MASWEDA ADIGA v REPUBLIC 1992 TLR 140 (HC)

 

MASWEDA ADIGA v REPUBLIC 1992 TLR 140 (HC)

Court High Court of Tanzania - Mwanza

Judge Chipeta J

12 June 1992

Flynote

Criminal Practice and Procedure - Assessors - Compliance with Rule 3 of G.N. 2 of B

1988.

Criminal Practice and Procedure - Compensation - Order given against a person

convicted of receiving part of stolen property.

Criminal law - Receiving stolen property - When offence established. C

-Headnote

The complainant had his 37 fishnets stolen. Two of them were found in the

possession of the appellant who subsequently was charged with and convicted of the

offence of receiving stolen property. He was sentenced accordingly and ordered to

pay shs. 257,000/= to the complainant as compensation. After unsuccessfully

appealing to the D District Court the appellant appealed to the High Court. A

number of grounds were argued in the High Court. First, that the record in the

Primary Court did not show that the magistrate consulted assessors before preparing

the judgment as required by rule 3 E of G.N. No. 2 of 1988. Second, that the

compensation order was improper.

Held: (i) Failure to show on record that Rule has been complied with would not

necessarily be fatal if, on a careful perusal of the record, it is plain that there had been

F consultation;

(ii) there was a substantial compliance by the trial court with Rule 3 of G.N. 2

of 1988;

(iii) in order to prove a charge under section 311(1) of the Penal code, it must

be established that the accused received or retained the property in question, and that

he G received or retained the same with guilty knowledge in the sense that he knew

or had reason to believe that the same had been stolen or otherwise feloniously

obtained or disposed of;

(iv) the compensation order was not justified. H

Case Information

Appeal allowed in part.

Rugarabamu, for the appellant;

Magoma, for the respondent. I

1992 TLR p141

[zJDz]Judgment

Chipeta, J.: In Kome Primary Court, the appellant, Maswena Adiga, was charged A

with and convicted of the offence of receiving stolen property contrary to s. 311(1) of

the Penal Code and was sentenced to pay a fine of Shs. 5,000/= or six months

imprisonment in default. He was further ordered to pay Shs. 257,000/= to the

complainant as compensation. He unsuccessfully appealed to the District Court of B

Sengerema. This, then, is his second appeal.

The prosecution's evidence, as given by the complainant and his three witnesses, was

to the following effect: at the material time the complainant had 37 fishnets and had

three employees, namely, Filberti Mayaka, Ndalahwa Kipipi, and Juma Bugatu (all of

C whom testified), who were trapping fish on behalf of the complainant. All the 37

fishnets had special identity marks written on the bouys, and ropes. The bouys were

marked MAKI LTD and three dots - ... The ropes were marked with red and green

colours, while the bouys were painted green. D

On 24/8/89, the three employees went fishing, and at about 9.00 a.m. they left the

fishnets at the lakeshore. When they went to the spot next morning, they found all

the fishnets missing. They looked for the missing nets for several months. It was not

until on 19th May, 1990 that they found two of the 37 fishnets at Ntama village in

possession E of the appellant. The two fishnets were produced at the trial as Exhibit

'A'. The appellant claimed that those two fishnets were his own property. The two

fishnets were found to have identity marks of the complainant.

In his defence, the appellant simply said that the two fishnets seized by the F

complainant and his employees were his own property. He said that his fishnets had

letter 'M'. But when asked to examine the fishnets in court and point out letter 'M',

there was no such letter 'M'. Besides, the appellant did not even attempt to say from

where he obtained the two fishnets. G

On that evidence, the trial court found as a fact that the two fishnets were among the

37 fishnets of the complainant which had been stolen, and it is in fact, inferred that

the appellant was a guilty receiver.

During the hearing of this appeal, Mr. Rugarabamu, learned counsel for the appellant,

H had the following submissions to make. In the first place he submitted that the

trial was illegal because the learned Primary Court Magistrate did not sum up the case

to the assessors nor did he seek their opinions. In any case, he submitted, the record

does not show that he consulted the assessors before I

1992 TLR p142

CHIPETA J

preparing the judgment as required by rule 3 of G.N.No.2 of 1988. A

Secondly, and in the alternative, Mr. Rugarabamu sumitted that the evidence of

identification of the two nets was inconclusive in that the witnesses did not say what

marks were on the nets. On this point, he relied on the case of Republic v Adam Iddi

and Another [1976] LRT n.18 B

Thirdly, learned counsel submitted that the nets were not produced in court as

exhibits, and so they could not make the gravamen of the trial. Here the learned

counsel referred the court to the case of Dharamshi v Republic [1977] LRT n.52.

