19770211 TZHC Arusha

- 4 1vrJ Q 1•

IN THE HIGH COURT OF TANZANIA AT ARUSHA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO, 148 OF 1976 ORIGINiL CRIMINAL Ci.SE NO, 598 OF 1975 ' O Th DISTIGT COURT OF 1RUSHA DISTRICT AT ARUSHJ l3ef ore N.I.N MunUo, Esq , ---------- Senior Rosi 1 ent Magistrate Brnard I. Evarest ------------ ------------------APPELLANT (Origiral Accused) versus .. .•". • . S TH P3tIC -------- --------. RESPONDENT (Original Pros ecttor) JUDG'MENT:,'.,.. Jonathan, J..' BERNAPJ EVAREST and another were convicted jointly on charges 1 of stealing by public serv'ht, forg' - ry, uttering a false document ani obtaining by falsQ.pretences. They were each sentenced to a substantive sentence of 5 years' imprisonmnt. Th other accused L has not appealed butiBE,NkR has ppeiecLboth frj be conyictions and entence.' . ,•' , ' The, two accused. t the relevant time ere employees of the 'épatthnt of Water.D'evelopmoñt wbrking in ,te offic of the Regional. ":" Watr Engineer, Arusha. The apel1ant was designotd clerical officer ..asigned mainy to" 'the or3ering of spar& parts for th e machinry 'of that lep -irtment. Giving rise to the chargs was a local purchasing órer'('L,PO) 'with .'serial nunthr576'347., 7 'This' was taken out by P.W 4 SINGH a mechanical inspec.tot -in that''off'ice t•' forpirchasiig• 20 litres of engine oil f mA*4p 'Thé.'.bntfte It was duly.cpmpleted by oheJi-MES NYANGE (P.W 3) •.clrk of that office wqs handed to SINGH. SINGH in his

evidence said he in turn rd'ed the LOP.O to a drir' of that offi'c called LEWI SETS to take-it to Agip for the oil. That:wason Oçtpbr 6, 1975. oh October 9k," however, he gOt iriori n ation th the oil, had not ben' supplied by AGIP reportedly bec:'ue that compahy .solçi ,engihe oil dhlyi In drums'. For. reason which ae not clnr however this cJivdr was not called, -He would have Said what hppenedto..thounusecj L.P.O. It ho%'cer seems that P.W 5 MTUI'wh'o Was: the store keeper thé .ho regularly, propad L.P.O'S subsequently s -'w that r,.P.o. on his table'.':He' would however not 16 bthered ab.outit'aiad lcft It' there. Ultimately, he said he found it missing. JAMES on October 9 issued a requisition order for 20 litres of oil appiarontly after the report that Agip had failed to supply them with such oil. This they ODtaiflec1 from Government Stores, Aru'shn. .' . On 'October 13. the same 'L.P ,0 was' presented to. Agip. signfi'canly, how&ver, it hct been al't.re hy din'g the nurna1 11 4" to precede the figure 11 20" so as to-read 420 litres..PW'i0 WAZIRI OMARI of Ag3.p duly isuec1 such amount of loil 11n. two drums driver of a vehic1e of' wátr Department who. - was accompanied hyah' off-1cçr of tht'.department.' ThOse he identified' as the' appeli&nts.co-accused and P.W 11 SIMON YLVANGA.'who was driving 'the ifehicle thn which the dru'mwere put. In du course"Agip sent the dearent

aninvQic f' th' of stis. 2003/40.. The oil was however' not handed over to it; accordir'tO SIMON' the to drums sai 'were off-loaded at a place'cal]ed/Ranqe, apparntly a private garage. Thevital èvidencein conrecting the, appellant with the charges is that:,of'P.W 11. SYVA1IGA. He sid...thaton Octobei 15 he was -driving GT8303 of the office of the iistrict Wat Engineer. He Was- instructed by' the..jappe.Uazjt to accompany the co-accused to Agip to collect ......../2 -2- engine oil there, for which he handed the relevant L.P.O to the co-accused. He and the other accused then left f or Agip depot in that vehicle. On october 17 he'sairl'the appellant paid him a visit at his house and ask-:d that, should he ever be askod about the engine oil he should say he had gorre to Agip with MTUI. It is however not clear if the withess spoke of one 'visit only. For, under cross- examination he said the appellant had occasion' to visit him one night and to reques.t him to say in the event of being askedthat, he had gone ftore ...... €o' oejrent wXth Ori"MINJA, presuñibly for tho oil. The suggestion of te appellant.he :iims shocked him. cross-examinedd howerhe dd'hot qlV a tis'factry reason - 'fOr ndt.reiorting forthwith. For, he said he was "tracing" the appellant for further explanation. Indeed, it would seem that he made nd're5ort of the incident until the police: inVeStigotiQn out Octobcr

