PASCAL MWITA AND TWO OTHERS v REPUBLIC 1993 TLR 295 (CA)

 

PASCAL MWITA AND TWO OTHERS v REPUBLIC 1993 TLR 295 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Ramadhani JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 124 OF 1993 G

14 December, 1993

(From the conviction of the High Court of Tanzania at Mbeya, Mchome, J.) H

Flynote

Criminal Law - Theft - Stealing by agent - Penal Code - ss. 265 and 273.

Criminal Law - Theft - Accessory after the fact of stealing - Penal Code - ss. 387 and

388. I

1993 TLR p296

A Criminal Law - Theft - Receiving stolen property - Penal Code - s 311(1).

-Headnote

The first two appellants were convicted of stealing by agent by the District Court and

sentenced to three years' imprisonment while the third appellant was convicted by

the same court of receiving B stolen property and he was also sentenced to three

years' imprisonment. They all appealed to the High Court which upheld their

convictions and sentences. They appealed further.

Held: (i) The first and second appellants were properly charged with the offence

of stealing by C agent and were rightly convicted by the offence as charged;

(ii) There was ample evidence in support of receiving property knowing it

to have been stolen in respect of the third appellant;

(iii) The sentence of three years imprisonment is not excessive bearing in

mind that the maximum penalty for such offences is ten and seven years

imprisonment D respectively.

Case Information

Appeal dismissed.

Cases referred to:

1. R v Erunasoni Sokoni s/o Eria and Another [1947] 14 EACA 74.

E 2. R v Nanji Sunderji [1935] 2 EACA 130.

Sengwaji, for the Republic.

[zJDz]Judgment

Mnzavas, J.A., read the following considered judgment of the court:

F The three appellants were jointly charged before the Mbeya District court with

four counts. The first and second counts are stealing by agent c/ss 265 and 273 of the

Penal Code. These faced the firstt and second appellants. The third count was being

accessory after the fact to stealing c/ss 387 and 388 of the Penal Code. The fourth

count was receiving stolen property c/s 311(1) of the Penal G Code which was in

the alternative to the third count. These two counts faced the third appellant before

this Court and one Jumanne Nyagawa, the third accused in the District Court who

was acquitted.

H The following facts which led to the arraignment of the appellants were not

seriously disputed:

The first and second appellants were at the material time employees of the Anti-

Corruption Squad and were based in Mbeya. In September, 1990 they were in

Sumbawanga on duty. On information received they, on 24/9/90, searched the house

of one, Emmanuel, Simba who they suspected to I have in his possession illegally

acquired property. In their search they found Simba in possession of

1993 TLR p297

MNZAVAS JA

Shs 1,000,000/= cash. They brought the money with them to Mbeya for further

investigations. On A arrival in Mbeya they briefed their boss one Victor Mimbe,

(PW9), about the money and Simba's explaination that the money had been sent to

him by a businessman in Dar es Salaam to buy maize. After hearing from the two

appellants their boss ordered them to return the money immediately to Simba in

Sumbawanga. They returned to Sumbawanga on 20 September 1990 and, B

according to the evidence of their boss, PW9 when asked about the money by the

Regional Police Commander in Sumbawanga they told him that they had handed

over the money to their boss, PW9, and that it was now in the Anti-Corruption Squad

office in Mbeya. It was after this information that the RPC. in Sumbawanga ordered

the arrest of the first and second appellants. C Soon after their arrest PW9 received

a telephone message from Sumbawanga asking him to go to first and second

appellants' houses and collect Shs 700,000/=and Shs 300,000/= respectively from their

wives and take it to the office of the Anti-Corruption Squad in Mbeya. The two

appellants' D houses were searched. Shs 680,617/= was found in a big suitcase in

first appellant's house but no money was found in second appellant's house.

