20140212 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA r.r 1 '

AT DAR ES SALAAM CRIMINAL APPEAL NO. 80 OF 20i3 [Originating from Kisutu RM's Court Criminal Case No. 168 of 2009] MOSES MWOMBELA . . . . . . . . . . . . 1 sT APPELLANT BONIFACE WAMBURA WARIOBA ... 2ND APPELLANT

VERSUS THE REPUBLIC . . . . . . . . . . . . . . . . . RESPONDENT Date of last order - 19 / 11/2013 Date of Judgment- 12/2/2014

JUDGMENT Twaib, J.: In Criminal Case No. 168 of 2009 at the Kisutu RM's Court, the Appellants, together with one Sophia Lauden Ng'ipamba and Francis John Mrema, were charged with conspiracy to commit an offence, c/ s 384 of the Penal Code, stealing by servant c/ s 271 of the Penal Code (for 1st , 2 nd and 3 rd accused only) and stealing, as against the 4 th accused, c/ ss 258 and 265 of the Penal Code, Cap ~6 [R.E. 2002]. At the closure of the prosecution case, the 4 th accused was found with no case to answer and was acquitted. The other accused were found with a case to· answer in respect of the 2 nd Page 1 of 8 count (stealing by servant). The 3 rd accused was acquitted at the end of the trial. The Appellants, Moses Mwombela and Boniface Warioba, who were 1 st and 2 nd accused respectively, were convict~d of stealing by servant and sentenced to seven years imprisonment each. Aggrieved, they have preferred this appeal, setting out six grounds of appeal. Counsel for both sides have combined grounds 1, 2 and 3 together, and grou~ds 4, 5 and 6. Arguing grounds Nos. 1, 2 and 3 of the appeal, counsel Thadei for the appellants submitted that the two internal auditors were not qualified auditors. Both of them were Form IV leavers with no other academic qualification and only work as auditors because of their experience. Hence, exh. P2 (which was the audit report showing the losses

of the relevant buckets) was prepared by non-experts and the Court was wrong to rely on it. Hence, despite the corroborating evidence of a qualified auditor (PW7 Bonaventura Modest Akili) counsel opines that the audit report should not have been relied upon. Counsel conceded that there is no law that prohibits the acceptance of an audit report. Neither did he cite any case law authority to back up his argument. It would appear to me that the kind of audit that was conducted is a very simple one that needed no expart to conduct. All that was needed was someone who had basic knowledge and experience in counting buckets and tallying Page 2 of 8 Lll them with delivery notes, Stock ledger cards, internal dispatches, and stock record cards to figure out how many were missing. The trial court was apparently satisfied that PW4, PWS and PW6 were sufficiently knowledgeable and accepted their evidence. I do not see any reason to find otherwise. The other point raised by the appellants was that the audit report had been tempered with after the appellants had signed, thus making it unreliable. Mrs Sinare for the respondent submitted that it is true that the report was altered, but that according to PWS, the alteration was done before the auditing and the appellant could not prove that the column was added after the auditing, or that it was incorrect or not genuine. I would agree with the

learned State Attorney on this point for the reasons she has given. In addition, the said alterations did not alter the significance of the fact that Exh. P2, at the moment the Appellants signed the same, had shown that according to the records of the store and the number of buckets that were physically there, there were significant shortfalls that constituted the losses that resulted in the criminal case the subject of this appeal. For these reasons, grounds Nos. I, 2 and 3 of the appeal are dismissed. Mr. Thadei, learned counsel for the appellants, Page 3 of 8 submitted in support of Grounds Nos.4, 5 and 6 that the evidence at the trial did not show that the appellants were the only ones with access to the store where the buckets were kept, and that there was no separation between the store department and the other two departments (filling department and dispatch department). Thus, anybody could enter the store and steal things therefrom. Counsel thus opined that it was wrong for the trial court to find that the appellants were the only ones with access to the store. In answer to this argument, Mrs. Sinare, learned State Attorney who appeared for the Republic submitted that there was in fact evidence to show that the appellants were the ones who had keys to the warehouses, that they were storekeepers and had access to the store. She referred to the evidence of PW4 (at

