jackson mmasi vs republic 2010 tzhc 247 15 march 2010

IN THE HIGH COURT OF TANZANIA

AT TANGA CRIMINAL APPEAL NO. 41 OF 2009 (Originating from Tanga District Court, Cr.Case No.377/2008} JACKSON MMASI........................ ...................APPELLANT

VERSUS THE REPUBLIC........................................ ........RESPONDENT Date o f last order: 26/10/2009 Date o f Judgment: 15/03/2010 JUDGMENT/REASONS FOR ORDER: Mussa, 3 } This matter originates from Criminal case No.377 of 2008 instituted In the District Court of Tanga. The appellant herein was arraigned and convicted there for stealing, contrary to section 265 of the penal code, chapter 16 of the laws. Upon conviction, he was sentenced to three years imprisonment as well as required to meet some compensation. Aggrieved by both the conviction, and compensatory order, and sentence, the appellant preferred an appeal before this court. At the hearing, he had the services of Mr. Mramba, learned advocate, whereas, the respondent Republic was represented by Mr. Tesha, learned state attorney. Upon counsel submissions, I straight away had the appeal allowed; results of which the conviction, sentence and compensatory order were set aside. It was further ordered that the appellant be released from custody forthwith unless there be some lawful cause to hold him there. Nonetheless, I reserved my reasons for doing so; of which, I now proceed to give. As is customary, I should reflect on the background, first thing. The prosecution allegations, as laid at the appellants' door, were twofold, namely, stealing, contrary to section 265 of the penal code on the first count and; malicious

damage to property contrary to section 326 of the same code, that is, on the second count. The particulars were that on the 29th June 2008, at Donge area, within Tanga City; the appellant stole a motor vehicle, make, Toyota Crester, registration NO.T461ADE, valued at a sum of shs. 13,500,000/=; property of one Morgan Kida. As regards the second count, the particulars alleged on that same date and place, the appellant willfully and unlawfully damaged the motor vehicle afore described resuming - in a loss to the tune of a sum of & shs.5,000,000/=. It isrperhaps, opportune to reveal at this state that, at the conclusion of the enquiry, the appellant was acquitted on this second count and; on the premises, I need say no more with respect to this aspect of the prosecution accusation. Coming now to the evidence in support of the accusation, the prosecution lined up five witnesses; inclusive Morgan Marko Kida, the alleged motor vehicle owner, victim, who featured as witness No.7. Indeed, from his testimony, it was common ground that the motor vehicle under reference was a personal belonging; imported of him way back year 2004, for private use. Come fateful day and; it was around 6.00pm or so, whilst at his Donge residence, Morgan assigned the motor vehicle to his son, namely, Emmanuel; to fetch up some beer and soft drinks at a shop close by. As to what transpired next, it will be

pleasant if Emmanuel himself takes up the tale. By the way, he was, at the material times, age 18, schooling at Jumuiya Secondary School and; putting up with his parents at Donge. \ ' Upon arrival at a certain Zawadis' shop, Emmanuel paid up a shillings 5,000/= note for the drinks to a shopkeeper, namely, Prisca Joseph (PW.2); for which, change was not iommediately available.. The shopkeeper, then, advised him to take it upon himself looking around for the required change. To this, Emmanuel was obligatory; only, ironically though, he entrusted Prisca with the motor vehicle ignition switch for temporary keep, up until he makes it back. Going by his version, more precisely, Emmanuel had inserted the switch unto the basket in which were the drinks he had just bought and; thus, handed over the entire lot to Prisca as he left. As regards the condition of the motor vehicle, he had left its doors securely locked. Coming back a little while later, Emmanuel was bewildered at not finding the motor vehicle where it was parked. As he enquired about, Prisca told him that whilst he was away, the appellant came by and; allegedly, forcefully snatched the switch; to drive away the motor vehicle. As to what exactly transpired, one need only tape straight from the horses' mouth. But, perhaps, it is worth a disclosure, well ahead, that Emmanuel made it clear that he had not known the appellant

