19750611 TZHC Dodoma

I'., -c IN THE HIGH COURT OF TANZANIA AT DODOMi APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL No 295 OF 1974 ORIGINAL CRIMINAL CASE No, 296 OF 1973 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA Before F.L. MLJI'TYEIIL, Esq., RESIDENT MAGISTTE. DIRECTOR OF PUBLIC PROSECUTIONS . . . . .APPELILNT (Original prosecutor) versus • JOHN NOHL1\D HORERA . . . , •' RESPONDENT (Original Accused) OHLRGE Theft by Person Employed in the Public Service c/s 270 and 25 of the Penal Code Cap.16 Vol.1 1 . J U D G M E N T N1ES '2 LG. John Mohamed Horera :ias charged with and acquitted from theft by Person employed in the Plc v1'.p (, ontrary to sections 270 and 265 of the Penal Code. • Dissatisfied with that decision of Singicla District Court the Republic through the services of the learned State Attorney stationed at Dodoma appeals to this Court against the acquittal. Before the Court below the Prosecution contended that John Mohamed Horera between the month of July and August, 1973, at Nkwae Lower Primary School, within the District and Region of Singida, being a person employed in the Public service as Education Officer Grade II, did. steal 770 corrugated Iron Sheets valued at shs. 10,430/= 308 timber valued at shs. 4,6201=, 5 rolls of window thin wire valued at shs. 55 0 1=, 3 bags of nails valued at shs. 600/=, 18 window medium wire valued at shs. 720/=, 10 tins of vitto valued at shs, 170/=, 8notice locks valued at she. 480/=, and 20 gallons of "raafuta makali' valued at she. 400/= all valued at shs. 19,759/25 the property of the Tanzania Government which cane into his .possc•ssion by virtue of his employment. It was provenly and indisputably established before the District Court that at the material tine the accused was Education Officer Grade II attached to the Singida District Education Officer i/c one Gabriel Rugumira (PW.13) and in tha capacity the accused was assigned the duty of ordering, stoclr maintaining and distributing school materials and equipment which among other things included building materials. .. . . . 12 4 - 2 - Apart from the materials regularily supplied by the Government of Tanzania, the accused, at the material time also took charge of school building materials supplied through Foreign aids under a scheme which was known as tPBoothstrp operationtt It was further deposed before the lower Court that the accused decided to transfer the school building materials under the "Boothstrap operation" from their stores at Singida and keep then at Nkwae Primary School from where they would be distributed to some other schools. He communicated that decision to the Headtoacher of Nkwae Primary School one Saidi s/o Kitanlu (Pw.7)0 To transport those materials the accused contracted with a lorry owner one Heavlight s/o Monyo (•Pw.8) who agreed to carry them from Singida to Ikwao Primary School at an agreed charge and the said Monyo duly carried those school building materials among which included corrugated iron she nails, timber, rolls of thin wire and a number of other items0 He used his 7 ton Bedford lorry Registration No, JiRF. 798 which was driven by his then driver one Robert David Lema (PW.9) and the Nkwae Primary School Headteacher (Pw07) acknowledged receipt of those goods and signed to that effect. Up to that there is no dispute at all. However, the Prosecution further contended that at a later time twice Monyo was instructed: by the accused to go to I'Tkwao Primary School to collect some of those materials which he specifically named and told him to transport them not to other schools as contended by th accused but to Malampaka in Maswa District where he was detailed to hand them over to the accusedts brother one Omari s/o Horera (P / ' The first taking and transportation was done on 23/7/73 and the second was on 2/8/73 and the items in question were those listed in the charge-sheet as mentioned herebefore. When the Police got information of that deal' they started investigations which included a visit by some Police officers to Nlcwae Primary School and Malampaka at the home of the accusedt's younger brother where they recovered the materials listed in the charge-sheet and finally they arraigned the accused and confronted him with the charge as he stood charged in the District Court of Singida. In his defence the accused chose to make a sworn statement in which he categorically denied having stolen those materials and implicated 'the lorry owner Heavenhight s/o Monyo (PWe8) and Monyo's driver Robert David Lema (PW.9) and the' Nkwae Primary School Headteacher Saidi s/o Kitanlu (PW.7) with the theft of those materials0 As rightly pointed out by the learned trial Resident Magistrate the star witnesses on which the decision of the case rested were PWA8 and PW09. According to these witnesses the accused instructed Monyo (Pw08) to go to I&wae Primary School to where they had earlier delivered the school materials and take some of them which he specified to them and carry them to Malampaka to deliver to the accused's younger brother (PW.10) and he would pay him the agreed charges of shs. 1,900/= for that trip to and back. . ./3 . .1 2? - 3 - The Headteacher of I"lkwae