JEREMIAH SHEMWETA v REPUBLIC 1985 TLR 228 (HC)

JEREMIAH SHEMWETA v REPUBLIC 1985 TLR 228 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

September 23, 1983

CRIMINAL APPEAL 24 OF 1981

Flynote

Criminal Practice and Procedure - Judgment - Content of judgment - Judgment

making E reference to mere existence of evidence without analysing its weight in

reaching at the decision - Criminal Procedure Code, s. 171(1) [now s. 312(1) of the

Criminal Procedure Act, 1985].

Criminal Law - Theft - Doctrine of recent possession - Appellant found in possession

of a F stolen motor concealed in a bag left by a friend - No evidence of knowledge of

what the bag contained - Whether guilty of theft.

Evidence - Credibility - Prosecution witnesses giving inconsistent accounts - Doubts

created to be resolved for the appellant's benefit G

-Headnote

The appellant and another, who was second accused in the trial court and did not

appeal, were jointly charged with and convicted of stealing by servant contrary by to

ss. 265 and 270 of the Penal Code. The charge was founded upon the doctrine of

recent possession in that the appellant was found in possession of a stolen electric

motor, H concealed in a large bag. The appellant's story was that the bag was left at

his house by a friend, the second accused, the day before and he did not know what

the bag contained until immediately after arrest. The Police found him and the

second accused fled upon seeing the Police. The three Police officers who effected

the arrest gave rather I conflicting accounts of the

1985 TLR p229

SISYA J

story, some confirming and others controverting the appellant's version. In his

judgment A the trial court magistrate merely made reference to the existence of

some evidence in support of conviction without singling out any pieces of evidence

and evaluating them to show how such evidence supports the decision he reached.

On appeal: B

Held: (i) By merely making plain references to the evidence adduced without even

showing how the said evidence is acceptable as true or correct, the trial court

magistrate failed to comply with the requirements of s. 171(1) of the Criminal

Procedure Code C [s.312(1) of the Criminal Procedure Act, 1985] which requires a

trial court to single out in the judgment the points for determination, evaluate the

evidence and make findings of fact thereon;

(ii) there was no evidence of fraudulent intent or any falsity in the appellant's

claim that he did not know what the bag contained, while there is uncontroverted D

evidence to show that the appellant knew the second accused as a fellow employee

and had no reason to be nosey with the latter's bag;

(iii) the discrepancies in the various accounts of the story by the prosecution

witnesses give rise to some reasonable doubts about the guilt of the appellant; E

Case Information

Appeal allowed.

Cases referred to:

1. Kagaye Bundala v R. [1959] E.A. 900 F

2. Willy John v R. [1956] 23 E.A.C.A. 509

3. Desiderio Kawunya v R. [1953] 20 E.A.C.A. 281

4. Dnikerai Hamkrishan Pandya v R. [1957] E.A. 336

W.R. Mramba, for the appellant G

Judgment

Sisya, J.: This appellant, Jeremiah s/o Shemweta, and another, who has not appealed,

were, jointly, charged with and convicted of the offence of stealing by servant

contrary to section 265 and 270 of the Penal Code and they were H each sentenced

by the learned Senior Resident Magistrate, Tanga, to five years imprisonment under

the Minimum Sentences Act, 1972. Dissatisfied the appellant is now appealing to this

Court.

The first ground of appeal in his petition of appeal drawn on his behalf by learned I

Counsel, Mr. Mramba, is that the learned Senior Magistrate failed to deliver judgment

according to the provisions of section 171(1)

1985 TLR p230

SISYA J

of the Criminal Procedure Code. A

The said section 171(1) of the Criminal Procedure Code reads:

