joseph mwamakamba vs the republic 1984 tzca 17 29 august 1984

II! E D COURT OF A P E l 'i OF AT I 3 m (c g v j^ - j fflZAVAS^. i T O g iA t „J.v k ) c r ..x :x :'J , a p p e a l t o . 10 o f 1 5 5 7 ssscjzar Jipsum icw'iii/uc'jjiA. . . . . . . . o„ « ■ nTT:TT.-TJJ j-v.-.-ii'L. TIG KHPQELIC, . . . . . . . . . . . . XoPOHDSWT (Appeal fron the Conviction f the High. Ccurt cf Tanzania at -looya) Ui£tJ± ' datocl the 22nd day :f Docoa'bcr> I9 C6 in Criminal Appeal he. _73 ff 1906 ■ .« *■- ■y' — JlIDGSI-EIjT OF TIE COIET LUDUVA. J.A. : Ii; the District Court cf Mheya the appellant Jcseph s/c Mwanalccuii'ba together With. STAL1LTI s/c JfflAKALIFGA and !I1TILDA d/c M K U O Q C D wl.c at 'trial were referred tc as +: j fiLr::-, -j& cujd third aoduscd yespooiively^ were charged in the first ccunt with the offence cf stealing "by servant cc ntrary tc sections 285 and 271 cf the Penal Cede* In the second count in which the appellant was also charged with the third accused fcr the cf fence cf stealing "by servant^ Txth cf then were acquitted* The appellant and the secf nd accused were convicted on the first c'unt and were sentenced tc Sight (8) years inprisennent* They wore further ordered tc refund shillings 289,331/10, the cneunt involved in the theft to the Mi^eya Segicnal Trading Company, the employer cf the appellant and his cc—accused^ Dissatisfied with the conviction and soirbcnco imposed in respect cf the first county the appellant and the

soceix. accused appealed tc the High Ccurt where the appeal was dismissed (I'ltenga, J.)f Frcn the decision cf the High Cfurt, the appellant has a p p e a l s tc this Court* The other cc-accused (second accused) did net appeal. - 2 - The facts which gcxc riso to this case are Generally not disputed. Briefly? they nay bo sot cut as followss The appellant ‘ and iiis cc-accused wore employed by the Mbeya oiogicnal Trading f Conpany based at ChiLiala dcpct within Mbeya District, The appellant held the dual position of a supervisor and branch nanagor at Chinala depot. The second accused at the trial was the cashier and the third accused was a go down keeper^ The appellant was the over-all inchargc cf the depot. JLs a cashier, tiie second accused was responsible fcr receiving. in cash YX ' Vvi • v .. .v- • f .. r or cheques realised fiTn the sales cf various ito js at the clepct. A* tho clcse cf the working hours * the second aocusod n o m a l l y prepared bank reconciliation statenents which were <jcun£er checked by the appellant before the ncney was kept in the safe ready fcr banking, For purposes of security and safety of thq ncney, the safe load two different keys one of which was kept by the appellant and the <~ther was kept by the second accused. In order to cpon or lock tho safe# it was necessary to use both the keys which were under tho cust(dy cf tho appellant and the second

accused^ On 26#7»*984j( the appellant left Ghinala, his working place for Kycla tc attend a funeral cf a relative^ Tho appellant stayed in ICyola until 2,8,1984 w?ian he returned and reported on duty cn 3^ ^1 92 4* On 4 *8 *1984# the appellant left Ghinala fcr Mbeya collect previsions fcr tho deixt* He (appellant) returned Chinala frcn Mbeya cn 6 ,8,1984 at a tine when tho second accused bed disappeared frcn the dopct at Chinala without notification cf depot attendant^ Matilda d/c Mwaabonej tho third accused the to-'ial^ ilrth the sdfe locked and the disappearanae of the second accuscd at the tine when the appellant was away frrn the depot* a search fcr £ho second accused was ncunted^ On arrival at the depot and upon finding the prevailing situation there# t’ lo appellan^ was asked to hand cvox *< tie police (PW^10) the key to the safe which •»’ - 3 - ho used tc keep. In the prcscnco rf the y lico (PIT, 10) and the third accused, the office d<" rr was cponod whore, in the rocn in which the safe was kept, the appellant located tho second key tc the safe tucked away in a rod hag. This was the second key to the safe which was in tho custody cf the soccnd accused. Tilth, the two keys for the safe availed, tho safe was cponod (9*3;1984). Fron the auditing of the sales hooks and acccunts as well as the ncnoy found in the safe, it was revealed that cut cf the ncnoy realised fron tho

