Eliud Joshua Masima vs Republic (Criminal Appeal No. 13 of 1998) [1998] TZHC 2325 (15 September 1998)

"' I -I IN THE HIGH COURT OF TANZANif., !,T MBEY!1 CRIMINi1L :',PPEi\L NOo 13 OF 1998 (From Mbeya District Court Criminal Case Noo 291 of 1995)_ ELIUD JOSh'lJ!, i"iltS.IMl~ o • O <li ·O_ 0 CJ e O 41 o O o O ~ 0 ~ ·· Versus THE RlilPUBLIC • 0 0 0 (I f'I O O D Cl O O O ,O O • 0 0 0 0 Cl • 0 0 JUWM:DNT :':,PPELL.i-iNT _ RESPONDENT :E,'LIT.JD JOSHU!, M.;srn,, the c!:npell:mt in this appe,:-1 is an un{ortunate man for havini<; ever come into long contact with the complai1nnt of th0.sc two appeals one lfokior Mnrtin B'1.,q:ule th0 ownor and M:31laging Director of M/S Ba.gule Motor S0rvices o.nj· Co. Ltd.·, in SO;lEl'O ,,rea in Mbey,3. Municipalityo From b0:fore 1983 while tbe cnrpellant was in Iringa with the complainant who was then working in Iringa with Tanzania Railway Corporation then with Belfaour Beaty Co • .me as s.n injuction pump repairer the appella!).t naively treated the sanw complninant as his frien,1 a-rid business associate9 Even after the com 0 :.>lninant shifted to Mbeya to continue with his expanded business of motor vah.icle repa_iring., The • - two continued with constant contracts thnt ended up with tl10 .complainant opening up criminal cha.rges filed in court as two separate criminal cas0s Noo 291/1995 and Cro C. No. 292/1995 both of Mbeyn District Court. In the first Cr. Case No. 291/1995 the c1ppellant e:nr1.e"c1. up being -:z charg.ed with threr counts c ""· "·ting of one count of stealing by Public f:s!''.'3-!:t c/s. 271 and 265 of the Penal Code and Cou.nts of Frnu.dvlent False .:\ccounting c/s. 317 (b) of t"i:Je Pqnal Code. · He was convicta.d on 2/3/1998 as charged and sentenc0cl to fJve ~-5) yerrrs im::.idsonmcnt for thG 1st c::mnt; and three (3) yea.f's impri,sornnent for the other t.,o -( .. counts._ In Cr{;;1inal Case Ne. 2 92/1995 tbs- s,-:nne appellant was· chc,rgetl on 29/6/1995 wit:2 n single coμnt, of stealing by a.i;0nt c/s. 273 (d) l.i of the Pen&l ode. He was convicted as charged on 11/5/98 and sc;ntenced to 5 yc2>rs imprison;aent to r,un concurrently with the sentences in th,: c)tber above ctei_ Cr. Case Noo291/1995, _-,I/hen sentencing tbe appell2,nt to the concurrent sont,:,ncsls the trial Magistrr,:.te in both cas;;s wondered why the public prosGcutor h:td filed two SGperate criminal C8.SGS c 0 rising 'ovt of the ScUTie transaction between the s9.me complainant and the sa.,nc, t"<ppellant ~ It apJlenrs, that was clone /

• 2 - purposely to harass and perscute the appellant so that he could have to. suffer the orrl.er of not getting bail easily for having ''committed' two separate offences ancl. even if granted bail he still would h~.ve to fail coming to court unnecessarily and in case of. being convicted so that he could be punished s2p0rately., It is somehow, fortunate thnt the trial magistrat.a turned out to b0 the. same ·:me who discovered this prosecutional and persecutional strategy and he r8licved th2 appellant from it tempor2..rily by imposing a concurrent sentGnce. The Public Prosecutor was quite aware th,ctt ther;e two fil,-is or.;:i.ginated from the S8me transactions and involved the s&me parties for the initic1l clurge in Cr., Ca.se: No.291/95 was filed on 29/6/95 on a single count of simple theft C/s. 265 of the P enal Corie which was later on aI1 substituted on 11/9/95 to the:i three faked counts 1,;.pon which:he was ultimately tried and convicte:'lo Whereas in Cr~ C. No~ 292/1995 he was charged on the swne chte of 29/6/95 for StGaling by i,rgent C/so 273 of the Penal Codeo In bi:-;tb the original single count charge of simple theft in Cro Co Noo 29,1/95 a.rd singl2 count chTI'ge of Stealing by I\gcmt in Cr. Co Noo 292/1995 the public prosecutor was the same as per the signature in th~ che.rge sheet and the accused was thG same, the complainant wc,.s the same and tho time span between. the committal of the offences was only 12 days part (20/9/91 and 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 ano no experience at all the public rrosecutor should bc:,.ve known hG was de.:,.ling w:i. th a same cas2 to be deo.lt with in one charze sheet one case file and 0118 trial not with only with different courts .