Obadia Ngosipe vs Republic (DC Criminal Appeal No. 11 of 1997) [1999] TZHC 410 (9 August 1999)

IN 'l'H£ HIGH com:u ·op TANZANIA AT MBE".'lA DC CRIMINAL APPEAL NO. 11 OF 1997 (Originating. from i{ungwe District Court· at Tukuyu in Criminal Case No. 157 of 1995 Before: · D.-D. Koinba .. - District Magistrate) OBADIA NGOSI¥E •" •••• ; ••••••• , , •• , • • Af'PfiliLANT Versus THE R:B.;PUBLIC RBSPONDENT JUDGMENT 'The appella,.'1t, Obadia Ngosipe, and one Peter Lame ck were jointly arraigned t' .'. before the district court of Iiungwe district at ·rulmyu as the first and sece.nd accus.ed persons respe·ctively, on an indictment which contained two counts: First count: House breaking, contrary to section 294(1) of the 1-enal Code. Sec:ond ·count:· 3teaiing, contrary to section 265 of the ,s........,... __ ..,,·,-- .. - Penal Code. The second accused was found to have no case to answer and acquitted under section 230 of the Criminal Procedure Act 1985. 'l'he a:)pellant, however, was convicted of both counts as charged and sentened to eight year imprisonment and· twelve months imprisonment respectively, 'which were ordered to run concurrentlyo lle was aggrieved by the convictions and sentence, hence this appeal which was resisted by Mr. Mulokozi, learned. 0tate Attorney, in the presence of the appellant who abided by the contents of his meuorandum of appeala I would, with respect, agree with the learned State Attorney that this . . . appeal is devoid of merito On 18011.95 the ·dwelling house of l~osemary Mbonde (FvJ1) was broken into by unknown persons who made away with her assortment of properties valued at shs.299,.000/~~ in. ci.11.. l-.rnong the st;olen properties were her travelling handbag, her electric iron, and her photograph album which contained. her photographs arid those of her children. On 5.12095 the police searched the hoi4ie of the appe•llant in his presence and that of their cell leader, Rasaro Katamba (1-'~2), called to witness the search. In the house the /2

.2 handbag, the electric iz:on and the photograph a,lburri were foundo 'l'hey were tendered in court and collectively marked Ext P1 o. 'l'l:ese items were duly identified' by PW1 to be her stolen property o 'I'hey bore her .special,, idntifiction marks which she pointed out in courto 'l'he photog1aph album spoke· for. itself .'l'he. aripellant in his defence did not dispute that the items (Ext P1)· were f_.,urid at .his house, but claimed, for lack of anything more convincing to say, that they· were not identified by H~'1., 'ilie trial court convicted the appellant on the doctrine of recent possessiono On the evidence and in the circumst2J1ces. the identification evidence of PW1 that Ext P1 was her stolen property could not be faul tedo 'rhe une:x:plained possession· of stolen property shortly after the theft raises, in law, a presu- • . ; . mption that the person so found in possession stole the goodso This presumption varies• in strength according to the proximity in time of the possession to the theft - SBE §:y_~~· YE!__g_6:.lcr 1 It '937) 4 EACA .250 In the circumstances of this case I am satisfid that' \he ·a.otr1.n' ';l•redent possession was properly invoked_ and applied by the trial court and that the aptJellant was 'indeed the culprit. ' The sentence handed down. was not only lawful but. fair and reasonable as well. I accordingly dismiss this appeal in its totalityo AT MBEYA. ··-'-!...#-~•--=-=-- ◄ 9 August 1999,. ]Tor Appellant: Present in person. ·· ·:},or Republic; Mr. Mulokozi, S.A. ; l : I CER'rn•y. I'HAT 'l'HIS IS J. 'l'lmB COPY GF I'HE ORIGPJAL • . /., B.P. MOSHI