19800123 TZHC Dar es Salaam

oouaxo;ax Asto .xo; Mooq poonpo.xdo.x sp t3çtJA .uouiopn znoo .xooi @14 UT q.no qes o.it moo iTrcx otq. Vq puno; su aso otq. ;o sopuX ou @0U0t10s sçt SUTAaaS J@413 allaS otto JOJ eouooti LIOStAp trtUtt4qo .10 DUEPTOTI 1ZI0JJ ptnb —sTp oj ot;;.xj oq. Jo (o)(T)L's .IepUn 09t quouxtxosi.xdmt stftuom XTS .10 =/00011'stts ;o otrç; t o. poouaq.uos puc qo y o;3o.xj otq. ;o (o)c9 Pu (13)G 9/0 OOUOOt1 UtAt.1p ptW. fl014T1A puoa Otind t 110 0101t10.A. trçAçJp ;o p0oçAU03 unoo p.zç 014 uo s& et puij 'uouxaosT.1durc s..rca @0.114 oq, pOOUE4UOS p110 @p03 Tt?U@3 014 JO ptrn ( 0 )69 9/0 sm.iq. ItT spoo ut - oq.s ;o pofotAU00 ttrtoo puoo@s 014 110 S1M °H 'qtZ0tatXOS.1dttI suota G .10 =/oo9'stIs jo ou'ç; u oq. p@OUe09 pus cL61 -ov OTJJs.I otjq jO (I)9 9/3 IX@SU00 S 4 J011M0 014 qfl014M o10çt[a& .100W Upp4 JO p40iAU00 qtinoo q.s.rçj 014 ItO SIM OH I s Jmoo 00.114 110 poqoAu00 SM @9113 9 T14 UT qU11(0dd11 ot - Of 'VHOIVfl)I TJ[OW2 .' *!pV 0TU.tJ oqq. ;o (e)cg pUt (t) 9/0 @0110311 DUTATJP PTIWL 11 4.noqq.TtA puoa oçqnd u U0 eoqoA J00ttI 11 OTTTXlaa — 411r10 0 PJTtJ OP0C) rttoa 014 ;o pus (0)69 _______ s/0 qTstm.11. lIT sp00? 11Tt0@.S - : WnOD pU000 '961 4°V 0 TyOJ 014 JO (1)9 s/o 09U0O 91019VAO 014 qrL0T4TM et31t0A .10q0U1 11 WD11 —:/iQ •••• .......S..,.....S•pO••O ... '''' orIand0u HL SflS.IOA NTII]acitV i''''''''''''''''''° aiw.iaS PIIZVAk Iif1T'T aP/HJ1SIO 1JW 1E IIEThi ffEIHO ''Ti JflflJ 'J f .rj OJojea nnsni iv iiuia rrrs r uva o iunoo woi sii aii o L61 d o O9 ON JVO rEVNIHIUD TINLDIHO 6L61 d o 0N TT7,aa7 iVNIi;iIUO 1UnOo HIH q21i1 NOL]oIaSflIflC aIxTIaaav - 1.T7TJQ SEI IVct IV ' Jj VINVZNTJ IO iacioo HOIH IHII NI :2: .TtJDGEMENT ?t The first accused person is charged in the 1st count with taking a motor vehicle without the owners consent c/s 62(1) of the Traffic Act 1973. In the second count all the four accused persons are charged with stealing goods in transit c/s 269(c) and 265 of the Penal Code.. Pinally the 1st accused is charged alone with driving a motor vehicle on a public road without a valid driving licence c/s 52(a) and 63(e) of the Traffic Act, The facts giving rise to the charges are briefly as follows: On 11/5/78 at about 9,00 P.M. P.C. William (Pw.i) was driving motor vehicle TZ 32175 Toyota land Cruser along Chang'onibe road. He was acoompanied by Marcel Cosmas (P.W,4). On reaching the junction of Chong'ombe road and the road that goes to Mgulcni he saw a lorry that had stopped and some people who were under it. He became curious and decided to inquire what had happened. As he approached the lorry and inquired what had gone wrong, one of the people told him to go away. That made him to suspect that all was not well. He noted that there were some clothes under the lorry and at the same time saw four people stand on the left side of the lorry. The lorry was TZ 16883 belonging to the Port authority and the four people he saw were the accused persons On checking underneath the lorry he saw four bales of clothes which were tied to the chassis and one of the bales had got wrapped round the propeller shaft and immobilized it thus making the lorry to fail to move. The witness states that the 2nd, 3rd and 4th accused left the scene but he remembered them because he has seen them working in the port. He also went on to say that the first accused stated that he had been with Alex Masawe in the lorry while the 3rd and 4th accused had found them when the lorry got stuck. The evidence of Marcel Cosrnas (PW.4) who was with PW.l was different in some material particulars. According to him they found a lot of people standing around the lorry and that soon after a bus came and those people left leaving. the 1st accused there. When he was cross examined by Mr. Rahin, he stated that it was dark with no street light and that he was not able to see the faces of those who left. This evidence contradicts that of PW.I whosstated that there was street light and that he was able to see the four people clearly. There was cognet evidence from Telsefor Didie (pw.io) that the 4 bundles found underneath the lorry bore marks, 'C.I.E. Bujuinbura Burundi via Dar es Salaam" and that they were part of 104 bundles