19810903 TZHC Mbeya

IN THS EtGH COURT OF TZAM - - AT MBEY A 29 DEC 1981 j APP1LA11S JISDICTIO Ni CRININAL APPEAL NO. 12 OF 1IL98 (oRIGINAx CRIMINL OJZ1 NO. 207 OF 1980 OF TRE flISTRICT COURT OP )4BEYA DISTRICT AT NBBY.A) B'ORF4: A.B.A. 4SI4-WA,Esq., BBSIDENT MAGISTRATB T. DIRECTOR QP .PiLIC HOSCUTORIONS OriginaL Proseautor) V e r s u 31'1ACH.AJYJOTO : : :: : : : : : : :ESP0DBN (original Accused CHARG : Ist couit; Using a ounient with i'v,tent t0 Sflead TincILpal cr/s 5 of the PeVention L T3 CCL2 L' GJóu on ct Io.16 o 971 -• nd oourit: Na1çLg afals dooumei't C;/S 1i48(a) o±. ELL23• JUl ijfijWustoms and Transfer, Tax Management Act, I. I E.L . O? / P r' - - - -V-. (S •-S • c- p ( O1 TT3 DITF Tc•r .YiT DITICT •r -.*-, J.A. ROj :. i:iSIG1 R$ID3T This 4s an appeal by thef, Directer of P'u.blic- goo' dade under section 7205 of the Crininal Procedure Code, by Mr. Nsigwa, Resident Nagistrat7e !T:e-y a.. •TTT? C11 - -' : The respondent in thie appeal, one UI'A HIOTO of uMoms Office, Mbeya wasi, 1980 prosecute4 n alte.rmektive ount. The charge 10 mislead his pr1nc1pa coi-trary to cct?94 -5 f$hé? 'j !revention of CoriZptlbii =i61 iciI4 i; :'.i5 ileged bhat the reapondent, bei,g.-a u4Voue Officer at beya, en 16/11/79 krowingly ise wit t to die;-' of is pric1pal, that 1s -the Customs pe' (sc) a -'4 contd. ./2 - 2 affairs or business which contaj,ed-'false.or erroneous material-'particulars of which h 3 knew would inisiiLead the aaid pii cipal. In the alter'ative bb'urt,he was charg. with making a falee document eontrai'y ±b c.on 148(a)Lthe Custome and Transfer Tax Maiagmént Ac1- I1ws alleged that on 16tht flovember, 11979 - in Mbeya Tcwn being a cus%oms officer he made a false entry relating to the cdntents of goods parcels in Postal form P.197 relating to the Customs Department. Evidence had been adducedi before the dstrjct court that. in 1979 one JLSN (Wi) Danish enginee& with Uyole gricu1tural Centre In Ivlbeya, met the respondent who. requested him to order a radicr aassette Recorder for him when he places his cv4 o'der for personal things overseas. Jrensen gave the respondent aatalogue and the later made a choice of the kind of radio recorder he wanted.. Jense,', then acëd'a mail order, with :flg Ko'tg fof fifteen items which jnôludéd a,4 - d SterjdRadIo Cass6tte Recorder, Polaroid eunglassc, Po.rker' pen ,'auomatic lensesi, a micros poiarsing filters, etc. Jensen claimed he showed the respo*devt the order. La4er i'i the year, Jersqi, received an advice and invoice from.HQng Keng.. He was adviseed.that the ieths or.eed by him had been posted in two 'rcels. The i,voiee, in., copies., listed the articles 'posed. and,, the pric. in Hong Kong dollarsi of each artiele Jensen said he gave a copy of that invoice to the respondent. tccerdIngto Jensen h,..wae later tobe caIledt:o respo!,.dentt s house. On ri*irtg there he saw that the things hehad ordered .ad arivod.av,d were 4nhe house. The parceas had been openédb..the respondent who was a1ready, amusing himself with mus4c, played from the Radio Ca$sette Recorder which he, Jevje.4iad ordered.: The respondent Is alleged to have t old*Tè4isev that 'he was .ia.ble to pay about five thouand... shiiJ inga •.a.s import duty and sales tax. tontd. ./3 V.. I It was apparent ,-'however, that Ov.lr a tta. Of-'G was paid Jensen took away his articles leaviiig the 69/= respondent with the radio cassette recorder, sunglasses, caàae.tto tapes, etc. -. - -d Two other prosecution witnesses gave evidence. which• I shall briefly highlight. These were PW3 Makilembo, a Postal official and P1,14 the officer in—charge of CUStB in Mbeya. It was learrtt from these two witneeses that when the Post Office receives from outside the country a goods parcel Postal form P197 or P.196 or P.195 is issued by the Post Office. This adviees the addressee of the parcel that a parcel originating from a particular outry is awaiting col1ecton.