19771031 TZHC Mwanza 1

4 - /1 91 a'i/Eli ZJti fliii OF ITANZ i; : .. . iiiLLL.. • J.UiUD1CTlQN .•.. ijGri ii cri i tpp1 L "TO 249 OF 1 977- .- c:. v no. 24/77. ( original Criffi al o.' 66 of 1977 of the Jistrici Ooxrtpf iita Dstrib at Geta - i3c i. Lubera, isq. , Sdnior F1a1stra't&) MOHArLJl viio. :PPELLNT . versus • - I}EF! REPUB 1110 . . . . . 0 a ••••1 6 0 0 • ••- • .' ESPONDENT • •• • 4 •- • • • • •. •• • • • • . . 0 • • :...i :: - •_.. • .'..' • . .. . .. - . CG1: Stealln b h Seriantc/ss 265 and 271 of the Pei Code 16 a' Lhe Lavs. . _t .•. • . . ... . JUDGMNT. KTITI,J.: Geata D1StL -Ltt Curt, convicted TvTohamed. !1niambo ie appe11ant, of h ffencé of el±ng by servant and, s:entenced him to.four.years imrfsoineht. Th oence, t was acompanied p by an orthi' for a refund, o-f5hs.S01 O03/50 Gl rouit 0 imed stolen. The appellEnt ineiitsbly agreiJed, thas 10 3L iis appel,'to this court. T1ie appell u, vehimently submitted wiile proc ing h i s appeal, that the e sword oi 1 fe1l on 1m, witnout the case bomb proved beyond .asiabi doubt., liesubr:dtted, that the auditor who exmjaed the books, and repoMe± -triing: aout and 6,gainst him., did,not give evi4e.nce., to aprd..him an oppoi'tunity to e.xamine him. The appellant added, that PW1 was 'baically a uiJrscy teller, as h&:ddd7 not exam'io the figures, uicI that his eviLnc es orejuiicial. The appellant ur,ed, ie '0ed 'bopk-s - 0309901— ,10,000, vide wiich orroLnts- Shs, 7,578/60,Lan receipt çok Nb. 041501 - 41600, relevant o Sns. 12 . , 424/90, ro ot received byhm. On tne o'uo. iad Yrs. Yatovu, the learned 3 .J ttorney, app rkng for tie ni 31 c mai t tind, that as the csc ood, she could not sunprt convicb 31i., without ot he same time doing i ievous injury, tjuàióe. .1 shall cmr tirouthe record, to see if the appellant's qtrre1, is just. 1 *il exanine the racord as a whole, for one man's wr4, is no man's ocd. lncieed having scrutiaised rcorci, heara the subdiissions from ttepublic and the defence, I discover no complacence, in é trial m'1;r2 zle m ark, that "this case is very smp1e:to,udge 11 . First, the obvius is, that the aellant was on amployee of Tanzania Cotton Luthorit,.hrin.tobè. refëe1 to, s abbreviated T.C..t. The apj5e11on6 s . .. b6n6h mnager of ohe of the T.C.J1 t cotton zons known as Kos:.rn:. From the letter of appointrno't to such post, acojpaied by his ocnedc],e of work,., the appellant was T.C..L.. Zonal Bçecitive 0fficr, tn powers relevant, and, reloted to uh ob,knowing veiZy few bounds. Tlic., tppel'1 -, ant , -- was to make sure, th th cotton ndustry in his enjoyed prosperity, to buy cottonpoy rel3ted debts, and affect ro'tir .... pament,colleatand accoui.i't, or rla -ted payments. - ..... . - . . -.,Por work, rlted to-the colie6tion of funds, tha pflnt had tor,ke use of rae .boOk. ahen it: cotras; to the qutih,as.ta:hàw this was to be..accoun..ted for, we have the only prosecution iitness called Timothy Ngusa, T!Ce iiegioria1 icccntant, tify tht the collection were supposed to iitted to P.0 11ea1'quarters Ni'riza, although, we learn from this -:m lTgus '"tha'V the a'ppellant actually r3mitted Some money to Mwanza, rnc honked sora in Geita Nationl Bank of Commerce. Why dsQme., money wa;s,bai1 and not. directly pent to HeaUqu.te.ra, rpeives no