Joseph Focus &Another vs Republic (Criminal Appeal No. 33 of 2013) [2014] TZCA 2176 (3 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: OTHMAN. C.J.. KILEO. 3.A. AND LUANDA. J.A.T CRIMINAL APPEAL NO 334 OF 2013

1. JOSEPHAT FOCUS
2. JOSEPH SIMON J ... ... AP VERSUS THE REPUBLIC............................................................................................... ... ......... (Appeal from the judgment of the High Court of Tanzania at Bukoba) (Kibella, 3.^ dated the 14th Day of 3une, 2012 in Criminal Appeal No. 35/2011 and 38/2011 JUDGMENT OF THE COURT 27th February & 3r d March, 2014 LUANDA. 3. A.: The above named appellants were charged in the District Court of Muleba sitting at Muleba with five counts of armed robbery. The record shows that the trial District Court found them guilty as charged and passed an omnibus sentence of 30 years imprisonment each without first entering

conviction. That procedure adopted by the trial District Court goes contrary to section 235 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 which requires a magistrate to convict before passing sentence. However, we do not wish to pursue further the issue of conviction at this juncture for reasons we are going to give. In convicting the appellants, the trial District Court relied on the evidence of visual identification and the doctrine of recent possession. The offences were committed during night time. As to visual identification the trial District Court was satisfied that the conditions were favourable and conducive for correct identification. As regards the doctrine of recent possession, the trial court was satisfied that the appellants were found with possession of a number of articles including the engine boat. The appellants were aggrieved, they unsuccessfully appealed to the High Court. As regards the question of identification, the High Court found out that the condition were not favourable for correct identification. Turning to the doctrine of recent possession, the High Court found out that there was no cogent proof in respect of other properties, except engine boat, that the

properties possessed by the appellants were stolen during the commission of the offences charged. The High Court found out that the engine boat was the one stolen after the owner had produced in court a receipt of purchase. The appellants are still aggrieved. They have come to this.Court on second appeal challenging the finding of the High Court that they were not found with the engine boat the subject of the charge In this appeal, the appellants were unrepresented and so they fended for themselves. The respondent/Republic was represented by Ms. Jacqueline Mrema learned Senior State Attorney. Ms. Mrema supported the appeal and wished to point out a number of irregularities which we find not necessary for disposal of the appeal. As regards the doctrine of recent possession she said it was not properly invoked. Clarifying she said, the engine boat alleged to have been stolen was not tendered in court. What was tendered in court was a receipt of purchase which was in the name of William whom Deus Muhija (PW7) claimed was his partner in business. She said the element of possession which is a prerequisite in invoking the doctrine of recent possession is not

there. Since that is the only evidence connecting the appellants with the offence, she prayed that the appeal be allowed. We entirely agree with Ms. Mrema. First, we wish to state what the doctrine of recent possession is all about. The doctrine runs as follows: if a person is found in possession of recently stolen, property in absence of any explanation to show how he came about to possess it, he is taken to have been either the actual thief or a guilty receiver. The word possess, has been defined by the Oxford, Advanced Learner's Dictionary Sixth Edition thus "the state of having or owning". In our case there is* no evidence that the appellants were found in possession of the engine boat. The receipt of purchase tendered is not evidence of possession of the engine boat alleged to have been stolen. The prosecution must prove that the appellants were in possession' of the engine boat the property of the complainant. Since the appellants were not found in possession of the said engine boat, the doctrine does not apply.

Earlier on, we have shown that the trial District Court did not enter conviction as mandated by S. 235(1) of the CPA. Failure to enter conviction is an irregularity. Notwithstanding such failure, nevertheless the evidence on record does not support the charge at all. In the upshot we allow the appeal, quash the conviction and set aside the sentence of 30 years meted on the appellants. The appellants are to be released from prison immediately unless they are prevented by other lawful cause. . Order accordingly. DATED at BUKOBA this 28th day of February, 2014. M. C. OTHMAN CHIEF JUSTICE E. A. KILEO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL