19900829 TZHC Dar es Salaam

IN THE HIGH COURT OF TA.1.~ZA.1.dA i..T D/~R ES SAL/;.AM COU.:.:l.T Mi.RTIAL CRIML•i~L APPEAL .1.~0. 2 OF 1988 p.5672 LT. CHRISTOPHER H. M:t--.LEtlt. •••••• o •••••• APPELL/\.1.1T VS JU:)G.E J.i:'JVOCJ..TE GE.1.,ERJ~L •••••••••••••••••.••••• RESPOJ.~D&.•T MSUMI 1 .l.• 0A 6th June, 1985 the General Court Martial of' the Tanzania People's Defence Forces convicted the appellant of·two counts of' stealing by agent. He was given an omnibus sentence of six years impriso,.,me~t for both offences ... This is an appeal agai,.,st both convictions a11d sentences. J.s regards the second count the record shows that on the material day appellant was give,., shs.18,000/= as collections from 11 Mgambo 11 recruits f'or buyi,.,g u11iforrn;.· This evide,.,ce is ,.,ot co,.,troverted by the appellant. The dispute is o,., the prosecution's allegation that appellant has failed to account for this money. j~ppellant 1 s vers,ion of the story is that he handed over this money to his successor in office one Capt. Berege when be was proceeding on tra,.,sfer. He produced before the court a ha,.,dwritten chit allegedly signed by the said Capt. Berege aeknowledgi-.,g receipt 0£ the shs.~8,000/= in disputeo In co-.,victing the appall.ant on this cou-.,t the ·:rial court apparently rejectad his allegation that he gave C~pt. Berege tho disputed .s.mount of' money.. With respect, we fi.,.,d the decision

1-ae;ally justifiable. /,ppella-.,t story guiled with the alleged chit of' handi.,.,g-over i~, at best, his brilliant effort to exhonorate himself from the stro~g prosecution case. But like the trial court, we are ttot impressed by his effort. 'rhe trial court had the i ... - 2 - ~(i}Z>-J.(ij aoV'anta.ge o-f a'isessi... g the oemea....'our 0,0;( the appellant. and Capt.- Berege whe,... they were givi"g their testimonies, The court was apparently swayed by Capt. 3orege•s denial that appella~t gave him the \ mouey. ·we find no justificatio,... to i~terfere with this finding of fact. ~ctually the fact that the revaletion of the alleged handing-over of the mo~ey ·to Capt. Berege waited to the time of trial makes it suspect~ Tho first co..,yictio" is based on the allegatio,, that appellant stole cash shs~2o,6~V= from o~e Cpl.Elias Chachth J.ppel.lant is denying that he was givett the , money as nllaged. However, for unknoWn.renson prosecution did ..,at call Cpl .. Chacha to substa..,tiate this nllegatio,,. 1-.s it is, thEl CA~fi3 for the proae~.n,tio• is based ~n he&raqy evidence. App@AI'ing g,i b@hAlt. Qf the Republic, Mi::1~ Pbil.ip th13, l@Ar..,~ct lft1'\te Nttgrn@y, Wi:\liJ Y'1,~bl~ to li!Upport Qonv;i.cti,gn Qn thi.§ ~Qtint. W@ fully sympqtbiaG with her. The Qq§@ fpr thij pPQ§@~YtiQ~ o epen,ct.~rmqip.ly Qn whg t Cpl~ Ch~4hA wguld hnv@ tgld th@ co\U"t on wh~ther Q!" nP·t be

1:§AV~ th@ <!pp~lJ.,A,,t th@ g;i§~Yt~d ~mount gf mon@Y• Th~ Ab§gng@ pf §Ygh i.@§timgny -.,~1HHH~c:W,ily m~k@§ th@ pI"Q§ @eY.t ~gn all@~Atig., bMrnl@§fh A§ nPteg tHU'l!@~, th€3r~ i/3 ~yffi~i~nt §Viq@ne@ in §Ypp©~t pf th~ §@P9TI~ §€cl1Jnt h~.,e@ 1;.H111vi~t!g"" gn th@ §am@ i§ Y~h@~~.- Qn ttrn @thflr- h~11P. Wfl ~J:+gw th!3 ~P,JH3-f.ll f}n th@ first --count an~ thu.:;; quash th~ convic tio'rl. At the beginn.ing-•o:f this jydgmf.!nt we .... oted that the trial col.Wt irnpo~e4 ah ownibu~ ~Qntanco 9f ~ix y~~r§ jAil fg~ ggth ~<nmta, · ?:'hi$ j.;3 W!'Qn~. it i~ ~"" g;i,@.mt'ntf:lttY p,rt.TI~;j.pl@ of ~entencing th~t eA~b pg,iv!oti.q~ ~"@t ¢Arri ~@PM'~t~ t~rm f:lf pYn;i.shrP?nt it Th~ §@n~ ~ng ~ m~t@g ~lrt in t'11:i.~ €H\Hrn la ·ih~t'~fl;)x>@ i;Ll§l§t:il h€!~-~~ i.1: ;i,~ 'iiu·fl§fi@<l, tt~d l,lg'thI.. . .. , • · •11 ·\ .::.- ........ CQnVic.t4gns bgijn qph~l9 we wo~irt hAVo impq~~q ~ §gnt~~g~ of three years jeil ott ~ach cotn,t a?\cl bt'det' them to rutt - J - con.curre~'.ltly. Now that the conviction is o.., one cou.,,t only, we sentence the appellant to three years imprisonoent~ This sentence comes into effect from 6th June 1985 when he was convicted by the trial court. YAHY A RUB.;\JM

JUDGE ' J', ~t H. ~l~~¼~ A •. MSUMI

JUDGE

JUDGE 29/8/90