William Raphael vs Republic (High Court Criminal Appeal No 115 of 1990) [1991] TZHC 2432 (16 September 1991)

........... - . 'Y""'- - .••. ,.. IN TH::;,. HJ:OH COURT or T~\NZi\NIA ·. AT ,\i.lUSHA ·. '• ..... ·.,.... •I. , · AP?ELLAT2: JURISDICTION ... ·::. .i HIGH COURT CtUMIN),.L AP?EAL 'NO ;.>,',115 OF 1990 '! '. ... .ORIGINAL CR+I1IN.\L CASE NO. '12 OF 1989 OF 'rHE . . . . . . DISTRICT COU.-l':r OF 'MBULU DI3TRICT AT BULU . . Bi.!:FORE: E. ANANGISIYE Esq DI.STICT MAGISTATE . . ''•iILLI ,. M S/0 ·D •\ ?H'' .,.L ' ,, P =>.,..,LL ., NT '. .P..i".l . !.h. •.-i. 1 ~ • • • o o • • • • , , • • • • .,:·1. : ... 1:!., Ji THE:· rtEPUBLIC • ~ ·• ~ •••••••• · •••••••• R,'SPONDENT . .,_____...,,.,,,,.,._,------- ............... "!"--- The appellant;· by the nam~ of w11i.1a.m Raphael was one qf two accused per$ons ,ho were jointly charged before Mbulu District Court with Cattle thsft c/ss 265 and 268 of the Penal Code, Cap.16. They were convic'ied of the offence, ' and they were each_sentenced to five (5) years imprisonment. The appellant was the 1st accused at the trial, while his eo- accused, one Iij.politi Qwangha, was the 2nd accused. Only.the 1st accused has appealed to this Court against both conviction and sentence, whil;e th:e 2nd accused did not appeal against the o.ecision· of the trial subordinate Court. The appellant• was not represented by couQ.sel in ·chis ·appeal. He did not also wish to be present at the hearing of his appeal. the appellant; So, the appeal was heard.in the absence of 1 however his grounds of appeal were given ' due consideration.· Mr. Mwaimu, learned Stat Attorney, vehemently opposed ~ the appeal •. He supmitted that the three cows the subject ... . of the ehaz:ge were stolen on 16/4/1988 by unidentified persons. Those three cows belonged to P.w.5 who is a resident of Basodowish village in Mbulu District. P :,; .5 I •••• properly identified . . .

ii ~ , 11 properly identified the said cows whic.h were later found at Mto wa Mbu, and there is no dispute as to the fact that· those cows belong to P. i'. 5-. Upon discovering that his three cows, a bull and two female cows, all black in colour, vrere missing from h_is_ hed, :p.\f.5 and his brother (P. 1 ,<6) strarted tracking those cows. They went as far as Mto wa Mbu where they found their lost covm in the possession of PVc:.4. 'i: 1 .':·T.L. • ' • I . . . . . explained that· those thr;e dows wre left with him by the Ist acc:used .. who was introctu2ed to h·im. by one Makoti who is • ,, . . ' • . , • • I • • a resident ·of Mto wa Mbu. p·.\J. 5 arid P. V.i .6 reported the matter to the polic~ siatign :,t ·l•1to. wa Mbti. · i. police officer ,.,1 .· (P.W.7) was assigned to investigate the matter. P.W.7 went in the Company of ·2,f5 and P.'·v.6 to look·'t'oi:- the Ist accused . . ,;.rhom they found drinking pombe at Mto wa Mbu. In fact it is F.W. 7 who was alone who .foi.:md· the -appellant drinking ·pombe, · while ?·. W. 5 and P.H. 6 had remained behind guarding the three cows in question at the· place where .they were ·grazing. P.W.7 arrested the appellant and interrogat2d him whether he haq cows which pq w:1s selling. The apI?ellant answered a:(fi:rmatively and produceq. permits or authority (vibali); The said.permits are written documents purported to have· been issued by the 10 cell - leader (F.W.1) vouching that the person named therein one BuraBaso is the owner of those oows and is authorised to sell them. The permits- are three. Two of those permits bear the name of Bura Baso as owner of each of the cow indicated in each permit. The third permit is in th name of Bura Hoki. It is to be noted that the names of ::i.v.5 are Baasa Hoki which.names resemble the names appearing on the three permits as the nefl'!es .:-Jf t:-:.e -owner of those cows. P. v.T. 7 escorted th2 appellant t-c>·the place whe.re·: Pt:·. 5, P.\r.6 and the st?l_e~ cows.were. :Vhen they came to that place the appellant then changed his stand and denied that he had- any cows that h2 was selling. However, ? .. V.4 properly identified the appellant as the person who took th2 cows in·question to him (P.':'T.4)

