIN4L RIMIWL CASE NO. 716 OF 1973 OF THE DISRICT COURT OF BUKOBA DISTRICT AT BUKOBA Before C. .1-i. Msmati sq., ......... District Magistrate ALIKWI KWEYEMBA • APPELLAN' ............versus ,. . .. . •. .. - THE REPUBLIC RSPONDE'NT Charge Receiving sto1en property contrary th section 311 of the Penal Code. .. ....... .........;.,.. JUDGE ME NT NA!NING, J. - The appellant with another person who was acquitted was charged of having received stolen propexty, azd he was 1.mprisofled for three rears. He is now appealing. •t:,Th proseFution Fase is as follows. Reverend Father WiLson s/o I4wagila (PW.4) stated bfore the trial court to the effectU- at 1)e was a Parish Priest at Kanazi. On 12th August, l9V3 he was at Kanazi for the priest's meeting and he discovered that our of the sever. wiñdow:frarnes stored.in the storeroom only one window fraind remained, that is six window frarnes. were s.tole.n .s well as a number of the other items. Hence, on 17th August, 1973 during the ceremony of opening the priest's house, he informed the congregation about the windáw frames, which were stolen. Then o'2nd September, 1973 (which was on a Sunday,)at about 9.00 a.m. while he was going back to Kanat from the town, he saw a peogeot pickup, though he did not note the number, standing near Gilidi's house. He then saw one person lifting a window frame and then the motor vehicle moved away. He followed it to Kanazj and he saw that the driver of that motor vehicle was the appellant and the registration number of the car was BK 4378. •Th . .pic)cup was empty, there were no window frames in it. After ascertaining who was the owner of the motor vehicle, he went to report to the police. He was given a police officer to go with him and they went to Gilidis house, , 1ace where the window frames were unloaded. TheY found .. : Gilidi's wife at home, whom they interrogated. Mrs. Gi.idi (PW.6) stated, that the first accused had left the dindow"frames at her house before going to Kanazi. They, therefore, left and followed the first accused to Kanazi, where they found him drinking in a bar. When he was asked if he was the owner of the window frames he agreed that the wIndow frames belonged to him because he had bought them from an Indian. The police with the priest accompanied the appellant to Gilidi's house and they took the window frames to the police station. On 2nd September, 1973 at about 7.30 p.m. the first (the priesth)accused (appellant) went to his/house and asked hiDl to forgive him in the presence of Joachim, Petro and Gabriel (Pw.5) a Church Clerk. The accused came again another day to apologise and they prayed together. When they asked the police to withdraw the case, the police refused to allow any sort of reconciliation. The priest's evidence was supported by PW.5, PW.6, PWÔ7 PW.12 and P.13., -2- The appellant stated in the trjalcourt that on 2nd September, 1973 he had left his home and went to Kanazi to collect' SOme relish and he parked his car near Lüdovick's house. He then cave the relish to a child to take it to his home while he went to drink beer -in a bar0 A quarter of an hour later Reverend Father Wilson (PW.4) came looking f or himánd asked himtofolIoWhim to his car where.he found. a policeman, who informed him that hiscr had carried wiiidow frames, which were left at Gilidi'shouseb denied having unloaded window frames at Gilidi's house. They, therefore took him - to Gilidi' s four window frames outside Gilidi's house. They then took the window frames to the :poiice station and put him in custody but he. was later granted bail. ., . . In his grounds of his appeal the first accused complains among othe.things. that hewas not properly tried because his trial was prejudicial since he was joit1y charged with another pèson, though it was never proved that he had committed the offence jointly with the second accused. After perusing through the evidence it is obvious that the first and second.accused had not jointly committed the offence with which they ez&eharged. Since no joint receiving pf:stolen property by the first accused and the second accused was proved the accused persons could not be convicted jointly - eeNJ7NI v. R (1970) E.A. p.260 at p.262 The rule It Rv. SCARlMANGA(193) 2 'QB app1ies. Lord Parker there said after reviewing the authorities:- .- . ............... "In our judgement, except when provided by statute, when two persons are jointly charged with one of- fence, judgement cannot stand against both of them . 41 on a finding that the offence had been cmmitted by each independently." For the above reason, I quash the conviction and set the sei'itence aside. The appellant should be released immediately unless he is otherwise lawfully held. - S - . . .5 5 / .......\ S _•___S (J. C Manning) JUDGE 21/4/1976.0 Delivered in Court this day of 1976, at Mwanza. JUDGE. ., S .......