prior to this fateful incident. To resume the narrative about the appellant driving away the motor vehicle, Prisca did not quite entirely embrace Emmanuel's detail about being entrusted with the switch. She, rather, had it that as he went out looking for the change, the latter left his belongings, switch inclusive, at her shop. Then, for some obscure reason, Prisca had then picked the switch, presumably, from the basket, to put it on a table. That was exactly the moment when the appellant came by, incidentally, well known to Prisca; the two of them being natives of the same village situate someplace in Kilimanjaro. As to what followed there and then, Prisca was positive about the appellant forcefully snatching away the switch from the table with which tie drove off the motor vehicle. "Forcefully," as she, certainly, claimed, that is, in spite of her putting the best of an effort to prevent the appellant from the taking. But, rather astonishingly, Prisca did not perceive the happening as an act of stealing and; indeed, such was clearly demonstrated by her conduct, immediately thereafter; as she kept her cool, apparently, least concerned whilst she awaited Emmanuels7 come back. A bit away from the scene and; at about the same time in moment, a Morgan neighbour, namely, Saidi Rajabu (PW.4) was on a stroll thereabouts; apparently, just killing time off. As he walked along, it just

happened that he witnessed a motor vehicle going into a skid, whereupon, it went into a ditch and was damaged to a stand still. Moving, then, closer to the scene, of the mishap, it was beyond question to Saidi that the motor vehicle was Morgan's; for he had seen it previously. Behind its wheel was the appejjint, from whom Saidi deliberately enquired as to the whereabouts of the owner; to which, there was no response. Disembarking, the appellant headed towards Mama Baby's shop of which, I should assume, is the same Zawadi shop referred to by Emmanuel. If not, it is, certainly, inferable from the evidence, that the same is situate thereabouts. As the.appellant so headed towards, Saidi kept right behind, I should imagine, driven by curiosity. At the shop, the appellant was immediately confronted by Emmanuel, whom Saidi heard enquiring to this:- Gari Uko wapi nimeambiwa umechukua gari hapa. To this, the appellant replied:- Liko kule juu. . Then, Saidi watched the two of them walking abreast, heading towards where the car was. As for him, he took upon the responsibility to keep his neighbour, Morgan, posted as to what exactly happened. At the scene, it was said, Morgan was a bit temperamental; going to an extent of attempting an assault on the appellant but; it was Saidi who cooled him off. The car, it was further claimed, had a tyre burst following which the appellant changed the

tyre. Then, thanks to a gathering; the damaged car was pushed up to the Morgan residence and; as it was being done, both Emmanuel and the appellant were inside it. As for details of its damage, there was a constable Abednego (PW.5), testifying on them, albeit, just to \ N the extent figuring out facial damages. In this regard, it was simply said that windscreen and the rear mirror were a broken mess. With so much in support of the prosecution accusation, the appellant was focused* I would say, in his denial. To begin with, he did not quite refute being at the Zawadi shop, fateful day, in the company of too friends, namely, Joseph and Noel. Then, within a while, Emmanuel came by and; as it were, driving a his dad's car. Emmanuel was not only known to the appellant, rather, he was his friend with whom they were domiciled along the same street. And so, upon Emmanuel's arrival there, the appellant requested him to lend the car for a little while so as to enable him attend to a necessity back home. To that request, Emmanuel was obligatory and; personally, handed him- the ignition switch. Expounding more on the request, the appellant said it was not the first time his friend lent him the car. As to what happened next, was more or less a repeat of the prosecution version to the effect that whilst driving, the car skidded unto a ditch. Then, the rest of the appellant narrative

was, again, common ground relating to the accusation giving rise to this appeal being placed right below his nose. The appellant had a witness, namely, Noel Palangyo (DW.2), that is, one amongst the two friends he, allegedly, was with at the Zawadi shop. As expected, Noel confirmed the detail about the appellant being voluntarily given the ignition switch by Emmanuel. At the close of this witnesses testimony, the defence drape was, as well, drawn down. In his approach towards the issues of contention, the learned trial Resident Magistrate formulated the correct guidelines, as it were, upon paying complete homage to a decision of this court comprised in Christian Mbunda V.R. (1983) TLR.340. It was held there that it is an elementary rule of law that in order to convict an accused of theft the prosecution must prove the existence of actus reus, of which, when it comes to theft, necessarily involves asportation. In addition, it was reiterated, it is just as required to establish men rea, that is, the guilty \ v mind of the perpetrator; operating at the time of the occurrence, of - ' which, again, in theft, travels one to animus furandi. If I should go further and elaborate on the latter; in terms of section 258 of the penal code, an intent to deprive the owner of his/her property permanently, or an intent to deal with another's property unlawfully in such manner as to create

