19790502 TZHC Mbeya

U IN THE HIGH COURT OF TANZANiA AT NBEYA APPELLATE JURISDICTION HIGH COURT CRIIIINAL APPEAL NO.57 OF 1978 ORIGINAL CRIPL[NJIL CASE NO40 OF 1977 OP THE DISTFLICT COURT OF CRUNYA DISThICT AT CHDNYA BEFORE: A • S ,M. NLIMA ESQ.j DISThICT MAGIS ThATh MAI4BOLEO IiP3SAN (Original Accused) v e r s u s - TIE (Original Prosecutor) - CHARGE: Receiving stolen property c/s 311 (i) of the Penal Code. JUDGMSNT • SAMATTJI, J., - On September 2., 1977 9 the appeJj.ant, • Mamboleo Hassan Msuya, was convicted by the district court of Chunya district of receiving stolen property, contrary to s. 311 (1) of the Penal Code. He was sentenced to three rears' imprisonmenb. Entertaining the belief that that decision was not a triumph for justice, the appellant has appealed against the same before this court. 4 Much of the story which the prosecution unfur].ed before the district court was not in dispute. On June 9, 1977, an employee of the Chunya Development Corporation, one Shabaan Ynsufu, stole one carton of sportsman cigarttcs, -the properLy rf his The cigarettes were worth shs.1,635/-. Within an hour or so of perpetrating the theft, Shabaan sold the carton of cigarettes to the appellant. The sale transaction took place in the appellant's residential premises. The appellant, who was a bar owner, used to buy cigarettes, including sportsman cigarettes, from the Chunya Development Corporation. Indeed, on the morning of June 9, 1977 he had bought, through one Irwanaidi cl/c Rajabu, "three small bundles of sportman cigarettes" from the Corporation. Mwanaidi purchased the three bundles of cigarettes before Shabaan had stolen the carton of cirettes. . -2- There was a dispute at the trial as to the price at which the appellant agreed to buy the carton of cigarettes. According to Shabaan the price was shs.1,200/, but according to the appellant it was shs.600/. An hour or so after Shabaan had stolen the carton of cigarettes the police were informeL. of the theft. Acting on the information which they had gathered during their preliminary investigation into the theft 9 four policemen 9 in the company of a Ward Secretary, proceeded to the appellant's premises for the purpose - of carrying a search thereat. What happened when the five men reached their destination? I will permit one of them - P.C. Godfrey Samson - to take up the story "We found Msuya at the verandah of his house and we informed him that we suspected his house about stolen cigarettes from CHUDECO. We told him that we wanted to search. We asked him about cigarettes, he told us that tho were no cigarettes alleged stolen from CHtJDECO but there were three bundles of sportsman cigarettes which he said he had bought on the sane day from CHUDECO O The accused Msuya allowed us to 'carry on with the search. We then entered inside his room and found one carton sportsman cigarettes. The carton was opened. Inside the carton there were 21 small bundles. ,,.. We also found 8 small packets of cigarettes. The case in which these eight (8) packets were kept was marked T.E. We then took them too as Exhibit. When we asked Msuya about the cigarettes, he said the cigarettes were his. He said further that from the month of April, 1977, he was buying cigarettes even if some other were in stock because of avoiding the problem of missing cigarettes," The appellant showed the law agents various cash sale receipts - which were later produced as exhibits at the trial - but none of them had any relationship with the carton of cigartt fnlind Sr his premises. The appellant was later charged with the offence ho convicted of. Although the appellant gave evidence at length, his defence, basically, was that he had neither knowledge no reason to believe that the carton of cigae±tes was a stolen property. He asset'bed that he had bought the carton of cigarettes in good faith. , 0 -3- He appeared to suggest that the charge had been flung at his door because 9 as he had exposed criminal and antisocial conduct of some of the Chunya public officers - including one police officer - he had made himself a target of a false accusation. He adduôed evidence from two witnesses 9 but heither witness championed his case. The learned trial magistrate reviewed the evidence before him at a great length. In the upshot he was satisfied that the offence had been.brought home to the appellant0 The determinative issue in this appeal is, in my view 9 whether the learned trial magistrate was entitled to hold, as he did, that when the appellant purchased the carton of cigarettes he had reason to believe that the same had been feloniously stolen. Nr. Mtaki, counsel for the respondent, invited me to answer that question in the affirmative. With respect, I think the invitation is irresistible. In my view the following factors compel me to hold that the learned trial magitrate cane to the right decision in this case. First, the appellant knowingly bought the carton of cigarettes at a price lower than its market value. Secondly, before the search at his premises had commenced the appellant made no disclosure that he had the carton of cigarettes on the premises. He merely mentioned the three small bundles of cigarettes he had bought - through Mwanaidi - from Chudeco. Thirdly, the appellant did not disclose to the hounds of justice that he had bought cigarettes from Shabaan, a man he knew very well. Fourthly, the appellant produced irrelevant cash sale receipts to justify his possession of the carton of cigarettes. When all these factors are taken together they plainly and irreistibly demonstrate, in my judent, that at least the appellant had reason to believe at the time of the purchase that the carton had been feloniously stolen. I can see no other rational conclusion. in my view the learned trial magistrate was perfectly entitled to give no weight to the appellant's - defence. In the particulars of the offence in the charge the prosecutor used the word 'purchased" instead of "received. This was an error, -4- Judging from the manner the appellant conducted his defence, however, I am satisfied that the error neither prejudiced nor embarraseci the appellant in his defence. It is plainly clear from the record of the case that the appellant knew perfectly well what the accusation against him was 0 The error in the particulars of offence dic.l not, therefore, occasion a failure of justice. It is a curable error. The sentence the appellant received is the minimum prescribed by law for the legal sin he was convicted of. This court does not, therefore, have even a semblance of power of reducing it The appeal stands dismissed in its entirety. B. i, SMIATTA JUDGE. Delivered in court this 2nd day of May, 1979, in the prèsence,of the appellant and Mr. Mal-ienge, counel for the repondent. ....... .k i•- -' .. - . /• ---------- B,A. SA11ATTA JUDGE, a