19761008 TZHC Tabora

j1 IN THE HIGH COURT CF TANZANIA AT TABORA APPELLATE JURISDICTION (Taboi'a Registry) CRIMINAL APPEAL NC. 162 CF 1976 ORIGINAL CRIMINAL CASE NO. 497 CF 1975 OF THE DISTRICT COURT CF TABCRA DISTRICT AT TABCRA Before: C. A. Ca Cdongo, Esq., D/Magistrate. ABAS S/C BAKARI . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . APPELLANT (Original Accused) versus THE REPUBLIC . . . . * . . . . . . . . . . . .. . . . . . . ...... . RESPCNDENT ((rig. Prosecutor) CHARGE: 1st Count: Stealing by person employed in the public service c/s 270 and 265 of the Penal Code. 2nd Count: Receiving stolen property c/s 311(1) of the Penal Code. JUDGMENT SISYA, J: The appellant together with two others who were acquitted appeared in the District Court, Tabora, to answer to charges. of theft and receiving stolen property. To be precise the appellant and One ABIHUD MKUNBC (who appeared at the trial as the second accused and, on grounds of expediency, I shall continue to call him so that is to say second accused) were jointly charged with the offence of stealing by persons employed in the public service contrary to sections 265 and 270 of the Penal Code. The third person, one YUSUF MLIPILI (whom I shall hereafter call the third accused) was charged with simple theft and in the alternative, with Receiving Stolen property contrary to Section 311(1) of the Penal Code. As aforesaid second and third accused persons were acquitted but the appellant was convicted: of the offence charged and he was sentenced to the statutory minimum of three years imprisonment. He is • now appealing. . . 0 0 . 0/2 rd ,. The facts which werê.not in dispute iay, briefly, be stated as follows0 At the material time the second accused was, and I believe he still is, a Building Inspector whereas the appellant was an Assistant Building Inspector0 Both of them, i.e. appellant and second accused 1 were eaployecl by the ?inistry of Works here at Tabora. As their titles suggest both of them were concerned with Government Buildings their erection and majntainance0 The third accused was, at least until his arrest, a Nachine Operator employed by the Tabora Tobacco Growers Cooperative Society ('n 4/8/75 the s econd accused requisitioned sixty bags of cement for a lavatory which was then being constructed at the Saba Saba grounds. It was, however, the appellant who went and actually fetched the said sixty bags of cement from the Comworks' store0 Twenty bags of cement were deposited at the site where the said lavatory was being erecterL Forty b(ngs were taken to :itete where a project for the construction of a lavatory was going on. The appellant told the foreman at Kitete that the forty bags of cement were for mal - ±ng bricks The said foreman, one Deann (PW410), told the appellant that the machine for making cement bricks or blocks was not aveilable as the same had been sent to Igunga. On hea: - ing this the appellant directed that the forty bag5. of cezeont shcu1d, everthe1es, be off-loaded there, s at Kitete and kepc in the 1 Coltwo-ks' sib-store at the same site This was done and the consignment was duly entered in the receiption Card. by the Store--keeper, one Stephen Paulo (PWO7).. For reasores w:.ica I fail to understand Stephen endorsed in Exh that the 40 bags of cement were property of "14r. A. Bakari", the appellant0 From the evidence it is clear that the apeiant specifically mentioned to Stephen (P111..7) and his senior, Derann (P.10) that the 40 bags of cement 'were for i&cir bricks for the 'Comworks' lavatory, at the Saba Saha tround Trere can, therefore, be no doubt whatsoever that both Stephen and Demain mew or at least ought to have kno in tr f no 'ment was not property of the appellant but 'Cornwcrks.' Be it as t nay, accordiiig to one Maftah Chande (04.5) a mason who was then builcn.g a house on plot No 255, Kanyenye area, for the 3rd accused ci 6/8/75 at about 4.00 p.m. he met the appellant in toin The to. +nen disclosed to him, i.e. PW.5, that their applicafion for a 'oan of cemcnt from the Comworks had been approved dnd .rc'it on to advise urn to send a truck for the collection of the scme. On 7/8/75 during the morning hours PN.5 hired a Peugeot pick-up driven by Mohamed Selemani C, 3t C 00 0/3 - 3 -: (Pw.6). They drove to the 'Comworks' yard where they collected the appellant. Thereafter they drove to a site where the 'Co.mworlcs' were putting up a building and after the appellant had talked to Dexnann (PW.10) and showed him as well as Stephen (Pi.7)a letter, Exh. "B", the first consignment of twenty bags out of the forty bags of cement deposited by the appellant on 4/8/75 were loaded in the pick-up and taken to the plot where PW.5 was building a house for the third accused. The appellant remained at Kjtete. The letter, Exh. "B", which was admittedly written and signed by the third accused is on a beaded paper of the Tabora Tobacco Growers CooperativeSociety Limited. It is written in Kiswahili and dated 5/8/75. The learned trial Magistrate made a transalation of the said letter in English language and I think the said trnssalation is far and reasonable. Accordingly, I adopt it. It reads:- "The Regional Inspector of Buildings, Comworks, Tabora. Please we are requesting you to lend us 40 bags of cement, soon after we get ours we shall refund it without worry. We shall appreciate your help. . Yours in the nation. $ (Sgd.) for N/S." Below the same letter is an endorsement or minute admittedly made by the second accused to the appellant in Kiswahili. As translated by the learned District Magistrate it reads;- "Mr. Abai ... . . Please deal with this matter. If there is a possibility of lending those people do this, anr 3 so-)n after they get their bags they should return these bags, give them not more than 40 if available." T1is is followed by a signature and a rubber stamp impression of the I egional Engineer, Tabora. It transpired th't the pick-up broke down on its first tripe 1W45 then hired a landrover wiich proceedeL to the Comworks site t Kiteto and errcreously collected nineteen bags of cement instead of all the remaining twenty bags. Those colledted.were, however, taken to the house of third accused and kept there. Stephen, the storekeeper at Kitete endrosed in Exh. 