Nerbat Mahenge vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA (DC.) CRIMINAL APPEAL NO. 32 OF 2004 (Originating from Mbeya District Court at Mbeya Criminal Case No. 550 of 2002) NEBART MAHENGE .................. APPELLANT VERSUS TfiE REPUBLIC 0 =,«. 0 o ■o e „,, „ , o,, .. RESPONDENT Z±j E.N__g J» This appeal by Nebart Mahenge - hereinafter referred to as the appellant, is seeking to quash the conviction as well as to set aside the imprisonment sentence passed by the Learned Resident Magistrate Mr. DoS. Mrango on the 1st day of March, 200^ in the District Court of Mbeya, at Mbeya* He was charged with and convicted of Stealing by u/s 273(b) of the Penal ■Code...Nerbart is serving three years in jail. The complainant’ s case, i.e. one Fradi Zirasto Mahenge, is that on the 6th day of October,.2002 at about 10.00 hours, Mbalizi area, within the District and Region of Mbeya the appellant was entrusted 3^ bags of beans valued at T,shs*2,5^6,000/= by Fradi (PW1) to sell them in Dar-es»Salaam* The case for the appellant is that after he sold them in Dar-es-3ala.am the money proceeds thereof were stolen at Ubunga Bus Terminal, Dar-es- Salaam* After hearing six witnesses for prosem-'tior and the appellant's evidence the trial Magistrate disbelieved the appellantvs story and held that he (appellant) was not iiraocent* That he concocted a. false story to hoodwiwink the complainant (PW1) and the court into believing that the money realized from the sale of the beans was stolen from h i m 0 In this appeal Nerbart-iS 'defendsa .uy ± iu-0 Mwakoio, Learned advocate, while the interests of the x?esponderrtr"(I?<Lpublio} have been' taken care of by Mr* Nyenza, L< arnea State 'Attorney* He..-has not supported the conviction and sentsncev i O 0 O « 0 a 0 C « 0 D 0 p ^ d Mr® h w a k c l o T on behalf cf the appellant, filed six grounds of complaint in his Memorandum of Appeal* Since they are related cr refled to the evident proceedings I propose to consider then; generally in the light of evidence on record, also putting into view the Learned submissions made by both the counselo I v/ould first start by raising a question - whether the a p p e l l a n t s story that the money he fetched from selling the 3& bags of beans was stolen at Uhunga Bus Terminal in Dar-es~Salaanr? This question does not appear simple to answer because it is one based on credibility. Judicial notice may be taken on the fact that in areas'congested with people at Kariako, Manzese, Ubunga. Bus-Ter minal in Dar^es—Salaam thefts are not uncommon, indeed they are notoriously rampant and irksome. It is con-anon ground in the evidence that the appellant never reported the theft to police. But is this omission alone a sufficient ground to believe that the appellant stole the money*? Indeed, with respect, I am not prepared to answer the question in the positive* '"The entire evidence and circumstances surrounding the alleged theft must be examined quite intimately STtd••carefully. It is needless to rofer to the Lav/ on the burden of proof but it surf ices to state "simply .that it is not the duty of the accused to prove beyond reasonable doubt that he never stole the money® That burden rests on the prosecution to establish beyond per-adventure that the appellant’ s story that the money was stolen at Ubungo - Bus Terminal is nothing but a fabrication-of lies. With this mandatory requirement of the Law, I am led to consider PV/11s evidence to ascertain whether or not the required standard of proof was achieved/attained in the circumstances of the case. First, PW1*s testimony is unclear as to the price he permitted the appellant to the bags of the beans* The evide1’ - record shows that PV/1 permitted DW1 (appellant) to -u. . n o n /— Vi This sounds incredible to me because I am pre ;ty sure in mind that nobody in Tanzania, v/ould be ready to pay such a c o l l o s s d price of money per one k i n o gramme o'f beans. But even if it would b ; assumed (for argument sake) that PW1 meant that each bag of beans vas to sell at T.shs.390,000/=, simple arithmetic calculations would show fact the 3& bags would fetch a total sum that is of Toshs*1 ^,820,000/= - agair^,'absolutely unbelievable for being a too high a price not unheard of at Tandale Market in Dar~es-3alaam, or anyv/here else in Tanzania® Perhaps P.'