19770604 TZHC Dar es Salaam

IN THE HIGH COURT OF TL1ZL2I2, 4

AT ARUSHA

APPELLATE JUBI D I CTI ON

HIGE COURT A MIN4L APPEAL NO. 191 OF 1975 C/F CRIMINJ.L LPPE1rL-NO. 192id 193 OF 1975 ORIGINAL CRn'IINAL CASE NO. 425 OF 1974 OF TEL DISTRICT COURT

OF KOROGWE DISTRICT AT KOROGWE Before: V.R. NRJJU.L Esq., .....• RESID]iT MAGISTRATE 1 RULED I'WUGA 2.JUMA MUSSL . . ... . .. . . . LPPLLLLNTS 3 .LBDI SULEffLNI versus THE REPUBLIC ... ... .... . . . . . . . RLS2ONDENTS ORpER • BIRON, J. - The three appellants were together charged and convicted at one trial of stealing cement, the property of the Government. The first accused, I am retaining the descriptions of the appellants as they were described in the lower court, was charged with and convicted of stealing as a public servant 345 bags of cement and the other two were together charged on one count of stealing fifty bags of cement, the property of the Government. The first accused was sentenced to imprisonment for four years whilst the two other accused was each sentenced to impriimcnt for three years. They are now appealing snd their appeals are consolidated. The first accused was employed in the Ministry of Agriculture, and at the material time he was a store k eeper in Korogwe. The Government had cvcrted a large hall into a store of which the first accused was in charge. A large consiment of cement was received from the Wazo Hill Cement Factory in Dar os Salaam which was to be used for the construction of canals in an irrigation project. Sefu Salum (P.W.2) the watchman at the store, who also occupies a room in the same hall which had been converted into a -2- on store,

testified that/several occasions people had come to the store bearing notes emanating from the first accused directing him to issue cement to the bearers of the notes. He testified as to his having delivered to people bearing such notes, on each of two occasions forty bags of cement, and on another occasion when the second accused brought a note to him from the first accused directing him to deliver to the second accused fifty bags of cement, the witness who was becoming suspicious of the first accused, refused to hand the second accused any cement. The second accused went away and returned with the first accused, who in person instructed him to issue fifty bags of cement to the second accused and he did so.. The first accused and the second accuscd were at the time accompanied by the third accused, and the second and third accused took away fifty bags of cement. Daudi Mushi (P.W,.5) who described himself as a driver, testified that on two occasions the first accused gave him a note to hand to the watchman Sefu, and on each of these occasions he collected forty bags of cement, which he delivered at the house of the first accused. Lnd he recognised the notes which , the first accused had given him to hand to Sefu for the cement which were produced in court. This witness further stated that the first accused gave him shs. 11O/ for the two trips he had made. This witness in

cross-examination by the first accused said "You told me that the cement had been hired (lent) to you and that you would return (it) when your own cement came," Inspector Marko Mhilu (P.11 .4) testified that when he was on leave in Korogwc and wanting to buy cement, he heard that the second accused had cement and he wont to bee him. The second accused told him that he was expecting the arrival of cement from Dar es Salaam. 11'hen he saw him on the 24th October, 1974, the second accused told, him that he was expecting his lorry back .:ith cement from Dar os Salaam that evening.. -3- When he returned to t}' second: accused's house in the evening, the second accused told him that the cement would, be available at 9 p.m. and he asked him to reserve fifty bags for him. On the following morning when he went to the house of the second accused, he saw cement in the house of a neighbour of the second accused, and he told him that that was the fifty bags of cement he had reserved for him. He went to.find transport to collect the cement, and on his return he found that a man who was apparently the third accused, had already removed twenty bags of cement, and then the police arrived and questioned the second and third accused. The police had apparently been informed that cement was improperly being taken from the store, and on the 25th October, 1974, they went to a house wherein the