'F' that 40 bags of cementhad been collected by the . . e • • • C • • 14 . -4- appellant. No record, whatsoever., was, however, made anywhere to show that the bags of cement had been collected by Maftah Chande (PW.5). It seems when the appellant and PW.5 went to the Comworks site at Kitete a shrewd informer spotted them and passed over the information to the Police without delay. Det. Sgt. Nathew (PW.i) then took up investigations in the matter. He netted all the three accused, i.e. appellant, second and third accused persons, on the same day. In an attempt to explain his role in the affair th appellant produced the letter, Exh. 'B', to Sgt. Mathew. The third accused who., apparently, had not been to his home at the - time he was arrested expressed ignorance of the bags of cement. Jlmost in the same breath the third accused told Sgt. Mathew that the said bags of cement were "perhaps the 40 bags of cement which he borrowed from the Comworks, In his defence which he gave upon affirmation the appellant admitted that on 4/8/75 he collected 60 bags of cement. Accord- ing to him this was on the orders of his senior, the second accused, who also instructed him to deposit twenty bags at the Saba Saba ground where a lavatory was being.. erected and 40 bags of cement were to be handed over to Nr.Deinann (pw.lo) at Kitete hospital for brick making. However, - on his arrival at Kitete PW.10 informed him that the brick making machine was $ not available. Using his own dioretion which was, however, later approved by second accused, the appellant told P%V.10 to keep the 40 bags of cement in the store which was at that site until such time when the cement would he collected. Cn 5/8/75 during the niorning hours he, the appellant, saw the third accused- at the Coinworks yard; the third accused asked for second accused- but the. latter was out of his office. Eventually the third accused gave him, appellant, a letter and requested him to hand it over to second accused. The third accusecL disclosed to appellant that the two of their., that is second and third accused persons, had already discussed the subject and added that, if need be, second accused could make use of the telepl'one numbers quoteo in the letter. The appellant took the letter and kept it on SecOnd accused's table under a file. Later when the second accused returned to his office he, appellant, showed him the letter. Later in the afternoon the second accused approached him with the same letter and told him that he, second accused, had minuted that he, appell.Ent,• - shdulc1 -give the Tabora Tobacco Growers Cooperative Society some 40 bags of cement as requested. The appellant asked second s ccused where 'the said 40 bags of' cement would come from whereupon he, second accused, reminded-him - orthe cement ii MM kept at Kitete. According to the appellant he notided that the minute to him by the second accused bore an impression of the official rubber stamp. He therefore believed that the second accused had the authority to lend cement to people. ('.n second accused's directions the appellant kept the letter which incidentally is Exh. 13, and the second accused promised to ring those concerned to come and fetch the cement. The appellant went on in his defence to say that on 7/8/75, in the morning, some people who introduced themselves as people from the Tabora Tobacco Growers Cooperative Society approached him and told him that they had come in response to a telephone conversation and letter about cement. "e, appellant, went to second accused and told him about the said people. The second accused then instructed the appellant to go and give them the cement at Kjtete. This the appellant, did. He, however, did not accompany the people who collected the cement in order to see where they sent it. Thereafter the appellant returned and looked for second accused in order to return to him Exh. B but the second accused was not available. At the closing hour he, appellant, therefore, kept Exh. B in his own drawer. Later, that same day he was arrested by a Policeman who alleged that 40 bags of cement had been stolen. Thereufter he took the said askari to his office and handed over Exh. 13 to him. $ It was testified at the trial by one Abdu Mohamed Sanga (pW,2) who described himself as the District 1 ngineer, Comworks, Tabora, to the effect that it was quite normal for the Comworks, to lend some building material to public corporations or cooperative societies, he emphasized that such loans would not, however, be given to individuals who are putting up private buildings. Mr.'