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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 108 OF 2023 (Originating from Criminal Case No. 51 of 2023 at Hanang' District Court) GODWIN ABRAHAM MASAI................................................ APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT JUDGMENT 18th March & 8th April, 2024 D. C. KAMUZORA, J. The Appellant was arraigned before Hanang' District Court (hereinafter referred to as the trial court) charged with four counts of stealing by agent contrary to section 273(b) of the Penal Code [CAP 16 RE 2022]. It was alleged by the prosecution that on 17/3/2023 at Katesh area within Hanang' District the Appellant did steal cash money; Tshs 1,606,100 which was entrusted to him by Nembris Model, Tshs 1,790,100 which was entrusted to him by Ester Sanga, Tshs 1,734,500/= which was entrusted to him by Anna Bayo and Tshs 2,189,500/= which was entrusted to him by Ummy Mchomvu. That, the money was entrusted to Page 1 of 17 the Appellant for purpose of depositing the same in Brae Account Number 015022730041004 instead, he used the money for his own. Briefly as could be gathered from the record, PW1, PW2, PW3 and PW4 were working with Brae, a monetary business company issuing loan to people. On 17/3/2023 in the afternoon hours, PW1, PW2, PW3 and PW4 went to CRDB agent to deposit some money to brae account collected in cause of their duties whereby; PW1 intended to deposit a sum of Tshs 1,606,100/= PW2 intended to deposit Tshs 1,790,100/=, PW3 intended to deposit Tshs 1,734,500/= and PW4 intended to deposit Tshs 2,189,500/=. It was alleged that the Appellant was the attendant at the said CRDB agent office owned by his brother, PW8. That, the Appellant received the sum of money from PW1, PW2, PW3 and PW4 and filled deposit slips (exhibits P2). That, the receipts evidencing the deposits could not be issued on the explanation from the Appellant that there was network problem hence, he told his customers aforementioned that he would supply the receipts to them once the network is resumed. That, time passed without issuing the receipts thus, the customers decided to go back to the agent where they had deposited their money but they could not find the Appellant. The matter was reported at Katesh Police station in which PW7 managed to arrest the Appellant at Mwanza Region. That, the Appellant Page 2 of 17 was searched and found with bank slips with the names of Nembris Mollel, Ester Sanga, Ummy Mchomvu and Anna Bayo (PW1 to PW4). Seizure certificate to that effect was filled and it was tendered and admitted in court as exhibit Pl. PW8 testified before the trial court as the owner of the business dealing with money transaction and that he hired the Appellant who is his young brother to work on the said business. He also testified that on 17/3/2023 he waited for the Appellant to close the business until night hours but could not see the Appellant. He reported the matter to the police and the Appellant was later arrested at Mwanza and brought to Katesh Police station. In his defence the Appellant admitted that he used to work for his brother PW8 in his business dealing with money transaction. He also admitted to have been arrested at Mwanza where he had gone for business. He denied to have committed the offences he was charged with. The trial court was satisfied with the prosecution evidence hence, convicted the Appellant and sentenced him to serve eight years imprisonment for each count which were ordered to run concurrently. Aggrieved with the conviction and sentence meted out against him, the Appellant preferred the instant appeal on three grounds as follows: - Page 3 of 17 1. That, the trial magistrate erred in law and fact by grounding a conviction on exhibits which were obtained and admitted illegally and not properly analyzed. 2. That, the trial magistrate erred in law and fact for failure to properly analyze and scrutinize the evidence on record an error which led him to reach to improper conclusions. 3. That, the prosecution's case was not proved to the required standard. When the appeal was called on for hearing, Mr. Beliya Andrea, learned Advocate represented the Appellant while Ms. Blandina Msawa, learned State Attorney represented the Respondent. In his submission in support of the first ground of appeal, Mr. Beliya argued that the exhibits which the court relied upon by the trial court were illegally obtained. He pointed out that, the circumstance of arrest, search and seizure process were contrary to section 13, 38 and 41 of the Criminal Procedure Act [Cap 20 RE 2022], (hereinafter referred to as the CPA) and PGO 226. The learned advocate argued that, subject to those provisions all arrest which are not emergent must be executed with an order of arrest, all searches which are not emergent must be executed under search warrant. That, all searches must be conducted by police officer in charge of the police station or any officer whom written authority is issued to Page 4 of 17 execute the search. He added that, the person searching under written authority must report the whereabout of the search to the magistrate explaining the result of the search, the grounds upon such authority were issued. He also pointed out that, the search must observe proper chain of custody. The learned advocate submitted that PW7 was not an officer in charge of the Kateshi police station thus, he was supposed to obtain search order or written authority before search. That, PW7 claimed to have received information on 28/03/2023 that the Appellant was at Mwanza and he arrested him on 03/04/2023 at Nyegezi Mwanza, in which he was searched and was found with different items. The learned advocate was of the view that, there was no any emergency for PW7 to conduct