danford so elias v the republic 2024 tzhc 402 23 february 2024

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

TABORA SUB REGISTRY

AT TABORA DC. CRIMINAL APPEAL NO. 73 OF 2023 (Originating from the decision of the District Court of Tabora in Criminal Case No. 25 of2021) DANFORD S/O ELIAS........ ........................ .....APPELLANT

VERSUS THE REPUBLIC.......... ................. .......RESPONDENT

JUDGEMENT 04/12/2023 & 23/02/2024 MANGO, J The Appellant was arraigned before the District Court of Tabora charged with the offence of stealing by agent contrary to section 273(b) of the Penal Code, [Cap. 16 R.E 2019], It was alleged that, on 19th day of December, 2019 at Old stand area, Soko kuu Ward within Tabora Municipality, Godluck S/O Munuo gave the Appellant Tshs. 5,000,000/- for purposes of depositing the same in the account operated by Godluck Munuo at DTB Bank. Instead of depositing the amount in God luck's account, the Appellant decided to steal the same. After full trial, the Appellant was convicted and sentenced to serve 10 years imprisonment. The Court also ordered the motorcycle which allegedly was purchased by the monies stolen from the victim of the offence to be given to the victim. 1 Aggrieved by the decision of the trial Court, the appellant appealed to this Court armed with five grounds of appeal which reads as follows: 1. That the case for the prosecution was not proved against the appellant beyond reasonable doubts as required by the law 2. That the Principal agent relationship was not cogently established by the prosecution 3. That the prosecution did not seek and tender exhibit, the bank statement from DTB in respect of the complainant's account in order to establish that there were transactions entered by the Appellant at material date as alleged and

prove that the appellant was often depositing money at the bank on behalf of the complainant 4. That the certificate of seizure (Exhibit Pl) and the motorcycle (Exhibit P2) have no relevance with the case 5. That the learned Trial Magistrate erred in fact and law to capitalize on the weaknesses of the defence case. When the matter was called on for hearing the Appellant appeared in person while the Republic was represented by Ms. Idda Rugakingira, learned state attorney. The Appellant adopted his grounds of appeal and prayed the Court to consider the same. The learned state Attorney for the Republic did not support conviction of the Appellant. She submitted that the Prosecution's case was not proved on the required standards. The learned State Attorney highlighted weaknesses in the prosecution's case. In this she submitted that, evidence in record does 2 not establish the alleged principal agent relationship between the Appellant and the victim of the offence. She insisted that for the offence of stealing by agent to be established, it was necessary for the prosecution to establish existence of principal agent relationship between the Victim of the offence and the Appellant. To buttress her submission, she cited the case of Meek Malegesi and Maura Ndaro vs Republic Crim. Appeal No. 128 of 2011 Court of Appeal of Tanzania at Mwanza. The learned State Attorney also pointed out

the fact that prosecution witness did not establish that the victim used to send the Appellant to deposit money at DTB. She added that, there is no evidence of even transactions of similar nature that was produced during trial. She added that, prosecution evidence does not establish clearly that the Appellant was given Tshs. 5,000,000/= (five million) the material date. She is of the opinion that, with such evidential gaps, the prosecution cannot be said to have proved the case against the Appellant beyond reasonable doubts. I have considered the Appellants grounds of appeal, Court record and submission made by the learned State Attorney for the Respondent. The grounds of appeal raised by the Appellant especially the first ground of appeal moves this Court to consider evidence adduced during trial and assess whether the case against the Appellant was proved beyond reasonable doubts. I agree with the learned State Attorney that, for the offence of stealing by agent to be established, the principle agent relationship need to be established. Principal agent relationship is more of a contractual relationship in which a person is employed to do any act for another or to 3 represent another in dealings with third persons, (See section 134 of the Law Of Contract Act, [Cap 343 R.E 2022]). In the appeal at hand, it is alleged that the Appellant was Instructed by the victim of the

offence, one Godluck Muhuo, to deposit Tshs. Five Milion in the account operated by the victim at DTB bank. Evidence in record establishes that the Appellant and PW4 Godluck Munuo knew each other and that God luck used to send the Appellant to deposit some money in his account. Such evidence is found in the testimony of PW1, Rehema Onesmo Kihwelo who is the wife of PW4, PW2 Masanja Paulo Masingija and the Appellant who; testified before the trial Court that, he was send to deposit money by Godluck Munuo three times as it appears at page 28 of the typed proceedings. Prosecution evidence establishes further that, such relationship between the Appellant and Godluck Munuo was not permanent, it arises occasionally when PW4 gives oral instructions to the Appellant. The law that was allegedly contravened by the Appellant section 273 (b) of the Penal Code, [Cap. 16 R.E 2022] provides that the offence of stealing by agent will be committed where the thing stolen is a; "property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver it or any part ofit or any of its proceeds for any purpose or to any person." The relevant issue in this appeal is whether on 19th day of December 2019 the Appellant was entrusted with Tshs. 5,000,000/- the property of Godluck Munuo for purposes of depositing it in

the bank account operated by Godluck Munuo at DTB bank. PW4, Godluck Munuo alleges that he gave Five Million to the Appellant and instructed him to deposit the same in his bank account operating at DTB. His testimony is corroborated by his wife who testified as PWI. According to PWi, PW4 gave the Appellant Five Million and an already filled bank slip. Despite such allegations, the two witnesses did not establish that they had such amount on their hands on the incident day. Books of record of his business transactions, copies of receipts issued to their customs in their alleged electronics business or any evidence that establish he had the alleged amounts in his hands would have added value to their allegations. Unfortunately, nothing was tendered to prove that, on the incident day the victim had in his hands Tshs. 5,000,000/-. In addition, the prosecution failed: even to establish existence of the alleged bank account that was operated by the victim at DTB. Failure to establish those crucial issues makes the prosecution case rest on unproved allegations made by PWi and PW4. Unproved allegations cannot support conviction of the Appellant. The prosecution ought to have established that on the Incident day the victim had the alleged amount in cash, he operates an account at DTB, he gave the Appellant the said amount for purposes of depositing the same in his account and that the

Appellant stole the said amount. Unfortunately, the prosecution did not prove any of elements that constitutes the offence of stealing by agent. In such circumstances, I agree with the parties to this appeal that, the prosecution did not prove their case on the required standard. 5 Such findings depose the entire appeal thus, I will not determine other grounds of appeal raised by the Appellant. For that reason I hereby proceed to allow the Appellant's appeal. The Appellant's conviction is quashed and sentence meted against him is set aside. The Appellant should be released from prison unless held for other lawful reasons. Dated at Tabora this 23rd February 2024 Z.D.MANGO

JUDGE 6