Primary School (Pw.7) told the Court that he had aJxeady been instnicted by his boss the accused that whenever a lorry called at his school on his instruction to collect some of the school building materials which were stocked there he should readily deliver them to its driver or anybody he sent with such a lorry. Acting on such prior instructions and onbeing informed by the lorry owner (Pw.8) and his driver (Pw.9) the Headteacher delivered the mentioned items to those people without necessarily going into details as to where they were going to carry them. These witnesses further testified that the accused gave them his personal servant to travel with them to Malampaka where he would show them his younger brother ±0 whom they would deliver the materials0 They went up to that place and duly delivered the materials to the accused's younger brother. Similarly they made the second trip on 2/8/73 and delivere the materials to the accused's younger brother but due to shortage of space in his house the accused's younger brother went with them to a neighbour of his one Justin s/o Petro and he asked him to allow him to store his business materials at an agreed charge of shs., 40/= to be paid later on. When those goods were delivered to Justin s/c Petro on instructions of the accused's younger brother the transporters (PW.8 and pw.g) came back to Singida only to their surprise, later on to be approached by Police that they had been engaged in trasnporting stolen materials and they narrated their versions to the Police and before the Court as summarily put above. On the other hand the accused denied and persistebly argued that it was the transporter who was the thif of those material In resolving that argument the learned trIal Resident Magistrate at length discussed the evidence of these two Prosecution witnesses (PW.8 and P14.9) against that of the accused. However, there was no doubt as to the fact that materials had been taken away from Nkwae Primary School and the accused does not dispute either tI fact that the Regional C.I.D. officer Mr. Mbaga (Pw02) proceeded to 'alanipaka and recovered the materials from the house of the accused's younger brother (Pw. 10) and his neighbour Justin s/o Petro (PW. 11)0 This is also supported by the final decision of the learned trial Resident Magistrate in his order for disposal of the exhibits in which he stated and I qu6±o:: "0rder (1) All building materials to be returned to the District Education Officer's office (2) other exhibits to be returned to respective owners.," prom this order and gathering from the totality of the evidence on record before the lower Court it is clear and rightly so, that there was no other legal claimant, let alone a better Ic claimant of those building materials which }td been tendered before the trial Court than the District Education officer of Singida District, 0 0 • 0 .14 - 4 - Therefore the argument raised by Mr. Rugarabarau, learned Counsel for defence that "these can be bought from any shop" is baseless, and to my mind in the facQ of t1v evidence before that Court, the implied argument that those building materials recovered from Malampaka and tendered hefo:e the trial Court as exhibits did not belong to the Governnen is purely theoretical and academic for there is no scintilla of evidence or for that matter even an explanation to rebut the proven fact that those materials are the same that had been moved from the stores of the District Education officer Singida to Nkwae Primary School from where they were moved and transported by Monyo (PW08) and his,drivcr Robert David Lena (PW.9) to Malampaka and twice they made such trips and each time they handed them over to the accuseds younger brother one Oman s/o Horera (Pw.10)0 The learned trial Resident Magistrate after discussing the evidence as a whole and that of the accused against that of the star witnesses for the Prosecution (211.8 and PW.9) decided not to act on the evidence of the latter two witnesses and finally he acquitted the accused person. Briefly the main reason for the acquittr was that ?W.8 and PW.9 the transporters of the said .gods were accomplices and as such their evidence required corroboration unless there were special reasons before he could act on it a±icl 'plant a conviction on its strength. The law with regard to corroboration is laid down in secti' 142 of the Tanzania Evidence Act No. 6 of 1967 which states: 142, An accomplice shall he a competent 11 witness against an accused person; and a conviction is not illeal merely because it proceeds upon the uncorroborated testimony of an accomplice" The learned trial Resident Magistrate in in;crpreting the above Section had this to say as appearing on Page 5 of his typed judgment: "The rule of corroboration is that the Court can bel:eve uncorroborated evidence of accomplices if it warns itself of the danger of convicting the accused on. such evidence and if there_are_ecial_reasons. In this connection I warn myself of the danger of convicting the accused on uncorroborated evidence of Monyo (PW,8) and Lena (PW.9)." He then went on to consider whether there were special reasons and arrived at a decision of the acquittal. The 1st