19790720 TZHC Arusha2

• . 'N. 4iaA,t /S_• IN THE HIGH COURT OF tANZ.ANA AA APPELLATE JURIDTCTION . HIGHtCOURT CRIMINAL APPLJL NULR 265 OIR 1970F (irigi'nati Criminal Case No. 7 .'f 1978 of th Dist- rict .Court of MoshiAt Mshi) * .. . BEFORE M0 U0J. Minja Esq0, - Senior i4ag'itrate.' 'IDELIS JOHN.. NGOWI aa a aoo Co. J,PPELLJT (Original !ccu&ed)- • vrsus •. . .: .. TH REPUBLIC •. a.. •..

000. R8POIWEtT (igina1 pi'ésecutor) CHARGE: 1st count - Stealing by persons employed in pu1ic servie&47s 70nd'26:of the'Pexia1&e, Cap 0 1..Vv1.X of the Laws. nd 4A; - - • •; ;:: ....... •:: •\..••.•

JUDGEMENT I (:: :,r?: ... .... -L .•- •. . ZSIUMO, J• - I On 8thJanuarf 197 D 11o'ed the pea1 Jjhn. Ngowi, quashed his convi6tIn ana o'dered the resumption of his liberty after setting- 1g 1aeh-e sentence hithertr' imposed on him by the Cótirt b&Low. I howve', réseryd i reasons for sà !. ,Ordering aid .1 romis& to gi've them in a judetheXt' pi'Ohiiseto deliver in duet couxs ... to—day I feel disposed to outline th& said iré.oiai'of thisjiidemeiit. , - T :.esja B 61srd Mosh!* -Distr ic'4,G ot J.;JMirija. 3rocuo'r' who were'jdin.tly and seve1chaed. -•.•". •: • . J. •n'the 1st cunt FIdelis Johri:-1,7,g and . Calist 1Anthony were jointly charged itntealngc' ypes employed in the pib-lic service contry to sections 270- and 2'5 the Penal C C it Iiaviag px'aJLeed. th't ,n110th Janusry ID L7 u a c mmb. -- •• • . • . . /2 Est.tes within c • - . . . . 4 ijy T_q ; L $ I f r ( J& t, • roS :)E • i()•1 xvewo I : 1,1 :3xf •O o:Laio. '-. I bB .Q1R 5:xi( I c ri9 - . .. r-_L .(_• f1JB I flo1fj hIL. n:J ±i2s.Iid. b)•oab Iee i Es Wt yrth• L IE t he i 1A1p J 4ç Regioff b% er and Mnager'c pe 8bfr aöe Hmè'd ' )-)JJfl•t . ,. bags of maize valuec at shs.7,9 C' the ppoperty I the id 1QhotjbO arid ~ Cls -: . em ome ' 2nc9unt Fds 1 he wit 1ing by eDq1 c.ntrt'atiyT) az4 4 1 na exileged,that b etyvreen" J :JSr.i - ç Janue'y', ).978 at LlombQ and i ma thetistri.t of Klliman3aro Regio..n 43 • pèrsan

enisredby.h àid Chombo an ct Kilimanj'aro EstMeassr el I owj did ;. t'ehs.2o 5 /= an eru A X.1": withwr' tap valdat shs .35/=, 11v ue , t s:JVJ shs,.37/= the propert-Of the Etat whch came FtlxLto'& h u 14 FrOm rh ev i 1 c C thc cc bef.re the triol curt i t material time iaeJ,is hn Salisti AnthorwaaQfiVe K1imanjar• Estates.l t one 4me thc s. the'Natipnal M&lling Gørporc1on but lo grade of - same .was..reac •e ' csid ti*ia1 tth1ir .• . Gvrp'rtion,branc • ie aid maize repore returned to the Estates. At a later stage some 9bag s o± malz4 wre- - - load6d.intp a .0 tions of Pi eis to be sent 1 to. National Milling Cørp'atLOxt -then apparently hC r h revi.oüsreje4t'cn an intercepted therecalled drive and the turnboy ana told\ them 5 r fe t keep the sid maiz e somew er i Majeng 5 - •cu&to.dy til.. no \r1uiier 4 nstruotions. Ente . . 0 of Pieji& there was 0 bags of maize. Mke • - ... - • • he s.id.'1J had ouglrt t and poaied an invoic e .r S Atthe - • -: °". - 5 e • . • _ • 5 4* -3- At the end of the trial in his judgement the learned trial Senior Magitrate found Fidelis not .uilty •n the 2nd count and he acquitted him in that osunt büt.he found him guilty f theft 01 the t4 bags of maize and found Oalist Anthony jointly guilty with Pidalis 'f theft rf. 96 bga of maize Upon Iho esid eovition in ,ltion o the 1st count: of th two accused persons ' eh'ten,e& 1 to t*yéar imprisonment and the

