19781103 TZHC Mbeya1

- - TIT 'B HIGH COURT OF TIllZANIA AT MI3EYA APPELILTE J1JRISDIC TION CRIItENAL APPEAL NO. 25 OP 1978 (Original Crirainal Case No. 160 of 1976 Of the District Court of Kyela District at Kyela BEFORE: P. B. MPONZI, ESQ., DISThICT MAGISThATE) DIRECTOR OF PUBLIC PROSECUTIONS •. , •• •• •• Appellant (original Prosecutor) Versus SAMEL1iWANGISA S. •0 RESPONDENT (Original Prosecutor) CHARGE : Stealing by a person employed in the Public Sericè c/s 265 and 270 of the Penal Code. JtJDGMENT S.NATTA, J., - On Novmber 29, 1976, the respondent, Sanwel Nangisa, was charged before the District Coux't o1 K:':a District with stealIng by a person emp1oyed in the public serV!ce, contrary to a, 265 and 270 of the Penal Code, and, in the alternative, with occasioning pecuniary loss to employeT, contrary to s. 284 A(1) of the aforementioned Code. At the end of the trial he was acquitted 0 The Director of Public Prosecutions believes that justice did not have its day in the District Court when the respondent was acquitted. Hence the present appeal. Many of the facts in the case were not in dispute. Between June 3, 1976 and sometime in November of that year when he was interdicted, the respondent was the O.C.D. for Kyela District. His office and the Kyela Polioe Station were located in the same building. There were two keys to the office door - one kept by the respondent and the other was in the custody of one Corporal Xaveri. 0 " In the office there was a cash—box which was fixed very firmly in one of the walls. The respdndent had in his custody one of the key was kept in two keys to the cashbox. The othe]/ a cafe kept in a strong room at the office of the Regional Development Director. All small valuables - including money - which were surrendered at the Police Station or seized by the police as exhibits were kept in the cash—box by the respondent. - - The undisputed evidence also demonstrated that sometirie in 1975 the cash—box had to be opened by officials from Comworks by use of a crow—bar after the then O.C.D., one Alex Ndunguru had accidentally locked in the key. According to Alex Ndunguru, the Comworks officials repaired the cash—box after they had opened it. Unfortunate1y the witness was silent in his testimony as to whether the repairs which were undertaken included the repainting. The witness was quite emphatic in his testimony, however, that the cash—box, which was admitted In evidence as an exhibit, appeared to be in the same condition in which it was before it was opened by a crow—bar. Alex Ndunru further told the court that the cash—box could be opened by use of a screw—driver. It would appear from the evidence on record that Alex Nciunguri.its successor—in—office was one Andrew Francis Sakimweli, who was later transferred to Mbeya district, in April 1976. Between the departure of this officer and the arrival of the respondent at Kyela one Inspector J3oniface acted as the O.C.D. for the district. During the month of June 1976 the respondent used to share his office with another police officer, one Faidon Kasongwu, who was a law student at the Faculty of Law, University of Dar es Salàai • He was then on leave. It was comon ground that both officers used the office on June 8. There was inconsistency in the prosecution case as to who, between the respondent and Faidon Kasongia, left the office first at the closing hour. Accordinç to one P.C. Mohaned it was the respondent, but according to Faicion Kasonia it was he who left the office last. The rcspondentts testimony on the point dovetailed with Paidon Kasongwas version. On the morning of June 9 the respondent informed Faidon Kasonwa that about shs. 21,000 had been stolen from the cash—box. When the cash—box was, later in the dayopened in the presence of one Mba, the then Regional Crime Officer for Nbeya region, it was discovered to contain ohs. 2,403/10, cheques, a safe register, handing—over certificates and keys for the aroury and police vehicles. .i I Exhibit money amounting to shs. 2 1,3 00/ which was also supposed to be found in the cash-box had vanished. The cash-box displayed no marks showing that it had been forced open. The Regional Crime Officer got the cash-box removed from the wall, and seized it as an exhibit. There is evi:ence on record which suggests that the cash-box and several finger-prints taken from several suspects were submitted to the Identification Bureau in Bar es Salnan for examination. The prosecution, for reasons which were not disclosed at the