Mohamed v Republic (Criminal Appeal No. 29 of 1997) [1998] TZHC 2556 (4 November 1998)

NOEL PHILEMONI MOHAMED i: REPUBLIC 387 NOEL PHILEMONI MOHAMED v. REPUBLIC a HIGH COURT OF TANZANIA AT MTWARA D (Kaji, J.) CRIMINAL APPEAL No. 29 OF 1997 c Criminal Law - Cattle Theft - Two goats slaughtered and stolen at night — Appellant found with 2kgs of goat meat the following evening - Whether the appellant was the thief. Two goats were slaughtered and stolen from their shed at night. At about 5 or 6pm D the appellant was found with 2 Kgs of goat meat looking for buyers. When asked he said he had got it from Kilabu cha Wazee. He was arrested and subsequently charged with cattle theft and convicted. No body had denied the presence and sale of goat meat at Kilabu cha Wazee and nobody had bothered to check whether the appellant had got the meat from there or not. On appeal: Held: As the meat found with the appellant was not identified as that of the two stolen goats, the appellant was convicted on suspicion. However strong it may be, suspicion cannot be the basis of conviction. p Appeal allowed Statutory provisins referred to: (1) Penal Code, section 268 Gr JUDGMENT (Delivered 04 November 1998) H KAJI, J.: Noel Philimon Mohammed, who is the appellant in this appeal, was charged with cattle theft contrary to section 268 of the Penal Code Chapter 16. It was alleged in the charge sheet that on 14 February 1997 at about 2:00am, at Mkumba Village within Nachingwea District, 1

388 TANZANIA LAW REPORTS [1999]TL.R. A Lindi Region the appellant stole two goats valued at TZS. 50 000 being the property of Gaudencia d/o Makota. He denied the charge. However at the end of the day he was found guilty as charged and was convicted accordingly. He was sentenced to 5 years imprisonment. B He was also ordered to pay Gaudensia TZS. 50 000 being the value of the stolen goats. He was aggrieved. He is now appealing against the conviction, sentence and the compensation order. At the trial the prosecution adduced evidence to the effect that c on the night of 13 February 1997 at about 2:00am. PW1 Gaudencia d/o Makota discovered that her two goats valued at about 50 000 had been slaughtered and stolen. There was a lot of blood stains at the goat-shed. At that time she did not know the thief or thieves. D She reported the matter to her sister, PW2 Blandina d/o Makota, and to the relevant authorities. Then at about 5 or 6 pm the appellant was found with 2kgs of goat meat in a plastic bucket looking for buyer. When he was asked E as to where he had got that meat he said he had got it from Kilabu cha Wazee. They did not believe him. These were PW3 Number C 2306 Cpl. Nassoro and PW2 Blandina. They suspected that meat to be of the two stolen goats The appellant was with another young F man. They were taken to Nachingwea Police Station, but on the way they ran away and left PW2 and PW3 with the plastic bucket and the goat meat. The appellant was arrested later and charged with cattle theft. G In his defence he said he had bought the meat from Kilabu cha Wazee for his soup and that he ran away because PW3 Cpl. Nassoro and many others who were around beat him very brutally alleging he was a thief. The learned trial magistrate found that explanation unreasonable H in the sense that if he was really innocent that much, there was no cause to run away especially that it was near Nachingwea Police Station where he would have found peace and protection. He therefore found him guilty as charged and convicted him accordingly and sentenced I him as above.

NOEL PHILEMON! MOHAMED v. REPUBLIC 389 In his grounds of appeal the appellant insisted that he had bought a that meat from Kilabu cha Wazee and that he was not connected with that theft in any way. The learned Senior State Attorney Mr Malamsha who represented the Republic at the hearing of this appeal did not support the conviction on the ground that there was no evidence b to prove that that meat was really from the two stolen goats In short that is the gist of the matter. There is no dispute that Gaudencia ’ s two goats were stolen on the night of 13 - 14 February 1997 and that she did not see the thief or thieves. There is also no c dispute that on the following evening the appellant was found with 2kgs of goat meat. The only crucial issue is whether that meat was that of the two stolen goats and whether he was the one who had stolen them. D There was no direct evidence that the meat was from the two goats. Nobody identified the same. A skin or head would perhaps have shed more light. There was also no indirect or circumstantial evidence to show that meat was of the said two goats and that it was E the appellant who had stolen them. The appellant had told PW2 Blandina and PW3 Cpl. Nassoro right from the time they questioned him as to how he had come by that meat that he had bought it from Kilabu cha Wazee. Neither PW2 nor PW3 denied the presence and sale of F goat meat at Kilabu cha Wazee. In fact none bothered to check whether the appellant had really bought that meat from the meat stall at Kilabu cha Wazee. The learned trial magistrate based the conviction on the appellant ’ s G act of running away. There could be many reasons for doing so including the one stated by the appellant. But the learned Magistrate ’ s reasoning would perhaps hold some water if that meat would have been identified to be of those two goats. But since the same was not identified his H reasoning cannot justify that conviction. It did not qualify the standard of circumstantial evidence. It was merely a suspicion. A suspicion cannot be the basis of conviction however strong it may be. I

390 TANZANIA LAW REPORTS[1999]T.L.R. A It is upon the above reasons that I quash the conviction and set aside the sentence and the compensation order. The appellant is to be released forthwith from prison unless lawfully held in connection with another charge or charges. Appeal allowed. B MATHIAS KATONYA u NDOLA MASIMBI c HIGH COURT OF TANZANIA ATMBEYA D (Moshi, J.) (PC) CIVIL APPEAL No. 87 OF 1995) E (From the decision of the District Court of Mbeya at Mbeya in Civil Appeol No. 32 of 1995, S. Musa, District Magistrate) Customary Law - Limitation period - Limitation period for recovery of clan land - Item 6 of the Customary Law (Limitation of Proceedings) Rules p 1963, Government Notice Number 311 of 1963. Primary Court - Assessors - Substitution of assessor after trial has commenced — Effect thereof — Section 7 of the Magistrates ' Courts Act 1984. G Civil Practice and Procedure - Irregularity in the trial proceedings - Whether appellate Court may vary or alter the decision - Section 37 (2) of the Magistrates' Courts Act 1984. Civil Practice and Procedure - Primary Court — Irregularity in Primary Court H proceedings - Judgment signed by magistrate only and not signed by assessors - Whether curable. The appellant filed a suit in a Primary Court for recovery of clan land from the respondent more than fourteen years after the act complained of took place. The trial I