19821206 TZHC Tabora

'. ~ (,-' - ""'v I IL THE HIGH COU.T CF TANZANIA. I. . AELLATh JURISDICTION P (Tabota Pegistr)) HIGh CCU1-.T CP Th'I pPPE I NO. 52OJ 19&4 CPIGNI Crp.INAL CASE NC. 636 O 17 ) 6F: 1 T}I IST[CT COUhT 01 NZLG ESTICT P 'ZE2GA BHOPE S.J. LP ENP, .ES , SIPE'qT T G1STTE .1 JULA ?i}i.AN GIL .••••• •• •••• , • .e . . . • • • . . P?L,LANT 0 : . .... ........................ rierus TLE EPJBLIC ."........... RESPONDENT I 1 cqARGE: ealng by Clerks c/s 71 an 265 of the j-4 ••.. .. . ) ..;. . - PefLal Code Cap. I 6 of the Laws, r iJ:,, :. 4 ) JUDG ENT' / r / 000 3.: J4ANGA nd three othersfl were " joiflt1r charged with stea1in by seriant c/s 271 arid 265 Of th1 'ena3. '1. •;t. Cde. He together with atlot-ieF one ere 1omndogui1ty the offnce z r'e an çonvi.-ted. T achwas sentencedseven years 2mpr1spnrnent, the dtenc. eng subjfct to confirmotiOn ay tl1is court. Th ppel1ant f1d one Giolon TyabIi1'pise the b h lyj otIer p tersoft who' eot convicted oetMer -wth the aTp.]44nt were errplo'yeaa /01 the Natio'rai 'i1ing 1 . Corporation a ttiikiie,rThe : ppe11 ant has bdei Va.'ious1y 2 discribed in the course of the proeed±ns. 1 dwin Milling Cpor'tion at Bukone tted that the appellant c - -c o tç a.OflaJ. wasn 4 acdo.ints.C1*rk at the BU'kêne rii] Christian Paul a branch anaer atTabpra under whom the 3ukene National Ii]ling Corpofatlon offices Ccli desc.rn1bed the appellant as ttCaiier ie had 2" - described idionTyba 1 Li1amps çs "Cashier No.1 11 9 Whatever the label 2 ooth P...3. and P..5 stated that the appellant an1d the said idion Tyaa Lilamp'ise the first accused during the trial and whom shall hence fort1 call the 1st accused fOr ease of referehe) each kept a key to one of the, .locks.o± the st•rngrom. The strong room had tsO ocks he ippel1ant 'hod a key to one - of the locks 6nd the Lst.accus€-d hd.a: key to, another lock. To gain t - the- strong om I . the r . appellant and the 1st aCcuSed h-id to each un1oc the lock for which he held the key. This was used as a security measure for inside thf. strong room were kept noneys of the Corporation for tie purchase of c&racultural rroduce. This the appellant docc no ciis ute 44 it is in evidence that the 1st accused as cashir received various amouts from the Corporation's ranch off i'ce at' 'bora' ".-Phe rocipt of the..4üms w -e witnessec )y t •- ;:e is put in the strong o 0 M Tbi v*uce is not spte appellant AS a further.securtty"ra1Ur , one. 1osnot get to where the4 eas - iIept irrd1atly on opdn'i)ng t 1 iema.in.- strong roorn dooz'.' r hre js nyte- 'b&'e one gets to where cash is kept. Cnly the lst•.ac'used had the key to t h e lock of th Stanley (p.T,l) and Christian Paul Mdanii (Pi'T.5) ttstifjed tq1syfa which I accept as the true position of the lay out of the .1 'Dl 'I 4 4 stron. room. Pi as . further measure of security, 1 the money is put ih a cash box ins,ide the strong room Only the 1st accused had the keys of the cash box. According to the evidence of Chiistian Paul Idaii J'1 J I I 1 jI 4 there were three cash boxes. Godwiri Stçt.nley(i.