19840508 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CRIMINAL APPEAL NO;. 49 OF 1982 B E T WE B N WILL:C,I\M MISSANA o. • o o • 0 0 0 0 • 0 ~ 0 O O • 0 APPELLANT THE REPUBLIC e O O O 0 0 0 0 0 ~ 0 0 0 •· Rf.:SPONDENT (Appeal frorn the decision of the High Court of Tanzania at Mwanza) (Munyera, J.) date?d the 30th day of September, 1982 in Criminal Appeal Noo 94 of 1982· JUDGMENT OF THE COURT .- This is a second appeal by WILLIAM MI SSA.NA wh,o was c<;mVi<=J:ed of stealing' by public servant a large amount of ·drugs from the Mwanza Zonal Medical Storeso His first appP.al to ~the High c.aurt was dismissed by Munyera, J., hence this apJ~al before tis. He appeared in person, wh-ile Mr. Tendwa;+ •'l'e~rned State Attorryey, resisted the appeal on behalf of the? Republic. At the material time' the. ;•ppell~nt• was a storekeep!;:!_r, . . . . 1n charge of Class 8 Store at the Zonal Medical -Stores. I t wa~. from Class 8 Store, under his· charq·e, that. several thousands of. PPF and PAM vials were found- to have been stolen.. The ·ap,Bellaht: defended himself at some great length but the learneq trial m~gistrate was satisfied th~t he was the thief,"~onvic~ed him, sentenced him to 'five years' imprtsonment and ordered him ··1.",.i to refund to the Government the va).ue of .. the medicines ·hot recoveredo 2 'I'he appellant file? a long and verbose Memorandum of Appeal and he .was quite long-windea .i.1, courto . What he accomplished at the end of the day was only to challenge some of the findings of fact and the conclusions found to be flowing fro_m them. No points of law were raised~ From the acreage of evidence, and despite the appellant's efforts to nibbli:=.- at details, the following uatters stood ou'l:: in sharp relief: Thr1t when the appell,rnt took :)Ver Class 8 .store from ELIAS AZARIA in June 1980, he was sat:i. ,fied that eVeryJhing was in order - there were no medicines missi r1g, and that aftP.r the appellant had reported, on 13th Octob•~r, 1980,, that 11.is- ' store had been broken into, the drugs now 'Jlleged to· hav~ been stolen were found to be mis 3ing. It was established 2lso that Class 8 store had not been broken into, that the appellant.was in sole custody of the two J·:eys to Class -8 Store, that prior to the "discovery of t::.e t~,c · tl:·'2 appellant had gone round warning various people of ar, impending theft from the medical stores, and that during the c )UCS•.:? of the investigations that f'ollowed, the appellant led tJ.e police to a store .t"oom belonging to the Regional Medical Of fie E in town where, he said 9 the stolen medicines were; and where inde :d some medicines~ prcved to be part of the lot stolen f:::-om Class 8 St~re, were retr:i.eved fromo P oW o4 WILLIAN RUTABANZT.B\•A \·las the man over-a:'. l · in charge of .the Zonal Medical Stores ,:·:-,<l as sucl) the appella;,tr s superior officer... a portion of {:he fence surroun.·::, :::g the stores had been broken and that some bottles of Dettol ha;· een stoleno He went·there to check. He fcund this to be b 'J · and 'als~ noticed .that norie of the stores appeared to have ')' m interfered with. He went to make a report to. t:he police ,n :l · ~he fo:powing day two pol;i.ce offic;::ers, inclui;Hng P oWo 1, came b i,,nvestigate.o • 3 11,.,-15 :ao"!o ,tj,-aj: :the -:appellant showe;d up and :reported .. .,.., ' . that ·H'i:s store had also . been· broken 'into and ·-that he had notice·d .