19941214 TZHC Dar es Salaam

::,P?:ELLATE JURISDICTION HIGH COURT c::.IMIJ\J}J.., APPEAL NO. 75 OF 1994 ORIGII'U-tL CHIMINAL Ci\.:3E NO. 629 OF 1993 OF THE DISTRICT cou;1T OF TI,J-\1,./.\ DISTRICT AT KISUTU Before: Nindi Esq, RESIDENT M./\GI3TRATE MOHAMED Rl1J1\BU eoeoo900•••••••01t•• APPELLANT Versus THE REFUEL IC • • • • • • • • • • • • • • • • • • • • • • RS,SPONDENT ·----- --- JUDGMEl'\JT Mackanja, J. Mohamed aaj~bu, together with three others, stood trial on the first count on a charge of conspiracy to com□ it a felony c/s 384 of the Penal Code. J\ll the accused persons were acquitted of this offence .. , The appellant was convicted the offence of stealing by a person eraployed in the public service c/s 265 and 270 of the Penal Code as charged in the second count. He was aggrieved; hence this appeal • . Until his trial tho appellant was an employee of Printpak Tanzania Limited. This is a parastatal company. .Also in the employ of that compaT.wcri, ,1:2.i.·y. :;j::,,ka.. (p1·:.1) 1 P.:nll Ngwaya (PW .4), Daudi Chon.go (Pvr .5) and Clement IVJ.hando (2nd accus~d). The 2nd accused was a gate keeper. On Saturday the 22nd May, 1993 Clement J\f1.hanclo found the appellant at the c;ate when the former was reporting for duty. The appellant is alleged to have asked 2nd accused to keep his (appellant's) three boxes which 1.vere to be collected at 6.00 pm by sor.1eonE? sent for that purpose. Clement Mhando, a

co-accused, swore that he did not suspect any wrong-doing on the part the appell2nt; so he accepted to keep the three boxes. He maintained this position in his caution st.s.temcmt (Exh. P.2) which wa.s recorded by -D/Copl. Hamza (P\:J.7). Jnder..d, ::;i.-t- t:i.uo Pal71• someone presented himself to 2nd accused n;:; h&v.u1g been se11t by th2 appellant to collect the three box2:·" ~Ci·ie courier turned out to be the fourth accused person, went there aboard a taxi cab which was being driven by Mohamed Kassam Mohamed (P'il1 .2). Ma-~y Njoka arrived 1 at the premises when the taxi-cab was being .1~1.rked; so she witnessed the loading of the boxes on that motor vehicle. She saw the 2nd accused carry and load the three boxes on the said Motor Vehicle with J.egistration No. TZ.5835. PW.l was deterDined to off-load the boxes from the motor-vehicle but the 2nd accused pushed her mvay and the car drove away with the contraband. Mary Njoka dutifully reported the matter to Mohamed Mushumbila, ·che production Manager, and to Daudi Chongo (PW .5), the security Officer, and to the Central Police Station. As a result of criri1inal investigation that 1.,,rere m.ounted by the Pel ice as well as by the company~s security system, all the three boxes were recovered. They were found to contnin 222 exercise books. And stock verification by Paul Ngwaya (PW.,4) , the company's internal auditor,

established a short fall of 5355 exercise books, revealing that the 222 exercises books constituted a very sr.1all portion of books which had been stolen. Another piece cf Gvidence which implicates the appellant is testimony of Joram Tisilikitwa (4th Accused), who testified that the appellant asl<ed him to go and collect his lugg 8 ge at the premises of Printpak Tanzania Ltd. PW.2 has confirmed that it was the 4th accused who hired his car to go and collect the three boxes. The 4th accused went further to swear that the appellant had directed him to ask for a Mr. i~1ando at Printpak. This ties up very well v:i th the testimony of the 2nd accused. And in his evaluation of the evidence the learned trial magistrates r,nkes the following observations at page four of the typed copy of the judgment:- 11 • • • the evidence in court is that when the fourth accused came to collect the three boxes he find the second accused who had instruction by the first accused person tc give the three boxes to the fourth accuse~. The fourth accused .ts just a friend to the first accused and he gave a lift to the boxes after according to him, the fi~st uc~used had asked him. The i'irst ac .-.·..1..s.._·,_-t ~.s i.L-2 he3.d of the binding secti . x. of Print Park, Printing and binding Departr:;:ient. The first accused JJlUSt therefore be aware of how those books came out of the office. I have carefully

