20160222 TZHC Mwanza

. l. IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA HIGH COURT CRIMINAL.APPEAL NO. 94 OF 2014 JACOB PASTO RY & 2 OTHERS .................................. .APPELLANTS

VERSUS THE REPUBLIC ···············••a••·····················••o••········~ RESPONDENT

JUDGMENT BUKUKU, J:. The appellants were convicted by the Mwanza District Court of Mwanza at Mwanza of two offences, one, of office breaking contrary to section 296 (a) and (b) of the Penal Code Cap 16 R.E 2002 and two, stealing contrary to section 258 (1) and 265 of the Penal Code (supra). They were each sentenced to serve a jail term of five years each, for the first count and five years for the second count. All sentences were to run concurrently. Aggrieved by the conviction and sentence,_ the appellants are now in this Court claiming their innocence. 1 ,, Each appellant lodged his own Petition of Appeal, containing a number of grievances against the conduct of their trial. I have carefully read· these grounds of appeal, which in most areas are interrelated and repetitive. This fact could not, all the same, detract me from focusing on the merits or otherwise of these grievances knowing that they were drawn by a lay hand. ~ accordingly discern four compelling grounds of co.mplaint from the mem9randa of appeal. The gist of their grievances is that, one, the charge was defective for not mentioning the ·alleged owner of the. stolen money; two, the doctrine of recent possession· was invoked improperly; three, the cautioned statements were extracted involuntarily and lastly; that the appellants defences, were not considered by the trial court. When the appeal was called on for

hearing~ the appellants appea_red before me in person fending for themselves. They urged me to allow their appeals on the_ basis of their grievances listed in their respective Petition of 'Appeals. The respondent Republic, on the other hand, was represented by Mr. Juma Sarige, Learned State Attorney, who resisted the appeal. 2 Before I enter into a discussion on the merits or demerits of the appeals, I have found it apposite to, albeit briefly, narrate the evidence relied on by the Prosecution at the trial Court, to ground conviction for office breaking and stealing. It is as follows:- The said breaking and stealing was allegedly committed on 10th day of April, 2012 at Kenyatta Road, within Nyamagana District in the city arid Region ·of Mwanza Region. Nobody saw the offence being committed, he~ce the whole evidence hinges on circumst~intial evidence. At the commencement of the hearing of the appeal, all the appellants elected for the Republic to begin. Mr. Sarige chose to converse the appellants appeals generally, but focusing on the· four points I have pinpointed already. To begin with, Mr. Sarige submitted that, there is enough · circumstantial evidence as far as the second appellant (Steven Maganga) is concerned to show that he c_ommitted the offence. According to Mr. Sarige, on 10th April, 2012, it was when the. off~nce was committed. He was a watchman at the place where

the incident took place, and it was 3 /k---------- . .. ) discovered that T.shs. 55.0 Million went missing. Only one day after the incident, i.e. on 11/4/2012, it was discovered that, he credited T.shs. 5.0 million in his bank account at CRDB Branch, and on 12/4/2012, he credited another T.shs." 9.0 million in the same account. According to Mr. Sarige, both deposits had no explanation as to where the money came from. Secondly, according to Mr. Sarige, immediately after the incident, this appellant disappeared until 10/7/2012, approximately three months when he was· arrested in Morogor_o. Mr. Sarige further submitted tha_t, the other incriminating evidence for this appellant is that, when interrogated, he admitted to have committed the offence. Having retracted his statement, an inquiry was conducted and the statement was admitted in Court. It is for these reasons that Mr. Sarige finds no merit in the second appellant's appeal. Next is Jumanne Juma, the third appellant herein: According to Mr. Sarige, hi_s evidence is also circumstancial in that, first he was also a watchman . at the scene of crime, and also, after the crime, he also disap·peared until he wasar_rested after _weeks iri M~anza after· a trap. was .1 !aid to get him. When asked, this appellant did not disclose the reasons as ·, to why he had disappeared after the incident. Not only that, according to ~J Mr. Sarige,

