19760903 TZHC Arusha

• 1 . : N THE HIG9 , COURT OF TANZANIA AT ARUSHA APPE.T,AT ORISDICION • HIGH COURT CRIMINAL APPEAL NO0 4OF 1976 tORIGINAL (RIMINAL CASE NO0 311 OF 1975 OF THE DIST5ICT COURT OF MOSI-fl DISTRICT AT MOSHI Before P.A. Msisica ESqO, .---- ------- -----Senior Resident Magistrate SANWEL DAVI NGA ' A3I ---- --------------: APP ELLMNT (Original Accused) THE REPU3LIC • , • . . ....................... PROSECUTOR - J U D G M E NT •-.- Jonathan, J. Befe the Senior resident magistrate, Moshi were the appellant., SAMWEL DAVID NGH1NBI and one PAUL MTENGA..carged with stealing by , .... servant, c/ss 271 and 265 of the Penal Cdd; The charge consis1ed three counts, in the first of ; whiçh..the -appellant was cliärgedàlone •: and convicted of stealing 19.9.1..Qrams of blue sapphi.e grad&. valued at shs. 11,940/- being the property of h.s enployer, Tal2ania Gemstones Industries Limited (Tol). He was sentenced to 6 yar' imprisonment. The appeal is against this conviction and sentence. In the second count the appellant was charged jointly with MTCNG while the latt2r was charqed alone in the third count0 After a full, long nd d1f0-ii1 1i...i1 the court acquitted of both these counts. Tanzania Gemstones Industries Limited with its head office at Moshi is a subsidiary company of the State Mining CoLporation (STAMICO) which has its headquarters at Dar es $alaam. As at August 16th, 1972, the time

relevant to the couct giving rie to this appeal, one MR. KRISTEN (P.W. 10) was TGI's General Manager, the appellant his deputy and one MR. THURM (POW 13) the Chief Gemmolojit Both P.W-L0 and POW 13 were p,4±iäte experts in that industry. The appellant, a-Tanzanian, Carly: in 1973 took over from MR. KRISTEN as the General Manager..:-It.'seems.thet the company had various mines supplying raw .geøtnes to the factory at Moshi for processing and marketing. They would normally be collected from the mines by senior offictials of the company at the headqurters travelling either by car or in a hired aircraft. The production of the company's Umba Mine was collected twice monthly. It is common ground, that on.Aujist 16, 1972 the appellant accompanicd by MR. KRISrEN travelled in a chartered flight to the Umba Mine to take' the pThdctin of the first half of that month. That was the first occasion ever, for the appellant 1to take gemstones from ttiat mine. MR. KRISTEN on this:.. dccsion had hoWever only availed himself of the lift to spend a week's hunting holiday a 4UnIba, apparently as the quest of one NR. ZIZ, the Uthba Mine man1tgr. At the time of the trial MR. i,ZIZ. was no longer in the country, he was living in Oman1 h2 services with the company having been re)iiit.ed. There is agreement also that the appellant that day received . four types of gemstones for which he signed the

production sheet (Exh. "A") as the receipient. MR. AZIZ also pigned it as, did the Chief- Security officer, one MrS. ANTHONY BERNnRD (Pw. 6). One of the parcels was that containing blue sapphire grade 1, of which 845.7 grams are shown as the quantity. The appellant returned that day on the same plane taking the consignment with him On th...next morning it was weighed at the head office in the presence of MR. THURM, one MR. MWA1-AJ-WAPGA the Chief sorter (P.W 1), the security guard MR. JUMMANNE HASAN (P.W 9) and Police corporal JOHN (P.W 8). it seems to have been the normal practice that such weighing-in had to be witnessed by all these four people. With the notable exception of the blue sapphire grade tithe weights of the gemstones agred with those •. .12 -2- taken at the mine0 The weight of the blue sapphire grade 1. on the other hand was funL to he 6466 grams iy, giving a short-ge of 199.1 grems . It seems agreed , ti , that that short.ge ws toc great to be accounted for by a differential in the performance of the weighing machines at both end& The foregoing f.-cts, as alroodvp c.tod ar.e.barclly in rJipute. It is thCosecütihr case that the ar.pellant stale the 199.1 grams of gemstones, this on the evidence that ha received the correct amount of 845.7 grams, that he did not hand in the gemstones on the same day/he should have done and, that at the time of handing them in on

the next morning the parcel containing the blue sapphire grade 1 was found to have been tamper d ith. - As regards the llate of handing in the gemstones P.W 1 and PW 13 say, that the appellant brought them in on .tha mrhing of August 1!7 The appellant in his unsworn statement sayson the other hand that,° on his arrival at the Mshi aeclrome at about four o.'clo&' he was met by a lriv r of the company who lrnv him straight to the. h off icE to hand in the consignment tu . MR. THURM. The : latter had the consignment then lock:i in, until the next monning.. He says he did not howev r ent r the premiss t. sohim C )1nrJso. Accrding to Mr. MWAKAJWNGA replying to a usti n y Mr. Mawalia the lcarnoi defence ccunsel at the triiil and in this appi, the appellant on the morning of August 17 callel him outs.1 , 1a the office to tak6 thd prouctien' from his c - r.. Mr. THURM seems in mèñt0 Corperal JOHN and Mr. JUMMANNE HASSAN on the other hand d not appear to know when the prc ducti n was brought in f r, they say they were nly call i in by Mr MWAKItJW141GA Er witness thc wcir.hingin After this was d ne andthe ,shortaric discovoral Mr. TrIURM sw th appellant axut it and. the latter askei him t make a rep irt. Mr. T 1UPM then decided tc write a letter signal by all f'ur f them as had ing witnessl the prnclucti n/weighed-in to Mr. ZIZ. It is necssary to reproduce the letter, thus, "Subject

SHORTjGE OF WIGHT FROM ThiChif Gemmologist Date 16 AUGUST,1972 To limbo Mine Manager. c.c. Chief Accpntant c c The Deputy Ge Mn gore Dear Abdul A shcrtagL in weight was nctic I in ycur Umtya Blue Spjaphire 1 prc ucti n fr m 1st t the 15th Au ust, 1972. Bef ra the parcel was - peneJ the und' rsigned poplo c nfirm that the pirc1 was well tii up and the limbo Mifle Scl a ticeable. Thefq'edc.r led in youchitty (attached) reads 845.7 gms, whereas the a'ctpal weight fund by us is 646.6 gms, a shortage of 199.9 gms. Will y u please check at y ur Enr t see if th re is n parcel left. Witness ur hanis a this 17th day (f August 1972. S sgd j. s'l s 1 0 s 0 C.I.D. Officer Sccurlty Ofricer Chif Sortr Chi f Gemm logist sgd. RUDOLF E. THURM"

CHIEF GEMMOLOGIST •00 3 0. 3 ji Mr. Mawalla in the lower curt as in this court has strdngly argued that, in/face f the date apnearing at the top of the letter the consignment was evidently brought in on August 16. The learned senior/magistrate in his judgment does not seem to. have considered the point specifically. Mr. THURM testified tht he had drafted a latt :r and then sh-own it to the appellant, upon whosa perusal the latter made a draft of his own for Mr. THURM. The witness• th'in had the appellant's draft typed out, signed and despatched. AS for the rcason for accepting the appellant's draft the witness at one stge.s4d ,that draft was in better English than that of his own. This is less than convincing. There Is athong he exhibits other corresondence by the witness from which would appear to he readily articulate in the English language,. more articulete I woeld say than the appellant himsoif. Be that as it may the witness nly on the previous day h -id said h hd accepted the apellant's drift bLcause Mr. MWIKJAJWANGJt had thrown away the seals of the relevant 'parcel notwithstanding that he had asked to keep; them. This will be reverted to more fully later.. Thre is in my judgment substantial doubt if in fact the letter was on the basis of ' draft made by the appellant0 If it r:ally was on the appellant's draft the witness concedes in atiy,cas that he,, read, understood

