Exady and Obedi v. R. Crim. App. 93-A-71; 19/6/71; Kwikima Ag. J.

 Exady and Obedi v. R. Crim. App. 93-A-71; 19/6/71; Kwikima Ag. J.

The appellants were convicted of breaking into a club and stealing therein cash Shs. 300/- and 8 cases of beer. They appealed challenging the identification of the beer bottles alleged to have been stolen, the application of the doctrine of recent possession and the search which was alleged to be irregular. The second appellant also argued that he was an employee of the 1^st appellant in whose bar the bottles of beer were found and therefore he could not have been in possession of those bottles which were included in the stock of the shop.

Held: (1) …………”The Police Inspector who investigated this case told the court that he seized nine beer bottles from the first appellant’s bar. They were all stamped with the complainant club’s official mark “W. K. c. C.” on their labels ……….. an employee of the Tanzania Breweries gave evidence that the type of beer i.e. Tusker, Pilsner, Stout and Alsopps found at the first appellant’s bar are never given any mark except labels indicating that the bottle contains Tusker, Pilsner etc. with all this evidence I fail to see how the learned Resident Magistrate who heard this case could have been left in any doubt as to the identity of the nine bottles of beer.”  (2) “It seems to me that there is only one condition for a search to be regular and it is this; that the police officer conducting the search must have a warrant duly and properly issued. Although it is in the interests of those searching to call independent witnesses, there is no legal provision calling for such procedure. Any talk about regular search is neutralized by the fact that evidence obtained during any police search legal or illegal is admissible provided it is relevant to the case”. (3) [Citing Hassan Mohamed v. R. (1958) 15 E. A. C. A. 121] “In the current case the 1sr appellant is a publican dealing in beer. The quantity found with the appellants was only nine bottles out of the 200 bottles stolen. Beer bottles are common articles

            Which easily and frequently change hands. In the seven days following the breaking the beer bottles could have been easily exchanged by even ten people. For these reasons it would appear that he appellants were mere receivers if at all.” (4) (As regards the second appellant) “Possession has been defined by two leading jurists as: “Physical detention coupled with the intention to hold the thing detained as one’s own (Maine).” “The continuing exercises of a claim to the exclusive use of a material object (Salmond)”. The most important element of possession is the animus possidendi, which is the intention to appropriate to oneself the exclusive use of the thing possessed. In this case, the animus possidendi was within the mind of the 1^st appellant who would have exclusively appropriated the beer as part of the stock in his bar ……………… in the absence of proof that the 2^nd appellant was responsible for he procurement of the stolen bottles, or their presence in the bar, it is unsafe to hold the second appellant culpable.” (5) Conviction of 2^nd appellant quashed. (6) 1^st appellant guilty of receiving and not breaking and stealing.