19720929 TZHC Dodoma

- -. IiT iL Y*a44 J. A2P;jIj :r JURItJI1! ion. Hirh Couit Crieirial peal No. 92 of 1972 Original Crininal Case No. 147 of 1 71 Of tho :Dist::ict court of 1anyoni District at Hanyoni Before L.G-. Ruinbans .)jstrict Mafistrate I. Nasanja MiJ'iambo a. Maigo MCh±a !ppollant 3. Mganciile Nnayn • • • . . (Crifillal accused) V 0 '5US The Republic ....................... iospondeit (Ori41].a1 Prosecutor) Chso; Stock theft ci's 3(1 ) of the stock theft Ordinance, dap 422. 1$. The three eilants ero charud uith and convictoJ. of stock theft c/s 3(1 ) of the stock theft Ordinance Cap 422, and each ntenco ci to 7 ye res imprieonnsnt. They 1ave aepeloci to this courtafainet both the COflVjC: tions and the sentences 0 ETihino. J.g J in adrIittinf the apcale for hear±n ;f commented; "Idsntiy of the cattle and the 3rd appellant need re- inciuiry. Trial court did not explain hoTr it satisfied itself as to the identify of the cattle afiLL especially the 3rd appellant, Mr. Chambakare for the Jublic ar. - uod that the question of dsntificatjon of the cattle as irrelevant as thea ccusods usro char.?ed under secti011 3(1 ) of the stock theft O:cdinmco willich c.r1 !0 cell for r iuic then of 3ilc C s oloa $ iock, According to the learned stats a.:tornov'.s submission the section Onlir reouired tIl5t an accused has to he reasonably susoectod of boing in poeseesion of stolen stock. I tend to agr o :Lth

the Republic T S Submiss ion that Section 3(1 ) of Cap 422 does not call for identification of stock found in ooeoesion of a personaup, and which stock is reasonably suspected of having been stolen. The section says; "(1 ) If a person is found in a specified a'oe. to be in poses.)slon of any stock in ci:ecusictacos nhich may roaonably load to the belief that such stock has boon stolen, such person hail, unless he fiveS naccount T15i s ,he courc n t ua. o s don lawful, be doomed to have stolen the same and shall be liable to ally of the :)?nalitios proscribed for theft of stock. It is clear :1bon th hove ].nguaao that person can :)O convicted of an offence under section 3(1 ) of Cap 422 if' tho following features are satisfisi; • .., 0*000000•. .../2 .. - 2 - (1 ) The person oust be found in a specified area, to 03 :in PO.O351Ofl 01 SGoCk. ii)The circuieis -Lmces uiaer rhich he is found in posseooion of the stock ...ust os such that could reasonably load to the belief tl?.at such stock has been stolen. (iii) He :iails to give an account which satisfies the court that the possession was lawful. The cuestion of ientt 7T of the stock before a person chargd UndOr se:tion 3(1 ) of Cap 422 is convicte. does therefore not arise, r flOtlritlistanding my different interpretation of section 50 ) of the stock Theft Ordinance, I still feel though for a di foront reason from those of my

lorned brother JUdge, tt the convict, ions of the eccusJs cannot be supported Before a person is charoed under socdion 3(1 ) of tho shock tbo 04'dinl, nc ars t iiit 1 he i s in • possession of the said stock in a ocified area(tiie underlyng- is ffi:lC. ) The Ordinance defines soecified area as an ares. aroci- fied in the second coluan of the schedule to the Ordinance. The question is therefore whether Ifanyoni district is one of the specified are::.s in the Schoalc to the Ordin:,nce. Nr. Chambakara ar:.uod that i.anyoni is one of the spocifi ed areas under the Ordinance. ih respect I w:.s not at all convinced by the l 23ö st to O$fl0T'S SU 1S1Ofl nac iTO 1 OJC of the districts showj: in the Ordinance s specified area, It I agree rather o d that this should be the case taking into account the fact that Hanyon is o n e of the districts in this country where cattle theft is e::tremely iDrealont. The Schedule to the Ordinance does not isent ion I.ranyoni district 'as a specified area. It only ment:Lons Singida and Iramba districts, i132ich of courre wiacre dist . ists within Dodona Regio:a in 1961 . The amendment of the Ordinance in 1 961 - Act so/i 961 did notchango the position, As the law stands therefore Sinnida Iegion has oly two 06, pecified areas under he stool: Theft Ur1jnj1c e thee area ramba and bingida districts, There is yreat and proosing need that innyoni District

should be included under the Ordinence as a speced area. This is however the duty of the legislature. This court only applies the law as it finds it. It is therefore clear that under the present nrovis:Lons of the stock theft Ordinance the accused cannot be said to have committed an offence under SO) tion 3(1 ) of the Ordinance as £mfliT"uj is not a specif'iecL area. I have tho::efore me alternative but to quash the convictions. The sentences are aocording1 set aside and the appellants are to be released forth with unless they aro in lawful custody in connection with another charge. Judgement louvered this, the 29th day of september, 1972 in osen court, I. / &_\ Mr, Chambakare for the Joi) L 1 )Jc AppoJ.lantsabsaat and unrepresented.