JEMA AFRICA PC CRM APPEAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA PC. CRIMINAL APPEAL REF. NO. 202406282000017818 NYANGAI ABDALLAH ……………...………….…………. APPELLANT VERSUS JEMA AFRICA……….……………………………………..RESPONDENT [Appeal from the decision of the District Court of Bariadi at Bariadi.] (Hon. M.M. Nyangusi SRM.) dated the 19th day of February, 2024 in Criminal Appeal No. 18 of 2023 ----------- JUDGMENT 25th September & 3rd October, 2024. S.M. KULITA, J. This is an appeal from the District Court of Bariadi. The story behind this appeal in a nut shell is that, the respondent herein instituted a criminal case at the Somanda Primary court against the appellant herein, one Nyangai Abdallah, and two others, namely Anitha Mabula and David 1 Athanas,. The said matter was registered as a Criminal Case No. 66 of 2023 there at Primary Court. In that said case, the appellant and those two others were charged with the offence of Stealing, contrary to sections 258(1) and 265 of the Penal Code [Cap 16 RE 2022]. Particulars of the offence show that, the appellant together with the said two others, at Somanda area within Bariadi District in Simiyu Region, on 18th July, 2022, did steal 45 drums of sodium cyanide, valued at Tshs. 19,000,000/=, properties of the respondent herein. Upon the matter being heard, it was finally determined that the appellant and her fellow two accused persons, Anitha Mabula and David Athanas, were convicted and sentenced to serve the jail imprisonment for a term of 6 (six) months, alternatively, to pay fine at the tune of Tshs. 200,000/= each. In addition to that, the appellant and her fellow were also ordered to compensate the respondent at the tune of Tshs. 19,000,000/=. That decision aggrieved the appellant and those two others, hence appealed to the District Court of Bariadi. The said appeal was finally found to be unmeritorious. The appellant one Nyangai Abdallah instituted this appeal with two grounds; one, that the first appellate court wronged to upheld the trial court’s decision while the case was not proved at the 2 required standard, and two, that the respondent’s case discloses that nature of the claim is not criminal but civil. Before I go further, there is something worth to have a word on this appeal. In the appeal at hand, title of the case shows that, it has been referred by all three persons who were convicted by the trial court, namely, David Athanas, Anitha Mabula and Nyangai Abdallah. They all appealed at the District Court. However, not all of them, lodged this appeal at High Court, but only one, who is Nyangai Abdallah, as it can be so read in the petition of appeal. On that account, it is taken that those other persons had no intention to appeal, but only that Nyangai Abdallah who seems to have written their names mistakenly. Either way, on that circumstance, this appeal is taken to represent only one Appellant, the one who has managed to lodge the petition of appeal for this matter, that is Nyangai Abdallah. Now back to our business, on the said petition of appeal by the appellant one Nyangai Abdallah, the respondent replied the same. In the said reply, the respondent alleged that the case at the trial court was proved at the required standard. He added that, the appellant raised grounds which were not discussed at the first appellate court. The Respondent also prayed for this court to enhance the punishment to the appellant upon considering circumstances of the crime committed. 3 On 21st August, 2024 the matter was scheduled for hearing through written submissions. Both parties complied with the scheduling orders. In the submissions, Mr. Shaban Mvungi, Advocate represented the appellant whereas the respondent was unrepresented. In support of the appeal, Mr. Mvungi opted to submit on the first ground only that, at the trial court the respondent did not prove any element of theft. On this he said that, according to section 258 of the Penal Code [Cap 16 RE 2022], the respondent was duty bound to prove elements of theft of which he mentioned them being, dishonest intention, unlawful taking, that the property taken must belong to another person, the taking must be with intent to permanent deprive and the physical act of taking the property as well. Mr. Mvungi insisted that, in theft case like this one, it is a must for the complainant to prove existence of all those elements, either by witness testimonies or tendering physical evidence/exhibits or through circumstantial evidence. With this assertion, Mr. Mvungi stated that, according to the records, the respondent’s evidence falls short to warrant conviction of the appellant on the charged offence. Further, Mr. Mvungi submitted that, there is a variance between charge and the testified evidence, particularly on the issue of value of the subject matter alleged to have been stolen which is said to be Tshs. 4 19,000,000/= according to the charge sheet and Tshs. 18,000,000/= as per the testimony. To him, this shows that, the case was not proved at the required standard. Lastly, Mr. Mvungi faulted the trial Magistrate for rejecting to admit exhibits P1 and P2, which are the Stock Received Notes, dated 16/04/2022 and 18/04/2022 respectively, but he then went contrary to his previous decision by admitting them as exhibits. With