19790713 TZHC Dodoma

f... #jç b SM

IN THE HIGH COURT OF TANZANIA

AT DODOMA •0 ... -•

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 142 1978 Cf. Cr. Apps. N. 43 144, 145, 14 & 147/78 ORIGINAL CRII4INJCASE NO. 292 OF 1976 'OF}E, DISTRICT; COURT OF DODOMA DISTRICT AT DODOMA Before Ma. G. C. ICajeri . . . ., . . . . . . . .Resident Magistrate MESHACKI4AZENGO. and 5 OTHES • • . .: . .Appellant (Original Accused) S Versus . .. . S. THE REPUBLIC..,. •. • , o...' ... . z' . .. Respondent (Oiçjina1 Proseautor) Stealing c/s Z) of the Pena1 Code.

S

JUDGMENT G JONATHAN, J. ') Bef ore the District Court of Dodoma wr six • . appellants, whose petitions of : apPeál have 'bf consolidated in this judgmnt, each charged separately with one count of sta1ing. They were each côivicted as chrged and sentenced to 3 yrs' imprisonment0 The appeal to trLs outt in each cs is against both the conviction and sentence. At 'the hering of the I appeals, • as at the . trial, •Nr. Chainbakar.t advocated fo 'WIACK rIAZANGO and STANLEY MTELYA y ,.while the other appëllants ',aerd Personally to urge their apals. . The appellants were men:hersof.the'Ujam.aa village of M*akwe. It owned a. shop as we] 1 as raised revenue from among its members. The running . . and supervisioriof the shop and the raising of revenue in thc form of' f'es w:.re the responsibility of the appe.11apts having bien duly elected to do so ?.SHACK was the chairman of that village as well as th treasurer : of its Economic Cmmitte.,, The post of secretary of the committee, on the other hand, had ..b en held variously by LEQNARD NANDEO, CHARLES MANDEO and STANLEY MTELYA- '(the 2nd, '4th and 5th appellants) • The other appellants, namely,' OMARI MAAM3E and ANTHNY MALIMA had Lthe ben the sa1éen.in that shop., It would seem tha't both/Jakings of the shop and the cállectibns ef revenue in th.- form, of slaughter and brewing fees were receipted, and that, atth'. :2nd ':ach day the money

re1ised or collected would b handed overth I€SHACK as the treasurer. According to thprosetution evid..noh' -' was supposed to acciio1ede the recebpt of each remittance. All books of account,',,'Xn'dl'uding a cash 1ook' and' a ledger, wr how±ver being mamntaired and k pt by such appc1lant s happLn 0 O b' the secretary at.'any given:.tim, and the resu.r rrl.s responsibility was only to receive and k'ep the uiony, and' t'oisu out funds to the secretary to buy merchandise. '".•. ' According to e:ujamaa and CoopJratives Officer, in the month of June, 1975 he convened a mcetifig of th. village's Economic Committee where:.t,. his checking of th accounts revealed a shortage ( of shs. 245640sradpver thd previous one and—a—half years period0 FESHACK at that meeting exp1aind, however, that C'HARLESMANDAO had failed to remit some rv.nuo h had co1lectda' The' witness said t' it, CHARLES upon bing ask'd w 14 2" admitted he had received shs. 358 and then misapordpriated it He however athked for time to.,refund the money. This Aapect , f his evidehce found, support In the. es .timony of P.W2, a cornrdttee member, when i-ic said that he had b-eri present at a subsequent meeting when he heard CHARLES confess 'he had rnisappropriated some money and undrtake, to pay up. To that end, th witness added, the appellant had' later brought forth on h..ad. of cattle for sale. P..W.I,' to go' back to his

evidence, in ihô oUowing: month pn account of tSHAçK's failure to give 'a satisfactory 6xplapption for the remaining part' of the short agernade anoth.r'.inspection f the accounts, this apparently in the absence,pf any.. ef the appellants. It however' discios nothing new.;'.FIe subsequently made yet an,othér inspection, again without he assistance ,.of the appelian"ts, whereupon he arrived at a total shortageof shs. 3335.20. It also appeared to him, he said, that each of the,:second to'the sixth appellants, inclusive, had failed at one time or another to emit' the first 'appellant MESHACK revenue. collecthd by them. He had-come to such conclusion not only because MESHACK had cláimed so but also on accotlnt bf the absence' of any aêkn.owledgment by him'he had received 'thu r ',, levant, sums. ~ LEONARD, be said, had not remlt,te.d shs. 25 1 OMARI shs. '1, CHARLES shs. 577; STANLEY shs.952 and ANTHONY shs.' 20. to sy, therefcre' iSMAK.wasprsonal1y"respohsible for the shortage of shs."1E2:4.2O. It will e noted" th dt losses attributed to the second' t,o .th'tsixth. appellants are in respect of collections of'revenue only. s regards the shop fund, the ,witness said, MESHACK alleged and CIIARLES admitted that on one occasion the latter had failhd to arcount to' 'the form:r.'±h a1ance, of sortie money he had ben handed. to buy mechis. No figure was howeve.' -epelled out while no

