zahoro shilinde vs republic 2022 tzhc 15847 21 december 2022

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IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA CRIMINAL APPEAL NO. 26 OF 2022 ZAHORO SHILINDE ..............•....•.••••.••••••.•••••.•••..••••.•.. APPLICANT

VERSUS REPUBLIC ..•..••• II ••••••••••••••••••• II ••••••••••••••••••••••••••••• RESPONDENT [Appeal from the Decision of District Court of Shinyanga at Shinyanga.] CHon. U.S. Swallo PRMl dated the 14th day of March, 2022 in Criminal Case No. 24 of 2021

JUDGMENT 24th August & 2pt December, 2022. S.M. KULITA, l. Zahoro Shilinde, referred to as the Appellant in this appeal, was Charged in the District Court of Shinyanga for stealing by agent, contrary to the provisions of section 273(b) of the Penal Code [Cap. 16 RE 2019]. It is in the particulars of offence that, on the 17thday of August, 2019 at Ibadakuli, Jambo Company industry area, within Shinyanga municipality, the Appellant, being a Sales Agent for Jambo Food Products Company 1 Limited did steal Jambo drinks products valued at Tshs. 32,328,000/=, the property that had been entrusted to him by the Director of Jambo food Products Company Limited. In a nutshell the prosecution case as was unfolded by its witnesses is that, on 17thAugust, 2019 being a salesman of Jambo food products, the appellant was entrusted with Jambo drinks products valued at Tshs 32,328,000/ =. The appellant was required to sell the products and deposit money into Jambo accounts within seven days. The record reveals that, the appellant sold the said products at Kigoma while witnessed by the vehicle Driver (PW5) and disappeared without depositing the said money. The loading slip was issued by the Director of Jambo and witnessed by other employees including the Store Keeper (PW4) and the Security Officer (PW3). After a long time has passed without the appellant depositing money into the victim's account,

the company, through their Marketing Officer decided to go to Kigoma. At Kigoma, it was verified that the appellant had sold the products and left into vain with the sales proceeds. On that account, the company resorted into reporting the matter to police station. Hence, the appellant's arrest and arraignment into court for the stealing by agent offence. 2 Though the appellant entered plea of not guilty, after the trial, he was accordingly found guilty, and upon conviction, he was sentenced to a five years imprisonment. That was the 14th day of March, 2022. Aggrieved with that decision, the Appellant preferred the instant appeal on seven grounds which may be summarized as follows: One, the trial Magistrate erred to proceed with a case while the appellant had rejected her. Two, the trial Magistrate erred to admit the exhibit brought by PWl who had finished testifying his evidence and was recalled. Three, the trial Magistrate erred to admit the contradictory evidence on whether he was a sales man or agent for Jambo. Four, the trial court convicted the appellant relying on a defective charge which failured to cite section 265 of the Penal Code. Five, the trial court failed to give the appellant his right to appeal. Six, in its conviction the trial court wrongly based/relied on the agreement/contract with no expiry time limit. Seven, the caution statement was not tendered to court

to corroborate the prosecution case. The Appeal was heard on the 23rd day of June, 2022. On that date, the Appellant appeared in person whereas the Respondent, Republic had the service of Ms. Gloria Ndondi, learned State Attorney who resisted the appeal. 3 Submitting in support of the appeal, the appellant decided to adopt his grounds of appeal as his submission. In reply Ms. Ndondi stated that they resist the appeal as the case at the trial court was proved beyond all reasonable doubts. As for the first ground of appeal, Ms. Ndondi stated that the same is meritless. She said that, the reason that the appellant had advanced for the trial Magistrate to withdraw herself from entertaining the case was unreasonable. She said that under section 147(4) of the Tanzania EvidenceAct [Cap 6 RE 2019], the trial Magistrate had powers to recall a witness who had already testified before. She insisted that, as the appellant utilized his right to cross examine the recalled witness, then no rights were infringed. As for the second ground of appeal, Ms. Ndondi admitted the appellant's argument that Exhibit PS was tendered while it was not mentioned during the Preliminary Hearing. She however stated that the same is not fatal as per section 192 of the Criminal Procedure Act [Cap 20 RE 2019]. To buttress her assertion, she cited the case of Jackson Daudi vs. Republic, Criminal Appeal No. 111 of

