Fredrick Siwale vs Republic (Criminal Appeal No. 53 of 1998) [1998] TZHC 2341 (27 November 1998)

IN 'i'HE HlGd COUFd' OF' ~:ANi1-,NlA A'I: MBE'iA .. CRir-:INAL A:t-·PErlL NOo 53. OF 1998 (criginal Criminal Cas.e Noo 793 of 1997 of Mbeya District Court at ~fueya .. ·. Before: A.M. RUViANYIKA - Resident Hagistrate) FREDRICK SIWALE _ ••••• ~ •••••• APPELLANT Versus THE P.EPUBLIC · HESFONDb"NT ./I> .. 'J,1he appellant, Fredrick s/o Si wale, was indicted before .the district court ~-- >:. of Mbeya for three counts of· Stealing by Ser,vant ·contrary 9.:sections 271 .and 265 of the Penal Code. He was GO:ilvicted as charged and sentenc9-. to terms of inJ.Prisonment ' ,. of i_trht,yc!rs £or the first·ana·second co.unts, and five year:s for the third count, ..... ~

which were ordered to run concurrently .• He was dissatisfied :vith the convictions and sentence, hence this appeal preferred and argued before me by his learned advocate, Mro Nbiseo Mr. Mulokoz:i, learned state ckttorney,· declined to resist '. ·· the appealo Both J"'.r·. Mulokozi and Vir. Mbise are agreed that the §3-ppella.rit was convided on insufficient evidence. lith respect, I am satisfied that they. are righto Jackson Mahali (PW1 )· was a 1'ransporter who owned a garage called ]:iitiia Jiri Garee;e ,; at 'Bow:to area within the ::1unici_pality of i'-'Ibeya. 'rhe appellant was employed by PW1 as:. the Manager of the garage. The appellaDt, as manager, was empo'wered .. to purchase auto spare parts for the garage from their dealers . He was also .authorized ·to collect ·rent from tenants in a house which belonged to· HJ1 , and to s_gend the money in the garage as imprest., =·The• first count carried an amount of shs .. 155 ,000/=. But no effort at ?J_l was made to e.stablis~ the charge. No witness, not even F.rJ1, testified on it. So the . appellruit was convicted of this count, which v)as denied by the appellant, on:. no evi~ence at all a 'iith respect to the leai·ned trial. magistrate, it takes evidence to convict a person of cri!nea It talces far more than mere guesswork. There has • 0 0 ••• 0 0 0 Q O O /2

2 - to be evidence which is legally admissible in a court of law, and, oreover, such evidence has to prove the guilt of tlie accused beyond all reasonable doubt. 'l'he second count carried the swn of shs9\000/=• An auto spare parts dealer in town, Elick Kaberege (HJ3) 1 'claimed to have supplied. two cock sheets worth that ,\ • •·· re - ......,.......,.,__.~ • ,> , •. money to an unidentified perso:i:+, who told P,J3 :that 'he was sent by the appellant. The a}?pellant denied to have sent a..ny person for those spare parts. The unidentified . ··:· ~ .· . •· . .:.· ... ··.:. __ .. person did not testif.y. 'rhue wha"t he· v.ras· repbrted by FIJ3 to have told him was I in law, hearsay evidence and inadmissible. Evidence.of; a.statement made to. a witness not by a person who is hi.iris elf not _called as a· winess mfJ,y or may: . be hearsay. It is hearay and inadmissible when the object of the evidence i~· to establish the· truth of· what ··is' coritined in the stateme!it~ 'i 1 hat wa,s t11e position, here. 'l\h~ staternei1t, on 'the other hand, is not hearsay and is ad.miss ible when -it is propsed to· establish b/·evidence ·; not the truth of the· statement, but the fact. that it .. :was . . ·-.•/ .. made. 'I'lie fact that the' statement was made, quite apart from its truth, is frequentiy relevant in considering the mental state and cohduct thereafter of the witness or of some ot'her·perscih in:whose presence the statement-was made ... · Still on the second count, there was a letter. of' confessi:-h tExt P3) instroduced by PW1 allegedly written by the appellant. 'rhe letter, however, was not identified with the appllant. The appellt denied to. have written h. PJ'l had not seen 'the. appellant write and sign it. He did ncif even claim familiarity with the handwriting and signature of the appellant •. And worse, th~ confession contained in the letter ' ' was retracted at the trial and, in•the circumstances of this case, the trial court could nqt have properly ·acted on it ·without corroboration evidence, v1hich was wanting ........ -. · . .. ;-·, ... · .. :-;.;.: . .. .::. .... in thi.tcape. It was •ommon• grownd that all books of accoun pertaining t6 the . . ~ :., .. affaire ef the garag,e . r~:leva:Q:t to ,the case against the appellant had been destroyd by fire by Fv/1. ' And the third count carried a swi1 of shs.3,000/=o A tenant, Mwamsua Hussein (HJ2), clirned to have paid to the appellant shs~21 ,000/= as rent, and Pt-i1 claimed '' that the.appellant accounted for shs.18,coo/::f only, leaving out shs.3,000/=• '1 1 hat was all the evidence 'against tl'le appellant' on this count. '.rhe appellant denied to . I

have retained the shs.3,000/=• The transaction, according to PW1, was documented, but no documentary evidence was produced in support of the allegation of PW1. The books of account, as said, i1ad been destroyed by PW1. In my view, in the absence of the relevant accounting documents, the allegation by PW1 of failure to account could not be taken established, let alone beyond reasonable doubt. It remained an allegation. 'l'here is no obligation on the part of an accused to prove his innocence. That innocence must under the law be assumed by the court unless guilt could be proved beyond a reasonable doubt. I would, finally, turn to the sentences passed. The sentence of .~i.e;,,t years imprisonment was not only unduly excessive in the circumstances of the case but it was in excess of the sentencing power of the trial cour,t. The offences were not scheduled under the Minimum .Sentences Act 1972, and in t-erms of section 170 (1) (a) of the Criminal Frocedure Act 1985, the maximum custodial sentence the trial court had power to impose for the offences waE five years imprisonment. I would certainly have interfered with the sentences were the convictions tenable. I accordingly allow the appeal, quash the convictions, set aside the sentence 6 ,and hereby order the immediate release of the appellant, Fredrick s/o Siwale 1 from prison unless otherwise lawfully held. --- .. AT MBEYA. · For Appellant: Mr. Mbise, advocate. For Republic: ¥. Mulokozi, State Attorney. : (,· / -- -~i .- -----· B.P. MOSHI JUDGE.