MWINYI MOHAMED ABDALLA v S.M.Z. 1988 TLR 37 (CA)

 MWINYI MOHAMED ABDALLA v S.M.Z. 1988 TLR 37 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Mustafa JJA, Makame JJA and Omar JJA

5th May, 1988 G

Flynote

Criminal Practice and Procedure - Substituted conviction -"Being in possession of

property suspected to have been stolen" substituted for "Stealing by servant" -

Whether irregular - H Section 271 of the Criminal Procedure Decree.

Evidence - Of accomplice - Corroboration.

-Headnote

The appellant was charged with and convicted of stealing by servant c/s 248(4) of the

Penal Decree. The trial court presided by a Resident Magistrate concluded that the I

appellant had stolen the alleged items

1988 TLR p38

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

A and convicted the appellant as charged although the items alleged to have been

stolen carried no identification marks. The appellant appealed to the High Court

which was not satisfied that the items were properly identified. Ramadhani C.J. could

not support a conviction of stealing by servant. However, the learned Chief Justice

was on the evidence B satisfied that it was the appellant who took the box of motor

vehicle spares to the shop and that because the appellant was unable to explain how

he came by the same, the Chief Justice substituted a conviction of being in possession

of property suspected to have been stolen c/s 285A of the Penal Decree. The appellant

appealed to the Court of C Appeal challenging the evidence relied upon by the High

Court and the sentence imposed in that it was excessive. Mr. Mtembei for the

Republic submitted that the learned Chief Justice erred in convicting the appellant

under the provisions of section 285A without the sanction of the Attorney General.

D Held: (i) Where an accused person is charged with an offence requiring the

previous sanction of the Attorney General for prosecution, the court cannot substitute

the charge with a conviction for an offence whose prosecution does not require such

sanction.

E (ii) in the present case conviction for possession of suspected stolen property

could be substituted for stealing by servant under section 271 (1) (a) of the Criminal

Procedure Decree.

Case Information

Appeal dismissed.

F El-Maamry, for the Appellant

Mtembei, for the Respondent

[zJDz]Judgment

G Mustafa, Makame and Omar, JJ.A.: The appellant was charged with and convicted

of stealing by servant contrary to section 248(4) of the Penal Decree (Cap. 13) of

Zanzibar in a Resident Magistrate's Court and was sentenced to 5 years imprisonment.

He appealed to the High Court and the High Court (Ramadhani, C.J.) substituted a

conviction of being in possession of property suspected to have been stolen H

contrary to section 285 A of the Penal Decree and reduced the sentence of

imprisonment to three years. The appellant is appealing from that judgment to this

Court.

The case for the prosecution was that the appellant was an employee of the Zanzibar

I State Trading Corporation. The Corporation dealt in various kinds of articles for sale,

among which were motor vehicle spares. The appellant, one week end, was alleged

1988 TLR p39

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

to have brought a box to the shop of P.W.2. The box contained various kinds of motor

A spares, steering racks, engine mountings, armatures and carburettors. There was a

theft at the Corporation of motor vehicle spare parts, which included items similar to

those allegedly contained in the box brought by the appellant to P.W.2. P.W.2. was a

shop keeper. It was alleged that the appellant had asked P.W.2 to sell the spares on his

B (appellant's) behalf. P.W.2 had agreed, and the transaction was still in progress

when the Police, on information received, came to the shop of P.W.2, about 4 days

later, and discovered the motor vehicle spares. P.W.2 alleged that the appellant had

brought those motor spares to his shop. P.W.2 was supported in that testimony by

P.W.1, and P.W.4, C both brothers of P.W.2. However, P.W.3, a neighbour, had also

seen the appellant carrying a box to the shop of P.W.2, and soon thereafter saw the

contents, which were motor vehicle spare parts.

The appellant admitted that he was an employee of the Corporation but denied that

he D had ever brought a box containing motor spares to the shop of P.W.2. He

alleged that P.W.1, P.W.2, P.W.3 and P.W.4 had all told lies to implicate him.