this the Counsel said that justice was infringed. In reply to the appellant’s written submissions, the respondent firstly prayed for the court to dismiss the appellant’s appeal for want of prosecution. He prayed so, for the reason that, the appellant never filed his written submissions in the Shinyanga High Court registry zone as ordered by this court. He said that the written submissions that he was served by the appellant was for the case involving the High Court Sub – Registry, Mwanza zone, not Shinyanga. As according to the proof of the case, the respondent stated that, as according to section 258 of Penal Code, the respondent managed to prove his case at the required standard. He went ahead stating that, the act of the Appellant wrongly stating that, some of the respondent’s properties were eaten by termite shows ill motive of the appellant and his fellows to deprive the respondent’s properties. 5 On the issue of variance between the contents in a charge sheet and the testimony, the respondent stated that, parties are not expected to remember each and everything from the day that the theft incident had occurred, to the date they were required to testify in court. The respondent added that, the said variance being on the issue of value of the subject matter alleged to have been stolen, which have been mentioned to be Tsh. 19,000,000/= as per the charge sheet and Tsh. 18,000,000/= as per the testimonies, is minor which does not affect the root of the case. Lastly, the respondent stated that, though he did not raise cross appeal, yet, taking into consideration of the value of property which the appellant and his fellows were found to have stolen, the punishment awarded to them was minor. He thus prayed for this court, through the revisionary powers it has, to reassess and award a proportional punishment. In rejoinder Mr. Mvungi submitted in respect to the title of the case that, it was a typing error that instead of writing Shinyanga High Court zone, he wrote it Mwanza High Court zone. So longer as the appellant’s submission was lodged in Shinyanga zone, then he prayed for the said mistake to be disregarded, as it does not go to the root of the case. However, Mr. Mvungi reiterated all his submissions in chief. 6 That was the end of both parties’ submissions. I have earnestly gone through both parties’ submissions as well as the available records. From them, I find the issue for determination is whether the respondent’s case at the trial court was proved at the required standard. I agree with Mr. Mvungi that, the burden of proof for criminal cases is beyond reasonable doubts. This is according to Rule 5(1) of the MAGISTRATES' COURTS (RULES OF EVIDENCE IN PRIMARY COURTS) REGULATIONS, which provides; “In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence” Further, as correctly submitted by Mr. Mvungi in the appellant’s submissions in chief that, proof of the case can be done either through tendering physical evidence, circumstantial evidence or through witnesses’ oral testimonies. This is a position of the law as per Rule 8 of the said the MAGISTRATES' COURTS (RULES OF EVIDENCE IN PRIMARY COURTS) REGULATIONS which states; “Different kinds of evidence 7 (1) Facts are proved by evidence which may be: (a) the statements of witnesses (oral evidence); (b) the production of documents by witnesses (documentary-evidence); (c) the production of some other thing relevant to the case (real evidence), e.g. a rungu with which an assault is committed” Rule 9 (2)(a) and (b) of the same regulation provides that, evidence must be relevant, which means that, it must tend to either prove or disapprove a certain fact in issue. The said provision reads; “Evidence is relevant if it: (a) tends to prove or disprove one of the facts-in- issue; (b) or tends to prove or disprove another fact from which a fact-in-issue can be inferred” According to the record, the appellant together with two others were rightly charged with stealing, contrary to sections 265 and 258(1) of the Penal Code. The said section 258 (1) of the Penal Code defines the meaning of theft. The same reads as I hereunder quote; 8 “A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing” From the afore quoted provision of the law, what the respondent was bound to prove at the trial court is only that, the appellant and his fellows fraudulently, took the appellant’s 45 drums of Sodium Cyanide, without claim of right, thus depriving the owner permanently. The issue is whether the respondent’s evidence totally failed to prove that the appellant and his fellows took 45 drums of sodium cyanide, which belongs to her, and that there was no proof that they took them without claim of right and with intent of depriving permanently the Respondent’s interest on it. This took me to revisit testimonies at the trial court’s record. When I perused the testimony of PW2 one Felix Mokili who is the Operation Manager, I found it showing that, the respondent is involved in selling Sodium Cyanide and the activated carbon. The witnesses showed that, the appellant and his fellows were employees of the respondent in positions of Marketing Officer, Accountant and Storekeeper, and branch Manager. He went further stating that, in April, 2022, the office which was 9 handled by the