NDALO JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 41187 OF 2023 (Originating from Criminal Case No. 122 of 2022) in the Nyamagana District Court at Nyamagana) FLAVIAN S/O BISEKO NDALO………………………………………………………………APPELLANT V. DIRECTOR OF PUBLIC PROSECUTIONS………………………………………………RESPONDENT JUDGMENT 12th August & 12th September, 2024 KAMANA, J. This is the first appeal by Mr. Flavian Biseko Ndalo. He is aggrieved by the Nyamagana District Court decision which convicted him of stealing contrary to sections 258(1) and 265 of the Penal Code, Cap. 16 [RE. 2002]. Facts had it that between 17th November, 2020 and 7th January, 2021, in the Liberty area within Mwanza, Mr. Ndalo being an employee of Mikoani Traders Ltd in the capacity of salesman stole Tshs.43,940,700/-, the property of his employer which came into his possession by virtue of his employment. In proving the charge against the appellant, the prosecution fielded Mr. Omary Feisal as PW1. The witness who happened to be the Manager at Mikoani Traders Ltd testified that between 17th November, 1 2020 and 7th January, 2021, the appellant received wheat flour from the company’s godown for sale worthy of Tshs.497,123,000/-. To substantiate his evidence, PW1 tendered delivery notes which were admitted as Exh.PE1. According to PW1, during the said period, the applicant made a total sale of Tshs. 504,289,500/-. To substantiate his evidence, the witness tendered daily stock possession reports, cash bills and daily summary sales reports which were collectively admitted as Exh.PE2. PW2 testified that upon reconciliation of the total sales and the goods received by the appellant, it came to his knowledge that the goods with value of Tshs. 43,940,700/- were missing. In substantiating his evidence, PW1 tendered handing over reports and auditing report which were admitted as Exh. PE3 and Exh. PE4 respectively. When cross-examined by Mr. Revocatus, learned Counsel, PW1 testified that the stealing of goods took place between 17th November, 2020 and 7th January, 2021. He amplified that Tshs. 43,970,700/- was not stolen in cash but the goods that went missing had such value. Mr. Johnson Mwijage testified as PW2. In his evidence, he testified that he conducted an audit and found that there was a stock deficit of the goods valued at Tshs. 43,940,700/-. He tendered the External Report 2 Audit which was admitted as Exh. PE5. When cross-examined by Mr. Revocatus, the witness testified that his report was about a stock deficit. In re-examination, the witness stated that during his audit, he found the deficit in terms of the goods that were delivered to the appellant. PW3 was Mr. Augustine Kahampa Mabula, the human resource officer. He evidenced that the appellant was employed by Mikoani Traders Ltd. He testified that the appellant served in various capacities before being a sales officer. He tendered an employment contract between Mikoani Traders Ltd and the appellant which was admitted as Exh.PE6. Mr. Nabil Ahmed, PW4, a salesman at Mikoani Traders Ltd, testified that he participated in stock verification on 7th January, 2021. He added that after the verification, it was found that there were goods that were missing in the appellant’s custody. PW5 was Anwar Salum Mselem, a sales coordinator at Mikoani Traders Ltd. He evidenced that the sum stated in the charge sheet is the value of the goods that went missing. He amplified that the appellant was selling wheat and stole wheat. Detective Sergeant Aziz testified as PW6. In his evidence, he testified that the appellant stole goods. In cross-examination, the 3 witness stated that he did not know the amount of wheat that was stolen by the applicant. He further testified that the stolen goods had the value of Tshs. 43,970,000/-. Based on the summarized evidence, the trial Court found the appellant with a case to answer. In his defence, the appellant admitted to having been an employee of Mikoani Traders Ltd. However, he denied having a hand in the alleged offence. In his defence, he tendered bank slips that were admitted as Exh.DE1 and DE2. The witness further tendered the delivery note and cash balance sheet which were admitted as Exh.DE3 and DE4 respectively. After considering the evidence, the trial Court convicted the appellant and sentenced him to pay a fine of Tshs.500,000/-. It further ordered the appellant to refund the complainant Tshs. 43,970,000/-. The conviction and sentence did not please the appellant, hence this appeal which is premised on seven grounds as follows: 1. That the trial court erred in law and fact to convict the appellant while there was no variance between the charge sheet and evidence which was prejudicial to the appellant. 