trial, did not put before the court the results of the examination. While he was in the witness-box, however, the respondent produced before the court a police message ostensibly originating from the Criminal Investigation Department in Bar es Salaam and addressed to the C.I.D., Kyola, whOse operative part reads as follows, in Swahili: "Uchunguzi Wa alana za viclole xxx watiliwa I'Iashaka panoja na watu wanaohusil:a hazilingani na alama ycyote kati yn alama za vidole na watiliwa nashaka na wahusika natokeo ya kwanza nilittx a 6/5/76 ooc. Whether this document was admitted in evidence to demonstrate that the resnondent was not involved in stealing the money from the cash-box, or merely to demonstrate that a finger-print examination had been carried out in the case, I an decisively of the view that the learned trial magistrate misdirected hiuslf in law in admitting the document in evidence. The document could not have been admitted in evidence under the provisions of s. 154 B (i) of the Criminal Procedure Code as the police i:lessage was net under the hand of an officer appointed under the section. The sub-section reads as fo11ows:- 11 154 B. - (i) Any document under the hand of an officer appointed for the purpose by the order of the Director of Public Prosecutions, which purports to be a report upon any finger-print or finger-prints submitted to him for examination or conparieon shall be receivable in evidence in any inquiry, trial or other proceeding under this Code and shall be evidence of all facts stated therein." The police message could not be put in evidence for the purpose of establishing that a finger-print examination had been carried out, because, part from the contents being hearsay, there was no evidence before the court demonstrating that the alleged examination described in the document related to the case then before the court s .14 - To revert to the summary of the facts of the case, it must be pointed out, at this stage, that the prosecution also laid before the lower court evidence to the effect that on June 10, 197 6 , the respondent had made unsuccessful efforts to have a key made for him. In his testimony the respondent admitted the accuracy of that piece of evidence but went on to assert that the key was intended for his cup-board. The prosecution did not lead evidence, under s.207 of the Criminal Procedure Code, to contradict that explanation. The prosecution case included the evidence of one P.C. Timothy. That witness was the police nan who was on duty at the Kyela police station from 3.00 p.m. to 11.00 p.m. on June 8, 1976. He claimed that at about 5.55 p.m. the respondent visited the police staion on that day and remained there for about three minutes. In his testimony the respondent asserted that that piece of evidence was not true. He had not visited the police station on that day after 2.15 p.m., the tine he had left for his residence. The respondent adduced evidence from one witness who claimed to have been with him at a bar between 5.00 p.m. and 10.00 p.m. In his evidence Faidon Kasongwa claimed bhat when he left the respondent' s office at about 2.30 p.m. on June 8 he had bolted the door to the office. P.C. Mohamed, who was spelled by P.C. Timothy on that day, said in his evidence, however, that the door of the respondent's office was ajar when he was leaving the police station at 3.00 p.m. As for the condition of the cash-box on June 8 after the respondent had in-formed Faidon Kason,wa of the theft of the money from the cash-box, the prosecution led evidence from two witnesses not to mention the Regional Crime Officer and Faidon Kasonrwa. These were one Lii be Selya, who was, in June 1976, the district financial controller for Kycla district, and one Sefu Iibdallah, a Comworks employee who was specialising in repairing cash-boxes, among other articles. The testimony of Limbo Selya was quite short. The most relevant part of it reads as fo1lows UOn 10/6/76 I was in Kyela in my office and that was morning. I remmubor I was called by a person in the name of Babolio and told that thore were problems at the police station Kyola and so I ras roincd to o there. -5- I went to the police station and I was told that money which was in the police cash—box had been stolen. They called me to witness if the box will lock and unlock. I witnessed the box being unlocked by the key and then it was locked by the key. It is I and Ndugu Kibona the District Magistrate, Kyela, tried to open the box by unlocking it and locking it