\t the stage of these appeals, this court consolidated the two appoals by consent of both sicleso I'his is the consolidab,i jucli;ement for both consolidP,ted judgements o The ar~•ellant in both consolido.ted appeals is the learned Mr o Mw2,k::ilo (idvoce.te) arnl tho Respondcmt who is the Director of Public Prosecutions repres,:;ntirig the B:::public was reprecc.mted by thq learned Mro Nagela - Sta.tG J1ttorney& I will start with Criminal Ippc::tl N0. 31/1995 which originates from Cr. C3.se Noo 292/95. Tho le:=.irncd Mro Mwakolo (e.dvocatc) .had,raised 2 · b::rnic grounds of r:pp,1:ctl in the Memorclum of ,\pr·eal there was no -proc:,f of G.ny h::mding ovor certificate of Sbs.500,000/= from-the comrl.-iin8{\t to the aw1el1.'.:lllt and tho.t since the same trial magistrate had. ccinvicted and sentenced the o,ppellant in Cr. C, Noe 291/95 he was biased and occasioned misc.;irriage of justice. But, at the he·,ring of these the le::trned Mr. Mwalrnlo did .not touch upon these two grounds, possiblky be wanted to a,fopt them as part of his arguments ,9.nd I for his bonefi t I will to.ke it that wo.y rath9r than tro'lt those bio gr,'.)unds as h:wing been abandoned., ',t the he3ring of thic:, ar~Jc:u the le:rrned Mr. Mwakolo t V

3 - raised another fresh ground of apfes.l which is the one he basically dwelt u:on that the judgement in criial case Noo 292/95 was not a judgment at all for it fall short of the requirement of f_L 312 ( 1) of the C oP .Ao which was not cou;Jled as it did not contain the necessary contents of a judg0mant i.eo it clid n0t cont:1in th::: points for detormin:J.tbn, the decision thereon .:mrl reas;)ns for th8 decision. H,;3 further contended that it was wrong in l:i.w to use tho evir)ence· of Cr., C. No. 291/1995 in convicting tho appc:llant in Cr. 'C. No. 292/1995 without first producing the copies· of the r,)cord of Cr. c. 291/95 in Cr. Caso th.292/95. But, before I go into the com-pLi.ints of the lc::u--aed Mro Mwakolo (A,{v) thero is a technical matter I hwe to enforce about Cr. c. No. 292/95 about the charge oi tself. The statement of off.enc a st9_ted that: ' 1 0ffenc-J, Section andL,:1.w: Stealing by ;\gent C/s. 273 (d) of the P.C.'. It remained so until conviction and sentence. This stc1.tement of offence · omitted the vital section 26.5 which reb.tcs the cffencc of theft c/s. 265 a of the Penol Code. In the chsirge sf Cr. c. No. 291/95 rmother Public Prosecutor ( due to th8 difference in the P .P 9 s sign:tturo in· the charge sheet) the substituted chi<I"g•.) of 11/9/95 st::tted the· first cotint of theft as follows:- •Stea.ling by Public Sdrvant c/s. 271 arid 265 of th0 Pen.;1.l Corle'•· The Stct::i.ling by X\p;·:nt in Cr. C. No. 292/95 should also hP..ve stnted the s::uno BE the :Stealing by Public Servant C/ss. 273 ruvl 265 of the Penal Code. Since the Public Prosecutor/ who filed the charge in Cr. Case No.' 292/95 was a different one the srnne one who had filed two. different cases in the same court on the s;:i.me ,Jay conc-:.,rning the srone · complainant and the S'3Jn8 q.Ccused. for the same transaction insteo.J of in one case with merely differ&nt c:mnts it means th:i.t that public ., prosc-,cutor one Inspector ::0.ng::'\ •::id ·not mako first a cleric8.l mistake of not printing S '265 of the Penal Co;lG into the --sta'.temont of offence but he negligently or ruqJosely ommittcd it not knOlo.!ing it W3.E3 a . necessary inc;red.icnt of the st:::i.tement of the offence.