2002,. CAT at Mwanza. 4 As for the third ground of appeal Ms. Ndondi stated that, there was no contradiction at all on whether the appellant was a sales man or agent for Jambo Company. She gave the reason that exhibit P5 provides for the appellant being a Sales Agent as well as Salesman. She added that, the records transpire that the appellant was agent for sales of Jambo products. She went further stating that, the prosecution had just to prove that the appellant was entrusted with goods as an agent. To her, she said that, it was well proved that the appellant was entrusted with the victim's goods and subsequently stole them. It was assertions of Ms. Ndondi that, according to the case of Christian Mbunda vs. Republic [1983] TLR 340 the case was proved as against the appellant. As for the fourth ground of appeal Ms. Ndondi stated that, the charge sheet is not defective for non-citation of section 265 of the Penal Code. She gave the reason that, section 273(d) is independent as it provides for the offence and penalty collectively. She added that, section 265 is cited for theft offences where the penalty is not provided for. She thus formed the opinion that, non-citation of it is not fatal. As for the fifth ground of appeal Ms. Ndondi admitted that, the appellant was not told his right to appeal. She then stated that, that did not prejudice the appellant in anyhow. She gave the

reason that, just two 5 days after the judgment being delivered, the appellant was able to file his notice of intention to appeal, which was followed by this appeal. Hence no any prejudice to the appellant. As for the ground number six that the contract which the appellant had entered with the victim had no expiry date, Ms. Ndondi stated that, the said argument has no merit. She averred that, that was not an issue at the trial court. She added that, had the appellant intended to shaken its credibility he would have to do so during trial at the District Court. As for the seventh ground of appeal Ms. Ndondi submitted that, during trial, the prosecution side was not compelled to tender the caution statement as exhibit. She added that, even in the Preliminary Hearing the records show that the prosecution did not intend to tender it as exhibit. In rejoinder the appellant just reiterated what he had submitted in his submissions in chief. That was the end of both parties' submissions. I have taken into consideration both parties' submissions, the referred authorities, available records and the rival issues as well. I am prepared to determine the grounds of appeal one after the other in seriatim. 6 On the issue whether the trial Magistrate wronged when she denied the prayer by the Appellant that she had to withdraw herself from entertaining the case, I have the following ta say; the

record is vivid that, PW1 was recalled and his additional evidence was taken by the trial court. Thereby the appellant was given, his right to cross examine. Further, the record reveals that, after noting that procedure, on 9th February, 2022, the appellant prayed the trial Magistrate to withdraw herself from entertaining the case. The record is further vivid that, the trial Magistrate refused to withdraw herself from hearing the case. The issue is whether it was proper for the trial Magistrate to refuse the prayer that sought her to withdraw from the hearing the case. It is not in dispute that under section 147(4) of the Evidence Act, the court is empowered to grant a prayer to recall any witness for additional evidence. But, when such power is exercised, parties must be given right to cross and re-examine. As per records the said rights to parties were actually given. The said section provides; "The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination and if it does so, the parties 7 have the right of further cross-examination and re- examination respectively. The excerpt above confirms nothing but, the fact that what the trial Magistrate did was permitted by the law. On that account, there arises an issue as to whether, the trial Magistrate should have recused from entertaining the case. According to

the above cited provision, in allowing the re-call of the witnesses who had already testified the trial Magistrate was utilizing the powers given by law. In tackling that issue, the appellant made reference to the case of Zabron Pangamaleza v.Joachim Kiwaraka & Another [1987] TLR 140 (CA). Among the holdings the Court of Appeal made in respect of that issue are the following; 1. ''Justicemust not merely be done/ but must be seen to have been done. The safest thing to do for a judicial officer who finds his integrity questioned by litigants or accused persons before him/ is to give the benefit of doubt to his irrational accusers and retire from the case unless it is quite clear from the .' i, ' surrounding circumstances and the history of the - ; case that the accused is employing delaying tactics. " 8 2. ''By insisting to hear the case against such strong opposition and proceeding to dismiss it, the magistrate not only confirmed the appel/ant's worst fears of his having a personal interest in the metter. but also amounted to an error material to the merits of the case involving injustice to the appel/ant" It seems that the above quoted excerpt of the case which was reported in the year 1987 suggests that, whenever a Judicial Officer is required by a party to the case to recuse, he or she must not weigh the reasons, but should outright follow the what so called the safest way of