again. Also present was Ndugu Mbaga. I did not find any defect but one had to press on top of the box to lock it otherwise it was all good .... when the cash—box is all good there is no need to press it on top to lock, it. It may be that it is the fault of manufacturers. I see this box and has three portions on top ihich seen to have been pressed clom (Bonyea) ...... Normally no key can open another cash—box If the cash—box is not properly lockedit will open when i-l-& the handle." Sefu Abdallah's testimony was that he had been erirployed by the Ianistry of Communications and Works for twenty seven years. On June 11, 1976, he saw the cash—box seized from the office of the respondent's. He examined it and found no defects on it. The cash—box locked and unlocked without any difficulty. The witness went on to assert that the cash—box had never been opened. "by force using a screw—driver." If the cash—box had been so opened he would have expected to see scratch marka on it, but thewere none. He ended his testimony with this sentence: "I would wonder if I am to be told that the cash—box was opened by using a screw driver but the cash—box has no marks." Before I proceed to outline the respondent's testimony, I should mention, I think, that when he was in the witness—box Corporal Xaveri gave two contradictory statements regarding as to who, in June 1976, was in possession of the second key for the door to the respondent's office. In exanination—in—chief he said: "The office of the O.C.D. had two keys. The key for the loek was damaged and then they had put a bolt with a padlock to lock. I can identify the padlock if shown. This is the padlock but I remember when Mr. Ndunguru and Sekinweli were the O.0 .D.s here I was handed over one key so that every morning lopen the office OTT ooI o. J031 .I0t10 OUT q Tbl aOTjJO et. q e1041 SM (xaTMx) 'Ew rIcIO ioop otfl po oq C.rtp ou ptt I oziçjjo eq o. u.inaz Tou PIP I qnq ntaojTun etidea o. esnoq Tsaa ailT oq. D wros OOtJJO -30 I I fl0 TO? 010m I UT I nL eOtJ;O 0t. Ut itttOj,T !tS '0T33O ti U !4U0S dEr'V I o' .io uc1 noqt eojjo ailor uç stt I etrçq. icip 0tfl f?uTaxa ot.iqst(L atIT jo t[0T0OdSUT 103 at too oq. S IU M ot .ieptrowvxo 00fl0j [UOPaT EMIT OAT000I O OM SV sotnp flU.LIOU &ITOP VTG-it.H Ltt 001330 OLIT UT Ou A I 9L61/9/9 Uo :SMOflOJ SU SM OOUOptAO suapuoctse.i etj. 6ip injaqtj GLIT uo P 03: TdsLm-zzq. Tc LIPt o. sy oesodxnd S1t. .103 OUTI Ott0ttCI0[O q00ITp tjqçM uUq ot s'tart 001330 eta trq ot. uotj io euoqcIoeq. iouo.taute Ru'o .xatsu o u0qT4s oo -çod ot 4np uo .1001330 aoTIoct Iqua o. £I'ssaoeu sux STtT4L o rT e d oo i?im, 0017 ueoeq oq ori l d uaaaq ueclo UIUt'IOZ O. pUt[ 801330 StLI 'pOttIlY0 t0pt1OOS0.I E S00çJj0 W0tX.1aAO2 iato 03 ITTUll 'v oc'L oojeq POttUOTO itt0q supi 001330 aLU OV UT-,Ta:ori £I0A8 eqsuoo eOTEOd t )q peuUoIo 5W1 001330 0t. TVLTT einsuo o. rrrq trçqiuo jo esocLrrtd at. .Ioj 001330 (squapuoctsai atlq) SILl jo loop 01fl. .103 ~ 03T p uoOos OTfl tflt!4 -L.)0TS ZU T LT0 ttaGQ pt'q Z0 TAC tiito(L1o3 4 xoq—t[sio aq. rio.xJ =/ooc'12 011. 30 00ttU.1EOdd13ST p1 0L. SEIJ0. pooAtnbetm uT pOrpU Ot[M 'quopttoctse.x 0T4 0. ttTpJ000V '.&lJOT'IcI 'T.'TUJ paqis oq UUO -T JO 001"U3flS aLIT 31uT LIT I qnq 'Luopso. peçli.op LIOA le SUIl Tj •tU0 U0 00U0p1A0 0Al2 .U0pU0cis0.1 oti - , 00 TJ3 0 SILl uoclo o. T ou OLT ploT atj tJflotfl.0 I2UWtJA 0. Otfl. UJ.fl0.1 Tou PIP I jcO31 etp pUtt I uotp. TTTq. q.nq MTLI o. 'ka3l etq. peopuons i UOtIM ST TT 5L/916 ti7 otirso 01. tI0tTf. ati qqçM P@LrT Wl0Z1 Jk @N - 0tl q.xtq aoop at. tiado Tou pinotis q.ot. arc. NOT ott , I0A0 31000 pas orruo UST?U Mist U0tTj, ''(IDO OXOPi TIOfrWIPIOS pUU ltt'LUflp tWtM 001330 OT J~ 031 0t. puq L, PTUS °FI p0LTTttUX0_SS0.I0 2 LIT@q SUM IU.1OCIJOO 8tJ1. UOLjM '.IOAE)I'IOtl 6 P0 tzUtt 0 JIIU0TUUfl3Ip .&.10S TULU 014 ST ST'l •ttMottS 31 otfl jçttop -ç UUO I isoi TOD J8AOU &ej otj sio qoq pq eq ptn Tt0SCITLt 0. ka)j 0t. -ooT pUU OttLUO St)tLUMW i;I IIT- OtXO POLl I - - I. I did not come to the office again. In the evening I went to Salama Beer Store which is along Kyela - Tukuyu Road. By then it was about 4 or 5 p.m. and I was accompanied by two other persons. I was with Superintendent 11hagmaa of the Police Marine and Peter Maswela. At about 9.00 or 10 p.m. I returned home to the rest house and my fellows each went his way to his home, lifter that I did not leave the house tin next morning." Giving an account of the events of the following day, that is, June 9, 1976, the respondent said: non 9/6/197 6 I went to the office