D. P. P. v. Joseph Ngonyani Crim. App. 199-D-71; 22/9/71; Onyiuke J.

D. P. P. v. Joseph Ngonyani Crim. App. 199-D-71; 22/9/71; Onyiuke J.

The respondent was charged with theft by public servant c/s 270 and 265 of the Penal Code. At the close of the case for the prosecution the Magistrate held that” and called upon the respondent to make his defence. The respondent elected to say nothing. He was acquitted. It was against his acquittal that the d. P. P. appealed. The case for the prosecution was that an Assistant Principal Secretary (P. W. 1) in the Ministry of Commerce and Industries had given Shs. 1, 600/- to the respondent to put in the safe kept in the office of the commissioner for commerce and Industries. The respondent was Personal Secretary to the Commissioner and was the only person who had the key to the safe. No other person was present when the money was handed over and no receipt was obtained. The next morning P. W. 1 called at the respondent’s office to recover the money but the respondent did not turn up for work and was absent from duty for the next three days. The respondent was found dead drunk by the Police in a house in Kisutu.

Held: (1) “The case for the prosecution depended to a large extent on the credibility of P. w. 1 based as it was on his oral testimony and his demeanour ……… it is only where it is clear that the trial court acted on a wrong principle or misdirected itself in arriving at its conclusions that an appellate court can properly interfere. The reasons given by a trial court in arriving at its conclusions may indicate such misdirection.” (2) [Dealing with the magistrate’s finding that it was incredible that P. W. 1 would hand such a large sum of money to an officer on a low salary without obtaining a receipt]: “The magistrate failed to direct his mind that the respondent was personal secretary to the Commissioner and had custody of the key to the safe and other confidential matters. The magistrate ignored the uncontradicted evidence of P. W. 1that he had on at least 15 previous occasions handed over money to whoever was the personal secretary without obtaining a receipt.” (3) [Dealing with the Magistrate’s finding that P. W. 1’s evidence had not been corroborated] “P. W. 1’s evidence did not required corroboration either as a matter of law or as a matter of practice.” (4) “Some of the facts for which the learned magistrate required further proof were not disputed.” (5) “In view of the foregoing and as nothing turned on the demeanour of P. W. 1 in the witness box I am of the view that the learned magistrate misdirected himself in his reasons for rejecting the evidence of P. W. 1.” (6) Appeal allowed and an order for retrial made.