After the appellants were brought to Mbeya they, on interrogation, said in their

statements they had E kept the money in their houses - (Exhibit P.5.). In their

defence before the Court of first instance both the first and second appellants denied

that they had committed the offence. It was their defence that there was bad blood

between them and police officers in Mbeya because at the F material time they

were investigating the RPC Rukwa, one, Omari Mahita, on an allegation of

corruption and that they were in the process of traping the Rukwa OC-CID, (PW2),

who was about to receive money as corruption but that the trap leaked. It was

because of this enmity that the police in Sumbawanga decided to tell lies against them

so as to cause them their undoing. The two G appellants also told the Trial Court

that they decided to keep the money in their houses after they had failed to get

reliable transport from Tunduma to Sumbawanga and that they found it unsafe to

remain with such big amount of money in a guest house in Tunduma. H

As for the third appellant, (fourth accused in the District Court), the prosecution case

was that on 1 October 1990 he took money from Juma Kondo, (PW10), in the

presence of one, Asha Kondo and the third accused who was acquitted. Juma Kondo

(PW10) stated in his cautioned statement the amount was Shs 300,000/= which was in

six bundles of Shs 50,000/= each. I

1993 TLR p298

MNZAVAS JA

A Third appellant's defence in the District Court was a complete denial. After

hearing evidence from both sides the District Court was satisfied that the prosecution

has proved the charges against the appellants and convicted the first and second

appellants of stealing by agent and sentenced each of them to three years

imprisonment. The third appellant was convicted of B receiving stolen property and

was sentenced to three years imprisonment.

Dissatisfied with the decision of the District Court they appealed to the High Court.

After evaluating C the evidence in the district court, the High Court, (Mchome,

J.), was of the view that there was ample evidence before the District Court to entitle

the learned resident magistrate to find that the prosecution has proved the charges

against the appellants beyond reasonable doubt and accordingly dismissed the appeal.

Still dissatisfied the appellants have come to this Court.

D In his defence before us the first appellant who appeared in person and

unrepresented argued that he should have been charged with stealing Shs 600,000/=

not Shs 700,000/= as shown in the charge sheet because the second appellant had

admitted receiving Shs 400,000/= not Shs 300,000/= as shown in the charge sheet. It

was his argument that if this Court accepts his E submission then it should find that

the charge against him was defective.

Secondly it was his defence that the Trial Court should not have believed the

evidence of Ester, (PW11), because it was argued, she gave her evidence one year

after the case had started and that she was summoned by the police to tell lies against

them (first and second appellants). The F first appellant went as far as saying that he

believed that the police message said to have been received by PW.9 was sent by the

police in Sumbawanga and not by Ester (PW.11). The reason for such behaviour by

the police in Sumbawanga was that they were determined to cause them G their

undoing of the alleged enmity between them.

Finally the first appellant argued that as the owner of the money was not called as a

witness it was wrong for the Republic to charge them with stealing by agent.

According to his defence they should H have been charged with stealing by person

employed in public service.

The second appellant, like the first appellant, also challenged the credibility of Ester

(PW11). He said she lied against them. It was his argument that the owner of the bar

from which she telephoned was not called as witness.

I As for the money he is alleged to have stolen he said he had Shs 400,000/= in his

office.

1993 TLR p299

MNZAVAS JA

The third appellant challenged the Trial Court's assessment of the prosecution

witnesses. It was A argued that it was wrong for the learned resident magistrate to

find that the evidence of PW10 was corroborated by Jumanne Nyagawa who was a

co-accused; and whose evidence needed corroboration before being acted upon. It

was also his defence that Juma Kondo told lies against him. B

We would like to start with the evidence of PW9, Victor Mkumbe, regarding the

instructions he gave to the two appellants (first and second appellants). He said inter

alia:

