GEORGE MINGWE v REPUBLIC 1989 TLR 10 (HC)

 

GEORGE MINGWE v REPUBLIC 1989 TLR 10 (HC)

Court High Court of Tanzania- Mtwara

Judge Kazimoto J

13 February, 1989

Flynote

Criminal Practice and Procedure - Identification - Of stolen property by colour -

Value of F such evidence.

Criminal Law - Doctrine of recent possession - Its applicability.

Criminal Practice and Procedure - Judgment - Contents of - S. 312(1) of Criminal

Procedure Act, 1985. G

-Headnote

On 26.2.87 the house of the complainant was broken into and two shirts, a pair of

shoes, a belt, a pair of trousers and other articles were stolen. The thief, or thieves,

were unknown. On 23.3.87 the appellant was seen by the complainant wearing a

shirt, a belt and a pair of shoes which the latter claimed to be his. He was arraigned

and H convicted of house breaking and theft c/ss 294(4) and 265 of the Penal Code.

Adducing evidence in the District Court, the complainant neither described by make

or any other mark the articles which he claimed to be his, but claimed to recognise

the shirt by its colour and stripes; the belt and the shoes by colour. I

1989 TLR p11

KAMIZOTO J

Held: (i) Identification of stolen property by colour alone is the weakest sort of A

evidence, and the accused ought not to have been convicted on such evidence alone;

(ii) the applicability of the doctrine of recent possession depends on the type of

the stolen property being identified;

(iii) a judgment must contain the points for determination, the decision

thereon B and the reasons for the decision.

Case Information

Appeal allowed.

[zJDz]Judgment

Kazimoto, J.: When the appeal came up for hearing and having heard learned state C

attorney who declined to support the conviction and having considered the grounds

of appeal by the appellant I quashed the appellant's conviction, set aside the sentence

imposed and ordered his immediate release from prison. I reserved my reasons which

I now give. D

The appellant was convicted of house breaking and theft c/ss 294(1) and 265 of the

Penal Code and sentenced to five years jail for house breaking and two years

imprisonment for stealing. He appealed.

On 26.2.87 the house of the complainant (PW1) was broken into and two shirts, a

pair E of shoes, a belt, a pair of trousers, children's clothing and ten pairs of khanga

were stolen. The thief or thieves were unknown.

On 23.3.87 the appellant was seen by PW1 wearing a shirt, a belt and a pair of shoes

F which complainant claimed to be his. This led to the arrest of the complainant and

the subsequent charges and convictions at the trial.

In his evidence PW1 neither described by make or any other mark, the properties

which he alleged to be his. According to his evidence he recognised the shirt by its

yellowish colour and stripes and the belt and shoes by colour. Even if colour could be

G said to be a special mark the type of colour in respect of the belt and shoes should

be stated in evidence. And it has been held in numerous authorities that identification

of stolen property by colour alone is the weakest sort of evidence and an accused

person H ought not to be convicted on such evidence.

A judgment which does not conform with the provisions of section 3l2(1) of the

Criminal Procedure Act 1985 is not a judgment in law and will certainly run the risk

of being quashed. It has been said now and again that a judgment to be a judgment

must I "contain the point or points for determination, the decision thereon and the

1989 TLR p12

reasons for the decision." Having summarised the evidence for both the prosecution

and A the defence the learned Principal District Magistrate had this to say:

Indeed on the evidence before me I am satisfied that the accused was found

wearing some of B the complainant's property, about 27 days later (shoes, a belt and

shirt).

This is not a type of property which could easily pass from one hand to

another in such a short period. The accused must have been the breaker and the thief.

The appellant was not charged with being "found wearing or in possession". At issue

is C the identity of the stolen property. The learned magistrate did not direct his

mind to that issue. He did not say on what he was "satisfied" that the appellant was

the breaker D and the thief. Further it was premature to invoke the doctrine of

recent possession. That doctrine depends on the stolen property being identified. As it

was not identified by the complainant it cannot be said it is the same property which

had been stolen from him.

And to say that the type of property cannot pass hands within a month in todays E

business boom of second hand clothes popularly known as "mitumba" can hardly be

convincing. Clothing can easily pass hands within a few days. They are not the type

of things which could fail to get a willing and able purchaser.

It was for these reasons that I allowed the appeal and made the subsequent orders. F

Appeal allowed.

1989 TLR p12

G