Final William Patrick Listo v

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT IJC MOROGORO CRIMINAL APPEAL NO.37570 OF 2023 (Arising out of Criminal Case No. 15/2021 in the District Court of Morogoro) WILLIAM PATRICK @ LISTO…………….……. APPELLANT VERSUS THE REPUBLIC…….…………….……………. RESPONDENT 17th April,2024. MANSOOR, J. JUDGEMENT The appellant, William Patrick @ Listo, together with Hemedi Salehe and Shaban Shomari who are not parties to the instant appeal were jointly arraigned before the District Court of Morogoro herein referred as “the trial court” facing their charges as follow; First Count was laid against the Appellant which was stealing, contrary to section 258 and 265 of Penal Code, Cap 16, R.E. 2022. The Second Count was laid against the appellant together with Hemedi Salehe and Shaban Shomari which was being found in possession of goods suspected of having been stolen or unlawfully Page 1 of 11 acquired contrary to section 312 (1)(b) of the Penal Code, Cap 16, R.E 2022. It was alleged by the prosecution that on 9th of January 2023 the appellant stole one motorcycle make HAOJUE with Reg. No. MC 919 DKL worthy 2,600,000/= the property of Emmanuel Shayo and on 10th of January 2023 the appellant together with Hemedi Salehe and Shaban Shomari were unlawfully found with the motorcycle knowing or having reasons to believe the same to have been stolen or unlawfully acquired. At the culmination of full trial, the appellant was found guilty and convicted on the first count and subsequently he was sentenced to serve a term of seven (07) years imprisonment, however Hemedi Salehe and Shaban Shomari were acquitted. Discontented by the decision of the trial Court, the Appellant appealed to this Court contesting both conviction and sentence. In a bid to pursue for his rights, the Appellant filed a petition of appeal comprised of six (06) grounds of appeal as reproduced hereunder; 1. That, your lordship the learned trial magistrate erred in law and fact convicting the appellant basing on unreliable, intangible, inconsistences, contradictory and unjustifiable evidence contrary to law. Page 2 of 11 2. That, your lordship the trial magistrate erred in law and fact convicting the appellant based on merely speculation assertions that the appellant did steal the alleged motorcycle contrary to what PW3 testified when cross examined by the appellant at page 08,10,11 and 12 of the typed court proceedings. 3. That, your lordship the learned trial magistrate erred in law and facts convicting the appellant based on testimony of co-accused person without cautioning herself on the danger of doing so without corroborating the same as per section 33(2) of the Evidence Act, Cap 6 R.E 2022. 4. That, your Lordship the learned trial magistrate erred in law and fact convicting the appellant on the charge of stealing while failed to prove the element of actus reus and mensrea as the governing principle in the offences of stealing requires. 5. That, your lordship the learned trial magistrate erred in law and fact convicting the appellant while the provision of section 231(1), (2), (3) and (4) of the Criminal Procedure Act Cap 20 R.E 2022, since the provision of law is not generally as cited as 231 of CPA, as it has Page 3 of 11 its subsections which actually contains the appellant rights, to consider it as general section 231 of the CPA it obviously propounded that the accused person was prejudiced as his rights were overtaken. 6. That, your lordship the trial magistrate erred in law and fact convicting the appellant while the prosecution side failed to prove their case beyond reasonable doubt. During the hearing, both parties were represented, whereas the appellant enjoyed the legal representation of Mr. Derick Vincent the learned counsel, Mr. Josbert Kitale, the learned State Attorney entered appearance for the respondent. By consensus, parties agreed to dispose of the appeal by way of oral submission. The appellant’s counsel dropped the 2nd ,3rd and 5th grounds and opted to argue only on the 1st ,4th and 6th grounds. On course of arguing his grounds the learned counsel also chose to argue the 1st and 4th grounds jointly and the 6th ground separately. Submitting on the 1st and 4th grounds the learned counsel highlighted that the prosecution could not prove the charge of stealing beyond reasonable doubt against the Page 4 of 11 appellant reasoning that there was an agreement between PW3, the complainant and the appellant. To support his reasoning, he referred this court to the case of DPP vs Shashir Shyamsingh at page 11, C.A where the court insisted that asportation must be without the consent of the owner. The counsel thus argues that PW3 had willingly given the motorcycle to the appellant. Submitting on the 6th ground the learned counsel was of the view that the case was not proved beyond reasonable doubt. He contended that the burden of proof lies on the prosecution and opined that the Respondent had to prove the malice of the appellant in stealing the motorcycle. He contended further that there was neither a proof that the appellant auctioned the motorcycle nor selling it. Explaining the standard of proof in criminal cases he stated that the prosecution has a duty to prove the case beyond reasonable doubt. To support his assertion, he cited the case of Joseph John Makune vs R, 1986 TLR. The Counsel urged this court to set aside the decision of the trial court and rested his submission. Responding to the learned counsel’s arguments the learned State Attorney elected to argue the 3 grounds together reasoning that the grounds are centered on one issue that the case on the trial court was not proved beyond reasonable doubt against the appellant. He commenced by Page 5 of 11 referring this court to the case of DPP vs Shashir Shyamsingh, Criminal Appeal No. 141 of 20221 at page 11, where the Court of Appeal categorically stated that the prosecution is required to prove six ingredients for the offence of theft to be established thus; one, there was movable property ; two, the movable property under discussion is in possession of a person other than the accused; three, there was an intention to move and take that movable property; four, the accused moved and took out the possession of the possessor; five, the accused did it dishonestly to himself or wrongful gain to himself or wrongful loss to another; and six, the property was moved and took but without the consent from the possessor. Responding as whether there was consent between the parties Mr. Kitale conceded partly. Referring to the evidence of PW5 he elaborated that PW5 said that the accused hired him on the date of the incident to take him to Mafisa Area. After reaching to Mafisa Area the accused handled to PW5 the amount of Tshs. 