explana t ion fr . a, a id, as to how much was eakcu, a,rd, hoi' much was remitted to thc i.querters an ween, is the Proeeoitjon's secret. Having found it PQlilt, to ectr.ac.t the responsibilitios of the appellant, from the little 1y ii tie., e st.ill.emain at SCa, whether the appellant prion a r d.thse functions. Mr. N;usa, an insider of C i -' . - r-jspjot. But aavjg c my nets wider •..2 áncicorineLL 000ks, and h -:ving notd, 45hot, :ever- ue receiving -2- lvs, through ietter form•ations signatures, diffone, hern 1 shl1 let myself satifiEi ; e.1ent had assistant functionaries •. -t the unehi.ni whotar sugh funôtipnarliQ, were resperisib1e to th,e appe11afor fuoLs evenuJ aceived by tam, se e iTis 6o have nt qua1if±ed to o± ,i:oificnce in the ey3s of the preacution.- HOwever, cnsiJring U- e, iqei i s'iuld, .1 iava a ccnow1edge the fact,, that, th i7flt -1.?sf1n1iytne custoiian aftiie funds collected, in the process of uiicticris of ii isi.uty. 7. td that on 14/6/1975 Pdl ndod thi accused siity receipt 000k for which the appe1lant gnei., in egister xh-?1 P1 tcI4 ti. court, th:,ong - the sixty recpt iios, were receipt book'Nos 039901 40000, and p441501 - -. 416000, vide both -f ;'hich, the appellant collcti. Sha. 20,903/54. the amount claimel uncc.ited for, tio basis f th.i change, the appellant is foc.n<. The appe1..:nt's contention, is that he did not receive these bobks'. If the conto:tion i jit, •th-n indead you 'ca,iact use 'for , c 1ti&r what o:s not eicist I h-Ve rouy examind Bgisr Skh. Fl and sart 1 i ly, I discover, that tie starred cl 1ev3ntly idiod rece ip- :ks— 'ie ;.Nos.399 0 i. —:40000, ani 4.5O1.,can, not 039901 40000, or'441501 L 4160OO repectively. L -obsrve.., - the omission of a zero behind the numbers, makes the differ ence; but I shudder to assuO 1 tiet these vere the sCe i' receipt Co&cs, that PLl talks about. Thus, 1' tO~ appel_ant contests, that he not receive .. ieeipt bdoks Jxhs. P2 and P3 as p er : agite:r. xh.P1, ii there, to stop mO i_rji sustain.iog, tie appellant's COiGLI1Ofla I have obseiv Ths s an Inspection R.e.port by T.C, xhiP5. It mak3S o caipt book Ns, 03901 .ri3ef3flC2., 039,99S - arid 041501 -041600 they do ot correspond to ie nu,bers given by PW1, Nusa. This. 'Uo't,. s1w the 'uditoi cci.oern,ut he did not, com:e.to givecvi- .3n4 ,hisre.po.rt •tende'ed -trir.'gh. a, -thir party as he diJ., not give a nca s ine-.missib1e This rort as texiered by PW1, wio .toCs or t rofess to have seei it being iriten. I must therefore say, tiiat oxh. P5, should not have been admitted, no evidentinal value. 4hi1e I o-. ei, th-ere was oo evience, that tie aepeilant eocived Receipt OCZ- 3xh.P2 and P3 vile fegister gxH.Pl, the question whether he did 'i't i ci them at au, pricks my mint. It as no in my view, by accident, t the appellant urse1f, taLl tn ial court as follows, and I quote him:— - - "I r.c.ivd the 2 receipt boks (accus i rafrs - to P2 and r3) anJ. collected therein, he moaoy . StiS. 20,003/5 0 as criarged." ith t -iis t nianl excerpt, .1 cannot even witi-' cfforts so to do, . 