and adoptd the draft as his own. He should accordingly have noted the date at the top. I think one shcld hesittc to accept he explanation he giv -'s when he says he did not notL. such Iate on th,e irft. It is not without interest, incidentally, that the office copy of the letter disappeared myst riously and the exhibit copy is th - supplied to and kept by the- appellant. Mr. AZIZ's reply, too, cold, not he tr-ided in the files and a photostat copy of it was inst ad tendered. The disappearance of such docum'nts cannot in my vi - have bLen a me-re coincidence, ncr attribut&I t" tte appellant alone. To come b'ck to the point then) it seems me that, hav.ng regard to he date appe-ar.in bn'.the letter the evidence Of Mr. MWAKAJWANGA and that of Mr. THURM was not a sure basic for tho finding that tle,, relevant producUon. was. not conveyed to thehead office or .e dne day, especially in view firstly, of the conduct attributed to Mr. MWtKPJWANA by Mr. THURM respecting the missing seals, secndly, of the fhc€ that the driver who met the appellant was not called despite the appellant having.. m.de, it clear in correspondence prior, to the police inves ti g a ti ons that the driver had taken him straight to the office,, and lastly, in view of. the very considerable passOge of nearly 3 years since the incident; with the attendant l.pse of memory. The appelant; .ay well •theref ore have

handed in the consignmen€'oh the same day . to Mr. THURM who, • on ccoint;of theoffices'then c'lsing, stored it away until the next morning. '. As regards the mode and state of pac3a nj the .vidence is utterly confused. . There is on the one hand the evidence of the'foü witnesses to the weighing-in, 1r MWAKAJWttIlGi, Corporal JOHN and Mr. HASSAN say that the.re wer.ei four bags of cloth and 'that th'ee of them tch had/a seal and, a stnp impression of, Umba Mine. The' fourth1 however,• though sealed, Was not impressed with any stamp. Both Corporal JOHN and Mr. HAS3ANI appear to have bee called in by Mr. MWAKAJWANGA According''to Corporal JOI4W he nterèd to.find the bags on the,flpor and Mr. MWAKAJWANGA' ayiñg 'that one of them did not hvc the stamp of themie. From that 1t'may be inferred; that Mr..MWAKJWANGA had examined the bags before calling, them in. Copora1 JOHN in his police statement. dOes noE however .'apear to have said anything relating to sals -and the rub'bCr stamp of the"mi,ne, a rather conspicuous omission I think.. Nr. HASSAN for i-ics' part seer to.bo alone when he says thO't,' upon one of the baqs being discovered to ,be without the stamp of the mine the appellant was at once asked.' To.that he says he replied the seal had got hrokn off before take off and another seal replaced at the mine's airfield. Like Corporal JOHN, however, he had not said so when making

his police statement while, as only just indicated above, .•. . ... /4 -4- his account is not supported by any of the other three witnesses to the weighi.nç-in.. To corfle flow to the version cf Mr. THURM he said and I quote: I noticed three sods stackod on the bogs and one stack had sealing wax and signature around it but no of Umba Mines There was howevor no seals stamp, .- - He says he then-cut the seals and hnded them t. Mr. MWAKAJWANGA for safe custody. However, he gives no explanation fr asking him tokeep them, while no reason seetas discloàed either for Mr. MWAKAJWANGA thrcwing them a way if infact he was skad to keep them. Ndr is it indicated hoesignatre it was thatwas seen around the sooling wax on the relevant bag and what happened to It. That was the. ev1ence .c'f those who witnessed the weighing-in. There are on the other hand the accunts of P .W 6, the chief sccuriy officer at the mine and. P...W 14, the weighing clerk there. To start . with the latter who was serving.', a prison term cf imprisonment, ••. ' presUmably connected-with the employment, he said he weighed the - prodiction according to the grades in the presence of Mr. AZIZ and PW 6. Subsequently, on the relevant day he ogain':t1eighed it JLn' the presence of the appellant as well and they all signed t' sbcrw..the production sheet correctly reflected the true weights of the gemstones. They were then put