4 2. That the trial court erred in law and fact to convict the appellant based on the evidence of the prosecution’s witnesses whose evidence was contradictory and did not prove the offence. 3. That the trial court erred in law and fact for according weight to the prosecution’s witnesses' testimonies and exhibits tendered to convict the appellant. 4. That the trial court abdicated its duty of subjecting the entire evidence to objective scrutiny, evaluation and analysis. 5. That the trial court erred in law and fact to convict and sentence the appellant while the evidence adduced by the prosecution did not prove the offence to the required standard. 6. The trial court erred in law and fact for sentencing the appellant to pay a fine of Tshs.500,000/- and to refund Tshs. 43,900,700/- to Mikoani Traders Ltd while the case was not proved. 7. That the trial court erred in law and fact by pronouncing a judgment that had no legal backup and reasoning. When the appeal was set for a hearing, Mr. Christopher Olembile, learned State Attorney, appeared for the respondent. The appellant had the services of Mr. Sijaona Revocatus, learned Counsel. 5 Arguing for the first ground of appeal, Mr. Revocatus submitted that the trial Court erred in convicting the appellant while there was a variance between the charge sheet and the evidence. He argued that while the appellant was accused of stealing Tshs. 43,940,700/- which was the property of his employer Mikoani Traders Ltd, the evidence adduced by the prosecution witnesses did not establish the stealing of the said money. He amplified that the evidence adduced relates to the stealing of goods and no witness testified that the appellant stole the money and how the money was stolen as per the charge sheet. He averred that since the charge sheet is a cornerstone of any criminal trial, the prosecution must prove what is in the charge sheet specifically what is stated in the particulars of the offence. To cement his stance, Mr. Revocatus drew the attention of this Court to the case of Francis Fabian @Emmanuel v. Republic, Criminal Appeal No. 261 of 2021- CAT (Unreported). On the second ground, Mr. Revocatus argued that the trial Court erred in convicting the appellant based on the contradictory evidence of the prosecution’s witnesses. He amplified that while PW1 stated that he found a stealing of Tshs. 47,000,000/-, the same witness testified that 6 there was a stealing of goods. He further argued that while PW6 stated that the one who reported the matter to the police was PW1, PW4 testified that he was the one who reported the matter to the police. Concerning the third and the fifth grounds, Mr. Revocatus reiterated his submission in the first ground. On the fourth ground, the learned Counsel contended that the trial court did not objectively analyze the evidence adduced by the prosecution and the defence. He argued that had the trial court analyzed the evidence, it would have not established a prima facie case against the appellant. He amplified that according to the appellant’s evidence, he was not the one who was keeping the key to the shop as the evidence showed how PW1 was coming to the shop every morning and evening to inspect the sold and the remaining goods, close the accounts and leave with the key. As regards the sixth ground, Mr. Revocatus contended that the trial court misdirected itself by convicting the appellant while the case was not proved to the required standard. He added that by ordering the appellant to refund TZS 43,940,700/-, the trial court erred as the sum was not proved to have been stolen by the appellant. 7 Concerning the seventh ground, Mr. Revocatus contended that the judgment had no legal reasoning. He amplified that the trial court’s judgment did not consider the appellant’s evidence and lacked legal reasoning. Based on the reasons alluded to, Mr. Revocatus beseeched this Court to overturn the decision of the trial court. Responding to the first ground, Mr. Olembile contended that there was no variance between the charge sheet and the evidence. He argued that the charge sheet was indeed about the stealing of Tshs. 43,940,700/-. According to him, the said charge sheet was proved by what was testified by PW1 and PW2. He argued further that the appellant was the seller of the goods he received from the godown. That being the case, the learned State Attorney