at about 8.00 a.m. or near 8.00. I found A.S.P. Kasongwa in the office and I went to inspect if all had been done for the coming R.P.C. I then took the key of the cash-box from my pocket so that I put some documents in the cash box. Soon I opened the cash-box I was surprised to find that the amount of things in the cash-box was lower than I had left it locked because it looked like if something had been removed from the cash-box. I immediately asked A.S.P. Kasongwa as to what situation he had foun0l the office and he told me that he found the door office (sic) open as it is norually found to be. I told A.S.P. Kasongwa that money must be short in the cash-box. A.S.P. Kasona asked me if I had not locked but I told him the cash-box was all locked as he witnessed me unlocking it. I imr:iediately called CPL. I1eja to ask him as to how he had left the office by yesterday and who unlocked it and who had cleaned it. Malema said he had locked . the office on 8/6/76 during the evening time and then changed his tongue saying he had forgotten to lock the door • , • , ' The respondent went on to claim that later in the day he reported the disappearance of the money from the cash-box to the Reona1 Police Commander who summoned the Regional Crime Officer from i'Paoya to go and investigate the matter. The respondent denied to have instructed Corporal Xavier Malema to stop 'opening' the door to his (the respondonts) office, but admitted, in unequivocal terms, that when iias examined on June 9, 197 6 9 the cash-box showed no sigus of having been broken. That, in summary, was the evidence that>was laid before the lower court. -8- at The learned trial inagstrate reviewed i/a eat iengtho In the end he held, among other things, that from 1975 the cash-box was defective, and that the respondent was not the only person who had accoss to his (respondent's) office. The learned magistrate was also of the view that the evidence before him did not rule out the pos 3lblllty that the person who stole th.e PONQ had managed to put his itching fingers on the money after he had opened the cash-box by means other than the use of a key. Being of that viei, the learned magistrate felt consrained to hold that the pfiencp (by the respondent) of stea1inWhae not been established beyond a reasonable doubt. As for the alternative charge of occasioning pecuniarf loss to employer, he said: "It is true the accused left his office at 2.20 p.m. and he left A.3.P.Kocongwa a collenaue who shared the office with him. He could not shut the office and tell A.S.P..Kasongwa to get out of the office. The 0,C.D.'s office had to be left open for Bank security purposes In that they have a direct link with the bank in case anything happens they may easily comnimicate with the Police. This telephone is in the office of the O,C.D4 Bank people leave office at 400 or 5.00 p.m. and it is by this time the office of the 0,C.D..couid be locked. Things as they were I do not see that the accused was required to lock the door at 2.20 while there was another key kept by Cpl. Xaveri Naleiaa, Dven if he could take out A.S.P. Icason(ia from the office of the 0.C.D. but still Cpl.. Halema had an access to the offices Negligence ought to be proved by evIdence while inference could be drarn from the acts of the accused that what he did or did not do was an act of nogligenceo Circunstances do not show any negligence by the accused." I propose to deal first with the Director of Public Prosecutions complaint against the acquittal of the respondent on the charge of occasioning pecuniary loss to employer. Section 284 A (1) of the Penal Code does not, unfortunately, define the deirce of negligence which is to be regarded sufficient for the purpose of the section.- The offence created by the section is usknown to the common law. No substantial guidance can, therefore, be derived of from that areW the law in interpreting the word "negligence" in the section. 0 U ti?t'1 T?T poiitO[ 04 ?t[ PIOLI O JTOSJU tZO IT?AOaCI tj.OUUi?O 4 i1oJcs .&todoxcI oqncI DUTdODII Jo ooutiocIrrç ot op oTotdcIt otto ott edot1 i eu rnsoor1 UeAetd eQITOd i?XO poçubaz qoçq& poan000 oue como La? ttcte eq. uç peeds qpi uotqqs oociocT eq qotquoo o s rçoçJjo trq otq. oquo oq. •uId oo qnoi q.Ufl ttoclo trçiirto.I o. 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JO OSU Jq potzedo svm xoq—tsto ot; ;ttt; s 'pou.xeouoo srit .9uTIro;s JO OLO etq. si J sv 'uot;noosoid otlT ..103 eSttO @LIT JO ;XSOq NO 7PptrnOJ-1.