issa juma magono 2 others v the republic 2024 tzhc 184 5 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

ATTABORA MISC. CRIMINAL APPLICATION NO. 207 OF 2018 {Arising from Crim. Case No. 13 of2015, Tabora Resident Magistrate's Court) ISSA JUMA @ MAGONO ........ .......... ..............................1st APPLICANT BARAKA JUMA @ MAGONO ...................................... 2nd APPLICANT ABDALLAH MOSHI LYANDI.............. .............. ....... ......... . 3rd APPLICANT

VERSUS THE REPUBLIC .................. RESPONDENT

RULING Date ofLast Order: 11.12.2023 Date of Ruling: 05.02.2024 KADILU, J, This is an application for revision by the applicants trying to move this court to revise the order of the Resident Magistrate's Court of Tabora in Criminal Case No. 13 of 2015 giving to the complainant in that case, the 1035 bales of tobacco seized from the godown belonging to the applicants' family. The application has been brought under Section 372 of the Criminal Procedure Act (CPA), [Cap. 20 R.E. 2002] and Section 2 (1) and (3) of the Judicature and Application of Laws Act, [Cap. 358 R.E. 2002]. It is supported by an affidavit of Mr. Musa Kassim, who was by then, the learned Counsel for the applicants. On the other hand, Mr. Tumaini Pius, the learned State Attorney swore a counter affidavit and supplementary counter affidavit opposing the i application. For a better understanding of the matter, I find it necessary to narrate the factual background albeit briefly. The 1st and 2nd applicants together with five others who are not parties to this application were arraigned in the Resident Magistrate's Court of Tabora and charged with three (3) counts of stealing by agent, unlawful possession of goods suspected of having been stolen or unlawfully acquired and conspiracy to commit an offence. In the second count on unlawful possession of goods suspected of having been stolen or unlawfully acquired

contrary to Section 312 (1) of the Penal Code, [Cap. 16, R.E. 2002], the prosecution alleged that on the 2nd day of February 2015 at Ufuiuma Village, Uyui District, Tabora Region, Issa Juma @ Magono and Baraka Juma @ Magono were found in unlawful possession of 1035 bales of tobacco valued at Tshs. 135, 002, 016/=, the property of Tanzania Leaf and Tobacco Company. It was further alleged that having regard to all the circumstances, the said 1035 bales of tobacco were suspected of having been stolen or unlawfully acquired. Abdallah Moshi Lyandi was a defence witness in that criminal case who testified as DW8. The substance of his evidence was that 400 bales of tobacco which belonged to him, were kept in the godown owned by the Magono family on 21/11/2014 for safe custody. He testified further that while awaiting the crop's marketing season, a member of the Magono family told him that his 400 bales of tobacco were taken by Police on suspicion of being stolen. Upon conclusion of the trial, the trial court convicted the first, second, sixth, and seventh 2 accused persons, namely; Francis Aloyce, Saidi Hamisi, Victoria Steven, and Mashaka Athumani @ Tambwe respectively. Issa Juma @ Magono, Baraka Juma @ Magono, and Juma Mkasiwa Makolila were acquitted on all counts. Francis Aloyce and Saidi Hahiisi were sentenced to seven (7) years imprisonment on the first count. Francis Aloyce and

Victoria Steven were sentenced to two years imprisonment on the third Count while Mashaka Athumani @ Tambwe was given 12 months conditional discharge. Francis Aloyce, Saidi Hamis, and Victoria Steven instituted (DC) Criminal Appeal No. 119 of 2016 which was heard on merits and Judgment thereon given in favour of the appellants whose convictions and sentences were quashed and set aside. The appellate court did not, however, nullify the trial court's order that gave to the complainant in that criminal case, the 1035 bales of tobacco allegedly that he was the owner. Although the 1st and 2hd applicants were acquitted and the 3rd applicant was a mere witness, the trio filed the present application moving this court to call for and examine the record in Criminal Case No. 13 of 2015 to satisfy itself as to the correctness, legality or propriety of the order. Parties were granted leave to argue the application by written submissions to which they complied. The learned Judge, after summarising the submissions by both sides dismissed the application stating that the applicants were supposed to appeal against the trial court's order instead of applying for revision as they did. 3 The dismissal order aggrieved the applicants. They instituted an appeal to the Court of Appeal challenging it. The Court allowed the appeal and nullified the High Court's decision and its consequential Orders. It

thus, remitted the record of the High Court for it to proceed with the determination of the application for revision, which I am now doing. The main ground for application as stated by the Advocate for the applicants is that since the criminal case ended in the acquittal of the three accused and those who were convicted were successful on appeal, the prosecution failed to establish that the 1035 bales of tobacco belong to the complainant and that they are the proceeds of theft. For that reason, the learned Advocate argued that the trial court was not justified in returning the 1035 bales to the complainant rather, the same had to be returned to Magono's family from where they were seized. The applicants7 Counsel argued in addition that since there was no dispute that the complaints bales were 500 only, there was no legal justification for giving him all the 1035 bales, more so when the 3rd applicant testified that his 400 bales of tobacco were seized from the Magono's godown. The learned State Attorney submitted that there is no proof that among the 1035 bales of tobacco found in the godown, 400 belonged to the 3rd applicant. Having gone through the entire record and paying due consideration to the submissions by the learned advocates for both parties, I find the issue that calls for the court's determination is whether the present application Is meritorious or not. I wish to