search without obtaining arrest warrant and search order or written authority form his in-charge. To him, the procedures for arrest, search and seizure were not complied with. To buttress his arguments, he referred to the cases of Ayubu Mfaume Kiboko and another Vs Republic, Criminal Appeal No. 694 of 220 CAT and Remina Omary Abdul Vs Republic, Criminal Appeal No 189 of 2020, CAT (both unreported). The learned advocate therefore urged this court to expunge exhibit PI and P2 from the record. Page 5 of 17 In reply to the first ground of appeal Ms. Blandina agreed to the fact that PW7 arrested the Appellant at Mwanza and collected the exhibits. She however argued that the provisions referred Mr. Beliya does not apply in the circumstances of this case. She explained that section 13 of the CPA is applicable where the information starts from the magistrate but the information in this case did not start from the magistrate. That, the evidence by PW7 is silent regarding the search of the Appellant thus she was of the view that if the court will find that there was illegal seizure of exhibits, then oral account of PW7 should be considered. The learned state attorney submitted that in his evidence, PW7 testified that the Appellant was found with the pay in slip referring PW1, PW2, PW3 and PW4. The evidence of those witnesses also corroborated the evidence of PW7. She was of the view that, oral account of PW7 is satisfactory to prove the offence of stealing by agent. She insisted that every witness deserves to be trusted by court unless the court find a reason not to trust the witness. To her, there was nothing that could make the court not to trust PW7. She therefore urged this court to dismiss the first ground of appeal. Having gone through the parties' rival arguments, the issue for determination is whether exhibits Pl and P2 were obtained illegally. The Appellant is challenging the procedures for arrest search and seizure of Page 6 of 17 exhibits which to him, there was violation of section 13, 38 and 41 of the CPA Cap 20 RE 2022 and PGO 226. Section 13 refers to warrant for arrest where the information is laid before the magistrate, ward secretary or a secretary of the village council. This has nothing to do with arrest directly conducted by police officer for an information made to the police station as it was the matter in this case. I therefore agree with the learned state attorney that the claim by the Appellant's counsel that there was violation of section 13 of the CPA, is misconceived as such provision is inapplicable to the matter at hand. Section 38 of the CPA covers search where there is reasonable ground for suspecting that in a building, vessels, carriage, box and receptacle or any place there is anything connected with the offence. In the matter at hand, the police officer, PW7 testified that in cause of investigation he was informed that the accused/Appellant fled to Mwanza and he went there to arrest him. In course of arrest, he also searched the Appellant and found him with pay in slip connected to the offence which he seized by filling the certificate of seizure. It is clear from that evidence that PW7 did not state if he had a search warrant. He did not explain where those pay in slip were found, whether they were found in the wearing apparel of the Appellant or the house he was living in. He only started that he found the Appellant with pay in slip without stating exactly Page 7 of 17 the place the same were recovered. I therefore agree that there was non- compliance to the procedures for search and seizure. This basically entails expunging the same from record. However, the oral account of PW7 is still relevant as he was the investigator to the case and the one who arrested the Appellant. Subject to the provision of section 41 of the CPA a police officer may search the person or the clothing that is being worn by, or property in the immediate control of, a person and may seize anything relating to an offence that is found in the course of the search. Although the procedures for search was violated, PW7 accounted in his evidence that he found the Appellant with four pay-in-slips that were tendered and admitted as exhibits. His evidence was also supported by PW5 who claimed to be present at the time the Appellant was arrested, searched and found with pay in slips. The said slips were connected to the offence as they contained the names of PW1, PW2, PW3 and PW4 who claimed to have deposited money with the Appellant. When PW7 sought to tender the slips alleged to have been found in the possession of the Appellant, the Appellant did not object its admission. Equally, the Appellant did not cross examine PW7 regarding the said exhibits. In his evidence PW7 alleged to have prepared a seizure certificate which was signed by the Appellant, PW5 and PW7. The said seizure certificate was tendered and admitted as exhibit Pl and the Page 8 of 17 Appellant neither objected its admission nor cross examined PW7 regarding the seizure certificate. I therefore find that, despite the fact that exhibits Pl and P2 did not meet legal requirement, this court is convinced that the oral evidence of PW7 and PW5 proves that the Appellant was found with four pay-in-slips connected to the offence. In that regard, I find the first ground of appeal lacking in merits and the same is dismissed. Submitting on the second ground, Mr. Beliya argued that, there was no proper evaluation of evidence leading to improper conclusion. He submitted that the trial magistrate failed to make a negative inference on the prosecution's failure to parade an independent witness before the court. That, PW7 claimed that the search was witnessed by independent witness and since the Appellant defended himself that he was not found with