19750409 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DJ\.R ES SALAAM ;WP ELLA TE ,,-JURISDICTION HIGH COURT CRIMINAL APPEAL NOo 225 OF 1974 and HIGH COURT CRIMINAL APPEAL NOo 236 OF 1974 Original Criminal Case No. 694 of 19'/4 of the District Court of Dar es Salaam District at Maktaba/Dar es Salaamo BEFORE: Ao N9 MWAKAJINGA Esq., Q.ist~i.s_t Magistrate. (1) (2) MUSSA SEIFU ) ATHUMANI HASSANI) 0 o O o o O C o O o. APPELLANTS (Original Accused) Versus THE; REPUBLIC 0 0 C 0 0 0 o O C O O O O O RESPONDENT (Original Prosecutor} -• CHARGE: Stealing goods in transit - c/ss 265 and 269(c) of the Penal Codeo

JUDGMENT BIRON, Jo The two appellants were convicted of stealing goods in transit and they were each sentenc.ed to imprisonment for four years. Although in their peti- tions of appeal both appellants appealed against their convictions and· sentences, at i:he hearing of their appeals whlch uere consolidated, Mro Rai thatha who appeared fo.r one of· the appellants - who was the · second accused at the trial, formaJbJ with drew h:i.s appe9-l from t:,e conviction and confined himself to appealing from the sentence only. The other appellant, who was the first accused ih the lower court 7 followed suit and likewise withdrew his appeal from the conviction and confined himself to appealing from the sentence only. In this judgment, for ti:1e sake of convenience, I am retaining the descripti ~,ns of the two appellants as they were described in the lower courto The facts of the case were briefly as follow:- On the night of the 25th of June last year a watchman at the Ubungo Customs Sheds dep6t saw the two accused pe::;sons standir'lg near the fence surrounding the dep$t. He saw the first accused throw a b~r.dle over the fence, but it got caught in the fence and remained hanging on the outside of the fence. When the two accused saw that they had been discovered by the watchman they both ran towards the gate of the depot shouting and raising the alarm. The police and a supervisor standing

at the gate thought that the two accused were chasing a thief and accordingly let them passo It was not until the watchman reached the gate that they discovered that the two accused, in fact, were the thieves. Both accused worked as casual labourers at the dep~to One turned up for work the next day whilst the other did not turn up until a couple of days later. They were arrested and charged and duly convicted after a trial and sentenced as stated above. The bundle, also described as a carton, which the accused had tried to throw over the fence was recovered and found to contain thirty-three pairs of new trousers which, as it was established in evidence, were in transit in Dar es Salaam and addressed to a consignee in Lusaka, Zambiao It is apparent from the consignment note produced in evidence that the goods originated from Hong Kong. \ In arguing this appeal Mro Raithatha submitted that the sentence was excessive bearing in mind that his client was a first offender and a youth; his age as given in the charge sheet is nineteen yearso The first accused likewise submitted that the sentence imposed on him was excessiveo He, too, is a first offender and his age as given in the cha'rge sheet is twenty-two yearso In mitigation, before being sentenced, the first accused is recorded as saying:- "My father is dead, has left eight children who depend on me. I am married with a childo My

mother is very old." 0 0 0 .. /2 2 And the second accused is recorded as saying:- "My father and mother are very oldo There is a son of my brother who depend on meo· My brother has four children who depend on me" o In sentencing the two accused the magistrate stated:- "Sentence: Accused are all two first offenders, but they have stolen goods which value very higho Value of the stolen property is very high some shso 3,300/-o Furthermore, in Customs Department offences of this kind are committed almost every day. The offence is prevalent in the customs areao Accused have advanced having dependants as their special reasons for a lesser sentenceo I do not consider the fact that the accused having dependants is by itself a special reason amounting to a lesser sentenceo If every accused would be given a lesser sentence merely because he has dependants there is a likelihood that every convicted African accused would escape the rigours of sentence because as it is understood no one within the African context is free of dependantso The fact that the value is shso 3,300/- and the offence is prevalently committed in the customs I sentence each accused to four years imprisonmento Right of appeal explained fullyo ~undle of clothes to be taken to Cargo." In the charge sheet the thirty-three pairs of trousers contained in the carton the accused were charged with and convicted of stealing in