sal© cf tho g^cds at the depot for the period 17*7*1984 to 4 *0* 19 £4 » there was a shortage rf shillings 289*.33l/l0, This was the "basis of tho case against the appellant and Ills cc^aocused at tho trial 4 As the second accused had disappeared fron the working place at Qhinala, the appellant set about locking for hin (second accused) at Ky&la and Malawi frcn whero he (sooend accused) was rrrested and "brought tc Ilbeya for trial in this case tcgather with fche appellant* Before tlie trial cc urtj the appellant's defence was that tho ncnoy was stclen when he (appellant) was away in KyolaJ H° clainod that in his absence, ho had entrusted the t^ird accused with the responsibility tc take charge <£ tho office whoso keys and the key for the safe he had loft with his daughter Leah Jonathan (DTI42 ) with instructions that the ihird accused would collect the keys frcn her (DTJ#2 ) and return the sane tc ker (,D>If2) at the end cf tho working4day| In support cf the appellant's testincny, Leah Jonathan (DW%2)# the appolla daughter gave evidence "before the trial court tc fcho effoc^ $hat when the appellant left fcr Kyela on 26t7»1934* she was given the key for the safe which she in turn handed over tc the third accused^ Matilda d/o Mwanbene* She further said that since that -day^ the ^hird accused renained with the key for tho safe until 3.|3**954 when the appellant had returned

frcn f . 7 Kyela* After kocriiig <.•vaiur.tingJfc&Q evidonco frcn both sides* • •••/4 - 4 - the trial crurt was satisfied that both the appellant and his daughtox (D-T.2) wore net tolling tho truth in connection with tho key fcr the safe. That aspcct rf tho defence was rejected as an attempt tr icplicate tho third appellant, On appc.] tc tho High Court^ Mr* 3ate;run£;ay learned Counsel f'r tho a hi.uit with eloquence, ropcatod -s^ sane rj.'£uaent that tho appcllai.t was net responsible for the ncnoy stolon whilo the appellant wac away in Kyola when th.e keys frr the office and the safe wore .-ft at the disposal of the third accused* Upon closo scrutiny vi the evidence adduced ■before the trial court* the Ilirh Court -was rf th.e view that the trial c u r t was justified in rejecting the appellant’ s defence that the third accused had boqn appointed hy the appellant tc toko charge rf the office at the R*T*C 4 Depot at Chinnla when the appeHan't went tc Kycla* .Arguing the appeal before us on behalf rf tho appellant, I'll’ 4 M i b a l e n a learned counsel raised one grruncl of appeal* He argued that the prc secution had failed tc prove that the appellant was involved in 4hc crine of stealing! It was further submitted that on the evidence as adduced "before the trial court, it was not established who 'between $he appellant and the second accused at the trial was the actual

perpetrator rf the crine, i'lr, Ndibalena finally submitted that as no connrn intention to steal had been established* jt was erroneous for the learned judge cn first appeal to hold that there was crllusion between the appellant and the second accused^ In support of this submission* Ilr^ Ndibalena rcfoirred to page 70 of the proceedings lines 29 to 32* There* tho learned judge concluded that there was collusion between the appollan 4 and tho co^aocused, * Fey the submission that there was no ccnncn intention between the appellant and the second accused to coixiit the offence of s t e a l i n g both the appellant and the second accused should havo - 5 - "been acquitted, wo wore roforrod to the case rf JUIL’ JtWG SALUH PAZI v ZIPiHLIC ( 1981 ) TcL.x., 2464 The learned counsel urged the court to allow the appeal# On behalf tf tho respondent Republic, Hiss IIwaitelekef 1gearned State Attorney supported the conviction and sentence inpcsed* 3ho sulxaittod that there trss nc print rf law invclVod in this appeal and that it was a case whoso docisirn depended cn the credibility rf the witnesses* The lerrned State Attorney urged the court t<" disniss the appeal because the case for the prrsecutirn had been proved heyend reasonable doubt that the appellant and the second accused had colluded -jjc steal the nency* She insisted that cM the appellant and the second accused wer <3 the sole