disqualifying herself/himself from entertaining the said case. However, in the year 2016 the same court, Court of Appeal of Tanzania, in the case of Issack Mwamasika vs. CROBBank Limited, Civil Revision No.6 of 2016, CAT at OSM subscribed fully to the holding made in the case of Laurean G. Rugaimukamu v. Inspector General of Police 8r. Another, Civil Appeal No. 13 of 1999 (unreported) where it was stated as hereunder; 'f1n objection against a Judge or Magistrate can legitimately be raised in the fol/owing circumstances: One, if there is evidence of bad blood .between the 9 litigant and thejudge concerned. Two, if the judge has close relationship with the adversary party or one of them. Three, if the judge or a member of his close family has an interest in the outcome of the ligation other than the administration of justice. A Judge or a Magistrate should not be asked to disqualify himself or herself for flimsy or imaginary fears. " In this case, the same court gave criteria for the Judicial Officer to disqualify from entertaining the case. It however put emphasis that flimsy or imaginary fears should not lead to the disqualification. In essence, that case gave power for the Judicial Officer not to automatic disqualify himself/herself whenever is required to do so by the party to the case. That stand has been cemented by a recent Court of Appeal decision of May, 2020 namely

Omary Said @ Mami and Another vs. Republic, Criminal Appeal No. 99/01 of 2014, CAT at DSM. In it the Court of Appeal when refusing to reconstitute a panel held as hereunder; - "The prayer to have the Panel reconstituted did not attract us because we had the view that the reasons advanced by the appel/ants were trivia/. We did not 10 think that reconstituting the Panel on shear apprehension of fear that the appellants would lose the appeal would be in the interest of justice.··If anything, recusal on trivial grounds would be tantamount to abdication of our calling" While arriving to the above holding the Court of Appeal subscribed to their earlier decision in the case of Registered Trustees of Social Action Trust Fund and Another v. Happy Sausages Ltd. and Others [2004] TLR264 where it was, held inter alia, that; "It would be an abdication of judicial function and an encouragement of spurious spptcstons for a judicial officer to adopt the approach that he/she should disqualify himself/herself whenever requested to do so on application of one of the parties on the grounds of possible appearance of bias. " With the whole above discussion and the dictates of the above quoted decisions of the Court of Appeal, I find it that, it was proper for the trial . Magistrate refusing to recuse herself. Otherwise, allowing Judicial Officers . to recuse themselves even when they are utilizing

the powers given to 11 them by the law of the country, is indirectly allowing the parties to the case to shop for the judicial officers they want. This should not be allowed. In the second ground of appeal, I will endeavor into dealing with the issue whether it was fatal for the court to admit the exhibit which was not introduced before, during the preliminary hearing. The remaining part of this ground of appeal has already been covered when I was determining the first ground of appeal. The record is vivid that, the trial court admitted exhibit PS which is the agreement between the appellant and the victim, Jambo Company. the record is vivid further that, the same exhibit was not mentioned in the preliminary hearing. It is not in dispute as it was held in the cited case of Jackson Daudi (supra) that, the main purpose of a preliminary hearing under section 192 of the Criminal Procedure Act and Rules No 4 and 6 of the GN No. 192 of 1988 is to speed up the trial and minimize costs in the criminal trials by concentrating to the disputed matters only. After the Preliminary Hearing, parties to the case concentrate on matters which are in dispute only. As the record shows that the appellant during preliminary hearing had disputed being employed by Jambo Company, then this became an issue during trial whereby the adverse party ought to have concentrated' in proving that the appellant

was the employee of Jambo Company. With 12 that in mind, tendering an employment aqreernent, a document that was not listed during preliminary hearing is as equal as concentrating to prove on matters that are in dispute. The same is not fatal and never prejudiced the appellant anyhow. Basically, that was a right procedure as it was held in the cited case of lackson Daudi (supra). Concerning the third ground of appeal that there is contradiction on the prosecution case particularly on the aspect that the prosecution witnesses called him a sales man while the tendered contract of employment calls him an agent for Jambo, I have the following to say; it is not in dispute that the trial court's records provide that, all prosecution witnesses named the appellant as the Salesman of Jambo products. Yet, the same witnesses testified to the effect that, on 17th August, 2019 the appellant was entrusted with Jambo Products valued at Tshs. 32,328,000/= who went and sold them at Kigoma and the appellant was required to deposit the sales proceeds to the victim's account but he did not. When you leave alone the contract which the appellant agrees it naming him as an agent of Jambo, that above testimony of the prosecution witnesses, for whatever name they called the appellant, proves nothing but, principal-agent relationship. I see it that, the alleged contradiction is not there and if it