.Sanga described the procedure which is to be followed if a Corporation or Cooperative Society needs some building materiel fron' the Comworks and according to him such loans are only approved by the Regional 1ngineer or the District Ingineer. The application for the loan of cement in the instant matter did not pass through the right channels and, according to vr. Sanga, the second -ccused di3 not even have the necessary authority to approve loans of any building materials. In his judgment, the learned trial Iagistrate said that since the appellant w a s given an option by second accused to supply not more than 40 bags ofcement whiJe, at the same time,it was within his own knowledge that it was not hisduty to deal with loans, the appellant was, therefore, guilty of the offence charged. He, ice. the gistrate then proceeded to to convict the appellant. In his petition of appel which was drawn on his behalf by learned Counsel the appellant relies on four grounds of appeal, namely:- "1. That the Magistrate was wrong in finding on evidence that the appellant stole 40 bags of cement. The evidence adduced in support of the charge against the appellant did not dislose that the appellant had intention of stealing the cement. The Magistrate erred in finding that failure to comply with an administratiy.e procedure amounted to the commission of a criminal offence. The Magistrate should have found on the evidence that the appellant was misled by second accused, the author of Exh. "B". In arguing out this appeal before me learned Counsel for the appellant, Mr. Tukunjoba, conceded that there had been a breach of the regulations governing loans of building material but nevertheless he, i.e. Mr. Tukunjoba, contended that on the evidence available the charge of theft had not been established because mens rea on the part of the appellant had not been proved. Cn, the other hand the learned State Attorney, Mr. Teemba, in support of the conviction, argued the movement of the cement from the Cornworks store and the entertainment $ ofExh. l3 which was a fraud abinitio by second accused In breach of all the laid down.regulations proves the guilt of the appellant beyond doubt. Mr. Teemba also argued that the evidence was enough to base convictions against second and third accused who were acquitted and he urged this court to convict these two persons, that is second znd third accused, or alternatively this court should order a retrial. well, if the Republic was dissatisfied with second and third accuseds' acquittals then the proper procedure would have been to appeal against the said.acquittals. As no appeals, to niy knowledge, have been lodged then there is nothing this court can do about it at this stage. With regard to the apeal p by the appellant I do not hesitate to say that I think there is merit in the same. Admittedly the learned trial Magistrate had the opportunity of seeing. and .heariiig the wit nesses who testified in the case which I have not. Nevertheless the law does empower me as a first Court of appeal to re'view the evidence and draw what I would, in all the circumstances, consider to be reasonable Conclusion. i; this connection and with the greatest respect I do not think that the learned trial Magistrate fully evaluated. . .. . . . ./7 -7- and appreciated the evidence adduced at the trial before arriving at the conclusion which he did. To illustrate this it is clear from the judgment of the lower Court that throughout the transaction the blame was placed on the appellant by the learned trial Magistrate including the failure to c amply with the administrative procedure followed in processing an appli- cation for the loan of some buildin.g material0 Cn the contrary it sounds clear to me that on the evidence on record every move by the appellant in the matter is capable of an innocent explanation. To illustrate this one will necessarily have to review the evidence at some length and this is what I propose to do. The learned trial Magistrate appears to have attached much weight to the fact that although the second accused had requisitioned sixty bags of cement for the Saba-Saba ground the appellant deposited only twenty there. It is true that the documents used to requisition the sixty bags of cce.nt show that the same were required for work at the Saba Saba ground. The appellant in his defence, however, Said that it was second accused himself who specifically instructed him to deposit twenty bags of cement at the site at the Saba - Saba grounds and 40 bags at Kitete for brick making. The learned trial Magistrate peremptorily rejected this version of the appellant's story. With.respect I think the learned trial Magistrate $ erred in so doing. It is clear on the rosecution own evidence that immediately after the appellant had arrived at Kitete he told PW.7 and ?W.lO that he had brought +0 bags of cement for brick making and he directed that the cement shuld be kept there only after and PW.lO had told him that the machine for making bricks was not, available. Certainly if the appellant took the cement to Kitete to hide it he would not have told PW.7 and lOthat the cement was for brick making. At the same time there is no evidence to show that the appellant knew that the said machine was not available. If I may go further there was .'no evidence to shos that there was a machine for brick making at the saba - saba ground and that if the machine was available at Kitete the bricks mace thereon would not be used for the Con"vorks project at the Saba - Saba ground. It was not necessary for the learned Trial Iagistrate to believe the appellant's.. story. So for as the appellant's story landed reasonably probable it was sufficient for the 3 earned trial Magistrate to find the same as true. To my rino the appellant's explanation as to ho'the 40 'bags found their way into the Sub-store at' Kitete sounds plansible. 