rajabu mustapha vs republic 2022 tzhc 15845 21 december 2022

..., ; . : . 1 : . . ~. IN THE HIGH COURT OF TANZANIA . f . . ; , IN THE DISTRICT REGISTRY OF SHINYANGA AT SHI YANGA CRIMINAL APPEAL NO. 93 OF 2021 RAJABU MUSTAPHA .................................••••.••..•........ APPELLANT VERSUS REPUBLIC •...•• I •••••••••••••••••••••••• I •••••••••••••••••••••••••••• RESPONDENT [Appeal from the Decision of District Court of Shinyanga at Shinyanga.] CHon. M.P. MRIO PRMl dated the 30th da of September, 2021 in Criminal Case No. 179 of 2021 J T 24th August & 2pt December, 2022. S.M. KULITA, l. Rajabu Mustapha, referred to as the Appellant in this appeal, was charged in the District Court of Shinyanga for Stealing by Agent offence, contrary to the provisions of section 273(b) of the Penal Code [Cap. 16 RE 2019]. It is in the particulars of offence that, on the 29th day of May, 2019 at Ibadakuli, Jambo Company industry area, within Shinyanga municlpality, the Appellant was entrusted with various types of soft drinks 1 valued at Tshs. 16,745,000/= for sale purpose, but upon selling them he used the proceeds for his own benefit. In a nutshell the prosecution case as was unfolded by its witnesses is that, on 29th May, 2019, being a sales agent of Jambo food products, the accused was entrusted with the said products. PW1 who was the Chief ;, Security officer is among the persons who witnessed the overloading of the said products in the truck o. T 525 DBC which was driven by PW2, Ibrahim Khalfan. The loading sip and gate pass were admitted as exhibit P1 to verify the same. In addition, on the loading date PW1 witnessed the appellant being present witnessing it too. PW2 added that, on the material date, he loaded and travelled with the appellant in two days, to the places the appellant was selling those goods. Lastly, PW2 stated to have witnessed the appellant signing the delivery note. The same was admitted as Exhibit P2. The testimony of PW1 was cemented by PW3 who is the head of store department who testified to have issued the said products for the appellant on the material date after he was handled with the loading slip. PW4 who is the Administrator and Financial Manager told the court that the appellant is their employee. He verified it by tendering a . contract to that effect. The said contract was admitted to court as exhibit P3. It was the assertion of PW4 that, on the material date, the appellant. 2 was .. issued . .. ~ ~:.' with the said goods and was required within seven days of selling.the~go()ds, to submit the proceeds but he did not. This witness, also tendered a General Ledger and an Invoice which were admitted as Exhibits,:P4and P5 respectively. . '.;" Though the appellant denied to have committed the offence, he was accordingly found guilty, and upon conviction, he was sentenced to serve the imprisonment of 4 (four) years. That was 18th day of August, 2021. Aggriev.ed with that decision, the Appellant preferred the instant appeal on five grounds which may be summarized as follows: One, the trial court erred to entertain the case as criminal case while it is civil case. Two, the trial court erred to enter conviction while there was no intention to commit the crime and in fact the appe!lant never committed the alleged offence. Three, it was wrong for the trial court to enter conviction basing on the defective charge. Four, the defense evidence was not properly considered. Five, the case was not proved at the requireJ standard. The 'Appeal was heard on the 8th day of June, 2022. On that date, the Appellant appeared in person whereas the Respondent, Republic had the service of Ms. Gloria Ndondi, learned State Attorney who resisted the j' appeal.. . , . 3 " , Submitting in support of the appeal, the appellant decided to adopt his grounds of appeal as his submission. In reply Ms. Ndondi prayed to consolidate grounds of appeal number 1, 2 and 4 of which she opted to argue them together. As for grounds number 3 and 5 she argued them separately. Concerning proving the case beyond reasonable doubts which is the 5th ground, Ms. Ndondi stated that, this was a criminal case not civil one. She backed her assertion with the prosecution witnesses' evidence. She added that, the prosecution's four witnesses and five exhibits sufficed to prove elements of the offence as against the appellant. ~, "I " .1',' Explaining the same Ms. Ndondi stated that, the first element was agency relationship, the second element was that the appellant was entrusted for a particular purpose and lastly the appellant stole the goods he was entrusted with. Ms. Ndondi went ahead submitting that, PW4 testified in court that, the appellant was the agE' t. She added that, the appellant was employed on 1st February, 2018 and PW4 tendered the :.' " ,- employment contract to that effect. She went ahead statlnqthat, 'PW4 showed that, on 29th May, 2019 the appellant was supplied with~products " ,': . <: '. ".' (juice, water and soda) drinks by Jambo Company valued 'at Tshs. 16,745,000/ = for sale and deposit the money into the company's account 4 I ,~ .