20040503 TZCA Dodoma

., IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LUBUVA, J.A., MUNUO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 73 OF 1999 BETWEEN JUMA BONIFACE .............................................................APPELLANT AND THE REPUBLIC ............................................................ RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dodoma) (Lukelelwa-PRM / Extended Jurisdiction) dated the 13th day of October, 1998 in Criminal Appeal No. 62 of 1997 JUDGMENT OF THE COURT MUNUO, l.A.: This is an appeal from the Court of Resident Magistrate Criminal Appeal No. 1 of 1998 before Lukelelwa, Principal Resident Magistrate, exercising Extended Jurisdiction, as he then was. It is a second appeal from Criminal Case No. 38 of 1997 in Dodoma District Court wherein the appellant and two co-suspects who were acquitted by the first appellate court, were jointly charged with the offence of robbery wi~h violence c/s 285 and 286 of the Penal Code. As the bandits used bows, arrows,· pangas and sticks, and it being gang 2 robbery, the first appellate court enhanced the sentence of 15 years to thirty years imprisonment, the mandatory minimum sentence for armed robbery. Aggrieved, the appellant preferred the present appeal against the conviction and sentence. On the night of the 20th November, 1996, armed bandits invaded the boma of PW.2 Dominic Malima and assaulted him causing his legs to swell. The bandits seized 24 head of cattle from PW2's boma. The said cattle actually belonged to PW.1 Matonya Njinyani who had entrusted the cattle to PW.2 so that the latter would keep the cattle and get manure. When the bandits were driving off the cattle, PW.2 raised an alarm causing his co-villagers to converge at the scene of crime and mount a search for the bandits, the cattle they seized and the bag of clothes they stole from the complainant's house. On hearing the alarm, the bandits fled away leaving the herd of cattle some 800 paces from the scene of crime. They, however, escaped with the bag of clothes so the complainant's son, assisted by the villagers estimated to be about thirty in number, trekked the bandits by tracing their footprints right to the house of the appellant whom they arrested. Among the trekkers was PW.7 ._, ,- . 3 C - Julius Marwoni, the head of the sungusungu at Zuzu Village. He recovered the stolen clothes of the complainant, Exhibit A to U, from the house of the appellant shortly after the robbery at the_ victim's house on that same night. . The next day the appellant was taken to the police station where he was charged with the present offence. On the doctrine of recent possession, the trial court convicted the present appellant and two others who were acquitted on the first appeal. Upon losing the first appeal, the appellant lodged this second appeal. In his memorandum of appeal, the appellant criticized the Principal Resident Magistrate,_ Extended Jurisdiction, for invoking the doctrine of recent possession to ground the conviction. Denying that the stolen clothes were found in his possession, the appellant claimed that his house was illegally searched in the absence of his ten cell leader who should have witnessed the search. For that omission, the appellant prayed that the appeal be allowed because his guilt was not established at the required standard of proof. . Mrs. Sumari,. learned Principal State Attorney, supported the · . conviction and sentence. Stressing that the· conviction was properly .. . .. . . . ·. based on the doctrine of recent possession, the learned Principal State Attorney cited a similar case of Manazo Madundu and · Another versus R (1990) TLR 92 in which the Court of Appeal of Tanzania applied the doctrine of recent possession where property from a burgled shop whose watchman was killed, was recovered from the appellants five hours after the killing. In that case the Court held: "--- This is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and theft but also the murder." Mrs. Sumari contended that in this case, the appellant was found in possession of the stolen property shortly after the armed robbery at the complainant's house so the ·first appellate court rightly invoked the doctrine of recent possession to hold the appellant liable for armed robbery. 5 We are of the considered opinion that the learned Principal State Attorney has a valid argument . because like · in Manazo· · Madundu and_ Another's case referred to earlier on, wherein the. appellants were .convicted for murder by invoking the doctrine of recent possession in that they were found in possession of property stolen from the burgled shop some five hours after the shop breaking and theft, in this case, the appellant was found in possession of the stolen clothes, Exhibits A to U, soon after the armed robbery at Dominick Malima's house on the material midnight. In that regard, the Principal Resident Magistrate, Extended Jurisdiction, correctly invoked the doctrine of recent possession to ground the conviction for armed robbery. The· appellant had· yet another ·complaint. He contended that he was illegally arrested and searched by sungusungu. With regard this complaint, the learned Principal State Attorney maintained that as a private person, PW.6 Tobias Dominick had authority to arrest and search the appellant under the provisions of Section 14 (c) and 16 of the Criminal Procedure Act, 1985. 6 We are respectfully in agreement with Mrs. Sumari in this submission. We are of the view that in certain circumstances, a · private person has authority to arrest a suspect under Section 16 of the Criminal Procedure Act, 1985 which provides, inter alia; "16. (1) Any private person may arrest any person who in his presence commits any of the offences referred to in Section 14." Section 14 of the Criminal Procedure ·Act, 1985 enumerates situations in which a police officer may arrest without a warrant of arrest, and as stated in Section 16 (1) of the Criminal Procedure Act, 1985, situations in which a private person may. arrest a· suspect without a warrant of arrest are set out. Section 14 (c) provides, inter alia; "14. A police officer may without a warrant arrest- (a) (b) 7 ( c) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing." We are of the firm view that because PW.6 Tobias Dominic and his search party traced the foot prints of the bandits from the scene of crime right to the house of the appellant where they arrested the appellant and also recovered the stolen clothes shortly after the armed robbery, the courts below properly grounded the conviction on the doctrine of recent possession. In those circumstances, PW6 Tabias Dominic, a private person exercising the power conferred on private persons under sections 16(1) and 14(c) of the Criminal Procedure Act, 1985, rightly arrested the appellant and retrieved the stolen property, Exhibits A to U. We think it would not have been prudent for PW6 to defer the arrest and repossession of the stolen property pending availability of a warrant of arrest and a search warrant. We are satisfied that under the provisions of sections 16(1) • ·. . I . 8 and 14( c) of the Criminal Procedure Act, 1985, the arrest and repossession of the stolen clothes by PW6 was justifiable and lawful. All in all we find no merit in this appeal. We accordingly dismiss the appeal. DATED at DODOMA this 3rd day of May, 2004. D.Z. LUBUVA JUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL S.N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. ' •, ( S. t'RUMANYI ) DE UTY REGISTRAR