point out at the outset that this court derives 4 its power to revise criminal proceedings in the subordinate courts under Section 372 of the CPA which permits the High Court to call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. Specifically, Section 373 (1) (.b) of the CPA stipulates as hereunder: "In the case of any proceedings in a subordinate court, the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge, the High Court may- (a) ... (b) in the case of any other order than an Order of acquittal, alter or reverse such order..." The records of the trial court reveal that the applicants were charged with unlawful possession of goods suspected of having been stolen contrary to Section 312 (1) (b) of the Penal Code [Cap. 16 R. E. 2002], being the 2nd count and the 3rd count was conspiracy to commit an offence contrary to Section 384 of the Penal Code. Section 312 (1) (.b) provides: '"Any person who- (a) .... N/A (b) is found by a police officer in possession of of having control over any property which may, having regard to ai! the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired^ may be charged with being in possession

of, or conveying, or having control over, as the case may be, the property which is suspected of having been stolen or otherwise unlawfully acquired and shall, ifhe fails to satisfy the courtthat 5 he did not steal or otherwise unlawfully acquire the property, be guilty of the offence with which he is charged and be liable, on conviction, to imprisonment for a term not exceeding three years. " From the quotation above, it may be paraphrased that to prove the charge of unlawful possession of goods suspected to be stolen, the prosecution should establish first that, the stolen property was found with the accused, second, the property belongs to (owned) by the complainant, and third, the property has been stolen recently from the complainant. In the case of Mustapha Darajani vR.,Criminal Appeal No. 242 of 2008, the Court of Appeal held that for the doctrine of recent possession to apply, it must be established that the property was found with the suspect or there should be a nexus between the property stolen and the person found in possession of the property; the property is positively the property of the complainant; the property was recently stolen from the complainant; and lastly, the stolen property in possession of the accused must have a reference to the charge laid against him. It is common knowledge that the doctrine of recent possession cannot be invoked where the accused

offers a reasonable explanation as to how he came into possession of the goods alleged to have been stolen recently. Applying the above positions to the instant application, it is undisputed that the 1035 bales of tobacco were found and seized from the godown belonging to Magono's family. Certificate of seizure (exhibit P2E) shows that the said bales were seized along with pieces of the barcodes for the purchase of 6 tobacco. According to PW3, the lorry that carried 500 bales of tobacco stopped at Juma Mkasiwa's godown and stayed there for about one hour. PW4 testified that after a search of Mkasiwa's- godown, nothing was found therein. They then went to search Magono family's godown which was very far from Mkasiwa's godown. PW8 and PW9 were the Village Chairman and the Village Executive Officer respectively, who witnessed the search. PW9 expounded that in the Magono family's godown, he saw 1035 bales of tobacco and the Police picked some papers therefrom. Based on this testimony, the trial Magistrate found a contradictory story about how the said tobacco reached Magono's godown. On page 31 of the judgment, the Magistrate found doubt in the testimony of PW3 when he said the lorry carried 500 bales equal to 18 tones, but stated that 1035 bales were found in the godown. The learned trial Magistrate was uncertain if the 1035 bales of tobacco found in the godown were the same that

were carried by the lorry which stopped at the godown for an hour. He was also suspicious about evidence of PW11 who testified that he was informed by PW4 that barcodes with serial numbers 3 and 4 identified the tobacco which was sold in the market, but he said nothing about the rest of the barcodes found in the godown. In his view, the charge against the 3rd and 4th accused (the 1st and 2nd applicants herein) was a cooked story. More so because the 1st applicant (DW3) informed the court that among the 1035 bales found in the godown, 400 bales belonged to him, 400 bales belonged to the 3rd applicant and 235 bales belonged to Shabani 7 Katila. This piece of evidence was corroborated by testimony of DW4 and DW8. On pages 31 and 32 of the judgment, the trial Magistrate observed as follows: "This is kind of a created story because there is no justification showing that the said stolen tobacco was found at the Magono family's godown and! can say the prosecution side has failed to justify if the 3d and 4h accused in reality were found in possession ofstolen goods.... In the case at hand, the evidence adduced is very weak to show that the 3rd and 4h accused were found in possession of the said tobacco suspected to be stolen, instead, I repeat that this is like created story." It should be remembered that the 3rd and 4th accused in that criminal case are the 1st and 2hd applicants

herein. After the trial, the trial court found that the 3rd and 4th accused provided reasonable explanations about the 1035 bales of tobacco found in their godown. They were thus, acquitted of all the charges against them. Surprisingly, the court ordered the 1035 bales found in the Magono family's godown to be remitted to the complainant whom the court considered as the owner instead of returning them to the Magono family from where they were seized. With due respect, I am of the view that having found that the 3rd and 4th accused were not guilty, the trial Magistrate misdirected himself in ordering the 1035 bales of tobacco to be given to the complainant. A careful examination of the evidence on record reveals that none of the prosecution witnesses proved that 1035 bales of tobacco belonged to the complainant. 8 A nexus between the 500 bales of tobacco stolen from the complainant and the applicants herein was not established, and neither was it proved positively that the 1035 bales were the property of the complainant. I thus, find the application to have merit. For the foregoing, nullify and set aside the order of the trial court giving the 1035 bales of tobacco to the complainant in Criminal Case No. 13 of 2015. I further order for the 1035 bales of tobacco (exhibit P4) to be returned to Magono's family from whose godown they were seized. The ruling delivered in chamber on the 5th Day of February 2024 in the presence of Mr. Kelvin Kayaga, Advocate for the applicant, and Ms. Joyce Nkwabi, State Attorney for the Respondent. 9