Lucy White vs Republic (Criminal Appeal No. 70 of 1999) [2000] TZHC 420 (7 August 2000)

IN I-I:ttt:r-r .COORT O.P AT MBEY~ CI-UI:7INA,L .Ar.PEAL NO. 70 Oli' 1999 (FROTul RUNG 7E DI STR± CT couwr CRIMIN.AL CJ3E NUl'ffiER 234 OF 1997) iJEHSUS THE REPTJBLICo., o o o o coo• o o o • o o e o o •a• 0 G oRES:?01~DEl'fT JUDGL1lENT. ·' The appellant was convicted of receiving stolen property c/s 311 (1) of the ]?enal Code. The salient fact;s may be su.r.1.118.rizcd as follows. On the night of 16th/17th October, 1997, at about 12.00 midnieht one Anyelwisye Ndola (PWl) was· on t1.i.tty guarding a building in which 38 bags of ccffee and other pis ce s of r,ropert;r vvere stored,. Sudd0nly the place was invaded u1d the.witness srJoner realized that those people were armed because he heard the loud burst of ,:··, firearm. His assailants had a spot-light and he had his own.· Realizing the grave danger facin 0 him he - ran to report to the· village Chairman of that area. PWl says the,t they vvero many '1:1ana.i ts 9 not less than ten. \Tnen he returned to his guard 1 Jost wi. th assistance he found the padlock broken, the building had been broken into and it h::::id been ransacked~· 1\ bric f search in the godown established thG,ti 38 bags of coffee, each weiehing 50 kg, had been stolen. lfoses IJabeko (P'72) w.b.o was guardine a nearby godown tells the srnne story., On his part De sto W illiam' (?W3 l was a clerk who bought coffee for M/S Dormo,n Co. · Ltd.· and st:::1ffed it •f•· .• . '"k'- ~: in Lees which bore .•. /2

.2 he company's hallmF;:c·J:. He kept the coffee in thG goclovm which he locked everyday bcfo1:e he knocked off-duty. On -chis particular night he ,heard an nlarm being raised., vvhich was not us·unl. When he arrived at the sco:ao of crime he fom1.d many peoJJ.c ware already there and the godovvn had h::;en swept clec:n., On the following day . . he and Elias MwQJGlins:mya (PW4) went to re:i;iort th0 lT!S::.Itter to the Police·. It seems to/tha c;:;:;:;e that somehow the driver v'iho drove the motor vehi.cle on wl1.i ch the stolen coffee was loaded 1.vE-:,s identif.ied. On being traced he led PW3 and PW4 to wht1re the coffee had been off-loaded, at a house belonging to the appellant who w1;.,s also found there. She told PW3, PW4 and the :Police Offi cors who had joined the search that the coffee had been sent to her by one , Kubale, the fifth acm1sea., the appellc:,,nt featured as the third accused. Five bags w·i th M/S Dorman. Go Ltd.' s label Yvoro found there• .According to /;swile Nguku (PW5) ssveral people s.pproached his employer? SID0 1 looking for a truck they wanted to hire so that they collect their tLnbor at Uyole., The first D])proach was made on 14al0.97 but no !.lec,J_ was struck,, ThGv finally cot the lorry on 1610 .. 97. Having clriven towards U;;rolc the hirers changed their · mind and decided to procG8d to Ikuti Village insteGcl; It seems that the lorry had by -then been hijDdrnd becauso tho driver and the turn-boy were now vmrking under the instructions of their ·p.m. customers who were n.oticed smokin(s bhang. At about 9.00 jthe driver and the turn-boy 1.rv2ro told to wait u11til midnight wh011. thoy were to drive to the 6 odovm belonging to LVS Dorman Co. Lta_., to load coffee. Soon there:1ft0r PW5 saw the gun that was being carried ,·by their customers. They were ordered to drive to r;/s Dorman Co. '"Ltd. 's godo~ On arrived tho driver was ordered to put out the lights. The bandits fired in the air sover::;;l times tl:.oreby_ II O ./3

3 sccring the watchmen 2.:nd villagers and finally loaded the e;::>ffe., on the lorry. Thereaftor they' droVEJ to a house end when thy • kn'ocked at the door -ono vrnman responded and got out of the house. The· coffee was offlon:;ed mechanice.lly 1 likr:! sand, with the use of hydraulic systemso Th0. coffee WE1S thGn taken inside the house and, according to ,.,PW5, the woman par ti cipe. te d to carry the bags of coffee into the ,,h9us0 ~ After storing the coff,ee one of tho bandits V./GS dri von near .• 2 school where a cus-o,11or was probcbl,)' waiting. They found him, one Kabale who nlso :fee.ture?-_.at the trial chs.rged with rE,ceiving. stolen lJroperty •. -Wl1.cn PW5 and his dx·iver declared their intention. to leave the· bandits put PW5 under seige so that they should not report the matter to the Police. Only the driver was released, without any payment for hiril8g the motor vehicle. Hassan Luvanda (PW6) gave esti-~~OJ-?.Y which is esse;.1.tially a replic3 ·of vvhat PW5 narrated. There is, ho•J'iOver, somo Vc3.riation in th:it PW6 does not say that he s&.w tho G]))G lle.nt carr,yini coffee in the hous.e. He also heard the thi0vos scly: ~ 1 1iw6n;y-cwo hayup_o;', which implies that ,.. ..... ·:·.·: ' . the consignee was somo one other th2,n tho 27?:pe ll3nt; ::nd that he was not around then •, The appellant dor1ios that she received stolen pro:Jcrty • • According to her she \Vt:1s at home on the night of 17th October, 1997, when some people knocked at the door. When she openQd they told her that they had brought Kabale ~ s coffee. It ap:i)ears that Kabale lived in that house lxcause tho, coffee wss stored in his room. She was 9 t· herefore, su..rprised when on 18th October~. 1997 the p·oli0r:: f . . • informed her. th-at the:y vvere interested in her affairs. She led • f them to Kabale who sc;id the coffee h2.d just been sent to him and had sold.•i:t. :to one Ivioshi. . ~· ' •· In his defence :!:i'rancis Kabale (DW4) swore the.t he was an aeent buying coffee for i,1/S Dorman C<;> •. Ltd. He bou 6 ht coffee fr-0!!'