third accused had rented a room and found therein thirty bag.s of cement. They questioned the third accused about the cement and he told them that it belonged to the second accused and apparently whilst the police were at the scene or immediately before they arrived, twenty bags of cement had been or were being taken from the room of the third accused to the house of the second accused. When the police questioned the 'second accused, he said that it belonged to a woman Kibibi who required it for buiJding her house, and he showd them a receipt for twenty bags and said that Kibibi had receipts for the other thirty bags of cement. The police arrested all three accused, and as noted they were chsrgcd together. Evidence was also given at the trial by Detective Constable Mathias (P...io) that on instructions received, he together wit] others checked the bags of cement in the store and they discovered that there was a total of 345 bags of cement unaccounted for. This evidence was confirmed by LSP Peter (.P.:.ii) who took part in checking the bags of cement. il —4- The first accused elected to make an unsworn statement. He merely denied having stolen any cement and asserted that the cement he had ciclivered to t1c second accused., was cement bought by him from Habibu Store in Korogwo end he had kept it in the quarters of Sefu the watchman. The second accused also elected to make an

unaworn statement wherein he said that the first ccused told him that he had fifty bags of cement or so, and the first accused gave him a chit to take to Sefu the watchman in order to collect the cement. At first Sefu refused to p.ivc him the cement and he went and told the first accused who instructed Sefu to give him the cement, and }.ic handed over shs. 900/ to Sefu, and Sofu gave him Pnd the third accuse who worked for him, the cement. And he asked the third accused to keep the ccont in his house and to sel twenty bags to Marko Mhilu (presumably P..4) when he came and added that: "the rest were to be used at the T.T.C.. Korogwe." When Marko came on the 25th October, 1974, he told him that he could only give him twenty bags of cement. Then the police arrived and he told them that he had bought the cement from the first accused and that he did not know that they were stolen. The third accused gave his evidence on affirmation and he stated that the second accused told him that he had bought fifty bags of cement and he asked him to transport them f or him. He collected the cement from Sefu and the second accused asked him to keep the cement in his house. On the next morning a man with a wheelbarrow came and took twenty bags of cement away. Then the police arrived end asked to whom the cement belonged and he told them that it 11r'r o the second accused. The police arrested them.

He asserted that he did not know that the cement was stolen amd merely acted on the instructions of his employer the second accu: od. However, in cross—examination by the court he stated that: "I took the -I-... -5- cement from Sofu's houce. Scfu said that the cement was removed from the Government Store. I did not auostion Sefu over this point because I had forgotten." On my evaluation of the evidence the guilt of the first accused is established beyond a shadow of doubt, and hc was very fortunate in not having been convicted of tealin more cement than he was. 1'ith regard to the second and third accused, although the evidence against thorn may not be as strong as that against the first accused 2 I an satisfied as was the loanied magistrate, that it establishes their guilt beyond any doubt. In his petition of appeal the first accuscds1legos that it was Sefu, the watchman, who had stolen the cement. He goes on to say and I quote:- "That it is a mIstake of the Ministry to trust the watchman to retain and have the whole responsibility for the keys of the store •" The mistake of the Ministry was in appointing the first accused who is obviously a thief, the store4eeper, thus enabling hIm to steal cement at will. The first accused further alleges that the magistrate did not give him the optortunity, or did not allow him to call his defence witnesses. However, I accept the record of

the learned magistrate as authentic, and it is clearly stated in the proceecUngs that none of the three accused had any witnesses to call.. His allegation is obviously as true as was his defence. The second accused in his petition of appeal, merely repeats his defence, and submits for the instruction of the judge who will be hearing his appeal, that if a person receives stolen property not knowing it to had been stolen, ho has not committed any offence. The third accused in his petition of appeal, repeats his defence that he was merely working for the second accused, and had no idea that the cement was stolen from the store. With regard to the sentences, those imposed on the second and third accused arc t3c minimum prescribed by law, as laid down in the Ninirium Sentences Act, 1972, whereas the sentence on the first accused does exceed the minimum sentence by one year which sentence the first accused very riphly deserved, and it is hereby confirmed. In the- result, all the three appeals are dismissed in their entirety. Delivered in Court at Lar us Oalaam this 4th day of June,1977, . . (PHI L-IRON)

JUDGE -