3: 11 and lft them promising to return to take them on the following day. I'+,.,. 11 On further investigntion of the case, P. '-' .5 discovered that the three permits were in fact viritten by tp.e 2nd accused who then took them·- for r.i.erely stamping them with an • '. .I official stamp which is ordinarfly kept by the 10 cell- leader (P.F.1) a ·resident oi' Gekrum Arusha Village where ' . the 2nd accused was also resideni. The 2nd accused,·is a close relative of F.,; •. 1, they 'are cousis-·. I , ·.•.·, . ·- .. . It transpired that the official stamp that''wis. irnpre- ... i' . . ... ssed on the permits i!J- v.-hose po·ssesston ·the Is.~ acc!-:-lped was found is the very stamp which was issued to: ? JL 1 • It 1 ,Tas to · -·· · a new stamp. According{P. t' .·1 · that -tamp ·had not been ·used before. 'rhe three permits which were tendered Exhibit· P2 in this case are d:3.ted-_17/4/1988, that .ist the following day after ;the cows ·refrred therein.- ·were stolen. Th~ qolour and sex· of :·the· cows are described iri. those ·permits• P. j. 2 r·the son of P.\ 7 .1 testi:f,:j.ed ·that s·ometime at the beginning of April 1988, to.be specif.ic .it_ was on 3/4/1988 at 1.00 p.m., the: 21:'ld accuse went wi t_h ,he· three permits r2ady recorded .arid aske<\ifm 1 ,:. 2 __ :fqr the o:f'icial stamp." The· 2nd accused .-had w.1:th L st:.i:;i::_)-inlt · _which he used in stamping the permits with the official stamp which P.'!.2 gave to the 2nd accus·ed in the · absence of ? .-u. 1 •. And in fact th offic~al - stamp that was issued to :.? • ,_,1 .1 was observed impr2ssioris of_an official stamp _on· each of which were tendered exhibits 'in this Case. words on that. official stamp read1- to have made the);'. the permit ., . . . , • I I\ ~ 1.• ,° The remcirkf:!,b_le , .. • + ·:· ,,. J .... i; Balozi wa Shina vm. CCM · 'rawi la. G •. Arusha No. ·24 Mbulu:,. · -- : Mr. Mwaimu stress.ed that the appellant and: )1is co- accused, the 2nd accused who did rn?t· apeal against t;he decision of the trial· _Court, are _directly implic.ited in this .. • • •

.4 ii case,and_ the prosecution evidence has proved the charge on the appellant and his co-accused beyond rasonable doubt. The•; cows in question were stolen on 16/4/1988, and on the following day 17/4/1988 they were. seen in appellant's posse- ssion The fact of possession of the said cows by the appellant has been given by 1:i.v.1.4. The evidence .of P •. ,I.4 has been corroboated by the evidece of P. >". 7 to whom the appellant, initially and. upon his arrest, admitted that he had cows which he was sell.ing, but when he saw P.w.5 and P.W.6 and the three cows in. question,,the appellant changed his story,and startd denying that he had any cows which he was offering for sale. This conduct.by the appellant is -incriminating and point to his guilt .in the charge .. Also the fact that the appellant was found in posse- ssion of three permits (vibali) containing dscriptions of cows which are similar to the dscription of the· three coy,s that were stolen from ? • ~'!. 5., and whi.ch permits nte all d.;;_ted 17/4/1988,is cogent circumstantial evidence which implicates the appellant with the ·charge •. The said permits were ·procured by the 2nd accused who stamped them with an official stamp which he obtained from :t' • 1 ..i .1 and i:;. W .2 who are his close relatives. The official stamp appearing on the permits .in question is similar to the offici9,l stamp that was issued ' . -to and was kept-by P.F.1. The ·three. permits form a coherent nexus to the involvement of the appellant jointly with the 2nd accused in this theft • . I quite agree with Mr. Mwaimu that the available evidance on the prosecution is quite establ_ished and the same has established the ch'::rge on the appellant and his eo - accused beyond rensonnble doubt. Even if we were to ' . consider ,that P.V.4 may be held to be a suspect in· the· commission of this· off :::nc,e to require his evidence to be corroborated, I _am of.the considered view that, the evid211ce of P.W.7 and the permits (Exhibit P2) which w2re found in •••

II II is appellant's possessionsufficient corroboration to P..4's evidence. Moreover, the evidence of P.:.r.1 ·•and P.Vl.2 which directly implic3tes the 2nd accused who is their close rela- tive is quite reliable evidence. That evidence goes to impli?ate the appellant with this charge .tnextric.:,,blf. I am further_ satisf_ied that the appellant and hj.$ co•ac,s.ed a.re e,stablished to be the actual thie_ves of the cows in question, they are not mere guilt receivers. ThQ. doctrine of re.cent .possession applies on them on the available evidence~ . T~-- api,ellant was seen. in poss,assion of those cows on 17/4/1988, just a day after those cowa were stolen. The appellant informed P.Vl ,4 tha-t ha had failed to get a potential buyer to buy those cows. The appellant· had ther_e;f ore inended. t·o SGll those cows on thl'= · following day which was nn uction (mnada) day. These circumstances clearly show thnt the said cows had not . changed hands from the time the Saine were stolen on 16/4/08. So, the appellant and his co-::- accused aro imputed to be tha actual thieves of those cows under the doctrine of rooent possession-.. Consequntly, I find. th-"tt this appeal -leeks ·merit and substance and I dismiss 'it in its entir-Gty, I uphold the entire decision of the trial subordinate Court, Appeal dismissed. l!Jfil;'_aQ!k BJr+: ji5z 1 s,1/•i ()1 · M. D. NCHALLA, J! .. D- G E _ 1/9/1991., ·:.·.'. \ '~_\•,_~ . ; I; I f .. - &,;.- ·:·. ·.·? ?-~~, r. Cor,ain":_·"". -1;.D,. _ §ha11a J For Appel+ai.l- · AbGnt; does ho _,*ifai tb ap1jar For -eond,:::i:it :- Mr. Kimorogoro S/A C/C Eva Lyaro ••• /Ccu,,,t; Judgrn-::nt --;: . ~ .,

I ii 6 u ... . , . ., Court:·- Judgment delivered in Court at Arusha in·· the presence of the State .f~ttorney, this the 16th day of September, 1991. Right of appeal is according to.law. MDN/mk M. D-, NC.HALLA, .JUDGE· ...... - ... ---.......,..... .... .....,. 16/9/1991·.