that had been stolen at the Dar es Salaain Port. There was also clear evidence that the first accused was not repairing the lorry he was found with nor was he,given permission to drive it. In fact the switch for the lorry had been in a closed office and the accused No.1 Imows how he got a duplicate. He has not told this court how he obtained the duplicate switch. The accused on being asked by the Police to pro- duce his driving licence failed to do so. The dfence of the 1st accused was that he had been working over time on the material day when he realized at about 7.45 p.m. that his family required money. He decided to drive the lorry to his home and intended to return to :3: work after the trip. He then states that he was surprised to find the lorry stuck on the way because of the clothes that got wrapped on the propeller shaft. He maintains that he was alone and that he had a driving licence which he has produced in court as an Exhibit. The 2nd and 3rd, 4th accused denied charges of theft and stated that they were not present at the place the lorry was found stuck. The first issue to be resolved is whether the 2nd, and 4th accused persons were at the place the lorry was found and if so whether they were passengers on the lorry. As I remarked earlier in this judgement it is PW.l who stated that he saw them with the aid of street light and went on to say that the 1st accused had mentioned the name of the 2nd accused as being his companion on the lorry and the rest of the accused as having come to the scene. This evidence was, however, contra- dicted by Marcel Cosmas who mentioned that the place the lorry was found was dark and that there were lots of people who soon got into a bus that came. This in effect means that it was not easy to identify those who were found near the lorry. Had the prosecution applied to have Marcel Cosmas treated as a hostile witness then his evi- dence would have to be disregarded. As the case stands his evidence has introduced a reasonable doubt on whether FW.1 was able to identify the 2nd, 3rd and 4th accused or merely acted on the report of the lat accused that he had been with them. I therefore find that the identification of the 2nd, 3rd and 4th accused is not water-tight a factor that makes their alibi to introduce a reasonable doubt about their guilt. I must also add that even if the identi- fication of the 2nd 3rd and 4th accused persons had been without blemish there would still have been the problem of whether they participated in tying the bundles of clothes underneath the lorry. The prosecution case is silent on this point. It is for the above reasons that I find the charge of theft is not proved beyond reasonable doubt as regards the 2nd, 3rd and 4th accused persons and I accordingly acquit them. Now coming back to the 1st accused person I have stated that he did not have permission to drive the lorry. The question is whether he can have a defence under s,62 (2) of the Traffic act which states: ' SIn proceedings for an offence under this section, the court shall not convict the accused if the court is satisfied that the accused acted in the reasonable belief that he had lawful authority of the owner or his agent, or in the reasonable belief that he had lawful authority of the owner or his agent, or in the reasonable belief that the owner or his agent would in the circumstances of the case s have given his consent if he had been asked theref or", Before I consider this possibility I have to consider the defence of the accused in the 3rd count. . ... LI. The accused has tendered in court a pro- visional licence No. IC 73167 class C.H. which was issued on 19/9/73 and expired on 18/12/73. No renewal was made of that licence till 19/5/78. Tharthermore a holder of provisional lfconce is not allowed to drive in solo and must be aeco- mpanied by a competent and duly licensed driver as required by s.21 (i) of the Traffic Lct. and s.52(a) of the sane act. The accused was driving alone according to his evidence and had only a provisional license. That factor maks roe believe that his employer would not have allowed him to drive the lorry even if he had asked for it. For that