19711229 TZHC Dar es salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAALT APPELLiTE JURISDICTION CRIMINAL ARFEAL NO. 558 OF 1971 ORIGINAL CRIMINAL CASE NO 939 OF 1971 OF THE DISTRICT COURT OF D.AR ES SALAAM DIUTRICT j1T DIR EU SALAA BEFORE F • A. MUNYJ.RA Esq., REUIDFNT iTAGISTRAT2 . . . . . . • . . . . . S S • • • • • • • • • . Appeilant The Republic (Original Pros. Versus t1XxXXXXZiX. . • . . . • . . . . . • . . ...••... . •• . . . . . . .Respondent Henry Rwegashaniza (Origin1 CHi'FGE: 7 Countc: Stealing of Agent c/se 273 (b) 265 of the Penal Code.

J U DG E M F N T ONYITJKE, J., - This is an appeal by the Director of Public Prosecutions against the order of acquittal of the respondent in this case. The respondent was charged in the District Court of Dar. es Salaam on 7 counts of ste1ing by Agent c/se 273 (b) and 26 of the Penal Code. The facts of the caso were that the respondent was a sub-agent to the complainant (P.W.2) who was an agent for the State Lottery. P.W.2 entrusted to the respondent certain lottery tickets for sale. It was the duty of the respondent to account to P.\7.2 for the proceeds of the sale and to return the unsold tickets. The respondent was entitled to commission on the sales. P.V.2 testified that it was 10% on the ales. The amount, tho subject mat:'er of each count, represented the difference between the price of the tickets sold for each draw minus 10; commission and the sum actually, paid over to P.W.2 by the respondent. It was the ease of the prosecution that the respondent paid less than he was supposed to pay after deducting his commission. The respondent I sought to establish in his cross-examination of P,W.2 that he (P.W.2) and his deceased brother before him owed him some commis- sion but P.W.2 denied the suggestion. At the close of the case for the prosecution the learned trial Magistrate ruled that the respondent had no case to answer and discharged. and ac.uitted him. He was presumb1y

acting under Section 205 of the Criminal Procedure Code Part of his ruling reads as follows:- "The complainant's evidence (P,w.2) and cross-examination made It clear that the accused's defence is that he withheld complainant's money as set-off for his commission arising out of transaction between the deceased and the accused and between the complainant and the accused. There is no clear evidence as to how the complainant was paying the commIssions to the accused and no one Otfl tell whether the accused had no claim against the eomp1inant and his deceased brother (whose business he had taken over). This being so the law of agency allows an agent to have a lien on his principal's property to cover his financial commitments and that is what the accused dId. I dis- miss the charge and acquit him." • 'S • • • • I -2- The learned State Atorney who appeared for the Director of Public Prosecutions has attacked the ruling. lie submitted that the learned Magistrate erred in law in his ruling that the respondent had no case to answer. I accept this submission. It seems to me that the learned Magistrate failed to distinguish between having a case to answer under Section 205 of the Criminal Procedur8 Code and establishing a defence to a charge.. The case of the prosecution was that the respondent in his capacity as P.i.2 1 s agent sold certain lottery tickets the detaIls of which were given

in evidence. The respondent did not dispute this fact. It was the duty of the respondent to account for 'the proceeds of the sale of those tickets. The prosecution established that after giving credit, to the respond- ent for his commission there was still a balance which he had not accounted for.. The respoid.ent, on the evidence led by the prosecution, had a case to answer. He may have a defence to the charge but it has yt to be investigated and there must be some evidence to support it. It was not a matter to be 'anticipated and treated as if it had been 'established in a uling which deals with the question whether the prosecution has made out a prima fade case for the respondent to answer. If it was the cas of the respondent that he was entitled to a higher percentage of eorndssion or that he hd,npt been paid all his commission it is a matter which shouldin evidence in the absence of any admissions by the prosecution. There was no evidence vthlch supports the lerried Mitgistrate's finding that the respondent was exercising any right of lien on the complainant's property. I hold that a prima fade case has been made out against the respondent and he should be called upon in terms' of Section 206 of the C4minal Procedure Code to defend himself. The learned Magistrate will then give his decision after review- ing the evidence. I note that the learned Magistrate made an order

returning the exhibits to their owners with the result that the documentary exhibits C & D tendered by P.V.3 were not sent along with the file of the case to this Court. In view of the fact that the Director of Public Prosecutions has now the right of appeal against anorder of acquittal it is inadvisable to order the immediate return of exhibits after the discharge of an accused person before the expiration of the period limited for appeal. In the, final result I will allow this appeal and set aside, the order of acquittal and remit the case to the Court blovv for the respondent to be called upon for his defence to the charge. ORDJi:Appeai is hereby allowed. The order of acquittal is hereby sot aside and the case is remitted to the District Court for the respondent to be called upon in terms of Section 206 of the Criminal Procedure Code for his defence. Delivered in open Court this 29th day of December, 1971. G.C.M. ONYIUKI:

JUDGI