Fourthly, learned counsel submitted that it was not satisfactorily proved that 37 nets

C were stolen and so the order of compensation was improper.

Finally, learned counsel submitted that since the appellant used servants to do the job,

it has not been shown that the appellant knew that the nets were stolen property, and

D so he cannot be held liable because there is no vicarious liability in criminal law.

Mr. Magoma, learned senior state attorney, submitted that the learned trial magistrate

throughout involved the assessors up to the time of assessment of the sentence. So it is

clear that he observed rule 3 of G.N. No.2 of 1988. That being so, the trial was not a E

nullity.

On the question of identification of the two nets, Mr. Magoma submitted that

evidence of identification was watertight as the four witnesses gave identical

descriptions of the nets. On the question of the assenting members of the court, and

the dissenting F members will give a brief statement specifying findings of fact and

the law, his decision on the issue and the reasons for it. (See Rule 4(1) and (2) of the

Rules.)

As was conceded by both learned counsel, the Rules do not specify how the

consultation is to be done. In my view, this must necessarily be done in private, and I

G think that it would be desirable if the record did show that Rule 3 has been

complied with. However, I do not think that failure to show on the record that Rule 3

has been complied with would necessarily be fatal if, on a careful perusal of the

record, it is plain that there had been consultation. To hold otherwise would be to

cling to the letter and H thus miss the substance of the matter. As the Latin Maxi-M

goes, Qui Haeret in Litera Haeret in cortice (He who clings to the letter clings to the

dry and barren shell and misses the truth and substance of the matter).

In the present case, the trial court's record reveals that the trial magistrate involved

the I assessors at every stage of the trial

1992 TLR p143

CHIPETA J

right up to the sentencing process and the order of compensation. Throughout, the A

language of the court shows that there was a consensus among all members of the

court. Even the judgment reveals that. In my considered view, therefore, there was a

substantial compliance by the trial court of Rule 3 of G.N. No. 2 of 1988. To hold to

the contrary would be to go contrary to the letter and spirit of the provisions of B

s.37(2) of the Magistrate's Courts Act. 1984, which I need not reproduce here.

I now turn to the question of guilty knowledge. It is certainly the law that in order to

prove a charge under s.311(1) of the Penal Code, it must be established that the

accused received or retained the property in question, and that he received or C

retained the same with guilty knowledge in the sense that he knew or had reason to

believe that the same had been stolen or otherwise feloniously obtained or disposed

of. (See Republic v Adamu Iddi and Another (supra).) D

In the instant case, the appellant had insisted that the two nets were his own

property, and this was in the face of everwhelming evidence of identification of the

fishnets. Some of the identifying marks were so clear that no owner of the fishnets

could possibly have mistaken them. A fortiori, some of the identifying marks had

been interfered with on E some of the buoys. In those circumstances, I am of the

view that the trial court's inference of guilty knowledge on the part of the appellant

was fully justified. The appellant's conviction, therefore, was inevitable on the

evidence on record.

Finally, I turn to the question of compensation. I am prepared to accept the F

complainant's evidence that in all 37 fishnets were stolen. His evidence was that he

bought the same from shops, and he gave their total value to be Shs. 257,000/=.

Unhappily, he lead no further evidence as to how he arrived at that figure. He did not

even say how old they were. Be that as it may the crucial question is whether the G

order of compensation was justified. In my view, it was not. The charge against the

appellant was receiving stolen property and not theft. What was proved was that he

received two fishnets if the charge preferred and proved had been that of stealing.

The order of compensation in this case amounted to speculation to the effect that the

H appellant had received all the 37 stolen fishnets, which is absurd.

In the final analysis, this appeal fails as against the conviction and sentence. However,

the order of compensation is hereby set aside. I

1992 TLR p144

To the extent indicated herein, this appeal succeeds, but it is otherwise dismissed. A

B Appeal partly allowed.

1992 TLR p144

C