19730606 TZHC Mwanza

• • •. R- i; TIl FIIGI: coiri C TAZjiIA ATLANZA AP1I A!PE JUPI SDICTI ON . . .. HIGH COWT CRittNKL APEAL NO. • .150 OP 1972 . . .. . . ORIGIN'L C. IlIIiTAIi CASE NO. 405/71 OF THE ])IRICT COtffiT OF SI-1fl1YAIG-A DISflICT AT. .SHIEXAiJG-A — BEFoRE P.M. I'JPONI DTRICt TIACIST.RTE. C IA1ES s/o 1'tic.ATila **....l..l .,. .APPLAJT (oig-nc1 Accused) . • •• . . -• es;: •. . . . .•. T liE REPU:Ic . . . •.. . ..d•••S 4 S•• * 4 • • I • • # BESPOSJDENT I (Oriin&. Prosecutor) CHA1GE: St61Ingby person onpioyod in pu1ic service,contrQry to scction270 and 265 oftie e•n1.odeCtip. 16. • . :r ;1 JUDIáT I E1-4ctlWY, J. Char1cs o Iki was chexCcd with an d of, thoy b1ic serrcnt contrary to sections 270 and 265 of the Penoa Code Cap. 16, J lie was- sentenced to -aprisonment for 30 months nd to suffer ti statutory corporal tuushuent of 24 strokLs -s it wcs, cc to pay ss.:30/.a:.Lipensation presumably to the Judiciary.Ho, ppectled a,ainst Co ibli - sentence and orders. The learned State 4ttorney, hr. flbiliny, oppoaroc' for th Rcpubic. The apooll'nt was ebscñt ct the cin of iscea1 - s h, inCieated that ho did not s1 to be present, but his growicis for appçal were ta)cn iflto abcàirnt. Ti'e appcLlat was employed by . the District Council of Shinanga ein atter referred to as ±he iouiicil t)- as a c1ojc, but he was trchod ta the l±i ty Cot of I T ant1ni ab a court cler I-se was rsppnble for kcpinj the acountz of the primary court in order, and to c py ou salaes o the eap1oye of the Juc1ipicry if any nd o the cotmeil who were trithin 7 the juridietion of iwantini. A e.orco wa passed against Ltiziga (. .i) 7ho was the messcnger of the Primary Court 1wantnhi. An oreer f exocution was issuod drocting the ho1der of tnb selerr of Luzii to dacuct the cloeroed ,aaount at certain nbwit at the nd of e' - ch month until the decree was satisfed. The rer was handed over to the appellant who was the pers espoiasib1c for paying the salary of Luziga. Since he rceioc this 9d6r, th 0 ppellant carried out the daretor. The lçst cont due vas shs. 30/= and the questioh before thc tríaJ. court was wnether the .ppe1lant dectuctea tlns money an if so vhether ho had accounted for it. It apper that In Septerabe'r, 1970, the ap'ellant Was arrested in onnepti With lose of public funds anc' iltiinato1y he 7as eonvicte for theft b public oant A1thouh it imov that a siw of either shs 4 3'= or shs 0 35/= was not accountect far the ) appeljant was not charged for tins cmoun -t although it could have beefl done had the prsocutibn wanted to. Inoer to prove that the amount of sh6o 30/ was d6ducted, thp prosecution celled the evidence of thro perso..L P.7.1i). 1 the f1e5sencr, said thrt whenever the 'pp'llant deducted the various amounts fra his salary, the appellant cid not make him sia anywhere although the balance of this sZclarvi handed over to him by the appcllnt. He said that he was prsont\7hentho,.Primay - Court ilastrate inchci±ge asked theapellnt "hbôutt1ie al1cgec shs. 30/" and that he heard the appellant ctdnit that he had deducted the alleged aiount but he had not yet remitted the amount to the relevant court f or onviard tranznission to be docree holder. He said that before ho t6d the raa:istrate, as he hia that the iount of she. 30/= was ti I's emo\ntto be deducted from his waes. ( 2), the Priaary Court hIagistrate who was incharge of the Pr&y Court, &±d that the appellant told him that. he had not yet romi -ttod the sh -3/Thi.ch he ha deducted from tho ... 