19760507 TZHC Arusha

IN THE HIGR OURT OF TLNZNIA AT L.RUSI-1A

APPELLLTE JURISDTION HIGH C OTJflT CRIi':'INLL APPEAL NO. 283 OF 1974 ORIGINAL CRIMINAL CASE NO. 216 DOF 1972 OF: THE DISTRICT COURT OF OSHI DISTRICT AT i\OSHI BEFORE: X..A'f ZA SSIM,Esq., Districb Magistrate .'ASAROTINGISi.,......0 ........... ...APPELLkNT (Original Accused) versus (Original osecutor)

JUDGELENT 1AILI The appellent. was charged aid coi'ivicted in the 'district - •court of , Moshi district at Hbslii with the of±'e±ice of' Cattle Theft. c/s 268 of the Penal COde and was. sont.enaed to. the stathtory legal minimum son.tenco of 5yoars'irisoiiont under the Minimum Sentences Act, 1972 Ho is now appealing to-. this eourt'against Oonviction. The factsof the paso according to the prosecution are that sometime during the night of l8th/19th February 1972, a cow belonging to P.W.2, a b1indaan was stolen.froin.-P.W,2's • :kraalwhero it hadbcon with othe' cattle P.L3 a hordsboy aged 16 yeers who usod to look aItx P.J.2 1 s cattle, noticod. . .. some :footprints of a cow and he followed thoao foot-prints from the cattle 1'aal duing the morning of l9th February 1972. • The: *ail of the footprints lcid PW.3.. to a place: known as Boma ya Ng' - cmbe who he found tha.. tolin cow in the pompany of the appclLnat and P.1.4 (a tcosengor aGtachcd to the ard cccutive OffLcc 11l the area). The appelLant was th 1en bei:g •interrogatod by P.W.4as a result of a report nede' - PeW5': • (Abdi LOta).arlior i that day that apbllant had'offerred to sell the cow to'I.'J5 at 6.00a.n. thttdar under suspicious circumstances. The apollant's dofoncet the trial consisted in a general denial of the prose'c-utio:: case aid an assertion that the stolen cow was not found in his posscssion but in

the possession of P.'1.5 who was probably the thief of the cow and that. appellant was' arrested for no reason at all while he was imaocotly- moving- abOut in the area.. The first point for consideration in thi,s ease is whether, the cow found in Bona ya Ng'ombe is the same cow which was stolen from ?.W.2's kraal. The Learned trial district nagistrate iound that the cow vas sufficiently identified from - the dOscription given of its colour by P.W.3 and P.W.5 - that is a mixture of biack an white1 4' , • ,- As I iave. . . . ... .. . -2- As I have had occassion to stats in a number of other similar cases, I think where the ownership of stolen property is not in dispute in a case, thena general description of the property by the person- who claims ownership of it is sufficient identification of that property, but where there are Opposing claims to ownership of the property in ciuestion, then a general description of it would not he sufficient identification of the property unless one of the parties claiming ownership is unable to giva even that general description. - In- the present case there was no dispute as to ownershi -o of the cow in cjuostion and so I would hold that the mixed colour description of the cow was sufficient idontifiction of the cow as being the same which was stolen from P.W.2. The next point is whether the appellant was the thief of that cow. P.W,5 claims in

his evidence that the appellant brought the cow and offered to sell it to him at 6.00 a.m. on the 19th February 1972, but when 2.W.5 wanted to scrutinize the cow, the appellant walked away with it, only to come back with it later. It was apparently because of this behaviour of the appellant that I.V7.5 decided to report to authorities. Undoubtedly the evidence of P.i.5 is to be taken with caution since on tho evidence the cow had boon tied neat' P.V1.5's house. There is also the evidence of P.W.4 9 the messenger atacned to the lard ixecutivc Office. He interrogated the appellant who admitted thaG the cow was his. Now under S. 42 iL (3) 01 the Local Government Ordinance, Cap. 333 which is still inforce even after decentralization of government, a messenger attached to a ward 'executive office has powers of arrest similar to those of a policoman in his area. And since the prosecution case depends on the appellant boing in possession of the cow soon after it was found missing from P.W..2's cattle kraal, then appellant's admission made to 11 .W.4 that the cow was appellant's amounts to a confession to a police officer and therefore inadmissible under our law of evidence and the confession should not have been admitted in evidence by the trial court. There is therefore only the evidence of POW.5 li.aking the appellant with possession of the cow. As I have said, his vidonce has to he

taken with caution. Taking into consideration that it was P.W.5 who reported the appellant to the authorities in the locality, I am of the view that P.17.5's evidence can bo safely accepted as it was accepted by the trial court. Once that evidence is accepted, the conviction of the appellant was inevitable. The appeal against conviction cannot therefore succeed. As to the sentence of 5 years imprisonnent.tho learned trial district magistrate appears to have atod under the Minimum Sentences Act 1972 which did not cone into operation until let Narch 1972, that is a nonth after the appellant committed this offence. Nevertheless, .-. . .•.. .. rr. ---------LI 1 -3- Nevertheless, the learned trial 1ist±ict mo.gistrato was right in ap1ying the provisions of that Act by virtue of section 12 (2) of the t which tates dVlher o before the coning into operation of this Act, a pesons has boOn convicted of a scheduled offence :a11d sontenco isnot passed until after the comencoment of this Act, the coui't shall pass a sonionco in accordance with the provisions of this Actu In the present case the appellant was convicted on 26/9/72 9 that is after the Act had coiac into operation. Now, since the oppollant would not have ccaped the provisions of the Act if ho had boon convicted but not sentenced before the Act cOoo into cporation, he cannot by any logic or sense escape from the aabit oftho Act

when he was convicted after the Act came into operaion. The sentence of 5 years was thercforô proper and cannot be disttirbod. The appeal is dismissed in its cntirety (. L. IYALAtI) JUDGE. udgomont dolivcrcd this same day of 7th 1, 1ay 1976 at Arusha in open court in the presence of Mr Nwale, State Attorney for Republic and the absence of appellant who did not wish to appear. , (F. L. .NYALALI) FLN/MTPM. JU]JGE