- He could not. have known that an gent in B.273 of th2 Penal Code must first steal. under Sect. 265 of the Penal Cc,le before facing the sentence pro,,i.Jed. for 1mcbr E.273 of the Pensl Co,1.oo Moreover, sinco the. p:.u-ticul:,,rs 0f offence specificc1lly state,l .rec,mt time of steo.ling as· being on- 20/9/91 cit day t:i.me at M/s. Motor· SGrvice Co., Ltdo ·at Soweto within the Municip,:,,lity of Mbey: h0 clid steal .'Jbs.500,000/= the appellant woul~l be biased in his 1efence for the :'.lgent himself one Mohwnecl. Jeffrey was not in Mbeya on 20/9/91 on Gs to :-o,::ke the ::iffonce of theft 'if .my be completed. at thnt tim0 of the day of 20/9/91 -t the plD.ce o.f Soweto in Mbcya. Suppose the o.p:9ellttnt tr:.,velled to Iringa next dr::..y in ord0r to hid the money to Moh:.w.ied Jnfferi nnd stole the mmey in Iringa •••••• /4 ..

• 4 - 2 days later before 24/9/91 travelled to Iringa to rGplace the stolen money - that stealing will have takon place in Iringa ancl not at Soweto Mbeya... This default was quite serious 2-nd totDl in tho circumst&nces of this co.so 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 judgement of the le.::rrned.. Mr o Ma.ndewa (,SRM) tri.o.l m,c1.gistrate contained a reasoned out judgement in compliance wHh /:,. 312 ( 1) I am satisfied. The re'lsons of the judgement were very brief and consisc contain.eel in three pnragro.)hs starting with the last. pnra of P. 2 · up to 3 of th(c: typed procecc1.ings. His mention of Cr. C. No. 29.1/92 did not amount. to ,i, _bias ·on his :::art fer he mention ed. it .in r,espect of his '.lcf ence the,t it was as a o.nd irrelevant to tb0 charge of stealing by agcmt in this case. It was riot :pr,oper upon the trial _m0.gistrat0 tohint upon the defence the appe l1ant put up in Cr. C. 291/95 bc:3causG ecs correctly contenclGd by the .larned Mr. Mwakolo UDV) such :i d,Jfence of the c1.pt>ellant in Cr. c. No. 291/95 had not been 1 Jro-::1ucecl· as an exhibit in Cr. C. No.292/95. But, p,1.1 .mcl his supporting witnesses PW.2 Wo.z.iri Mechalc Ghoins., PvJ.3 Mohomed Jaffery and P 1 ·J.4 Jumanne Seleman Lusoga are cowny and coached witnesses wh:, were up in arms support the completinant who faced many q,ueries from many government masters that be w.J.s victimising the appellant. He. must have rec::.c hod n point when the comr 1 lainant had found it necessary to cook up cvi(iencc to b2.ck up his unjust cause an::1. from it into a kind of truth to no. avail. Why did in take him so long to tr2.ce and arrest tho .'.lCCUfied. fr·:im 1991 to 1995 while the · complaid: ,as :-tround in Mbeyn :encl Iring-J.. EG doesn I t mention in this cnse when he reported to the Policco No Police Officer testifier1 :1.t all about any comnlaint .of p;!J.l to them. It cculd b,:;; o.s well in 1995 when the complcctin:mt PW.l first reported to the Police.::md the cku-ge sheet was fir.st filed in 29th June 1995! On the other k1.nd the. trfo.l court f::iled to a.p-preciate tho defence put up by tbo 2-ppellant, He gi'l.VO a long history of their r0l "'lti·mship o.s fri,)nds to show th:1t hr, could not steo..l from him and th.1.t they were hnsinosc etssoci·1tes r:.i.ther th:m CE a worker of the comr,1::1.innnt. It is unrelio.bl6 thc::t tho com 1 cl:-iinnnt would h,ve given Shs.500,000/= to tho :..v·pollnnt on 20/9/91 \•friich tho o.p11ell.::rnt stole on the 2::;m0 d::w D.wl then dished out s.nother Shs.500,000/= to PW.3 on 24/9/91 without minding o.t cll ::1bout the stolen Shs.500,000/= given to the np11011nnt.. If ho h:d th:1t noney Shs. 1 , 000, 000/= .lying o.round likc~ly in· his :)ffico, ,ihy would he hwe not given it to PWo3 b;::;fore h:md rdh,;;Jr tho.n wait PW.3 buy tho sp::u'e -p'.rrts of PW.l with his own rrinney· - for what consieer8.tion. Where PW.3 ·;set all th::i.t Shs.500,000/= in· 1991 when •••• 0 ./5 .