euestion which I have now to decide is whether the interpretation of section 142 of the Evidence Act quoted above refers to any special reasons as put by the trial Magistrate. Briefly I can trace no wording in that Section to such an effect The Section talks of an accomplice being a competent witness and that a conviction can be founded on uncorroborated evidence of an accomplice, though admittedly before such a conviction is planted the Court is supposed just as with any other evidence. to analyiso the evidence as a whole and address itself to the usual question whether the evidence as it stands has proved the Prosecution case beyond all reasonable doubts., The Section does not talk of special reasons as put by the learned trial Resident Magistrate. Turning on to the instant case in particular the first question to be determined is whether PW.8 (Monyo) and P.9 (Lena) are accomplices. 0 • a • . 15 .*J. 5 To my mind gathering from the record of the trial Court these two people could or could not he accomplices depending on whether they shared a common intention with the accused person the motiv3 of illegally moving the school, building materials from N.cwah Primary School to Nalampaka where the said materials provenly were handed over to the accused's younger brother (2w010) and his neighbour (Pw.11) for further safe custody. If they were accomplices and if their evidence was not C corroborated by any other evidence was their evidence by itself alone enough to prove the charge .'.inst the accused? In my deeply considered opinion even if PWO8 and PW.9 were held to be accomplices their evidence alone would be enough to plant a conviction against the accused on the offence charged with 0 Moreover even if corroborative evidence was required to strengthen their evidence all the more. I am of aview that there was corroborative evidence before the trial Court on which that Court could act and arrive at tID conviction of the accused person on the charge he faced before that Court. First, there is the evidence of PW.7 Saidi s/o Kitarlu, the Headteacher of 1&wae Primary School who, I must add, was not an accomplice at all for whatever he did was innocently in fulfilment of his superior's apparently lawful instruction. It is in evidence that his superior the accused told him that he would send some school building materials to his school for safe custody and whenever he would send a lorry for collection of same the said Hcadteachor should not object if he was told that if was him who had instructed for the taking of those materials.. On 23/7/73 a lorry callod at. his school and its driver gave PWO7 a paper (Exhibit B) in which were listed things to he taken from that schocl which according to his evidence included 860 0,1 sheets, two bundles of roofing ridges, 20 gallons of lintseed oil, 10 tins of roofing cement, 205 pieces of timber, 2 bags of nails, but he supplied only 770 C.I sheets, 20 gallons of lintsed oil and 10 tins of roofing cement and the other listed materials were not supplied by him on that day and the driver of that lorry signed to that effect in the visitor's book (Exhibit C). On 2/8/73 the same lorry again called at PW.7 1 s school and they 1nded him a letter (Exhibit A) instructing him to issue some more materials assertedly to be distributed to schools which were not named in tis said letter. PW.7 supplied 300 pieces of timber, 5 bundles of mosquito gauze, 18 pieces Welshmestry,2 bags of assorted nails, one bag of roofing nails and 34 roofing ridges. Then PW,7 wrote to the accused copy of he letter was tendered before the trial Court as Exhibit E informing that he had supplied, the said items he had indicated. At Page 45 of the Original proceedings this witness (Pw.7) states:- /6 I -. 6 - "The accused told me that the goods had been received as he had ins tructed. He signed my book on the day he cane to my school. It was on 7/8/73. I can identify the items I issued. They looked like those ones here.' From the evidence of PW.7 as addused in the trial Court surely it sounds highly academic and purely theoretical for the learned advocate for the defence to regard such a witness as an accomplice. He was not as I have already stated above. His evidence a least mai:es one important link in the prosecution case and that is the materials which had been sent to his school by lorry or, instruction of the accused on were taken away from his custody by the same lorry againin structions of the same officer the accused person. The accused's receipt of information from PW.7 that the latter had supplied the materials to the people who had come there with the lorry and his reply that the goods had been received.as he had instructed when he did not know that they had actually reached anyother school is suggestive of a sort of conduct that he knew the goods had reached the unlawful destination he had instructed that is his younger brother's home for at that time the delivery of the said materials had already been effected to his younger brother from the evidence of PW.8, PJ.9 and PW.11 • Nevertheless the accused was passively concealing to PW.7 the then whereabouts of those goods for it would not be in his interest to