.f1 meant that was to sell the beans at shs«390/= per kginr I find another inconsistency in evidence between tne testimony of P;J1 and Rv6« According to PV»1, after he permitted Dv/1 to sell the beans as stated above, DW1 stayed in Dar-es-oalanm for a week and then he telephoned to PW1 telling him that he would return to Kbeya. on Saturday» But P W V s witness, the'‘ Late advocate Mwangole (FW6) gave the following testimony (only the relevant portion) as follows (quoting the very words)t :i0n 7/11/2002 at around 11*00 a»m* he came to my office while in Company of PV/10 They came to record contract over the moneyo PWI^ ^explairied. _to nie_ that he sent the_ accused at^ JjsicJ^ DSM so as to^ ssll_ beans of shs*2,^+26,O O O y ^ Aft_er th.e .sell. X SA CA» sccused. called Pv7j1_ tjriroiigh tele^ phonej^ thatche^ has sold the_ bean^ and told, him he had a loss ^3iio*100oooousooooooao " (und.ersored by me)o The statement underlined above is lacking in the evidence of PW1 and this omission raises doubt as whether the appellant ever phoned to PW1 to tell him what' PW6 stated to the trial court. Since the alleged maker of the statement to PW6 never said those words in his own evidence, it remains to be conluded that the portion of PV/6*s testimony underlined above amounts to be a hearsay and this in Law is not evidence at all, Ne>:t?we have the undisputed agreement that was reached between PW1 and the appellant (DW1) before the commissioner of Oath (PV/6)® It is not contradicted that the appellant agreed before PW6 to compensate the complai­ nant T»shs.iK)0,000/- every week and such assurance was cemented by DV/1 upon mortgaging his house No<>207 that situates at Ilomba - within libeya Municipality. According to the Appellant's Counsel riro M w a k o l o , the offence of stealing by agent was not provedo That the Learned trial Magistrate stepped over the Lav/ when he accepted P W 1 5s testimony and discarded DvVl's evidence» The Magi­ strate, he observed, should not have plunged into this error especially on A - if - the fact that the hagistrate having accepted the evidence asserting contractual agreement between the parties, which agreement bound the appellant to make good the loss of PW1 7s money the essential ingredient establishing the mens rea. on the part of the appellant dissipated*. It is his submission tiiat PW1 agreed to sign the contract or -agreement becauso he agreed with the a p p e l l a n t s explanation that the money was stolen from him at Ubungo bus Terminal* Accor­ ding to Mro M w a k o l o , what remained as far as the relationship between these two people (?W1 and D W 1 ) is concerned is that of a creditor and debtor and . " that a- so if any judicial inquiry was to be initiated could not be one of criminal • / / nature but of civil pro cess* Finally he wound up by saying that the i-iagistrate was' very much wrong to believe that the appellant's conduct could not be with clean hands merely because he admitted to pay back the alleged stolen money to I-'W1o V/ith respect I find Hr* Mwakolo:s argument sound and tenable in the circumstances of the case* I have also put into consideration i*r»" Nyenza1© observations in support of the appellant's appeal# As he correctly stated, the Complainant" and appellant intimately knew each other and this is supported, by P W 1 S testimony who admitted in evidence to the effect that DW1 used to borrow money from him (PW1) 2nd. refund the same quite promptly* And. this (it) would mean they were business pa.tners in a sense and that v/ould tend to explain W h y PW1 trusted DW1 with such goods to sell" them in Dar~e s- o al a am on his behalf* The evidence is not also absolutely affirmative in favour of the compla­ inant (PW1)0 There are two parailed stories narrated at the trial court, one by the complainant and the other one by the appellant. According to P W 1 , on 06/ 10/2002 the appellant (accused) went to P W 1 5s home and told him that he lid not have m o n e y to do business* PW1 then bought 38 bags of beans at