20050603 TZCA Tanga 1

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MUNUO, J.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 108 OF 2004 4 DIRECTOR OF PUBLIC PROSECUTIONS ............ :APPELLANT VERSUS NORBERT ENOCK MBUNDA ........................... RESPONDENT . (Appeal from the Judgment of the High Court of · Tanzania at Tanga) · (Mkwawa, J.) dated the 28th day of May, 2004 in Criminal Appeal No. 19 of 2004 JUDGMENT OF THE COURT MSOFFE, J.A.: In the Resident Magistrate's Court of Tanga the respondent, an ex-police•officer, was faced with a charge which read as follows: "1 5T COUNT: STATEMENT OF OFFENCE: Destroying evidence c/s 109 of the Penal Code Cap. 16 of the laws. · 2 PARTICULARS OF OFFENCE: That Norbert Enock Mbunda charged between 4th day of December, 1998 and 29th day of June, 1999 at unknown time, within Muheza District and Tanga Region, willfully and unlawfully did destroy evidence vide Criminal Case No. 1400/98 of !LALA DISTRICT COURT AT KIVUKONI DAR ES SALAAM to wit he failed to produce exhibit Tshs.4,700,000/= obtained after search from one DENIS MATHIA. 2ND COUNT: STATEMENT OF OFFENCE: Stealing by Public Servant c/s 265 and 270 of the Penal Code Cap. 16 Vol. 1 of the laws. PARTICULARS OF OFFENCE: That Norbert Enock- Mbunda charged on 4th day of December, 1998 at about 01.00 hrs at Kilulu Village within Muheza District and Tanga Region, being a person employed by Ministry of Home Affairs in the Police Force as an Officer Commanding Station Muheza Police Station, did steal cash Tshs.4,700,000/= the property of one SEBASTIAN S/0 FREDRICK @ MAUNDE the property which came into his possession by virtue of ·his employment." 3 After a full trial the above court, Yongolo, R.M., acquitted the respondent. Dissatisfied, the Director of Public Prosecutions appealed to the High Court of Tanzania at Tanga. The High Court, Mkwawa, J. affirmed the decision of the trial court and thereby dismissed the appeal. The Director of Public Prosecutions is still dissatisfied, hence this second appeal. It will be noted, however, from this very outset that the appeal is against the respondent's acquittal in the first count only. Otherwise, Mrs. NJ. Ringo, learned State Attorney, submitted to us quite emphatically that the appellant Director of Public Prosecutions has no quarrel with the findings and conclusions made by the Judge in the first appeal regarding the second count. Briefly stated, the respondent was, at the material time, an Officer Commanding Station (OCS) stationed at Muheza. In that capacity he received a letter from Magomeni Police in Dar es Salaam seeking the arrest of a suspect in connection with the theft of Tshs.32,000,000/= committed in Dar es Salaam. The suspect was alleged to have fled to Muheza after the theft in question. The letter of introduction was brought to the respondent by DW2 Mohamed Ibrahim Ally. In reacting to the contents of the letter the Muheza 4 Police under the authority of the respondent neted one Sebastian Fredrick and several other people in connection with the theft of the sum of Tshs.32,000,000/= which allegedly belonged to one Michael Yhdego, a gemstone dealer. In the course of a search, out of the reported stolen sum of Tshs.32,000,000/=, a sum of Tshs.4,700,000/= was recovered from the said Sebastian Fredrick and his co-culprits. Thus, the appellant's case, in so far as the 1st count was concerned, has all along rested on the premise that the respondent destroyed evidence because the recovered sum never found its way to Magomeni Police where it was expected to be exhibited eventually in evidence in court. On the· other hand, the respondent's case was, and indeed still is, that he gave the above sum of money to DW2. According to him, he did so because there was no safe box at Muheza at the time in issue in which the money could have been preserved safely. At any rate, he went on to say, he had no reason to doubt DW2 who was sent by the Magomeni Police, in the first place. He was supported by DW2 to the extent that the said DW2 confirmed to have received the sum of Tshs.4,700,000/= from the respondent which he (DW2) eventually gave to Michael Yhdego. 5 Needless to repeat, this is a second appeal. In a second appeal the court is always cautious to reverse findings of fact made by courts below unless they are, on the face of it, unreasonable or perverse. Indeed, this principle was reiterated by this Court in Neli Manase Foya Versus Damian Mlinga - Civil Appeal No. 25/2002 (unreported) at pages 11 - 12 wherein the following passage by Sir Kenneth O'Connor, President of the defunct Court of Appeal for Eastern Africa in the Case of Peters Versus Sunday Post Limited (1958) E.A. 424 at page 429, was quoted with approval: "It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence · should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion." .. 