19750523 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA APELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 319 OF 1974 $ ORIGINAI CRIMINAL CASE NO. 1047 OF 1971 OF THE DISTRICT COURT CF MOS}I DISTRICT AT MOSHI BEFORE:- J. J. M, MACKJ.NJL - Resident Magistrate •AW•SONSiWE.................... . ........ AI?PELLANT (Original Acsed') versus' •..THEREPUBLIC .................... .. •.,..,RESPONDENT (Original Prosecutor) • . .LU GIVIEN T JONATBANJ .. • ' The ajpellant, DLWSOi SANE, was charged on -11 counts Of ètealing by public se±'vant, c/ss. 270 and 265 of the • Peflal Cbde. However, inth,course of the trial the 'Posecutin withdrew thre3 of the countsthis: on the grouQd that they could not lead sufficet. evidence, The court. also granted a proscution epplication to amend two of èmainin.g.charges to be counts of stealing by agent,./273 (b) and 265. The trial continued and ultimetelr; the cour in its judgment convicted the appellant:oftwo eñts of stealing:by public scont aid of the to counts of stealing by agent.. He was acquitted of the remaining 3.charee. . The convicti:.bns'were on cOunts, as renumbered, nos. 1, , 6 and 7.. In con.se'quence, he wa.eerbc.nco.d to a Cubsintivd term of 3 - years' iapris.onment. From these cbiictiOns and sentence th •ap5e.aI •has.been hroug.t. The appellant w. - s employed by the Ministry of Home Affairs as an accounts assistant attached •to the Office of the Kilimanjard Regional. Police Commander (.R..E.C -.) ... It would seem that one of his duties wEs to effect •:yméht of salaries of certain categorieC of, the e.loyees Cf .that.M.ini' s:tr y .. Dealing, only with the counts ground in the cotwict ions, it was alleged in counts nos • land 2 that he stole the sums of shs.351/75 and 614/=, respectively,, being they property': of his employer, and in counts nos. 6 and 7 that he stole the sums of shs.73/65 and 29/15, bsirg moneys entrusted to hmb'y Police Constables JULIUS and ANTHONY, respectively. It will be conVenient to consider the evidence relating to each convictiOn Ceparately. The ertire investigat:ions were the result Of' revelations relevant to the facts of count No.1.. It seems that after the leave of Police constable ASSERT (P.W.11) was appxoved to start from September Ist, 1971 the appellant prepared,'a voucher to get him paid salaries not only for the month of 'Aust buf also for the succeeding two months. However, the leave was later suspended following ta Tanzania/Vanda bdrder incidents of that Period an ....conCtc.ble ASSERT, although he had signed .the payment voucher for all the salaries, receiVè.d the. salary... of thE month. of August only, the other • salaries 9 amounting to sh.651/75, being withheld by the • appellant,, apparently for remitting back to Governoent.. A few das later the suspension was lifted and constable • LSSERL'esumed;his leave. •He then appears to have called on the apellant for the leave salary advace.; •but the appellant • said he had returned the aonoy to the hnk and asked; him to come back a few days later. - . • • •: - •.-t•--.- • 6v. j Subsequently,on three . succossive occasions he again saw the appellant for the money, but it was not forthcoming, this according to theappollant, :beause he had yet to get the money" from the bank. The constable not being saisfied, on Soptebor 17th.saw Mr. Dafa, the RF.C. (rW. 10), The ppellan when asked. by Mr. Dafa seems to have sad that he had handed over LSSERI's rqrey to .e.rgeant Major iIDEON (P.w. 12) fdrd im..ta pay it over to the Internal Revenue Officer. This, as subsequently resiled from by appellant, transpired to be a lie 1. for, Sergeant. O-icleo.n when called by Mr. Dafa was clear 'thot he had not received the money from the appellant'. That led to a search being made of the safe which was in the charge of the pellit The accounts of Mr. DAFA, the investiatingofficer Chief Inspctor ABREO ..