appellant and two others, were supplied with 5 containers of Sodium Cyanide and Activated Carbon. He testified that, on that supply, the appellant and his fellows signed to accept receiving them. The testimony further shows that, in April, 2022 the appellant and his fellows accepted to have received 551 drums of sodium cyanide from the said containers, but on 16th July, 2022 when the witness went to inspect the store, he found only 506 drums of sodium cyanide. PW2 went further stating that, when he asked the appellant and his fellows on the where about of the missing 45 drums of sodium cyanides, they told him that they sold the same so as to cover the activated carbon which was eaten by termites. The witness concluded that, as the activated carbon is very hard like stone which cannot be eaten by termites, then the appellant and his fellows decided to admit the offence. PW2 added that, they did so orally and in writings. With this evidence from the respondent who was the complainant during trial, the appellant and his fellows came up with the general denial that they have never been employed by the respondent. They also raised that, they were just doing business with the respondent who claimed that, the appellant and his fellows were still indebted to the tune of 19 million by the Respondent in the cause of their business transactions. With such defense, the appellant and his fellows meant that, there was no theft 10 incident but misunderstanding in business transactions. However, when the appellant and his fellows were required to tender receipts to prove the purported business that they were doing with the respondent, they failed to tender them. From this point, the remaining issue is whether the respondent failed to prove her case at the required standard. As according to the elements of theft which have been shown above, the evidence of the respondent managed to prove that, it is the appellant and his fellows who took the 45 drums of sodium cyanides to the point of saying that, they sold the same to cover the activated carbon that was eaten by termites. Insisting that they are the ones who took them, the appellant and his fellows admitted into writing as well. In proving that the taking of the said 45 drums of sodium cyanides was fraudulently done, the respondent proved that, the appellant and his fellows did not seek for consent from her and that, they tried to lie him that, they sold it to cover for the activated carbon which was eaten by termites, while the activated carbon cannot be eaten by termites, considering that they are as solid as a rock. Again, in proving that the said sodium cyanide belongs to the respondent, PW2 showed that, he supplied the Bariadi branch with 551 11 drums of sodium cyanide, belonging to the respondent, which were taken care with the appellant and his fellows as her employees. Further, in proving that, the said sodium cyanide drums were taken permanently to deprive the respondent, the evidence by PW2 shows that, the said 45 drums of sodium cyanides were taken and sold without its proceeds being returned to the office. The appellant and his fellows kept mute on their missing till when PW2 discovered it. Defending that the appellant and his fellows were not employed by the respondent but they were only doing business, the same defense falls short. This is because, better for the respondent who managed to tender exhibits in court to verify that, the appellant and his fellows signed to have received the branch materials in April, 2022 and that they admitted in writing to have taken the said 45 drums of sodium cyanide of the respondent, the exhibits which we now fail to use them in this judgment because they were not read aloud in court during their admission at the trial court, but, as the appellant and his fellows failed completely to tender any receipt proving that they were not employed by the respondent but were just doing business. Between the two, I find it that, the appellant’s evidence in defense was just an afterthought. On the issue of variance between the charge and the testimony on the aspect of value of the stolen properties, the same is minor which does 12 not go to the root of the case. This is because, whether the value of the stolen property is 18 million or 19 million shillings, the same does not oust the fact that the appellant and his fellows stole the said properties. It may just affect the value of compensation to be ordered for return. On that account, it is my firm stand that, the respondent managed to prove her case at the trial court at the required standard. On that note, I see no point to fault the decisions of the lower courts. Now, on the issue of sentence imposed by the trial court against the appellant and his fellows after they were convicted. The respondent raised this issue firstly in his reply to the petition of appeal. However, the appellant did not see any need to reply the same. Further, in her written submission, again, the respondent submitted that upon considering the circumstances of the case, the appellant ought to have been given great punishment, unlike the one that has been imposed by the trial court. In his rejoinder, the appellant again decided to remain mute on it. It is correctly submitted by the respondent that, the issue of sentence is of law, which can be raised at any stage of the case for the court to determine, of which I agree. The same position taken, even if the case could have been tried by the District or Resident Magistrate’s Court, as per section 366 of the Criminal Procedure Act. 13 As the appellant remained mute on this aspect of sentence, it is thus taken as an admission, I thus decide to look on it. The respondent’s case was tried at the Primary Court. In entertaining criminal cases, the said court is governed by the Primary Courts Criminal Procedure Code. Section 2 of the said code provide for powers of the primary court to impose the following punishment when it convicts an offender; “2.