Grace Fumbo vs Republic (Criminal Appeal No. 14 of 1998) [1998] TZHC 2270 (10 July 1998)

"' MOSHI, J. IN THE HIGH COURT OF TANZAN!A AT MBEYA CRLlVJINAL APPEAL. NO. 14 OF 1998 .. .. . :: . . r . {Ftiom Mboei District Caiirt- Criminal ca.se No. 65 ,.if 1.97 Bfdre: J .L. Lupini.a. ~ Sen.ii.- strict Magistrate). GRACE FUi•Ul) • o o o o o • o o o o o o o o o o o e O • 0 APPELLANT Versus THt REPUBLIC ••• •.• •••• o •• • • • • • •• o • . "RESPONDENT ! ~ •;_s: . JUDGMENT The appellant. Grace w/o Fumbo, was indieted before the -district court of Mbozi for Stealing b:, Public Servant, contrarY. to seetions 270 and 265 of the • Penal Code 1 Sha,was convieted as charged and senteneed to five years imprisonment. She f•=l t aggrieved, henee this appeal which was preferred and argued before me by her l3a1·ned advocate, Mr. Mbise, and resisted. by the learned Senior State Attorney for the Republic. Mrs. Makuru. Mr, Hbise had also repreeented the appellant at the trial. The appellant was at all material times the Post Mistress a.t the Mboz:i Branch of the Tanzania :R,sts OPporation, She was the Office• wha!'ge fir1an,0Wl.y i . and admintatrat,,ely• Sh~ wa• resonsible _ for all, money colle.tioos ai;;, well as -..,;,. the remittances.! the collect¢ m$1y to the Regi41nal l,ea.tere a-t'Ml9eya. . •.; ,?,-i.t ' She had pswe• tQ grant emall leans ~ her eubQI'dinate staff., Her immediate ~ . . bclsses at the RegiQnal j±"!iee were Stephen s/Q Simfukwe P\ ♦'\ and one Mr. Mgeni ,. . • t who did not testify• PW'\ wa an Iniepecto» and Auditor., He was Priri,ri.inl PQG,tal • ~ I ~ . A Controllde Aceount.s. Mre Mgeni._wa the Regio!¥l-l I>.l Offer. ,,.?t ,wae •ormn~ /i •;, ' ·.1-' •.. .... • grund that PW'l Bfd. M:r-, Mgeni ha« r t grant l•s. to postal •ff <>f '.he ·•, . . . at any time te have eash in hand ip exeess of shs.500,000/=-• SAA e rui.red to fill and senti to Regional headquarters, and she was doing so, fortnightly Revenue Returns whieh reflected, among _ot}:le~ ,things, ~asll, jn -han<i.. The Revenue ' :: .,· .. "/;· ' . . .. ' Returns were being !illed and sent. on ~ lF"'lt and 30th .. ~ every- month • .0 • 0 0 Ct O O O ./ 2 ./ .. . .. . .. •

• 2 - (?rl 8.5.9? p\n weM:·o, the Mboz.i b!"anch of the Corooration ·to inspect the i ·. .L . / . . }, books 6f. acco;mte of the appellant. ther f~: that pose. But he'conceded in croesiexamination to have gone to Mbozi for "that pose. He· inr;beted the books ti.J,1 11.5.-::-7 -.::1·:m he returned to Regional offic• In his return journey he offered a lift to the appellant in the Corporation• s vehicle, and at i"ibeya they went to his house. On 16.5.97 PW'l reurned to Mbozi oranch. This time he was with the Corporation's security officer incharge of the security of postal buildings, James s/o Malihu PW2 0 PW1 claimed he, again, inspected the books of account if the appellant and found her with a shortage of shs,3 1 800,000/=. The amount in the harge sheet reads to ahs.3,564, 1d3/=. , The matter was rejl1rte the police at Vwawa police station at 41Q 1'IIl that day 1 The appellant told D/Sgt Thomson PW3 that the money was a lea.I?- lawfully granted her by PW1 and Mr. Mgeni. PW3 with the approval ef PW1 gave her time to pay. But she was arrested on 7.6.97 and sent to court on _The appellant admitted a shortag~/ fr shs,3,800 9 000/= in her defence at the trial. But she cienied that it was theft. She claimed that j.t was a lawful loan granted to her by PW1 and Mr. Mgeni on 8.2,97. PW1 denied that it was a loru. Her '5ersion-f the matter was this. On 8.2.,97 she ,came.to the Regi.nal·•ffj.:,e and saw PW'I and Mr. Mgenio She wae afte:r- a loan of ishs.4.000,000/=. She wanted to buy a house in Dar-ee-Salaam. PW1 told her tc Wite a lette,a of applicat. She did s<i'•n the spot and handed :l..t over to P\rJ1o They approved the loan and allowed her t~ get it w instalment& from he, <;olla.nons and -r-efleet it in the frtnightly Re.,.enue Returns. They allowaf! her to have money in ee.,t shs.500,00W= en acGoun:'t·.,r the lean, The appellawt dj..d oomctly th,"lt. Ac.,,:L'l'lg to the appellant a loan coLild be t1ted ~ tlle r:orpo:.tion in itbg or 'by telephone or verroll'• Sh·,· oc.::;2.n t-i dec.uct the :.oan i'rom :'1r c,:::.1<.:,cti::i£:s by instalments and re:'lected t.:is in the evenue Returnso Fro!TI :5"ebruar:r 1997 the Revenue Returns sholved exce::-.3es as follows: (Shs.1,o62,oe8/=), · 15.3.97 , hs.1,857 ,518/=), 31.; ,,97 (Shs.2,313 ,837.35),, 15.4.97 (Shs.2,874 9 019.25), 3004.97 tSs,3,650,438.15), and i5•5•9?-!Shs.3,-,!t,06$.~~)o •00050000/ 3