%4.l) is not specific on the numhe,r of tho cash boxes bt talks of,a Cash box whose key ies kept by the 1st ac'.used. It 44 4 1 .1 1 was insi • de a c'ash box tIat T.Shs,.3,221/95 wns1ound on 6/8/76 when the strong room was opened in thebsence of t,e,Ist .ac L8 d u,sip. 40 .0 , nji.4 .., spe.ciali jOfl. locks 1 fror wanzA. I ' 14 The pYosuitio.n4 'há'd al]. ed tht 6/8'/76 siioU1d' have iS';en fou'nd' 'in dition'' t' It is. fall tht' the l. 4 àcctis'E1 appellant were found' ui1ty 4bf a4ring 's'to.Thn. ..• . 4 .....'..,', ..' t. The appellant has in his •defënesttod that at the time of the theft of th n on­c ys, he was i y in Taoora with the perr.ission of his officer in charge (j?.1J.l). This as on 1/L/76. Jj€ stted furt1er tnat '':''' •'' . ': ''.:' ' he pn told, b.y,P:.l,to lock, of..'he.. strong '' room for. hich ho 'is- as. ,ho1in a., key open, so t. tIie ,1.t acc.useç ,could. ,have ac,ve.ss his ('appel,lan'!s) a'g 4 c,.. He stuite.d.t}at .P. l had givei. ! him this directive after he (appe).nt) had sartd, 1 1.haxid the key tohim S ; . the r .eu1ationS±cuircd. PLhc refused .'- - !. -•• • -.-,'. . t. o ccept the ky an'd had i ns t e dt o Ldiü iot t,.-. loL his side. The appe1ant sttcc1 tl't 10 hd 6,p1i ,ith this irective. The app11ant cc311d êrnardhariri (D.1.5) to suppoit his tqry as regards the directive to çiir D P.Jeb1; Ber1ird Hariri confrmed tI - e tes' txIroUv of he appe11nt to t extent of the exchine etwen j?..1 and • J. 1 )J the appe ç ) uiü w. C, USL.L1Y on i,nethr or not the appellant h-i actuallr Lef't his )oc'r qpen as directed '- by p. . i. •1.. The 'tri.l tgstratc found that the appelldt nc the 1st accused had acted toaethEJr.th istealing t' -ie money. He dismissed the efnce of the appellant as lic. ent on 4-to state that rh ii ani of, twanza ient o open the strong room dobr, he had found t at both the Jp1lant's and- the 1tacthséd locks hØ ben'locketh The ipèilant 1- - 3n. his nemorandum of appeal his. chllenged ;this - --- find1rg sttin that'there was no such evidence. have lcoIed through ithe record -nd have fdlled to see it. rit%j ' i Was not cal1edto testify and nobo'dy else testif'ie ot't -iis point. This finding of th-. trial ragistr te h o basis. The critcusm df the ..ippellant is clL foundtd. I haVe not h-d thc advnte s the tria1 rnagistrate had of Sessln€ the itnsss thrbu,h tL-ir'dc leanors in 1 4 44 court. I have to go to e 1re extent titration ry the C — ji 11 of the Vrial ourt taking çr that e prEs1ons of t}e - - I - -- '.- • -. 1.. trial ádui are uceo ti oril arIa 4 (icumntary eviaence. In conV 'irj he tral r 4 itato h- foiMd tJ- e prosecution witness brdi1 }6 cd not unfprtinate1 na%yse their evidence lôse1y Tne c'se agapst th€. poll t stnds or flls.on whethcx' or .iot P 11] had ctu4-lly tolc the appellant not to-lock the strong roonl te ]1E -ccess to the strongroom to the lt acisod in tht appcllnt s isence a-id if he (p.".'l) hd actually doie so • ctl-'er the appellant 1 had4 complaed with' the dircii4e.1 1 I 13'ih Cv1c1ce of the appellant that be knov %F'y the sccurity reasurcs r€garding assess to the strong root" were i nsti+utoç i Phis to ensure that no , "re Lfl' cuii h a d an css tn the stro.g room by oneself. jt ill tirt S that tj,c stra