19790315 TZHC Dodoma1

- • • IN THE HIGH COIRT OF T.TZ AT DOD0M CRIMINAL ..:PFJ;i No. 78 OF 1978 '• (Original Criminal Case No.. 508 of 1976 of " • the ]1strIct Court of.Kndoa..at .Iondoa) ' Before: S.R. Kahangwa, Esq; Resident NagistrYco' THE D. P. P.. . . . ..••... • . APP LLMTT'' vos.us '• ;• '. ., TTJMAINI SJHIHI '. . . • •. . .' . RETPO1TDENT S - 'JUDGN;T'1LT' - CHIPETA. .J. In Kondoa' District Court, the respondent, Tumaini , • Sahihi, was charged:with the offence of stealing by agent c/S • 273(b) of the Penal Code, and after a full.trial, he was . acquitted. Disatisfied with that acquittal, the Director of Public Prosecutions now appeals to this Court against the acmittal.' In brief, the prosecution adduced the followi' evidence.. from a total of seven witnssos the complainant, one Ezekiel Moshi (Pw.i),, and the resondent knew each other well long before the matter in dispute arose. The respondc:at is a transporter and Pw.1 is a businossman-cum-shoC-m:kCr Sometime in 1976, both of them were resding at Yondoa wor iw.1 owns a lodging. In July', 1976, Pw 4 1 went. to Moshi whore he p1 cod an order for 16 beds and 8 chEtirs 'with, a team of carpcerakxown as East Rombo Furnitüres. He duly paid for -thc-'s!Vi6 rind returned to Kondoa Subsequently, Pw.1 was informed by the furniture makers': that the beds and chairs were ready and were awaiting . collection. Thereafter Pwal approached the respondent and asked him if he eould'transport the furniture in-question from Noshi to KondQa The respondent agreed to do so, and the two agreed that the transport charges would be shs.: 380/- which were to be paid after the respondent had delivèred,' they articles to Pw.1 at Kondoa.. Pw.1 then handed to' the , respondent receipts for payment of the furniture together with a ltter of introduction. " . The respondent went' to Iosh.i and Dw tkLe furniture makers, There the person inchargoof 'the furniture' factory, one Anderson Lyimo, (Pw.6) duly delivered 'the 16 beds and eight chairs to the,. respondent, and all the 'beds:' and chairs were then lodod into respondent's vehicle'. -. . ..• ' '• •. r•'. - 2 - According to Pw.6, in the course of loading the furnitur into the vehicle, the respondent told the iJeople who were doing the loading to keep one of thdbod,: it the.extrcme end Of the vehicle because it was to be Off-loaded on the way. The evidence of Pw.2, who was .the rosppndent's house servant, was that on arrival with tho furniture at the, •j" ' respondent's house somewhere at Moshi, the respondent instructed. Pw.2 to off-load three chairs and one bed. Assisted by the respondent's wife, Pw.2 off-loaded'tho three chairs and one bed and kept them in the respondent's house. Next morning, the respondent end Pw2 left for Kondoa wit]ithe re?raining furniture. On arrival;;. at Kondoa, the respondent and 11 w.2 off-l.oadet the remaining 15 beds nd five chairs t Pw. 1' s lodri z. When Pw. 1 asked the respond Oht where the hil'ñOo of three chairs and one bed' :wore,the respondent, in the presence of i'w.2, told Pw.1 that they wero'loft at the' factory bucm;:.se they were not yet ready, and that he would.gOt'O collect thom'a±tdr ld holidays. In the, presence of 11w.2, Pw.1 then paid th: respondent shs. 380/- being transport charges for the furniture. . .•;.• Thereafter, 11w.1 had '-occasion to go to Joshi. When he wont to the factory to inquire about the three chairs and one bed, he wa's told by the factory owners that tho respondent had collected all the 16 beds and eight chairs in onc lot. ' Pw.1 returned to Kondoa and asked the respondent about. the matter. The respondent then said., that he had the three;.. chairs and one bed, but that he would nOt ''sufr'ender them to 'Pw.l,. He did not, howovOr, say why he ha'd decided 'tO retain them. 'It was then that Pw.1 reportedthernater to pOlice. On receipt of the report, a police sergeant (Pw.5) summoned the respondent' and asked hir about the' furniture.' The respthdent readily groed that ho had the bed 'nd three chairs, and he asked P.5 to give him three d'ys wiiiin which to bring them Tht was on or about 7th Octoh-r, 1976. The respondent, however, never hrougl't t'e arutcos never showed up at the police station for sover - 1 Jy So some three weeks later, Pw.5 suramond him g'in ond sked him why he had not surrendered the furniture rs he h2d prorieed. This time the respondent told Pw 5 that he was riot intciding to surrender them. It was then that Pv5 decided to: charge the respondent with the offence cited above. 