19770628 TZHC Mwanza

IN THE HIGH COURTOF TNZA11IA iT iii'iJe. APPiLLATE JURi:)IC]LON HIGH COtjT CRINiiAL APPEiL NO 0 2 OF 1977 (OricityU Crinn1 Case io0 53 of 1976 of the district Court of Tarjme district •:t Tarima - 'efcre L.A.A. Kyando, Esq0, Resider..c iagitrte). 1,TJ-1fNA I"i]\.R lJ a 00 ø * .. .. .. .. ..... .. ......... . ........... A'PELL.ANT versus THEREPUBLIC 0 0 0 00 0 0 0 0 0 0 0 ................. RESPONI)ENT CHARGE: Four(4) counts; Stealing hyà person employed in pubii Service c/s 265 âhd,270 of the Penal Cede 0 JUDGEFIENT: KATITI, J0: ATHNAS I'4h, 'the anpellont in this case, was convicted on each of thQ four counts, fortea1ing by a • pesonemp1oyed in publié seryice c/s 265 and 270 of the Penal Cpde0' He was senterced to three years imprisotment on each count, sntences to run cQurrentIy. The above convictions, and sentences, were accompanied by a compenation order —ie0, to pay back to the govenment a to€l,of shs0 2,035/50 . . . . . The ajae1aiit, aggriv9d, his appealed to this court first, ugirg that the ce- 'was' not proved beyond jceasonahle doubt, and second., that the trial was a nuliity'a the court, being a Dis±rict court, was presided over by. a Resident Magistr'e0 It is befittinc, that I started with.he 2nd grbund that contends that the trial was a nullity, tocause, it was presideded ever y a ResidentMagistrate, whi1 the case was, filed in the distçict court0 I grudge the fact, that. the leatned advocate Mr. Uwale who drew the grounds of appeal, was engaged for drawing Qnl0 If the, position were otherwise, I would have the hanifit of him, addressing me onth latter gtound0 The position, being what it is, I am left to tackle, the issue single handed. Fcllowinq the contention. o -i hecls,'my submission, would be that ti L-ial would he a n ility on the ground raised, t riai court was misconstitutd and not as provided by section 7 of the Ngistrete courts Act Cap 0 537. Specific reference, to, socthn 7 (l).(b) reveals .that.a maqistrate's court would be dtiv cohstituted, when held by.n single'maqistrate, in the case .'f th :1istrictcourt by a district maoistrate 0 If the statute had stipulated the above, and no more, the''' appliant's cgnteetion would have been sustainableiithout any ddo. But the statute went further, and, made sure it dufind "District Magistrate" to mean and include, a resident magistrate0 Referènc to section 2of Cap 0 537 should clear the misconception, as it clearly provides thus: 11 Disfxict Nagisrc' lociudes a resident magistrate 0 So that it is obvious, that where a resident magistrate prisides over a distict court, that court, , as the law stands is duly constituted as district magistrate includes a Resident Naisti'ate. Having disposed of that, 'iC come to the' case oroper 0 The facts, as,.th.r,' stand, are, thr't the ap -;ellant was charged with another as , accdsed No 0 I and No0 2 respective],.y 0 . Accused No. 2 wasacquitted 0 On the 4/12/1975 thc'.2rd accused went 9I leave after handino c.yer his duties .thct included, collection of revonu 'acccuotinç for thc saec, at the district court and keeping of exhibits to th . - The 2nd accused came hack on 2/1/764 When, the aaocllant did not h.nd back the duties but left dii, eo aix axcuse that his wife, was very sich, and that he wanted lotraos.rt h€ to hospital. The apoelloni culd not be soer till he was arrested on 2/4/1976. It is .cuallv nut su)ect to bbs ute, ot even by the appellant, that during theunriod, whera the 2ou accased ws on leave, the appe- liant received shillings 500/=, er.: 30/_ ad issued Receipts G.395069, and G 395070 respectively - (1st c.uat). bilrther, the apellant did receive abs, 1437/50 as exhibit In criminal case No 351/1975 from OW, 4 Usia. ehe had been ea.:ç the some. It was in fact handed to the o.:oallant, as, w•gather from avon PiJ.1 the trial magistrate, the case was to continua with th hearing. Th. dispatch hoaR stoned by the aepellaiat to acknowledge rcceiiat of the same is telling, without shyness. It is equally a