The trial magistrate concluded that the appellant had stolen the various motor vehicle

E spare parts contained in the box he had carried to P.W.2's shop and that, in the

circumstances, although the spare parts carried no identification marks, they must

have been the property of the Corporation. He accordingly convicted the appellant of

stealing as charged. The learned Chief Justice, on first appeal, was not satisfied that

the motor F vehicle spare parts had been properly identified as those stolen from the

Corporation and could not support a conviction for stealing by a servant. He treated

P.W.1. P.W.2, and P.W.4 as accomplices but he found corroboration of their

testimony in the evidence of P.W.3. The learned Chief Justice was satisfied that the

appellant had taken the box of motor vehicle spares to the shop of P.W.2. Since the

appellant did not explain how he G had obtained these spares, in fact the appellant

had denied he ever had had those spares, the Chief Justice substituted a conviction of

being in possession of property suspected to have been stolen in purported

contravention of section 285 A of the Penal Decree. H

Mr. El-Maamry appeared for the appellant before us. He submitted that there was

insufficient evidence adduced at the trial to support a finding that the appellant was

in possession of the motor vehicle spares. He contended that the Chief Justice did not

give I any or any sufficient consideration to the evidence tendered by the appellant.

Since both the courts below had found that it was the

1988 TLR p40

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

A appellant who had brought the motor spare parts to P.W.2's shop, Mr. El-

Maamry's submission has no merit. He also submitted that the terms of 3 years

imprisonment imposed by the Chief Justice was excessive, and he suggested that the

Chief Justice had erred in assessing the sentence since he had relied partly on the

value of the said motor B vehicle parts said to be worth Shs. 100,000/=. He said these

values must have been less, as shs. 100,000/= covered 19 items, and only 4 types of

items were allegedly in the possession of the appellant.

Mr. Mtembei for the Republic began his address to us by submitting that the learned

C Chief Justice had erred in substituting a conviction of being in possession for one of

stealing. He submitted that section 285A was an additional section immediately

following section 285 of the Penal Decree and was brought in by an amendment to

the Penal D Decree by Decree No. 1 of 1980 and in section 6 of Decree No. 10 of

1985 a prosecution for an offence under inter alia section 285A "shall not be instituted

except by or with the sanction in writing of the Attorney General". We think that

Mr. Mtembei's point was that in the absence of such a sanction by the Attorney

General the appellant E could not have been convicted under the provisions of

section 285 A.

We are satisfied that the learned Chief Justice had erred to have purported to rely on

the provisions of section 285A. Section 285 of the Penal Decree is invoked by

reference to F section 18 of the Criminal Procedure Decree, an offence connected

with the conveyance of property suspected to have been stolen or unlawfully

obtained. Although the scope of Section 285 A would seem wider than that of section

285 we think that section 285 A was basically designed to enhance punishment and

for forfeiture of goods recovered to the Government, in respect of offences of the type

caught by section 285. G The Chief Justice could not have invoked the provisions of

Section 285 A in this case.

However the Chief Justice could have invoked the provisions of section 271 of the

Criminal Procedure Decree in substituting a conviction for possession of suspected

stolen property. We will correct the order of the Chief Justice by setting aside the

reference to H section 285 A of the Penal Decree and in place thereof substitute the

reference to section 271 (1) (a) of the Criminal Procedure Decree.

Mr. Mtembei otherwise supported the conclusion of the Chief Justice, and submitted

that I the accomplice evidence of P.W.1, P.W.2 and P.W.4 was corroborated by the

testimony of P.W.3. He also submitted that the sentence of 3 years imposed was not

excessive.

1988 TLR p41

In our view, the order of the Chief Justice, as corrected, was justified on the evidence.

A We do not think that the terms of 3 years imprisonment was so severe as to call for

interference. We dismiss the appeal in its entirety.

Appeal dismissed. B

1988 TLR p41

C