director of public prosecutions vs romanus otto mkinga 1975 tzhc 2 11 july 1975

IN' THE RICK CCURT CF TANZANIA at tabcra AJPfcLLATS, JURISDICTION (Tabora Registry) C R U y INAL .APPEAL NC.33 CF 1975 (In the District Court of Tabora D i s t r i c t e d Tabora) Original Criminal Case No*495 of 1975* BEFORE: L.A.A* K y a n d o , Esq*, Resident Magistrate* The Director of Public Prosectieas Appellant (Prosecutor) versus Romanus Otto Mkinga ................................... Respondent (Original Accused) CHARGE: Stealing by the person employed in Public Service contrary to section 270 and 265 of the Penal Code. ^==S==§==§==i==¥==i==S==I * AKA SEND C t J . This is an appeal by the Director of Public Prosecutions against the decision of the District Court Tabora acquitting the Respondenti original accused, ROMANUS OTTO MXINGA, in a casa which the respondent was charged with the offence of stealing, to wit, shs.1,200/= by a person employed in the public service contrary to sections 270 and 265 of the Penal Code- The particulars of offence alleged inter alia, that Romanus Otto Kkinga being a person employed in the Public Service as an Assistant Accountant between the l4th October, 1970 and 20th December, 1971 stole shs. 1.,200/= the property of his employer the Ministry of National Education which was given to him by the Principal of Ndala College of National Education, .Tabora* for the purpose of buying a safe for the said college* The evidence led in the case is not in any serious dispute* Briefly the facts desclosed from the record are these: At all material times in 1970 the respondent, Romanus Otto Kkinga, was employed in the Ministry of National Education Headquarters as an Assistant Accountant in—charge of the Examinationfs section of the Ministry. His duties in this section included among others the examination of accounts and in discharging these duties, he had to make frequent visits to Secondary Schools and Colleges of National Education and report thereony In October, 1970 the respondent made such a visit to Ndala College of National Educatioh within Tabora region* After completing the inspection of the col le ge fs financial accounts the respondent by arrangement met the college Principal and members of staff of the college for a discussion in respect o f s o m e o f t>.e f l a w s hp toad f o u n d in the . • . -2/colle.ee 1s management col le ge ’s management of its accounts, one of the topics discussed at this meeting concerned the question of a safe for the prof>er and secure custody of the college's finances- As a result of this discussion the Principal of the college agreed to provide Sh s. l s200/- from the scLool fund for the purchase of a second-hand crafe* The respondent who received this money and acknowledged its receipt by appending his signature to a payment voucher - EXHIBIT P « 2 t agreed to make every effort when he got back to Dar as Salaam to buy for the College a second hand safe .sro.:: any of the auction marts in Dar es Salaam* This transaction was also witnessed by a member of the staff one James Andrew Shija (P.W.6)* The respo** ndent then returned to Dar es Salaam. In his evidence the respo­ ndent told the trial court that immediately on his arrival in Dar es Salaam he contacted several anotion dealers and asked them to inform him as and when they had a second-hand safe in their possession. After doing this the respondent continued with his official visits to other educational institutions of the Ministry but, whenever he returned to Dar es Salaam he contacted the auctioneers fnquired about the safe. He still had the money proveded by the college for this purpose on his person or under his control. On 10th November, 1970 the respondent by letter of that date informed the Principal of Ndala College one Suzana.. (P.W.5) of all the fruitless efforts he had made in acquiring a second safe for the college*, This letter which appe^^ra on record as EXHIBIT P-3 reads inter alias— "Mkuu wa Chuo t Ndala*, Chuo cha Walimu* P.O. TABCRA. UAGIZAJI UA SEFA I Nasikitika kuwa kwa ajili ya safari nyingi za £rL*ondoka ofisini marabo mengine mengi yamelazimika kuchelcweshwa* Mpango sasa umefsnywa na makampuni yashughulikayo na uuzaji wa sefa na mrra itakapokuwa tayari nitatoa habari haraka. Kwa muda huu mpaka sefa itakapopatikana fedha zipelekwe bank, ila sehemu ndogo inayotakiwa kutumiwa. Sina shaka taarifa yangu ya ukaguzi ihekwisha fika na kwamba mtafuata maongozi nili- yotoa. Napenda Irutoa ahasante kwa makaribisho memo niliyopewa wakati nikiwa nanyi siku zile zote nilizokaa ndala. Salamu za h e r i , R. OTTO KEINGA k.n.y.MH~SI3U KKUU •5/This letter has a This letter has a reference No.3DF.A/31/159#y The. A&j^&ident wrote another letter to Suzana (P.W.5) on 19th March* 1971« This letter was tendered in evidence and appears on record as EXHIBIT P.4. The letter reads:- HKkuu wa C h u o , Ndala, Chuo cha Elimu ya Taifa, P.G . TABGIaA UAGIZAJI w a s e f a Tafadhali rudia tena barua yangu EDF .4/31/159 ya 10/11/70 kuhusu sefa ya chuo* Nahakikisha kuwa Wizara hii imekwisha agiza sefa kwa ajili yat shule na vyuo na chuo chako ni moja ya zile zenye ciatatizo kutojaiwa na sefa,. Mpaka hapo zitakapopatikana sefa ni muhinns kupunguza