D.P.P vs Sostunenes Manyanga and Others (Criminal Appeal No. 19 of 1998) [1999] TZHC 197 (29 November 1999)

,, J,:., : :,;r··. lN THE-HI.GH,.COUil.T OF TANZANIA· :AT ARUSI·IA CRIMINAL APPEAL NO.- 19 OF 1998 ( From the .decision 6f the· RN 1 s Cotirt Ai"usha .at Arusha CriminaJ. Ca~~ ·tJo'.· 97 of 1994) . ····· I. '. ·:. THE D.P.P, ~ ••·• ~ • • -: •• >. ••·c • c •'• & • • •• • APPEl:.LANT Veisus '. 4. • • _ ...... RESPONDENTS J U .D GM ENT ' This apieal'.-;' i"ocigJd •' the :Dii'eCtft)r 1 of- Public--·PI-oecutioris. (tlhe . . -'. .:)_~-:1 \ ... ; - . -. .: ... ;-.• ,.f -: ·.,··1 D p .P )' ' is a:inih at assailling the- defr:i'sion of the-.:usl::il.¥1-* Hagistate 1 s ,·cot .in er·- Case No. 97 o·r.-·ir;94 in··the exerci,se.9fi-'-f-,,,; . ·-. ;:tJru£· juil;cJ.icti'on. . : It 'is? therefore) a first appeal .... ;,,:)'," :· r ,,,·: : · .. ;: . in the·; ~~id cr:im case,·:_th ~~~e~' RespomiJts'-'h1 {s ppe·; .. .. ·::v·::,: __ . -- .. ·. . . . -· :- . .. .. Sosthenes Hariyga,L ( the l_st l?l3spqndent). Deemay I-Iilohga"' l th' ·2nd ' :. • •.· 'J ~ ••) •· ( • ' • I•'- : • . ~ •'l. .Respondent) and -John LaJ.i ( the Jrd Resp.ondent ); a·'1'st/-:.2nd arid 3rd . • , · -~- . .- :=Y•:-1 t, 1 ·•·, :· ·.· .-1.-·t -- · .Accused .persons were being charged jo.inlly and together .. of' -~ving stolen . on· divers 1 d~~es; ·; .£"fcil ::of Tshs' 3,: :;;·5/092786: as ·'pllo)?ic'sez•vants c/s 270 ~f the Penal· Code 1 ':'the -property of the:i.:it. employer· which had come into their possessiori .PY. virtue of their er,1ployrnent. The three were : . • •• '.J. "\ .- • • ,'.. •,. '~: • . 0• < '- • , C ( . • employees of the Nc;orongoro Conservation Authority. They did deny the ·· _charges 1 which wer.e 28 in ali. ,,·;

• 4 • .. •• • ;.r,-'., · At the trial it was not disputed that 1:1.uring' the period between 29th March~ 1993 and 22nd November 1 1993 wheri the said money was all.gedly stolen the three Respondents were attached to :the A;thor.iity's NgorongoroProtection Fund (the N.P.F.) Tl-lis -NP.F. had tee incclne ~ generating .projects, namely• Tl;te RhiElo Lodge,- .. a· fuel Filling Station and -a Posho mill. · The 1st Respondent was the· main.Cashier- of the N.P.F. whqse main renponsiJ:>ility was to receive. money; collected--·from. these three projecs :¢ banking te_ same.-· The 2n:J.; and 3rd Respondents were .. ' .. :.::- pump attenr.lant-s at the said ,fuel' Filling Station;. As pump att_endants they were selling fuel and other allied products to various customers. In the discharge .-of their duties they were using ·cash sale receipts ,, books which had three .aopies. In each sale trarisactio• the pump ;,.,