-(1) Subject to the provisions of any law for the time being in force, a court may, in the exercise of its criminal jurisdiction, in the cases in which such sentences are authorized by law, pass the following sentences- (a) imprisonment for a term not exceeding twelve months; (b) a fine not exceeding five hundred thousand shillings; (c) corporal punishment not exceeding twelve strokes. Provided that where a court convicts a person of an offence specified in any of the Schedules to the Minimum Sentences Act which it has jurisdiction 14 to hear, it shall have the jurisdiction to pass the minimum sentence of imprisonment” Further to that, section 7 of the said Code provides for powers to punish the offender by the Primary Court. In it, the said section provides for the following limitations; - “7.-(1) Notwithstanding the foregoing provisions of this Part, no sentence or order of a primary court- (a) of imprisonment for a term exceeding six months; (b) of corporal punishment on an adult; (c) of supervision of a habitual offender; (d) or of forfeiture in the exercise of its criminal jurisdiction, shall be carried into effect unless it has been confirmed by the district court” However, the same code provides for powers of the said court to impose fine punishment and in default to serve for a certain term of imprisonment. This is as per section 2(3) of the same code as I hereunder reproduce it; - “2(3) Subject to subsection (4), when a court makes an order for the payment of a fine, it shall 15 have the power to direct by its sentence that in default of the payment of the fine the offender shall suffer such period of imprisonment as will satisfy the justice of the case” And the said subsection 4 of section 2 of this code provides for limitation of fines, in relation to the imprisonment term. In it, the Primary Court is empowered to impose sentence, in default of payment of fine by the convict. The said provision states as I hereunder quote; “(4) Except where it is expressly provided by any law for the time being in force, in no case shall imprisonment provided under subsection (3) exceed the maximum prescribed by the following scale: (a) Amount Maximum Period Not exceeding Shs. 5,000/= ………………..14 days Exceeding Shs.5, 000/= but not exceeding shs. 50,000/= ……………..1 month Exceeding shs. 50,000 /= but not exceeding 100,000/= ………………..3 months 16 Exceeding shs. 100,000 /= but not exceeding 500,000 /=…..………4 months Exceeding shs. 500,000/=…………..……5 months Now here we are, the record in the case at hand provides that, the trial magistrate decided to impose a sentence to the appellant and his fellows of either to pay fine of zzTshs. 200,000/= or in default to serve the imprisonment/jail term of 6 (six) months. The issue is whether this the sentence imposed by the Primary Court is correct according to the law as shown above. The answer that, it is not at all. According to the circumstances of the case, the trial Magistrate did not intend to impose a sentence that would need confirmation by the District Court. And, for the alternative penalty of 6 (six) months imprisonment, it means she had the intention of imposing the maximum penalty in terms of fine, according to the powers conferred on him. With this view, the trial magistrate ought to have imposed a fine of Tshs. 500,000/= in default the convict was to serve the said 6 (six) months’ custodial imprisonment term. On account of the afore discussion that I have endeavored to provide, I am of firm views that, there at the trial court, the respondent’s 17 case was proved at the required standard, that is, beyond all reasonable doubts. I thus find no point to fault the decision of the said trial court, as well as the first appellate court. On the issue of sentence imposed, both, the trial and the first appellate courts are hereby faulted, and the sentence is hereby rectified as follows; the appellant should pay fine of Tshs. 500,000/= or in default, to serve a custodial imprisonment term of 6(six) months. The said Tshs. 500,000/= should include the Tshs 200,000/= that was imposed by the trial court, if the same was formerly paid by the appellant. So longer as the other convicts decided not to appeal at this stage, then these changes in sentence does not affect them, as they had no chance to say any word on it. It is unlike the appellant herein who had such opportunity, but purposely decided to remain mute. In upshot, I find the appellant’s appeal unmeritorious, hence dismissed. S.M. Kulita JUDGE 09/10/2024 DATED at SHINYANGA this 9th day of October, 2024. 18 S.M. Kulita JUDGE 09/10/2024 19