kiasi cha kuwa na fedha zaidi ya shs.200/= chuoni, na kvramba fedha zaidi ya shs.200/= c h u o n i , na kwamba fedha zinazozidi jumla hiyo ziwekwe banki. Fedha ya mishahara zichukuliwe banki na kulipwa kwa siku hiyo hiyo ili kuepukana na uwingi wa kutokuwa na fedha nyingi chuoni# Sgd. MKINGA . k.n.y. KHASIBU MKUU Nakala kwa: Stores Officer i/c., Elimu Kakao M a k u u , PAH ES SALAAN. At or about this same time the Principal of Ndala College attended a P ri ncipals1 Conference at Dar es Salaam and in the course of her stay in Dar es Salaam she met the respondent. The respondent assured her that he was still in possession of the money she had handed to him for the purchase of a safe and that he was still making every effort to make the purchase but t' there were as yet no second hand safes available on the market.. The Principal accepted these assurances by the respondent* At the end of the conference she returned to Ndala and as far as she vras concerned there the matter rested until she left a course to Canada, in August, 1971* Then in September, 1971 Dora Fanuel (P».W. 4) took over as Principal of Ndala College. In taking o*#er the affairs of the college she learned about tTre sum off shs. 1,200/= which was sts&fcd on the records of the college to have been handed to the respondent the previous year for the purchase of a safe. Cn investigating the matter further she found the two letters Exhibits P3 and P4. Subsequently armed with these two letters she went to Dar es Salaanrfcfcoiinquire about this matter but on going the rounds at the ministry it became apparently clear that no responsible officer there knew anything about the sum of Shs.l,200/« or the safe. » - . w ~ . ..•••4/However, the However, the Ministry ins4aod of checking on the matter with the respondent as they; ought reasonably to have done decided to advise the Principal to place the matter before the police, Tabora* The matter was duly reported to the police on 15/11/71 and investiga­ tions oommenced on 17/11/71* The police strangly enough took no further steps on the matter until nearly three years lQter when on 30 / 12 / 7 ^ they arrested the respondent and charged him w i t h stealing by a person employed in the public service the sum of she*1,200/=* The respondent who gave evidence in his own defence denied the charge contending firstly that as ttessre. was no fixed time within which to purchase the safe or return the money to the Principal Ndala College he could not be held to have stolen the money merely because he had taken so long to return the money* Moreover, as conceded by the learned state attorney it is clearly established on the evidence on record that the respondent return <rf the money in December, 1971 had nothing to do w i t h the report made to the Police by the Principal Ndala College because as he asserts he felt his transfer to Bukoba would make it nigh impossible for him to fulfil his promise to the college to purchase a second hand safe for them. The respondent also put forward ^ 't. another defence which is shortly this that since at all material times he had on him the money alleged to have been stolen, the charge by the Republic was to say the least utterly misconceived- The learned trial Resident Magistrate accepted the submissions made by the respondent and acquitted him of the offence charged* I T* Mr. Ntabaye, learned State Attorney representing the appellant, the Director of Public Prosecutions, while conceding that the agreement made between the Principal and the respondent for the purchase of the safe made no provision for a time limit, submitted that - notwithstanding the learned trial Resident Magistrate was in error in failing to tak^ into account a number of factors among which are (a) failure by the respondent to report to his superior officer* in Dar-es-Salaam regarding the receipt of the money in question (b) absence of copies of Exhibits F3 and P4 from the appropriate Ministry*s file. I do not think this criticism of the trial Magistrate has any basis whatsoever* The learned trial Resident Magistrate in fact considered all these factors and quite properly, in my opinion, found nothing in them which could irresistably point to the accused guilt. The part of his judgement dealing with these points reads:— !,0n these facts did the accused steal the shs.l,200/=? The prosecution base their allegation of theft on the part of the accused on the grounds that first, the accused omitted to mention in Exhibit P 5 the fact that had taken the shs. 1,200/= from the college; secondly, that it was improper for the accused fv- - ......... 