the appellant also bought a Toyota Hiace after the incident but · failed to account as to where he got the· money used to buy the said car. . . · Upon interrogation the appellant also admitted to have taken part in the commission qf. the crime. Much as his advocate resisted the tendering of his cautioned statement in Court, still it was admitted as Exhi~it Pl. As far as th·e first appellant, Mr. Jacob Pastory is concerned, it is Mr. Sarige's submission that, he was the one who was n~med by the second appellant (who was the first accused during the trial) in his cautioned statement. In his statement, the second appellant intimated that, the first appellant was the one who manufactured the fake key- which was used to open the office doors. Mindful of the fact that such evidence needs corroboration, Mr. Sarige surmised that, there is corroboration to the effect that, immediately after the incident, this appellant bought a tricycle (bajaji) · and he used the same to secure a loan shortly. For.that matter, Mr. Sarige argued that, this is the evidence which has implicated the first appellant herein. -/IJ---··._ . . 5 . According to Mr. Sarige, the issue that the appellants defences were not taken, is neither here nor there. He submitted that, their defences were considered by the trial magistrate. He thus prayed that since the appeals have no merit, they be dismissed. In his short

submission, the first appellant told the Court that, the finger prints brought in Court did not match his. Secondly, that ·he bought · the tri-cycle using his own money, and· that he was not named by the second appellant. Challenging on the ·name, the first appellant argued that, the third appellant, Jumanne Juma had named "Pastory" in his cautioned statement, while his actual_ name is "Jacob Pastory'', which is another person altogether. It is for these reasons that he prayed to_ be set free. As for the second. appellant, he did not have much to say. He submitted that, it is true he was ah employee of Sasa kazi Petrol Station, but then he had another . Masonry works at Morogoro and Kigoma he further told the Court that, he did not steal the monies and that he did not name the first appellant and that the money he banked was his. - . ~ - -.- .. "6 Finally, with regard to the third appellant, Jumanne Juma, he told the } Court that he had nothing to add apart from his grounds of appeal. According to this appellant, he was arrested while at his home after having been dismissed from work for two months. In brief the evidence of the prosecution side was as follows:- To begin. with PW1,Charles Phillip, he testified to the effect that, he was a supervisor at Sasa kazi ·Fuel Ltd filling station, since 1988. On 9/4/2012, · having closed the office, he had deposited T.shs. 55,000,000/=

into the safe which was in the office. He told the Court that, the said amount was for fuel sales from 5/4/2012 from 14.30 - 22.00hrs; 6/4/2012 which was a Good Friday and all banks closed, 7/4/2012, it was Karume day, the banks were closed, same as 8/4/2012 which was Easter day and 9/4/2012 which was Easter Monday. According to PW1, on 9/4/2012 he closed the office at 22.00 hrs and left having locked ali the doors. On that day the first and second appellants were on duty.· On 10/4/2012 he reported to work a few minutes before 07 .00 hrs and as he entered the office premises, he drd n·ot .see the first and second app~llants, but.there were some pump attendants. He opened V ) the main door and saw the next door open and the safe door was open too. When he checked, he found there was no money in the safe. He then reported the matter to his Managing Director one, Shafia Merali, and there . . after reported the matter to the police. PW1 further told the Court that, on the ~vening of that fateful day, both the first and second appellants did not report to work. Efforts to trace them proved futile, ar:,d so they decided to advertise in the newspapers. Narrating further, PW1 told the Court that, . on 11/4/2012 they managed to arrest Jumanne Juma at his .home, and in late. July 2012, the police got a tip that the second appellant was in Morogoro, and managed to arre_st him on

19/7/2012. PW1 is the only prosecution witness who testified as to how the money was collected, kept into the safe and then stolen. According to his testimony, PW1 told the Court that he was the one who was responsible to collect the sales money from the pump attendants, and that all sales proceeds after 14:30 _hrs were kept in the S!3fe in the office. Like other criminal offences, it is the duty of the prosecution to prove the case against the accused persons b~yond reasona_ble doubt. The burden . of proof never shifts (section 3 (2) . (a) of the· Evidence Act, Cap 6 · . . 'I' P.E. 2002). (See also: Boniface Siwinga V. R; Criminal Appeal No. 421 of 2007 (CAT) (unreported). The accused have no duty to prove their innocence. All what the accused needs to do is just to raise a . . reasonable doubt on the prosecution case. (See: Said Hemed v.· R; [1987] TlR 117. The offence with which the accused are facing is house breaking and . . stealing. In order to prove the offence, the prosecution has first to prove that, there was something whic~- was capable of being stolen, in this case; money deposited in the safe amounting to T.shs. 55.0 million. Secondly, that it was the appellants, and nobody else who stole the said monies in the safe box. As earlier on intimated, it was only PW1 who testified from Sasa Kazi Company, which was the victim. Neither the owner of the company, nor the