~ : '-\i •. -' after the sale. She insisted that, the testimony shows that, the appellant did not deposit money after the sale and he was not found till when he ~ was arrested. It was Ms. Ndondi's assertion that, the appellant's act of disappearing without depositing money after the sale, establishes Mens Rea (evil mind) that the appellant actually committed stealing by agent. To bolster her assertion, she cited the cases of Republic vs. Nanji Sunderji(1935) EAC 130 and C ris ian Mbunda vs. Republic, (1983) TLR 340. Further, Ms. Ndondi stated that, the testimony of PW4 was corroborated with that of PWl who stated that, he witnessed the loading of the same products while he was with the appellant. She added that, PWl witnessed while the appellant and the Driver (PW2) leaving together from the industry premises with the 'oaded vehicle. She added further that, PWl tendered to court the Luading Slip and Gate Pass which were collectively admitted as exhibit Pl. To her, this evidence corroborate the testimony of PW4 that the appc.iant was actually supplied with the products at Jambo Industry premises. Insisting the same, Ms. Ndo ldi added that, even the testimony of - , . PW2, a Driver corroborates the fact that the appellant had committed Stealing by Agent. She said, PW2 witnessed loading of the vehicle while "., . 5 ';'>{ ..~ the appellant was present. They travelled together with the appellant who sold the products at Sikonge Tabora and Inyonga Katavi. PW2 tendered ,- . the delivery note which shows the name and siqnature of the appellant If which proves that, the appellant had received products from the Jambo Industry. It was Ms. Ndondi's opinion that, the act of non-depositing money into the victim's account proves nothing but stealing, hence the appellant was rightly charged. Cementing the same Ms. Ndondi stated that, the testimony of PW3, the head of store, also corroborates the testimony of PW4. She stated that, PW3 testified to have received the Loading Slip that he should supply the appellant with products on 29th May 2019. She added that, the loading was actually done while witnessed by the appellant. Whether the case is civil or criminal, M~. Ndondi stated that the said allegations have no legal weight as the appellant smained silent on that during trial at the District Court. As for the issue of defectiveness of the charge that on the non- citation of section 265 of the Penal Code, Ms. Ndondi stated that, the; charge is not defective. She gave reasons that the charged sectton 273(b): is independent. To her, it provides for the offence and punishment that; i: should be granted for the convict. She thus formed an oplnlon that.non- 6 citing ofsection 265 is not fatal. She said that section 265 is not supposed to be cited as the same provides for the general punishment for theft offences where penalties are not provided. As for the ground that the appellant's evidence was not considered, Ms. Ndondi stated that, the same is not true. She made reference on the typed trial court's judgment where the trial Magistrates stated that, the appellant said nothing about the products he was alleged to have collected particularly on the 29th day of MJY, 2019. Further, the appellant said nothing on the allegations that he was there witnessing the products being loaded and left with the loao «i vehicle driven by PW2. It was assertion of Ms. Ndor.d: that, the appellant had put efforts talking on the previous business he did with the victim but said nothing on the business at issue. In rejoinder the appellant just reiterated his grounds of appeal. He added that, there is no evidence showing that, he witnessed the loading of the consignment at issue on 29th May, 2019. He added that, even the exhibits tendered to court had no h5 signature. He lamented further that, even the attendance register was not tendered to court to prove his presence at the industry premise 0 1 the material date. As for the signature seen on the delivery