custodians rf the two keys tc the safo# nr rno else had agccss to the ucney kept in the safe* »,fo have closely addressed ourselves to those submissions on both sides! The only issue for doternination in this appeal is whether the case against the appellant was sufficiently proved* That infact is the only ground argued before us by the learned counsel for the appellant* It is conncn knowledge that in a crininal charge the prosecution lias the duty to prove the case beyond all reasonable doubts. Any lingering drubts are rcs-.lved in favcur of tho accused* In the instant case, we are with respect in agreonent with the learned S-fcate Attrj-"ney that the doternination of the case entirely depended on the credibility and acceptance of the’evidence of the witnesses* It vas a question of fact fn which there wus the concurrcrA findings of the two crurts below # Tho trial court f< und crrrectly in our view, that the appellant and the second accused were not telling the tnsfch in their claio that the third accused was left with the keys to tho safe when the appellant loft Chinala E*T*C^ Dcpr* frr ICycla* Cn the evidence* it is quite clear to us that the third accused had nothing to do with the keeping of tho key for the safe* - 6 - In rur ornsidoisd cpinicn* in tho .li^ht cf/tl.e cvidonco which was accepted "by tho trial crurt, tho appellant* s novo tr. iaplicato the t'lii’ d aacusod

with the theft cf the ncney at tho hiTiG* Depot at GLiinalc. was nr thine l-'ttb a last nimxto attempt rn the part cf the appellant and the soernd accused tc shift the 1>1m o frrn then* As tr \rhc was responsible frr koopinj the keys tr the safe, tho soernd accused (AC* D . h » Stanley MwakalinG‘ ") in ’ -is defence pajo 43 f ± tho proceedings alsr states; "When the 1 st accused (appellant) was rn leave i*o* 27/7/84 'to 2/8/84 I was koapinc the ncney in a cuphr-jxl as there (sic) tj ,o soccnd key w ; ^ with 1 st accused^ Durinj •jjhis tine X never saw 3rd accused cpen the safe 4 5ho was net nivcn the kojyj (enphasis suppliod)* Frrn this evidence which is also supported "by the evidence cf PIT*1 and ETjX the prlice rfficers to when the appellant handed ever the two koys for the safe, it is clear that rnly the appellant and tho sectixl accused cruld fpen the safe in which the ncney was kept, In these circumstances, we t-iink the appellant was^ by this evidence strr ngly inplicated in the theft rf t^o nonoy stolon frrn the safe, Furthermore,, apart firm t’ ic fact t ^ t t ^<3 appellant and the soccnd accused were the custodians rf the keys tc the safe, there r*TQ other factrrs which as correctly found by the courts below, also Qcnnoc^ tho appellant with tk°ft of the ucncy in cclabora-tion with t’ -’ -o second accused at thg t^io-l* In the first placO| it was established that when

%Liq appellant returned frrn ICyela on 3^8^84 tho secrnd appellant who, as already indicated had tho second key the safe also left Chinal wr rking placo on 4*8^84 lof-fc fc r ICyela t<o ( H ^ , Pif^4), *-According tc tiio ovidonco of Jk^iative Constable Jacc b, tb.o appellant ♦ ♦ * « / 7 7 the secrnd accusccl in t] bag within.the cff ice in which the cf the-. whereabouts rf tho -second key t - the s:.fc vuJ.osi there was scne understanding between tho appellant end th:; secrnd accused, Saoon&ly, it was alsr established in evidence that tho appellant infrrnod the police that tho sec< nd accused hed abscrndod tc Malawi^ As a nattor rf fact* it was tho appellant who physically went* Jrcate the whereabouts rf the second accused in rne rf the villages in Malawi frrn where the secrnd accused was nxrosted, Tc cur r-indS| it raises the question, hew did the appellant lencw that tho appellant had absco ndod tc- a particular village in Malawi if ho had nr knowledge rf ify There is yet anrthcr aspect.which we think is alsr relevant in linking the appellant with theft rf the ncney, As already indicated^ tho appellant reported tack cn duty cn 3,8*1984# Ho accused net "the secrnd - jtfVLrrt at tho wrrk place at Chinala Depct^ Tho fr H e w i n g day i*Q* 4*8^1984, the appellant left Chinala frr ICbcya without notifying the third accused^ whr accessing tc his (appellant) defence^ ho had

appointed act in his (appellant) place while ho (appellant) was away in Kyela "but neroly left a ness age with a clork at the Doprt* On the sane day (448484) the secrnd accuscd loft Chinala frr Kyela in the evening Via Ilbeya where* as indicated^ fcho appellant 1-ad already gene tc* It is alse in evidence when tho appellant returned frrn Hboya cn 6#8|84* there wag no dccunontcry evidence to shew ^La£ the appellant returned to Chinala with tho gcrda which tliq appellant clainod ■to have grne tr colicat for tho doprt at Chinala* This again in cur viov* raises drubts as tr whether th-D appellant was tolling 8 the iGuth about tho trip tc itfboya at that ti:.c» Finally, as regards tho ncnoy, the subject natter cf this caso> it is nest strange and unusual tc^, that the appellant upcn h is rej^g'n tc wrrk on 3* 8,1984 counted tho n o e y rocoivo4 frcn sclos fcp the pcri'. d crvorod under the chnsgo '-v.t did net nentif n any shortage cf ncnoy* If there was •'•.jy sh'-rtnge, wo think it was natural that* that would he the innodiato thin.; fcr hin tc do* He did nct^ On this* Khcn crrss o x a i n c d x'jr, Tuhunjcha at page 37 r£ $he p£c Goecliags^ he states; "X left cn 26,7* 84,- I returned rn 2#Q*C4« I was <n duty cn 3*8.G4» On 3*8.04 I* counted, nrnoy frcr cash salos^ Tho third accused was ny assistant*. I^rn cash sales I saw ^here troro sales ancunting tc Shsr 598*437/45. These were

