19820714 TZHC Mbeya

I - IN THE HIGH COURT OF TANZANIA I.T MBEYA

APPELLATE JURISDICTION - cRI.INAL APPEALS NOS.il/1977 & 19J77 Ex DODOMà (ORIGINAL CRtMINAL CASE N098 OF 1976 OF THE DISTRICT COT OF IRINGA AT 1RINGA) i Before: G.M. 1Cibssa Esq4, SeniGr.ai -.istrta (i) SALUM ALLY O (2) SAIDI iussz (Original Acce4). versus - THEREPUBLIC. . . • . • . , . . . , . . . . . . . . .. . . . . .RES?ONDENT (Original Proseutor). JtTDGI'ENT MROSO t j., V These are two appeals which have been oondalidated for heariz2g. The two appellants were jointly chai'ged with and convicted of stealing by agent c/s,273(b) Of th.ePerial Code. Salum s/o lilly as driver and Saiô s/o iVlussa as: turn boy, were entrusted with 15,000 litres of diesel by Agip Tanzania Limited of Dar es Sala•am for delivery to Mikumi but which eventuali' Was said to have been delivered to the Iringa Branch of the Zambia .- Tanzania Road Services. The diesçi when delivered at Iringa was allegedly found to have been mixed With water. jlt was estimated that 5 1 000 lits b die3 t_abk'tling 10,2OOj was stolen by the two appellants before dalivery anL in pIace of that diesel vatèr was added. During the trial of th cae there was ncon1u.sive evideiice as to the .mduitt of water which was ad.ded to the diesel. There was, howe;er, uncontroverted evidence • that the delivery at Iriiga was short by 70 litres. • Neither appellant gave a:y explanation before the trial court as to how the loss of the 70

litres occurred. The trial court convicte'i the two appellants of theft by agent of the 70 litre.. 1i of diesel and sontenoe.d both to. - 2 - a terni of three years imprisonment each becausd it was considered that the 70 litres of diesel belongbd to the Zambia - Tanzania Road Services Ltd and that the Company was a Parastatal Organisation. One of the points raised in the admission minute of tho learned judge who admitted the appeal to hearing is that the ehtire evidence, was taken by one magistrate but the jud&nent was witton by another. The learned judge thought it improper and that there was ixeed to oonsider, whether a failure of justice was thereby occassioned., I have, ind.eed, considered the point butt I am satified that the procedure is permissible uidr setio. 196 Of the Criminal Pobeiir Code. The ma.gis4rate who took down the evid.encewastransferr'od and his xessor who. Ws equally competent to try the case p'oceeded to itO the judent aft 4 the accUed perCons before him said they did not wih to have any of the witnesses who had' oarlibr given evidence to testify afresh and themselves opted not to give or adduce any evidence. Therefore, there was nothing imprOper about that procedure. Another point for immediate consideration wbioh was raised by the learned State ittorey for the Respondent Republic at the hearing of t.e appeal is that a fresh charge was substituted after,

some of the witnesses had testified. The appellants were asked to plead to the fresh charge but were not informed of their right under the second proviso to isection 209(1) of the Criminal Procedurc Code, that is to say, to have all or any of the witnesses who had alrady testified to be recalled to give eridence afresh qr to be further cross—examined The len-ned State AttOrneI submittod however, that irregula'ity was curable under ocation 346 of the Criminal Procedure Code, The appellants werc origirally charged with stealing 5,000 litres of diesel frorn a motor vehicle c/s 269(c) of the Penal Code. Iiftdr some eiderice had beer given it was thought that the more appropriate charge should be theft by agents 9 hence he substituted charge. 3 - I It seems .to me that the material evidence /against the appellants was that they allegedly stole d4.esel from the tanker under their charge which was c.rrying it for delivery elsewhere. The difference in paw is that in the original charge it was not nocessaiy for the appellants to have boon entrusted with the diesel for delivery to some one else whereas in the substituted charge the necessary element was that thhy stole diesel which had been ntrusted to theni for deJi' very elsewhere - to' some one else. The prosecution cvi clence from the start was that the diesel had been entrusted to the appellants for delivery to Mikumi and that they

stol9 part of it before delivery at its final destination. So, in effect, the appellants were no.t rejudiced by the substituted charge which was consistet7 with the prosecution evidence. I therefore rule that the appellants were not materially prejudiced by the irrclarity which was curable in the circumstanca under section 346of the Criminal Procedure Code. It is now necessary to consider wie:ther tha conviction._ was sound. As I have already mentioned, thor fts no dispute that at the time the diesel was delivered at Iringa, the delivery was short by 70 litres. The appellants iave explained in their memoranda of appeal that the loss could have been due to evaporation or SOjIC spillage in the course of transporthation q This oxpanation is obv4.ou.slyan after thought as it was not raiod before the rial court. . ... If the appellants thought there was suc1i'n explanation available to them there was no reason fok them to tell the trial court that they ha nothing to say when they were called upon to give theirj defence. However, that does not dispose of the matter. It was not disputed (that at Dar es Salaam the appellants took in the t.knkcr 15,000 litres of fuel which was tested in thoii' presence and found to be all uncontaminated diesel. the diesel was destined for Mikumi. We find, howevo:, that delivery was made not to Miku.nii but to Iringa. 00/4 -4- , Tre is no clue whatovor

from the prosecution evidence under what circumstances the destination of the fuel was changed. Did Mikumi after receiving delivery re-consigu the fuel to Iringa? If Mikurni took delivery what did it do with the fuel before it re-consiguod t? These are• not meaningless questions, as I shall try to show bolow • The appellants (really appellant Salurn AU whose siguature appda's on the copies of the delivery note) took the fuel from i.gip, bar es Salaa.m on 16/2/76 but delivery at Ir±ga Was dn 18/2/82, Would it take tWo. days for a tanker to travel from Dar os Salaam to Iringa? Or was it that the tanker was kept for perhaps a day or more at Miktrni where delivery was to be.mede? It was not Ithown what happenbd to the fuel when it was delivered to Miku.rni if at all, which remains any body's guess0 SecOndly, there was evidence that the tanker was sealed when it left the Igip depot in Dar es Salaarn. There was also evidence from the prosecution that when delivery was made at Iringa the seals were found intact,: There was no evidence that a driver of a, tanker who for fraudeleht purposes breaks the seals can' replace then with equally good seals which would give the appearance that the original seals are intact0 In the absence of such evidence it must be assued in favour of the ap,ellanta that they could not have brokun the seals and replace thorn with equally good ones. So,. if anj

one had tamerod with the fuel in the tanker by breakiug the seals and replacing them it must have beEn some one other than the appellants. Could this have happened at IVLikumi before the diesel was re-corisigued to Irira? Aggaiia, that is any b5d3r's guess. The position giving ,rise to all thoso question marks cannot be said to have e:poscd the guilt of the appellants beyond a roasoiable doub - ; and the trial court should have acquitted the appellants. It is not oven ithown on what basis the second appellant was convicted0 But I do not have to consider that arpiTent as I intend to allow the appeals. I therefore quashtIe convictions and set asthde the sentences imposed. Unfortunately, again, this is • one of those old appeals in which the appellants have already long finished serving their prison sentences. That being the case it is futile for mc to make an order for their release from prison, J.L. MROSO

MBEYA JUDGE 14th July, 1982 Mr. Kapinga, State Attorney.