1; ' , - On 20th March, 1977, on information re'de'ived,"a police sergeant (Pw.3) went. to a shop of one Thomas-at Kondom, and in one room of the house,. Pw.3 found a bed and 'two choirs, and these were later identifid by P.1 and prod-uccd-'-' in".oiirt. The said Thomas (N. 6), who said that he was' orkiñg with the accused, said that he aid not know how those articles 'came to be there because h6 had just trkcn over the running' of the shop from one Anthony. No one seems to know the f --te of the third chr. In his defonce on rth, the roapondont sid tili t he and the comploina.nt had egreed that the cost of tr eprtng the 16 beds ond eight chairs would be shs 1,300/-. Ho thcn brought all the fiirnituro to Konda. ihilo the co"pl mont's servants wore off-loading the furniture, the roe Oi' 1 cnt demanded to be psid his transport charges, but the corapl'mnant refused to pay s'yingth-t the respondent had merely assisted, him. By 'hQn one bd and two chairs -remained to be offioaded:.So- the rspondent,so he said, decided to retain. the;;'-remaining furniture. The complainant, the respondent went on, then said that;he would "fix" him. On that evidence the learned resident magistrate (as' he then was) held that a 's there was a dispute over the., transport charges,'a matter, he said, was:"best known by -the,": - accused. and'Pw.l'," the issue, in' his own words, "falls into the realm of a civil nntter of contract." On that ground, so'it would appear, the learned magistrate acquitted the rospondent..-' . In his memorandum of aapeal, the Director. of ?uhlic Prcsecutions advanced fotu'. grounds. A perusal of those grounds, however, shows that they can b summed up' in the.. following terths that the learned magistrat.p groocly misdirected himself in,evaluating.thovien and -so arrived at' the - errowieous conclusion that'- the matter 'was 'a' civil rather, than a criminal one. In the light of the grounds of r pcal and rgu or Ls of the learned senior state ttrney at the hearing (f this appeal, this Court,as indeed it is its duty hns to review the evidence and so decide whether the learned. 'trial- magistrate' did, infact, misdirect himself or failed- to direct himself on the evidence before him, as alleged by the Republic. 4 1 • But before I'proceed to do so; I fift it nacoosary to restate the. settle.d p'rinciplo: that an äppeflate court will not lightly interfere' with the findIngs of fac•t of a tri":l court on matters rwirig" on the crdibility of witnesses. This is as it should be, because. it is generally rocoaized that a trial court has had theadi.antage of seeing and hearing tc witnosses as they gave evidenc- on advantago which is not always available to on appellate court. The prinOiple, however, goes on to say that a first appellate court has 'thd duty of reviewing the evidence and come to' its owi conclusions "'thoroon; nd so, where it is clear that the trial court has plainly gonewrong in. it s evaluation of the evidence or in interpretlng it, which error led such court to arrive at findi1iLand conclusions. which are plainIr wrong or porvor'e, t• first upollato court ought not to hesitate 'to impu1 such findings thJ conclusions. In the instant case, the. learned trial.aaitrate made. no reference to the evidence of Pw.5, Pw.6 and Fw.70 With regard to the evidencc of Pw.1 and Pw.2, he ia-di3 no specific finding as- to whether or not he dibelieved it. In, other words, the trial mgistrato did not sufficiently, i? at all, evaluate the evidence, nor did he make specific findings a s to which evidence he accepted and which he reje'cted." . I now proceed to ovlu GO the evidence on rccrd. It is beyond dispute that the re'poncTeit collected 11,21 the fumiture in or.e lot. Not a single item was left at the factory to be collected at a later date. That was,on 'or about \.15th September, 1976. The ovienco of Pw.6 tht the roront said that one bed was to be off-loaded on the' way is suaeoted.' by the evidence of Pw,2 who said that on the instri).ctior',s, of the respondent, he offloaded a bed ond three chaii nd :ert thorn in the respondent's 'house at Noshi 1fcie he ar.d tbo rcsponden,t left for Kondoa with only 15 beds and 'five chairs. The evidence of Pw.2 on this point 'isaso borne out by the evidence of Pw.1 who said that-the respond,ent brouC,,ht only 15 beds and five cl- airs to Pw.1. The evidence of Pw.1 that he, paid, ,shs. 380/- to the respondent as transport charges is supported by that of Pw.2 who said that he was present when' that money was paid to, the, respondent byPw.1 at.Kondoa. . ' ' 5 The evidence of Pw 1 thet the respondent talk hii that 1. he remaining thrce ch"irs and one bud ore still V he factory and would be coUoctod t a later date is fujl,y corroborated by the evidence