19900209 TZHC Dar es Salaam2

IN TEE filGH COURT OF TANZANIA .AT DAR ES SALAAM

APPELLATE JURISDICTION EIGII COURT CRIMINAL APPEAL NO. 171 OF 1989 ORIGINAL CRIMINAL CASE NO. 221 OF 1989 OF THE DISTRICT COURT OF MOROGORO i>ISTRICT AT MOROGORO Before Ji:e.J• Nyamasaga.ra., Esq,., Sen. Resident Magistra.te WILSON LDffiE & .ANOTHER • •. o •• • • • • • • • • .• • • . • . • • • • • • • •• eAPPELLAlfllS ( Oi-igina.J. Aooused). versus ··t

I I

THE UNITED REPUBLIC ··D·······•······················RESPONDEMT ~ (Original Proeeoutor)

JUDGMENT MAGESA, PRM(Ert 0 Jurisdiction) The two appellants, together with three other persons, were charged in the District Court of Morogoro tTi th the offence of stealing goods in 'transit o/ss. 269 (c) and 265 of the Penal Code• At the end of the trial, the two appellants were found guilty and oonvic:ted as oha.rged. The other three a.couaed were ·acqui ttea.. The other three accused were a,oqµi tt~ ~ two appellants, who were originally the 1st and 4th a.ocu.sed, respective~ have now appealed against both conviction and sentence, imposed upon them by the trial court. The facts of the case, which emerged in trial were as followss- Goods destined for Kigomawere on 20/6/89 loaded on the Central ra.ilYa.Y train wagon No• CGB lf56026 by a Dar es Salaam businessman., callod Mohamed 1-\ula (P.w.1). The goods comprised of sponge Matresaes, bateries,. squashes, chair cushions, and_ chimneys 0 A~ ICigoma these goods were to· be reoived by- one Bashiri Mulla. Howevor, while on its wag to Kigonia the wagon had its seal tempered with. This was discovered by the ra.ilwag officiaJ.s at Morogoro. The ot~- of the goods was called to come and check if his goods inside the wagon , I were sa.f e. He came and oon:f'irmed tll.a.t the seal wa.s' tempered with. -· And he found some of the goods misaing. Nevertheless the wagon and the remaining were resealed and continued with its journey to

l{j,goma. Later on 27 /6/89 a police o~ficer (P.w.3), at· a pla.oe near K':l.ngoird.ra., · stopped a taxi which was on Dar es Salaam -:- Morogoro Road, heading for· Morogoro t ~ The taxi was loaded w'i th two sponge ma.tresses. Tho 41m accused, now the 2nd appellant, was also in this taici. Re was found to be the owner of the two sponge ma.tresses loaded on the taxi. P.w.3 au&:- peoted the said ma.tresses to have boon unlawfully obtained. He required the 4th a.caused a.n.d the taxi driver to go and show him uhere they obtain.ad -~-~./2 . ' • • ' ,, , --~.• , , , . : ••. , . •, /. ..I, •., . • 1 .• \ \ '\i:aa 88P1G :f'»<lll. 'l!b.9 4ill oc~ ;wok ibe-, aaid -P>JJ 04 ,.of:fi,o.g to ~ Jacu.so ot t h e ~ s t ~ '~, wif~~O'.f ffl ~~~~t.t4td. 1i.hai w h~ sold the ~ two the 4th eo~ at a mo& of •shs~/•,. ~~ 1st aocusod 1s wife ~ to ~ "'1.0, ~j~ dfM>O•.(~N ~ ~ &0:t'e ma~ Nases and ~ BOo4a in tbeir houso brought iberoin. by the 2nd.-~ ~ . ' eooUNd.. At that time the 'krt a.ooused was awq, Bi.it he later came and i'ound r: Ptff,3 sU1l, ~ At that timo also ~-2.Dd. end~ QDOWJed came a:round. They admitted before PW3 that they a.t'O tha onos who had brought the aponae . .ut»oue, *othw goods to tho homo of 1st acousod.. ~··in their evidence in ~ ~ : g ; j .:,, ·tho ~ Md. 32'C1. aocuae.d. ~om.ad to h~ takon 1 aucb ,ootte to the b.amG ~ che. ~ .aocuaodt ~ " goo4e 1 that ie the. aJ)Ol1Co