171-(1) Every judgment under the provisions of section 170 shall, except as

otherwise expressly provided by this Code, be written by, or reduced to writing under

the personal B direction and superintendence of, the presiding judge or magistrate in

the language of the Court, and shall contain the points for determination, the decision

thereon and the reasons for the decision, and shall be dated and signed by such

presiding officer as of the date of which it is pronounced in Open Court. C

After giving a synopsis of the evidence adduced by both sides of the case, that is, the

prosecution and the defence, the learned Senior Resident Magistrate then went on to

direct himself in the following terms and I quote: D

From the foregoing evidence it is far from being in dispute that the first

accused (N.B. Now the appellant) was arrested on the material date with the motor in

question at his house. There is evidence showing that the first accused was arrested

while trying to load the same onto a E wheelbarrow. There is also evidence showing

that as the first accused was being arrested another person ran away from the Scene,

the said person was seen by two of the three prosecution witnesses-Police Officers

who went to the Scene the said person was said to be the second accused. There is

evidence showing a motor had been stolen from the Kiwanda F cha Walemavu in

Tanga a place where the second accused was working. After going through all the

relevant evidence on record, (I) find that the evidence relied upon by the prosecution

has proven its case against both accused person(s) and each is found guilty and

convicted as charged. G

With great respect to the learned Senior Resident Magistrate the judgment did not,

indeed, comply with the requirement of section 171(1) of the Criminal Procedure

Code. H It is not sufficient under the said section merely to make plain reference to

the evidence adduced, for example, by merely saying that there is evidence showing

this and there is evidence showing that, without even stating whether or not the said

evidence is acceptable and/or accepted as true and/or correct. I

1985 TLR p231

SISYA J

It may be argued that from his final decision in the case one may reasonably presume

A that the learned Senior Resident Magistrate considered all the evidence before him

and he, eventually, accepted the prosecution evidence in preference to the defence

story. This argument may be viable only as far as the factual aspect of this matter is

concerned. B It cannot be stretched beyond that because under the law it was

incumbent upon the learned Senior Resident Magistrate, explicitly, to single out in

the judgment the point or points for determination, evaluate the evidence and make

findings of fact thereon and, applying the law, come to a decision in the matter. This

the learned Senior Resident Magistrate failed and/or neglected to do. C

The question that now naturally, arises is, what effect does noncompliance with

section 171(1) have on this instant matter. Fortunately, this type of situation is by no

means new and the position was authoritatively made clear in the fifties by the

precursor of the Court D of Appeal whose decisions are binding on this Court. The

relevant authority was, with gratitude, quoted to me by Mr. Mramba, learned Counsel

for the appellant. It is the case of Kagoye s/o Bundala v.R. [1959] E.A. 900. on appeal

from the decision of the forerunner of this Court, i.e. H.M. Court of Tanganyika. In it

the Court of Appeal had this to say at page 901: E

Clearly the judgment did not comply with the requirements of section 171(1)

of the Code ..... A noncompliance with section 171(1) does not, however, necessarily

invalidate a conviction, and F this Court, therefore, had to decide whether the

conviction was invalidated or whether it could hear and determine the appeal on its

merits

A similar question has come before this Court on a number of occasions, but

we think that it G will be sufficient if we refer to the most recent reported decision,

Willy John v R (1956) 23 E.A.C.A. 509, in which the principle to be applied is clearly

stated. That was an appeal from the Supreme Court of Seychelles, and in its judgment

the Court said at P.510: H

There is no doubt that the judgment does not comply with the

requirements of section 149(1) of the Criminal Procedure Code, namely - 'Every such

judgment shall, except as other-wise expressly 'provided by this Code, be written "by

the presiding Officer of the I Court in the language of the Court, and shall contain

the point or points for determination, the decision thereon and

1985 TLR p232

the reasons for the decision, and shall be dated and signed by the

presiding officer in A open Court and at the time of pronouncing it".

The failure to date and sign the judgment is a mere irregularity which can be

cured by the application of section 304 of the Criminal Procedure Code since the

whole of the record of the B proceedings is in the hand of the trial judge and there

was no prejudice to the appellant. But the failure to comply with the other

requirements of the section is fatal to the conviction. In Desiderio Kawunya v

Regina, (1953) 20 E.A.C.A. 281, this Court held that failure to comply C with the

provisions of section 169(1) of the Uganda Criminal Procedure Code which is in

similar terms to section 149(1) of the Seychelles Criminal Procedure Code will not

necessarily invalidate a conviction if there is sufficient material on the record to

enable the Appeal Court to consider the appeal on the merits. In this case there is

clearly insufficient D material on the record to enable us to consider the appeal on

the merits.

We have therefore to decide whether in the instant appeal there was or was

not sufficient E material on the record to enable us to determine the appeal on its

merits.

