oswald abubakari mangula vs republic 1999 tzca 36 10 june 1999

ITT THE COURT OF APPEAL OF TANZANIA

AT MHEYA ( CORAIdt RA,:.AD:iAin:. J.A. . 3AZATTA, J .A .. And LUGAid NGIRA. J .A . ) CRIMINAL APPEAL HO. 153 OF 1993

BETWEEN OSWALD A3U3AKARI MAKGULA. . . . . . APPELLANT AID THE REPUBLIC............... ... ...................... RESPONDENT (Appeal from the judgement o f the High Court o f Tanzania at Mbeya) ( Mwipopo, J . ) dated the 7th da3^ o f October, 1993 in ' Criminal Rev i s i o 11 No. 35 of 1993

JUDGMENT OF THE COURT SAKATTA. J . A . : This i s an appeal from an order fo r r e s t i t u t i o n o f property, made against the ap p ellan t, Oswald Abubakari Mangula, by the High Court (llwipopo, J.)under s . 353 (3) o f the Criminal Procedure Act, 1985, in e x e rc is e o f i t s re v is i o n a l ju r is d ic t io n . The appellant had been acqu itted by the D i s t r i c t Court of Njombe o f a charge o f r e c e iv in g s to le n p rop erty, contrary to s . 311 ( l ) o f the Penal Code, h e r e in a ft e r r e fe r r e d to as :!the Code'5, and an order f o r r e s t i t u t i o n made in his favour. In view o f the conclusion we have a r riv e d at on the l e g a l i t y or otherwise o f the t r i a l i n the D i s t r i c t Court, we do not fin d i t necessary to state the background to the appeal i n d e t a i l . As alread y in d ic a te d , the charge which was l a i d at the a p p e lla n t's door was that o f r e c e iv in g s to le n p rop erty, contrary to s, 311 ( l ) o f the Code. It was a lle g e d i n the p a r tic u la r s o f offence that the a p p e lla n t: between 1st day o f September, 1989 and 3rd day o f November 1989, at Mtwango Minor Settlement w ith in the D i s t r i c t of Njombe in Irin g a Region knowingly and without r ig h t did re c e iv e the fo llo w in g 1 . 160 corrugated ir o n sheets gauge 28 x 3 © 1565/= 250,400/= 2, 40 Bags o f

cement valued 3 t - 36,000/= 3. 81 Timbers o f 2;t x 6 '% 2 ” x 4 1 and 4 ° x 8 :t valued © 55/= 4,550/= 4. 20 Kgs. o f r o o fin g n a ils value d ............. 3 j 4 0 0 /= T o ta l 294.0)0/= from Modestus Oswald knowing the same to have been obtained from money sto le n at Uwemba Mission by the said Modestus Oswald Kangula5'. (the emphasis i s supplied) The case f o r the prosecution at the t r i a l was e s s e n t i a l l y th is : the a p p e lla n t’ s son, Hodestus Oswald (Hodestus), used to work as a housekeeper at the Roman C atholic Mission at Uwemba, i n I'Tjombe D i s t r i c t . Between the d it e s mentioned in the p a r tic u la r s o f offence the young man s to le about Shs. 1,600,000/=, the p rop erty o f the Mission. He then disappeared from the M s s i on 5 he was s t i l l at large when the t r i a l took p la ce. He used part o f the money to buy the items o f p roperty l i s t e d i n the charge, which he handed over to the ap p ellan t. That prop erty was l a t e r seized by tiie p o lic e when they searched the a p p e lla n t’ s premises on November 6, 1989. The a p p e lla n t’ s defence was simple: he had acquired the p roperty by using his own money and not the money h is son had a l l e g e d l y s to le n . He s ’ i d he was a su ccessfu l farmer, owning, among other p r o p e r tie s , a t h i r t y - acre farm, fo u r ty head of c a t t le and

a garden. The ap p ellant also asserted that he was a t r a d i t i o n a l h e a le r . During the tr ia l, on May 24, 1990, to be more s p e c i f i c , one o f the prosecution witnesses, Brother Otto, produced before the Court as e x h ib it s one p a rc e l o f b a l l pens, one stamp pad and s ix p o r c e la in p la te s as being some of the property which the ap p ellan t was found i n possession o f and which Modestus had s tolen from the Mission when he s to le the money. The learned t r i a l D i s t r i c t M agistrate found the charge not proved and, th e r e fo r e , acqu itted the ap p ellan t. He said, among other th in gs: "... there i s no dispute that the accused in t h is case was on the 6/11/89 searched and found with items l i s t e d on the charge sheet tendered as e x h ib it PB. However there i s no evidence o f any kind which proves that those items were given to him by Modestus as a lle g e d on the charge sheet. Also there i s no evidence . . . adduced to prove that those items were s to le n property. 7/ith referen ce to the three r e c e ip t s tendered as e x h ib it s PA, P3I and PB II, the items have been proved to have been bought by the accused from d i f f e r e n t /shops/. At the same tin e the explan ation regarding how the accused managed to ra is e the funds he used to purchase those items has not been rebutted by the prosecution and the

