Eliud Joseph Masima vs Republic (Criminal Appeal No. 13 of 1998) [1998] TZHC 2049 (15 September 1998)

• IN THE HIGH COURT OF ThNZANIA T MBiYA CRIMINiL iPL NO, 13 OF 1998 • (From MbeyaDistrict Court Qriminal Case No, 291 of 1 995) EIUD JOSHTL MISIN! PPT1L.LNT Versus THE 0 pflTTDT - rr ..o.,o,oen,o.000..eo.o.0O J\LJI4J.).L&I JUDGNNT ELIUD MSHU..'i the arp11ant in this appeal is an unfortunate man for having ever come into long contact with the complainant of these two appeals one Melkior Martin Bagule the owner and Managing Director of M/S Bagule Motor Services and Co. Ltd., in SOJTTO Area in Mbeya Municipality. From before 1983 while the apcllant was in Iringa with the complainant who was thei working in Iringa with r fanzan± Patiway Corporation then with Belfaour Beaty Co. an as an injuctlon pump repairer the appellant naively treated the same complainant as his friend and business associate. Even after the comulainant shifted to Mbeya to continue with his. expanded business of motor vehicle repairing. The two continued with constant contracts that ended up with the complainant opening up criminal charges filed in court as two separate criminal cases No, 291/1995 and Cr, C. Na, 292/1995 both of Mbeya District Court. In the first Cr, Case No. 291/1995 th -appellant onl.od up being charged with three countè c . ing of one count of stealing by Public Servant c/sq 271 and 26.5 of the Penal Code and Counts of Fraudulent False iiccouning c/s. 317 (h) of the Penal Code, He was convicted on 2/3/ 1 99 8 as charged and sentenced to five (5) yeaxs imprisonment for the 1st count, and three (3) years imprisonment for the other two counts.. In Criminal Case No, 292/1995 the same apellant was chergd on 29/6/1995 with single count of stealing by agent c/s. 273 (d) of the Penal 0 OdOe He was convicted as charged on 11/5/98 and sentenced to 5 years imprisonment to run concurrpñtly with the sentences in the other above cited Cr,..Case No.291/1995. Whcnsentencing,the appellant to the concurrent sentences the trial Magitr.ate lin both cases wondered why the public prsecutot had filed two seperat,e criminal cases arising out of the same transaction between the same complainant and the same appellnnt It appears, that was done 0 9 Q 0 0

-2- purposely to harass and porscute the appellant so that he could have to suffer the order of not getting bail easily for having committed 1 two separate offences and even if granted bail he still would have to fail coming to court unnecessarily and in case of being convicted so that he could be punished separately. It is somehow, fortunate that the trial magistrate turned out to he the same one who discovered this prosecutional and persecutional strategy and he relioved.the appellant from it temporarily by imposing a concurrent sentence0 The Public Prosecutor was quite aware tht these two files originated from the same transactions and involved the same parties for the initial charge in Cr, Case No.291/95 was filed on 29/6/95 on a single count of simple theft C/s. 265 of the P enal Code.whjch was later on an substituted on 11/9/95 to the three faked counts tpon which he was ultimately tried and convicted. JWhereas in Cr, C. No. 292/1995 he, was charged on the same date of 29/6/95 for Stealing by i.rgont C/s. 273 of the Penal COde. In both the original single count charge of simple theft in Cr, C. No. 291/95 and single count charge of Stealing by ngont in Cr, C. No, 292/1995 the public prosecutor was the same as per the signature in the charge sheet and the accused was the same, the comnlainant was the same and the time span between the committal of the offences was only 12 days apart (20/9/91 end 21/9/91 both cases having been filed in court on the same day of 29/6/1995 with a minimal intelligence and least expertise and no experience at all the public prosecutor should hove koown he was dealing With a same case to he dealt with in one charo sheet one case file and one trial not with only with different courts, At the stage of these appeals, this court consolidated the two appeals by consent of both sides. This is the consolidated judgemont for both consolidated judgements. The appellant in both consolidated appeals is the learned Mr. Mwakolo (idvocate) and the Respondent who is the Director of Public Prosecutions roiesenting the Republic was reprasented by the learned Mr. Nogela - State Attorney. I will start with Criminal i.ppeal No. 31/1995 which originates from Cr. Case No, 292/95. The learned Mr, wakolo (advocate) had raised 2 basic grounds of appeal in the Memorandum of appeal there was no präof of any handing cver certificate Of Shs.5 00,0001 from the comrlainait to the appellant and that since the same trial magistrate had convicted and sntonced the apellant in Cr. C. No. 291/95 he.was biased and occasioned miscarriage of justice. But, at the he'ring pf these the learned Mr. Mwakolo did not touch, upon these two grounds, possiby be wanted. to adot them as part of his arguments and I for hia benefit I will take it that way rather than treat those two grounds as having been abandoned. it the heerin of this aprool the learned Mr. Mwakolo