pump attendants, who_ allegedly gave PW1 the sales proceeds testified. One wonders, if at all PW1 was just an employee of Sasa ~azi Company, why ~as it that he_ was the one who pressed· the charges against the appellants and not the owner? Considering that he was the manager and that he was _the custodian of the office keys and the safe, . fr,J 11. . . rfJtrJ~ 9 definitely, he had an interest to serve in this matter. For that matter, the trial Court ought to have taken his testimony with caution. Now, to start with the first appellant herein. According to the record, he was found guilty based on circumstantial evidence. He was the one who was· named by the second appellant herein in his cautioned statement that, he was the one who manufactured the duplicate keys which was used to open the office doors. I think it is well accepted that, the evidence of a co- accused is on the same footing as that of an accomplice, that it is admissible but must be treated with caution and, as a matter of prudence, would require corroboration. (See: Ibrahim Daniel Shayo V. R; Criminal Appeal No. 10 of [1990] (unreported)). The confessional statement of an accused recorded, would be admissible in evidence against the other accused if both were jointly tried. The only question would be to what extent the confession of one accused can be used agains~ the other accused .. Exhibit P2 is the cautioned

statement of the second· appellant, . Jumanne Juma. It reads in part as follows:- cl\_.,,,y . ) i r------i , 1· 1i l . t) \ C./\_ Ll)t (v fl.,,, - "Saa 00.00 hrs akafika n1tu mn10Ja rnwanau111e aitwaye ) Masumbuko s/o Pastory ambaye ni jirani yangu katika makazi yetu huko Igogo ...................... Mtu huyu alifika hapa ofisini kwetu ikiwa ni wito kulingana na makubaliano yetu sisi ya nyuma baina ya mimt Steven Maganga pamoja na huyu Masumbuko Pastory kwamba inapaswa kuiba fedha katika ofisi hii. Wazo la kuiba fedha .alilianzisha Steven Maganga siku za · nyuma........... N. The above statement clearly shows. how the second appellant implicated the first appellant herein. The issue is, did the trial Court find · any evidence to corroborate the above? At page 4 of his typed judgment, the triar Magistrate had this to say:- "Corroboration in this case can be found in the act of the third accused (now the first appellant) purchasing the tri - cycle/ exhibit P2 and later on after having purchased it taking a Joan to legalize his unlawful act That in my opinion corroborated exhibit P2 that shows that· the accused person is the pne who manufactured the master. key that was used to gain unlawful · entrance in the office and later on steal the alleged money ) II therein/~ I With greatest respect to the trial Magistrate, buying a tri - cycle in itself, is not an offence. Here, what was

required is for the prosecution to prove beyond reasonable doubt that, the first appellant used the stolen money to purchase· the said ·tri - cycle. According to the record, in his defence, the first appellant had this to say:- ''I am a businessman. I have a retail shop and 1 drive a motorcycle. The shop located at Igogo area .................. Also I drive a bodaboda. The bodaboda is my property. ................ In my shop/ ·I sell various goods like soap/ rice/ cooking oil. ............. For a month I get 10/000/= to 20;000/= per da½ per month I may get T.shs. _350/000/- to 45~000/== shillings · on my bodaboda business. I do all my busines~ I started in 2008. rhereafte0 I Joined Mwanza Saccos. They first gave me· a loan of T.shs. 1.0 million of which I bought a motorcycle. In 2010 I asked for another loan of T.shs. 2.0 min I recurred (sic) . .. the loan by my motor cycle: ......................... // This piece of testimony from the first appellant herein was corroborated by DW4, one Nyakia James Sumuni, a Manager of Mwanza Saccos. This defence witness told the trial Court that, the first appellant . . was his customer and that he had enjoyed three long term loans and 10 short term loans from their Saccos. The testimony of DW4 was not controverted by any prosecution witness. From· the above, it is clear that, the first appellant having told the trial Court his source of

income, it was upon tt)e prosecution to discount such testimony, something which was not done. I find therefore that, in the absence of an eye witness, finger prints, or any other corroborative evidenc:e to link the first appellant with the· crime, I find that, the prosecution has failed to prove its case against the first appellant herein . . I now turn ·to the second appellant~ Steven Maganga. Like the other two appellants, nobody saw the second appellant steal the money. According to Mr·. Juma Sarige, learned State Attorney, the circumstantial evidence that led to the conviction of this appellant is such that, on . . .10/4/2012, it is when the offence was· comm_itted. One tjay after the incident, i.e _11/4/2012, he credited T.shs. 5.0 million into his CR.DB ,. J account, and on 12/4/2012 he further credited T.slls. 9.0 million in the ) same account. According to Mr. Sarige, both credits had no explanation as to where the monies came from. Mr. Sarige further argued that, the second appellant disappeared. · from his work immediately after the incident. He was arrested in Morog<?ro on 10/7/2012 approximately three months later. According· to Mr. Sar!ge, the other incriminating evidence is the second appellant's cautioned statement (Exhibit P3) in which he admitted to have committed the crime. In .finding the second appellant guilty, the trial Magistrate had this to . . say at

