19830604 TZHC Mbeya

IN THE HIGH COURT OF. TANZANIA ATMBEYA APPELLATE JURISDICTION CRDINAL APPEAL NO.40 OF 1980 (Original Criminal Case No.34 of 1979 of the District.Court of Iringa District at Iringa. Before: S..N. .Shariany, Senior Magistrate) FRANCIS KITOSI , , • • . . . . ... . , .APPELLAND Off (0riinal Accused) versus. . 4 THEREPUBLIC ..................... •. . . . . . . . . .. ,RESPONDENT Char: Two counts: Stealing c/s 265 . .. of the Pnal oc1g, JUDGMENT NfROSO. J. The appellant together with Linus Mdeiiu and, Mohamed Mbaruku were charged jointly and togetheroi two counts of theft. On the first count they were chrged with stealing shillings 23,300/50 belonging to GAPEX, Iringa and on the second count they Were charged with stealing shillings 28,757/70 be1ongin to the Nation1 Milling Corporation (N'.M.Q.),, Iringa The appefla was a Village Manager, 4demu z Village Accpuntant and Mba?uku - the Village Treasurer, all of Ndelela U amaa Village, Iringa. Both Mdemu and Mbaruku were acqu:tted by the trial court while the appelant was cpmvooted on both counts and sentenced to concurrent sentences of fivlp years imprisonment on both counts. Hb was also ordered to c.3mpensa±e the two state corporations the amounts he was said to have stolen. He has now appealed against t1e convictions, sentences and thd compensation order. Evidence was given beore the trial court that both (APEX and N.M.C., during the crops' season of 1978 appointed the Ndolela Ujamaa Village as a purchasing agent .12 - 2 - for crops produced in the village. GAPEX paid to the village on various dates through either the appellant and others or Mbaruku and others a total of shillings 110,000/ for purbhasing proue. The N.M.C. in its turn paid to the village a total of shillings 280,000/= in several instaJients. The money, with the exception of shs.30,000/=, was received by the appellant together with others. GAPEX later cJ.aimd that the value of produce purchased by the v liage and delivered to it was shillings 90,252/50 only. There was some evidence that 506 empty sacks valued at 4048/ sent to the village were ,unaocountod for t henoe - ;he total of shillings 23,300/, the subject matter of tLe first count, which GAPEX claimed was stolen. The Nationa) Milling Orporain claimed that the village bought and delivered produce worth shillings 251,242.30 only and therefore, that shil1i 877tTO out of the total sh.280,OOO/ iv9n to the village 1 was accourite r, which forme tI ubjt mater Ot the second count. • It was undisputed that the appellant md Mdemut wera the two people rnainly responsible for paying ai mere who brought in produce. There was 9 further, uicontrovected evidence that.sometimes the..apellant left varios sums of money with Mdemu with whici to buy..produe. The safe keys were usually kept by both.b appellart and Mdernu, eaci keeping one of the two tya, but somotiios according to the Village Chairman .- PW .- Pili lialfani, Mdernu kept both keys to the safe. If E:fly money for . purchaing produce was stolen, lost or in any c.ther way unaccounted for, the appellant and Mdernu were na;urally the first people to be held responsib1e. That, •of 3 curse, would.rot include. 0s.30,000/= from N.M,C. which was received by Mbaruku and others. There was no.clear evidoncif it was subsequently handed over t.c e'i.ther the a,)pellant oMdomu or whether it bought produ( -.e which was d?livered to the N.M.G. In.fact, if it we..e assumed that that sum of money was not handed over;o the a)pollant, it might more than cover the amount of siilling 28,757/70 belonging to the N0M.0 of which tho äpieilant was eventually cnvioted -3- of stealing. Be that as.it may, the.question for consideration is whether the appellant was properly convicted by the trial court. The charges appeared to have been based on audit reports which a police investigating officer PW1 - Detective Corporal Ally Juma produced to the trial .court as exhibits. ..Anauditor from GAPEX - PW.lO H. Shirima gave evidence to the trial court hut .was not referred to the audit report which D/Cpl. Juma had earlier tendered as an exhibit. The contents of the Gapex audit report were 9 therefore, hearsay evidence as there is no certainty that it was made by PW.lO - Shirirna. H 0wever, Shirima told the trial court how he arrived at figure of shs.23,300/= of GAPEX money of which the appellant was corwioted of stealing. Out of that amount there is h,4,O48/chi.h was the value of the unaccounted for sacke delivered to the village. But there was clear evidenoe that the appellant had nothing to do with the receipt and, custody of thuse sacks. That was the responsibility of PW6 - Norbert Dunda who was not prosecuted.. As for the balance of shs.19,252/50, if it was in fact stolen, :aeither the prosecution nor the jüdrniet of the trial - ciurt were able to establlsh that it was t1.e appellant nd rIótMdemu (wh was acquitted) or any oneelse who so1e it. - As for the shs.28,757/70 1, N.M.C. m3ney1- hree things could be said about it.- Firstly, the Oonvictionof the appellant in respeOt f that money waS based eiitirely on an audit report. No auitor from N.M. came I o 'the ti'ial cout to say how that aimunt *ascompited. The auctit report whichwas producedby an investigationg officrasalrady mentioned above, could not f3und aconvictionbeause the contents therein were hearsay eviaeno&. Secondly, like in the case,Df the money in respect of the first count, .considering.that both the appellantand. Wdemu Ie1d safe 14ys, it wap impprtant : t.ppinpoint loss. r theft of that money -on. the appellant The trial magistrate gave the benefit of doubt to Mdemu but did not say why the same was not given to the appellant. •14 4 ...# Thirdly, the ppollant gave instanóesof irigular payments which were made by ividomu, He argted th t Mdemu may have made many more such irregular or improper p3jments than he (appellant) was able to d.etect. That cot.ld have explained the unaccounted for amount. The ;ta. magistrate did not consider that defence evidence, in 'fact, did not consider the whole of the appellant -ciefene evidence at all! I do not know how the magistrate would have decided the case had he considered the defnce of the appellant along with the pr9secution evide.cice. For my part, I think that the appellant's dbfencc whioh Was uncontradiated was not so palpably unreasonable as o be brushed aside off.handedly. $ I am of the view that all considered as I have attempted to do, it cannot be said with assurance that the prosecution proved the charges againt the appellant., He ought to have been acquitted.. The appeal is allowed. The convictions are quashed, the sentences and the compensation order re set aside As the appellant had already completed hi prison sentence, it is now futile to order his rüease from prison. - ç - J.A. MRO$O çth June, 1981 'fr. Kapina, State. Attrxej fr Re8- .'nent Republ' The Appellant peet in JAM/A.TM I liina