Ateni s/o Miyombe vs Republic (HC Criminal Appeal No. 21 of 1978) [1978] TZHC 59 (5 April 1978)

LLdL4 ' / I • APPELLATE JifflI SDI CTION HIGH COURT CRIMINAL APPEAL NO, 21 OF 1978 ORIGINAL CRIHIAAL CASE NO. 153 OF 1977 OF THE DISTRICT COURT OF MBOZI DISTIUCT AT MBOZI BEFORE: F.M.K,PJ'd'MAJA. EDJMAGISTHATE JiTENIS/ONIYONBE...................... APPELLANT versus THE REPUBLIC ,,,,,,, , , , , , , , , . , , , , ,,,.,. RESPONDENT CHARGE: Occasioning loss to an employer, c/s..284 A of the Penal Code. It JUDGMENT SdNATTA, J. This is an appeal from a decision of the district court of Mbozi whereby the appellant, iIteni s/o Miymbe, was convicted of occasioning loss to an employer, contrary to section 284 A of the Penal Code, and sentenced to a term of six monthst imprisonment... He was also ordered to pay the sum of shs.6,896/= to his einplo'er, The Tanganyika ifrican National Union, as compensation for the loss he was found to have caused. The facts of the case can be adumbrated this way. It was common gTound at the trial that the appellant was employed as a night watchman by the defunct Tanganyika Afr can National Union. In that capacity, his principal duty was to keep watch at the premises of the party' s district headquarters at Mbozil, so as to ensure the safety of every property on theprlmises. The .jsecution and the defence wore also at one that between 6.00 p.m. on ay 5, 1976, and 6.00 a.n. on the following day the appellant was sup osed to be on duty at the remisos. According to the story which was unfolJd by the prosecution in the lower court, at about 6,30 pri., on Ma 5, oneEdward Robert, a driver employed by the party, brought the par - 's landrover at the 7rami500. The apollant was present at the pre:oi S. Edward handed over the custody of the vehicle to hiv. nother landrc•er, belonging to the district chairman of the party, was also parked at the premises. At about 8.30 P.m. two men, one Anderson ilalii in and L a Thoza, arrivedat the rorii cc

LI 0 They were the appellant's guests. as it was rather late for him to rt th6 two ten to his house, the appellant accom:dated then in one of the offics in the Pri;1ises. lJhitho two men arrived they saw the two landrovers Twtrked outside the building. iccording to the evicleaco of the two men, the appellant joined th6m in the office and three of then slept. Whcnderoon and Los-ti woke up in the morning they -aor only one of the landrovers outido the building. The second landrovor - that belonging to the party - had vanished. At about 7.30 a,n. Bdward Robert reported for duty at the orenicss. Shoc: was awaiting him. He discovered on his arrival that the narty' s landrvcr had boon stolen during the night. He went to report the discovery to the hounds of justice. About six days later the missing vehicle w:.ts spotted at M'beya. Several of its components were miosing. Sometime lathr in the same month it was taken to a Comwcrl:s garage for the necessary ro,wirs and fitting in new coi:ipone' -its in ;lace of the ones whichhrtcl vanished. The apuellant gave evidence but he did not call any witness. Lthat In the beginning of his testimony his stsr' wasLon the iiigtit in question the vehicle was parked outside the building. At ab.ut midnight he heard the sound of the vehicle being driven away from the premises, He thought that it was Tllward Robert who was taking away the vehicle. As for the story which was unfolded by the prosecution, the appellant claimed that it was a product of the conspiwacy which had been initiated by the District hxecutivo 3ocretary for the puroo of punishing him for having susorted one Tir. Sinkoko in the parliamentary election campaign. Later luring his evidence, however, the appellant abandoned his earlier story and eabarked upon a coiplotely new story., The now story was that the vehicle had not been hr ught to the prejses on the night in cuestien. In the appellant's own words this now story was thisz the day the vehicle was stolen I did not.sleep, but sat in the office. The store was not broken into. I do not -km)w how the jerycans came out. The vehicle TZ. 119 2 4 Landrover was arked facing aiay from the office building. When I heard the '1iicle being driven away I wont out, But I found it was a distance ay. I ret1xLned in the office thinking that it was the driver wh -took it." Therned trial xnaajstrate reviewed the evidence 1 .ofore kin at a great le th and with great care. In the upshot he found it as a fact that i1i.ard hohert' s testimony, which was to some extent corroborated by the ovience of the appellant's guests, was nothing but the truth. As for the ame1lant' s conduct of sleeping in the office instead of keeping a . ...he and watching the premis23, he was of the view that it amounted negligence in terms of section 284 A of the Penal .Co'de, Finally, J o isarned trial magistrate I eld that the theft of the ye' ide had been nade pocsile by the a oellant' s raisconduct, and, ,, 0 . .