page 4 of his typed judgment:- "The running of the accused leaving behind his job/ the depositing of a huge amount of money in the account of the first accused (fJOW second. appellant) after the alleged stealing..................... and the Toyota Hiace that the second accused purchas(;d after the stealing/ is a strong and. convincing evidence that the first and second accused are· fh!3 . ,.. ones who broke in and stole the fifty five n1tllion that was left by PW1/~ Much as the second appellant was ·arrested in Morogoro, in his defence in cross examination, he told the Court that he w_as dismissed on 11/4/2013 and there after he left to Morogoro since he _had some Masonry work to do. It was upon the prosecution to prove beyond reasonable doubt that,· indeed, the second appellant had no other job other than that of_ a watch·man. Again, when testifying, PW2 Richard Joseph told the trial Court that, he witnessed a search conducted in the second appellant's house at Morogoro. According to this witness, the search having been conducted, they found newly purchased household items inside the house such a Sofa coaches, plates, cooking pans etc·...... He further told the Court that, the receipts of buying those purchased household.items were recent. Unfortunately, none of the prosecution witnesses -tendered those ·items in Cou~ nor their receipts as evidence. For that matter this Court

· _can infer that maybe those household items never existed._ /J---------------15 . The above clearly demonstrates that there is some doubt in the ' ) prosecution's case, which doubt has to be resolved onto the second appellant. Finally, we come to the third appellant, Jumanne Juma. According to Mr. Sarige, his evidence is also circumstantial in that, first, he was a watchman, and immediately after the incident he disappeared until· he was arrested after three weeks and that, he had purchased a Toyota Hiace after· the incident a·nd when asked, he failed to account where he got the. monies to buy the car. Treading by the defence of this appellant, I find a lot of contradiction with what. PW1 told the Court. The third appellant maintained that, he was terminated on 11/4/2012. Narrating as to what transpired on that day, the third appellant told the Court the following:- "................... I was taken to the police/ ·we stayed there/ and on 13/4/201,Z I was recorded my statement. On 14/4/201? the Boss came to the police with a letter. We were all released. The boss told us to come back to Job. On 15/4/2012/ I was on guard. After signing1 Charles called all the · watchmen he . ordered me to go hon1e to stay for 14 days/ I was grateful of the offer. On 1/5/2012/ I reported back. As I arrived Charles told . . me to go home and come next morning at 10. 00hrs. I did so. Next da½ I

came/ I was terminate4 ........... /~ And then he tendered the termination letter as exhibit which was admitted as Exhibit 01. According tq the third appellant, when he was called to the office, he found both PW1 and one, Mama · Mzungu handcuffed and there was a police in the office. But then, in his testimony, PW1 never told the Court what happened after he reported the incident to the. police. PWl being custodian of the keys, ·must have been a suspect at. first site. One could have expected the owner of the company to report the incident and not PW1. But then, the underlying issue here is that, it was the prosecution who were to prove beyond reasonable doubt that, indeed, . the third appellant was not working as· he alleged but rather, he had disappeared for three weeks after the incident. It is my humble opinion . that, they failed to ·do . so. Otherwise, one would have. expected the prosecution to challenge the termination letter tendered in court as evidence. Finally, was the defence of the- appellants considered by the trial Magistrate? Mr. Sarige answered this issue in the. affirmative, making reference to page 4 of the typed judgment of the trial court. At pages 4 . and 5 of his judgment, the trial Magistrate had this to say:- . "The last issue shall.not task me much. All accused person~ in their respective defence~ no one gave any explanation leave away a reasonable

explanation showing claim of right over the alleged money. As such therefore/· I find out that the accused persons had no any bona fide claim of right over the said With all due respect, as demonstrated herein, all the appellants told the Court how, in one way or the other, they ·were not involved in the . . . alleged theft. It was upon the prosecution to prove its case beyond rea~onable doubt. Unfortunately, they have failed_- to do so. Their defences · were riot considered by the trial court. It is for the afore said reasons that I find the prosecution evidence glaringly lacking cogency. It definitely cannot ground a conviction. For this , reason, I allow all the ·appeals. All said, I order that the appellants be released forthwith from prison unless they are otherwise lawfully held. Order accordingly. Delivered at Mwanza Thi~ 22nd February 2016. 19