(F.'Wi), Sergeant GIDEON and ASSERT ShUW thet some papers were found contained in a bag which wasin the safe, but there was no money, except cents -./35only. However, nefly one hour later the appel1ht broue'ht forth an envelope, duly markd, containing the sum of shs351/75 which the acbused said, for the 'first t.irL.e, that that was part of ASSERI '5 money, and that thebaiance..of ss.3OO/=, had been paid t.o oneMiss.'NYAMBO, a teacher employed by the Felice 'Wefare Fund. ':This latter part of the statement transpir: . to be tie truth. Mr, SAKAYL (PJ.6.), an executive officer in the office of' the conf!rrned that, after it 'VVC)S not possible to get a certain sipnatory officer to sign the the quo for paying the salary of Miss. Nyambo, he had ask­&4 the appellant topay her out of sorne dther source and to have such money refunded soon after getting the cheque signqd. The.:officgr duly gave appellant a' chit for receipt of such amount. The apel1ant had t'hen duly complied by paying her out of ASSERI's money. The appellant's defence, as already stated, was that he had paid Miss NYA1O out of 'ASSERT's eoney. Then' he went on to saythat,when ASSERI askqd for his money he told him it was with SAKAYA, whowas then away'.. Inthe light of ASS'ERI' evidence and that of Mr. DrFA i the appellant! s statement that he so told. ASSERI, as he ne admits in his petition, could not possibly have been true. He now says he vas:.no.t bold enough to tell ASSERT that he ed pai. ' out part of his money. The real question was, howoer, whether' the sum of sh.3e/75 was in the safe when thealleaed"se.arch zi was 'made. Both Mr. DAFA and Chief Inspector LEREO in their evidence contended that they looked for any money in the afe but that, apart from some documents which the appellant took out of the safe, they did not see any money ecept, of course, the thirty five cents. It was the appellant's contention, on the other hand, that Chief Inspector IIBREO whenhe' required him to 'open the rfe only said he. wanted him to hand over the monejy ut he would not say which money, and that the allege° search was very superfidial. It Would aar pp from the evidence of Sergeant G-I.DEO aid Constable 1 the sea.h was not as thorough as P.W.i: and P.W.10 would. seem to. suggest. The first two witnesses are clear that there were many documents in the :safe which, abcording to Sergeant GIDEON, were in the bag and were not 'checked. As already noted, the roonhy which the appellant later produced 'was in an envelope which was duly indicated toontain ASSERr's money and in which the chit ssned by SAKAYA was encloeft. There was every possibility, there.fore that the particular envelope was one of the many' documents which were not gone through. - SS•S• • • • • •// 3 S 5' There was no evidence tha the appeilant' after the alleged' • search lef; the promises an 1 so ha opportunity to •ovr up the crime by procuring the monay and .clandestinely putting it in the safe, and there was in the circumstances doub± that the money nay have been intact at the time of the search, this notwithstanding that, earlier -bn the. appe11at 1ad prearicatod as to he fate of'the money.. The appellant wos not arrestri , l until about a week later which, • ann' it is not insi. ificcut to piit obwoul 1 suggest that ' the R.P;c.ana 'the investigating officerdi'd not at first rule out the possibility hct at the relevan' fime the money may have- been intact,, and bat they decid.ed to have him 'arrested,oly aftr there had been the allegations upon ' which the other chance are founded. Accordingly,' I would 5'-- give the appellant to bene'it of doubt, and set asi'de the •,4iconviction on count No.1. The evidence in sup art f the second count was rather thin. It is to be .fiund .rnly in the evidQn cc of consta'le ' B1ILBLS (P,.W.l6).. It seems that, like constable ASSERT, he - ias to go..on leave n.1; the end of August, 1.971 but that the leave was shortly thereafter suspended. According to him, ;k he signe a payment vouch r o be paid slarios for the - months of August, September and Octocer, but in point of fact, he received only th".: Auguat salary. This' becatse upon the 5 sujpension of the leave the appellant withheld the other -' sala'i-e'.and said h; 'ou1 return them to the Internal - Revenue Offic?r, a inst a G.R.R. The.witness was later • told by the,R.P.C. thet the appel'ant hed. not handed over'the money t. th6 Reonue Office.'