`. . . I ordered the investigators to return the money to Simba so that the

process of buying maize could proceed as C scheduled. I also gave them a pistol so

that they could use it for protection on the way to Sumbawanga . . . On the following

day the RPC (Sumbawanga) telephoned me . . . and told me that Kondo and Mwita

had told the RPC in their statements that they handed over the money to me in the

office and that by that time the money was in the Anti-Corruption Sqard Mbeya

office.' D

That the first accused lied to the RPC Sumbawanga that he had handed the money -

Shs 1,000,000/= to his boss, (PW.9), is amply demonstrated by his cautioned statement

to PW.5, E Exhibit P.3. When he was cross-examined by the learned state attorney

in the District Court about his statement to PW.5 he replied inter alia:

`. . . I did not deny to make my cautioned statement . . . I do not deny the

cautioned statement but I am saying that the statement on it is not sufficient.' F

In his defence he gave a diametrically opposed story about the money. He said he had

left the money, Shs 600,000/= according to him, at his house. As his wife was away

when he left he G entrusted the money to his house maid who was to tell the wife

to return the money to the Anti-Corruption Squad the following morning. The

money was apparently not returned to the office, and when his house was searched

and Shs, 680,617/= was found in a suit-case his wife claimed that Shs 400,000/=

belonged to one Mahali who had requested her to buy a car for him as she was H

going abroad. Shs 200,000/= belonged to one Egina, who had requested her to buy her

a video set. Shs 50,000/= has been paid to her as an outfit allowance. The rest of the

money was proceeds from their shop-business.

If first accused's story to PW8 was anything to go by, the I

1993 TLR p300

MNZAVAS JA

A Shs 600,000/= the 1st appellant said he kept in his house to be handed to the

office was no where to be seen. However, as there was no evidence either from the

said Mahali nor from Egina that they owned the money the Court believed that the

money found in the suitcase was part of the Shs 700,000/= the first appellant was

entrusted to return to the owner.

B At this juncture we are to ask ourselves why the first appellants chose to lie to the

RPC that they had handed the money to their boss PW9.

Dealing with a similar situation the Eastern Africa Court of Appeal has this to say in R

v Erunasoni C Sekoni s/o Eria and Another (1),

`Although lies and evasions on the part of an accused do not in themselves

prove the facts alleged against him, they may, if on material issues, be taken into

account along with other matters and the evidence as a whole when D considering

his guilt.'

In the present case, and as rightly observed by the High Court, because of the urgency

of the matter PW9 gave the first and second appellants a pistol to protect them and

the money they were E carrying to hand over to its owner in Sumbawanga.

They said they found it risky to stay with the money in a guest house at Tunduma so

they decided to return to Mbeya. In our view it would have been more logical for

officers of first appellant and second F appellants' calibre to entrust the money to

the police at Tunduma police station for safe custody till next morning when they

would continue with their safari to Sumbawanga that to travel all the way to Mbeya

to keep the money in their houses.

And what is more they arrived in Mbeya at 4 p.m. but for reasons best known to

themselves they did G not think it wise to contact their boss and inform him they

had decided to return to Mbeya with the money. If they had done so and failed to

trace him; they, being senior officers, knew or ought to know that they should have

surrendered the Shs 1,000,000/= to the police station for safe custody. This they did

not do but decided to keep the money in their houses - but as already mentioned

above on arrival in Sumbawanga they told naked lies to the RPC that they had

handed the money to H their boss PW9.

Even if we are to agree with the appellants (first and second) that they decided to

keep the money in their houses that act was a departure from instructions by their

boss, PW9. That this is the law is I shown in the decision in R v. Nanji Sunderji (2)

it was held:

1993 TLR p301

MNZAVAS JA

`Where property is entrusted to a person and he converts it to his own use and

disposes of it, whether or not the A intention to do so was conceived at or after the

receipt of the property, as soon as there is an overt act showing a departure from the

instruction in regard to it, the offence of theft is complete and a foundation for a case

of receiving with guilty knowledge laid.' B

In the present case the money Shs 700,000/= kept in first appellant's house was found

to be Shs 19,383/= short. Of that kept in second appellant's house Shs 300,000/=

disappeared into thin air and is yet to be recovered.