contended that since the goods with value of Tshs. 43,940,700/- went missing, it is obvious that the same were sold and the appellant swindled the said amount. He added that according to Exh. PE2, the appellant sold the goods and recorded the money accrued from the selling of goods. On the second ground, Mr. Olembile contended that there was no contradiction in the evidence adduced by PW1, PW2, PW3, PW4, PW5 8 and PW6. He argued that PW1 was the complainant. He added that there was no contradiction as to what was stolen and the amount that was stolen. As regards the third ground, Mr. Olembile contented that in proving the offence, the prosecution tendered Exh.PE2. Further, he argued that the evidence adduced by the prosecution’s witnesses proved the offence. On the fourth ground, the learned State Attorney contended that the appellant’s evidence was considered and evaluated and that is why the trial court accorded no weight to his evidence. He amplified that on pages 8 and 9 of the judgment, the trial Court considered the appellant’s evidence and found that it was tainted with untruths. Concerning the fifth ground, Mr. Olembile submitted that the offence was proved beyond a reasonable doubt. He amplified that it was proved through PW3 who was the Human Resource Officer that the appellant was an employee of the Mikoani Traders Ltd. He added that PW1 testified how the appellant was receiving goods from the company and sold them and how he recorded the sales. He augmented further that PW1 evidenced that the appellant stole the money accrued from the 9 sale. He summed up his argument by contending that Exhibits 1 to 4 prove the offence. On the sixth ground, the learned State Attorney reiterated his submission on the fifth ground. As regards the seventh ground, Mr. Olembile submitted that the trial court’s judgment conformed to the standards set for judgment. He added that the judgment has reasons for the decision reached by the trial court. Fortified by those reasons, Mr. Olembile urged this Court to dismiss the appeal. I have gone through the grounds of appeal and I am of the considered view that what this Court is invited to determine is whether the prosecution proved its case beyond a reasonable doubt. Further, I am mindful that this being the first appellate Court, I am bound to analyze and evaluate the evidence adduced before coming to my conclusion. In this regard, I am inspired by the position of the Court of Appeal in the case of The Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017-CAT (Unreported) where it was stated: 10 ‘On our part, we are in agreement with both learned advocates that it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision.’ Likewise, I am alive of the principle that every witness is entitled to credence and to be believed by the trial court unless there are cogent reasons to the contrary. See: Goodluck Kyando v. Republic [2006] T.L.R. 363. Also, I am aware that only the trial court is placed in a better position to assess the credibility of the witness as such witness appeared before it. See: Ali Abdallah Rajab v. Saada Abdallah Rajabu [1994] T.L.R. 132. Equipped with those cardinal principles, I would like to state that a charge sheet lays the foundation for any criminal trial. In essence, the charge sheet is expected to contain all the essential allegations to be proved by the prosecution to sustain a guilty verdict. In other words, the contents of the charge sheet must reflect the ingredients of the offence with which an accused is charged. That being the case, the charge sheet serves the purpose of guiding the prosecution during the trial as far as proving the ingredients of the offence are concerned. Further, it ensures a fair trial as the accused is placed in a better position to understand the nature of the 11 offence he is accused of. This enables the accused to prepare his defence. This was clearly stated in the old case of Rex v. Alexander and Others 1936 AD 445 where it was stated: ‘The purpose of a charge sheet is to inform the accused in clear and unmistakable language what the charge is or what the charges are which he has to meet. It must not be framed in such a way that an accused person has to guess or puzzle out by piercing sections of the indictment or portions of sections to gather what the real charge is which the crown intends to lay against him.’ In the case that led to this appeal, the charge sheet reads: ‘CHARGE STATEMENT OF THE OFFENCE: STEALING Contrary to Section 258(1) and 265 of the Penal Code, Cap. 16 [RE.2002] PARTICULARS OF OFFENCE: FLAVIAN S/O BISEKO NDALO between 17th day of November, 2020 and 1st day of January, 2021 at Mikoani Traders Limited, Liberty area within Nyamagana District in the City and Region of Mwanza, being an employee of Mikoani Traders Limited as salesman did steal Tshs.43,940,700/= (Tshs. Forty Three Million Nine Hundred and Forty Thousand s and Seven Hundred) the property of his employer Mikoani Traders Limited which came into his possession by virtue of his employment….’ 12 From the particulars of the offence, the prosecution was under the duty to prove that the appellant was an employee of Mikoani Traders Limited in the capacity of the salesman; and that on the specified dates and place, the appellant serving in the capacity of the salesman of Mikoani Traders Limited stole the said amount which came into his possession as an employee of the latter. From the records, it is not in dispute that the appellant was an employee of Mikoani Traders Ltd as a salesman. This was evidenced by the prosecution’s witnesses including PW3 who tendered the employment agreement which was admitted as Exh.PE6. The appellant did not dispute that fact. As to what was stolen by the appellant, as I have alluded to hereinabove, the five witnesses fielded by the prosecution testified that the appellant stole goods with the value of Tshs. 43,940,700/-. This, in my opinion, differs from what is stated in the charge sheet. As I have stated earlier, the charge sheet is about stealing Tshs.43,940,700/- and not goods with a value of Tshs.43,940,700/-. Mr. Olembile tried to convince me that what was stolen was Tshs. 43,940,700/- and that the prosecution’s witnesses testified to that effect. With due respect to him, that is not true. None of the witnesses testified 13 that the appellant stole Tshs. 43,940,700/-. Both of them testified that there were missing goods valued at Tshs. 43,940,700/-. The learned State Attorney contended that Exh.PE2 proves that Tshs. 43,940,700/- was stolen by the appellant. I have gone through the exhibit which contains daily stock possession reports, cash bills and daily summary sales reports and I have found nothing suggesting that the appellant stole the said amount. Even if the exhibit would show that the appellant stole the amount, still its weight would be questionable as none of the witnesses including PW1 who tendered it testified that what was stolen was money. Trite law is that when there is a variance between the charge sheet and the evidence, the prosecution is to resort to amending the charge sheet under section 234 of the Criminal Procedure Act, Cap. 20 [RE.2019]. This position was well stated by the Court of Appeal in the case of Leonard Raphael and Another v. Republic, Criminal Appeal No. 4 of 1992-CAT (Unreported) where it was stated: ‘Prosecutors and those who preside over criminal trials are reminded that when, as in this case, in the cause of trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions of section 234 of the CPA 14 1985 and have the charge amended in order to bring it in line with the evidence.’ If the prosecution does not amend the charge sheet to align it with the evidence it has, the offence stands unproved and the accused is to be set free. This was stated in the case of Thabit Bakari v. Republic, Criminal Appeal No. 73 of 2019-CAT (Unreported). In the said matter, the learned State Attorney was bold and conceded to the fact that there was a variance between the charge sheet and the evidence. The Court of Appeal had this to state: ‘As rightly stated by the learned Senior State Attorney, the variance in the particulars of the offence on the item alleged to be stolen and there being no amendment to the charge, means that the charge against the appellant was not proved.’ Further, in the cited case of Francis Fabian @Emmanuel v. Republic (Supra), the Court of Appeal had this to state: ‘If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur.’ Though the variance in the cited case was about the date and month in which the offence was committed, the reasoning is useful in 15 the circumstances of this case where there is a variance between the charge sheet and evidence so far as the stolen object is concerned. For the foregoing reasons, I am of the considered view that the prosecution failed to prove its case to the hilt. The appeal is allowed. The conviction and sentence are hereby respectively quashed and set aside. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 12th day of September, 2024. KS KAMANA JUDGE 16