10,000/- for the accused to deduct the requisite amount in consideration of the transport service and return to him the extra amount. Unfortunately PW5 did not have the said extra amount to return back to the accused , and so the accused asked for the motorcycle to go to look for the same so that he could give PW5 the exact amount Page 6 of 11 but he never came back. He contended that they looked and searched for the appellant with no avail as a result they decided to report the incident to police and on 10.1.2023, the accused was apprehended by PW1 that he was found selling the motorcycle. Mr. Kitale maintained that the appellant had intention of stealing the motorcycle as he took the motorcycle from the owner, but he did not return it and that he was found selling it. He further referred this court to page page 8 of the judgment of trial court and submitted that the trial magistrate said that the accused removed the motorcycle’s plate number to change its identity which shows ill motive. The learned state attorney cited the provision of section 10(1) of The Evidence Act, which describe the motive, to include preparation and the subsequent conduct. Fortified by section 258 of Penal Code (Cap 16 R.E 2022), Mr Kitale maintained that the appellant converted the use of the motorcycle as he was in the process of selling it in the trial case. The state counsel concluded that, the appellant never said the complainant has given the motorcycle to the accused out of all agreement or by consent as for him the issue of consent raised on appeal is an afterthought with the intention of misleading the court. Page 7 of 11 On his brief rejoinder, the counsel for the appellant averred that there is no-where in the trial court proceedings that indicates that the incident was reported to Police and finally argued this court to allow the appeal, set aside conviction and sentence and the appellant be set free. I have considered and examined both parties’ submissions in support and against the appeal. I have also gone through the trial court proceedings and the resultant judgment. At this stage the only issues which require my deliberation is whether the instant appeal is meritorious. In relation to the 1st and 4th ground the appellant complained that the appellant took the motorcycle upon the owner’s consent and thus he didn’t steal the same. On the other side the respondent didn’t dispute that there was consent on taking the motorcycle, his contention was that the consent didn’t extend to taking away the motorcycle without returning it. Having closely examined the evidence of both sides on the trial court records, I entertain no doubt that there was no consent to justify appellant departure with the motorcycle for good. It is not disputed by both parties that the appellant received the motorcycle from the PW5 (Rajabu Saidi) for purpose of looking for an exact amount to pay in consideration of the transport service offered to him following the lack of Page 8 of 11 the remaining extra amount that ought to have been returned to the accused after he had handled Tshs 10,000 to PW5 . Ordinarily, he was supposed to return the motorcycle to PW5 immediately after he got the same, however the appellant didn’t return the said motorcycle until when he was caught auctioning it by PW1. Again, the consent alleged to be rendered in the circumstances of this case on taking away the motorcycle by the appellant cannot justify the appellant’s act of disappearing with the motorcycle and proceed to sell it since it was limited on looking for the exact amount to pay PW5. In my firm view, much as there was no consensus between the two for the appellant to take away the motorcycle from the possession of the owner or converting of such motorcycle by auctioning, then the trial court was correct to find the appellant guilty on the offence of stealing. Regarding the 6th ground as to whether there was proof of malice of stealing on part of the appellant, I fully subscribe to the deliberation of this court in the case of David Michael v. Jones John, Criminal Appeal No. 14/2021 where it was underlined that, ill motive of depriving the owner his property is among the elements to be proved for the person to be found guilty for the offence of stealing. Page 9 of 11 This Court had this to say: “Therefore, for the offence of theft to be proved, the following elements must be established. First, there must be taking away of the property from the possession of the owner (asportation) or converting of such property; second, such property must be capable of being stolen; third, the person taking the property must have an ill motive (fraudulent) of permanently depriving the owner the rights over that property; fourth, the stolen property must be owned. In other words, there must be proof of ownership over the stolen property.” In the case at hand, the learned counsel for the appellant alleges that, there was no proof of malice on part of the appellant in stealing the motorcycle. I should set it clear as rightly argued by the appellant’s counsel that this is a criminal case that demands a higher standard of proof of beyond reasonable doubt. In my view, from the onset I find no fault on the trial court decision that the prosecution side proved beyond the reasonable doubt that the appellant acted with malice to steal the motorcycle due to reason that the records reveals that the appellant’s intention was to permanently deprive the owner the rights over the motorcycle. This can be depicted from the evidence of PW1 (the police officer) who testified to caught and arrest the appellant red handed on the process of selling the motorcycle. It is on record also that the appellant on auctioning the motorcycle he removed the plate number and he Page 10 of 11 announced himself as the owner; this piece of evidence was collaborated by PW2 who testified as the eye witness observing the appellant auctioning the motorcycle in the group of people even Hemed Salehe and Shaban Shomari collaborated the PW1’s evidence. In this regard I see there was sufficient evidence for the trial court to find that the appellant had malice on stealing the motorcycle and thus this ground fails. From the foregoing I find no justification to disagree with the conclusion reached by the trial court that the prosecution proved the offence of stealing against the appellant beyond reasonable doubt as there was sufficient evidence put forward to convince the trial court that the appellant was guilty of the offence of stealing. Consequently, I find no merit in the appeal and hereby dismiss it in its entirety and uphold the decision of the District Court. It is so ordered DATED AND DELIVERED AT MOROGORO THIS 17th DAY OF APRIL 2024. L. MANSOOR JUDGE 17/04/2024 Page 11 of 11