19721220 TZHC Mwanza

IN THE HIGH COURT OP TANZANIA AT MNANZA. AP1IATE JURISDICTION, HIGH COURT CRIMINAL APPEAL NO. 243 OF 1972. (oRIc.IN.AL CRIMINAL CASE NO. 853 OP 1971 OP THE DISTRICT COURT OP IGOMA DISTRICT AT I GOMA - BEFORE S , • MTENG•A ESQ. 9 RESIDENT MAGISTRATE). BARNABASMAGOGV 1A • ........................• ...... APPELLANT (ORIGINAL ACCUSED) VERSUS THERE13BLIC ....................... . . . . . . . . . RESPONDENT (ORIGINAL PROSIICUTOR) CHARGE: Stealing Postal matter C/s 267 and 265 of the Penal Code. JUDGMERT. JONATHAN, AG. J.: • The appellant, Barnabas J. Magogwa WCS convicted on a charge of stealing postal matter c/ss. 267 and 265 of the Penal Code, the particulars of which alleged that, on the 10th August, 1971 at Kigoma Post Office he stole one registered letter No. 1134 containing cash shs. ioo/= which was posted to one U. Gwemera by D.G. Gwemera. Sentencing him under the Minim sentence Act, 1972 the trial magistrate imposed a sentence of 3 years' imprisonment. Most of the facts are hardly in dispute. The appellant who was a teacher at Kigoma Secondary School received a Post Office advice slip addressed to Barnabas Magogva. That was on or about the 10th August, 1971. Shortly afterwards he proceeded to the Kioma Post Office where he presented the slip to Mrs. Mtenga (P.W.2). It transpired that the slip was in respect of a registered letter addressed to one G. Gwemera (P.W.6) who was to receive itthrough one Barnabas N. M. Magogwa, Kigoma Secondary School, P.O. Box 51. In reply to Mrs. Mtenga the appellant is recorded to have said that he was related to G. G-wemera, the addressee, whereupon she handed over the letter to the appellant. There is no dispute that the sender was one D.G. Gwea (P.w.3) the son of the addressee and that the letter was intended to e received through Barnabas N. N. Magogwa, that is q P.W.4 who was until end of 1971 a pupil of the Kigoma Secondary School and an intimate friend of the sender. As admitted by the appellant, in fact he did not know the addressee, so he did not get the letter. He opened it up and, again, he admits, there was a sum of shs. 100/= together with two letters, one addressed to G. Gwemera (the addressee on the envelope) and the other to Barnabas N. N. Maogia (P.W.4). It is conceded by the appellant also that he did not lmow the sender and he seems only to have thought he was a pupil he had taught at Shinyanga Secondary School. After the sender discovered that neither the letter nor the money had reached his father he reported to the Police who, in December, 1972 9 summoned the appellant to the Police Station. There he admitted receiving the letter and the money stating, however, that he had not delivered it to the addressee as he did not know him. His house was subsequently searched and many letters were found addressed to Barnabas Magogwa purporting to come from D.G. Gwemera. In hisdefence the appellant seems to have admitted the facts as summa- rised above. It was, however, his contention that he honestly believed the sender intended the letter should be delivered by him., that ±S:, that he was the person writhen on the envelop as Barnabas N. N. Magogwa. The sender, he said, had sent him several letters that year dating back to the month of February. He did not khow him and, as already stated, he only thought him as a former pupil of his. He had not replied to any of them apparently as he was busy and was hopeful that he would pay 1im a visit in due courae.. U • • . •• 1 The letters are e)thibits in the case. From them it is impossible to say that the appellant was the intended reecipient; the 1ettersintimate in substance and could not reasonably have made any sense to the appellant. I am certainly not persuaded that he believed he was the addressee. As rega:rds the registered letter, he says he took no action to have the money either delivered to G. Gwemera, whom he did not know, or returned to the sender. This because he was hopeful that the sender would see him in December, 1971 when he would imow the true relationship between them. To my mind this was an unreasonable attitude to adopt, especially for a person of the appellant's educational background. Besides, opposed to this account, is the evidence of Mrs. Mtenga and his own evidence in defence. Mrs. Mtenga, as I have stated, is recorded as sang that the appellant replied to her that he knew the addressee, G. Gwomcra, which claim would appear false, in view of the appellant' s own admission that he did not know the person. This would appear glaringly inconsistent with his claim that he received the registered letter innocently. Now, in his evidence-in-chief he said, and I would qote, .......I did take the register and started to look for the said G. G-wemera but failed to get him. I then kept quiet • ....... I have already spent the money sent to one G. Gweinera.' T Cross-exanined he added, 17 1 never went to the Post Office to hand bask the register nor did I go to the Police but I consumed the m ono y.n The underlining is mine. He knew the money was not his and if he consumed it in the circumstances as those, that, in my view, was stealing. On all considerations I am satisfied the appellant was properly convicted. It would appear that the money was property of the Post Office, itself a department of the East African Posts and Telecomnunications Corporation. The particulars are stated at the outset in this judgment. From them there is no clear indication that the money belonged either to Post Office or the Corporation; it would appear suggested that it was Gwemera' s. If it Was Gwemera' s then in that respect the particulars would be at varience with the statement of offence. On the whole the statement of offence and the particulars, taken together, do not seem to have given the appellant sufficient notice that he Was being charged for an offence falling under the purview of the Minimum Sentences Act, 1972 and I am of the view that he was thereby prejudiced and that the imposition of a sentence under the Act resulted in a failure of justice. Accordingly, although he remains convicted under the sections cited of the Penal Code, the sentence imposed under the Act cannot stand. Sgd. P.H. Jonathan, Ag. J. 20/12/72. • Sentence: As already stated above, the sentence of 3 years' imprisonment is set aside. The appellant is a first offender while I cannot overlook the fact that, arising from the conviction he is likely to lose a responsible post he has held for about 7years together with the terminal benefits that may have accrued to him. All considered, a sentence of 12 months' imprisonment would meet the justice of the case. There is accordingly substituted such a sentence. Acting under the Provisions of Section 176 of the Criminal Procedure Code, it is further ordered that he pay she. ioo/= to the Post Office, Kigoma. (p. H. JONATHAN) 20th December, 1972. AG. JIJDGE.