disclose to PW.7 where he had directed those goods to 1 sent. In fact those goods were finally recovered by C.I.D. officials from that very place mentioned by P14.8,1p1.9 and PW.11 in which case that piece of CVidOflCO of the recovery of the goods by the Police is corroborative to the evidence of PW.8 and PVJ.9. Another important witness whose evidence in some materials points corroborates the evidence of P14.8 nd PW.9 i-s PW.1 1 (eleven), Briefly he stated that he knew PW.10 one Oman s/o Horora and the accused who was Oman's elder brother. Or.ari was his neighbour at Malajapakj in faswa District which is situated in Shinyanga Region. He went on to say PP. 71-73 of the original proceedings: 'I don';t know Nonyo (Pw.8) and Robert (PW.9). I have seen them here one day last year Oraari (Pw.iO) came to my home and said he wanted a room for koeDinrz his goods. Ho said they were business oods. I gave him a room at she. 40/=., He put in timber and other things which I did not bother to check. 1 was not present when he brout her in.horoorj, He promised to pay me shs. 40/= sometime later. Before he paid me the Police seized those goods. Timber, nails and some wires were seized from ray house. I made my statement to Police. Oman (Fw.iO) was the one who made aroenent with me." .17 - 7 - From the above extract of the evidence of PW.11 at least one point is clear that it was Omari and not PW.8 and PW.9 who had contracted with PW,11 at Malapaka for the storage Of those goods after t1m same had been delivered to PW.10, the accused's younger brother, by PW.8 and P1q.9. This at least explains aay the story of Omari that it was not him who 1d asked PW.11 to store the materials in PW.11's house. PW,11 being an uninterested party to the transaction, his evidence definitely carries more weight than that of Oman (Pw,10) who has been declared a hostile witness by the trial Court. He has, interest in the case in that it would be to his benefit to try ard save his elder brother, the accused from such a serious charge. Thus the version of PW.11 as to who handed him those materials which subsequently were seized by Police, as clearly depicted in the evidence bof ore the lower Court carries more weight than the bare denial of PW.10, This evidence of PW11, to my mind, is also corroborative to the evidence of PW.8 and PW.9 as to what had transpired at Malampaka with regard to the goods at least those sent On the second trip on 2/8/73. Omari did not claim those goods to be his. He merely denied them to be his and said they belonged to PW.8 and PW9. Thus the learned defence advocate's theory that those goods could have been bought from any shop in the absence of such an assertion by Oriari is again, on this evidence, superficial and purely theoretically academic. There is also another aspect of the case which the trial Magistrate should have thought of carefully. The accused asserted that it was PW.8 and PW.9 themselves who were thieves. The accused does not dispute that those goods receovered by C.I.D. officials at Malampaka from his young brother's home and fron the home of PW.11 were the ones taken from the stock of the school building materials which had been formerly under his control. If PWØ8 and P11O9 had stolen those materials from Nkwae Primary School by tricking the Headteacher that they were going to deliver them to lawful destinations in Sin.gida Region or District then, in my opinion, only an crexy foolish thief would risk handing over those materials to the accused's younger brother. The fact that they handed then over to the accused's younger brother (Pw010), to me, is more in consonnance with -. . playing the role of agents of the accused ierson as stated by them in their evidence rather than being thieves themselves. The nature of the trips and the final recovery of the goods at the home of the accused's younger brother (Pw.iO) is Co-agent and consistent with the guilt of the accused John Mohamed Horera who unlawfully used PW.8 and PWØ9 to collect the said materials from the school in question and deliver them to his ill-desired destination which was his younger brother's home at M.alampaka in Macwa District Shinyanga Region hundreds of miles away from Singida town, For the above out-lined reasons, anJ even bearing in mind that the evidence of PW,10 who was declared a hostile witness should be discarded, I find that the evidence of Prosecution before the Court below proved the guilt of the accused beyond all reasonable doubts. . . . . 8 - Consequently I do hereby set aside the order of acquitual by the trial Court and. instead 1 convict the accused of the offence of thelt by person employed in the Publics service contrary to section 270 and 265 of the Penal Code as charged, Delivered in open Court at Dodoma this 11th day of. June, 1975. E.A. 1';e:iu.mo Age, Judge. Order The District Court file and signed copy of this judgment of mine must be remitted to the trial District Court for paesing sentence against the accused John Mohamed 1-lorera in accordance with the Provisions of Section 5d) of the Minimum Sentences Act No. 1 of 1972, t/I ( E.A. Mwesiumo Ag, Judrce, For Republic Mr. Kinabo, State Attorney. For Respondent: Absent,