IN THE COURT OF APPEAL OF
AT DAR ES SALAAM
(CORAM: LUBUVA, J.A., MROSO J.A., And MBAROUK, J.A.)
CRIMINAL APPEAL NO. 286 OF 2005
ISMAIL
ADEN
VERSUS
THE
REPUBLIC……………………………………… RESPONDENT
(Appeal from the decision of the High Court
Of Tanzania at Dar es Salaam
( Mihayo, J.)
dated the 2nd day of September, 2005
in
HC. CRIMINAL APPEAL No. 37 of 2005
JUDGMENT OF THE COURT
20 February &
27 March, 2008
MROSO, J.A.:
The
appellant was the second accused person out of four accused persons in the
trial Court of Resident Magistrate, at Kisutu, Dar es Salaam
The High Court, Mihayo, J, dismissed the
appeal in its entirety on three counts, all of which were of stealing. Those were the first, third and thirteenth counts.
The appeal was allowed on the remaining three, counts. The appellant considered
that he had not been fully vindicated and resorted to this Court by way of a
further appeal. He was ably represented at the hearing of the appeal by Mr.
Ishengoma, learned counsel, who also represented him before the High Court. The
respondent Republic was represented by the able and resourceful Mr. Boniface,
Principal State Attorney.
The advocates for the appellant,
Jurisconsults Law Chambers, filed seven grounds of appeal but, subsequently, by
a supplementary memorandum of appeal, added another three grounds of appeal. At
the hearing he divided those ten grounds into four clusters in canvassing them.
Thus, ground 7 of the original memorandum of appeal was argued together with
grounds 1 and 2 of the supplementary grounds of appeal. Then he argued together
the 1st and 2nd grounds in the original memorandum of
appeal, and grounds 3 and 4 of the original memorandum of appeal together with
the 3rd ground in the supplementary grounds. Finally, he argued
together the 5th and 6th grounds in the original
memorandum of appeal.
In his reply to the grounds of appeal,
Mr. Boniface resisted the appeal in respect of the conviction of the appellant
on the third count in the charge sheet which was before the trial court, but conceded
the appeal against conviction, sentence and compensation order in respect of
the remaining two counts. We intend, therefore, to confine our discussion of
the appeal to the evidence and the applicable law as they relate to the third
count in the charge sheet.
The
third count in the charge sheet was on stealing, contrary to section 265 of the
Penal Code. The particulars of offence on that count are that the appellant on
or between the 24th of February, 1999 and the 8th of
March, 1999 when he was the Secretary
General of the Football Association of Tanzania (FAT), stole 50 footballs worth
Tshs. 500,000/=, the property of the said Football Association of Tanzania.
The
grounds of appeal which are directly relevant to the conviction of the
appellant on the third count appear to be grounds 5 and 7 of the original memorandum
of appeal and grounds 1 and 2 of the supplementary memorandum of appeal.
The
substance of the complaints in all these grounds of appeal is, first, that
there was no sufficient evidence that the appellant stole 50 footballs; that
there was no sufficient proof that the footballs belonged to the Football Association
of Tanzania, and, that at any rate, the Association was not in law capable of
owning property, such as footballs. We think we should now give a brief
background to the charge on the third count and the conviction of the appellant
on that charge.
The
appellant was the Secretary General of a sports organization known as the Football
Association of Tanzania, popularly known by its acronym, FAT, between 1996 and
1999 and also apparently, between 1999 to 2002.
In
about February, 1999 12 boxes believed to contain 50 footballs each were
received in Dar es Salaam from Dubai The
footballs had been imported by a company known as Inammulla Holdings Ltd. Apparently,
these boxes were air freighted to Dar es
Salaam airport and the appellant was there to collect them. The twelve (12)
boxes were supposed to contain a total of 600 footballs. The appellant, however,
said that 30 footballs were stolen at the airport. The presumption then was
that he collected 570 footballs from the airport.
By
some sponsorship arrangement between the Tanzania Breweries Limited (TBL) and the
Football Association of Tanzania (FAT) TBL bought 550 of those footballs and
they were duly delivered to it. According to PW10 – Helena Stanslaus Sweya, a Marketing
Manager with TBL, FAT were paid a total of 5.5 million Tshs. for the footballs.
The
trial court found as a fact that since 600 footballs had been received by the
appellant but PW11, Stephania Kubumba, the FAT Storekeeper, received from him only
550 footballs, the appellant must have stolen the 50 footballs which were the difference between 600
footballs in 12 boxes and the 550 footballs which he handed over to Kubumba (PW11).
The trial court proceeded to convict the appellant for the theft of the 50
footballs. The finding of fact and the convictions were sustained by the first
appellate court, the High Court.
Mr.
Ishengoma has stoutly argued that there was no proof that the appellant had in
fact received 600 footballs at the airport. He said the evidence was that 12
boxes were received at the airport with the assumption that each box contained
50 footballs. But since none of the boxes were opened to verify the number of
footballs in each box, it remained uncertain if, in fact, the appellant took
possession of 600 footballs, and not the 550 footballs which were taken on charge
by PW10 - Stephania Kubumba.
Mr.
Boniface conceded that there was no proof in fact that each of the 12 boxes
contained 50 footballs. Even so, he contended that the appellant himself said that
of the 600 footballs in the boxes, 30 had been stolen. If that was so, he must
have taken possession of 570 footballs but only 550 footballs were accounted
for.