exhibits we Erdered• t be handed back to the. Estates. Aggrieved by that decision Ficielis Jc1.n Ngowi appealed to this Court against both conviction and sentene but his co-c•nvict did not appeat for rea.kà.: • . .'...-.... ' '-• :- est known.. to himself. . •. . The appeal was admitted for scrutiny of adequacr o.f è%rience ........ ' ... .. . - -. The appellant dic. not - appear in Cc Urt ..:tb.e .... time of hearing the appeal and therefore the 6urt . gave the learned State Attrney My.. Mwa-le, the ri.ht to be heard on beha]f of the. respondent (Republ1&) . In his submisiona the learned State Attorney .mong other things stated that it was not disputed that,90 bags of maize wérC taken from the.Estate and were supposed to be delivered to NationalM11lii. •rporation.. He ais stated however, that.a.few day prior, to. that the National Milling, Crporetion ha -. rejected the maize sld to them bythe Estate on the gy'und that it \'v&S of lovier grade 6nd it would apear the.ha-gs. were icter found in a prite house -in Majeg* area In 1VIshi, .,. 1 :•'. The;only evidene, as rightly pointed out by the learned State Attorney implicating_tl4q appe3.lant was that ,f P O WØ3 and POWO?, the dxiver and-turnby .. ese4ively if the said Estate an. he cnsiders -that evidence to be of.accompiics assextedly because the tw were the ones whowee süoad -to deliver the maize té Nation1 Milling

C.rporat.iorx and yet diver ted it to sme *ther destination. t. Maengo. A13o P0W03 flever,signed the delivery ot'C f thee E.st. . The learned trisi SeniOr Magitrate rccctad the idea that O.W.3 and POWO? were •accomplices witll respect - . . . ........ ... - 4— I With r-espect this Court thinks and thus holdB as dd the learned State Attorney that those two witnêsses*re accomplices and therdisa settl'.u1e..1 of legal prEctice that evidence of sn accomplice 'equ1res c.rroborEtion bcfoe a Court of law can act on it :t found a conviôtion on is.tso•another. •• aliaary rule of practice that where the eideñce of a witness'equires corroboration the eidee of another - ..: witness which itself requires c6rrob6'rEtiox cannt csnstitute c4rroboretlon. Thus in thc instst case the eviderxce.f P.W.3cannot be takers as being Arroborative toat of PW.7 or vice versa for, the evidence of each of them, having been hcld to eaccomlie'eguires c.rr.b•rction of other and independent cvic[ence. In concluding his subm1sions the learned State Attorney had tbtis to say: C "It is for this reason coupled with the fact that the learned trial Magistdto indulged in speculation that I would not su.pp.9rt the ccnviction - As to the speculation this Court aoutd no mske any ctmmnent in vieW of the fact thst. the appeal poi.t1d he determined without gctting. into any other aspect of the •ae after due anal,sis of thç

ovicLene of thecs as a whole, 7h1ch was the reasOn for adm±tting flOifl appeal. I hoe by now the reascns for my 'rdcr of 8/1/7 are clear to anybody .:doncerned and unc!rnned with this matter. • -• Ielivdred in open Courk at Arusha this 20th day 4r Ju],y 19790 E 0 A. MWESIUMO JUDGE: Per Aipellent: Alsent and uxireprcaentcd Fir Respndcnt (epubl.c) Mr, Ikang Sttc Attorney .PTS. •- • • •• .• • •..•• • ••i•