19980316 TZHC Dar es Salaam

IN THE HI?:~I -COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO•••••o••••• 44 OF 199, ( >, , EDWIN \;JIGIRA KARONGAMINI,u•t•uoo oo APPEtLANr . ' · · VERSUS t; · THE REPUBLIC. o •• • • , • • • t" ••.,•.•,•JV>•• RESPO~~ '· . J U D G M E N•·T -· ,... I - BUBESHJ.1-~•. The appellant was convi~ted with the often~ 0£ stealing by clearks and servants c/s 271\ind 26~··of the Penal Code and WM senten~ to fiveyears custodial term, He was also ordered to eompensa.te "5 former employer,ALAF Tshe 94~632t415/1S after exe,ution of the sentenee, Being aggrieved he has-:f'il~)IIUa-appeal agsinst ·"pQth 1onviction and sentence, Mr. Chemr:t.~ learned counsel has ,~ppeared en his :behalf and has filed four ground_s_. of ·appeal. These are 1w: .· •• I;:<, ·} > ' •, .•• • -tha~ the ''iearned trial magi:Strate el're~ ~: law ~ fnvif~ing the appellant _\•1ith the of~,7n~e 0£ theft' ~;h. was never prfYed, . ( 'ags:ii,ust him. . . .. . • (' _a•, /1 • • '• • • ";••. '.~ ~ ,' ,, .. :·.- t~~ the .. leeJ:"ned trial-magistrates finding that the appellant ·. -::,, . ·~al guiJ,;~·: of negligence· and conspiraor to steal and h16 tti ', . :;f rnal¢hg. t~El~-,<,f'inding .· .-· . ·, . the basis .t convi1t'.{dn was both a - . ~. r I ,..•. . .c • ·. fa.•ime~ ·and ~);?_€~al_ e:rro~ ,:,and was. \ffl.~Mttee! with the ' ' / f I, . evidence ori :reoord. ' . . ' . ~. J'. ...;•/ that i=he., learneq ' , ) . ,,. , '! '.ir-ial magistrate finding ~f_!a~t

that the ' . ., ~ · .appellant appointed a· .fake tran~orb fOJl'.IPany to ferry the •. ,.ons~nt' leaving ~he -~;ll kno~ JWP~ies was far fetehed and ~r.rong • ij -~-J.... ~ ' ... • that' the e.pp~llant ~ d diligently ·and il'! aGCOrdanee with the· 11,s~;,;_Uons of his supervisJ:r; with their prevai~.t- . \ .. >,e~sinese .pra;tite · ~t the ~ompanyf: .~a.d the learne_d trial :mag~~tr'ato '\i.~-y~~ed p:roperl.Jt the ev,i.den~e on r~rd he wo~d have and ~ t .·• :to have '!9und ·'!~t. ,there e:icist_ed n~ • negligent . . . .o~ the 1a:rt of t~e aW1~~ ., -· . :c __. .: , . ..'-. Mr'e Chamrihn submitted that the duties of the appelli;Uit included oheeking on the credentfa.'.Ls of v,oulcl '.)c- transporters who d~e to check whether they could be assigned to transp?rt th~ c6mpatiy 1s good to various upcountry depot_, That 1:c did exactly that 'and . inter1:ogated and checked the d0cuJne::.~j~s of t:10 person who presented ~!mself 1 That the· appellant was satisfied that the trarispor_tei-. ~a~ genuine and after being . instructed. by PW 1 Narendra Solanky, the appellant granted him the jo'l?.• What Mr. Cha?·::ihoi is saying is that the appellaht complied with the procedural requirement obtaining at the Company1 , Further counsel has submitted that as the goods.were taken out of the company• s warehdluse with the exi:irc,:_-:s author:1.'zation of the employer and all the requisite

document·s properly ~en_dered.\ then· th~. charge ef stealing levelled at the appeliants d9or eouid h~t stand_when the appellant did not claim o,.,mership or a conv@t them to his owri usel That there was no mens rea formed to deprive the appeilruits employer of the goods. ' On grol.Ulds two and four which were argued together, Mr• -Ghamr~ has submitted that the '\riil, magistratels find~ that the appellant was guilty of negligence and oonspiraoy was not supperted by evide!lfe •~fi_.-d• That on the contrary the appellant aeted with due diligence in accordance °with the instructions of his supervisor and within the prevailing business practive tbtaining at the company, Mr,~~~ has submitted that there is no evidence on reeord ~uggestive of any con.spirT between the.. appellant and one Christ~pher whonf~,eounsel has _desqribed as a ll(inim--'1.t That on evidence there .were no overt aets which eould be desei-ibed as hsving established the •rime of -,nsp~a•Y and neither was the intention to defraud proved, Further Mr 1 ~!\I complained ~ha~ the trial magistrate got earried away with speculations and confectures mu.eh to the disadvantage of the appellant• That the trial magis~rate relied on uneorrobo~ated and far fetched circumstantial evidenees . 1 Mrt ~ has submitted that had the trial magistrate ; evaluatHd the evidence »reperl,y, he would have come to the ,on•iusioa that ... S,t