offic. rcord appears to have en kept of monies paid out by MESHACK to Lh secretary for that purpose. However, according to P.W..1MESHACK had maintain...d a note book f his own. It may be presumed LhaL h. had recordd therein all monies he had paid, out of the shop funci. Unfortunately, 1' however', that note bookwas not produçed, nor an' extract made ut of it to show what amount CHARLES or any och r Lppcllant hd not accOunted' f,or. ' . ,. . , .•.." . • That wat practically all the prosecution vidençe 1 aiid' how to the defence. The gist of that of MESHACiC was hat he would rc•eive remittanc&of,'yi'e?enue without 4riy r.ccd. AS regards the shop, he said, h would give out mon y for buying goods in the presence of a committti,emb.?r a record th paym nt in an exercise book. The secretary or? 'whomso.. v r th m6ne y paid to would later accunt for it in a paym.nt. vouchr. He tendered a copy of the finar'r'p.rt of P.14.16 I am net clear why "such report was tendered' but lb 'oiild s-em, that t à)cccpt in the c 8 se of CHARLES who was said to have -'nfessLd to misappropriation 7 P.W.1 had b en *nable to say which appellants had b efl directly responsible for the loss. The defcn.e of ah of the other - pp llthms was to the same effect, that is tô sy, that thry had, without fail, remitted revenue received by them to MESHACK who iould neither sae the recipt iook n-cir acknowledge in

writ.ng th r cipt of such remittances. They also said tht P.W.1 at the times he checked found no shortage. In th case of CHARLES tciis would s em significant. The learned r sidtit Magistrate ftcr r.vi wing the evidence at gr' at Len, and I may say accuraLoly, had this to 1 observe: ... The prock ±ure said by P.14,1 to havc b en obt'ainng in handing ov r to the first accus d from the rest of the acols2d p rsons is - a comthonly adopted one in 2. ,.j 1 - "daily dealings with money even by the most laymanly individuais. I dont agree that it was possible that handing over could be done without either chckinq th col •oeors GOR. Rt bok or making writings like a • siqnaturc in acknowledgment of receipt of the money. The money was the prop rty of the village and there was ev'ry reason to take prec aution ......t He then came to the conclu:iori that :ach of them was guilty as charged. The learned advocate as well as the learned senior state attorney submit on the other hand. t that the evidence is too vague and confused to ground any convictiOn. I have a lot of sympathy for the reasoning of the 1 arned magistrate. It is public knowledge th;-,t transactions invoi.virq public funds or other property have to be properly documented in order to be clear at any moment of checking that they h:ive ben properly kept and/or applied. Transacions betwe€m one individual and anoth;r are of- tn •:.

based on - and are not necessarily reduced to writing, but A puhlic accounting thre must be record of practically 'e"ve:y transaction involving public property 0 For, to do otherwise would result in abysmal chaos in public accounting and an ceatien of the alread'' disquieting incidence of misappropriation of public property. • In the present case, however it is a question of fact whether revenue would he remitted to MESHACK without any acbiowledgementof the receipt by him as the apellants stressed in their evidence. If that is what actually happened, then they had defied not only the generally accepted procedure but also that stated by p.Wl in his evidence. As however pointed out by Mr. Aliriwike the system of accour.. -Lil: icy at that village was deplorable, to suggest that the appellant5.. especially IvESHACKhad had no instructions on how to k p the accounts in..order. P.W.l, it may he noted only talked of the accounting system aS it ought to..hwe been hut he made o suggestion that ho had told the appellants precisely what was expected of them in that behalf. I inconceivable, then, that the collectors may have remitted only the revenue to MESHACK without putting the receipt book before him and without the latter issuing receipts to them? In the particular circumstances of the case I would think not. They had been elected, as distinct from being appoint...d on merits, to run

the economic activities of the village. They did this on a part-time basis., p;-msuniably for no reward as such, each of them being othrwise.oeoupied, in the case of STANLEY, for intance,. as the headteacher of the 3ocal primary school. There seems to have existed a not in con sider able element of trust among them in their day-today dealings. Mow, it has not .een shown there were any remittances for which ME SHACK had issued receipts as to show that the instance giving rise to the Lth,e . changes itutedla.. dip arture the frorusual uperadi All consiiered therefore, I woul.d think that the appflants houXd he given the henefit of duht that the collectors would hand-over to NESHACK only the revenue and that th latter would riot - give them any receipts. Th against MESHACK may be disposed of first0 He qs con - icted of the theft of shs. l4O.2. At the trial he failed toaccount for suc..sum. He had however told P,W.l that CHARLES had failed to return the kalance of some money he had . .. .5iven him to hu goods for the shop, whereupon CHARLES had admitted the allegation0 That, then accounted for at least part of the loss, A already stated however, the siz. of such ...balance war, not stated in he evidence and it cannot possibly ... now be determined0 In su h circumstances, MESHAK should be given - the benefit of douht that the loss discovered by P.W.1 represented the balanc that

CHARLES had failed to return to him. -4- , Putting aside, for the moment, the cas::: against CHARLES, it was the claim of all the oth r appellants that thay had remitted the revenue to ?SHACIc who had howev.:r fei].,:d to aoknowledge the receipt in writing. At no stage did YiESHAK dispute the claim that he would not issue rcaipts td them. In the circumstancestharefore the possibility that they may have handed over the money to him cannot be excluded. They, too, should be given the enaf it of doubt. Turning, finally, to CFARLES, the evidence against him is on a stronqer foundation. He had candidly adrnittd he had misappropriated funds of the village amounting 'to shs. 358 and he went so far as to offer to v.a.11 one of his h.ad of cattle to pay bck the money. He does not aear to hava ropuJiat:d or retracted such confession and as in the circumstances of tb. case it could not but be true, I am satisfied he was rightly convict.d, at any rate not of the theft of shs. 365 but that of shs.

358. Acoordingly 1 his appeal aqainst the conviction is hereby dismissed. The sentence of 3 years is sevre but it is not so exssiVeo' as call for interference by this cDurt and as it requires its confirmation, it is hereby confirmed. The appeal of each of the othr app;llantis allowed, their convictions quashd togethar with the seitnces and an order being hereby made to .reIase them from custodyif they are not' otherwise lawfully held. .1 P. M. JONATHAN JUDiE Delivered in court thi3 13th day of July, 1979. / / P. M. JONATHAN

JUDGE