• 3 - raised another fresh 'grourd of Ceal which is the one he' basically dwelt upon that the juclgement in criminal caSe No. 292/95 was not a ,iudgment' at all for it fall short of the requirement.of S. 312 (1) of thoC,P.d. which was not coupled as it did. not contain the necessary content8 of a judgement 'i.e. it did not contain the points for ,.etoraine.tian, the decision thereon: and reasonS for the decision. He further contended - that it w a s wrong in law to use the evirionce of Cr. C. No, 291/1995 in convicting the appellant in Cr. C. No. 292/1995 without first producing the copies of the record of Cr. C. 291/95 in Cr. Case No.292/95. But, before I go into the complaints of the learned Mr. Makolo (dv) there is a technical mattr I have to enforce about Cr, C. No, 292/95 about the charge.itself. The statement of offence stated that: °Offence, Section and. Law: Stealing by &\gcnt C/s. 273 (d)' of the P.C. It remained so until conviction and sentence. This statement of offence omitted the vital section 265 which relates the offence of theft C/S. 265 of the Penal Code. In the charge of Cr, C. No, 291/95 another Public Prosecutor (clue to the diffeience in the P.PS sign:ture in the charge sheet) the substituted charge of 11/9/95 stated thefirst count of theft as follows:— Stealing by Public Sdrvant c/s. 271 ani 265 of t1e Penal Code . Thd Stealing by in Cr. C. No. 292/95 should also have stated the same as the Stealing by Public ..Servnt C/ss.. 273 and 265 of the Panel Code. Since the Public Prosecutor who filed the charge in Cr. Case No, 292/95 was different one the same one who had filed two different cases in the same court on the same day cQncrning th same complainant and the sane accused for, the same tiransaction jnstead of in one case with merely different cOUfltS it means that that rublic prosecutor one Inspector' .Panga did not make first a clerical mistake. of not printing S. 265 of the Penal Code into the statement of offence but he negligently or purposely oramitted it not knowing it w--s a necessary ingredient of the statement of the offence. He could not have known that an aant in S.273 of the Penal Code must first steal under Sect. 265 of tha Penal Cole before facing the sentence provided for under 5.273 of the Penal Code, Moreover, sincathe particulars of offence s-;)qcifically stated recent time of stealing as being on 20/9/91 at clay time at M/s. Motor Service Co. Ltd. at Soweto within the Municipality of Mbeya ha did steal ,Ths,500 1 000/= the appellant woulcibe biased in his defence for the agent himself one Mohamecl Jeffrey was not in Mbeya on 20/9/91 on as to make the offence of theft if any be completed at that time'of the day of 20/9/91 at thoplace of Soweto in Mhey.a. Suppose the appellant travelled: to Iringa next clay in order to hid the money to Mohained Jafferi and stole the money in Iringa I;