was ~ommon for persons looking for. trallSPQr~lUl jo~ to tender phot~opies of their documentst that 1t was not the appellant wh• went to lool( for the transportei'ti:hat the appellant a mere e\lbordine,;0,., to ~ l was autherised by PW l to give the job to the tran!Sp01'ter who turned out ;o be faket that the appellant was not negligent as he . ~ proceess.e.d. all the. ~-enta.tion and final~ the transporter, was -3 .~ all.owed to loe.d tr:, 0 0-::-ds i:~ pr,J.:cd!'lce of evenyene. He has submitted that there was neither negli32:'.c3 nor conspiracy. to abf~di On ground 3 they subr,1i t -t:1.:1.t the prosecution had failed to prove that the companyAfricargo Investme~t never existed. That the trial magistrate did not propc..rl~r w:..:'..c~c,:2 t:-1.e evidence hence coming 188 e.rrenous conclusions. That on egidence on record the case was not proved beyond reasonable doubt as required in criminal cases. For the Republic,State Attorney Mkwizu resisted the appeal• She submitted on grounds along the following lines: that 8n egidence on r eoord the appella.-ri.t can be said to !1r'"J:, acted · ·. . and without claim frRu<lulently of right,taken 60 tons of ironsheet and 30 tons of metal pipes, the property of his employer Aluminium Africa Ltd, by permanently depriv-ing the saJnBeemployer. SM:. contended that according to PW 1 Mahendra Solanki,the appellant was charged with the task of

looking for transport to ferry consignment to upcountry depots. That it is the the appellant who "introducei transporter to PW land that ap:r.,ellant informeei PW 1 on 22/11/95 th~t the consg:nmel\~.fave been ferried to Mwanza, The learned State Counsel submitted the evidence of PW l was corro. borated by PW2 Anandumi Mbise, who tes·dfied that it was the appellant who had instructed_ him to W'!"ite an·invoice and gave him photocopies of the motor vehicles ,:-egistration card and driving licences~ That it is the appellant who was left ,to deal with t::e J?U.rported owner of the ,-;enpany called Afrieargot_ Mr:s. Mkwizu has submitted that the appellant was ' charged with checking the whereabouts of the Africargo Offices allll the authenticity of the documents.; that the appellant did not do so1 And that that omission amounted to gro:is negligence, Learned State Counsel submitted tmt this ease be decided on· the basis of circumstaneial evidence which a,oeoxading to coun:.;el onJ.::· pc-inted to the appellants guilty, That an agreement between the the a1?:xR·7 h:..-1:: .and the tranporter Africargo wlu.:;.1 can be inferred from the ohain of even s raise 8 the presumption of a common plan amounting to ag?_"eement.· That the appellants overtly intentional • • t o veri•f y tl1e sa1•d documen t s c..:i. om1ss1.on J • I- • t ut e t1A ..• cons~J. ,.J . ' • t e ..!l.l~ir.1u: .se req_uisi

..ol!.1Ai-.-..-- c;L=:fi-P-r .1.~.u• It is not in dispute that the appellant by then incharge of office instead of (M) Lu.eas Mkonya who had gorieon leave,' was eharged with the duty of looking for transporters fit for ferrying the company goods to up.ttountry depots. It is also ~~~-~ disputed that -.the appellant on 28/11/95 introduced to Fil 1 one Christ6,pher a representative of Afric~ Compal'lj" 1"¥l8 VJ"iJ:lg !m- the ~-;·::, to ferry the goods intended for Mwonza and .81:un;ranga Depots. It i.::: Z..:.::'."l T'.:)t in d.ispu te that the appeltant m9 4 l"A a.fter cheking the documents lrn·1.2d t,., l1im by t:1i:::; CJ::i·ir3topher; ns req~ired by the Company procec:ur :; 1 _confirt:wc: th- t th,e purported j! transporter wo.s fit :·cir,_ the job. urther it is 21::it is dispute thot the representntive of fricorgo l0<ec. :·:., :;oo,:.s nfter' the relevnnt order f orms ~ pnscec,' - ..!;=1o , · an d Lro3 h o. d b een -.,.,, p·1 a "-'-111n t us.~.ge o f ph o t ocopy . · do..,wuen ,..,,_ t s inform pf registration cnrd for vehicles and driving licence w.::1s o. common feature. As it turjed out the consignments which were loc.ded onto Af:r'icorgo vehicles nnd under the n.utbority of Ptv 4 never re::iched their intended destination. There is no dispute ns to what items·were loaded~ documentotionv.irifying the corrugated iron sheets and pipes of vorious dimensions were tendered in