2 . . . . v7ac~ oS of the iesseiver (P.V.i).. He said thct later v. ,hen he asked birn to produce the raoncy the appellant could not, nd that this was at , the -tinie v'hen this chcxge was bein conteinp1aed.. Jijda (P.VT.3) 7 the 7ard Executive Officer,, said that the appo11nt to1 lthn that . he had deducted the money when he coUbd bin in his office Md. that he had the noney, but when he told him to produce it he could up—do so. In his defenco the appellant said that the three witnoss3s did not tell the truth but he avo no:rosonwhythe rncistrate (P.VT.2) and the oxecutivc.officer (P;:i.3) should telilies. He said LuziGa WS his enemy. Although he argued that if ho d rndo deductions , he would •• have issued areocipt .to -1uzg'and that the fileof Luz would have shown the alleged deduction i , the. accepted the oro videe ofthèree prosedution witnesses and found as a faot tht the appellant nQ -b onJ,y deC:uted the noimt of shs 3"=, in tho couxsd f his emiomcrit as a cofrt elct but he has not cccotinted for it, end, e w a s guilty of the charge. In hi..s petiiaon fr appeal, the appellant ued that the trial court erred in aôáeptinthe evidence o'hothree pozocutii witflesses blind1y. He biiitt t hat if the record file of Luziga had been produced, the truth would have come out, as the record would have shown that there was noêdüction mado The leaad Stdkttoruey argued that once it was accepted that the three proseoutioiwinesses told the truth, the conviction of tiie appellant was —bl... .Tie point raised by the appellant exercised my uind greatly, s I do not tuiderstand why the record file, if any, of LuZ13C \/aS not pioduced in evadence.L The oulbslon gave the mpession of, sustLcion. However, on further 1 efloction I dqo.4ot think ti ct the point is of any importance at p11 having roarc1 tOr the foot that the said record Was bLing riaintainod by .the ppei1ant Therefore. ven i f the ocord showed that there was no decliio'tion made, it would only go to show thai th9 appellant, ho was responsible for nalang the c1 educt26ns, onittd to do so deliberately. That was involved was the credibility of p'osccution witnesses. It nay be argued that Luziga hCrd his en intcret to Son it would have been against his financial ino±esttto soy that the tiao'ent was not deducted. Hence, his evidence needed to be taken with groat.caution But nothing of this sort can be inferrea from thoevidence of the magistrate 2) dnd the (. executive officer (P.Y.3) 0 They b - .d no reason to tell 1ics 1ç.gaint the appellant. maced the appellant could not allege any reason fth the two witnosses to toll lies. The appelint contended that th 4ri. magistrate was aware of hIs previous conviction end therefore he Was' eju1icé.. Hone he 64d1 his trial Was not fair. I agree with the oppollon't that eYJCflCC was,tunnecossily, led to show that the appellant had boon convicted in coimectian with another case. Th.s evdence wçs prejudicial to the c ase arir it ought not to hcv been cdxaitted. As a result of this bvidence, wbith vp-"' ssb1e not necessary to t'e trial in connection with this case s it is .n,pgi to say that the leirned trial iagistrato Was or was not unduly affected against the appelant. V hat h.. fa d before bin wore contestoc issu of .L'ccts and whieh'issues \ore nt supported by any other foa of e'viuence other then thE. oral viceic. He had to decide tho credibility of witneeos f or the prosecution and fer the defence. TherofQre, v7ith due re poet to the 1oarnec St0te Attorny d the learned ti4 rr -tgistrhte, it was impossible to say that the prejudieip1 evidence did not inc no the icriod trial rr'gis-trate infvour oi th prosecution Dna against thc - dofenad evidence. It would therefore be rost unsafe t upholc uhi conviction. .1 aving reached this conclusion, ;I do not intend to dccl wit1 issues arising out of the sentence inposed . Ordcr Conviction is quashed and the se'itenoo and orders set aside. The appcl1ant.shod be released forthwith .urlcss. otieivise lawfully hold. Delivered £ i ff court at 1W1zD on the 6t1-1 dcy of June 1973. - Hr. Sekule - ELA. Lor Republic. (z, N. EL IaiWY) — Appellant bert • *