note, he state 1 that, the same is not his. 7 That was the end of both parties' submissions. , . I have taken into consideration both parties' submissions, the referred authorities, available records and the rival issues as well. To appreciate the parties' submissions, I have got a chance to earnestly pass through the entire records. In it, I have found at page 28 of the typed proceedings, the prosecution orayed to substitute a charge sheet. The records provide that, that prayer w..,sgranted. The substitution followed due to the variance between the charge and evidence adduced in court. As such, the guiding provision of the law was section 234 of the Criminal Procedure Act. The said provision provides as hereunder quote; ''234.-(1) Where at any stage of a tria~ it appears to the court that the charge is defective/ either in substance or form/ the court may make such order for alteration of the charge either by way of amendment of the charge or by substitution or addition of a new charge as the court thinks necessary to meet, the circumstances of the case unless/ having regard to' the merits of the case/ the required amendments cannot be. made without injustice/ and all amendments made 8 ( under the provisions of this subsection shall be made ".upon such terms as to the court shall seem just (2) Subject to subsection (1)/ where a charge is altered , under that subsection... (a) the court shall thereupon call upon the accused .' person to plead to the altered charge/ (b) the accused nlay demand that the witnesses or any of them be recalled and !:jive their evidence afresh or be further cross-examined by the accused or his ,advocate end. in such last-mentioned event the . prosecution shall have the right to re-examine any such witness on matters aris/i'~7out of such further cross- . examination/ and (c) N/A // The records provide that, such substitution was done after two of the prosecution witnesses had already testified in court. In adhering to section ?34(2)(a) of the Criminal PI ocedure Act quoted above, the record shows that, the substituted charge was read over to the appellant and his ,plea was taken afresh. 9 But the record shows further that, the appellant was not told whether he had the right to recall th witnesses who had already testified in court as per the requirement of section 234(2)(b) of the Criminal Procedure Act. In a case of Republic . umanne Mohamed [1986] TLR 232(HC) this court had an opportunity to consider the provisions of section 234(2)(b) of the Criminal Procedure Act. In doing so the court held; "Where the accused be/o! _'a COUlt of law is a layman or a lawyer who is not Ilk" y to know (sufficiently) the provisions of section 23'1(_;(b) of the Ac~ the court is under duty. in the intcre: -t of justice/ to inform the accused of his rights under the subsection and find out from him which righ~ If af1~ he proposes to exercise. The accused's reply shoat. be reflected on the record of the case. The failure on the part of the learned trial Magistrate to comply with section 234(2) (b) of the Act in the instant case was/ in my settled opinion/ a serious. error; capable in law of vitiating the decision he arrived at the end of the trial. // 10 " " !• .. .; , As~long as .the records show that the appellant is a layperson, and , so long as the trial Magistrate did not put in records the choice that the appellant had made, if at all he was informed of his right under section 234(2)(b) of the Criminal Procedure Act, then, it follows therefore that, the trial court committed a serious error as it was held in the above excerpt. Because the appellant's conviction was based on that substituted charge; it is definite that, the omission to inform the appellant of his right under section 234(2)(b) of Criminal Procedure Act was fatal, hence vitiated the proceedings J the trial court. In consequence, I hereby declare that the trial court's proceedings and the judgment resulted therefrom, a nullity. This omission alone suffices to dispose of the appeal at nand. I thus proceed to quash and set aside the proceedings, resultant jL jgment and sentence thereof. I thus .. and order an expedited etris! bef xe another Magistrate, competent to do so. I also direct that, in the event the appellant is found guilty and convicted, the period which "he h .s served in prison so far should be considered in sentencing. r-leanwhi 2( the appellant shall continue to be in remand custody to await t Ie said reu ial. Order accordingly. LI 21/12/2 22 S.tv1. KULIT JUDGE 21/12/2 22 12