0•• 0 • ./ 8 -8- As I observed earlier it. was wrong to enter these bags of cement in the recetión. cord asproperty of the appellant. The fault here was, however, clearly that of PW.7 and appellant cannot be blamec for it or held liable for the same. Now, turning to Exh. B the learned trial Magistrate was of the view that the appellant was wrong to act on it. On the evidence before him it is indeed clear that it was wrong for the appellant to act on this letter 1 Exh. "B". The material question for consideration here, as I see it is, however, whether or not the appellant acted on this letter in good faith. Before answering this question it may not be impertnent to scrutinise the letter itself, Exh. "B". The writer, third accused, told the trial court in his defene that he wrote the said letter after his mason, Maftah Chande (P.5) had told him that therewas no more cement for his, 3rd accused's, house. The third accused wont on to say that PW.5 also disclosed to him that the appellant had intimated to him i.e. PWO5, that it was possible to borrow cement from the Comworks provided the application was made in writing and it was adressed to the regicna1 Inspector of Buildings. Assuming that this is all true then why, one may ask, did the third accused write the letter, Exh. B, on headed papers of the Tabora Tobacco Growers Cooperative Society, using the plural in the said letter and signing it for and on behalf of "MIS". Prima face the impression one gets after reading the letter is that it was the society.which was borrowing the cement. r' ne Mr. James Shigela (P.k) who described himself as the Managing Secretary of the Tabora Tobacco Growers Cooperative Cosiety Limited testified that whenever he drafted letters he signed N/S which stands for Managing Secretary. According to the investigating Officer, Sgt. Nathew (PW.1) when he asked third accused what "MIS" on Exh. "B" stands for the latter replied that it stood for "Muazimàji wa Saruji" (meaning cement borrower)0 If so then since he was; :the borrower. himself why, one may ask, did he sign for and on behalf of' To me, in all the circumstances of :th,e case the explanation by the thijd appellant on this aspect of the case sounds a brazen lie. In my view the way Lxh. "B" was written casts grave doubts on the tnird accused's bona fides. If he was. honest he certainly would not have written Exh. ".B2 in the way he did. As it is Exh. "B" is misleading, it gives a clear and obvious impression that it was the society which was borrowing the cement. From the evidence on record it is clear that from the beginning to the end that was the impression the appellant had of Exh.. "B". U• •O•• • . 1• - 9 - In addition to that there is the minute on Exh. "B" made by second accused to the appellant. The way I see it this minute does not give the appellant any discretion at all as long as 'not more than 40 bags' were available. Indeed, as was known to second accused, the 40 bags of cement were available and the appellant had no cause to withhold the same. It must be born in mind that second accused was appellant's senior and from the evidence it is clear that the latter used to get his instructions from the former. For these reasons I do not hesitate to hold that the learned trial Magistrate erred in dismissing Exh."B" as a good defence fot the appellant. I am minded to believe that the principal actors in the matter were those the learned trial Magistrate acquitted. They were no doubt clever because they were acting behind the scenes. One only has to look at the clever way Exh."B" was written by 3rd accused and the clever way second accused minuted on the same to the appellant. There was absolutely no reason why second accused himself did not hand over the cement to the borrower, third accused, personally and make him sign for it. There can be no doubt that the appellant acted foolishly in failing even to obtain the signature of PWO5 acknowledging receipt of the cement. However, he can not be held liable for the failure to send Exh."B" through the right channel. The person to be held liable is second accused. The appellant on seeing the minute with the rubber stamp could easily be, as indeed he was, misled into hel,!eving that everything was normal. ' In short, on my evaluation of the evidence produced it sounds clear that whatever the appellant did was done in good faith. No intention to steal which is a necessary ingredient for the offence charged was established by the evidence0 Had the learned trial Magistrate reviewed the evidence with judicial objectivity I very much doubt if he. would still have come to the same conclusion which he did. This doubt,. the law demands, must be resolved in favour of the appellant and this I do. In the final result I allow this appeal. •The conviction is quashed • and the sentence is set aside. It is ordered that the appellant should ;be released forthwith from prison unless he is indeed otherwise being held Onother1wful charges. Tabora • . . • . 1. H. E. D. SISYA, 8thOctober,, 1976 • . JUDGE Mr. Tukunjoba - for. the appellant, . Mr..Teemba . for't.heRèpublic. • Certified true copy of the original. ! • DISTRICT REGISTRAR •• • TAI3ORA