... - 2 , attendant had to issue- a cash sale receipt showing the type of good/ goods said the quantity sold and the amo':L11t of money paid and received. The csto~~r/buyer took with him th originr.11 copy while the duplicate• . . . . . and triplic?te copies reihed in the ca.sh receipt book • . ; .: ·, ... : . : ..... ,. . '. - ' ~ -~ ~ : . . It was als'o" not in dispute at' .th~ 'trjai· o"f the Respondents that at the e,rid of the day" or the following morn:ing, the punp attendant concerned .... ,·. - ..... ·.. . . . . wouid add.together all thday 1 s ·(a.s .. .pri=:_·l[:i,,~/-!1ay 1 s) sale proceeds, using the copies of the cash s8:le receipts issued. ch single sale and the amount of money realized there from would be recorded on a ribbon (Exhibit P 1) in red .print).. Thereafter_ the mon_ey collected, .,, .. .- .. 3.c.,::the cash. sale receipts book.. used in the sa·id sale transactions and the. ribbon sheet would be remitted to the main cashier (1st ·Respondent) by either. the 2nd or 3rd esporid,ent •.. On receiving the money the 1st .. ReSJ)o_7.1-ent_,uld issue a main receipt reflecting the money received by . : :,:h,:iin, . wtlh r_eceipt ( o;it~~i) was ·thin· giued or 11 pastetl II on the · relevant· ✓ .,4: .. : - ~ . ·•.·:, . casl'l sale re_cei_pts book. Then· the· 1st i}.es1::,onclent was. banking the money received/ \iie 1st --p;dent•if'scherule of duty was detailed in writing ~ .... J· and was tendered. ir{ e'v-iclence as<&hi'oit P 3.- :J have f.tone through the ····· . . :- . . • l • : .'• • ••• s·aiq._ Eich. P . carefully 4 To ·r'iation 'to ·the N.P.F. :.t,h;pra:ty duties , .. ,, .... : of 1st 1.esporident were: . ' . . ·.1· ..... •, . • ~ ·.: ~ •• p. (a) r_veriue collections from au· N ;, F revenue '-centres; .. . ·•:: . . . '•/·1!·-: .·.~ (b) to, keep custody of th~,.P,F •; rernue · and then bank the same; ·' (c) to write the N.:?F o petty. <;:a_sh _and main cash booR:s and .. ,. .... • ( d) to follow up ·the. ·N P F. debt-a. ·". It is nowhere stated therein that ,he ;was,:supp5.ed to audit the work of tl1.e pump attendants. From the evidence on record, it:is•ciear that the NPoF. 1 s accountant was Pt'l · 2 Petri Kornea~ . Accordini to PW 2 sometime in November t 1993 - during his "routine. inspecticti~ of' ,the receipt hooks",'. he, "realized that the amount in the .. main receipts·. did --not tally with the amounts in the cash sales. 11 , He then:.alerteq.- the chief. conservator, who in turn .. . . alerted the police. ·· ·°The evidenc,e'.of ·fW--2: is remarkably short and .. clearly evasive •... tt r.loe·s· not even show if,:,the differences in the ... /3.