The ratio decidendi of the Bundala case is, therefore, to the effect that noncompliance

with section 171(1) of the Criminal Procedure Code notwithstanding the

appeal Court still has to decide whether the record of proceedings contains sufficient

material for the F determination of the appeal on its merits. It is towards this goal

that I now direct my mind. In doing so I am guided by the principle of law that

sitting as the first appellate Court in this matter it is incumbent on me to treat the

evidence adduced in the case as a whole to that fresh and exhaustive scrutiny which

the appellant is entitled to expect in G order to ascertain if the conviction is justified

and supported by the evidence, see Dnikerei Hamkrishan Pandya v R. [1957] E.A.

336. The case for the prosecution rested mainly upon the evidence of three witnesses,

all Police Officers: These were Detective Sergeant Major Saidi Abadalla (PW1),

Sergeant Major Hassan (PW2) and H one Amani Hassani (PW4) who simply

described himself as a Police Officer without disclosing his rank, that is to say, if he

has any. All these three witnesses for the Prosecution i.e. PW1, PW2 and PW4 are

agreed that on the material day acting upon information received they proceeded to

the house of this appellant whom they arrested as he I

1985 TLR p233

SISYA J

prepared to load the offending object in the case, to wit an electric motor, on to a A

wheelbarrow.

The appellant in his defence did not dispute this. In fact he conceded the same

although according to him the said motor had already been loaded in the

wheelbarrow when the Police pounced on him and the motor. He, i.e. the appellant,

however, gave an B explanation as to how the said electric motor which,

incidentally, was tendered and admitted as real evidence at the trial and marked Exh

"A" came to be in his house.

In his sworn statement in his own defence the appellant stated that on Good Friday in

1981, which was also the day on which he was arrested in connection with this

matter, C he was visited by several persons at his house. One of the said visitors was

the man with whom he appeared jointly in the Court below. The said person

appeared as second accused and I will, throughout hereafter, continue to call him so,

i.e. second accused.

The second accused arrived on a bicycle on which he had also carried a bag. The two

D of them knew each other before; both of them being subordinate or junior

employees in the Ministry of Labour and Social Welfare Stationed here at Tanga. He,

i.e. the appellant, was office attendant at the office of the Regional Welfare Officer -

at the material time this was one Earnest Mtela (PW3) - whereas the second accused

was E night guard at the Kiwanda cha Walemavu. As it was still during the

morning hours they, i.e. the appellant and second accused, and another visitor, one

Mussa Iddi Bakari (DW1) drank tea together. Later, as if to crown all, they all went

out to imbibe some liquor. They went on foot, the second accused having left his

bicycle at the appellant's F house. They drank liquor until 2.00 p.m. when they

returned to the appellant's house. On their arrival the second accused pleaded that he

was too drunk to ride his bicycle with the handbag and its contents on the carrier.

He, therefore, asked and was permitted to leave the said handbag and its contents

behind and collect them on the morrow. Unsuspecting and without any knowledge

as to what the bag contained the appellant agreed. G

The appellant stated in his defence that on the following morning the second accused

followed him at his place of work and demanded his luggage. Two of them then

proceeded to the appellant's house. On the way the second accused hired a

wheelbarrow which was being pushed by two boys. At his house the appellant

opened H the door and handed over the bag to the second accused. The latter put it

in the wheelbarrow. At the same time the Policemen came whereupon the second

accused took to his heels and fled. The Policemen then opened up the bag which,

incidentally, is actually a big handbag and in it was found an electric motor, Exh. A. I

1985 TLR p234

SISYA J

The appellant's story that there was a wheelbarrow which was under the

management of A two persons was confirmed by the three Police Officers who went

and arrested the appellant, i.e. PW1, PW2, and PW4. According to PW1 the second

accused was not present when the appellant and the two wheelbarrow managers were

walking towards the appellants house, where Exh.P."A" was admittedly kept. The

impression that one B may derive from this piece of evidence is that the appellant

must be the person who hired the wheelbarrow. This was denied by the appellant

who, as aforesaid, stated that it was actually the second accused who hired it.

Although it is in evidence on the prosecution own side that it was the same

wheelbarrow C and its two managers who were hired to take the motor, Exh.A, to

the Police Station and that they did do so, the names of the two persons who pushed

the wheelbarrow were not disclosed nor were they, or either of them, called as

witnesses in the case. The end result is that the only evidence available on as to who

hired the wheelbarrow is that D of the appellant who, again, as aforesaid, stated that

it was the second accused. There is absolutely no reason why this piece of evidence

should not be believed. I accordingly accept it as true.