±:hat '1 . ., . ..,, ••• ' •. :. • • • • '·. • •. -:· at 7.~0 aom. . 0 when·he.ci'lme . ~. to work.o The·Police and P.W 0 4,.in the comp_any o_f ,the appel:lant, went to che.ck -Class 8 Store and found no _sign of breakingo PoWo1 supports :the .evidence of PoWo4 on this, as he do~s al-so PoWo4' s evidence that P.Wo4 checked the cont~nts of ·the store, aft<=:r the appe·1.lant had _open~d/t wi_th the keys .in his po·ssession and ordinarily in hi_s __c":lstody, and had said th;:it some medicines were mis~:ingo LWo4 found _the. drugs . ,i • • ' ... ~ indeed mis sing o In court the appellant de~ied_ha~ing • • •, : • • • .told J : • anyone •• ~-t· ' . that his store had been broken into, and re:ruted having .. : p-roquced his keys for P.Wo4 to check the storeo He said _that .if P~~-o4 checked Class 8 Store it must have been _in his, the appe:ila1\t;' ~, absence, when he had already been taken away by the l?qliceo The learned trial magistrate was satisfied ,: that . :· P.W .. .1 and PoWo4 . t9ld the truth about thiso Like the trial court, the first : . . ::.· . : . ... :, . : .... •, _ ; appellate judge was satisfied that becnuse the ~pellant kept the only two keys to the store, and bec,rnse there t,·ad 'been no breaking, no one but the appellant himself could .have ·.. gained ::; .. ·,. ingresso We are satisfied that the finding ancf the re?son_ing was soundo Before us the appellant tr~ed to W.tJgg;le ou~ of tris by capitalising on PoWo7 1 s asst:!rt~~~ that he g~~ a ~adlock from PoW.4, and sought to fortify from ~is his insinuative ·.. . •·,:,; ·. :.- : assertion • that the opening of the store was done in his absenceo • jl~ • , ':... • . •• ' The appellarit opened ·in the pres-encE of P ~ W, 1,. ::.""'.'rl P ~ Wo 4, so ~n t the ·: fact does not detract from the tn,t~ of the incident as testified to by the two witnesses. o o • e/.4 Bef°ore us .the· appE!l lant ·spent sotr'le-: a,rgument about -~he . :. ·. dettoL stolen. We fail to unde.rstanci · the ~elev a nee, _because,. whether the antiseptic· was being kept outside in the open, _or inside Class 9 Store, it had no.thing ·todo with tne appellant's,_ Class 8 Store. The appellant made another naughty_suggestion, which ha~ failed to impress ·us., and it Ls( this,·., .t~at because P.W,;4 wrote Exhibit 11,. the letters to the two watchmen,. MKONGOMASI and JUMA, P.W.4 mui;t have h 9 d: inside knowledge. of,. the theft for otherwise how would· he 11,ave. kµown that:. th_e tpE?f;1:; was on 12th October, 1980. We do no'.t tak~':-the ap·pel_lant's. contenti-~::m seriously, for quite o,bviously,, what P.• w.i4 was sayihg fn D11 was that· the di~appeatance of. tt\e. qrug,s_ had l?~!cm·, discovered iin~edi'at.el:y after the 12-t}1/13th October, . . ·, 19.80-, nigpt,. whi,ch j,s a fact. The forego;ng,. and· the warnings th~ anpella~t w.as (ji,~h~tW 94t tq. people about an fmpend:tng theft;~ we~e quite pr.oper:l,y t.ake,n i,ntq ac;,9qun1:. ¼I.hen· tl:le fact that the. appellan-t:: le? th~ P.o:p,.c;::~ to· wh.ere ~ porti,q~ qf. the bc:>bty was, ·was being co.nsi<'.ie.q:~q~ '.fhe ~B:P~;l,~~~t aia ··n~·t. qe~y. t:hat he l·ed the police"' to where jµxh;pit Pt ~~¢ ~xh:!bi..t P2 we·re '1:etrieved from. He said, howev-er, tq·qt h_e was. ~ofhg ::'so- as· a gqqd ;c'itz¢b, :t-,aving learnt of :the fc;1ct f;rom h{§ ·c~·.;;acqu,?,Aq, ·1,:ie'rs6ns \llh~le 1ti rema.r'td ·c\rstod:Yo f-Ie :5ays ·_ ', ·.,1-.1: .; ·.. ,,• he wa·s bf <;:ours~ also personally 1nte,re·sted .;because he believed t,hat the discqve.ry of the drugs and •the appr~he'tision cf :the .,real ~'Qtili:s'.tits would ..lead to his being cie·ared. He )submitted also that ~'he. ~ould have to 'be 6i'.it of ·ha:s mi-hd .to ta·ke -the trouble and .