- Obviously, thi: wC.slhearsay. There should have been evidence,but it' was 'iot•.forthc.oning, to shOw whether or net tb' ajpellant returned the money. At the hearing f this ape -•l I drew the iearned St'ate' Attorney's attention,to the apparent lack of such, evience. To thie su ,nn I mr, y say helf heertedly, that uch,.evidene is.te ho"fci',nd in the account of Sergeant GIDEON. With 'respect., the witn .iss did not sa-y any-thing in relation to Barnabas' money. Has'•id when he.. was called by the R.P.C. he was 'asked abc-ut hSSEThI s money only, in answer to: which, as a1rady noted, h. said he had not received the sum of l/7 being ,ASSEEI's a-:ney. 4uch roply. coul'- not possibly extend to the sum ci' sbs.61e/= charged in count No.2. Assuming, therefore, tbct BARNABAS told the truth whefi he sai he did not receive t1 is' sum, thero should have, been • evi de n ce led to sho-o that centrary to the appellant's undertaking, the money wac nt..t infect ra.r:,itte'd back to the Inte•rn-al Revenue Office.' • ' The appellant in his ofeace said he .peid the money; to :1.BARNABAS and he did not take it back, this becaise the , witness gave an unclortckirg to'hand over the leave money to -• . Sergeant GIDEON, thrugh vhcm a G.R.R. would be iOsued for Lthe that sum. It isnot indicated in the evidence how/offnc'e came to be discoverd. T ro is no suggestion that later, say when the leave bar wee lifted shortly thereafter, BARNABAS asked for the 1e ye money and, ho did not get it The witness said he wes paid in the presence '-of a Sergeant JOPHJINCE. Significantly, however, this police officer was not called to bar out the sta,ement of BARNABAS that the • a.pellant retained tOe leve money. ' Against this, however, the record at one paint when the appellant was being cross €xamined shows him as having admitted that he retained the money. ........,...../4 a The relevant part roads, "It Is true that I rcthino the leave salary ofter * hering that P.C. .Barnabas wad not going on bays not' ,id I change the entey on that reason .. . ,(the underliningis mtne) The.appellant had all along stressed that he did not ::etain the 'money.' He must therefore haveturned full cii'clh i'f he#trie.n saId to the con.trary, It wuld, however, appear.thnt the word "not" was Inadvertently omitted frot the reorda:i thet the app•ellnt as caintaining his :enial thot he hod reained the money. That there was such emission scores borne out by the presence of the word "nor" ir the passage I heve quoted above and would appea.r confirmed by the app elIcit s evidence in the re—examination that followed. In view od the defence evi: 1 ence and the - rather unsatisfactory prosecution evidence the lower tourt hould, in my view, have found colosidarablo doubt that the appellant may not,1ave renecL the money. In any case, the prosecution case, -as I oberved earbier,was too thin for a conviction, an the- oa.rr.or resident oagisrate on a -proper approach would net have alle upon the appellant to enter a 'defence on this coun. The. trial had taken very-long, SieaflTiflg over a pen )dof nearly 3 years, and given the maze of evidence and the oultiplicity of the counts before him 1 he can e forgiven, for the over sight that the prosecution had not really: laid: a su-fficiurt basis for a convic-tion Acordinrly, the. convictie: is set aside. Counts Nos:. 6 nd con be dealt with together4 'Accoring to -both contrbbcs JULIUS (P.W014) and ANTHONY (P.W.l5) each of them ewd hc Police CA?'TEEN some money The bill for the-forerdr1whs ths.73/6 tnd. that for the latter shs.29/l5, These wero to be -Jtuctt fror- theirsalarios for 'the month of 4Uest, 19714 They claim to .hve approached the appellant at too. end oc that mnth for their salaries4 The appe'llent, they say, ocked them to got their bills from • - thOr canteen 'so as -to enable him. to do-duct at source the sums they oyved the canteen. Th:.r cloth to have duly obtained the • hills and subnf -tted then to hire, who then proceeded to make the deductions before ayirr them their salaries4 The evidence of these witnesses seers borne out by that of Senior Ins;ector MATOm (P.w.19) \- -}ren he s.ys thst' Constable- ANTHONY took canteen bills 'r'om hire. Constable M.ATAMBA (P.W.20) was the canteen manager. The procedure, he said, for • effeciig -deductions was tL t, he would send dGcluction sheets to the respective cashiers end that, after the deductions wore made they were to be Landed over to Mr. SLXAYA, * presumably the oxect -bivo officer, f-or onward transmission t the canteen. Thu witness would then issue receipts to the respective consumer :ayees. He was clear that, although rany bills-where sent out,- he did not'roceive any deduct'iot*. for the month of Augoest, 19l. Unfortunately, although the executive, officer gave evi'-mce he was n-ct asiced, nor lid he say, anything rebatin to canteen bills. The 'possibility that he may have receive-I the Ic Pectiuns was therefore not excluded, -- ' - The appellant in answer