Lucy White vs Republic (Criminal Appeal No. 70 of 1999) [2000] TZHC 252 (7 August 2000)

IN T}fi ThiICE' COURT OF TANZANIA ).brcJ f'i ; J AT MBEYA 1 CRI.LU'PEAL io 70 OF 1999 • . (Foi RUNGfl DISTRICT COURT CRIiNAL CASE NTJ1'LBE 234 OF 1997) T TTCCV 17TJT mt' .' )T1 JJU\JJ VV,LL.L.LJo 0 44 4 46 •4 46 044 4 4 406 4 44 40 VERSUS THE REPUBLICOOOOOOOOO.00,OOO. 0 0.00.00.HES?OTDENT MACKAAJO The appellant was convited of receiving sto1n property c/s 311 (1) of the Penal Code1 The salient, facts may be summarized as follows. On the, ni.ght of 16th/17th October, 1997, at about 12.00 midnight one jnyelwisye Ndola (Pw1) was on duty guarding a building in which '38 bags of ceffee and other pieces of property, were stored 0 Suddenly the place was invaded and the witness sooner realized th' those people were armed because he heard the loud burst of a firearm. His assailants had a spot—light and he had his own. Realizing the grave danger facing him he ran to report to the village Chairman of that area. PW1 says that they were many bandits, not less than ten 0 Vlrhe.n he returned to his guard post with assistance he found the padlock broken, the building had been broken into and it had been ransacked0 A brief se.rcn. in the godown established that 38 bags of coffee, each weighing 50 kg had been stolen. P5oaes1-iabeko (PVJ2) who was guarding a nearby odown tells the same story. On his part Dsto '' illism (V3) was a clerk ..yho bought coffee,for Li/s DormanCo, Ltd. and staffed it,in bags which bore

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the company's halimork, He kept the coffee in the godown which he locked everyday bf ore he knocked off-.duty. On this particular night he heard an alarm being raised, which was not usual. When he arrived at the scone of crime he found many people were already there and the godown had been swept clean. On the following day he and Elias Mwekelingenya (Pw4) went to report the matter to the Police. be It seems to,'the case that somehow the driver who drove the motor vehicle on which the stolen coffee was loaded was identified. On being traced he led PW3 and PW4 to where the coffee had been off-loaded, at a house belonging to the appellant who was also found there. She told ?W3, PW4 and the Police Officers who had joined the search that the coffee hai. been sent to her by one Kabale the fifth accaed; the apellent featured as the third accused. Five bags v'ith EL/S Dorman Co Ltd. 's label were found there. According to Lswile Nguku (P75) several people approached his employer, SIDO, looking for a truck they wanted to hire so that they collect their tithcr at IJyolo. The first approach was made on 14.10.97 but no deal was striick They finally got the lorry on 1610,97 Having driven towards Uyole the hirers changed their mind and decided to proceed to Ikuti Village insteed It seems that the lorry had by then been hijacked because the driver and the turn-boy ware now working under the instructions of their

• D.ma - customers who were noticed smoking bhang. At about 9.Og)The driver and the turn-boy were bold to wait until midnigh -t when they were to drive to the godown belonging to LI/S Dorman Co. Icl to load coffee. Soon thereafter P75 saw the gun that was being carried by their customers. They were ordered to drive to LI/S Dorman Co. Ltd.'s godou 0n arrived the driver was ordered to put out the lights. The bandits fired in the air several times thereby . t .

• •' - -. scaring the watchmen andvillagers and finally loded,.thO- ,offee on the lorry. Thereafter they drove to a house andwhen they kno cke d at the do 0 r" ono viomain re a onde d. and got ou U of the house. The coffee was offIoced mechanically, like sand, withthe use of hydraulic systems. The coffee was then taken inside the house an, according to: PW5 7 the woman participated to carry the bags of coffee into the house. After storing, the coffee one of the bandits was driven near a school where a customer was probably waiting. They found him, one Kabale who also featured at the trial charged with receiving stolen prpperty.. ...Vhcn PW5. and his driver 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 hirig the motor vehicle, Hassan Luvanda (pW6) gave testimony which is essentially a replica of what PW5 narrated:. There is, however, some variation in that P 1 ,116 does not say that he saw tho eppcllaiit carrying coffee in the house, He also heard the thieves say: "Mwenyewe hayup.o', which implies that the consignee was coma one other than the a - pe llant, and that he was not around then, - The appellat doios that she roceived stolen property. According to her she 'was at home on the night of 17th October, 1997, when some people imockad at the door. When she: opened they told her that theyhad brought Kabale's coffee, It ppearsthat'Kbale lived in that house bacause the coffee was stored in his room. She was, t h,e,refçre, surprised.whcn on 18th October,. 1997 the Police informed her that thoy were Interested in her affairs. She led them to Kabale who said the coffee h.d:just,been sent to,h'im and had sold it to one I',ioshi. In his defence Francis Kabalo (DW4) swore that he was an agent buying coffee for n/s. '.Dorman Co. Ltd. He bough -b poffee fre • . ' • • 0/4