• risk o:f :·~tE~aling, ·a·nd th~n · showing the -p6lice ·iJher~ :the ·m~<li•cines were 0 We have . considered ··this, ·and we ttttnk ·we have, the answer. He 0 0 0 ~/5 5 - to believe that he. would not be chFJrqed and prosecuted if h~ ~ .co-:-operc!ted with the Police. Tw. o, it is not without signi:ficance .H:., ... , , , , ~ '"IW /,_,.,- - - j._ that tl)e drugs recovered were only a .small fraction of those ~~~ stolen. It SP.ems possible that, once the appellant knew that the ·grass would soon start burning under his feet, he contrieved to hide some of the drugs, and then lead to their discovery, as a ruse designed to throw the police off the scento It is the same deceitful and cunning mind which went rou.nd preparing the ground for a simulated theft by announcing an impending breaking- intoo He never said, here or in the courts below, how he got to know that there was going to be a theft. We now wish to make a little remark about the appellant's assertion that some highly placed individµals had been trying to seduce him so as to recruit him into a drug-stealing xeracket. We are unable to say th3t Vlis is necessarily untrtieo What we, however, can confidently say, and we do, is that,~ as the first appellate judge also remcirkec1 , the truth or otherwise of the allegation cannot detract from the fact that the charge against the aDpellant, on his part, was proved beyond reasonable doubt. · We are of the view that the concurrent de<::is:!,.on of the courts below was jus·t and sound, '3nd t'1at this appeal h·as no merit. ,Consequently we dismiss it. · The learned trial maqistr:1te made a rather inderminate order regarding· the· amount of money t:,e appellant is req-..::.::·2d to pay to the Government ror the medicines not recovered. vve would have wished to put this right ourselves but for the fact the sums given seem to defy our arithmetic. We think that the best thing, in the circumstcinces, is for the trial court to inform itself better if ;-:1<?cessary, nnd order a specified sum of money to be refunded by th, appellanto We so order 0 Lastly, we note that the appellant's co-accused, FRANCIS MAHINGULA and JOSEPH NYANGULI were acquitted 0 Of Mahingula, 6 for ~xampl-et. th~ lea~ned . \,. . tr!al magistra.te said 9 ."I say the ' ~ . ~ircurns:tance~ . are such that he was one of the thieves but the ... evii:}enc:e. ·. .· ·. . agains,t .. . . ' : ' ~ ; him. ·. .. . is- not £001 proof". We are not. sure that w~-u~cj~ri;tand-whr1t.is.in:tended •',... . .. ., '· . . .by . such an unusual remark. We ean only say that .the required apd sufficient standard of proof is "beyond reasonable doubt", and none other. We find the acquittal of the two people charged along with the appellant •· rema'i:'kable and truly. surprising. DATED at MWANZA this 9th day of May, 1'}84o F. L•. NYALALI CHIEF JUSTI~E ., ~--.._..... R. Ho KISANGA. ~ C E OF APPEAL I ee.J:"~tfy that this L· a truELCPPY .of .~J-le ·o;:iginal.: ✓-,,~..-·---......._~ .,: ~\ /-:·~'-~~*~~;, .. ( ... ,. . . \~. .---••"·-:--- '" -..::¾ . ,. , ,.,. . ,.