Lf 2 days later before 24/9/91 travelled to Irina to replace the stolen money - that stealing will have taken place in Iringa and not at Soweto Mheya. This default was quite serious end total in the circumstances of this case to the validity of the count of theft by agent. He could not be convicted on a un-existence theft section in the charge sheet. The jucigernent of the learncd.Mr. Nandawa (SflM)..trial magistrate contained a reasoned out judgement in compliance with 0 .312 (1) of the C,P.I. I am satisfied. The reasons of tho judgement were very brief and consise contained in three paragraphs starting with the last s iDara of P. 2 up to 3 of the typed proceedings. His mention of Cr. C. 1 11 1o0 291/92 did not amount to a bias on his part for he mentioned it in respect of his defence that it was as a and irrelevant to the charge of stealing by agent in this case. It was not proper upon the trial magistrate tohint upon the defence the appellant put tip in Cr. C. 291/95 because as corredtly contended by the learned i'4r. Mwakolo (I.DV) such a defence of the appellant in Cr. C. No. 291/95 had not been produced. as an exhibit in Cr. C. No.292/95. Bu,t j P.1 and his supporting witnesses P4.2 Waziri Mechaie Choma PW.3 Mohanied Jaff cry and PW.Lf Jumanne Seleman Lusoga are co,wny and coached witnesses who were up in arms support the complainant who faced many qories from many government masters that be was vict'imising the aprell.ant. He must have reached a point when the comnlainant had found it necessary to cook up evidence to back ul: his unjust from it into a kind of, truth to na avail, Jhy did it take him so long to trace and arrest the accused from 1991 to 1995. while the complair. k vas around in Mbey.a and •Eringa. Ho doesnt mention in. this case when he reported to the Polibe, No Police Officer testified cit all about any complaint of P,l to them. It could be as well in 1995 when the complainant PW.l first reported to the Police.cind the charge sheet was first filed in 29th June 1995 On the other hand the trial court failed to appreciate the defence put up by the appellant. He gave a J.ong history of their relati)nship. as friends to show that he could not steal from him and that they were hnsiness associites rather than as a worker of the complainant. It is unreliable that the complainQ.nt would have given Shs.500 1 000 / to the a-pellcint on 20/9/91 w2ich the appellant stole on the sane day and then dished out cnothe,r Shs,500 1 000/= to PW.3 on 24/9/91 without minding at all about the stolen Shs.500 1 000/= given to the appellant. If he had that 'nancy Shs.1,000',000/= lying around likely in his office, why, would he have not given it to PW,3 hfore hand rather than wait PW.3 buy the spare parts of PW.l with his own money - for what consiocration. Where PW.3get.aul that Shs , 5 00 3 000 /=in 1991 when S S 0