cou~t cs ~P2, (collectively) E:iqi. P3 a.nd Exh. P4.. These documents were confi::.~:::ec1. by PWL~ 1 Rc,m::tdhani s/o To.rishi. So fa.r it is in evidence th~t no company procedure regnrdine ferrying of consignments from ALAF hend office to vorious destinations was flouted, It is note worthy to ob.serve th.7t, not onl:,r C:.id the appellant did what he ,was required to do, a. pc:rt from checking the company premises, but his colleagues PW 2 An;:mdumi s/0 Mbise, PW 4 RDill2.dhani s/o Tnrishi, H·l 6 Matilda Mwendi as well as PW 7 nnd PW 9 p.:-u·ticipatcd in their own wny to facilitate the intended ferrying of the consic;nr,i;;nt to upcountry deport of Mwanza and Shinynnga. It was not a one mnn 9 s job. After wlrn.t appe:~red to be a norm.'.11 routine ecersise, the goods hove not todate arrived at their intended destination. They hnve vonished into thin ~ir after leaving the Alaf Head Office. Now the question for determinntion is whether the prosecution hns succeded, with the degree required for criminru. cases, to prove the chnrge n.gsinst the appellant~ The trinl court eome to the conclusion thnt the prosectuion hos dischDrged thnt burden. In coming to thnt decision the trial court based its deeision on. (a) what the appellant did by introducing one Christipoher of Africargo, But then thi:i; was pnrt of his normo.l routine duties, th.st he tendered photocopy documents, but this'

ag2in was quite normo.l ' PW 2 evide.nce supports it. that he did hot che~k the physicnl existence of the Africnrgo Offioesf On Ws the appellDJlt has conceded thnt he did not do. Now the· immediate question, is whether such nn omission alone can sufficiently prove the charge of theft. At most th.:-1.t =--~t of omission Ql1lounted to gross negligence but the appeJ..].DJ:)t is not ohnrge with a.~,'.l.Sioning loss through negligence. He is charged with the offence of stenling. The learned. stab .::::~;·'.~c::.."::1c:· hets ~J:-,itt-e·c3. th.,· t the appellants act of omission to ~-:~:::.-.-~:-::rr\~; yel".ify the records of a transporter points to the appellants 0 guilt• \Ji.th ~e.S?:)(-':,t .~ if I w:i-:r :~ ·,'"~ the o_ue'~tion to ~,hich offence? The iss'.:~/i;_r->~t ·,_,,, ·_-;..._=-·''.:.m·. tho 1-:,::.•csecut±oti:has.~stablished the offence of . , h~~~~d ·re~stmabl.e ·. -~t,ealing,· : doubt" ,· ,'. I with steaiirtg~ and not cdhspirocy- to ··..T::.,·;. i.\,!-:"" .. , ,. view would tend to be in:t.:1:ndem wi_th the. evidence m1 ::.·ocord, I ' ~-~•1:,_., • · · ~:)':':.,: :__ ._· _.I .-:·!i,;:r:f: _._. The lo:xrnod Stiite· Attof~~ti~at3·,·-s9ush~ ··t0 rely on the case of ' , I •:.11~:~•:1'.::!•(f{t;; •~• • : R V ,GOI.,:v\i,DAS __,. KANJI ___ .. ,............, r>~•7.r• ;,~:•.~ i1':iGL\NIA ( 1949),:·16.~'.µ]!1.,CA,-,Uz}o .•,- • __...,_ _tt'.. ~~~ ' • ·:rove that M

.. • - • ther'e was, on 1~vi1,1ence- ·,:i:'·.c-ommop. :-si'.l:-an c,mounting. to agreement. That •. ' •.. (, ;: I • • ,, the appe.llants omit=fs4-:0~, to ::t·or,.di:.ct ,f·: ·:J:.~o::ior vo~:ific .tion of the transporters documentat1.o:ri '_and ·ti-w· se.id ttatJk,~;ofters ... subsequent theft of the company's goods, sufficientl? ::::,ico,~ tho pi~e·suinption of a common plan. That the said overt n.ct Jf o:niGsion to ve:rify the documents constitute the requisite aninus furondi. I have had time to study the authority cited. to me 'bY.,.~rs1 - ~ r .. I hesten to so.y thc'l t in th.:it ci tcd case the appellants had b&~_charged \'._C with the offence of: conq?irRcy to transport di2-.lllondso In the case at hand the appellant was not facing a conspiracy charge but plain theft, The two situotions ore not similDr. .\-' ..., !n rrry considered view, the appellants acts of commission and om:i.ssion exhibited in this case would tend to point a str0nc su2piJ.~ on the part of tho .-::lppellant th'.:lt the !\.fricorgo company wr>..s a non existent• But as ,::1i.s co'..~rt X-J;G timu rutd. ago.in :held, suspic:ior~ however strong, cannot sustain tho ter.;t of proving a case beyond reasonc1ble doubt., I must c-;:mf~ 1 thic ap-;_Jc.'."'..l l1:1s exorcised my mind quite But I 1::-we come to tho conclusion th!1t as thr-, appellMt was facing a wrong ch.-:'.rge when compnred to evidence on rcccrd, this Court has no alternative but to allow th8 appe.::11, 'l'he order of compens11tion is also set aside. The appellant is to be relea$·ed forthwith unless . otherwise leg2lly held • Ai. G. BUBESHI Delivered before JUDGE l Chamriko for the Appellant 16/3/98 ; Miss Ka.dehe for the · .lie:publi.c4