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• /,. ,._ : ... .. 3 - Sb.e h.'¥i ~ given June 1997 as the last month to get the lea.11. She ~~ :!.ag these ret'IAT?te ~ tl19 R<? 9 ion,"ll offic-<? ::...:'.1-:. s:1,:, h not 'been skcli or quied about the amounts in exeess of shs.500,000/~ t3Y showed. Changes- at the Regional office -':,.__,---:: :,..,:::.:...:a. Mr. Mgeni retired and one Mr. Mbeyela took his pl3.ce with a new i.;it::_e .)f Zoal Po_stal :;am.ser. Mr. Mbeyela, like Mr. ·Jvigeni, did not testify. When PW1 went to Mbozi- on 8.5.97 he told the ·1-1 • appellant about the changes and ti.1at ;-,ir. :,:ba:'3~.a did not a)?rove of the loan and wanted immediate steus taken to recover the monev from the ar..'.0e1:aat. He pr:omised ~ u ., - 't' ,. to talk him down, and they returned -o Hbeya together to show her his hou.se so that . . the appellant could take the money there as '·6oon as she got it, PW1 retlll"Iled to . ' ~ .. •1 on 16.5.97 and told the appellant that he failed to convince·Mr, Mbeyela. ~ that time the appellant alreaey had from the collections shs.3,800,'-'00/= of the loan. PW1 aled the appellant tQ go "to Dar-ea-Salaam in an effert to eaneel the deal flS!' the phase of the hoii:Se and g the money back. ~ le:rt on '•97 and »eturned c,n 7 •6•97. She wa arrested on her 1"eturno On account 1ft that the appellant admitted. the shortage of the m?.p~. carried in the -ehar{se sheet. the queetion before the trial t was \rilftethe the mettey was stalen ~ it was a loan. Tmt question would• likewise. Qe, thflY &ne upen . -·1 which thiA appeal must stand r fail. l3oth Mr, Mbise and Mrs akuru 8-gree that ' there were misdirections F the part r;f the trial ma.gietrate a. to burden o! proof. The trial magistra t •hi.fed t1'_e burden of :oz-oaf to the appellant. Thi was one of the grounds of appeal preferred i. •l•H But Mrs Makur~ μ1siated that the <::onviction cjf th9 appel~•.'• ~~ly.en~~~ct those misdirection& notwthetaridin&ii, · ♦ naed only p()i.nt. Ollt a f~ of those misdirections. The ti-ial ma.gistra.~ ·ia].led, ~~ defenve of the awella11t. all . a ... fabrication, and a surpr-ise- and :rejected it, i,n ,3.ccount of, ameng ~~,rT -~ firstly, failure of the appellant to !)r.cxlue c:.ot:;-.r..t9.TY e-.i.<:o < ~i.91\ • the application and appreval of the loan, secondly, Failure ~f .:t:l1e.ppellant <> .. , . . ·-. !; . . .. - pr<>flue,e o:,cumeftt,ary evidP-nc.e aut!tot"bi!tg h.QII' -slci:;.t-- mOft ~..aily ........... / 4