taken into account the statements of evidence of the fourth accused persons, who is a friend to the first accused. I have also taken into account the testir,1ony of the second accused in court· together with his caution statement, Exh. P2 and think I agree that those books oust have taken from inside Print Park (T) Ltd by the first accused ••• ". (Quatation made verbatim). In the upshot the loarned trial magistrate gave the benefit of his doubts to the 2nd accused and proceeded to convict the appellant on uncorroborated acccmplice evidence, and ime fu-r::ther ground th:;.t . . . ,"!'-.- ns head of the printing department, ought to have b .........~ aware of the theft. The ....o.µucll-11.t believes that the conviction is not sound and his advocate has raised three grounds. Firstly$ the trial court erred to fcund the conviction on the reason that the appellant as head c:f the binding section should have knm-m how the books came out of office. Mr. Kashumbugu, learned advocate for the appellant, made a· brief attack on that finding, a finding which finds support from MS. Makwaiya, learned State Attorney. I think it can safely be presumed that· under normal circumstances the hec1.d of a production unit will be aware O.f .. what is happening in his area of authority• But does that alone consti..-c11 te evidence for theft when a loss is discovered? &.!ch a simplicitic approach does

not appeal to good judgment 1:or· a number of reasons. Firstly, the cominission of theft cannot be proved by presumption. There must be adduced evidence which will prove the euilt of the accused person according to law; • element::; cf. ·:/ _ ,_ ::::,. .. _ . . ~i.r:_::~~].di, asportation, must be provedc Seconc1ly :- not every _Joss can be attributed to the head of ct c~L 1. J.rtL1ent, especir:: :i..y 1:1here theft by third 0 parties is established. In the instant casE: the 2nd accused and 4th accuseWrtbc key prayers.; they must consider ther.1Sel ves lucky for their acquittal after their accomplice was found guilty. Thirdly, it seems also that the appellant, as head of the binding section, was found guilty, anrl. consequently covicted, ·because he had an opportunity to steal. That again cannot be a sufficient ground. \fi'l?re opportunity to cor:1TI1i t an offence is not a substitute for proof of a Criwinal Offence beyond any reasonable doubt. In the second'ground of appeal Mr. Kashumbugu contends -that the learned tr.ial ·magistrate erred in law in convicting the appellant dep,2nding on the accomplice evidence of the second and fourth accused persons. He submitted that there was no other evidence apart from that accomplice evidence. MSo Makwaiya does not subscribe to that contention. .She has subr.1itted that the learned trial magistrate ·was entitled to rely on the cEUttion

statements of the 1st and 4th accused persons because the appellant did not object to their adr.1ission. I think the issue here is no·c admissibility of the caution staterJents. Tho.t alone was not the basis upon which the appellant was found guilty. It is the value of evidence in the caution statements as seen by the trial cnurt ,.vhich mattered; and that evidence was sheer accomplice evidence. The issue therefore is whether the uncorroborat:ed] accomplice evidence can found a sound convicti0n. The answer is not far to fetch.,, There is no doubt that ·accomplice evidence is admissible and a court can, in a proper case, convict on it; but it is an established rule of practice in this country that it is the c.uty of t!i.e trial court to warn itself of the dangers of relying on accor.1plice evidence be'fore it acts upon ite This the trial court did not do• Fa.:il ure tc warn its elf of the imminent dangers of an accomplice who vvill iDplicato others in order to exonerate himself renders, the conviction unsafe_; Sel emani Ra ;.::hidi ar~:L_'.~~·.L..· :~:L-~-~~~ (1 ?81) '1L R 252, at 252 where .the decision ·of this Court in S1<IaJ.~anrl OtJ:i.er.a.V .B,- (J 9741 EA 373 was cited with a:i;.:p:l :)v&l. Authori tir-.::; ,·,r: this subject are -manar·; the two cases abov<::~ serve as examples. Because the·ccnviction is unsound, I need not consider the third ground of appeal in which

the appellant complains that the trial ccurt did not consider the defence; so also, ·the question of severity of sentence raised in the fourth grcund of appeal is no longer of any legal consequence. In the final result the appeal is allowed. Conviction /" is quashed and sentence is set aside. The order.regarding exhibits will not be disturbed because the appellant did not lay any claim on them. Unless, there:..:ore h2 be held in custody cm account \ of any other lawful Datters, the appellant is tc-be set at .liberty forthwith. I Delivered. Mr.. Kashumbugu: For Appellant (Advocate) Absent Ms._, Makwaiya, (SA) Mr. Ntimbwa (S/A) ,J/ ·=:"--~-:-{''.'C/--. .... JI. J. M. Mac_kanja j

JUDGE 14/12/1994