Obadia Ngosipe vs The Republic (DC Criminal Appeal No. 11 of 1997) [1999] TZHC 50 (9 August 1999)

IN 'i'HB HIGH COUB'f OF TANZANIA AT MBEYA DC CRUHN/-1.1 APPEAL NOo 11 OF 1997 ( Originating from :aungwe District Court at Tukuyu in Criminal Case No. 157 of 1995 · Before: D.D. Ko1,1ba - District Magistrate) : OBADIA NGOBIP1~ Af'PELLANT Versus JUDGMENT '17he appella..vi.t, Obadia Ngosipe, and one :Peter iameck were jointly arraigned before the district court 'of I<ungwe district at 'l'ukuyu as the first and secehd accused'persoi1S respectively, on an indictment 'which contained two counts~ . . . First count~ House breaking,

• . ' . .. ,;1~"1-7;.;fi~; . ,: ,~~~'!'the hnal Code. contrary -o- section 294(1) &-t!!i~~~.. : l Second count: •-- __ .... ............ -· Stealing, . contrary to section 265 of the Penal Code. The second accused was found to have no1case to answer and acquitted ,under section 230 of the Criillinal J?rocedure Ji.ct 1985. 'I'he appellant, however, was convicted of both counts as charged and sentenced to eight years impriso1uent and twelve months imprisonment res1)ectively, \shich were ordered to run concurrently~( He was aggrieved by .the convictions and sentence, hence this appeal which was resisted by Mr. Mulokozi, learned 0tate rlttorney, in the presence of the appellant who abided by the contents of his memorandum of appealo I would, with respect, agree with the learned State Attorney.that this appeal is devoid of merito On 18a11.95 the dwelling house of Rosemary Mbonde ( Pi/1 ) was broken into 'by unknown persons who made 3:wa,y w·~ th her as.sortme11t of properties valued at shs.299 ,ooo;~~ in all. .i-.mong the stolen properties were her travelling handbag, her electric, tr.on, .and her .photogr/3,ph: album wt1ich contained her photographs and those of her children .. On 5.12,.95 the police searched the house of the appellant in his presence and that 'of their cell leader, Hasaro .f<:~tanlba {1-' 1 :JZ),: called to witness the se2.rch. In the house the •o•oaooooo&oooooo• . /2

2 handbag 1 the electric iron and the photograph .bum were fpundo .·. 'I'hey: .1ere tendered in court and collectively marked Tut P10 1'hese items were duly identified by PW1 to be her stolen propertyo 'I'hey bore her special identification marks which she pointed out in court. 'rhe photogra:ph album spoke' for itself o 'lhe appellant in his defence did not dispute that the items (Ext P1) were rud at his house, but claimed, for lack of anything more convindi1g to ·say,· tbaf :they were not identified by H\11. i'he trial court convicted the appellant . on t):1e: doctrine of recent possession: On the evidence and in the cir.cumst2s1ces. the identification evid'en:c~ of PW1 that Ext P1 was her stolen pr_operty. could not b~ iaultep.. :· 'J.'he unexpla:i:ne<i . -! . i,. possession of stolen property shortly after the theft raises, in law;a presu.;. mption that the person so found in :possession stole the goods. ~ This: presurriptioh· varies in strength according .to the proximity in tiri1e of the poslession to the theft - .SEE B·Y? .. I.e.,.go-/.o.J.t1E!l. (1937) 4 :8ACA 25. In the circumstances of· this case I am satisfied that the doctrine of recent possession was properly invoked and applied by the.trtal court and that the appellant was indeed the culprit. 'l'he sentence handed down was not only lawful but fair and reasonable as well. 1 accordingly dismiss this a.ppeal in its totality. AT i''!BEYA. --·-"'·--•-·.- . 9 August 1999e f-"::~~:;.'j~~~\ -, .:: ! F·or .itppellant: Presei1t in _persono For :Republic Mro Mulokqzi; S.A. BoPo MOSHI JUDG,