The issue of the second accused's flight at the sight of the Policemen was variously

described by PW1, PW2 and PW4. According to PW1 he saw the second accused E

come out of the house of the appellant while, together with the latter, carrying

Exh."A". He, i.e. Second accused, however fled and escaped when the two of them

were challenged by the Police. PW2 recalled that the appellant was 'with another

person who escaped'. According to his evidence it seems he failed to identify the said

escapee. F

This witness, PW2, added that he was the one who, however, later, led by the

appellant, went to the house of second accused and arrested him in connection with

this same matter. PW4, on the other hand, made absolutely no mention whatsoever

of the second G accused, or any other person who allegedly escaped, in his evidence

in chief. He went even further in his cross-examination by Mr. Mramba who

appeared for the appellant and said: 'I did not see the second accused. I did not see

the second accused run away.

I find these discrepancies in the evidence of PW1, PW2 and PW4 almost inexplicable.

H These Police men had set out to do the same piece of work and they were all the

time together, acting in concert. How then it may be asked, could anyone of them

possibly fail to see a person escape, particularly so when, on the other hand it behoves

me to believe that not all the three Police men, i.e. PW1, PW2 and PW4, were acting

with the I same alertness as would be expected of a police officer duly

1985 TLR p235

SISYA J

detailed to pursue a particular assignment. A

Be it as may, the discrepancies under querry on the prosecution own side raise some

reasonable doubt as to whether or not the second accused did, indeed, escape on the

arrival of PW1, PW2 and PW4. I resolve this doubt for the benefit of the appellant as

required by law and consequently I am satisfied, and I so find, that the second accused

B took to his heels and fled when he and the appellant were challenged by the

Police.

Although the learned Senior Resident Magistrate did not specifically say so in his

judgment it sounds clear that he invoked the doctrine of recent possession in arriving

at the conclusion which he did in the case. I am strengthened in this because no

direct C evidence of theft was adduced in the case.

The appellant gave an explanation as to how Exh. A came to be in his house and/or

possession. His version of the story, as summarised here in above, was supported in

material particular by Musa Iddi Bakari (DW1).

The defence story on this aspect of the case is in direct conflict with the testimonies

of D PW1 and PW4 on the same point. PW1 stated in his evidence that when

challenged the appellant said that Exh. A was his own property. PW4 too gave

evidence to the same effect on this point. PW2, on the other hand, swore that the

appellant "stated that he was given the motor by the second accused who was a fellow

employee for safe E keeping." Again, the Police men have contradicted each other

on a material point. This raises a reasonable doubt the benefit of which, as usual and

according to law, goes to the appellant. I am satisfied, therefore, and I so find that the

appellant did point out to the Police Officers, PW1, PW2 and PW4 that Exh. A

belonged to the second accused F and that it was temporarily kept in his house for

safe custody.

The question arises as to whether the appellant could have failed to querry his fellow

employee's ability to own an electric motor. The appellant's reply to this was that till

the G time of interception by the Police he did not know what the handbag

contained.

As aforementioned the electric motor was tendered as real evidence. I have looked at

it in the handbag. When the bag is closed the motor is completely concealed. The

appellant's explanation that he did not know what the handbag contained could

therefore, jolly well be true. The fact that the appellant was not, so to speak, nosy H

cannot be taken to detract adversely from his credit. The material point to note is

that there is uncontroverted evidence to show that the appellant knew that second

accused before and, further, that there is no conclusive evidence to show that

whatever he did, he did the same with the necessary animus furandi.

Had the learned Senior Resident Magistrate evaluated the evidence before him with I

judicial objectivity I entertain grave doubts as to whether

1985 TLR p236

or not he would still have come to the same conclusion at which he arrived in this

case. A On my evaluation of the evidence and in all the circumstances of the case I

find that the explanation given by the appellant in his defence is reasonable. This is

enough to dispose of this appeal which is hereby allowed. The conviction is quashed

and the sentence passed thereon is set side. It is further directed that unless he is

being held for B some other lawful purposes the appellant should be released from

prison forthwith.

Appeal Allowed

1985 TLR p236

C