== 3 == '!, • monies reflected on ·the main cash sale r.eceipts and ash sales, reflected ·. an actua.1 loss· :in the actual amount of money receiyecf by. the Iles.pondents i:f: a{s ·.:f. ·r.:ii :nd/or if th difference reflected. on those documents ....... ~ . . . ' .. ~ was not actually ba,ed No single bank payirig-in-slii:> was tendered in _::. . .-h' evidence to shdw: how much money was banked d;3Xing the ·period under scrutiny (March - November, 1993) •. .. · .. · · - ·p14 ·4 Maureen Msaki told the trial Court- that he was the authority . . --.::,!·, is deputy 'Chief Accountant. PW 4 unequivocally stated that it was the · duty,_ of PW i to explain to the. -Respond,mts how ·to perform their duties. Earlier PW 2 had confessed that he was not aware .wl):;q.r the 1st R_spondent had been instructed on how to discharge. his· assigned duties. . . •: .. r. ... Pw,·4•farthe'.r bla.'sted PW 2 and PW 3 Amrew (the.Ath6ity•s Internal Auditor) for failing to discharge ··their duties properly thus·-.leadi.ng :;.•; Jo :the ,alleged ... losses •. PW .3, whose :widence was as, short as it was . . . .. . . . .,. c ,. .. . • .... ; . . " . . . • •. ' . 'l •.", · · 'Y'.noni.oi<:diiifi!it tal siinply·-t6ld'' the' tri-a.1 c'ourt that at· t!1e: end of November, . ·: ~ . .. ' . . . . 1993 'he "carried out auditing of the J:etrol Station" and learnt that 'i::'.:;·,•:::· .. · :: .. :..f' __ ·.. .. :·: __ ,:>·.:;.' . .·.'·;."} . ··: - __ .. · .. there 'lrias·:{-io_s:-• ~ He _r,ier.:elaborated'and.:ne_y~!- t~ndered an aUdit ,.. . . :·. report Jn evidence.: if,he·pre.pared any. IJhat he tenderec1. was a letter ·• .... addressed· to .. the negionaL Cr:ime s :Officer, Arusha;·, •Re.f. No. · NCU/ AC/24/62 : : . .. . , . . -=- \ .. -r ~ ·; .. ! • .• - . . t: . ;dated 1.3/6/4. 0 ,rE:Pq,r_tD1g•, a ],9:~~::of Tshs.·J,795,092/80 from sales of fuel'._ (h. P 5). : .That let;,ter., .. ::wttch f-0r reasons best.:known to him, he called "an audit ,,re_port 11 , does nt .. sow the amdUnt .of fuel (which naturally gene:r:at,ed. tha_t money) which ,J1;:i._s ,_supplied and sold by the Respondents and how much of the to:t,-al proc~~ds ·,.:;if .-saletthe Respondents accounted for: and failed to account for. This to me;was the crut of the matter. Surprj_singly, Exh. P 5, as an audit report, which ·was stipposed to be the basis c,,t' the accusations against the Hesponderits was written after the Respondents·• were formally arraigned in court. ,The Respondents were charged on 20/5/94,. · This confinns my :suspicion' ·that no· actual audit of the N-:P.F. projects account_s and properties was carried out t_o· _ascertain whether or not -there: was an actual loi, of the said Tshs. 3,°795,092/8o;rroni sales of fuel, oil etc. ·,.,,- . . . . ~ ··. The 1st Respondent told the· .trial .c_ciurt that h issued a main receipt for every arriount of money he receivecf- .from his co---a.ccused . ,. ,,

• ' -

-- 4 persons arii:l then )~nked the same. This is how he put it: "What I have to tell the court is that the amount I received from-the first and second accused was accounted for in the main receipts I--issued. I deposited all these amounts to the Bank. 11 The evidence tendered earlier by the prosecution •s own witnesses was of like nature.

.r. While being __ cross-examined- by Hr. Jonathan, learned; counsel for the 1st Respondent, PW 1 Inspector Lucian Ngoremera, said: "It is true that for every amolll1t that the first accused got he prepared a corresponding main receipt. The original of '.-·:-c·::,,,- :. -· which he handed·to the pers'on that (sic) had brought the .·, .. ;-, ., ;- m_oney and ca,15:h:·.p_?l~; •. It is ·true __ that for the aniounts_ ·. reflected in the main receipts. were s_urz:endered to the bank" .~: '='[.__>;: ! ... 1t::y·:, ,.. ·. .i'':--\ . ';-\•." .: 'i;::: · •'•".· ... ·,. '\I: t,90;- ,st_ck.;, ,ii} Hay, . 1993 . went. tJirougb the ··books,·:; I ·:did - n•t go through the Individual, cash saies _and m?,in reeipt though I was duly bound t6·"i:io so. . ;- . '., rt. J-s:· 'true: t_h§t' li" thc,s- .:arnq'.unt:~ th~~ '.rfrsf ~c~~~~d