to these charges has deriel e.ying out the salaries of JULIUS and LNTFrDN.' However the learned trial mariretre±e rOected this denial and convicted on the evideco of the two witncsse whom he. found to be truthful. He had t}au advantage of seeing and hearingthe witnesseè and his fibding onaratton of credibility bannot 1ghtlybe upset; this court can interfere- only if h - aisdirocte himself in any serious way in reaching the conclusion. . ..._. . oi 2:. G. Now, he noted that the witnesses had no reason to tell lies. But as pointed out by the appellant in his Petition, although the witnesses may not have been ill disposed towards the appellant it could not be said they had no interest in the r!a'tter whatsoever. Of real concern, however,.and this has given are considerable difficulti, is the failure on the part of the prosecution to make certain documents available to the defence.. Thc appellant, when constable ANTHONY was giving evidence, made ar-applica.tion to have. the. relevant acuittance payrolls signed by the two witnsses produced The appliCation ws:bpposed by the Prosecutor on the ground that they were irrelevant and that for this reason he did not have them there. The cout in its ruling, which is none too clear, in effect refused the application, but left it open to the appellant to reapply for the documents when putting in his defence or to meke reference to them in 1is. submissions at the close of the trial. It is not clear i.f there was a fresh application for the pay-rolls although the appellant has said he did reapply and was again refUsed, but the appellant both in his Petition and at the hearing of this appeal has complained against the failure to make the relevant Pay-iblls available. The learned resident magistrate, with respect, should have indicated why he refused the application. .Ifthe refusal was for the reason stated by the proecution, then clearly he was wrong, in-as--much as the documents, in the context of the evidence, were particularly relevant. The defence was the appellant had not paid out the salaries of the two constables, and the payrolls would probably have shown who the paying officex was. -They would also have shown, I presume, if there were any deductions made from their salaries. Can this court, in the circumstances, be sure that the payrolls, had they been made available, would have shown firtiy, that the appellant was the paying officer and secondly, thtt the deductions were made? I think not, and the appellant would be entitled to the benefit of doubt that the payrolls had they been produced would have been more favourable to the defence case. There are a fev other unsatisfactory features in the prosecution evidence. to wh.ch the trial magistrate does not appear to have adverted. Firstly, police Constable SHiBAII is said to have been present when the two constables were paid by the appellant. However, he was not called although he would have been an important, and perhaps the only,. eye- witness, apart from the payecs. Secondly, according to ANTHONY, constable YERONIMO was also present.. But it would appear from YERONIMO's evidence and that of his wife that by the end of the month of August YERONINO had left for Bukoba and his sal•- ry for that month had to be received by his wife. Finally,, there are the accounts of Mrs. WAIBURA (r..w5) and Mrs. YERONIMO that, when they were paid by constable BRYCESON (P.W.,13) they signed the canteen bills to show the deductions had been made. . One would think, therefore,. that in the normal course of things ANTHONY and JULIUS would have signed the canteen bill sheets to show the deductions as having b e e n made.. This they do not appear to have done, nor do they seem to have, asked for any kind of receipt.. There was, therefore,. nothing to shaw they had paid up the bills. All consided, I cannot say that, had the trial court adverted to the discrepances and the other unsatisfactory features in the Prosecutioii evidence, it would inevitably have come to the same decision.. . .. . . .. .. .. . . . - 6 - Be that e..s it may 9 .1 could. not without qualms convict in view of such eidence, and I would give the arpellant the benefit of doubt. . In the r.sult, the fel is allowed enr 1 the convictions • and sentences are set aside. The apllant should be set at liberty. (P.. M1 JONiTHLN) JUDGB • • Deliveed in open court this 23rd.day of May; 1975.. 7 (p. M JOi\TITHL) /MTPM JUDGE • .. • • .1