an obviously unreasonable risk of permanent deprivation; is all that is required to constitute animus furandi. As I shall venture into a demonstration within a short run, in spite of formulating the correct law, the learned presiding officer did not at all determine the issues in accordance with it. Suffice it, for the moment, if it is just said that on the factual setting, the trial court constituted a theft in the sense of a fraudulent taking with intent to deprive permanently. And so, as hinted upon, a conviction was had. s The petition seeks to impugn the decision upon four fronts being, first, that the trial court proceeded on a bad and defective charge; second, that the learned convicting Magistrate presided in succession without putting the appellant into a fresh plea; third, that the factual setting scarcely supports proof of theft and; fourth, that the compensatory order was vague, unclear and without basis. These were expounded upon by Mr. Mramba, the learned counsel for the appellant. On the first point of grievance, counsel sought to contend that the charge was defective on account that the same was wholly predicated under section 265; of which, according to Mr. Mramba, is rather a punishment provision than one which creates the offence of theft. As to which is the appropriate provision, counsel did not go so far as to elaborate but; I need not detain myself in the

submission; much as, the same is clearly misconceived. It is noteworthy that the misapprehension by counsel is possibly derived of the marginal note there is to section 265 of which circumscribes: "General punishment for theft Ord.No.49 of 1955 S.10; Act No.2 of 1972 Sell." To say the least, it is a misleading circumscription, more|o> as there is more to section 265 than just general punishment. The provision is, so to speak, double-jointed in nature, in that it creates the offence of theft just as it provides punishment in the wake of a contravention. Thus, it is additionally provided therein that"any person who stea/s anything capable of being stolen, is guilty o f theft..." And so forth. Coming to the second ground of complaint, the same came about on account of the fact that trial was presided over by two Magistrates in succession. There was M.N. Nason, RM; who presided over the early stages up to the moment when she withdrew for reasons not quite of relevancy here. By then, the prosecution had featured two of its witnesses; so that the successor, R.I. Rutta, SRM; took over from there to a finish. I note that at the time he was taking over, the learned convicting Magistrate kept the appellant posted to the provisions of section 214 of the CPA; to which he (appellant), rather insisted that trial should proceed, without more. The complaint there is to counsel submission is

with respect to the fact that the appellant plea was not taken afresh; if I understood him well, to brace the succession. The omission, counsel submitted, was a fundamental ailment going to the root of the trial itself. In support thereof, a decision was referred comprised in Republic Vs Saidi Abdullah Riyami (1969) HCD n.107. Reflecting on what was decided there, more specifically, held note No.2; there is this:- The trial of this case should be considered as a nullity because the accused did not plead to the charge before the Magistrate who tried his case. (Citing Regina V Rajab s/o Ramadhani, 2 TLR 49). However, upon the record as a whole, the conviction stands because the guilt o f the accused....... Is so dear and beyond any reasonable doubt that I would be unreasonable to set aside the conviction and order a retrial due, entirely, to the technical difficult arising from tf^ fpiea. As is, immediately, apparent; aside from the opening remark that does not augur well; the extracted decision frowns, disapprovingly, at counsel submission to the effect that such non-compliance goes to the root of a trial. And; it cannot go as such, much as, whilst it is always desirable and appropriate for a succeeding Magistrate to refresh a plea; doing so is not quite a requirement in terms of section 214 of the Criminal Procedure Act. What is more, the duty there is to prompt a plea is