[ik T UoT;ue;Uoo s;p qAT ;utj; 0IMSSP o; pe..rcte.xd ri eAç;oajep ueeq ptt xoq—tso et; ;uepuoT.se.i oqq. o; ICAO peputtq MOM ;ç CUT; eq; q ;ti; ;0i33 v stt ;ç )UTpUTJ tvç jeScrçq pe;oeapsiii tT pet tei ert; ';uIIe&I ou; .ioj Tesunoo 'p; zrr iq peptxe;uoo st s '.xeq;etM 2LITITOPTSUOO q TuatuaSpnç sçq; tzepxnq o; esoclo,xd ;ou op i eoçAias oqnd trç peLocfrre tiosied i q 3uioqs Jo eLrrto oq; uo ;tnItedcI ott; J° T14TTnbov ott; ;suTt' Iodth etj; o. tou uzq i ';utIIedth ott; o; aooq ;qno.xq ueeq ;ou pttt ieicoiduo o; ssoT £rriçtmoed 5uTuoTs1000 jo OOUeJJO ott; ;ott; 'pip ott s 'UtPIOtt UT JIestrctt po;oaxipsu , Ot - ( I 1 ki of evidence from the lips of Alex Ndunguru? Mr, Massati laid evidence before the lower court assiduously, if I may respectfully say so. Bearing that fact in mind, it would be reasonable, in mf opinion, to assune that the absence on record of evidence to the effect that the cash-box had been repainted was caused by the fact that no. repainting had in fact been done on the cash-box rather than due to default on the part of Mr. Massati. If the cash-box was once opened by use of a crowbar without leaving on it any marks revealing that it had been opened by such a method, I can see no warrant, on, the evidence on record, for ruling out the possibility that the shs. 21,3001= was stolen after the cash-box had been opened by unconventional means. After all, it was not the evidence of Alex Ndunguru that the repairs which had been done to the cash-box were necessitated by the fact that the cash-box had been opened by the unconventional means. The evidence on the point is vague, leaving it open to a reasonable speculation that the repairs were undertaken to remedy the original defect on the cash-box. The respondent was entitled in law to the benefit of any reasonable doubt in the prosecution case. For the reasons I have given, I am of the view that the conclusion that the cash-box had been opened by use of a key was not the only reasonable conclusion one could properly make from the evidence that was laid before the lower court That is enough I think to dispose of the DIrector of Th2blic ProsecutIons' complaint against the acquittal of the resondcnt on the charge of stealing. It may not be irrelevant, however, to say a word or two on the omission of the prosecution to lay bare before the court the results of the examination which the finger-print expert appears to have carried out in connection with this case. If the results of that examination had confirmed the theory that it was the appellant who had stolen the money from the cash-box would the prosecution have ornitted to put the results before the court? I think not. 1hat legitimate inference, then, can be c1rai from the omission? .12 41, 1 I take it to be a firmly settled principle of law that a court .of law is entitled to presume, in appropriate cirpumstthces, th&t. evidence which could be and was not produced would,if had been produced, have been imfavourable to the party who withheld it. That power of inference is provided for by s. 122 of theE'iidence Act, 19671 which I proceed to read:— -. 122• The court may infer the existence of any fact which it thinks likely to have happened, regard • being had to the common course of natural events, human conduct and ub1ic nd private business, ir their relation to the facts of the particular case." If the finger—print expert had detected on the cshbox finger—prints of another person in addition to those of the respondent, who had always been handling the cash—box, the spirit of justice asks: 4hose fingerprints were those? The proseoution elected to provide no answer to the trial court to that question. It musb be presuned that they made that election because their contention that it was the respondent who had stolen the shs. 21,300/= would have been found to lack merit if they had attempted to quench the thirst of the spirit of justice. Quite wisely, the prosecution chose to fix two arrows to their bow, but I am satisfied that the learned trial magistrate was perfectly entitled to hold, as in effect he did, that neither arrow had struck the respondent. Mr. Ntaki impeached the learned trial magistrate's decision with a soldierly vigour, but I am satisfied that justice had its day in the lower court when the reslJondent was acquitted. - The appeal stands dismissed. B • A • SJiNATTA JUDGE Delivered in Court at Mbeya this 3rd day of November, 1978, in the presence of Mr. Ntaki, Counsel for the appellant, and Mr. Tulcunjoba, Counsel for the respondent. B. A. SJ1M/TTA JUDGE: