Joackim John vs Republic (High Court Criminal Appeal No 127 of 1990) [1990] TZHC 302 (25 October 1990)

NCHALLA, J IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION· HIGH COURT CRIMIN.AL APPEAL No 127_ OF 1990 ORIGINAL CRIMINAL CASE No:.521 OF -1989 OF THE DISTRICT COURT OF MOSHI DISTRICT AT MOSHI Before: G.A.S. KAJOLEKA Esq, DISTRICT MAGISTRATE JOf.CKIM JOHN •• '. ...•..•.•...••••.••••• ,iPPBLLANT VERSUS . . THE REPUBLIC •••..••....•.••••••..••• RESPONDENT J U D G M E.N T. I heard this appeal -on 9/10/1990. and dismissed it entiiely.- I upheld the whole dec•ision of the trial subordinate Court arid confirmed the· .. sentence of two years imprisonment -which ,was fmpoS:ed .. , on the appellant. -'by the . trial ·court •. I :reserved· reasons for my decision. I -now· •give those .. r:easons. The appellant was . cti?rged with and convicted of thef_t by-=:· agent c/s 2,73 (b) of the Pena~ Code, Cap. 16. He was s·entenced to two (2) years imprisonment and wa~ ordered.to make· good the motor vehicle that he· stole from the complainant, or its .equi- valent value, failing wt:iich · distress to be ·ex'.'.Cuted ·against him.· He was aggri-eved with the said decision, and has appealed to· · this Court against conviction, sentence and the order of compensation or distress in default. The appellant.informed this Court that he did not wish to appear at the hearing of his appeal, and that' he was- not represented by coupsel thereat. This Court, however, has. seriously considered the grounds of · appeal contained in the memorandum of appeal filed by the appellant. • ••••••••••• C / 2 •

2 In reply to- appellant's grour:i-ds of appeal Mr. Mwidunda, . . ~ - .. . . learned State Attorney, o.pposed the appeal. He submitted th~ the appellant was proper1y convicted with the offence, as the same was proved on him beyond a shadow of doubt.~ Mr. Mwidunda urged that the sentence of tV:,o years imprisonment that ·was meted ou_t to; the appellant was. very lenient, considerin.g the value of the property that the appell8:nt stole. Mr.Mwidunda submitted that the appellant's ground of . . .. appeal, that there was no written contractual agreement to show that the appellant agreed with the complainant to repair his car, and that the said car· was actually handed to him to repair, was of no weight because there was cogent evidence .. from eye witnesses who witnessed the said oral agr~~!ll.l'?n~• 1 .cind who also witnessed the complainant handing over to appellant his car Reg. No. MSA 251,Peugeot Model 203 valued at Shs. 123,000/=. Those witnesses are the complainant himself.by the name oi Elias s/o Peter and. Peter Alex ( P. W. 3). The're · was also the evidence of Stanley Mos}:li ·(P.W.4) who confirmed that P. W .1 purchased the motor ve_hicle in question in May' 1981 from one Stanley Moshi ·of Marangu Arisi Village. The eugine serinl numbers of the said car-were 1709598. ·c"py of the.agreement for purchase. of the said car by the complainant was tendered (Exhibit P2). P. 1 \ 7 .1 also· had the registration card of the said car which is No. A 52375. In January 1989 the.complainant took the said car to appellant for repair, and the appellant agreed to repair the· said car at a .. charge of Shs. 7600/= out of which the compla- inant paid 2000/=. The remainder of 5000/= was to be paid upon. completion of the repairsari_ct upon Jelivery of the car to complainant. The appellant took possession of · ·the said car and kept it with him at_ his garage .. for repair •. This transaction as already stated was witnessed by P.V!.3. Also- one Martin Temba was present. Later, the. -complainant demanded for the re.turn of his car. It is · then that the appellant alleged that the complainant "••d·•••o••••/3

3 never handed him the said car for repair, and that no agreement was ever made between him and the complainant for repair of the said car. The matter was reported to polic·e. The police conducted investigation of the report and searched appellant's house. The police found in the vicinity of appellant's house a dismantled engin~ of a car with similar serial numbers with those on the complainant's car. The serial numbers on the dismantled engine had been scratched in an attempt to oblite- rate them, evidently with a view to concealing,evidence of theft of that engine and the car as a whole. From the foregoing evidence and circumstances, the prosecution did establish the offence in the charge on the appellant,beyond reasonable do~bt. For that reason I am also satisfied that the appellant was rightly convicted with the offence that was levelled against him in the charge. I fully uphold Mr. Mwidunda's submissions. I confirm the sentence of two (2) years imprisonment that was imposed on appellant by the subordinate Court. It is -0n_the foregoing reasons that I dismissed this appeal straight - away after hearing it.· I declared the right of appeal to the appellant. I /'--·() ~!~dJU M. D. NCRALLA, Appeal dismissed. J U D G E ----·- 25/10/1990. MDN/mk