pay in-slip as the same were planted by police officers, an independent witness was a key witness to the case. He insisted that it is a requirement of the law that where the accused claim the planting of exhibits, the independent witness must be summoned to clear that issue. To buttress his arguments, he referred to the case of Sumitu Abdallah Vs. Republic, Criminal Appeal No 247 of 2021, and Haika Chesam Mgao Vs Republic, Criminal Appeal No. 37 of 2021, (both unreported). He therefore prayed for the court to hold in favor of the Appellant. Page 9 of 17 The Appellant's counsel further submitted that the trial magistrate failed to draw negative inference for the prosecution's failure to submit mobile phones allegedly recovered at the scene. That while PW7 claimed to have seized 4 bank pay-in-slips and 4 mobile phones, the said mobile phones were not tendered in court as exhibits. The Appellant's counsel also submitted that the trial magistrate convicted the Appellant based on the allegation not in court when it concluded that the Appellant stole from his brother and could also steal from other people. He contended that there was no charge laid against the Appellant for the allegation of stealing from his brother. In reply, Ms. Msawa argued that, the evidence was well evaluated by the trial magistrate before reaching to a conclusion. She submitted that any objection regarding the exhibit has to be raised during admission process of the exhibit. That, the Appellant was required to raise objection when pay-in slips were tendered and since the issue regarding exhibit was brought during defence, that was nothing but an afterthought. On the argument that the mobile phones were not tendered as exhibit, the learned state attorney submitted that the mobile phones were not material evidence to prove stealing by agent case. On the argument that the trial magistrate based the decision on something which was not part of the offence charged, the learned state attorney submitted that Page 10 of 17 PW8 who is the Appellant's brother testified that the Appellant left with his money and the trial magistrate was also referring his evidence. She therefore urged this court to dismiss the second ground of appeal. Having gone through the parties' arguments on the second ground of appeal, I will not stretch much on the exhibits that were admitted as I have already discussed its weight in the first ground of appeal. It is true that a person whom the Appellant refers as an independent witness who witnessed search was not procured to testify in court and the mobile phones allegedly seized during search were not tendered in court as exhibit. However, that in itself does not invalidate the available prosecution evidence. The independent witness is necessary to add weight to the available evidence and not the only witness to prove the case thus, it cannot be said that absence of such evidence could invalidate other evidence. That can be so where the available evidence raises reasonable doubt that needs to be corroborated. Despite that, there oral evidence of PW5 who claimed to be at the scene at the time the Appellant was arrested. She accounted that the Appellant was found with a bag which upon search, it contained the pay in slips bearing the names of PW1, PW2, PW3, and PW4. As pointed out in the first ground, this court did not find anything to doubt the oral account of PW7. Apart from failure to meet legal Page 11 of 17 procedures for search and seizure, he was able to account the Appellant's arrested at Mwanza where he fled after coming the offence. Similarly, failure to tender mobile phones did not vitiate the prosecution evidence because the prosecution side is bound to present those evidence which they believe will prove their case. As well argued the by the leaned state attorney, mobile phones were irrelevant in proving that the Appellant received cash money from four people and fled away with the money. On the argument that the magistrate referred the offence to which the Appellant was not charged with, this court finds that such fact was not the basis of the trial court's decision. Again, such fact was not hypothetical as the Appellant's brother PW8 claimed in his evidence that the Appellant fled away with his money and the Appellant himself admitted in his defence that he left with his brother's mobile phones and money, TZS. 3,665,000/-. The trial magistrate was therefore referring a clear fact found in evidence and thus it cannot be said that he convicted the Appellant based on that fact. Therefore, I find the second ground of appeal lacking in merits and the same is dismissed. Submitting on the third ground of appeal, Mr. Beliya argued that, the prosecution was unable to prove the case beyond reasonable doubt for failure to prove chain of custody and failure to present independent witness. He argued that, the person who identified the Appellant for arrest Page 12 of 17 was not among the complainants. He therefore urged the court to resolve the doubts in favour of the Appellant and acquit him. In reply, Ms. Msawa argued that the Appellant was convicted for stealing by agent contrary to section 273 (b) of the penal code in which two elements must be proved; the proof that the money was handled to the Appellant and the proof that the money was stolen by the Appellant. Referring the case of Agness Nyamuhanga Vs. Republic, Criminal Appeal No. 341 of 2018, CAT [2222 TZCA 465] Pg. 18 and evidence in record, the learned state attorney submitted that, PW1, PW2, PW3 and PW4 proved that they gave money to the Appellant on 17/3/2023. That, the Appellant had chance to cross examine the said witnesses and nothing shows that he was not the one who received their money. That, the Appellant was working at his brother's business