19940930 TZHC Dodoma
- Citation
- 19940930 TZHC Dodoma
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZHC
- Decision
- 30 September 1994
- Posture
- Criminal Appeal / Judgment on Appeal
- Language
- English
More details
- Court
- TZHC
- Decision
- 30 September 1994
- Posture
- Criminal Appeal / Judgment on Appeal
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The conviction for possession of property suspected to have been stolen was quashed because the property was clearly identified as stolen, and a conviction for theft was substituted. The appellant's defense was not credible, and the doctrine of recent possession applied.
Court disposition
appeal dismissed with modification
Orders
- conviction for possession of suspected stolen property quashed
- conviction for theft substituted
- sentence of five years imprisonment affirmed
02
Material facts
Parties
Gabriel Joel @ Maliganja
AppellantThe Republic
Respondent Counsel: Mr. Nyabiri, State AttorneyAmounts and remedies
- Value of Stolen Items: TZS 128,817
- Term of Imprisonment: 5
03
Procedural history
Posture
Criminal Appeal / Judgment on Appeal
04
Questions and positions
Legal issues
- 01
Whether the conviction for possession of property suspected to have been stolen was proper when the property was identified as stolen
- 02
Whether the doctrine of recent possession applied to the appellant
- 03
Whether the appellant's defense of purchase was credible
Party arguments
- Applicant
- The appellant argued that he bought the bedsheets from the second accused and was not guilty of possessing stolen property.
- Respondent
- The respondent argued that the appellant was found in recent possession of items identified as stolen from the school and that his defense was not credible.
05
Court’s reasoning
Legal principles
- 01
Eprahim v R 1978 E.A. 466
A conviction under section 312 Penal Code will not lie where the property the subject matter of the charge is identified and established in evidence as having been stolen.
06
Ratio, limits and disposition
Ratio decidendi
The conviction for possession of property suspected to have been stolen was quashed because the property was clearly identified as stolen, and a conviction for theft was substituted. The appellant's defense was not credible, and the doctrine of recent possession applied.
Court disposition
appeal dismissed with modification
- conviction for possession of suspected stolen property quashed
- conviction for theft substituted
- sentence of five years imprisonment affirmed
Source and reliance status
TZHC · 30 September 1994
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZHC
Judgment· 30 September 1994
JN THE HIGH counT 0:E' TANZANIA A,T_D_f_DOMA APPELLA.TE JURISDICTION HIGH COURT CRII1IJ:1AL APPEAL NO. ~3 OF 1994 ORIGINAL CRTI![[lJAL C.ASE NO. 189 0}? 1992 OF 'l'!IB DISTRICT COURT OF D0:001V[A_ DISTRICT AT DODOMA BEFORE E. ANBNGISYE Esq., DISTRICT MAGISTRATE GiillJ.IEL JOEL @ l1ALIG1\J."'\JA • • • o .. APPELLi1.NT versus THE TIEPUJ3LIC • • • • • • • • • • TIESPONDTh1T The appellant was together with others charged with store breaking and stealing it being alleged that on 4/7/1992 they broke into a store at Msalato Girls Second~J:'Y School where they stole items worth shs. 128p817/= the 9ro~erty of the said school. After a full trial all of them were acquitted of the charge facing them save that the learned District Hagistrs..to was satisfied that the available evidence proved the offence of Beine found in possession of properties suspected to have been stolen against the appellant and so he convicted him and sentenced him to serve a five year term of imprisonment. This is an appe<'-1 against both that conviction and sentence. The lower Court foi.md as a fact that on the said date the said store was broken into and n. nurnber of i terns stolen therefromo On 9.7.92 w.6 Insp. Lyimo was on duty when an informer approached am told him that in the appellant's living room there were a number of items suspected to have been stolen from the said school. Acti..i,g on that information
he prepared the necessary search warrant and together with other policemen went to the said room. In the house wherein thG room "\·:'.18 9 there were otho:r -9coplc/teni1.n+,s i.e,. PH.5 ..1\rchard Kisanga n.nd Pill.) ::._·.:..ij8- ~1z~:.1o..c11;.,. J.i. J'he s-:::a:rc~ '.-TE:.3 conducted . . in the appellant 1 s 1.-ooH i...--i tl:::, :;__:,rc..----w1ce :::.lso o:" -'::1...:3G t·.;o ,ri tno:::-scc. i In the seaxch th::ee belsheets ,_d th ;J.c,:r:-~:::i 11 :-'IGSSii wcr0 L:~)oundedJ A fourth bedsheet with -.::olm:i.r :.:-e:.;oDi.,linc tho shhool ·.miforrn. was oleo found there. Tho bec.::l1.eets. n.n,::. 1,.:,) oti·,cr itG1:1o retrieved elsewhere ,.,., +11n property of the school. - 2 "l"he thrust of the appellant'-s defence, which he repeated before this Court., was that he had bought the saic1 bedsheets from the second accused :in the trial. It was common ground at the trial that the school store was broken into and a nUI!lber of items stolen; and further that three bed.sheets, among other itorns, were retrieved from the appellant 1 s room and eventually idontified to be properly of the said school. In my judgment, the appellru1.t's defence that the bedsheets were sold to him by the then 2n£i accused was rightly rejected. In his own evidence the appellant expressed surprise as to wby tho 2n,\1_ accused denied before the police such sale suggesting in effect that what this
appellant was saying c;.1ay not necessarily have been true. What is more, when he was cross-exar:uned by the said 2n£1 accusGd the appellant clea.rly said thc,t ho did not know hir:J. D.ncl coulcl not prove that he bought the bod.sheets fron hirJ. It is significant to note too that the appellant was found with the iteos just five days aft8r the incident so the doctrine of recent possession could as well apply against hio. In the light of tho evidence on record there is no doubt that the bedsheets were id.ontifiocl.. to be property stolen fron tho school. If so, then the conviction under Section 312 ~1) (b) of · in view of the principle lai down in The Penal Code would not li1, the Case of &plmri v R 19 7 E A 466 that:lL 11 a conviction uncler section 312 Penal Code will not lie whe:re the property the subject oatter of tho chc1rgc is identified D.nc1 esto.:'.Jlished in evidence as hrwi..'1:S been stclen. 11 :Mr. Nyabiri learned State Attorney agrees with all the above conclusions and duly infornod the Court thc,t the Republic supports conviction to the above extent.· In the end result the appo,',l fails end is dis::tlssed save that tho appellant ts conv:7..::::ti. .· · .; .. · ' , ,·-,·, 0f prop::-rty suspeotod to have been stolen or unl2-w'fully obtai;1ef, is qu.c'l.Shed anc1 in its place is substituted a conviction :1s ch[.t:r''.:,;O(~ and he is sentened to the sane tern of
five years i,...,,.; S"'"'7'"".'lt :~:.:~·.1C>sc :'.. o~:.:::::'...:.or i..TJ. line with the provisions of section 5 ((1) of Tl,,_c ~fu_i::".'.t;,..: S.mt~nces Act •., · , 1 of 1972, (J.E. :MSOJi'J:i'E) •••••• /3 I .,. . !1,• '. • 1 . : .:. .- ··-----·-: ··-·=~.. _ .. . . ~ 3 :.- th ' Delivered in CQao.bers this 30 - day of SepteQber, 1994 in the prasenoo of Mt-. Y.tasaju State Attorney ancl the appellant.· rlJ< . (J .n. IvJS~) ~ 30/9/1.994 • Right of appeal explained. (J oEe MS0FFE) J1JDGE ~~
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