R. v. Mbegu s/o Saidi (P.C.) Crim. Rev. 41-D-70; 20/5/70; Georges, C.J.

R. v. Mbegu s/o Saidi (P.C.) Crim. Rev. 41-D-70; 20/5/70; Georges, C.J.

The accused person in this matter was charged before the Mbeya Urban Primary Court with stealing by a servant contrary to sections 265 and 21 of the Penal Code. The assessors thought he was guilt of the offence. The Primary Court Magistrate thought not. He was not satisfied in particular on the question of the identification of the property alleged to have been stolen. The facts can be briefly related. The accused had been employed by Alibhai Star Service as spanner boy. He lived in a house owned by one Selemani. He left the house owing rent. After he had gone the landlord discovered spanners and other garage implements which remained behind. The landlord took them to the ten-cell leader seeking permission to sell them. This official thought it was unlikely that the accused could own such tools. She called the police who began enquiries. Feroz Haji, the owner of Alibhai Star Service identified as their property the whole lot of articles – 11 spanners, 3 screw drivers, 1 wiper motor, 8 box spanners, 3 pliers and one self starter. He said the spanners had numbers he had printed on them; one of the pliers had a red mark. The accused gave an explanation which can fairly be described as not convincing. He said that he had got the spanners at Kilosa from a man with whom he had learned his trade. The self starter motor had been brought to him for repair by a man whose name or face he could not remember. The person who gave him the spanner was Athuman Matiko, a foreman at a sisal estate. The accused, however, said he had no witnesses to call.

            Held: (1) “The Primary Court Magistrate should note that once there was enough evidence of identification to justify his calling upon the accused to answer under section 206 then he was under an obligation to accept the assessors’ opinions on the facts and convict the accused. The assessors are, in the final analysis, the persons in whom is now vested power to decide upon the facts of a case. Where the prosecution fails completely to make out a case the position will be different. The magistrate can then direct the assessors that in law there is no case to answer and discharge the accused. Here there was evidence of identification of the exhibits. The assessors thought it was adequate. Their view cannot be said to be unreasonable though persuasive arguments can be put up against it. The Primary Court Magistrate and the District Magistrate have done so convincingly. But the District Magistrate ought not to have substituted his view for those of the assessors unless it was clear that their view could not be supported by the evidence. In this case it is clear that their view can be supported though the other view may well have been taken”. (2) “The District Magistrate was clearly wrong in ordering the accused be convicted under section 312 of the Penal Code. A reading of this section will make it clear that an accused person can only be convicted of this offence when he is arrested under section 24 of the Criminal Procedure Code. This is the section authorizing a police officer to arrest anyone fount conveying property which he suspects to have been stolen. Here the accused was not found carrying anything nor was he arrested then. Property known to be his was taken to the ten-cell leader and from that point investigations began. Quite apart therefore from any question of the lack of jurisdiction of the Primary Court Magistrate to enter a conviction under section 312 there is the basic question that no offence under section 312 has been made out since the essential prerequisites have not been established”. (3) “I would order that the file be returned to the Primary Court Magistrate with a direction that he proceed with the matter and pass sentence upon the accused, explaining to him his usual rights of appeal which the accused is still entitled to exercise”.