4 ' . - . peasants and from :midcllGmsn.. He ad.mi tte d to have sold coffee to f.:losh,i which was sent to him after he hacl run out of fnndso He also admi ttd that he h_:,cl _;_nformed Lucy Wh.i te that some /)Go-;;ile were going to bring coffee to him, at his residence 1 th1=:t is.., It is on this evidence that the a:9pellant we,s convicted and vr.,;,s avrarded two yeas injail Hence this appeijl. Ivlrl ~Dbise, le,~r11ed counsel for the E,ppellant hc.s filed four gounds.of· appeal, n::.mely, that:- 1 •. · the learned t:i.ial magistrate erred in convicting -.'.the ap:pe llrnt on a charge of receiving stolen 2. , propert;y:vvhen the prosecution failed to pro·ve the ingredients of that ctime; j that there is nothing dn recotdlto !3how that ·the appellant knew that the bags of coffee brought to her house in the room rented to Francis Ka1'.k 1 ,J.e was stolen property; 3. that the lee.rned trial magistrate erred in ff,'.)plying double st::::,.i1.C:.:::.rds in the assessment r,f evidence be fore hirn; and 4e that the sentence is excessive in the circu.mstc,nce s of this C&Se • .The a1Jpeal was ar 0u.ed by way of written ubmissions. Bef-ore I · consider arguments by learned counsel I will look at the law and see what must be proved in order to secure a conviction under s. 311( 1) of the Penal Cocle. The law provide a .. thus.:- 0 s. 311(,J.). An::,r 3 y2rson who receives or retains :.:;.:ny chattel_ •• ., or other property whatsoever, knowin,s or having rer3,son tp believe the se.:m to have been feloneously stolen, taken, extorted, obtained or disposed of, is guilty of a felony ••• u,. The law being as it is, the offence will be pro-ved if the accused - (1) has received any chattel or other property;: l 2) knowing or havi;1-g reason;

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( 3) · to believe that that property; {4) .has been, fe lone ously .. stoien 1 takeni extorted, e tco These are very wide. provisions., As they clearly show, they apply to a big varie t:!r of circumstances that include c;oods obtained by deception or blackmail., However wide the provisions may be, proof of. t:Ll the e le men ts that constitute the offence must be proved, and this must ·be done beyond any reasonable doubt. Mr. l\lfbise, learned. COW?:_eJ,. for the appellant subu.ts, in essence, that the elements of the crime were not proved because having hijacked the lorry the bandits drove straight to the ap1Jellant's house. She opened the door in response to their having knocked it • .As Mr. Mbise goes nn to argue, correctly, in my view, it is in the evidence of the prosecution that one of the bandits said ,Tye ye mwenyewe hayupot~. In addition, there is

also ample evidence tll2.i, the ·•mwenyewe hayupon was Francis Kabale, the fourth accused who ad.nu ttcd to have told the appella:nJ that he was expecting a consignment of coffee. I/iay be the.re .. was. logic in the tri2.l m2,gistrate's observation thc:.t the -appellanJ had reason to believe that the coffee was stolen be co.use it was .. · off-loaded at nighto But that does not absolve the prosecution·· of the onus to prove,· and to . prove beyond any reasonaqle doubt 1 that the appellant had. guilty knowledge.. If we were to. take the time at which the coffee was received to be sufficiently incriminating,·how·cGul~ th$ trial court acquit Francis Kabale, 4th accused, when the coffee the subject of these proceedings was consigned to him according to PW5? Indeed, PW6 has this to say: 11 ••• Just after leave one of them was running after us. Saying Kab2,le ( 5th accused) has come. The said Kabale said he had no money to buy the .:. coffee but he ,/'

coul~ look ono person to buy it verbutim)., . " . H (quoted And, quite in conforrni ty with this evidence the said Francis Kabale (PW4) said this during cross-examination by 1 1 :lr., rroise (at page 40 of the typed. proceedings) - told Lucy that coffee would be brought t6 me Be cau_se he was a coffee buying agent how could such a statement ..... ·- put the appellant on her guard~ and - especially when rnv4 was her tenant? Tt is by rec.son of the above circumstances the.t I have been persuaded by the reasonB Mro Nan:_'.sela, learned State Attorney, gave why the Republic h;:;,s declined to support the conviction. I · totally agree with them~ that the prosecution failed to prove ·their case"' Upo:::-:L the foregoing considerations and observations the appeal i's allowed. Conviction is quashed 1 sentence 3nd orders that were made 8gainst her are quashed,. Mr 0 Bonifsce, S.A .. : •~ t•tr,_•:.,:1•\ .. -V ~~,i; •' ~- < , " .,. For .Appellant JUDGE 7/.3/2000