As for first appellant's argument that PW11 should have been found by the Trial

Magistrate to be C unworthy of credit because she was called as a witness very late

in the case in an effort by the prosecution to fix them as they were at the time

investigating allegations of corruption against the RPC and the OC-COD. It is our

considered view that even if the testimony of PW11 is excluded D there was, as

rightly argued by Mr Sengwaji, learned state attorney, other evidence in support of

the prosecution case. There was for example no reason why the first and second

appellants told lies to the RPC that they had handed the money to their boss, PW9.

The question of enemity with the police could certainly not have made them lie about

the where-abouts of the money. E

The argument that the first appellant had Shs 600,000/= and the 2nd appellant Shs

400,000/= was clearly an afterthought as there was evidence from PW1 that the first

appellant was entrusted with Shs 700,000/= while the second appellant was handed

Shs 300,000/=. There was also the F cautioned statement of Juma Kondo (PW10)

which was to the effect that second appellant's wife handed him Shs 300,000/= for

safe custody while he later told the court in his evidence that he had received Shs

400,000/= from second appellant's wife. In her assessment of PW.10's evidence the

learned resident magistrate was in a better position to decide which of the two

versions was to be G believed. She said she believed the cautioned statement

because his evidence in court was to support first and second appellants' story that the

second appellant had Shs 400,000/= and the first appellant Shs 600,000/=. The reason

for the change was found to be the fact that the witness, H (PW10), is a brother of

second appellant. We need not mention that this is a second appeal and we ordinarily

do not deal with questions of fact which as in this case have been thoroughly

scrutinised by the two courts below. I

1993 TLR p302

MNZAVAS JA

A On the facts the first and second appellants were properly charged with the

offence of stealing by agent; and, on the evidence, they were rightly convicted of the

offence as charged.

There was also, as we have already shown above, ample evidence in support of

receiving stolen property knowing it to have been stolen in respect of the third

appellant.

B As for the sentence of three years imprisonment we are of the view that it does

not call for interference by the Court bearing in mind that the maximum penality for

offences of this nature are ten and seven years imprisonment respectively.

C The appeal is accordingly dismissed in its entirety.

1992

Editorial Board

Chairman

The Hon. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General Chambers, Zanzibar

Dr. S. BWANA, Registrar, Court of Appeal of Tanzania

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel,Tanzania Legal Corporation

Mr. S. MCHOME, Lecturer in Law, Faculty of Law,

University of Dar es Salaam, Assistant Managing Editor

Administrative Assistant, Ms. M. SHANGALI

Special Assistant, Dr. N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1992] T.L.R

Judges of the Court of Appeal of Tanzania in 1992

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.Z. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

Judges of the High Court of Tanzania in 1992

1 . The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

I2 The Hon. Mr. Justice Y. S. Rubama Puisne Judge

13. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

14. The Hon. Mr. Justice A. Bahati Puisne Judge

15. The Hon. Mr. Justice H.A. Msumi Puisne Judge

16. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

17. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

18. The Hon Mr. Justice E.P. Moshi Puisne Judge

19. The Hon. Mr. Justice L.A. Kyando Puisne Judge

20. The Hon. Mr. Justice W.H. Sekule Puisne Judge

21. The Hon. (Madam) Justice E.N. Munuo, Puisne Judge

22. The Hon. Mr. Justice J. Masanche Puisne Judge

23. The Hon. Mr. Justice L.B. Mchome Puisne Judge

24. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

25. The Hon. Mr. Justice J.J.M. Mackanja Puisne Judge

26. The Hon. Mr. Justice J. Mkwawa Puisne Judge

27. The Hon. Mr. Justice T. Mkude Puisne Judge

28. The Hon. Mr. Justice E.l.K Mwipopo Puisne Judge

29. The Hon. Mr. Justice E. Rutakangwa Puisne Judge

Judges of the High Court of Zanzibar in 1992

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1992 TLR p1

A