• 5- he was jst in adit assistant at Iringa Municipal Council and..a petty husinessrnan Why dicint Pi.3 get a delivery note of the spares from where he bought.. it Shs-500,000/= in Dar es Salazim This is bogus witness coached uby 74.1 himself. On the othei hand thb aprolant showed in his dofanco that the appellant had opo h& uy a civil case fora deht from the To complainant whibh the cornlainant wanted to dodge repaying him•. avoid the civil debt he apened up these criminal charges as a The defence was quite credible and comparable of raising reasonable doubt that he d±d not steal anything from the complainart, The trial court erred in convicting the appellant in Cr. C. No. 292/1995. The same conviction for Stealing by Jent c/se 273 of the Penal Code is quashed and the sentence of 5 years is set aside. Ithe other appeal of Cr, C. N0 291/95 the leorned Mr. Mwakolo raised tssicylly three grounds that the anpellant was iot an employee as I storekeeper of the comrlainant PW.1, that the convictiorwas hised on a week prosecution case and that the defence evidence wras discarded altogether without good re'sons. ' The evidence of PW.I Molkior Matin Bakul was that on 28/9/91 he went to Tukuyu'on'a business mission. He t returned back on 29/9/91 at 3.00 :.m. to be told at his office that the arpellant had left a thing bereaved and had gone to bed done and taken with him van us spare parts the subject of the chaiges for the stock taking he madC proved that many items from the store where the appellant had been working had been stolen by the appellant. This is a blatant and'naked lie. This same P.i Molkior Martin Bakule - testified in Cr. C No292/95 the proceedings of whih have been consolidated, with those of this Cr. C. 291/91 at this '.pe1 level that on 20/9/91 - which is 9 d&ays earlier the siie appellant had stolen S0,500,000/= each which W.l, entrusted personally in his office to take it to 'L3 Mohamed Jaffory in Ininga. Since the apcllant had stolen that m-mnoy PA1 went to Iringa on 24/9/91 to pay another Sbs.500,000 to-P;'.3 and he..xeturned to Mheya. So, the afpellant continued to be with PW.1 and with his employees until 2/9/91 when PW.1 went to Tukuyu otily to be told next Al on 29/9/91 when he com hack from Tukiiyu that the apeliant ihen he left behind had left for Dodoma and stole hisspane parts an cheques the subject of the ch.- rges Would the workers of pW1 whom knew that 8,.dys earlier tho t appallant stole Ehs.500,000/= entertained him, talked with him and allowed him hack into in store and premises of the company for him U. steal? Wouldn't they have orrestcd him? fter all PW.l testiried in. Cr. C. No. 292/95 that on 20/9/91 after the a?peflant stole Shs.5 00, 000/= he absconded. So ho absconded on A/9/98 with Shs.500,000/= only to sufface back to the company of P 1 4.1to steal further properties on

28/29/ 9/91 The .sone witness cronies of PJ.1 testiried in Cr. C. No 0 291/95 such as PW.2 aziri Neghason Choma that on 28/9/91 he was with the appellant in the office. On 29/9/91 P'J.2 went to the store- to get the spare parts of the TAYA.RA Catepi1l.-r He sak A on 29/9/91 the appellant stealing spare uartsthe subject of the charges. The Police who was given the file to investigate this case is one 854? D/Sgt. Ivo PW.3 who started dealing with this case in 21/1/1992 although the theft occurred on 29/9/91 The cheques the subject of the charges ere brought to PJ.3 by the appellant himself who explained as DW.1 that they were given to him by the complainant as payments for the money which the appellant owned to the appellant but cou1cint cash them for there was no money on the account of the complainant Mkwnwa N.B.C. branch. Had the defence been taken into account way long as it wa' s and which was quite truthful the trial court could not havQ convicted the appellant. No wonder the learned Mr. Nagola (S1) responded to this appeal with only following grounds: I suppo't the grounds iaised by the learned Mr. Mwakolo advocate for the appellant. So I pray that the appellant he q acquitted and sentence set aside,. his oppal allowed, If it hacinvt been for S.312 (1) of the CPA which requires my judgement too to be reasoned out and grounds for my decisions spelt out, I would have allowed this apneal in hardly 10 sentences. The appellant is a very unfortunate man who be friendod an enemy who would be stabbing him from the back in.years to come. The on all three counts of theft C/s. 265 and 271 of the Penal Code and Fauciulent false accounting C/s. 317 (b) of the P.C. were gravely erronous. They are all quashed0 The sentence of 5 years and 3 years imprisonment arc set asi0e, The -appellant is released from prison henceofrth and: set free. (Sgd.) E.LOK. Mwipopo, J. 15/9/98 15/9/98 Coram: Hon. Mwipopo, J. ippellant: Prçsent (oshua ILasia Mr. Mwanol dv. present holding the brief for Mr. Mbi.sc uidv. for peilat. For Republic: Mr. Ngo1a For Republic: Mrs. Makuru - STATEAttorney - Present, C/C Mrs. Mponzi. Court: Jüdgemont delivered in the - tresonce of the appellant. (gcic) E,L.K;Mwipopo, J. ee 15/9/99 tais is a true cofly of the original Judgement. DISTRIC'RISTRAR

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