into.four plastic bags acccrding to grade and each of the bags fastened with a stapling machine. The fu''bas were thereafter put in pne bag of cloth. It was theh tied up with a stririg. He would not rememher if the seal (stamp) of the 'minh was bpc5lied The evidence of P.W 6 is tr. the same effct In adliti n h said however that the bag d ntaining all the gemst nes was salecl, prsumably with the seal of the mine, as the stamp of th:e nie was airo - dy. in. . USe. That, as already noted, was the first time for the oppellant i. tc take pr iuct n fr rn that mine. He almittei, howevr, tht ha knew th C( rrect procrIurf such taking. In view f this the learned senior resioent magistrate swiftly, tr , c swiftly with respect, concluded that he sign ci the pr lucti n sheet ft r seeing f r himself the prc, ,Juction being weighed-in. In sc finiing ho sems t have been chlivi us of the defence that the appellant hal n t in fict seen the gemstones beang weicjhed-ut and he hal cnly trusti tb fiures in th prc -iucta n sheet reflected the true &ight As has howevr been reminici by the Ccurtf Appal anJ this curt in numroi. decisirns the aparcach aJcptel by the 1 wer c urt is faulty. In or, icr tc reach e fin Ii nrj cf fct it is essential t 1 k at th0 evidence as a wh le, tha is, t t have the 1efnce case in mind. simultanca usly with that fcr the presecuti n. It i1s nc t th cc rr Ct appr och t

make a finding, as here ) n the basith 'of'th'e proedutiron evi'l:enco olon an - ... then to attempt to justify it by any weakness that may api-ear in the. defence evidence The reas n given"by the ap allant f r nc t havin had the jemst ne weighe 1-in in his presence was that there was nct enrugh time s he h'ol t leave f r Moshi at three 'cicck that aftrnan. ThL. trial a urt flatly rejct I this ncting, as it -lii, that, the apel1ant havin, arriveJ at the mine at eleven c'cick tht m rning he had bd all the time bf re him. The appellant's excuse f r n t insistin to have the gemst nes weighed-in in his presence certainly begs tho quasti 'n Why lid he n't have sufficient time to have rily, f ur grads wighed-in' It is however difficult te say if he approci t I this He ch Sc t make an unsworn statement ani that male it impssible to lamond clarification frm him . . . In 'rej'ecting the appellert's 'verSi fl the' .' trial court dcca not seem 'however to have acted ?at1CularlY confidently on the evidence of PW 6 and'P.W 14 . .. .... • . . /5 -5- For, it merely viewed it as lending supportthe tc conclusion it had 0. reached. A fin Ung .n the matter cannot h.lwuvor--be re'chod in isolatin fr.rr the remaining aspect of the c:se presently to be c-nsider.2d, namely, whether the rer :vant bag had been interfered with before it reached the heal cfficc. he trial curt rejected the defence version

tht the production was put into four plastic-cum-nylch bags and that they were ;then I put into' one hag of cloth thi sealed therein. In doing SC it relied on the eviience of the four witnesses to •the weighing-in, th:e account of Mr0 KRISTEN when he s aid it was the' nrmal prc'ce.lure to put the prc:.uction in different c1'th bags acc rung to type and quality and lastly, en that c-f the qaneral manager/Mr0 KIMAN30 who said the AMICO appellant in .a letter to him hod state I the production was in four different bags. Taking the evidence :in that or -Icr, the four witnesses, as already noted, not ' nly c ,n,tradict.I themselves on 'a hunber of important details but the pclice statoments"f some of them are significantly at variance with th:lr':vii'ence. As regcrds the account of Mr. KRISTEN he was not himself at cith :r end at the cruciai.moments and he was only saying what the normal procedure had been and he wcudd not otherwiSe know whatha'l transpired in this cased As for the appellant's letter to Mr. KIMAMBO he appears to have state4i that the prcoluc'ti -n was in four,lifferont bags hut he -lid ht specify whether or 'not 'they were cloth bñgs. The c urt seems tr have clsseI cvr the evidence of P,W 6 and P.W 1:4 •h-n they sold learl'y, and c:ns"is.tently that the prdçtfon was in:pe'sticcum7nylon bags which were €han tpled aftd­ all put in one bag of cloth'. This was then