same i s reasonable and c r e d ib le ” . Later, the learned t r i a l D i s t r i c t Magistrate made an order i n the fo llo w in g terms: J ill e x h ib its c o lle c t e d from the residence of the accused and produced in court as P/exh, are to be returned to the accused fo rth w ith . Follow in g a complaint by one Father Thienie Biechale against the d i s t r i c t c o u r t's d ecisio n a c q u ittin g the appellant, the High Court c a lle d f o r the f i l e and l a t e r , a f t e r examining i t , d ire c te d that r e v is i o n a l xoroceedings be conducted, which d ir e c t io n was c a rried out. Concluding h is r u lin g i n the r e v is io n , Kwipopo, J . , said ; " I am s a t i s f i e d that despite the dubious a c q u it ta l o f the accu sed ... the p rosecu tion ’ s case and p ro p osi­ t i o n during the t r i a l that a l l the e x h ib it s seized from the accused’ s premises or the premises of his c o lla b o ra to rs or o f Modestus Mangula his son were proceeds o f crime emanating from the sto le n goods or money o f the Uwemba Roman C atholic Mission ( s i c ) . I th ere fo re quash the order o f the D i s t r i c t m agistrate r e s t i t a t i n g the p roperty produced in court and order that under /s_j_/353 (3 ) o f the CPA a l l these p ro p e rtie s produced by the prosecution in th is case be returned to Father Ihiemo Biechele or Uwemba Roman

Catholic Mission f o r t h e i r permanent and undisturbed ownership and use as a meagre r e s t i t u t i o n o f t h e ir s tolen p ro p e r tie s and money.” I t i s that d e cis io n which the appellant has appealed against to th is Court. He has advanced two grounds why the d e cis io n on r e s t i t u t i o n should be reversed. At the he .ring o f the appeal he appeared in person. The respondent Republic was represented by Hr. Mbago, Senior State Attorn ey. The appellant said very l i t t l e in ad d ition to what i s contained in his Memorandum o f Appeal. We have found i t necessary* in e x e rcis e o f th is Court’ s r e v i s i o n a l ju r is d ic t io n under s. 4 (2 ) o f the Appellate J u r is d ic tio n Act, 1979 (the A c t), as amended by the A ppellate J u r is d ic tio n (Amendment) Act, 1993, to examine the p r o p r ie ty of the charge which was p re fe rr e d against the appellant in th is case. As w i l l be r e c a lle d , in that charge the ap p ellant was accused o f r e c e iv in g ''without r i g h t " various items o f property knowing the same to have been purchased by use o f the money which had been s to le n . We e n te r ta in no doubt whatsoever that that charge was misconceived i n law. I t d is clo s ed no offence known to lav/. Property can be the subject matter of a charge p r e fe r r e d under s. 311 (1) o f the Code only i f i t was

’’f e lo n io u s ly stolen , taken, e x to rted , obtained or disposed o f '. Since the p rop erty l i s t e d on the ;:charge sh eet5' in the in sta n t case was not the p ro p erty which Modestus s t o le , the p ro v isio n s o f s . 311 ( l ) o f the Code o .. & / could not in law he brought in t o p lay i n resp ect o f i t . The f a c t that the money which was used to purchase i t was s to le n money did not make that property u n law fu lly acquired i n terms o f the subsection. No contravention o f the subsection takes place i f the subject matter o f the charge was not property ” fe lo n io u s ly s to le n , taken e x to rte d , obtained or disposed o f ” . In the eye o f the law there was no charge p re fe rr e d against the appellant in th is case. That being so, when the purported charge was presented, the learned t r i a l D i s t r i c t M agistrate should have formed that opinion and proceeded to make an order in accordance w ith s.129 o f the Criminal Procedure Act, 1985, which reads; :i129. Where the m agistrate i s o f opinion that any complaint or formal charge made or presented under s e c tio n 128 does not d is clo s e any o ffe n c e , the m agistrate s h a ll make an order refu s in g to admit such complaint or formal charge and s h a ll reco rd h is reasons f o r such o r d e r . ” We wish to remind the magistracy that i t i s a salu tary rule that

no charge should be put to an accused person before the m agistrate i s s a t i s f i e d , in t e r a l i a , that i t d is c lo s e s an offen ce known to law. I t i s in t o le r a b le that a person should be subjected to the rig o u rs o f a t r i a l based on a charge which in law i s no charge. I t should always be remembered that the p ro v isio n s o f s. 129 o f the Criminal procedure Code are mandatory. The ch..rge l a i d at the a p p e lla n t's door having d is c lo s e d no offonce known to law, a l l the proceedings conducted i n the d i s t r i c t court on the b asis th e re o f were a n u llity . Since you cannot put something on nothing, the learned judge o f the High Court should have so held and proceeded a c c o rd in g ly. Since he did not do so, i t f a l l s upon us to do i t . E x e rcis in g the r e v is io n a l ju r is d ic t io n conferred upon th is Court by s . 4 (2 ) o f the Act, we declare the purported p r o c e e d i n g s conducted i n the d i s t r i c t court a n u llity . Having so declared the purported proceedings in the d i s t r i c t court, we are constrained to a llo w the appeal. A ccord in gly, f o r reasons we have given, though they are v e ry d i f f e r e n t from those r e l i e d upon by the ap pellant, we quash the order f o r r e s t i t u t i o n made by the High Court, which, v e ry f a i r l y , Mr. Mbago, at the close

o f h is submission, declined to support. We order that the items o f p rop erty l i s t e d in the purported charge, namely, 160 corrugated ir o n sheets, 40 bags o f cement, 81 timbers and 20 kgs o f r o o fin g n a ils be returned to the ap p ellan t. Since the a r t i c l e s tendered before the t r i a l court on May 24, 1990, should not have been tendered and when they were tendered should not have been admitted i n evidence, as they hsd ab s o lu tely nothing to do with the "charge", we say no aw e-^b ou t them. DATBD at O E Y A .\h is ^ L th day o f June, 1999.