therefore, the appellant' s guilt had been demonstrated boyand sma' 1ou:.t, He accordingly convicted- theaellant .ascharged. On behalf of the appellant, Mr. Tu}:unjoba strenuously attached the learned trial no istrate' s decision as umarranted by the evidence ti.ot was laid hefoie the court. Co: , :eacing' with a general ;rsition, ho submitted that for an accused to to found to have been noglint under section 284 i ' l of the .Lenal Code, it is not enough to establish that ho did that he ought not to have done; it must be establjshed beyond reasonable doubt that the loss he caused was a result of his failure A to discharge defined duties. The learned advocate went on. to COntend that keeping watch over the vehicle .rOs/_ono of the duties assigned to the aDellant. I hopiIr. Tukunjoba will acquit no of discourtesy if I do not express any view on his eneral submission. I do not feel it is necessary to express my view on it because in my settled eiuion it is not correct to say that the evidence on record does not ostoOlish that ensuring the safety of the vehicle was one of the duties as ..ignod to the apoollant. The evidence of the then District Executive Secretary of the party at Mbozi, one Lugalaharsu h$anobi, did not, in my ricw, leave any sane doubt as to the apeilant's responsibility, for the safety of the vehicle. The witness said, among the other thingS "As watchman, it was the duty of the accused to watch the office and all the property of the marty that were at the premises," The validity of that statement was confirmed by the appellant himself when, under cross— examina ti on, he said "It is true that I was enolcyod by T.dT[J as a night watchman. As such it was my responsibility to look after the offices and all the pro erty belon.ing to LNU which were on the pre ioes I worked." It seems to me that even if the most charitable interurotation is given to that piece of evidence it is not possible to say, CorrecGlT, that it was none of the responsibility of the apellan.t to ensure that itching hands were not laid on the vehicle. urthier attacking the decision of the lcarned trial magistrate, irjr. Tulcunjoba submit -Led thit, since tho evidence which was laid in the scale against the aTh,cllr.nt dLd not demonstrate that if the appellant had kept watch vor th premises instcadof sleeping in the office he would have been n a f sition of over uiiering the thief/thieves and thus preventing the oft o: the vehicle, the apellrtnt' s misconduct cannot rightly be said t have on the cause of the theft of the vehicle, 1ith respect to hdr. Tuku I oba, I think there is a simple answer to ihot armient. If the apuP:.arit had •oen a:rake and had done all he could in the circumstances to .:r out th thieves from ctealinr; the vehicle, then he could not have been said to h ve Cailed to discharge his not unimportant duty. The fact is -t;hat by sleeping in the office the apellant had encour gd - thcuLh unintentionally - the thief/thieves to ,.ut his/their n.tent3on into cpfect. Indeed, the apoellant's ac -b of sleeping gave the thief (thieves ample o ortunity to carry out his/their SliSsiOfl.

I have given careful consideration to all that Mr. •Pukimjoba said against the c;sellant's conviction, but, I on, I cannot see how I can fault the learned trial uaeistrate' s dcision. In my opinion the appellant's misconduct clearly amounted to neglience. s to the fact that TdiflJ suffered a loc;s that could be auantified in terms of money, thereis, in ray view, no room for rational debate. I would dismiss the aoal against conviction. I turn now to the apieal aninet sentence. is was ointod out t the beginning of this juignent the spollarit was sentenced to six months' imprisonment and ordered to pay TJU, as compensation, the sun of shs.6,896/. With all the good will in the1world, I can sc.e no merit in the a',eal aainst the custodial sentence s . 1t would required the lahours of Sisyphus to persuade me to hold that a sentence of six months i' prjsouriont for an offence which attracts the maximum sonenoo of twenty four ionths' s i; prison !ont is exceivo, let alone manifestly excessive. The ap :el against the order f or compensation is, however, net without substance. To establish the amount of the pecuniary loss which L.JIU had suffered as a result of the apuellant' s miscondact, the urosecution produced before the lower court a report prcapn±ed by the icr;ional Mlectric.al and Machanical Inspector, showing the monetary velue of the components stolen and the costs of repairing the vehicle. This report was produced as an exhibit by the police officer who investigated the case. The author of the report rild not give evidence before the court. With unfeigned respect to the learned trial magistrate, the reception of that report in evidence sinned against the rule aainst hearsay. Tore is no provsion in the law of the land which authorises a court of law to admait as an exhibit a reimort from a Comworks Officer when the author of the report does not appear bore the court to totify on it. It follows that for the contents in the report in the present case to have been admissible in evidence the authci of the rerort shu.ld have testified about them. The only other piece of evidence that related to the monetary value of the loss was that ihich was given t y Lugalabarnu Banobi, who said "{he vehiclej was sent for maintenance :bat cost ~ !d us not loss than 5,000/. This evidence is vague. Ther is a gulf of difference between naintanance and. repair. It would be uns. e, therfore, to interpret the word 'maintenance" iii the sent.,nce I have quoted as having been used to mean "repair.' That boi so, the conclusion that the ,rosocutiOn failed to establish the )netary value of the loss which the party suffered as i result of Lse aesflant's raiscondpct is, in my view, ineluctable. not ponsible to make a rational assessment of the valug ot $he lose rithout hearing evidence regarding the value of components stolen and the costs of the labour in repairing the vehicle, I was 1bclined m remit the case tc the lower court to deal afresh with that as sct tha case, but I have refrained from deiri:: so because Mr. rwanyika, c •i el for the depuhlic, informed me, durin the . . . . . ./5. . .

-5- hearing of the appeal that it was most unlikely that the Republic would he able to locate the witnesses who would be in a position to establish the quantum of the loss. For the reasons I have encleavoureti to give, I dismiss the appeal against conviction and custodial sentence, and allow the appeal against the order for compensation. The order is s'et aside.

• ---- / B.A. S.AIVIATTA JUDGE Delivered in Court this 5th day of April, 1978, in the presence of Mr. Tukunjoba, counsel for the Appellant, and Mr. Mwanyika, counsel for the Republic. - B.A. SM&TTA JUDGE • 4