• • . .-......... ... .__,~ ~r,sor.t issued main:reipt w~~,,e_i:u;:hf:: to me.,a - If the mo_ney received by the lst,::.:R.es,poncJe.nt from .the_:_2nd;and :)rd Respttndent was whoμy _ acc'ounted for by him to, Pi? 2, :- then how· can,dt be-. said now that he stole it_oz:-.,part,of it?· If. there:ws,.any_los, then PW.2 is t,, account for it. · Again, if the Acc.:u~~d. person 1;,eg~n ·J,6 ste this money ,, as early as ;March, 1993 as alleee<:l,0J1i,th~- chcJ.rge 9;- why c.idn't PW 2 discover the loss, leave. a4-one,i th,e thefts :i.n · ¥.a,y, -199.3, wlr.en he "took stock" as he boasted? Th,e -onl.y .u-repistible answer, to this q_tiestion is,that no money,. had peen, J.,qst or stolen.· PW 3, whom the trial court·.founC: to ;be ''hesitant and dodgy" going by the said CO?'t •s record, had this 1)foce of exculpating evidence: 411 ·.: •••• ~ "Duties of the cashier is"kupokea/kulipa na kuwasilisl1o, pesa benki!!. For every thing he does th~> cashier has to issue rece'ipt · · according to the amount he issue_s/brought to h:im.. ·I -agree that the first accused perfomed his duties accordinglye I agree that all the amot::1.nts that ·h~ received was surrende,red to the bank. The cashier 1 s duties do~~ _(si_c) not involve auditing •• 11 .. Il).. he light of. :th{- ve~~hlmg e_vi<J.e,nc exeripratiing the 1st . ~ . Respondent one wonders as to why, in the first: place he was prosecuted ' ';,, . .,,.1-s.

::·. ,•'• 5 at all and secondly why the trial court held that he,had a case to -nswer. The 1st Respondent ought to have been acqultt_ecl under Section 30-:-0"f .t11e 'Criminal Procede Act, 1986. As was held, by the theri Court. i". of Appeal fo'r East, Africa in the case of Muniimi vi! .R.. [1967] E.A 542, i.t was an ert'-{)rof lat-.r on tfie· part _of the:,t 0 ria1·: c·ourts,. to wrongly call .. upon:,him to enter· a defence, when clearly he had-- no. c~_e_e .to anSwer and ,h·is,.-advcate had so elaborately submj_tted., It is fortwiate that at the end of the trial he' was found not guilty at all a!1d _acquitted. I accorciingly find' no merit in the appeal of the D.P..P .• against his ,. :·:· acquittal and I hereby dismiss it in its entirety. , .. The 2nd and 3rd Respondents were also acquited. The learned trial Re$ident Magistrate after holding that there was t~~ft of the money but he could not figure out who :amon/i the "three a·ccused person~, in the . ' f. common intention, stole ·the same acqu:ltted them. Al thcn:ll5h he was .. : ' perfe.ctly :right in acquitting them, he was wrong on the ev:i,dence before . .. - :. ·• !'J .. . him to· h-old that the offences of theft hacl ben adequateJy: proved, _, ·•:-:•r•,', ;' •... ••1: ;; It· The offence . of theft must b€3 i)rovec.1. must:"" nt ~~:- surmised and/or asumed. . : .... :<. ~ beyond: any re,:i:sonable deubts. In.rela_t-ion to this case, I .. : : : say:'that~ that is why~ I think, w~ hay 7 ,-offences of forrery, fraudulent false acbountig~ in our peai "cod. uttering false clocurnetjts, aJ.se ac-counting, and • ' : ' • : '• I• •: =• j : • • .• ' • • • • .. In many cases peop). comll)-;i,.t these offences at :I;:•;•;'. • ',. :):":, :: . I . , ' • theft the same time, but not always. A person, for instance, can commit the offences of forgery or fraud,ulent. false, D.coUJ;'l.ttn without nec~ssarily

• .. ,'' stealing. This is 1,:,ri...at !!)ir<ht have happened he·re, although I am not sure of it~ But. what I am sure of :i;,. that tl1e prosecution 'evidence was too ' weak to pr,_ove beyon~ any r(:;asonable doubts any of the ~ counts of
• stealing. I -have already indicated my first reason:· if these thefts ·began to b~ committed .in March, 1993 · then in ·Ma:y,, 1993, · Tl:J 3 could have disc.overed thEJm-, The .first 6 counts cove·r the period'.· of March - May, .1993 • But. I have anoth(:;r fundamental reason •. Theft~· 1 re-peat; must· never, be assunecl. i-h must be established by cogent evidehce·. -.:·· !.'1 -6~ .iristimt. case the prosecution was. bound to prove beyond arty 'reaso~~bi~"'c:lo~bts that these llesponrlents being -~~11,/6