scaled up. That sharply ccntraI1ctcd all theoother prosecution evilep.ce anl the larned senior :res,ilo:nt, magistr - tE sn..uli, with respect, h"vo funl th't there may well have been four parcels put, tiel up an 1 s -'leI in ne cloth bag as the appellnt climI Coming'lastly to the alle t' that the partidUlar bg ppared to h.ve' :boen'tampered with ..it is': necessary to lck -:, --,- ain at the letter signI oy3t group f fur a dressed t tjR AZTZ. It states, int.r alia, that "the parcel was weil -bd up ai the Umba Mine seal noticeable." As regar s it the learned en-ier r.silent ragistrate observed:; As this letter was draftol..hy the first acèusedo th,e c':urt is satifie'J , ........ it was written in a wy'. ,.to explain th'6 loss by the first'acdused. -It tallies with the ILfLnce f the first accu.SEII .. an it istais)ind of coniuct n the part f • ,the firstaccuse:l,Which ... urthcr strengthens the finding that the firs,t accuse I st:l the , 1.1 grams I own the un 1 erlin3ng. I cannc t pretend t undorstan what the lrned senior resi lent m Igis rntd ha 1 'in mm I '.-- ', in r.eferenc, .t this part. If by conduct he had in mind the at of th apei1arIt in drafting the lett r its attribute I t him by Mr. THURM, tht with respct did not call f.r any a 1verse ck mmont. ' For,, he may well hove done hat"h'e thought it was his duty to - Ic namely, t hcve the letter wri ; tei in proper and

clear language. Be that as it may, the account of Mr. THURM is a little unconvincing when he says the ap;'ellant drafted the lottr f-,"r him. The lower court did ' not then deal specifically with the arguments before it in relation to the extract of the letter quoted'.above. In this.1.tter he says the Parc.el was properly secured and the Umba Mine seal was apparent. At the crucial moment all the four witncesses by this letter were saying, in fact, that it did not appear to them that the c nsignment had been tamper&:I with. Was it cpen to them thre:'.ears later t say it had been interfered with? I would think not. They thought then that s .-rne parcel may have been left behind at t e mine and they had no suspicion on the appellant. , . . /6 C - 6 .- Indeed; I would think that had they thought otherwise they would not themselves hove written the letters they would have akod the appellant himself to make the' inquiry and explain away the shortage. V S Mr. KRISTEN on his arrival from the.huntin' holiday a week later got report of the shortage but as he, too, did not suspect .anyone,'as he says, he neithe repor:d' either to the 'pOlice or to STAM'ICO nOr otherwise investigatd. The matter was allowed to rest at that until it came up again about two and a half years later ncirenEally to the s,hor±oges, among otherx giving rise to the other two countth in I the charge. •. It was no

seer€ that work relations batween the appellant and Mr. THURM since the former's assumption of the., duties of the general manager were at best sour. In. correspondence, between them) copied to oth ersj they would' accuse each; other of, incompetence,. mismanagement or even of outright fraud, and on one occasiOn the appellant decided to surcharge Mr. THURM for':the loss of some gemstones. To mentin two such correspondence, nn Nov vtbor 1973 the. appellant in a letter to M. TJ-IURM which he copied to two others complained of lack of 'adequate supervision of the staff on the part of Mr. THURM. He drew his' attention to a wide range of his, duties, ovdr which he alleged supervision was badly wanting.; 'A month 'latr Mr0 THURK in reply not only attempted to vinuioate himself out l5u mis d for the first time since 'August 17, 1972 the loss pf 1991 grams of 'blue sappl-iire grade 1 far whic# he alleged the appellant was respc,nsible', ImputJ.ng fraid t him he alleged that une of the haga had a '"ew sa'l and no marks' At no stage, however," had he previr'usly suggested' so. Accordingly,,, in view of the roar relathns between the two the eviience of Mr. THURM sh.uld have been received' with the greatest ëaution especially as the witnOs at the outset clide'not suggest the hg had hen tmp red w±th. It,is pertinent als, to point :but 'i4Oonclusien that thecompany despite measurs beiócj