11 avoid the conclits a tnat toe appeilt U-id rce1ve xh.P2 anti P3, whether or ot, ti i.o i.cipt ws vid agister ath.P1, b.'rg immaterial. It I am equally hasuc to cr'nclud'a, helped unequivocallj 1 the appellant, that he also did crfl ot 20,03/50. Did the aop,...... s.tel the rrprey as cargad orct thereof? -ccord-ing to rimohi. Nusa, the-- appei-let pcp1ained the sort.ag3 .. as . follows: "1 c accusal in my offic in Feb.1977, a I dont re,r-ner, and ie told m2 he 1 this rrooej to cu1tivata -us pera'nal sh bess - uwei dross - exeiheu by the appellant r..--flmoty dowli 1th'up - •...................."The cousd - iiJ"tell fne he spht this iccueeU- did shb J(-L to cucitivt ohs shimbs. . - tne ehiltOr, unautnorised PV- for Shs,,2860/r - :.- .- --bo h srentt On-his- snamba. I 1f s.e ta...s PVs - : r :- • . . - . /3 - L -. 3 --, Having examined ti..ovo excerets, it is behoving to question Mr. Nguso' s or iit, in 'eht he was testifying. I sarmioc inevitably, that if the ap iLnt had told i'gUSa, that he ha spCflG cli the money on personal shaml:'as, then, the piece of evidence Waich i a hearsay, that the appelisut ho.. shown PVs for Shs. 2860/= to the auditor, as being expenditure on snambas, must derogate, from t...o credit of Ngusn' s testimony, th" the appellant told him cc had spent, all the money on personal ;3,:.ernbaS.. 1 cannot imagine, how the appellant would have sail so, having shown the PVs for Shs. 2860/=, to the Internal Auditor. :wther, if Mr. Ngusa, dii net s3 the PVs, and does not deny taey exist, and traey were n:t tCfl,t3L'd. a teey should, the competacice of l.a inspection report LxbP4, is qucu -tionable. The appellent, on the other hand, .id testify tht he spent 2860/= on work3rs s.t:.ombe, and, that they subsequently wanted to refund the same. He aJ--lec that he paid the balance, on labourers working on motor veLilcle transporting cotton. He sail, that toe PVs for such payments, were ceeecd by the internal auditor, wno djJ not include the same in his ce,rt x.P5. As I pointed earlier, in concurrence with the Pepublic, th omission to call the internal Auditor, as a witness seems to be of sabotaing effect. without this internal auditor, it is impossible to challenge the appeLlant, thot,no such payment vouchers wore ceased by him. Without any of the wnrkers, or labourers, it is uft easy to safely conclude, that no ouch payments were effected o.y the appellant, nor can you safely imputh thievish elements upon the appellant and co - workers, in usinh the 2860/= on their communal cotton sharpba intending to return the some, where the prosperity of cotton industry demanded a workers demonstration. Over and moove the aforegone, an examination-cf the charge sheet dnows, that the dotes for charged theft, were between 2nd August 1975 and 9/1/1976 And yet, the amount oaarguL r-nhe from 2/8/1975 up to 28/2/76 - eceipt Nos p39965 - 88 and 041501 - 041522 - receipts 041505 - 0.1.522 coming after the charged dates. This would mean convicting the appellant for amounts uncharged, an aspect that is extremely irreelcr nnd prejudicial. To conclude, this case was obviously mishandled 1 misinvestigated, so much so, that it is difficult to come to a conclusion, that the case was proved beiond reasonable doubt. In the event, this appeal must be allowad, cnvicticn quashed and sentence set aside. The appellant to be reLCCsCLI, unless otherwise legally hld. Deliverai. -this 31st .iay of October, 1 977- \ L il. Vj# KAT1TI MWANZA. JU]GE.