R. v. Nicodem s/o Luvintagu, Crim. Rev. 67-DDM-72, 5/9/72.

R. v. Nicodem s/o Luvintagu, Crim. Rev. 67-DDM-72, 5/9/72.

            MNZAVAS, J. – One, Nicodem s/o Luvintagu was on 8/8/71 brought before Sumbawanga District Court and charged with stealing 26 bags of “dagaa” c/s 265 of the Penal Code. In his judgment delivered on 17/12/71 the learned District Magistrate found that there was not sufficient evidence implicating Nicodem with the offence and he accordingly acquitted him of the charge. After the acquittal the trial Magistrate proceeded and said: “It is not known who is the legal owner of these 26 bags of “dagaa”. I order that they be forfeited by the United Republic of Tanzania and be sold in Public auction and the money to be remitted to the Government.” Such an order was, I agree with the Honourable the Attorney General’s letter No. 1/C 190/3/819/10 of 1/5/72 addressed to the Registrar of the High Court, incompetent.

            Though on the evidence, I agree with the learned trial magistrate that both the accused and the complainant failed to give a satisfactory proof regarding ownership of the “dagaa”, I would like to mention to the learned magistrate that, as between the two, the accused, Nicodemus s/o Luvintangu, had a better claim over the 26 bags of “dagaa”. He was in possession of the “dagaa”; and the complainant having failed to prove that he was the owner of the “dagaa” and there being no evidence to show that ownership lay with any other person other than the accused, accuded’s allegation that he was the owner of the same had not been challenged. Even if, for argument’s sake, there was evidence that ownership could have belonged to someone else the court had no power to order that the goods be forfeited to the Government. In such circumstances the proper procedure would have been for the “dagaa” to be treated as unclaimed property and be dealt with under section 44 of Cap. 322. on the evidence as found by the trial magistrate the accused’s claim of ownership over the 26 bags of “dagaa” was not effectively challenged. The learned magistrate’s order that the “dagaa” be forfeited to the Government was clearly ultra –vires and of no consequence. The order is accordingly hereby set aside. The 26 bags of “dagaa” are to be handed to Nicodem s/o Luvintangu. If they have since been sold the proceeds thereof are to be paid to him.