19981123 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA MISCELL/\NEOUS CRIMINAL CAUSE NO. 18 OF 1995 In the matter of application for leave to Appeal out of time_. In the matter of Criminal Case No., 148 of 1994 in the District Court of Manyoni at Manyoni. REMI SAMWEL a • • o • • • • • APPLICANT versus THE REPUBLIC . . . . . 0 Ct O • • •• o RESPONDENT J U D G M E N T KYANDO, j•: This is an appeal from the conviction of t'.1e appellant by the District Court of Manyoni for the c;ffence of cattle theft. Upon his conviction the appellant was sent to prison for the. statutory minimum term of five (5) years for cattle theft. He was aggrieved by his conviction, hence this appeal. The complaina'1t testified that on the night of 23/24" 12.,94 a bull of his was found missing from his cattle pen$ A search for it was launched. The search party followed foot-marks of the bull and the marks led up to the appellant's place. There they found that the appella::1t ha.:1 slaughtered the bull and he was skinning· it (He hac. 1:utchery and. slaughtered the bull to sell its meat at his butchery). When questioned as to how he came by the bull the appellant allegedly said he had bought it from other people, who later turned out to be the persons who became second and third accuseds at the trial but whom the trial court acquitted of stealing the bull. The appellant and the two other persons who were eventually acquitted were then charged with the offence in this case. The appellant in his defence did not deny being found with complainant's bull :i.n the circumstances explai1~•::c: above. He defended himself, however, by stating that he had bought the bull from the two other accused persons. He called two witnesses who testified to seeing the second and third accused hawking the bull which the appellant eventually bought. eoo•••/2 -... 2 One of the witnes&es said he was the first to .see the second and third accused hawking the bull early on 24.,12,.,94., He said he wanted to buy it but when these accn1::c,c::=: said the price for it was shse 65,000/- he declined to ::uy it and let the accused proceed with it to where they were L·3adec:. for. Later, he said, he found them and the appellant negotiating the sale of the bullo. He said they agreed at tife;~Cf shsp 60?000/- for it and the appellant then bought it. The second and third accused persons denied selling the bull to the appellante They called witnesses to say that they were elsewhere at the material time looking for the second accused's wife who had disappearedo The learned trial M2.gistrate disbelieved the appelland and his witnesses that he bought the bull from the ;,·;c· ~:~l and third accused persons,, lie said his witnesses were i.,"i.s friends and f:ellow butchery owners and they therefore falsely testified in favour of the appellant •. He, however, held that the circumstances did not indicate th0ft by the appellanto He said they indicated · felonious receipt by him (the appellant) of the bull., The lean1ed magistrat0 in s-•.:pport of his above views said as tc.;_.J.0\vS :L:1 part of his judgment:- "Thus even if it is t:::-1.18 that the first accused bought that cmv :-:'rom the said co-accuseds, the 1st accused ( -,u,r appellant) should have a reason to believe that the cow was a stolen property since he stated that the accused Nos. 2 & 3 were strangers to him and they had no documents to prove that they were selling their genuine property., vi In his petition of appeal the appellant has stated that he does not wish to appear at the hearing of the appeal or to engage an advocate to represent hime He did not appear therefore for the ~earing of the appeal~ Only the Republic was heard, through Mr. Kagaigai 7 lear:.Jed State Attorney who has :t:J. .:d written submissions on the appeal. Mr,. Kagaigai in his submissions states that the appellant ought to have baen convicted of stealing the bull and not of receiving it as found by the trial courto He (Mr. Kagaigai)submits that on the do:ctrine of recent possession the appellant was the thief in respect of the bull~ 111111111.... 3 He contends that he (the appellant) did not buy the bull from the other accused as he contended. Lookinc at its judgment, the trial court's mind appears to vacillate between saying the accused received the bull from the accused who were acquitted and that he received it from elsewhere. As for receiving it from elsewhere the court does not make a finding from whom he may have received it. As for neceiving from the other accused the court, though it found these accused to have n0t been the ones who stole the bull, by the passage reproduced above and other parts of its judgment., .seems to veer rather strongly towards the view that the appellant received the bull from the 2nd and ~d accused persons. In my own evaluation of the evidence, there was at least a reasonable doubt that the appellant bought the bull from the 2nd and 3rd accusedo The witnesses he called gave,in my view, quite credible evidence on this and I think the trial court erred in rejecting their evidence. Didi he buy the bull knowing or having reason to believe the same to have been stolen or otherwise unlawfully obtained,:l I do not discern circumstances or factors proving this in the evidence. The trial magistrate says the 2nd and 3rd accused were strangers to the appellant and had no papers showing that they were driving a.round the bull legally., But that is the very reason the appellant called witnesse, to witness the transactiono He said in his evidence:- " - - We dascussed and lastly they agreed to sell the same to me for the price of shs. 60,000/- and they said they had permit which would legalize that cow (sic). I called two people to stand as witnesses so I gave the 2nd and 3rd accused shso 4o,ooo/- in advance and agreed." The appellant would not have been calling people to come and witness his buying of a bull which he knew was stolen or otherwise unlawfully obtained. He would have done the buying surreptitioosly, to avoid publicising that he had bought somet::-.. j_r,:=:; which he knew was stolen property, I hold for these r00..sons that the appe:1.lant i 0 0 0 ••• /4 i • did not know that the bull ho 1'::.rught from the 2nd and 3rd accused persons was a stolen 0~10 or that it was otherwise unlawfully aqg_JJ;il;'E;i9-o ,- Ii;i: \.1 His con ."iction was accordingly bad" I xallow the appeal therefore and the appellant 1 s conviction is quashed• The sentence imposed on him is set aside. He is to be released from jail immediately unless held there for another, lawful, causeo DODOMA. --- rd Delivered this 23 - Day of November, 1998 in the State At-wrney, and in the absence of JUDGE