- It appears a copy of the advice is sent to customs and a'iother is left in postal books. When the addressee receives 43h0 P.197 hegoes to Pbst Office who give him the p ace1 and direct him to the customs section to pay the nqeessary.duies. The customs official would either 9p0n $he pa.'ce1in the presence of the addressee and assess imp. 'aid other duties as well as.sales tax-from what is revealed or assess the duties from a-'declaraion. On the parcel, showing a custos bill 'of entry. in. the latter c.se the parcel need not be-op'ee:d- by the customs..officials-i• Theáustos dfficial énter"o the reverse of the original of.P.197 the iteme.con'tained in the parce 1, the value thCe of and the amount of duty and or sales tax-eoflocted or each article. If there was a declaration, on the parcel then it must' be. endórse,d On. the P.497 that' duty was collect'ed'as per the•'custorns bill of entry. The-add±'essee thereafter collects hiC parcel or parcels and passes.through the postal of f±ciais wth evidence— the dup1icat of the'P.•197 which has listed on its reverse the type of articles received and the duty or duties p.aid. The postal authoritiee issue the addressee with a clearance certificate for which 'a fee is •aid and allows the addrease,e to take away his parcea birparcels.. contd.'./4 / 4 1 In the case under dsó25sià! it was eat frorn B14: that theP.197 which had been addressd to Jansen-'shOwed or the reverse , that shs,369/= had -seen i:ollectod being duty for personal-'used books, magazines atid a radio-orth sh8.6201=. It was undisutably signed by the ,rospoido'nt. -• itccording to the above ev1doice-the items oHerod by Jensen were given false and msleading descripion by the responde!lt so a s to justify an i3nder collection of duty of shs.369/= instead f shs.4,91/= which was the correct duty, as was subsequetly col&eçted On discovery of the fraud-: It was the prosecution ease therefore that the - respondent know exactly what Je4sen had ordered from Hong -s Kong, knew.from,tho-'copy of i'voice handed to him by Jensen what thirgs had been sent by post, himself collected the tio-"parcels from the Post Office, an irregular proeeduie,. opened them and, knew exactly what had been receved and clearly knew that duty would be of-aroud shiflinge 5,0p0/= yet rnjsled his priipals: by ho eitries he made on Postal foz, P.17 jo thánkig rt t&3 o4h. Qry,., •;t Sh369/_.as . 1•. :(- . j•).Lc;...) jfter all that ov1evce had boon adduced before the txa,l cou th 1earned- trI'l agistrate cot,sde 1red t1at i t a Vrih6l&'ab 1á't be. 