dealing money transaction and Bank agency. He received the money for purpose of depositing the same in the bank account but instead he disappeared with the money. That, in his defence, the Appellant did not negate the fact that he escaped from Hanang' thus, there is no doubt that the Appellant stole the money. From that evidence, the leaned state attorney insisted that the two elements of the offence were proved and the trial magistrate was right in convicting the Appellant with the offence of stealing by agent. Page 13 of 17 In rejoinder, Mr. Beliya argued that proof of case depends on evidence and exhibits and where the evidence differs with exhibits, it brings doubt. Referring Simitu Abdallah's case, he insisted that failure to call material witness creates doubt which should be decided in favor of the accused person. This ground entails scrutiny of the evidence in its totality to see if the trial court was correct to conclude that the offence was proved beyond reasonable doubt. The Appellant was charged for stealing by agent under section 273(b) of the penal code. The said provision reads; Where the thing stolen is any of the following things, that is to say- (b) property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver it or any part of it or any of its proceeds for any purpose or to any person; As pointed out by the learned state attorney, in order to establish an offence under above quoted provision of the law, two elements must be established namely the money was handed over to the Appellant and that he stole the money. Starting with the first element, I have gone through the evidence in record, PW1, PW2, PW3 and PW4 works with Brae company dealing with business of issuing loan. Such fact was supported by PW5 and PW6 who Page 14 of 17 are also brae officials. They narrated on how each handed the money to the Appellant for him to deposit to brae account and how the Appellant disappeared without issuing them with deposit receipts. Their oral account is corroborated by PW7 who claimed to arrest the Appellant while in possession of four pay-in-slips reflecting the exact amount of money each witness handed to the Appellant. There was also evidence from PW8 who is the Appellant's brother, he narrated that the Appellant was working at his office where PW1, PW2, PW3 and PW4 claimed to have gone to deposit the money. It was the Appellant's defence that he had misunderstanding with PW1 because the Appellant refused to give PW1 the money she asked from him. I do not see how that could be interpreted to mean that PW1 fabricated to have handled the money for deposit to the Appellant. Apart from PW1, the Appellant denied knowing other witnesses. He however did not deny being at the bank agency office on the material date of incident to when those witnesses claimed to have handled the money to him for deposit. Both PW1, PW2, PW3 and PW4 identified the Appellant as the one who received their money on the material date and in particular, PW1 narrated that she had known the Appellant for quite long time. Nothing which shows that those witnesses had any grudges against the Appellant Page 15 of 17 for them to fabricate evidence that they deposited the money with the Appellant. In that regard, this court consider their evidence worth of trust that they handled their money to the Appellant for purpose of depositing the same in the bank account identified as Brae account. The trial court was therefore correct in considering their evidence because nothing was put forward by the Appellant to make their evidence questionable. I am of the settled view that there was ample evidence showing that the Appellant received the money from the above witnesses on the material date. As regard to the second element, it is on record that the Appellant received the money from PW1, PW2, PW3 and PW4 but never deposited the same in the intended account claiming that there was network problem. He assured them that the same would be deposited and receipts issued later. But the Appellant did not issue the said receipts but decided to flew to Mwanza where he was arrested by PW7. At the time of arrest, PW5 was present and she explained on how the Appellant was found with the bag which contained pay-in slip allegedly with the names of PW1, PW2, PW3 and PW4 who claimed to have deposited the money with the Appellant. PW8 supported the fact the Appellant left without notice and he took his money as well. The fact that the Appellant left to Mwanza and with his brother's money was also admitted by the Appellant himself. Since Page 16 of 17 there is evidence that four people entrusted their money to him for depositing the same to brae account and since there is evidence proving that the said money was not deposited and the Appellant fled away with the money, that proves that the Appellant stole the money that was entrusted to him. The contention that there was no proper chain of custody is unfounded in the matter at hand as there is no explanation on how the chain of custody was relevant to the matter at hand. On the claim that independent witness did not testify, such fact was clearly tackled in the first and second ground appeal. Basically, PW5 witnessed the search and testified in court. In fact, even in the absence of the so-called independent witness this court still finds the prosecution evidence water tight to prove the case against the Appellant. I therefore find that the trial court was correct to conclude that the prosecution side managed to prove the case against the Appellant. The third ground of appeal lacks merits and it is accordingly dismissed. In the final analysis, I find the appeal lacking in merits and it is dismissed in its entirety. DATED at BABATI this 8th Day of April, 2024. D. C. KAMUZORA, JUDGE Page 17 of 17