.4... 4 peasants and from middAmenj He admitted to have sold coffee to Moshi wbi..ch was sent to him after he had run out of funds He also adxxdtted that he had informed Lucy ?thite that some :peole were going to bring coffee to him; A hi. a residence, that is. It is on this evidence that the appellant was convicted and wns awarded two years injail 6 Hence this appeal. Mr i Fbise, learned counel for the appellant has filed four gounds of ppeal nzmely that- the learned trial magistrate erredin convicting the appellant on a bharge of receiving stolen propertwiier1 the prosecution failed to prove the ingredients of that ctithe; that there is nothing on rèôordto show that the appellant knew that the bags bf coffee brouht to her house in the room rented to Francis I'able was stolen property,. that the leaz'n.ed trial magistrate erred in a;lying .ouble standards in the assessment of evidence before him; anc. that the sentence is excessive in the circumstances of this case The,appeal was argued by way of written mubmissions. Before I consider arguments by iesried counsel I will look at the law and see what must be proved in order to secure a conviction under S. of the Penal Code. •, The law provides thua:- • t1so 311(1). Any person who receives or retains any chattel ok. or other property whatsoever, knowing or having reason t9 believe the sem9 to have been feloneously stolen, taken, extorted, obtaine.d or disposed of, is guIlty of a felbny..'. The 3aw being as it is, the offence will be proved if the accused - (1) has received any chattel or other property; 2) knowing or having rQason;

(3.) to believe that that property; (4) has been, feloneously stolen, taken extorted, etc. These are very ' wide provisions As they clearly show, 'they apply to a big variety of circumstances that include oods obtained by deception or blackmail6 However wide the iJrovisios may be, po'o± of all the elements that constitute the offence must be proved, and this must be 'done beyond any reasonable doubt. Mr 0 Ivibise, learned counsel for the appellant submits, in essence, that the elements of the crime were not proved, because having hijaOked the lorry the bandits drove straight to the appellantvs house 6 She opened the door in response to their having knocked it 0 As Mr 0 Mbise goes on to argue, 'correctly, inmy view, it is in the evidence of the prosecution that one of the bandits said yeye mwenyewe hayupo". In addition, there is also ample evidence tht the ; 1 mwenyavve hayupoll was Francis Kabale, the fourth occused who admitted to have told the appella that he was expecting a consignment of coffee'. May be there was logic in the trial magistrate's observation' that the appellan had reason to believe that the coffee was stolen because it was off—loaded at night. But that does not absolve the prosecution of the onus to prove, and to prove beyond any reasonable doubt, that the appellant had guilty knowledge If we were to take the time at which the coffee was received to be sufficiently incriminating, how could the trial court acquit Francis Kabale, 4th accused, when the coffee the subject of these roceedings was consigned to him according to PW5? Indeed, PW6 has this to says .. Just after leave one of them was rurnüng after us Saying Kabale (5th accused) has come. The said Kabale said he had no monet to buy the Leoffee but he •, - /

£ côiild look one person to buy it (quoted rbstim) 0 And qu i te in conformity with this evidence the Said Francis Kabale (PW4) said this during cross—examination by Mr., Moise (at page .4.0 of the typed proceedings) - I told. Lucy that Ôoffee wOuld be brought to me Because he was a coffee buying agent how could such a statement pirb the appellant on her guaxd, and especially when DW4 was her tenant? It is by reason of the above cirdumstances that I have been persuaded by the reasom Mr. Nangela, learned State Attorney, gave why the Republic has declined to support the conviction,. I totally agree with ihem that the prosecution failed to prove their case Upon the foregoing considerations and observations the appeal is allowed. Conviction is quashed.; sentence and orders that were made against her are quashed.0 . Be lie re d J M. AA TA . . JUDGE 1/ 7//2000 Mr. Mbise- Advocate; For Appellant Mr 0 Boniface, SA.; For D,P,P.