P.42) PW2 (at P.38) 'and PWl (at P.29). I entirely agree with Mrs. Sinare on this point. However, there are other pieces of evidence that showed that the appellants were not the only ones with keys to the warehouse and store. Mr. Thadei is not entirely correct in saying that these was no separation between the three departments. The evidence of PW4 Shreenadh Singh (P.43) show that the three departments are separate, even though they are all within the same warehouse. The store was upstairs, and there were separate keys for it, which were kept by the appellants. However, I doubt whether the appellants were the only ones who had an opportunity to steal the buckets. Page 4 of 8 .). The evidence showed that one Sajjid, the stores in-charge, also used to bring buckets after working hours to the store and perhaps more significantly, even in the absence of the appellants. The appellants only worked from morning to 5 p.m (sometimes 6 pm). who received the buckets after 6 pm? Wouldn't that person have the chance to remove the buckets at a time when the appellants were not there? PW3 Shaban Mhina, a Storekeeper at Mohamed Enterprises (AI) told the trial court (P.35): "In 2009, I had a boss who was the incharge his name was Sajjid. He has terminated from service now at the end of last year." However, as Mrs. Sinare argued, the evidence showing that the warehouse was a big one, and each

department had it own closed space and kept under lock and key. The evidence also shows, she contends, that the appellants were the only ones who had the keys to the store where the missing buckets were kept. She relied on the evidence of PW 1, PW2 and PW4. PW2, she said, testified that the appellants were keepers of the keys, and were therefore the only ones who could be held responsible. She further submitted that though the three departments were in the same warehouse, the warehouse was a large one and Page 5 of 8 accommodated all three. However, each was separate from the other and the appellants were the ones with access to the stores department.. She concluded by saying that the trial court was right in convicting the appellants and praying, that the appeal should be dismissed. Though Mrs. Sinare had mentioned PW4, she did not make any submission on his evidence, which I think is significant. The evidence PW4 Shreenadh Singh, the person incharge of the filling department, is most pertinent. He said people working at the store were "Moses, Warioba, Omari Sufian, and the rest." According to him, Moses (1 st appellant) used to sign, but Warioba also did: " In the Stores Department one person was there and he left in 2009. Sufian is still working with us, I don't know, why he is not charged with the case at hand. I know nothing about the stores issues." He further

testified: ". . . When need anses, the storekeeper can come on a shift . . . I do not believe that the Page 6 of 8 accused stole the buckets . . . as per the circumstances of the company it is not possible for one to leave with like 1 000 buckets. All the department use one main door . .. " With this kind of evidence coming from a person who knew first hand the set-up of the warehouse and the manner in which the company operations as the warehouse were being conducted, it was not safe for the learned SRM to reach a finding that the appellants were the only ones who had the opportunity to steal from the store. Shifts were sometimes resorted to, and at least one other person, Sufian, also had access to the store, goods were delivered at night when the appellants were not at work, etc. Furthermore, the appellants themselves gave evidence to show that other people had access. The 1 st appellant told the trial court that there was a time when production was done at night, while they only worked until 5 p.m. He named one Mr. Duber as the supervisor and Mr. Ajit. There was also monthly audit that was done. That means, the loss would have been discovered earlier, if at all it took place during a certain length of time, as the prosecution alleged. The 2 nd appellant also named one Eran Johson, who also used to receive buckets "between January and July''. The prosecution did not explain

this at all. There was not even at attempt to cross- Page 7 of 8 .. t examine him on the print. Neither was the 1 st appellant cross- examined on the statement that Mr. Duber and Mr. Ajit also had keys to the store. In the final analysis, therefore, it is clear that reasonable doubts exist in the evidence adduced at the trial to entitle the appellants to the benefits of the principle that where there is reasonable doubt as to whether the accused did commit the crime alleged, that doubt must be resolved in his favour. Consequently, I would allow this appeal. I quash the

JUDGE 12/2/2014 Court:

JUDGE 12/2/2014 Page 8 of 8 ) . , l" <!;, .. :: J,/,1 i !' r :•.