Jackson Nalisamu v The People (HNA/262/1971) [1971] ZMHC 11 (24 September 1971)

JACKSON NALISAMU v THE PEOPLE (1971) ZR 132 (HC) HIGH COURT 10 CHOMBA J 24th SEPTEMBER 1971 (HNA/262/1971) Flynote Criminal law and procedure - Doctrine of recent possession - Whether 15 applicable to persons living together. Headnote The appellant was convicted and sentenced with another person for the offence of housebreaking and theft. Stolen goods had been recovered from the house of the other person with whom the appellant was living. The court convicted the appellant on the basis of applying the 20 doctrine of recent possession and holding that the appellant was a joint possessor of the property by virtue of his living in the same house. Held: It was an unwarranted extension of the doctrine of recent possession to apply it to a person living with another from whose house the 25 stolen property is recovered. G M Sheikh, Legal Aid Counsel, for the appellant. S Heron, Assistant Senior State Advocate, for the respondent. Judgment Chomba J: An offence of housebreaking and theft was committed in this case. Some of the property stolen from the house was found 30 in a house in which the appellant was a lodger. There was ample evidence indicating that the occupier of the house was the guilty party and this occupier was in fact jointly charged with the appellant and was convicted. The appellant has consistently, that is from the time of his arrest up to now, denied involvement in this case. However, the trial magistrate 35 convicted him on the basis of the doctrine of recent possession. The magistrate's reasoning was that the mere fact that the appellant lived in the house where stolen property was found constituted him joint possessor of the property with the occupier of the house. I think that that is an unwarranted extension of the doctrine. If the doctrine was intended 40 to apply in such a way it would mean that everybody living in house where stolen property is found would be liable to conviction. I do not think that in this case possession, actual or constructed, was established vis-à-vis the appellant, and therefore the doctrine of recent possession was inapplicable to his case. I uphold his appeal and quash the conviction; 45 the sentence is also set aside. Appeal allowed