19911106 TZHC Dar es Salaam

IN TH~ HIGH COURT OF TANZANIA AT DAR ES SALA.AM CRIMINAL APPEAL NO 162/88 ORIGINAL CRIMINaL CS NO 330 OF 1985 OF THE DISTRICT COURT OF ILALA KIVUKONI DPP • ••••••••••••••· ••• • ••• ,. •••• .APPELLANT ·Tersus ISSA HAM.ADI MWAMLWALE & ANO ••••• RESPONDENT JUDGMENT T,his is. an appeal by the Director of iublic Proseou~ions ·against the Ruling of the Court of the Resident Magiatra;e - Dar es Salaam at Kivukoni. The trial oo~rt at the olose of the ease for _the prosecution ruled that a 1;2rima £a9ie-9ase had net b9'U). e&'t~bl.i.~ against ISSA HAM.AI> MW.hMLWLl.LE (here in after to be :r-eferr"d as the :tlirst respo.n.d~nt). The facts of the case as established at the trial cc•ullt are somewhat ............. brief and oan be stated as follows. The first resp~ndent was at ~ho mater~al period, •985; , eraployed as a· clerk in the sarvio~.ng department ef the Ubungo National Ban~_ o~ .?oIJmeroe. It is co.quaon 1round that PW-3 ELGENIA KI.MARIO had opened a Saving Accollnt . with -'oh? foremeationed . ........ ' Bank. It is also not.in ~ispQte that on January 17, 19et a sum of shs. 9 1 000/- was witha.;£.)· ff~~-. t;~· ~~~d a~~~~~t~ · On 'J;_nuary 26,.1985 a. similar auiot1nt was once again withdrawn from .the fore1...;_in-ti0Jled ~oOWI\... • ~ .. 11 - It ia in tbe testiwony of PW.4 aLLI SALiHEt a bank sup,e·~·,isor in the . said bank, that the said :~i,.uas ___\'f rA.Qll~Y-.were withdrawn b·t NECKE SHA:BAN .(hereinafter· ~.Tn"t'he to be referred as th, second respondent). J:t is fut--.her . . .. . testimony . . of PW4 that on all these two occassic,ia it was the first.rpsponderi:~ who_ introd~~ed,'.t}1e,seQPl\d .r~sponden-ti 1'o_\ .. m._(PW4) in ,~tav:i~g.-his. pa~s:: 4~ook pl.aced; o:·- to.- hi~ tabJ.~ .f'?r his __n~_cers <.i;'Y ac-'oien ,to.. enable him t_o .draw. the said_ monies •. ;:t. iq, o_-,;.1ra.2)n grori.:11 ,that. tqe ---· . .. • .. • ... • • • .... , f. • • • ' • • J ... 1- _e f!Li d:, :!'i \h,d~a;wa~s ~ere ll:lade w_i th'o~\}h~ k~o~~,\~,:;, and/o_r c•.,,~~!.~t"'.~!.,.: s-+. ,.._. YW-1).. who was the _pwn~_r of the -~cco~t ::tn. Q_),1e~ti,on.~ _ •.::. ~ .... : . ~ , . °!' r· , :· '·· ...:It--i's not without significant to mention that the Tes;>ondents we:re ·arra~:Lgt'.ed o·n -J;.pril, 1985. The seoon-0.. l:'es.;,>ond-eht1 made~ l,is' la~-. appearano8 in court. ·on. Marchi:- :18, 1-986 •. - On. :April ·:T.5;11986 ths trial .f' court 1,uue·d- a warrant -fo_r· t.he apprehension of .. ·the ee~cmd re.,pondont.· ifhe cot1.rt .:then on'. July 19,,19&6 ~roceeaed.. against the f,irst respondent alone; On November 26,19e7. the Cour.t.·disi:iiss-e.d' the::che.rge au;_ " 11 • ,aequi tted the first respondent· en· the .ground that he had no c<~,e to ' . . . ~ • ~ 1,. ,,..,.oi.u,n 'Oroceding .. the ins ta.it appeal • ., : . . ' ' \ . •../2-. ' . ,..... --·" . . t 2 -. Mr. Mwengela, the learned State Attorney, appearing on behalf of the ltreotor of .Public Pros~u~i011s -ohallenged the decision of the trial court on the following grQ.9.ndss ( 1) There was sufficient .evidence to require the first respondent to m~ke a defenei in relation to the offence charged. (2) That a conviction against the second respondent should have been reeorded after having proceeded with the trial under section 2~6 of the ~riminal Procedure Act. The question for consideration and decision by -.his .court is whether the evidence adduced against the first respondent was s~ffioienw to :reqM.ire hir.:i to wake ·a defence. It is now settled law tha,-. "a prir.:ia :laeie case" fa; one o~ which a reasonable trib-•nal properlT directing its mind to the law and evidence could con~ict if no explainatio~ is offered b7 the defence. This is the principle laid out in the case of BHATT ~.R (1957) E.AA332 (CA). In the instant case the only evidence oonneo~ing the first respon<le.q with the offence charge'd is that of Pw.4 whose testimony princi_pallY was to the effect that he had introduced the second respondent ~o him (P.W.4). That is the onl~ evidence against the first respondent. Can one really aa.Y that this evidence is one which if in explaina•ton Q~ 4efence i~ offe~ed then the court must convict. I do not hesitate ~o answer in the negative. It i~ m;y hur.ible view if I ·lw/ add that no tribunal could base a conviction on this evidence• :~•c. n'1 1 I now turn to the question of the second respondent. rt·i~ e~ident f~om the record of proceedings that on July 14 1 1986 ~he Public Prosecutor applied to prooeed under section 226 of the Crir.1inal Procedure A~, 1985 but in the absence of, the second respondent. ThO¥.gh the •.~ourt proceeded with the trial against the first respondent the record is silent on the pra.1er made by the Public/Prosecutor. ,This being the stat.e of affairs it can not be said with any degree of certitude that the applica4ion of the proyisions of section 226(4) of the Criminal Procedure Act were ~led out.. As on April 15, 1986 the trial court issued a warrant for the apprehension of the seoond respondent that str,engtheny the suggestion that proceedings against the second respondent were differred pending his apprehension. It would therefore be most in appropriate in the circumstances to recol_'d a conviction a_gainst the second respondent •. As the warrant of apprehension is in £orce the said re~p 0 ndent is still li-ble to prosecution if apprehended~ .. ,./3- - 3 In the light of the foregoing I am far frohl being persuaded that there are sufficient grounds to warrant this court to inierfere with the decision of the trial court. In.the result the appQal faile and it is accordingly dismissed for want of sufficient grounds. DELIVERED in Chambe.rs this 6th day of November 1991 'at Dar es 8.alaam in the presence of Mre Nakala; State Attorney Traine~ • ,1. J. MKWAWA JUDGE I CERTIFY THAT IT IS A·TRTJR ;OPY FROM THE ORIGINAL,