director of public prosecutions vs christian kapinga jambalika 2016 tzhc 2226 24 february 2016

IN THE HIGH COURT OF TANZANIA AT SONGEA DC CRIMINAL APPEAL NO. 39 OF 2015 (Originating from the decision of the Songea District Qourt in Criminal Case No. 73 of 2014) DIRECTOR OF PUBLIC PROSECUTIONS........................... APPELLANT Versus CHRISTIAN KAPINGA @ JAM BALI KA............................RESPONDENT JUDGMENT ( EXPA R TE) Last Order: 2nd February, 2016 Date of Judgment: 24th February, 2016 CHIKOYO, J. < According to the instant appeal, at the Songea District Court, the respondent was charged with an offence of stealing by agent contrary to section 273 (b) of the Penal Code [Cap. 16 R.E 2002]. However, at the end * * * of hearing of the prosecution witnesses on 14/04/2015, the respondent was found to* have no case to answer as per section 230.of the Criminal Procedure Act [Cap. 20 R.E 2002] since the dispute between the parties involved was solemnly appropriate to be ventured in a civil suit and * not a criminal case, consequently he was discharged. Following the said discharge order, the appellant was aggrieved, and has opted to appeal in this court against that order, hence this is the appeal. The appellant has raised four grounds of appeal in the petition of appeal which are as follows; 1. That the trial court erred in law and fact for failure to make a proper analysis of the evidence as a result acquit (sic) the 4 '« respondent while the prosecution's evidence has managed to establish a prima facie case against the respondent. •i « 2. That, the trial court erred in law and fact for not taking into * consideration the evidence of PW2 and PW3 who were accompanied with respondent towards Mwangaza village where the respondent had promise to show them sim sim which he alleged to purchase instead he run away before showing them the place which he alleged to keep the same. 3. That the trial court erred in law and fact for failure to record « 4 properly the evidence of the prosecution side which as a result the trial court misdirect when delivered the impugn ruling on 3 the issue which is (sic) not in dispute. 4. That the ^trial court erred in law and fact for not taking into consideration the conduct of the respondent which revealed the m ens rea which he had jn stealing the money entrusted for purchasing sim sim. Before going into the merit of this aipeal, I find it unavoidable to narrate briefly what has led to this appeal as far as the trial court records are concerned. According to the trial court records, it reveals that, SUZO KOMBA (PW1) an Operation Manager of BAM Contractors (T) Ltd Mbinga testified that, the said company among ,L other things purchasing agricultural products specifically crops including coffee, maize and simsim, and the respondent was an agent of that cd>mpany in collecting the said crops. In its totality, it was further alleged tnat, by virtue of Exhibit P.2 and Exhibit P.3 (receipts of handling over tm alleged amount of money with No. 003104 dated on 2/5/2014 as well as receipt issued on 7/5/2015 admitted as Exhibit P.3) the respondent was given Tshs. 3,535,000/= by the said company for collecting simsim as an agent, however the respondent did not perform that duty. On 2/6/2014, BAKARI KAPINGA (PW2) the driver of the BAM Company was informed by his boss about the said incident, then PW2 followed the respondent with other people including one Police Officer E 5335 ERNEST (PW3) in order to collect the simsim which the respondent , alleged it was in Mwangaza Village, Upon arriving in that village, it was alleged that the respondent ran away after asking them to stop the car and went for a short call. PW2 and his fe lows asked the villagers if they have seen the respondent, in which they were told that the respondent in that village had rented a room for his wiman, so when they approached that are^, they saw a motorcycle (Exhibit P .l) whicb was coming towards them but it was alleged that the respondent was riding the said motorcycle, as a result when the respondent noticed that PW2 and other people were looking for him, he ran away and left the said motorcycle. Later the respondent was arrested,and was charged as stated above but at the end when the prosecution side closed its case, he was found to have no case to answer as stated above and he w as discharged. Thus, the said decision has led this appeal. When this appeal was called for hearing in various occasions even though he was duly served as far as tne summons issued by this court on 7/1/2016 and 11/1/2016 are concerned, the court records reveals that, still the respondent had never appeared herein as a result, this court on 2/2/2016 ordered this appeal to be heard ex parte. Basically at the hearing of this appeal, Mr. Mwegole the learned State Attorney appeared for the appellant. In his submissions supporting this ap Deal, regarding to the first ground of appeal which also dealt with the fourth ground, he argued that the trial magistrate did not analyze proper y the adduced evidence from the prosecution's witnesses in relation with the charged offence, since PW1 and PW4's evidence ^revealed that the