'a&O''magistrate said thata.:it; a-obvióus .PW . Jsitws; a ap26 tha grea-tiy eakedLthe oeutir tcaee' d-4hu "great corrohoratidi:" ,i as. ihe it TheL rági tTMe :i11izeii thai itib vç1TCt that;- tho. espot1t ;Md a4 . Towlfo,th i; ship.pg aidvi-co d; ±vico. I ppi'i tJj PWl' evid-ein the:&Mdt hvtH.' t1iëe-ow copy' ot the ,±VO±Ov ;iLt dd ocdto t': magiite- itheb tba-t PWS. 1th4 ;sit& tht-o' v-itig rpdot-'is houTe lie. foud 1eYoe'it .hdald.yui'c, taehparcels fr-orn th-:pds.t f ;f.1'i&e , àndhad:p dl ;. thmai: th ef6: could otJhve ëe ior :a-d. Thk ld therddt' ihathe- fu'i d onay ne-ofthe wr.ppdrs of 'the ±' the responUet. I1f1 -n,d 't curious ,hatcthe magistrate blamed the prosecution for not.prdicig both wrappers..,... .. - Ji,- r ' ci,td -.:Ll t:t' -r '. - •i• - ---:;.- •.- ' I The defer,66courise1-•hd 4ie4. to, uggest whefl dross- examini'ig the pOsecutionvitesss that-the wrapp'à'.had a declaratio'i ev,try-•bill which .ws missi'ig from the wrapper that was produced in court as aexhibit uteve' if 1 t were true that the wrapper had adeclaratioii entry bill that wouad not avail the respordent j&-'it-is believedthat he opened the parcels and s.w the contents. No doubt PW1 was an accomplice but as sccton 142 of the Evidence Act, 1967 wouidshow,. the evidence of such a witness is 'iot "iecessai'ily unworthy of be-lief and that a court-.car, eve, co,vict or such bvidece alone. -Judicial prudence has-.requlred that his 'evidence should need - corroboration,-'but cerrobora43ive evidence is "sot obtainable from independe wi4nesscs enly as the magistrate thought.- Rather-, it is any independent evidence which may be a document, oral evidence, etc., which helpe to-'confim that what an accornplice witness --has teen- saying in. evidence is true.- I am "iot sure if corrobrative evidence was - really az 1. ;'t Tftf' rci'- IL1S ia fACSO, YJ teXmS io1295 .--• it Iv 1'te BITT"•V.'. Eri\.±33- 2 ,'4J33t th'urttofeIfr. .ast ro'a iaiid j,rft 1 t : ,''' •'r hc ' .-ic + '-" Itayot' 'eès 9'dénehat is meant by a "prima facie case", but at . .42 ruàJ xqpo,rly,, iuch directing - its m1?m. to thelaw and -'• '±'' tt de'fqnce,, -j that ste to decide finally, wether;. - , the -ei'idencëis worthy of " edrt' or. -- whether dfbelzieved :Lirt:1:s teighty.; tr i; ---1 e1ough,tqproye t1o. cso c.c.. cusivo1y:, -. 'tht'thefi',áI aëtri' tin 1. cot • pr.eri Lbeadhe, thè ca fó--"i.: 1*. t -efenoe, ha been ktearc.." ..; - .........- -. ianQthércase t- WiBIflU al±ss -MtJSi-v. Rt9 6 O7 'LA; i84;y the.cCthz1 pi as aiiied- that a- "prithà ci& ös'' doesnot meäia öase pr6vedbOyci,d a rsoa11e doiibt;-'- Qo/6 :. 4 1 11 LI In the case under appeal it sems to me clear that the prosecution had established a'prrna fade case and the esponde't (accused) should have been called upon to give an explanati. Indeed, even at tthe hearing o this appeal the espondent-tried to expain away the evidence of PW1 by saying that a number of things which the w1tnes had said were not brue, which shows that the accused person. * (respoidont) himself rali3es-hat there is need to give his version of the story as evidence which wad already recorded is such as oould resu.t in his bi.ng fourd guilty if properly considered and believed. I,therefo&e allow 1this appeal by uashing the order of acquital and hereby direct the trial to call upon the rethpondent*to be put to his doenco and thereafter decide the case On its merits according to the law and the. evidence adduced. r .. ' . •:_. IT: ... . •. .;':i "..JUD GE - .•.' t''._.- -J: I N::Kyey.eu;: Sta'te .ttor ey :and t.hë. cResondcnt,. :-px B&nt.. :u'e n- • j.c:i ...:.. Mbia t. .....r-;.......vi,. 3rd ..r •. . •;f cii -J 1 . i. -'1 c.'J. ii.'' - t I - I.. . . / . . . .-. - . .'.,-, .• . ... . - . . UC- .-- -