5 - he was just a..11.' .o.udit assistnnt 3.t Iringn l':unicip::i.1 Council and o. petty businessmn.n ! ~y didn I t p11. 3 get st ,Joli very note of: the sp:;res from where .he bought·l:,..t Bhs.500,000/= in D:::~ cs So.l:,.nm. This is bogus witness ' . coached Ufl by P 1 '1.l him$elf ~ On tho other· km:! the ppeilr.mt sh.Jwcd in his defence tht the . 1 h 1 . 1 • • 1 f n debt f h · f t· .nppel ant ::.,, opon-<)c. up o. c1_v1. c:1.se or .. 0 1s ram ne To·. cornplnin:J.nt which the co:npl'lino.nt w:mtec1 ttJ dodge repaying him•· .. , 3:void the civil debt he opened up: these cri:nin::-J. ch=u-gcs as r:1 The defence w:1s quite c::redible .:md compm'c..ble of ro.ising rcasonabl0 r\oubt that he did. not steal. n..11yt~•.inr5 from th0 com:,,lcd.nLl!lt. The trial ' . ' ' court erred in convicting the nprellt in Cr. c. No. 292/1995. The . sruno • conviction f0r Stealing by /ir:;ent c/so 273 of the Penal Code is qu:::i.shed nnd the sentence of 5 yaors is set c.sidc. . . In· the_ other appe::tl of Cr. Co No. 291/95 the lem-nccl Mro Mw.::ucolo ' ' ' r'.'.1.iscd ~ ':tSic::tlly three .grounds th·:·.t the ,':'.ppoll::mt W'J.S not '.ill employee ::.s ::i. storekeepqr of the com1:,l ".tin':'.Ilt Ph! .1 1 th.:--t the c·ovicticn w.:i.s bc.sed on ::'. week p:rosccution cc.so ;:m,J th,,t the defence evijence w·:1s disccu-dcd altogether with:)ut good re,sons. The 0vi-J.enc0 of P',l.l Malkior M::-.rtin B:ikule wc.s thnt en 28/9/91 he went .. to Tukuyu on "', businoss mission. He t returned b:1ck on 29/9/91 :1.t 3.00 p.m. to be t0l,.l .:i_t his offic8 th::,t the .'.l';,pellr.mt h,•1 left .'J. thing berc.'.lved and h::-.d gone to bed done ::md t--:tken with him v.-:,.ri ·.us sp:ire p::irts the subject of the ch:rrges frJr the stock t.'lking he m:1dc: proved th,'.'.t m;:my items from the sturc where the :1rpGll ,nt h2d been worl(ing hyi been stolen by the '.lppell:mto This is o. bll'l.b .. nt nd n,,k,d lie. This &e P· 1 .ol Mclkior M(.U'tin B:::.kulc - tcst.ific::1.. in Cr. C. No292/95 the procec, 1 ings 0f which h::-.ve been consolicb.tel with those of this Cr. c. 291/91 ::i.t this ,"1.;;;_,e,l level thett on 20/9/91 - which is 9 d'.lYS e"'.I'lier the s:mw :11Jpelbnt. b:-ld st-:ilen Shs.500 1 000/= c:i.sh which iW.l entrusted personally in his office to t::-.k0 it to ?·.-:,3 Moh::tr.i.:;::. J'.)..ffory in Iring.:i.. Since the '1;/1:1cllcmt h:1d E:tolcn th-1.t lli'1:Q0Y PW.1 went to Iringa on 24/9/91 to pcy ,mother Sbs.500,000/= to P 1 :J.3 :1ml he returned to Mbcy,':l.. So, the :xpp1:ll1::.nt continu.orl tc be with PW.1. pnd with his employees until 28/9/91 when ?.W.;t w.:mt to Tukuyu only- to 1 :-c told. next d<1y . on 29/9/91 when he c,,m.,:i b:::tck from· Tukuyu that the o.ppCllant when he left behind h:::d left for Dodom:;i. :::int:'. stole his spc· p::u'ts --m,: cheques the sul:>j .:)Ct of th0 ·ch.1.rges! \ 1 ould the W()rkors of pi ✓ .1 whm lrnew th.t 8 d,,;".Ys c:'1rlier th0' :::i.ppell:mt stolo Shs.500,000/= entertincd him, talked with him anti. allowed him bn.ck into in store end premises of the compD.ny.:,fr him to ste'.:'..l'i.' Wouldn't they hwe 2.rrested him? 1\ftor o.11 P:·lol testiried in Cr. c. No. 292/95 th3.t on 20/9/91 after the n.~)p0llnnt stole Shs.500,000/= he 3.bscondcd. So he :::tbscondecl on 20/9/98 l'1ith Shso500,000/= only to suffnce b::i.ck to the c0mp::my of Pi\l .1 to sto::tl further properties on •. · ••• /6

