19881006 TZHC Mtwara

_. --Wlla41S.!.W ~ ; : ; -.~; \' . -~..it'Ut•~._~ ~ . ~ j)OJ-e s- _S?Jl_acI:::fff- /: IN TED HIGH COIDT OF TANZANIA ~~ .AJ?PELLATE JURISDICTI01if HI01I COlJlIT CltDiilfAL li.PPE.AL no.94 OF 1937 Original C:rir.,1inal Case :Ho.25 of 1985 of the District Cot1rt of Newala District at J:fowala Befores DoMeKo Luhaga, Esq., District Magistrate F1'J{L1I T.'.iPOlIDA o • • • • • • • • • •·• • • • • • • • 1':.P~·ELL.ttNT ( O:rigincl Accused) versus 'IlIB 'GNITDID ITEPUBLIC • •••••••••• • RESPONDENT (Original Prosecutor) J·u D GM ENT Rubama, J. Fr,kihi Mponda was charged with a.nd ·convicted of stealing by person in public service contrm'~l to sections 270 and 265 of the Penal Code. He was sentenced to five years imprisonment. Fa.lei.hi Mponda was employed by the Newala District Council as a ta:x: coll0ctor and was st.1tioned at Lukokoda village Newala Dist:..'ict. He was in his capacity as a tax collector also supposed to collect UPE contributions and for this exercise was issued with appropriate receipt books. .According to the evirlence of JJ.beid Hassan Namadi PW.l UeuaJ.a District Council head revenue collector as well as Internal Audi tor, Fakihi Mponda was supposed to remit at the office of J.beid Hassan Na.ma.di J?W.l aJ.l :revenuos collected by him between 26th and 29th of each month. Fakihi Mponda had not remitted June, 1985 collections. On l~th July, 1985 Fakihi Mpondu went to :repo:;.,t to him, AbGid Hassan Namadi thQ,t he Fak:i.hl.-Mpond.a had b~en robbed at his home shs.53,180/= and some.revenue collecting books: two of those were for tax. collection and two UPE collections. J..bcid IIassn.:n Namadi PW .1 who did not believe the story involved the police in the case. Fakihi Mpond.a was eventually aJ.'Testcd and cha.rgod with stealing by person in public service. In his defence Falci.hi Mponda :repeated the story of having been . . rob bod the collections he wo,s to take to Ncwala ·wi. th three major variations from the stoi•;;.r Lbeid Hassan Namadi PvT .1 maintained Fa.kihi M:ponda had given him: firstly that he had not been robbed of the money a.t his home but that he wns robbed by two youths at . CJIS.ta.nda. -... between Mahumbika and Kiduni when he was on his way on foot to Newal~ -t4-e·.~~~ , > .... ... - 2 - ½ secondly, the amount robbed. was not Shs.,53,180/:::, but Shs.,l,400/== and four block books ancl. tl:.irdly that he had reported the robbery to the village chairman Maliumbj_ka as well as the village chairman Kid.uni., AccordinG to evidence of Abe id Hassan Namadi, Fakil1.i Mponda had made no report of the robbe~J to anybody before his report to him .Fw..,l. The trial magistrate found. the prosecution credible and convicted Fakihi Mponda of the offence .he stood char.:;ea_ wi tho Fakihi Mponda has appea~ed to this court challencin3 the decision of the trial court., I too find the :prosecution case agaj_nst Fakihi Mponda extremely strong. I accept the evidence of Abeid Ilassan Namadi .Piv.,l, that of Ilamisi Saltan . Pii'.2 1 Nuru.d.in Mohamed P.'1'.,3, Hassan Juma Njehema Pvr.4 and C 7344 D/c. Mathew w.5. I soe no reason why they should give lies against him., Ex:cep~ for N.l, the rest of the witnesses are involved in different jobs., PW.l is Fakihi Mpond.a 1a senior., I find the wit~esses with no axe to grindo From this evidence the story by Fakihi Mponda· is fuoonsistent and f'u.11 of lies. To Abeid II.assan Namadi he Fakihi Mponda had told that he bad been robbed at his house while to C 7344 D/C Mathew RiT.5, he had stated that he had ii' been robbed on the way to Newala. The amounts involved in these tw9 stories ·,•·. aiso aiffer as do the nuµiber of revenuo oolleoti'ng books. . . •. "i' •. ·. His t~stimony in court is .COt:).tr~dicted in several major area.a.. His story, . . . . . that he. had made a report to j;wo village chairmen· a position he- set to ostabltsh by callinc the two.chairmen, received ~jor blow f:i;-om a one of these.witnessess Mohamod--r{faume DW.2~ 'I'b.is' ;~'rs;~ ~a~ ·a_ who· llra.noh Cliairman at.Lukokoda villa0e r~jected Fakihi Mponda 1s ~tory that a rep~:1.'t had been mad~ to him rega.rdin6 the robbery.by th~ said Fakihi Mpona:a;· or anybody elseo Mohamed Mfaume did testify th~t- he didn't know Faki.hi Mponda. Following this rebuke, Fakihi Mponda bad decided to drop calling his second wi tnesso Why .the gi t.t~s? Fakihi Mponda 1 s-_ story of exact location where he had be.en robbed is also ·contradicted by the ev.i..d.ence . . .. of ·Pif~5 c.7344 'n/c. Mathew. _._. PW.5 story is that Fakihi Mponda bad told him that he had been robbed betwee~ Lidumbe_ and_ KidtU'l_i villa.gas while .the .. appellant talked of- Mahurnbika and Kiduni after he had decided to:gettison the story he had informed Abeid Hassan Namad.i. PW.1 about the robbery having taken place at his (Fa.kihi Mponda's) home. Considering'fthe evidence of Abeid Hassan Namaa.i J:W.l that Fa.kihi Mponda had told ·him that he had been robbed at his home, then one is forced to ask as to what b.ad happened to the safe box which Fakih.i Mponda had been provided with for keeping revenue collections as testified to by Hassan Juma Njehema PW.4- According to PW.4, Fakihi Mponda kept that safe at his home. We have no evidence of ::, _it having been broken as indeed .... . 3 we have no evic.o;.100 of hiE1 llo,ving IT1c'l.Cl0 211y rcpo:L't to 8.11Y authori ts- at Lukokoda villou:i o Co11sid0rir1G tho accused so cond story thc.t tho :robbc:ti:,; had 7:xion corm:,1i ttocl 011 tho rmy 9 one is fo::_:,cocl to 0,sk why tho inconsistency on the exact spot ":hero tho 1~oblJcry i::: aJ.log0d to lmvc boon cor.u:ii ttod Md further why there ha.cl boon no :rcpo:-ct mnd.c to 2.ny of tho villa,.,ge autho1°itios within the vicini t3~. For roa,sons given 0,lJo-,ro I find tho appo2,l is without mori to It is accordingly dismissed. ~~~ Ycilya Rubama Judge 6.10.88