.. ·, == 6 employees of the N.C.A. Actually :receivetl. the money alleged to have . been: stolen by- them throh sales of fue, oils, .lubricants, etc. on the mentioned divers dates anrl then jointly and together Or ·singly fraudu- lently misappropriat'e:X ·the same, - and riot<?_rll.:( the.t. they issued cash sale .receipts for which the total sum of· money reflected on them was . . . '. . . .(. less. that the· .c;!tJount ·remitted to the maL"l cashier. The· latter could have. happened through ·carelessness, i,2:norr:mce (aritl-unetical illiteracy) and/or fraudulently fai;fying the cash sale ·receipts for some other · benefic-iaJ. purposes Tt1ithout actually receiving :the' e·ri.tire money shown on them. In· order to rule out these possibiJ_ities and· lay ,good ground for 9i;11r· 'impeccable convictio~-, on each count evidence. Otifr;ht<to have been led to show how much of tries~- products (i.,e. fuel, oit etc.) was . . :i,_ssued to· the· Respondent and how much of it was sold ··ahd for how much ·-·· . .(i.e,. _total money cllected.). for each relevant ,d,ay, orL-tivn' for the •• .. !"! : : •: ~ l • ••• : • '• . : . • •" • :, :;.,,,,ent,?Iet period and hOtiJ much money was remitte~L'either to the 1st

• .. · __ :e po.11dent or ot11erwise lawfully accounted for. , In st1ort, the money ,; . .·· . . ,';.·:: ' . properly accounted fo: as· sale proceecls,was to be_t,ullied with the . : :•": ~ value of the goods delj_vered to them and sold, If there was any . • •••• •~ T .• : difference (i.e. a shortage) then it could 1:?e sa_fely: j,nferred or said . r • :that they had llccasoned financi:alloos t,-heir employer. · Then evidence :ought to have been led to prove· tYif '~'~ch loss was not a normal one in the sense . SllcfON ,EILO, HOJW 1 S case:, ( se/ [1989] TLR 159) occasionec! by negligence or innocently but was a. result of a -consqious fraudulent misappropriation of the money• There v1as no scintilla of. evidence •. . here· 'io show this, .let alone to prove it.. The cash sale receipts relied on were entirely inadequate to i_Jrove this viti,al ?-ngredient of the ofence,_ for the ,reasons ~ trie,:l to show above. Without proof of actual receipt of the go°-ds allegedly sold, P.roof of actual sale of the same as wel as proof .of actual receipt pf -money ,(pz:ocee)s of actual sale) it canr1ot be safely heLl that the Respondents dir~ sell these prociucts/gods. ad faudlilently misapμropd_ated 1Jart of the proceeds. Either through sheer ineptitude or by design to protect .:- t-he real cuiprits,· (if there was_any money stolen) the N .. C~A's ••• /7

== 7 -- auditor's kept away this vital evidence fran the police and the court• I am saying so deliberately because cludng the course ot hearing tqis appeal I did give time to the learned. I'rind.pal State. Atterney t~ try and get an audit report but she couldn't get any from the NC.A. In the light of all this I hold that the 2nd and 3rd respondents were entitled to an acquittal although on different greuntls t.i,an t,he one relied upon by the trial court. In fine, I find no merits in this appeal, against these tw•, t. , Respondents too for the reasons I have endeavoured to show herei, The same is accordingly hereby dismissed in its entirety. Deliverer] in court in the presence of Mrs. Lyimo learned Principal State Attorney and absence of Mr. Jonathan, but in the presence or Mre Merinyo, learned Counsel for the Respondents, this 29th day of E.M.Ko RUTAKANGWA .Llf>I§ 29/11/1999