Court name
Court of Appeal of Tanzania

Mwinyi Mohamed Abdalla vs S.M.Z. () [1988] TZCA 4 (01 May 1988);

Law report citations
1988 TLR 37 (TZCA)
Media neutral citation
[1988] TZCA 4

  G Mustafa, Makame and Omar, JJ.A.: The appellant was charged with and convicted of stealing by servant contrary to section 248(4) of the Penal Decree (Cap. 13) of Zanzibar in a Resident Magistrate's Court and was sentenced to 5 years imprisonment. He appealed to the High Court and the High Court (Ramadhani, C.J.) substituted a conviction of being in possession of property suspected to have been stolen   H contrary to section 285 A of the Penal Decree and reduced the sentence of imprisonment to three years. The appellant is appealing from that judgment to this Court.
The case for the prosecution was that the appellant was an employee of the Zanzibar   I State Trading Corporation. The Corporation dealt in various kinds of articles for sale, among which were motor vehicle spares. The appellant, one week end, was alleged

MUSTAFA JJA, MAKAME JJA AND OMAR JJA
to have brought a box to the shop of P.W.2. The box contained various kinds of motor  A spares, steering racks, engine mountings, armatures and carburettors. There was a theft at the Corporation of motor vehicle spare parts, which included items similar to those allegedly contained in the box brought by the appellant to P.W.2. P.W.2. was a shop keeper. It was alleged that the appellant had asked P.W.2 to sell the spares on his  B (appellant's) behalf. P.W.2 had agreed, and the transaction was still in progress when the Police, on information received, came to the shop of P.W.2, about 4 days later, and discovered the motor vehicle spares. P.W.2 alleged that the appellant had brought those motor spares to his shop. P.W.2 was supported in that testimony by P.W.1, and P.W.4,  C both brothers of P.W.2. However, P.W.3, a neighbour, had also seen the appellant carrying a box to the shop of P.W.2, and soon thereafter saw the contents, which were motor vehicle spare parts.
The appellant admitted that he was an employee of the Corporation but denied that he  D had ever brought a box containing motor spares to the shop of P.W.2. He alleged that P.W.1, P.W.2, P.W.3 and P.W.4 had all told lies to implicate him.
The trial magistrate concluded that the appellant had stolen the various motor vehicle  E spare parts contained in the box he had carried to P.W.2's shop and that, in the circumstances, although the spare parts carried no identification marks, they must have been the property of the Corporation. He accordingly convicted the appellant of stealing as charged. The learned Chief Justice, on first appeal, was not satisfied that the motor  F vehicle spare parts had been properly identified as those stolen from the Corporation and could not support a conviction for stealing by a servant. He treated P.W.1. P.W.2, and P.W.4 as accomplices but he found corroboration of their testimony in the evidence of P.W.3. The learned Chief Justice was satisfied that the appellant had taken the box of motor vehicle spares to the shop of P.W.2. Since the appellant did not explain how he  G had obtained these spares, in fact the appellant had denied he ever had had those spares, the Chief Justice substituted a conviction of being in possession of property suspected to have been stolen in purported contravention of section 285 A of the Penal Decree.  H
Mr. El-Maamry appeared for the appellant before us. He submitted that there was insufficient evidence adduced at the trial to support a finding that the appellant was in possession of the motor vehicle spares. He contended that the Chief Justice did not give  I any or any sufficient consideration to the evidence tendered by the appellant. Since both the courts below had found that it was the

MUSTAFA JJA, MAKAME JJA AND OMAR JJA
  A appellant who had brought the motor spare parts to P.W.2's shop, Mr. El-Maamry's submission has no merit. He also submitted that the terms of 3 years imprisonment imposed by the Chief Justice was excessive, and he suggested that the Chief Justice had erred in assessing the sentence since he had relied partly on the value of the said motor   B vehicle parts said to be worth Shs. 100,000/=. He said these values must have been less, as shs. 100,000/= covered 19 items, and only 4 types of items were allegedly in the possession of the appellant.
Mr. Mtembei for the Republic began his address to us by submitting that the learned   C Chief Justice had erred in substituting a conviction of being in possession for one of stealing. He submitted that section 285A was an additional section immediately following section 285 of the Penal Decree and was brought in by an amendment to the Penal   D Decree by Decree No. 1 of 1980 and in section 6 of Decree No. 10 of 1985 a prosecution for an offence under inter alia section 285A "shall not be instituted except by or with the sanction in writing of the Attorney General". We think that Mr. Mtembei's point was that in the absence of such a sanction by the Attorney General the appellant   E could not have been convicted under the provisions of section 285 A.
We are satisfied that the learned Chief  Justice had erred to have purported to rely on the provisions of section 285A. Section 285 of the Penal Decree is invoked by reference to   F section 18 of the Criminal Procedure Decree, an offence connected with the conveyance of property suspected to have been stolen or unlawfully obtained. Although the scope of Section 285 A would seem wider than that of section 285 we think that section 285 A was basically designed to enhance punishment and for forfeiture of goods recovered to the Government, in respect of offences of the type caught by section 285.   G The Chief Justice could not have invoked the provisions of Section 285 A in this case.
However the Chief Justice could have invoked the provisions of section 271 of the Criminal Procedure Decree in substituting a conviction for possession of suspected stolen property. We will correct the order of the Chief Justice by setting aside the reference to   H section 285 A of the Penal Decree and in place thereof substitute the reference to section 271 (1) (a) of the Criminal Procedure Decree.
Mr. Mtembei otherwise supported the conclusion of the Chief Justice, and submitted that   I the accomplice evidence of P.W.1, P.W.2 and P.W.4 was corroborated by the testimony of P.W.3. He also submitted that the sentence of 3 years imposed was not excessive.

In our view, the order of the Chief Justice, as corrected, was justified on the evidence.  A We do not think that the terms of 3 years imprisonment was so severe as to call for interference. We dismiss the appeal in its entirety.
Appeal dismissed. B

C