• 6 - 28/29/ 9/91! The so.i'Tie 1Aritness cronies of ?W.l testirfod in Cr. c. No., 291/95 such as PW2 }e,ziri Megh<>,son Choma that on 28/9/91 he w'.:l.s with the o.ppelb.nt in the office., . On 29/9/91 pi,t,2 went to the store- to get tho sp::tre parts of. tho Ti1il:Ri'. Catepill-:-.rl He saS••..4 on 29i9/91 the nppollnnt stcv1.ling spare parts the subject of the ch::irges. 'I'he Police who was given the file to investigate this case is one 8547 D/Sgt Iva PW.3 who started de.'.:l.ling with this case in 21/1/1992 although the theft occurred on 29/9/91t The cheques the subject of the ch::irges i.ere brought to PW.,3 by the o.ppello....vit himself who explained ,s.s. DW.l that they were given . to him by the complnin2nt ns pnyments for the money which the nppell,mt ownetl to the -'lppell,'.illt but couLln 't cash them for there was no money on the etccount of the complninemt Mkwc.wn N.B.C. br3llch. Had the defence been t'.lken into ::tccount wo..y long o.s it w::i.s anJ which w:i.s qui to truthful the trinl court cotild not ho..vo c0nvicted the o.p::-,ellant. No wonder the lonrned ·Mr. N.::i.Gol2. ( s;) responded to this ci:rpeo.l with only following grounds: - I support the grounds r'.lised by the le-:u-ned Mr. Mwo.kolo - ndvoc:::.te for tho O.j)peJ.lo.nt. So I pro.y th:..t the api:ell.:mt be q o.cquitted ::.nd sentence set ::sSido, his o.ppo'1l :tllowed. · If it ho.Jn 1 t been for S.312 (1) of the CP,, which requires my judgement too to he re::ts,mcd out :md grounds for my Jecisions spal t out 1 I would h--;ve 1:u.lowcd t.his .:-,p1,ee,l in h::-.rc-Uy 10 sentences. The nppello.nt is '.1 very unfortunate mcm who be friended :m enemy who would be st::1.bbing him from the b,ck in yeo:rs to comeo The on o.11 three c=iunts of theft C/s. 265 :::..nd 271 of the Pen:11 Code '.ill, Fr3.udulent fru.so ncccunting C/s,. 317 (b) of the P .c. were gr.:wcly orronous •. They are o.11 qu;;.shc:1. Tho s,)ntence of 5 yenrs. :md 3 years imprisonment _arc s2t . nsir. 1 e. 1 rhe o..ppelL:mt is rcleo..scd. fr:)m :)rison henceofrth and. set free. (Sgd.) E.L.K. Mwipopa, J. 15/9/98 15/9/98 Coram: Hon. Mwi;,opo, J. i1p1Jollant~ Pr~sent (Sloshu 1 f".i'.".simn) Mr. Mwo.ngol.Q ;\dv. present holding the ·· brief for Mr:o 11:bisc O l,dvo for ,.ppe1.l:mt. For Republic: Mr., Ne-Jlr;olo. For Republic: Mrs. M:ucuru - STATE ,',ttorney - Presente C/C Mrs. Mponzio Court: Judgemont delivorccl in tho rrcscnce of the 2..ppell'.l.nt., E.L.K., Mwipo1')0, J. 15/9/98' this is 9. true cory of the original judgcmente ·