" ' ; 4 -., ; .... , ... ·. "" ll"i;;,J - th})a;l.,. o£ c ~ 4,;.,;.;l t1,e·1,re ~ Postal Offli:ei--Mr.• Mgeni t pr6ve ·1r' the···10 was given to h,er ve':bally, srioo htjf 9ll't to qth::ti: ::. ::. Ct'.'--: :L_ ·1a-:-:.-:::'.''.:l- ;. S :<n?w},ed.ge and dgrstanding ·- .' ·- - ~ . . . . . ····-:--••. Oll that "J.bt9ct. This was ·3. ·ji. ·+:.~ fr-'··.\f ilii ~i-i._er onus bi :pF6vfag:··the 'guilt ___ _ it an C.CUi3ed pet0ri .bej·:J:id i;~c. :c"'.!iL ·io.1bt fa :3;]::.:;!/b ~i .Pose.ctit{oi:. f~:- . -is ,hot!' for. the accused to prove :·:~~ defence.' . ~~~-- is () oLg}tfn· oh'. tHif i the acd.i&d to prov. hs irtnoc ec... ™ ~ hinc .iib r m\lt. a/heia 1 J a~~ed by th~ court, unls; i+t 6Jlct e'-i;Jd::by .hi ;jkcuttti -et:Aci a; roariahlf doubt- SEE ii M+t ,i: jr6{ if: Vi ?i•:h Ja1 f:/;{ magistl!"at id hen>;,,Waailo. :requir.e ·the ar,t>.:.lant ,to pve hel" μmocence. That wae •. in law, an )error• That approa9h, as I shall demonsirfte., inevita led• • en errO?- in th9 proces of evaluati of vi.dene9 whieh, in turn, led· tg wro11g .,onclusions a.s avorred by Mr. Mbise in another ground i,! appeal•. The appellant hail explained h the Pd'!'QUen gJAan.te(! J',•ppro• lw.l\Se It was in writing :V by tel.eph'on.e or veroo.lly, That pro,edur& was une$11roverted. PW1 oio not fault it, He did.not come out with a diffgrent proctdui- ♦• So the bial court was bound by th9 procedurg s giv,6n ey the appellan!lVin to ·•ucumstances. It waii.clearly wrong for ,the tj..al magstrt -::o :--U:!· e1~ . , ~ ~ :~ ~ ? ~ ' ;~ : . ·) a proeeduii» toi-. the tort i;~ as91.8$ ~ ~ ..,.. u ......_ ; i !louted• He-was no thlit Corporation. . . -: : ,,· ;t[: ~ . i- ·- •. ;i TM evidenc4 of PW1' was hily SU e ~~ 'being t. td" task by Mr,:. Mbeyela on the lean;, fall,. -erl! looe, T'te woul cco f_, hi• ,ef 'If & tJl.IY-ll'"t 1 • ' • • • aimed at d,enying .ta,·raJe go:,9 to te ooi 'branch on 8.Se9? y inspa.ti h.,,ever•· yielded later.. Tll&.t v,a·s ~ fJ.t.il £? tto!!lp itdi .. i4l - •..,. appellant and the loan, &.c :;..)as,: c+, t_:..:. stare, · T.1is wouhl a,l=n a f~ ,2U.. ta.et the he reported the :nat ,er to '.1e police on "r,. '7•97 even befoe -he ·had tttibnitted hi!; rport to MI", :··)e:ye,. ·l'here was in this case ali ii~tiicatiol. jhat PW'. .md Mr, Mgeni had granted. the :!.oan i:.0 the appe:;.lant. They had the ~er to. do so. This would account :::- tnP Tact that •1,. d.:id tl.O't f<':!r a pen. a~t ~ '° ... / 5

ii.V'11' a,xi±n!i i4A_.,0r, \ie•~--:'t . .:,.i,1_.j_att:t.; ~ : "tJrtni~~'l:!.;·. -v-anue :Returns ✓'.;... . ,:- ..... which· Jer·~--l; ... irtg t'? a~'.)-h.1ts i:1 exce,3s ~ t'ho reciuired ca::n :.1..r.it 'bf shs._500,000/:::. Thi would :::.lso account f6:r the fe ·t that they did n6t questi'?n ·.or query the " appellant r'or not ha1i.ng remitt!c ·L.J Le. ?egi'Jnal office for th.a°:t same period the

• : .{ ::.:.:. -- amounts shown on the .Revenue Retur.3. .'.,.rj'_ :.t w:\uld also account for the &ss af the appellant 0:-:1 the matter. C:e ·:,.:...a :i:iroughout been oren on the matter and , She had even gone to te extent-of adniitti..g an amount greater than that ca:rried fo the charge sheet. S1e 3.J.zo went on to say the month she was ' . . :rquirea to stop the 1lan deductions from tli,e coll_ections. In the circumstane-es, eh9 would not have been thus open in the event'_ that she was acting without :: . . ; : ~ authority. All this ought, and deserved, to have ieen taken and regarded as u ud.ica tion ~ trilthfulnes.$ and sincerity on her part, and not,. as wrongly fot.md by the trial ceurt, the'ctivities fa thief. With respeet t• Mrs Maku?u, it be•~~-v?mply clear in the circumstances that had th trial magistrate ...,a1ua·teo the •videl'lte -"Qef:h with. the raqui.Nd 4t&grG- of judicial oQ.ieetivity • he would teJ>tainly have found, as I nfH ooreby find• that the ~ in. Qllestian wa.. a ~ loan authorized fQr he?" ijy PW'\ and the then Regina.l P~ Offieer, Mr. Mgeni. I a.eJrdingly llow the appeal, ash.,·te convietion, set a.side the sente, and he1-eb~ 6flid9y th~ •eleaee 41t·.e nell.ani."'im p:r-io11 f•i'thvtith. The Cp_poratisn . . f~,i~•lt s ~ •t :r~. AT MBEYA. __ _ 10 July 19?~:o. For· Appellant: Mr. 1"!' ise, advocate. For Republic: Mr. ::: ,ge· ~, SAo BoPo MOSHI JUDGE