The
appellant had not given explanation regarding the balance of 20 footballs. In
the absence of an account for those 20 footballs, the inevitable inference was
that he stole them.
During
his defence, the appellant said of the supposed 600 footballs as follows:-
Supplier
imported 600 footballs. Ministry
Of Education made subside
(sic). At the airport, some were stolen, balance was 570, After checking out there were 550 balls (sic), which TBL paid and
were in accordance with the contract.” (Our underlining for emphasis).
We
have underscored the words “After checking out….” because we think
they are significant. It is unfortunate that neither the advocate for the
appellant nor the prosecuting State Attorney or even the trial court asked the appellant to explain the meaning of those words.
Did “Checking
out” mean leaving the airport? Or did those words imply that the boxes were
subsequently opened to check on the number of footballs in each box and it was
found out there was a total of 550 footballs only?
We
think that the appellant may have been attempting an explanation on 50
footballs which were presumed missing from the boxes. The exact meaning of that
explanation is not available because the appellant was not asked by any one to
clarify what he meant by those words. The Court cannot assume that those words
were meaningless. In such circumstances, the doubt has to be resolved in favour
of the appellant. It cannot be said, therefore, that the appellant did not give
any explanation regarding the 50 footballs which were assumed to be missing.
We
have persistently used the term “assumed” advisedly. As already
mentioned in this judgment, there is no proof that the 12 boxes were checked at
the airport to ascertain the number of footballs in them. PW2 - Julian O. Kuliyurara
- said in his evidence - “I know each carton contained 50 footballs
because that is the standard packaging”. Clearly,
therefore, PW2 had merely assumed that since standard packaging is 50 footballs
per carton, then there must have been 50 footballs in each package. That is a far
cry from proof that in fact each package contained 50 footballs. It is not
unknown that there can be accidental or deliberate short packaging. Furthermore,
to hammer the point home that the packages were not opened at the airport, PW2
said –
“We were not supposed to open
the cartons”.
We
are of the opinion, therefore, that in the absence of proof that 600 footballs
had been received by the appellant, the appellant could not be convicted of the
theft of either 50 or 20 footballs. We believe, too, that had the two courts
below analyzed the evidence in the manner we have attempted to do, they would
have found that the prosecution had not proved the theft beyond a reasonable
doubt and would have acquitted the appellant on the third count.
Having
reached the above conclusion on the 5th ground of appeal, it is now unnecessary
to consider the other grounds of appeal which related to the third count in the
charge sheet. We, therefore, wish to make very brief, passing remarks regarding
the seventh ground of appeal in the original memorandum of appeal and the first
and second grounds of appeal of the supplementary grounds of appeal.
Can
the Football Association of Tanzania own property such as footballs which can be
stolen? The question boils down to a more basic question whether the FAT is a “person”
within the meaning of the relevant law? Section 258 (1) of the Penal Code, Cap.
16 of the Revised Edition, 2002 defines theft as under:
“258(1) A person who fraudulently and without
claim of right takes anything capable
of being stolen, or fraudulently converts to the use of any person other
than the general or special owner
thereof anything capable of being stolen, is said to steal that thing”.
This definition
of theft must be read in conjunction with the preceding section 257 of the Penal
Code which says-
“257. Every inanimate thing whatever which is the
property of any person, and which is movable, is capable of being stolen.”
A
thing is capable of being stolen, therefore, if, among other attributes, it belongs
to a person.
One of the arguments by the counsel for
the appellant in this appeal is that FAT was not a person and it could not own
property which could be stolen.
We are of the considered opinion that
FAT is a person within the meaning of section 257 of the penal Code.
The term “person” as well as “owner”
are defined in section 5 of the Penal Code to “include corporations of all
kinds and any other association of persons capable of owning property……”
The more relevant definition of “person”
can be found in section 4 of the Interpretation of Laws Act, Cap. 1 of the
Revised Edition, 2002. Therein “person” is defined as
“……..any word or expression
descriptive of a person (and) includes a public body, company or association or
body of persons, corporate or unincorporated”.
It
follows, therefore, that whether FAT is or is not incorporated, it is a person,
and, as a person, it can own property capable of being stolen, as per sections
257 and 258 of the Penal Code which means FAT could have owned footballs which
are capable of being stolen. In this appeal we have, of course, found that there
was no proof that the 50 or even 20 footballs which the appellant was alleged
to have stolen actually existed.
Mr.
Ishengoma asked the question, when did the alleged stolen footballs become the property
of the FAT? We can answer this question quite quickly and briefly.
Had it been proved that the appellant expropriated
the 50 footballs between the time the 12 boxes were received at the airport and
when he handed the 550 footballs to PW11 - Kubumba, he would be said to have
stolen them from the special owner of the footballs, FAT. But all this is now
academic.
We
allow the appeal by quashing the conviction on the third count and we set aside
the sentence of three years imprisonment and the compensation order. Since the
appellant is not in custody, we make no order for his being set free.
DATED
at DAR ES SALAAM this 19th day of March, 2008.
D.Z. LUBUVA
JUSTICE
OF APPEAL
J.A. MROSO
JUSTICE
OF APPEAL
M.S. MBAROUK
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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