taken to sp up the cçity f gomst 'os had / ly experienced big lsses in cirucmst-anccs which weio oJthgethr mystricus. The disappear'nce of th 199.1 gr s in th r>e yet an th r such circumst'nce. Ov0all,thre is c nsider ble doubt if the prticulr p mc 1 h been tampered with anocnsequentlyif thc. cp1lant had infct secn th gemst? nes being we h'ad-ThTht th mine0 There are, as I have att mptoi t sh-w, many t2nsat1sfct ry f aturs in the prosecuti n cvi 1 once and I am clear that the tn il curt on a proper evnluaticn of the evidence culi not or'prly have convict d. Accorlingly, the appol is allnwe', the convlctL'n -"no sentence being s t aside It is order d the appellant be forthw, th releose,l fr m cus tniy. Delivered in open court this 3rd y of Septenber, 176. ) -5- • For, it merely viewed it as lending support to the conclusion it had reachc:1. A fin ling on the matter cannc,t however be re'ched in I isolotin fr. m the remaining aspect of the case presently to he consider.o1, namely, whether the rel :vant bag had boon interfered with before it reached the hc' office. The trial curt rejected the defence version that the production was put intc four plastic-cum-nylcn bags and that they were then put into c'ne hag of cloth ani sealed therein. In doing sr it relied on the eiience of the four witnesses t' the weighing-in, the account of Mr. KRISTEN when he said it was the n.'rmal

procedure to put the pro uctic.n in different cl"th bags acc rung to type and quality and lastly, on that of the general manager/Mr. KIMAMBO who said the NICO appellant in a letter to him had sta±ei th production waS in four different bags. Takino the evidencç in that.o rder, the f'ur witnesses, as already noted, not nly c .ntradit..... themselves on a number of important details hut the 1D lice statoment f some of them are significantly at variance with th•:ir evidence. . As regards the account • of Mr. KRISTEN he was not himself at cith r end at the crucial, moments and he was only saying what the normal procedure had been and he would not otherwise know what hai transpired in this case. As for the appellant's lotter to Mr. KIMAMBO he appears to have state that the proiucti .n was in fcur lifferent bags huthe -lid not specify whether or not they were cloth bags. The court seams ', hnVè°jlosse1 over the evidence of P.W 6 'and P,W 14 when they sal clearly an cnsistently that the pr uction Was in plastc-cum-nyIon. ,Hags which wore then stapled and all put one ba.f cloth. 'This was thensealel up. That sharply contradicted all the 'other prosecutienevi 'ince an 1 the learned senior resident magistrte sn cli, with respect, hvo f uni tht there may well have been four parcels put, ti O.J up an saloi in no cloth bag as the apell -iat J1m Coming lastly t' - tb i1eg.aih thit 'the