reason I find the lst count proved beyond reasonable doubt and convict him as charged. Regarding the count of theft, al- though there is no evidence to show who tied the bundles to the lorry, there is in my view sufficient circumstantial evidence to hold that the accused did it or Imew that they were there. I so hold because the accused had a switch which was not the one assigned to the vehicle; he drove out of the port without the permission of his supervisor, and when it stopped he Imew where to check. I an unable to believe that it was a mere accident. In ray view these set of circumstances are such that they cannot be explained on any other reasonable hypothesis except that the accused is guilty of theft and accordingly I find him guilty. Pinally I also find that the accused did not have a valid driving license in that he had only a provisional license which would not have allowed him to drive without being acco- mpanied by a competent and duly licensed driver. s he himself admits that he was driving solo I find the third count proved beyond reasonable doubt and accordingly convict him as charged Delivered in open court this 14th day of September, 1979. With regard to the count of theft Mr. Muccadan who appeared for the appellant in this appeal and who also appeared for the appellant's co-annexed in the lower court argued that the trial magistrate was legally iong in finding that because the appe- ilant had committed the offences of driving without a valid licence and without the express consent of the owner of the vehicle he must h.ve thereforeLcommittod the offence of theft. He did not agree with the trial magistrate that the circunstancial evidence was such that the appellant must have been guilty of theft. He submitted that there was the possibility that the appellant was an innocent carrier of the bundles of clothes. He said that he posed a very important question to PW.1 when he was testifying in the lower court and that his question to PVJ.l and the answer are to be found in page 6 of the typed proceedings. /r I • I •/ ) 9/ • ' OptS @ATSSooxa aI4 110 tthX OJEThIsaouajjo OM. ailq. .10; psOdErt 4.xnoo jui.Tl oqq. Iurtq. SetX qq. 'eoçt OL19, q.no ?UT3fCq. xo; UOAT29 Plelq &j DIC7qq. suosox at pui seotcIuie sçq Tqq.Tm pieti tziiedd ot. qop sod etçj. uop.xepsuoo 01It UT) tqq. tripOOn 1IA 80.1 J3AMOtI i piettdn e.rr3 ç pue I squnOo 110 SUOtqotAtI00 @q4. civanbosuo3 eurt.I3uI et, qt pamauaa ueeq ou pt eoueoq TtuoTsTAo.xd sçqq —o.xd L, ;o tzoissssod irç SLAA qutedcI et. qnop puoieq pa&oid ueeq sq qj eo sçq. trj 'eoueoç DUTATap pc pq ot pe;spS SM et ssolUn pO oçTqnd 110 f azp o quedd OL. peMOfll3 aAutl !j011 PIflOM eptt[aA. 314. 0 UO1J JO IeUM0 eqsuodse.x V ptit q.0UJ JO SItITpUT; JSTUI itrg.i. 014 qqtM ee jTe.IqUe i c PLm I S.Ufl0O 0. pJ1J t4TM sexto .19tJO Jepun c-c1n3MrL pei ssotun t-t —tn.1o; Jeqfl q wITedth e trq. pe.xopio sT 4.T pm apTsia .es sç aoueues eqq. puu patsmtb sç uoT!pTAuoo et Utoo STLI. 110 Teddt et puo tICecIdt aq4 o qnop S4 Jo ç;euec 014 @Aiol eJO;eJoqq. I etzoerios .&q jUaol aLlq. J0ptfl poçq. 1treq setoTo ;o sepunq eq. Jo 4TTTqTssod etj. opnoxo .OtI aop 4t SnOlOtdSnS RTqDTLJSICM .onpuoo s u 13 IIodd at. InOLflC EBpoOflJf W tM aaj2-e O4. PTIOUT esa euoeuios Aq JLtOI o14 aepun pe ueq 9014010 JO septmq Olq4. ,o 4qssod etq. opnoxe qOu SeOp RaaOl 014 1.rcAT.1p UT S031 eoTcIflp v pesn quocIdt etj. gvLlq. qp-c; 014 os1r 00t10 O. OJOt[M UMO113 0A1 qsnm 0L[ —00011 9,ou pU $00UtSUIfl0JT0 014 ieptin 8t!4flOJ SM U0i4I3UT1IflX0 etj •1trow poddo.s 4.T JaJE ILIOI 014 qoadsuT o. PUT4 01 OTtfl3tTOOUX trçoq 9,Lmlladdv et. q314 As O. 110 queM o}j 314 J911fl sq 014 038 O. S130 4.ou Ot S1M JOMSU8 014 put, icJJOI 014 opun sq 3t. 00$ O JS0 SM t J014Gtj StM UOT.S 0 flb 9TH 6 : 4 I Consequently the sentence for count one is set. aside and is substituted with one of shs.1001. Also the sentence for count three is set aside and is substituted with one of shs.200/=. The appellant is given one month in which to pay the fines. The order for disqualification is not interef'ered with. Delivered in open court this 23rd Day of January, 1980. / ........... . DJ.R ES SALIJLM M. P.K. I(IMICHh 23rd Januaiy, 1980 JIJD ........