finding of fact, that meets no sustainable cleilionee, that the apoellant did receive e fees ibs, 42/— in civil Case No, 81/75 on 20/1.275 vicle Redtaipt No, 395072, and another sum of shs, 18/— on 1/1/76 receipts Nos, 395074 - 395079. The appellant contended that hehendhc money to the 2nd accused 0 The trial court haviic so ri w±tnosss and accused persons testify, believed the urascution and. 2nd accuseds version ogd. come to the conclusion, the t, none, other than the apeellant stole, the amounts charged. I am inclined to agree with the decision of the trial court, acid the support it got, from th4 lncirried itate rttorney I!rs 7 1otoVu, The funds collected at this erimary courthad to he remitted to the district court, the absence of safe, or cash box : ecilitief at the primery court, rnking it even more a must as much as it 'urgent. The whole period the 2nd accused was :n l.:ove, tii a pellant, remitted revenue twice to the district court in amounts 150/— and 268/- respcctivLly. This was before 17/12/1975. After this date not a single cent was remitted, and as to wise, th apoellant said that the 2nd accused told him to do so when hc had reached "kiasi cha kutosha.". The aoa3611ant, did not even examine the 2nd accused on this aspect, nor did he find it usful to put it to P4,4 who with emphasis told the court:- "Funds to Nyamisanqura Primary court warn required to ha remitted to ma the next Lay after the day of their collectiOn. There is no sat. or cash box at the primary court for storing money in. Wa received fuods from primary court ui to 2.30 1a.m. on every work day. Any amount collectel. I:. a Lay must be remitted, thl.ra is no minimum," And if we have to cetreat, and cissider uht the appellant' said - thattho 2nd accused told him nut to ronit till he had we find that be fore 17/12/75, th. osallant n hod on two occasions remitted 150/= and 268/= respectiv.ily, If, in the minds of the appellant the above sums, were in sufficient amouts for remitting purposes, hw much more so wa. s th a tetcil amount charged. Like the district court, I am satisfied, that the failureof the aopellantait remit the Cjllectd funds was cut in an way generated by any instructions from the 2nd accuse.', hvci if, we had to accept, that explanation, IL would have no np lie; tion to the sum of shs, 1437/50, the m n y exhiloit tht had hien on body f Pt1,4, Finally, th departure of toe ac el].nait imadiately the 2nd accuses reported on duty is VO5\7 hiscinifarting, To the 2nd accused, the apj3ellant souaht permissieh to biRd his wife to hospita]. The condition of the appellantt s wiLe, was conveyed to the appellant, by a relative who came to the a fice. That a relatiie inc(ced came tharu, is even acknowledged. '' tb.. apaol.lant himself. This gives credence to the story by thL 2nd accused other.wthe, even tf nbheeapeallont wanted to mat: . concoctions, they wOuld not have measured to the mark. htt, ;lfough, I now believe, that the appellant left the office on ties :rcuhd given by the 2nd.° accused, the appellant charges in his defence,, that to fact, he Lft bdcuse he received a report, from th riativ, that the 2nd accused saw, that 1-4s mother-in-law hd di.e., md that he was going for a funeral ..urorisIngly, he four.T hi iy to Dar as Salaam, from where he could not he tracer, till h was found arrested on 26/4/76 From the evidence as uei, and the timing of the appellant's conduct, I am like th1iorict court, satisfied, that the apeilant never handed themeay tthe 2nd accused at alL And since, the same was not acc nted for, nor anywhere to be seen, it must have eep stolen and by t:i. nppoil t 0 I am satisfied that the case was rovcd aqainst th aollaat oeyond reasonable doubt0 The ap?eal is dismissed totally, as the Con-a7lication f the NSA 1972 on counts invo1irinr amou:th less than lOO/=, would not affect the effect, of the concurrent sentence on other counts involvinc ai ants more i00/_ Delivered this 28th day of June, 1977 • _i__ t. KATITI, JUDGE: MA1ZA HIGH COTJRTO 3