Republic vs Iddi Salun (High Court Criminal Appeal No. 11 of 1977) [1977] TZHC 521 (30 December 1977)

AT DAR ES SALJN APPBLLLTE JTJRISDICTION HIGH COURT CRIMINAL •APIEJL NO. 11/77 ORIGINAL CRIMINAL CASE NO. 491/1976 OP THE DISTRICT COURT OF DAR ES WLW'I DISTRICT AT • KISUTU Before: K. A. Kt.SSIM - DISTRICT MAGISTRATE IDDI • ' APPELL/NT ALUM ''' '''!''''''''' (Originaj Accused) Versus S THE REPUBLIC !'''''' RESPONDENT (Ori.ginalProse.cutor) GEARGB: Stealing goods in traMit e/s 269 (c) and 265 of the Pexal Code Cap. 16 Vol. I of the Ii.ws, TJDG.EMEN T KINIIA,J-Tho Appellant in this case was convicted o stealig goods in transit e/s 269 (c) and .265 of the Penal Code and sentenced to four years impriaonit. The judgenont of the District Court is reproduced below for easy reference, JUDGEMENT.

• The two accused ISSA KfISA AND IDDI SALUN stand.eharged with stealing goods in transit c/s 269 (c) and 265 of the Penal Code, It is established that both accueds are employed as drives by the East African Posts Telecommunications Corpora- tion and statIxiod in Dar es Salaam. Accused ISA is posted to the Project and Programming section of the Corporation, and accused 2 IDD to the POSTS Godown at PUGU ROAD, Accused 2 IDDI works under the direct suervision of PETER GEORGE KSALIKA. (P4.3) the Priuoipal &pplies Officer. Accused 2 IDDI frequently drives the Corporations .tricks to the Port In the course of his duties as adriver, At about 8.45 on the eviing of 8.th MARCH last, the two accuseds were appreherded at the PORT in the Corporations VW GOMBI van registration No. TZ 26950. 1

They were apprehended by Police Constable IL (WI) as they had with them in the van two wooden cases containing textile piece goods worth over sixteen thousand shillings and both could; give no satisfactory explanation of thefr possessions The Vehicle was inseStdd by the court and admitted as exhibit I. The two wooden casOs were likewise examined and admitted as ex1bit 2 colleCtive.. The cases bear the following raarkes:- x (GrLEN.NJ) MIMEX GARIVIENTS 8 33/CIRK NDOIdL ZANBIA VIA DLR ES SAIN C/NO, 1-3 NADE IN JAPAN.. According to B. A. a.3.was and Harbours Declaration aid disposal Order No4288, (&h,4), these two cases were part of a oonsignmon of three eases from IMBE JAPAN and were discharged at the Port of DLR ES SALIN from the s.,s. "ST Levis Nru.." The third case was in fact fo nd in shed No. 5 by P. X. 4 •IDI, a claims Officer of the E., A. Cargo Handling Services, The ownership of the two eases 4n question therefore,, in my view is beyond disputa. Now I propose to consider the contention that the two accuseds jointly committed the theft in p'ursvance of an agreeent.bctween them.. It is important at tie oatsot to point at the distinction between them and that is IDDI accused 2 Was the drjer of the van and therefore in full control of the vehicle and that ISA., the first accttsed washis passenger. There is no doubt that the vehicle was requisitioned by the supplies Off icer IJSAflK! (PW.3) at 3.50 that afternoon, and that IDI aecused 2 left him at UPANGA twenty minutes later, KA.SALIKA instricted IDI to return the vehicle to the corporations stonre at PtJGU ROADS. IDI did not do so a, he affirmed, that on his way to the store, he came across IW accused I who requested him to collect the two cases from the Port ofl his behalf. ;IDI added that ISA'S vehicle was at the time out of order and that he himself saw it, and that he believed the pacIges was requested to collect belonged to the Corporation, their employer. In his defence, ISA accused ¶ii denied alaost all that IDI had claimed • He denied in particular to havO mentioned anything in connection with the two cases to .IDI., but to have simply required a lift home as he was indisposed for the rough seromnie of a bas term.inal', In cons idering the position of the two men I find as a fact that Idi was the driver of the veh1e and that he was at the relevant time in full control of it. I do not believe his argument that bO wswi1JJg and ready to go out of his way after working hours to ollect for the Corporation the two cases from the port, thereby oausing him to remain on duty tntil 8.30 p.m. . a • e • . 31

ifforeover IDI fully well 1ew that his instructions were to deliver the can to the store inediatoly. I find as a fact, that the accuseds were only persons in the can as constable I. had affirmed and the three men mehtioned by the two accuseds are fIctitioudV The defence of accused ISA that he was only given a lift in the vehicle may be true, as it is not proved to be untrue. I therefore give him the nebefit of doubt and I acquit lthn of the charge I find, the evidence agajnst accused IDI proves thecase agajnst him beyond the reasonable doubt. His defence 1 have no doubt is untrue. I convjt accused IDI as chargedo K. A. K.SIM - D.M. 18/10/76 After reading the record and considering the appe1ant's ixbmissions before this court I am satisfied that there was sufficient wideicø before the lower court which justlfiod the Appellant's conviction. I also dont conider the sentence to be excosive taking into eonsideratin that the value of the property involved in this offence was wellover Shs.16,800/ The appeal is consequently dimissein its entfrety. . L . N. PS - 1IMICHA JUDGE, 22/12/77 Delivered in open court this 30th Day of Decoraber,1977. (N. P . -KflICH) JUDGE 30/1 2/77 a