f'r cash sales fr^n 17^7*84 tc 4»0iG4.:i (3nphasis supplied), stcnccs, we cxo 'f the settled view that the Frc n tho so circir’ lccpncd judge cn first appeal was justified in his ccnclusicn that theappellant cclluded with the second accused in sterling the ncnoy frcn the sa£e* In his judgement tho learned judge stated t "All theso factors pcint cut tc rnly cno conclusion as rightly stated hy the 1c m o d Scnirr Hosidont Magistrate that the appellant cclluded w ith tho socend accused tc cpon the jsafe and stoal tho ncnoy fcr each cue cf then had a key tc the safe. It cc uld alsc ho p'ssihle as well that tlx appellant alone opened that safe and stole tho nency in the safe 'fen? he had his key tr the safe and alsc lie know that the cthcr key used tr he kept 1-y tho seer nd accused whc * 0 * * / /n _ 9 - abecc-irlod was ir* "the rod bag.** (onphasis suppliod). As indicoj^pd^ in su^pra* 'f his sulnissi on that tho appellant should bo acquitted bocr.iiso no err:-/ n intention had been established / • be two oil tho appellant r.ii1. tho o -accu^d,. M r ^ Mlba lo na , loarnod counsel relied m tho decision in t,ho oc.so rf 3/iLUtu FA2I v PCITTLTLIC ) -I#!**--* 246* That ease involved unlawful possession rf grvernuoirt trophies. On tho ovidenco as analysed on first appeal before the TIich Court, it was held that tho appellant as a joint possessor, was a principal tr tho crrmission of the

offence* 'On this baais^ tho appeal was.disnissed^ However, in the ins£kni case, wo think tho dis*inci±cn is d e a r * Here, as t-hc evidence analysed abovo shows, tho circunstancos and ^ho various factors surrounding $Lo. case ind.icq.tc quiic cloExly that' tho appellant unliko i n tho case ci£ed, colluded with tho other co^accusod (second accused) fcr jointly pyosocuto an unlawful purpose i^O| stealing’nrnoy frrn the safe# In our view, fchis was a caao in which it was established on fcho evidence *fchat the partixiip antes “ to the crino were ascor$cinable «ri,e« the appellant and the second accussd^ In tho circunstancos of this case, wo aro with roapoct|, in asreonent with Mj^ss liiaiicl^kG^ learned S-fca&i jjt^crnoy that lir# Udibalona ^ a r n o d crunsol for tho appellant has nisapplied the case of JUMAffiffi iJJ-Iil PAZI v 23PUELIC to the instant caso, We now turn fco the sentence inposod, As rightly pointed out by the learned State Attorney, tho offence involved is scheduled offonco under tho Hiniziiin Soiitancos Act, m z > F rr such an cffonccj tho naxinun t o m of inprisoiinent that a sifcordinatQ court can inposo in terns of tho provisions of Section 17 0 cf tho Crininal Procedure Actg ^ yoars inpriso rr.ont, subject tr confirnation by the Iiigli Gour*« _ «'-.:itonoc ' f oi^ht {-) years inprisonaont - \Q - , inpcsod w,,s cxnfirncd "oj the Hich Gcuri? v*o are satisfied

tliai it wes lawful. In tlic result, wo r:rc satisfied that there iB nr merit in this appeal caid .:r acc'. x f!iicl7 ■ rc Di tLat it 7x> .lieulBBod in its entirety. Tlic axrpeal is aoorrdingly dia:;: 3Su -'1 xi. its entirety* DATED AT* K 3U IA OEIS 291®; DAY OP AUGUST, <9S4. If.3* K1TZAVA3 J U S T i q O F j^PrSAL L.M. MPALILAi JU;5TICI3 CF APESAL D «2 » LIX3UVA jtij T^ c s of appeal X oorti fy ^sf c this Is a true crpy cf tlxa rrlgiiuj^