of N.2iho was prosontding the discussion. If, es claimed by, the respondent, the three ch''rs and the bed were at Kondoa at tJp tine ho wa first intorr'tod by Pw.5, why did the respondent hve to sk for three ci ys in which to bring them? On the quostionof credibility o witnesos, I note that the respondent had nothing to say against Pw.5 and 2w.60 In. fact hohad nothing tosay against Pw.1 except to say that.Pw.1 is said to have threatened to."fix" him.. Lgainst Pw.2, the respondent claimed at the trial that the witness was lyingbecause the respondeit had dismissed him as a house servant for some misconduct. This charge was refuted by Pw.2. That apart, the evidence of Pw.2 dds not Ctcincl alone on.any material point. It is fully supportecl by theevidenco of Pw.1, Pw6 and, to some extent, b that of Pw.5. During the hearing of this a3eal, the rospondcrt tried to persuade me to believe that Pw.1 is a person who enjoys putting other people in trouble. He never eadc that allegation at the trial. I can, myself, see nothing to sup:ort that al1egition and so I do not hesitate in rejecting it as a ridiuloU2 after thought. After carefully going tbrriugh the entire cvi ?c. cc on J. record , I find nothihg to suggest tht.eny of the proeociition witnesses was merely fng the respondent.. On the contrary, an clely of the vIew that their evidence was truthful end ought to have been accepted as such by te trial court hd it not non- directed and misdirected itself on the.oir1ence before it. From the foregoing, I am sat,sfid and find as a fact that the respondent kept one bed and three chairs at his house at Moshi; that he had no authority to do so;:. at he traisported only 15 beds and five chairs to Kondoa; that hen aked for the remaining furniture, he lied by saying that he had loft them at the factory; that he was fully paid his transport charges; end that it was only after the matter had been reported to polico that the respondent caused the articles to be taken to KonIoa from Moshi. - 6 - On the evidence on rocord I an l e ft:in the respondent's story at the trial could n.ot have created reasonable doubt in the. mind of any reasonable tribunl which had pberly' directed itself on th eidecc. - As p ointed out carlior f the taking was without the consent of.tho ovme. Besides, it is beyond•disute .tht the ospondent was an agent.His animus furandi is Iemo- nstrated by his false roprt to Pw.1 that ohad' eft the remaining chairs and..thobed the f.actorr On those facts, tliereforo, the offence ci' stealin' by agent, with which the respondent was chrge, hc1. been fully est.blishd. The aOquittal, therof, wascmoy much a.ninst the weight of the evidence. It canmt, therefore, he allowed to stand. In the result,the respondent's ocquittl e hrr by set aside, and substituted th.crcfor is a convictiQn for stealing by agpnt as chaged. B. D- -HIPT / l JGE. DODOMA S 1st February, 1979 Order As the respondent did not rppoar to recvthè judgment,J order that a warrant of arrest be issuodaairist the respondent. After his arrest, the respondent htll be brought before this Cour;t for sentencing. • •. B.D.• CHIPE A. •• JUDGES • • S. S • • .DODOMA S •S • 1st Pobrurry, 1979. H- - • 1/3/79 Coram: As before Warrant of arrest not returned Order:. Proceedings adjourned to a date to be fixed by the DietrictRegistrar. Fresh warrant thf arrest to be issued. B.D. Chipeta Judge 15/3/79 Coram: As before Mr. Alimwike, Senior State Attorney Accused present in person Record: Nil. Accused in Qitigation I ra the oldest in a family of 8. I have no parents. All my broihcre arid sisters do:an.d-on me. I have 6 children who are at school. I have no income.. I have no shamba. The vehicle I used to drive belonged, to my relative, but it was destroyed by fire. Even the bail money was lent to me by relatives. Allocutus:" I am aged about 39 years. Sentence: In assessing the sentence, I have taken into - consideration the fact that the accused is a first offender, and that he has heavy responsibilities to his family. BOSIdOS, for no fault on his part, he has boon living in freedom for the past two years. Had the trial court convicted him, as it ought to have done, and imposed on him a custodial sentence, the accused might most probably hvo finished servinp his sentence by flow. On thosgrounds, I sentence the accused to wo (2) years imprisonment, the whole of which is susupendeci for a period of six months during which period ho shall not commit any offence, of the Same or Imilar choractor B. . HIPTA JUDGE Order as to compensation: The accused shall, compensate the complainant the sum of shs. 780/. . BD. "CHIPE'JlA JUDGE 1 5/3/79