derived of section 228 of the Act; in terms of which, the plea is prompted, taken and recorded in the course of communicative exchange between the person accused and the court. It is, so to speak, more of an exchange done by the court than would be a matter to be, specifically, related to the presiding officer, as an individual. To this end, the point sought to be taken by counsel is clearly wrong footed. Addressing now the substantive third ground of complaint, Mr. Mramba vigorously criticized the trial court for not keeping abreast the fact that the testimony of PW.4 (Saidi) contradid:§d the entire prosecution version. To this submission, Mr. Tesha for the Republic, went along and; in the end, he declined to support the conviction. Learned state attorney paid complete homage unto Saidi's testimony of which, he said, gave a clue as to what was the reality of the moment. According to Mr. Tesha, chances were that the car was not forcefully seized upon by the appellant; rather, it was given to him by PW.3 (Emmanuel) under an arrangement between them. To these latter submissions, I had thought then, both counsel had a point as, indeed, I proceeded to quash the conviction as already hinted. Going deep into the judgment of the trial court, the finding was that the appellant forcefully drove away the car; the assumption being that both Prisca and Emmanue^were credible in their

telling of the detail. The question hovering over throughout their telling is whether or not they really were credible witnesses. Was, in the first place, Emmanuel truthful in his telling that the appellant was virtually stranger to him prior to this incident? In this regard, the convicting Magistrate found in the affirmative; having placed particular regard in the fact that the appellant was domiciled at Mikanjuni, whereas, Emmanuel was putting up with his parents at Donge. Granted that, as agreed by either side during the preliminary hearing, the appellant was then domiciled at Mikanjuni and; true, much later at the trial, he contradicted himself with a claim that he and Emmanuel were domiciled in the same street. But, even on account of the fact that the appellant lent himself to a barefaced lie; the prosecution is not derived of any assistance if it did not exclude the possibility that the appellant and Emmanuel were known to each other prior to the occurrence. More particularly, it does not necessarily follow that because they were staying at different suburbs; they were then unknown to each other. On the contrary, the testimony of Saidi, in particular, clearly shewd that the appellant was well known to Emmanuel". There are, indeed, certain aspects in his testimony, from which, it will not make good sense at all to a bystander, if told that Emmanuel and the appellant were

complete strangers. To begin with, assuming, as told, the appellant stole the car; it is incomprehensible for one to imagine that after the accident, he should have headed exactly towards where Emmanuel was. Certainly, it is not within the normal run of business; for a thief to chance a return to the scene of his own atrocity. If the worst comes to the worst, as here, the car having broken up; chances are that a thief would have, rather, cleared of the scene. Next, there was that immediate response by Emmanuel upon confronting the appellant and; momentarily, enquiring of him the whereabouts of the car. The thing is, how could he have, if the appellant was virtually a strangles he claimed. And, finally, it was said, the two of them walked abreast:to where the car was after the accident; obviously, incredible if one was to go by Emmanuel's version. To put it differently, chances are that those two were familiar with each other and; corresponding to it, is a nagging possibility that the appellant was given the ignition switch; than he forcefully snatched it away as claimed by the two witnesses. That throws the entire detail about the appellant forcefully driving away the car; into doubt. Upon a criminal prosecution, a doubt touching on a material aspect of the prosecution version; is always availed in favour of the person accused. If anything, it was from the version told of the

prosecution itself; that I was constrained into the conclusion that Prisca and Emmanuel were not quite the salt of the earth on this detail. The foregoing are, in the main, reasons behind my quashing the conviction and; setting aside the sentence as well as the compensator/ order; of which, then, had no legs to stand on. Speaking by way of a postscript, I cannot help feeling sympathy to the parent Morgan but; appreciative of the true picture, I should have no regrets. Perhaps, as a word N of advise, the property owner may wish to pursue redress in a civil action, that is, if it is well worth. In a way the entire misfortune is attributable the parent's approbation in his having to trust, unreservedly, his teenage son. Of course, Emmanuel, who then was age 18, claimed that he was, appropriately, licenced, to drive but; speaking for myself, that alone alleviates the dire need there is to have a re- look at the prescribed age as comprised in the traffic rules. That said, I should re-affirm, the appeal stands allowed. Order accordingly.