ma.tre,sos and other «ood.s tO\md in the bowie of fat acousod.. 8Z1d. tha,t -one found, With tho 4th aocu.se4 in a taxi, ,rc-o lake .&,Q111U@d. to bo the ones ·stol,on from the Wa«on montioneci a'bove. '1'110 !'l.•11a,.~ )114..~.-an4..'6 _....,_ • ., a.=••t.ed. ·-G cber,e4 wjth h ~ clo1en these S"OGcl.s• % ?Vok:Lng tho 'doctrine ot ;ooent poollOuion, the * Vial Jlla(d.at:rato f'.ound tho cw«o oata.bl~ebed ~ t ~ -4 4-bb aoousocl. .la.tet.mA- the .c,ul • -4 -oamrla:l'.Qd ti.. u ~ Itc, ao(U-1.tW ti 2nd, .Jd and 5th MQl&sedt / I · Boforo this court and in ti» JMI.Vl~dum of e,ppoal :f:t -... ~eel on , 'behalf of both appellants that t h e ~ of ;econt poseeaaion waa tr.rGDBl.J' ,-w~~ Vial ug1eueto,.·~e 1,ae ~d01104 1)e:f'or4 him that tho goods found in the home ot tho tat awellal'lt Ctat accused) "ere ~OUGht there by the 2nd and 3rd accused. Further it was argued on behalf of the 2nd appollant {4th accused) that. tho trial Magistrate misdirec.,"ed himself b,- no.t beli.e'l"'illg that the 4th accused obtainod tho tlro sponge ma.troases. From tho homo flt 1at acoused.. I have read the record of the lowe~ court and find:tha.t on tho OVidenoe availa.ble the trial mag:i.strF.1.te properly .invoked the doctrine of recent possession against the 1st appellant (1st accused) in 0onv.t.oti12J him of tho ohai-ge of steal.ing goods in transit o/ss 269(0) and 26,5 of the--Pena.l Code. l'or the

goods which were identified to have recently been stolen from a wagon were found in his home. llis as:plana.tion that the goods belonged to the 2nd and 3rd acoused was properly rejeoted by the trial magiatra.te as the 2nd and 3rd accused themse1ves denied, in their defence, to hf.Ve brought those goods to the home of 1st accused. The argumont by the counsel for the 1st appellant thai; there was not proper ictentifioation ot tho goods to be tho ones which were stolen oa.mot hold wa1ier, since the 1st accused himself did not claim ownership of tho goods. lJa,:1 claimed the goods to bo his then the prosecution would havo -3 been put to strict proof of the identity of the goods. l3u.t as the reoonl shows the 1st accused himself stated tlta.t the goods were brought to his home by other persons. These good.a were new and they are the kind of the goods which were stolen from t.b.e Wagon mentioned above. The goods tallied with the stolen property. Those oould· not be better identification than this• Be it a.a it is,~ find that the trial Magistrate properly invoked the doctrine of recent possession-in convicting the 1st accused with the present oharB'e• Henoe, therefore, I dismiss the appeal against conv.i.ction. As rega.rd~s sentence, I find that the 5 yea.rs imprisonment is th.a Minimum Sentence the trial coittt could aw-a.rd unless the Minimum Sentence Aot, 1972, since the goods

while in transit were the property of Taz:za.n:ia. Ra.ilwa¥s Corporation, which is a specified authority. This being the Minimum ,Sentenoe, under the Act, this court cannot interfere with it. The appeal on sentence is also, therefore, dismissect. However, with regard to the 2nd appellant, that is the 4th accused, I find tha.t his appeal has merits,. For there is evidence that he bought tho two sponge matresses• he was found with from the wife of the 1st accused, . and the wife of the 1st accused ad.mi tted this in her evidence. Thi a moans that the 4th accused was an innocent buyer. And there is no evidence that he bought them knowing the some to be stolen properly. In the absence of this evidence the 4th accused cannot be faulted in possessing the property he was found with. For this reason, I agree with the defence counsel -'Ghat the trial m~<Yistrate wrongly invoked the doctrine of recent possession against the 4th accused. Hence, therefore, his appeal is allow ea.. The conviction against him is quashed and the sentenoe imposed upon him is hereby set aside. For the avoidance of doubt, it is hereby ordered tha·t the 2nd appellant, .that is, the 4th accused is to be set free unless other- wise lallfully held up. 9,ffr,~~~ I,ti• MAGESA (HlM( EKTENDED JURISDICTION) . 9/2/90