19841124 TZCA Dar es Salaam

IN THE COURT OF APPEAL TANZANIA

AT MWANZA (CORAM: Nvalali, C,,-J., Mustafa, J.A. and Kisanga • .::,A./) CRIMINAL APPEJ.,L NO. 39 OF 1982

BETWEEN ROBERT WILSON 0 0 0 0 0 0 0 0 0 0 0 O O 0 0 0 0 APPELLANT

A ND THE REPUBLIC 00000000 RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Chua, J. ) dated the 11th day of March, 1982

JUDGMENT OF THE COURT KISANGAt..if .A.,: This is a second appeal arising from the appellant's conviction on two counts of stea.ling by a person employed in the public service. The gist of the prosecution case was that the appellant stole the proceeds of two cheques drawn in favour of two village managers., The chequeswere in respect of payment of subsistence allowance to the said villagE managers who had been transferred to Ngudu. Both courts below found that the appellant, being employed as an accounts .clerk in the District Development Director's office at Ngudu, kept custody of the cheques in question, that he maintained a cheques' dispatch register which showed that the respective payees had not collected the said cheques, that the cheques had been cashed at the bank by persons who purporte:i to be the owners nam,;;d therein, that there, had been no breaking into the drawer wherein th'<e appellant usE:.>d to kr2ep the s3id cheques and that for a period of five months since the incident happened, the appellant made no report to his superiors of any loss of cheques 0 "'!} 0., 0 ./2 • I 2 At first Mra Tendwa, the lco.rned ,;,for the respondent/Republic, took the view that the conviction as was unsupportable inasmuch/it was based on uncorroborated evidence of acc~mplices. Admittedly, the trial court in conv~cting the appellant took into account the evidence of co~accusE<l

persons which evidence implic:ited the appellant with conspirucy to commit the offences in questiono But on the first uppeal the learned High Court jUdge addressE<l himself to this question and found that although the accomplice· evidence stoed una:orroborated, the circumstantial evidence as summarized earlier in this judgment and which was the subject matter of a concurrent finding by both courts below, was sufficient to ground the convictiono Whereupon Mro Tendwa went on and contended that this circumstantial evidence so relied upon by the High Court was not sufficient because on the evidence i t was possible that some person or persons other than the appellant might have taken possession of the cheques in questiono However, this was a question of fact on which both courts below made a positive finding to the effect that the two cheques were in the appellant's custody, and indeed there was e,,,ldence on which such finding co·Jld hnve been madeo The is sue of insufficiency of evidence, now being raised by Mro Tennwa, is one of fact, and it cnnnot be. raised on second appeal where, as here, both courts below have made a concurrent fi.nding on the pointo On second appe-::il only matters of law may properly be raiSedo For instance, it would be:: open to a porty to urge that there was no evidenc~ at all on which the courts below based their concurrent finding, but thut was not the

case hereo After all this was pointed out, Mro Tendwa in the end conceded that even discounting the accomplice evidence, the circumstantial evidence as referred to hereinbefore was by itself sufficient to support the convictiono We ure satisfied that ... • }" r,j :a:..., 0 ~ t 3 the appellant's conviction was well founded und we see no reason to interfereo The appeal is without merit, since it f q ( ~ . raises no points of law, a t)Q\ i't' is .q co{dingly dismissedo 1 1 ·'. ,: ' DATED nt MWANZA .this u ~>· i " , ".~~•' I .' '-·,~-~_;;/~..--"'"_,, F o Lo NYALALI

CHIEF JUSTICE Ao MUSTAFA

JUSTICE OF APPEAL Re H., KISANGA

JUSTICE OF APPEAL I certify that this is a true copy of the original., ----------~;~~=--- ( Bo J?~QSHI -·<,.

SENIOR DEPUTY REGISTRAR