5/to handle cash drixring to handle cash during his inspection duties and lastly that he returned the shs»1,200/= when he got wind of the fact that the police were making investigations into the shs.1,200/= he had taken- Y/ith respect, I do not regard these grounds to be pointing to a theft on the part of the accused. As to the first one, the accused says it was not necessary, there being a record of the money in Exhibit P2, to mention it in his inspection report# He has been backed up on this by a prosecution witness, P*j>/*5i I agree with the defence on this myself and hold that the fact that the accused omitted to mention the shs*1,200/= in Exhibit P5 does not mean that he stele the money* Neither am I prepared to hold that the omission was made deliberately* As to the :aetcond ground, it nay veil have been improper for the accused to handle cashe during his inspection tours, but that was merely an administrative fact; I do not think that the fact that he handled cash in this case did result in a theft on his part* The cash was handed to him and I do not think that he got it by theft or for the purpose of stealing it* Regarding the last ‘ ground, there is no evidence whatsoever to show that before the accused returned the shs *1,200/= he had h e a r d ’that he was under police investigation, none of the prosecution witnesses has said he or she did notify the accused on that. Further as found above, there was at no time any demand for the return of the money to the college and actually, there were no complaints received by, the 'cc s accused fc-egarcling ^tfie ^ftfoney* It is difficult, therefore, for me to find for the prosecution that the accused was prompted by police investigations when he returned the m oney.n With the utmost respect to the learned State Attorney, I fail to see where in this analysis of circumstantial evidence the learned trial Magistrate erred. The circumstantial facts on which learned state attorney has rested the major and important part of his submissions to this court are clearly in my opinion quite consistent wi th the innocence of the accused and could not even by a stretch of the imagination be said to be incapable of explanation upon any other resasonable hypothesis than that of his guilt* The accused has in fact provided a very sound and reasonable explanation for all the so-called omissions — an explanation which in my opinion the trial court properly and correctly accepted. Be that as it may, I think at his stage of my judgement I should discuss briefly what I beliore was the fatal flaw in the case brought by the prosecution against the respondent. As already stated this case related to moneys which lawfully caire into the possession of the respondent* It is trite law of course thet if a person who receives money in circumstances such &s the accused o... 6/received the shs*1^200/= received the shs*l,-200/= in this case subsequently forms the intention to approprite the money and convert it to his own use, the fact; that such-moneys came into his possession lawfully in the first place is no defence to a charge of theft* So long as it is proved that subsequent to the lawful receipt of the money the accused formed the intetion to use it at his will or convert it to his own use, he will rightly be found guilty of stealing the money. Support for this view is to b e found from paragraph (e) sub-section (2) of section 258 of the r^enal Code which provides as :L follows ” 258 - (2) a person who takes or converts anything capable,of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to aagr:~ (a) ----- --- ---- ---- ---------------------------- (b) ----------------------------------------------- ( c ) -------------------------------------- ----- (d ) ---------------------- ---------------------- (e) in the case of money, an intent to use it at the of the person who takes or converts it, although he may. intend afterwards to repay the amount to the o w ne r.” Now in this case, as Mr* K w i k i m a , learned counsel for the ’s *"i respondent, has properly submitted there is one startll&jg fact which stands out and this is the bismal failure by the prosecution to establish an essential ingredient of the offence, that is, tha. convertion of the money, the subject-matter of the charge, to his own use* No where in the entire evidence led in the case are we told directly or by necessary inference when the alleged convertion of the money took place* This could of course be do ne in seveJral ways* First, it could be done by showing for instance that when the money was demanded the accused failed to account for it and secondely by establishing a s a fact that the return of the money was as r esult of the accused hearing of the police investigations mounted three or so weeks before he returned the rconey to the college* The prosecution made no attempt to adduce evidence to establish any of these facts* Therefore, in view of the evidence before me, I entirely fail to see on y hat basis the charge brought against the respondent could be sustained* I entirely agree Tdth learned counsel for the respondent that failure by the prosecution to prove that the accused/respondent at any stage between l^th October, 1970 and 20th December, 1971 converted the money g-i to blrn bv the ?r*i‘ncH 1 of ^dala College for the purchase of a second hand safe to his own use or to purposes other than the purchase of a safe, was a serious and fatal flaw in the ease put up by the prosecution* **«-• 7/For ’the foregoing reasons, For the foregoing reasons, I find no merit in this appeal by the Director of Public Prosecutions and accordingly dismiss it. It is so ordered. M. MWAKASENDO, JUDGE 10/7/75 Judgement delivered in open court in the presence of t Mr. Temba, Learned State Attorney for the Republic and Mr. KwiJcima learned counsel for the-respondent. 11/7/75