transit, the goods are described as the property of the East African Cargo Handling Services Limited, Dar es Salaam - hereinafter referred to as the Companyo When I asked Mro Raithatha whether the Company was a specified authority within the meaning of the Minimum Sentences ity Act 1972, so that the offence of stealing/goods would constitute a scheduled offence under the Act, whereunder the offence would attract the minimum sentence of imprisonment for three years, Mro Raithatha submitted that even conceding that the Company was a specified authority within the meaning of the Act, the goods stolen were not the property of the Companyo Item three of the first Schedule to·the Minimum Sentences Act 1972 reads:- "Theft contrary to section 265 of the Penal Code where the thing stolen is the property of a specified authority", Learned counsel submitted that the goods were the property of the consignee in Lusaka, Zambia and not that of the Company; the Company only having a special property in the goods, the subject matter of the offenceo Mro Raithatha who contended that the terms special owner and special property were but legal ficti0ns, called in aid the definition of special µroperty in Jowitt•s Dictionary of English Law wherein special property is defined as:- "Special property has two meanings - first 000000 " The first meaning is not relevant to this case; what is relevant

is the second meaning which reads:- (at page 1426) oooo/3 3 -- "Secondly, a person may have a special property in a thing in the sense that he can only put it to a particular useo Thus, in the case of a bailment (qovo), the bailee has a special property in the thing bailed, for he is only entitled to deal with it in accordance with the contract of bailment; but he can maintain an action in respect of it against a wrongdoer. So possession is said to confer a special property, by which is meant that the possessor of a thing is deemed to be owner of it as against everyone who cannot show a better titleo See MELIOR EST, ETColl Mro Omar, who appeared for the Republic; agreed with Mro Raithatha that the goods, the subject matter 'of the offence, were not the property of the Company for the purposes of the Minimum Sentences Act 1972; but of the consignee in Lusaka, Zambia. By Section 258(1) of the Penal Code;~ "A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing." Thus, the Company although having only a special property - being only a special owner of the goods, the theft of such goods would still constitute theft from the eompany under Section 265 of the Penal Code whereunder the

accused were in fact charged and convicted, asv.ell as under Section 269 - the goods being in transito But does it necessarily follow that these goods were the property of the Company for the purpose of the Minimum Sentences Act 1972? It is a well established canon of interpretation that a Penal Statute must be construed very strictlyo The Minimum Sentences Act 1972 is certainly very much a Penal Statuteo In fact, it even deprives the court of its di~cretion in imp$Bing sentences for offences scheduled under the Act; except that a court can impose a sentence higher than the prescribed minimum. And it is a well established principle that courts are Jealous of their jurisdiction and the power to exercise their discretion, and will not lightly surrender either unless constrained by law to do soo I therefore uphold Mro Raithatha's submission, supported as it is by Mro Omar for the Republic, that for the purpose of . the Minimum Sentences Act 1972, for an offence to constitute a scheduled offence because the property concerned is that of a specified authority there must be absolute ownership in such authority and not merely special ownershipo Further, there: is nothing in the proceedings to indicate that the Company is a special authority within the meaning of the Minimum Sentences Act 1972, and it is apparent that the case proceeded and was dealt with as one not coming under the

Minimum Sentences Act 19720 The convicting court, therefore, had, as· has this Court, full discretion in the determination of the proper sentence to awardo I have set out the mitigating factors advanced by the appellants in the lower court and Mro Raithatha's submissions in this Courto And learned State Attorney further agrees with Mro Raithatha that the sentences imposed are excessive, adding and I quote:- "A long incarceration would not help them"o 4 To that may be added that a long term of imprisonment may do more harm than good, in that apart from the fact that the appellants would be so much longer in the company of hardened criminals, if they considered the sentences unjust they would be soured, and the prospects of their reformation and rehabilitation, which is the main object of a sentence of imprisonment in a case of this nature, would be considerably impaired. Further, and this has been overlooked both by'the convicting court and learned counsel, that although the taking of the carton of clothes constitutes theft in law, as there was asportation, .in reality there was no real theft of the goods in that~ as noted, the carton was left hanging on the fence and was subsequently recovered. Therefore in actual reality it was not a case of theft but rather of attempted stealing. The fact that this/venture by tae appellants into crime proved so abortive, I think, it will be

generaly conceded, taking into consideration the other mitigating factors advanced,. a sentence of imprisonment for two years would meet · th• ,_ - ' justice of the case. The appeals are accordingly allowed, and the sentence of each appellant a~ imposed is set aside, and there is substituted therefore a sentence of imprisonment for two years on each e.'ppellanto . Delivered in Court at Dar es salaam this 9th day of April, 1975.

PHILIP BIRON

JUDGE