respondent as the agent of the said company was handled the alleged amount of money for buying simsim, hence by virtue of the case of Christian Mbunda Versus Republic [1983] T.L.R 340 the alleged offe ice which the respondent was charged i # « with was prima facie established because PW1 and PW4 were actual owners of the alleged money which was given to their agent (respondent), thus the respondent was supposecjl to defend himself against the alleged allegations. Regarding to the second ground of appeal, Mr. Mwegole submitted that, the prosecution evidence revealed that the respondent was at first willingly to show PW2 and PW3 as to wherle he had kept the said consignment, but the respondent run away at Mwangaza Village. Again regarding to the third ground of appeal, Mr. Mwegole strongly opposed the trial court decision as it determined the matter which was not in dispute since the matter at hand - was relating to stealing by agent as charged and not in contract. In conclusion, Mr. Mwegole prayed this appeal to be allowed and the trial court ruling be quashed and set aside and order the respondent to defend himself under section 231 of the Criminal Procedure Act (supra). At this juncture, the issue here is whether this appeal has merit or not. Before I dwell into that issue', since the respondent at the trial court Was ’ by charged with an offence of stealing L agent contrary to section 273 (b) of the Penal Code (supra), I find it appropriate to reproduce what is stated in * that charging section; 273. I f the thing stolen is any o f the follow ing things, that is to say- (a) N/A (b). p ro p e rty w h ich h a s b een e n tru ste d to th e o ffe n d e r e ith e r a lo n e o r jo in tly with any other person fo r him to retain in safe custody o r to apply, p a y or deliver it o r any p a rt o f it o r a n y o f its p ro ce e d s fo r a y p u rp o se o r to a n y p e rso n . (c)-(e) N/A [Emphasis is mine] Having in mind with the above reproduced relevant charging section as well as after perusing the entire court records, the issue here is whether the entire prosecution side's evidence at the closure-of their case at the trial court established a prima facie qase or not. For that reason, I am of the view that, in this judgment, I wil determine jointly the raised grounds of appeal by Mr. Mwegole. Having said so, since I am alive with the legal position that, the test as to ’ whether that issue is answered positively dr negatively depends on the fact that, whether the prosecution side nas failed to prove an essential part of the offence charged or where the evidence of the prosecution has been so discredited in cross examination or unreliable that no reasonable tribunal 4 would act on it. See; Bhatt Versus Republic [1962] 1 ALL ER 448. Upon my perusal of the entire court records and the wordings of the charging section as quoted in th e above, I am of the view that, the testimonies of PW1, PW2, PW3 and PW4 renders this appeal to have merit because, the testimonies of PW1 and PW4 suggests that the respondent had been entrusted as an agent of the said Company and was handled Tshs. 3,535,000/= to purchase simsim for the BAM Construction (T) Ltd as ■ 7 far as exhibits P.2 and P.3 are conce ned; again the testimonies of PW2 and PW3 suggest that, they made a fDllow up to the respondent so as to get back the agreed consignment, however there is also allegation that, the respondent run away after pretending to go for a short- call at Mwangaza Village, however later it was alleged that he was arrested and charged with the above stated offence; more so, in its totality the evidence of PW1, PW2 and PW4 appears to su ggest that, the amount of money the respondent was given from their cc mpany was basically for purchasing simsim and ,not otherwise, and the failure act of the respondent to deliver » « the agreed consignment had renderjed the respondent to be prosecuted thereat. From the above analysis, I find it ir appropriate to comment on what Mr. Mwegole *submitted upon referring this court the case of Christian -4 Mbunda Versus Republic(supra) which elaborated on how the alleged charging section can be proved, bee ause at this juncture the case at hand had not been determined on its mer t at the trial court and also I appear to be very skeptical for not commenti g further regarding to the cited case law since if I do so, in my view, I find the interest of justice shall be prejudiced either to the appellant or to the respondent. In the event, I allow this appeal, consequently I hereby quash the ruling of the Songea District Court in Criminal Case No. 73 of 2014 and set aside the discharge ofderto the respondent therein, and order the instant matter be remitted at the trial court so as to proceed with the respondent to defend himself as far as section 231 of th e Criminal Procedure Act (supra) is concerned. It is so ordered. S.M. GHlKOYO \ I JUDGE , 24/02/2016 Judgment delivered in chambers in the presence of Mr. Medalakini Emmanuel State Attorney foV the appellant and Mr. Komba Court Clerk, in the absence of the respondent, this; 24th day of February, 2016. JUDGE M/02/2016 COURT: Right of appeal explained.