Mbalizi for shs*2,5^6,000/- and handed them (the bags) to the appellant to sell them in Dar«-es-Salaam* Reflecting on this kind of relationship it would presupose that P'v/1 decided to assist DV/1 by engaging the latter in Uis business as a neans of empowering him to raise .capital for doing business* it was in that 0 3 0 9 0 d 9 0 g o > 4 9 d ... /5 process the proceeds of the sale of beans were said to have fallen into .the- hands of thieves. Nov/, if PW1 l e n t .to DW1 valuable property in terms of goods in order to do business what would be required of the appellant.would be to pay to PW1 the equivalent sum of money worth of the goods given to DW1 by PW1 'and not to initiate criminal proceedings against the appellant -=■accused* Proper legal action to take by Fv/1 to recover his money .lie spenc to buy the goods would be Civil proceedings The second story given by D\v1 is t&at on 6/10/2002 the complainant Fred Mahenge bought 10 bags of beans and not J>6 bags as claimed by PV/1 • That Pv/1 requested DV/1 to ferry then: to Dar-es-Salaam when the appellant had 28 bags of beans belonging to them, thus making a total number of 38 bags of beans he took to D 1Salaam,, Nerbart (DV/1) further said that his 28 bags of beans valued at T.shs.1,020,000/-; and the 10 bags of beans belonging to PW1 worthed shso 650,000/- - making a grand total_of T „shs •2, k'/0,000/- e It is this money DV/1 claimed that it was stolen from him at Ubungo -Bus Terminal. Two witnesses (DV/2 and DW3) gave evidence in support of Dlv1cs testi­ mony. DV/L’ s testimony 'is'to the .effect that on 30/10/2002 DV/1 requested his company so that they could go to the house of PW1 to inform -him about the theft episode in D' Salaam. DW2 said that he heard DW1 telling PV/1 about the theft. It was about 8*00 p.m. after DW1 returned from Dar^es-Salaam. Meftali Mahenge (DW3 ) confirmed-.that__he hoard PV/1 complaining that DW1 owed him (PV/1) shs.650,000/=--. v;hich DV/1 allegedly said it-was., stolen from him. He further said that D W 1 was able to pay Fv/1 s h s .150,000/= against the debt. of Again, upon examining the evidence^Subira. Dossi (PV/J.),Amenida'nji K g 5ao (PV/5 ) and Mestia Isaya. (Frfk) I find it hard to conclude precisely as to how many "bags of beans PW1 gave to DV/10 Starting with Pw'3» it is in evidence that the witness sold to PV/1 and DV/1 15 bags of beans -at shs*65*006/= per bag (total cost 975,000/=)o In cross-examination PW3 stated that she received the money from the appellanto 'vithout further clarification as who was the t owner of the money, it is not possible to say affirmatively in this appellate *■“ ~ 9 ' "l / rr ^ - o - court as Who between PV/1 and DW1 bought the bags of beans ^ - es.ch contributed hence a question how many bags beans each bought? Kestia (PW^-) informed the trial court that he sold ten (10) bags of beans to PW1 and DV/1 each, whereas P'..'5 stated that he sold, three (3) bags of beans to PV/1 and DV/1 but that the person who paid him the money was the a.ppell ant (accused)* In the totality of such testimonies the case for prosecution is left with several unanswered questions, but in particular on the question to DW1 whether Fv/1 handed^3& bags of beans or 10 bags of beans*? These gaps were necessarily required to be filled in by the prosecution and not the accused*, The Lav/ requires the prosecution to prove its case beyond all reasonable doubt and that such burden of proof never shifts to the defence® I am therefore satisfied from the totality of .the evidence on record that the prosecution failed to prove its allegations against the appellant beyond r e a s onabl e ‘ doubt* In the result I allow the appeal, quash tbc conviction and set aside the sentence of imprisonment* ?o 11 owir-g"tiis -finding, there­ fore, I hereby order that the appellant should be freed forthwith unless ~hA2_jLs..q^hgi2w i g Q ^ ^ f u l l y .held*,„It J.s hereby so orderedo /V■["' A a C « r ii.'^2vIA JUDGE. 0 7 /12 /200^-5 Delivered at h beya in the presence of Mro Nyenza, Learned Counsel for the Itespondent- iRepublico Appellant is in the prison and did not wish to be present* ' .i. - k o ' j o •JTTDG^ 07/ 12/ 200^. ACM/krm