DIRECTOR OF PUBLIC PROSECUTIONS v JOHN MANNING 1984 TLR 317 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v JOHN MANNING 1984 TLR 317 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Kisanga JJA and Omar JJA

August 16, 1985

B CRIMINAL APPEAL 62 OF 1984

Flynote

Criminal Practice and Procedure - Restitution order - Rightful owner of property not

established - Whether proper to make any order of restitution.

-Headnote

C The appellant was charged with but acquitted of cattle theft. Meat from some

slaughtered cattle was recovered by the police and sold on order of the court. A sum

of Shs. 15,140/= was realized from such sale. Together with this sum the court had to

make a disposal order of 10 head of cattle. The evidence adduced D did not establish

the rightful owner of the cattle and the money. This notwithstanding the High Court

ordered that the cattle and money be given to the appellant.

The Court of Appeal considered whether such order was tenable.

E Held: (i) Since the complainant was unable to identify the meat and nobody had

come forward to claim such meat the proceeds of sale of such meat should have been

forfeited to the Government;

(ii) On the evidence adduced although the prosecution had failed to establish

that the complainant F was the rightful owner of the 10 head of cattle owing to the

inadequacy of identification, it is equally clear that the appellant had failed to

establish that the 10 head of cattle were his property;

(iii) it was unwise to make any order of restitution.

Case Information

G Appeal dismissed.

[zJDz]Judgment

Mustafa, J.A. read the following judgment of the Court: The respondent, with eight

others, was charged in H the District Court with cattle theft. He was acquitted, and

the Director of Public Prosecutions appealed to the High Court against such acquittal.

On the application of the Director of Public Prosecutions the I High Court ordered

additional evidence to be taken under the provisions of section 151 and section 322(1)

of the Criminal Procedure Code. Accordingly one Simon Mangazein testified. The

1984 TLR p318

MAPIGANO J

High Court (Mapigano, J.) heard the appeal and dismissed it. Both the courts below

were satisfied that on A the crucial issue of identification the prosecution had failed

to satisfy the courts that the animals, some found slaughtered and 10 found alive,

were the property of the complainant P.W.2 Rashidi.

The Republic is now appealing to this court from the acquittal, on the main ground

that the High Court had B erred in its evaluation of the additional evidence adduced.

We have carefully gone through the additional evidence, and while we do not agree

with the first appellate judge that such additional evidence "tends to exacerbate the

doubt for it tends to confirm the contention C of the first respondent (i.e. the

appellant herein) that he had lawfully purchased the ten live cows", we find the

additional evidence vague and inconclusive and does not add anything to the

prosecution case in any way. There was evidence on which the courts below could

find that the prosecution had failed to D establish its case against the appellant, and

the appeal against conviction fails.

However there are two points which call for consideration. Meat from some

slaughtered cattle was recovered by the police and sold on order of the court. A sum

of Shs.15,140/= was realised from such sale. E The District Court ordered this sum to

be returned to the appellant, and such order was confirmed by the High Court. It was

in evidence that the appellant had stated that the meat did not belong to him, but

possibly to some other person or persons who had used his abattoir for slaughter

facilities. The F complainant was unable to identify the meat, and nobody had come

forward to claim such meat. In the circumstances it was wrong to have this sum paid

to the appellant. We set aside the order to pay the sum of Shs.15,140/= to the

appellant, and order that the said sum, if paid to the appellant, be returned by the

appellant to the court, and that the sum be forfeited to the Government. G

Similarly the District Court ordered the ten live cattle claimed by the complainant be

returned to the appellant. This was confirmed by the High Court. On the evidence

adduced, although the prosecution had failed to establish that the complainant was

the rightful owner of the 10 head of cattle owing to the H inadequacy of

identification, it is equally clear that the appellant had failed to establish that the 10

head of cattle were his property. In the circumstances it was unwise to make any

order of restitution. We set aside the order returning the 10 head of cattle to the

appellant. I

1984 TLR p319

A The parties could sue civilly for the cattle when the question of ownership could

be determined.

In the result, apart from interfering with the order of payment of shs. 15,140/= to the

appellant and the order of restitution of the 10 head of cattle to the appellant, the

appeal is dismissed.

B Appeal dismissed

1984 TLR p319

C