25. The trip to Jg1p it$e]f was not recorded in the log book . as the. standing instructions required. The appellant in his v,Vence1át1y denied having had anythin to do 'with the forged L.P-.O..,. It was also, a lie. h? saic tht he had.sent t P.W 1.1. and the. co-accusel siib$eqiiently.visited 'jthe house of the. formor.- Demonstrating .PW 11 had nottold .the'trih.,,he said both the witness a1 the vchicle he was driving wro un. 1 er the District W,ter-Egi1eer and that eng o different office from his own he coull not possibly have commandeered them. Hc also reeedtocce- i. aspec+.s of his evidne which would sem refutLd by other evidence, th e ':ab nc e of a cjte pass with resp cc tto ,th a.t trip. P.W 11. explained that he hal gone out to fill thc tark for which no gtpáss wa needed. But the àjpe.11ant,,u.pportu:i by the testimony of D.W. 4 himself a gate keeper there contenIcd that for ll vhiclos Je,ng their depot there itust be a' gate pas.' The story that: P.W 11 hal' gone'out to refue) when. hè was ãp'pr'Ocied by th'e:appelIarit'1s itse-if a€tacke by him as being untrue. The 7 log hook how that to have been done on th' previous lay. :.Iwas. the further centention of theappellant'thi he was not reponsible for'writing out anrl'keep-ing L.PO's; that,hL , ,aid.'wàs the' responsibility of MTUI whOm he critciscJ for not taking ' into safe dustdy the relevarit L.P,O 'or loing

anythin'about it upon finding it on hi 'table. ' Relations between him ánd'MTU he continued had not' been good nd,for.thI'there was the supporingevIdefdeOf•D.W.•3. Mr. .Bish'ota representing the a,ppellant with , leave of' the- cott. and 'ths.' very fully) and/may say refreshing1y taken"us'thrbugh the facts. Submitting' at gfeat length he has pint"l out utricrous, uns atisfc€oy features in the prosecution evidence.' It i's' not ni.cessat'y however in'my.judgment to refer to theiti all. I will confine myself , oniy"to' those features as relate to only one"of the g6unc1s,of'th'e appal' which I consider sufficiently lisposs of it. As conceded by the Republic. the evi ,1nc'e çounliig 'the •convtions is that' Of only one withe'ss, P.W 11 1ih .ose test!imony his. been reiéwed ab& at sme length. Unfortunatel howèvrtha loarñad 'senior resident magistrate in' his ju'dgrent. sCms to' 'h1yu, act' on it' on face value without subjecting it to any scrutint. As'rightly, - argued by Mr. l3lshota,• not only was• P.W 11 the. only w1thcss . imiibating. the appellant but he was all9b himself ..''lepli' irwolve';i' in the commission of those off enc.es . It was in±umben't U'O'n "the ±ial. court, .therefoe, to exam'Ine that evidence' carfully ani then act on it only if, it was found to, be absolutely reliable. ' As' has been indicated above how&,er ." there is considerable doubt ' if, he was

aitogeter truthful. : H1. conduct in the iritter is questi nable. @u'jht he not to have reasonably loubtel the bcnafile of the trip after bong ask by the secon accused to off-load th lrwns'. outsi1e the Masai 'R1ancje? ''TWe app'cllarit':later. I asked him t•say, upon beibg asked,"thathé'hd be companie"d variously -by.'MTUI and MINJA. He ,so's that...$hodco'i ,him. If so he must ' '. '. ., , '•,' .. , '- ' , ,••..-,/3 hive known the true na±ure of he trip he had made. He wold not howekrer report The trip ite1f was not redordeci in the log book while he does not appea± to have taken out a gate pass. For donslderaUons as these I would agree with Mr. Bishote that at worst P.W 11 was an adcomplice and at best a person who had an intrest of his own to serve. in either case it was p2Eontiy unSafe to convict sctely On his testimony and it was necessary to look for orroboratiye evidence. There is however none so far as I can see It follows the appeal must succeed and accordingly, the conviction of the appellant are SeE aside together with the sentence and it is ordered he be set at liberty if there are no othr lawful grounds for detaining him. P.M. JONATHAN,

J U D G E Delivered in open Court this 11th day of February 1977. C P.M. JONATHAN, JUbGE a