exist, the same is very minor. It doesn't 13 go to the root of the case. In applying the overriding objective principle such argument can be waived as I hereby do. Concerning the issue of whether the appellant was convicted under a defective charge for non-citing of section 265 of the Penal Code, I have the comment that the counsel for the respondent was of views that, the charge was not defective. She argued that, section 265 of Penal Code is used to be cited for the theft offences where punishment is not stipulated. She correctly said that, it is unlike in the stealing by agent offence where section 273(b) of the Penal Code provides for the punishment too. In addition to the submissions made by the counsel for the respondent of which I concur, the aim of the charge sheet is to inform the appellant the nature of the offence that has been charged against with. The elements for the offence of Stealing by Agent, all are contained in the charged section 273(b) of the Penal Code. That, the appellant was an agent of the victim, he was entrusted with the victim's products to sell and return the proceeds of sale and lasty he stole the same proceeds of sale. , : Further, the particulars of charge sheet are clear as they contain all the elements of offence of Stealing by Agent. The same informed the appellant that he was agent of Jambo Company, he was entrusted with 14 Jambo products

and that he stole the proceeds accrued from the products sale. With that stand, this ground of appeal is meritless. As for the issue of not telling the appellant his right to appeal Ms. Ndondi admitted it having been done by the trial court, yet she had the view that the same is a minor defect as the appellant was not prejudiced in anyhow. She gave the reason that, inspite of that, still the appellant managed to file his Notice of Intention to Appeal within time, just two days after the judgment being delivered. The said act was followed lodging of this appeal by the Appellant. I have gone through the impugned judgment and the proceedings, the same confirms the appellant's allegation that the right to appeal was not conveyed to him. It is equally true that, the impugned decision was delivered on 14th March, 2022 and the appellant lodged his notice of intention to appeal on 16th March, 2022, just two days after the decision being delivered. As the law requires the appellant to be addressed of his right to appeal, not telling him is irregularity, but for this matter, I find it so minor. The appellant has not been prejudiced in anyhow, because he managed to lodge a Notice of Appeal just in two days from the time that the impugned judgment was delivered and later on instituted this appeal timely. 15 Concerning the appellant's conviction basing on the employment contract that had no

expiry date, I concur with Ms. Ndondi, State Attorney that, the appellant never raised such argument during trial at the District court. Also, it is not true that the whole conviction of the appellant based on the employment contract. The contract was there just to corroborate the testimonies of prosecution witnesses on the Agent-Principal relationship that the appellant had with the victim as accrued from the testimony. As it was so testified during trial that, on 17th August, 2019 they witnessed the appellant entrusted with the products of Jambo Company. That, the said Appellant left and sold the products at Kigoma, but ran away with the proceeds of sale that he was required to return to the Company. Therefore, the conviction did not only base on the contractual relationship that the appellant had with the victim, but on other matters as well. Concerning the issue that, the appellant's Caution Statement was not tendered to court to corroborate the prosecution evidence, I concur with the submissions by Ms. Ndondi, State Attorney that, prosecution side " ." is not compelled to tender to court every exhibit it possessesfor its case. : =' Just like in a number of witnesses to testify in court. It is upon the ., :' . prosecution side to see and decide which one should be produced to court 16 in order to prove its case at the required standard. This ground of appeal also fails. All

said and done, as long as the appellant's grounds of appeal have !. failed as discussed, I find no point to fault the trial court's conviction. As for the sentence aspect, upon considering the fact that the appellant spent all the time, about one year in custody during trial of the case, and so long as he is a first offender, the trial court ought to have considered those grounds in sentencing the Appellant. I find it appropriate that the trial court could have penalized him to the lesser penalty term of 3 (three) years' imprisonment, and I hereby substitute it into that. The already spent jail duration is within the three years imprisonment term that I have substituted. In upshot the appeal is partly allowed to that extent. ftL- S.M. KULITA

JUDGE 21/12/2022 DATED at SHINYANGA this 21th day of December, 2022. 17 .., '. , "."" itL S.M. KULITA

JUDGE 21/12/2022 I ,'II ,. , ·'1' .". ,I I i 1 '

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