6 The crucial issue in the appeal is whether there is anything material upon which this Court could fault the concurrent findings of fact by the courts below. Mrs. N.J. Ringo, tried her best to convince us that the offence in the first count was established. Her main ground in that regard, really, was that the evidence was "destroyed" since the money did not find its way to Magomeni Police where, as earlier stated, it was expected to be exhibited in evidence in court eventually. She found fault in the respondent in not recording the money in an occurrence book and also in not depositing it in a cash box which was available at Muheza Police at the time. In this regard, according to her, the respondent destroyed evidence in that the money did not reach its expected and desired destination. On the other hand Mr. Akaro, learned advocate for the respondent, maintained a different view. Without necessarily repeating everything that was submitted by him, the gist of his submission was essentially that on the available evidence the case against the respondent was not established, thus there is nothing to fault the courts below. 7 In order to appreciate the essence of the appeal we think it is instructive, and necessary for that matter, to begin by quoting the provisions of Section 109 of the Penal Code .. It reads as follows:- "109. A person who, knowing that any book, document or thing of any kind whatsoever is or may be required in evidence in a judicial proceeding, willfully removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of an offence." (Emphasis supplied) And in the Oxford Advanced Learners Dictionary 6th Edition the word "destroy" is defined as follows:- "to damage something so badly that it no longer exists, works, etc ... " It will follow from the above definitions that to establish an offence under the first count it was necessary to lead evidence showing that the respondent destroyed the sum of Tshs.4,700,000/= with the requisite intention of ensuring its non-exhibition in evidence in the case in Dar es Salaam. I 8 with the requisite intention of ensuring its non-exhibition in evidence in the case in Dar es Salaam .. We have no hesitation in saying that on the available evidence the respondent did not destroy the sum of money in issue, and neither did he harbour any intention of destroying the said money. We say so for a number of reasons. One, he was not contradicted in his testimony that he gave the money to DW2. And DW2 acknowledged receiving the money. Indeed, this was a fact which was also accepted by the prosecution side. Two, no prosecution witness testified affirmatively that the respondent destroyed the money within the meaning given in the above definition of the word "destroy." In other words, no positive evidence was forthcoming to show that the respondent damaged the money so badly that it no longer existed. Three, the fact that the money was not damaged, or destroyed, is explained by the fact that the respondent gave it to DW2, as stated above. And DW2 was always ready and willing to testify about the money if and when called to court. Unfortunately, he was never called to court in Dar es Salaam to testify about the money, allegedly because his evidence was no longer needed. Four, in the absence of evidence to the effect that the money was 9 destroyed it will follow that likewise no positive evidence was adduced to show that the requisite intention to destroy the money existed. Therefore, in the absence of evidence of intent the prosecution case was not advanced to the expected standard. In conclusion, we may respectfully repeat that both in law and fact the sum of Tshs.4,700,000/= was not destroyed by the respondent. If anything, once the money was given to DW2, and eventually to Michael, in effect this meant that it was always available to whoever needed it. Apparently, nobody ever testified of any effort, if any, made by anyone to retrieve it from Michael for purposes of being tendered in evidence in the criminal trial in Dar es salaam. For the above reasons, we find nothing to fault the courts below in their respective findings of fact in the first count. This second appeal has no merit. It is accordingly dismissed . . '· DATED at TANGA this 3rd day of June, 2005. E. N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL 0 ~o~\ S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. S.A.cM.URA SENIOR DEPUTY REGISTRAR I·