room 1 open4ecj 7 two people have to be present 1 Th.appeI1ant knew or must have ñoin t1'at this ias - - d person' responsibility which was not divisible. If any-thing went irrong, he would be the one to b h c]d resonib!em. The appellcnt knew, andain this is from bs on videnc.,. tat the set procec4 ur as tI'at if, he t ' to Ic ye ukene, he was supposd to hand oer th' keys to t1c o±ficer in charge at 3ukenc 1 . P. .1. This had been followed in the paste Thj- procedurc tc c1i the ippc1lant stctoc wa s opte(A )y) Pirti as ctrorcirirv to say the least. I do ver asLce9 the appellant to leave ')iS lock open. I hold tl-e appellant and D.1 T .5 lied in this espect. The ppel1ant had tø keys t9 the stroriro.on\ and had not left his lock opOfl as he testifie d' ±n.Lcourt + The appellant anc thL 1 s t accus'hd btsttd in the.r tei-timonicsuthat at the end of the dy an 1/8/76, there sas.ovr TShs lCO,OC(' 1r1dLthe stron room. I accept thL prpsccution evidence regarcing the extent of the lost. :i had b.cn tra.li'd o,y the fact t{tr Ln only the 1st accs€d eçried to have hen ke epinZ7 accounts of what was iusit3e the c a s h boLs. F-owver looking atr tbe evidence of k' , j -'. . 5, the 1st accusd and the1 • I ape1lant as a iThole, one Lcts a ciLan p1cfirctnat tbo appellant kn'w at ach roment of tinei9s - mch was - -c. inside the strongioom p .5 callcd tI cant I -- -, "cahÔNO 2 11 whosc duties wre 1.6&ntica1 to those of te 1t ape1ant. The tw"wcrc woxkin in turns i.e. w hen' tre irst 'iccused goes to th vlliagcs(the . .-• ... - -' apo1lant) rethining at the stator" P,r.1 stated that "-neithr.th.ist ccused nor tb appellant". cu1 ot mh(t roni the 1< without th eoopiat ion f the ot 1-ier. P.ill,.further t&stifi teat whcr it is decided to make pyront to t 0 o i, first oatained fromth c,ncern(c or rrd sretary. This xerci.se is c'o by l io thLn inform-i , the 1st accused. The ls, acc'usd 111 f-urn 1nrrng tcic appellant to eab1e't1e ett1P9 of ' the 'Oeys Iror c sronoom. At all -tims, .tho.e fore the Ppe11añt knew mhat. Was. incide the strongroom. I have .1 accepted 'tie evidence ot P.1-.1 ' 4 that he nevdi aVt ,the itv to thc. c r p e Ji an t within -. - - - -• S tie hearing of D .59r any other tirr. tl'at he ape1iant) leave'his lock p1 te stron, rbor' open. I find P.1.1 I 7 -( - a responsible public official who knew his duties.. Ifind that the appellant had .cooperated with the 1st accused in stt;,. ali.n8 the sur. of money for,-Y,i.nL the substance of the charge... The tirc of stealing is put as 1/8/ . I find this date's ainifi.cance only as hein the time that some measures were t3heii leading to the discovery of the theft. The roney could have been stolen on 30/7/76 when the off:ice last received money in the sur: of T. Sbs 2.0, 000/ from Tabora. For the reasons set above, I find no r:Erit in the appeal which is hereby dismissed. The sentence of seven years is appropriate.. It is hereby confirmed. - ...- YiHYA T:U3j.I 3 Tj D GE 6th December, 1982. 6th December, 1982 9 Coram: 1ubarna Judge. Mr. Shaidi, State Attorney for the flepublic S Appellant - absent. Judgment 1 TA3 Oi A YP 6th December, 1982. JUDGE 0 0