.particil.ar bag 'appeared t have hoentamprd ith it is necessary t lk ajain at the ltter siqn I y the group °f ur a Iresso tc dR AZIZ. It states, intr that "the parcel wasw il €id up ani the Umba Mine seal noticeablo." As regar s it the learre1 eziirc' resident magistrate observed; As this letter was draf to by- th. first accd the c•:urt issatisfie,1 ,.,.....it'wns written in a to exlCin the loss by the first accused. It tallies with the 'lefenceo'f the-first accusE: -i ..... anir'i-t4s this 1t±CI of c n luct n the part';:.f the first acused which further J ., . strengthens the findne that the fist accuse I stole 'the .199.1 graths I'*in the underlining. I'cnc.tpretrid t urierstand what the learned seni r resi Int magistrate h i I in nan I in rifLrenc t this part. If by c nluct ho ha'4 in mini the act f the a1i 1 ellant in irafting the lett,:r s attributed to him by Mr. THURM, thht 'with rsjuct did not call for anyaiverse cmmerit. For, he may well hve-doh'o what he thought it was his duty to dc ziamelly -i t., have the ltter written in proper and clear lnnguag. Be that as it may, the Punt f Mr. THURN is a little unconvincing when he says the ap'ellant drafted the lettr fr him. The lewot,cc:urt lid not then deal specifically with the arguments before it in rel'atin to the extract of the letter quoted'above. In this1 ter he says the parcel was properly secured and the Umba Mine

seal was apparent.' !t the crucial moment all the four witnesses by this letter were saying, in fact, that it did not appear to them that the c nsignmcnt had been tampered with. Was it cpen to them threeears later t° say it had been interfered with? I would think not. They thought then that s :•me parcel may have been left behind at tie -mine and they had no suspiclan on the appellant. . . . /6 Indeed i I would think that had they th:uaht other'wiso they would not themselves hove written the letter; they woulçl hove asked the appellant himself to make the inquiry and. explain awythe shortage. Mr., KRISTEN on his arrival fron the hunting holiday a week later got I report of the shortage but as he, too, did not suspcct anyone s he says, he neither reported either to the plice or to STA'IICO nor o±herwiseinvestigatod The matter was 1lod to rest at that until it came up again about two., and a half years letir ipciden.tally.: to the shortages,• among. othe giving rise to th . other two counts in the. chbirge. . . . It was no Iedrdt that work relations between the appellant and M. THURM since the former's assumption of the duties of the general mahager were at best sour. In correspondeiace between the5 opiéd to othersj they would accuse each other of incompctence, mismanagement or even of outright fraud, .. and on one, occasion the appellant decided to surcharge Mr. THURM for the

loss of some gemstones. To'mention two such correspondence, on November1973 the appellant in;a, letter to Mr. THURM which he copied totwo ethers complained.:of lack of adequate supervision of the staff on' the p±t of Mr..THURM He.. -drewhis attention to a wide range of his duties over which he alleged Supervisic.:n was badly wanting A month latr Mr. THURM in reply not only atterripted to vindicate himself but also raised for the first time since August 17, 1972 the loss, of 199.1 grads of blue sapphire grade 1 fe Whic he alleged the appellant was repcnsible. Imputing, frd to him hd alleged 'that ne of the bø,.h'da: 'i"!iw seal and. no marks' At no stage, however, had ho:previxeiisly suggostad,so. . Accordingly, in view of the poor relations between the two the evilence of Mr. TI-fURM sh uli have hen recivLd with the greatest caution especially as the witness at the outso.t did not sugest the hag had 'baen .t?nparedth. ±. 0 It is pertinent also to point put in conclusion that the conpany i- despite meesurcs being ta)cn tc step up th cçm-ky f jemst rcs had / ly experienced big lasses in cirucirstanc cs which wrc -'1 thgethr mystricus. The disappearance of th. 199.1 çjr 5 in thi yet an th r such circumstnce. Ovall4thr0 is c nsier ble doubt if the particular parc 1 had been tampercrl with andccnsequently,if th. appellant hTh infact seen the gamst ns being weighed-in at the mine.

ThLro are as I have att mpt i tr., shw, many i,ansatisf act ry LL aturs in the prosLcutl n cvi 1 once ani I-am clear that tho trl ceu.-t--en- -a proper evaluaticn of the eide ecuLl not orrperly have crnvict d. Accordingly, the appeal is allowed, the conviction ana sentencQ beinj s .t aside. It is order d the appellant be f -e-thwath elnsed fr.m cus tr 3y. Delivred in open court this 3r Thy of Septenber, 176. P.M. JONATHAN,.

JUDGE V