Leonard Daniel Lulandala vs Republic (HC Criminal Appeal No. 9 of 1988) [1988] TZHC 284 (6 August 1988)

Kazimoto, Jo HIGH ,__;C,UhT Ci<.It-1I1fr,L "it..,.i., IWo 9 OF 1988 Original Crimine1l c2s1:; Noo 38 of 1987 of the District court of Songen lJistrict at Songc::u Before: L.MoK ■ Uzia sq., kesident Magistrate 00000000• Versus TH!:., lt!::PUBLIC 000000000000000000000 J U D G l'1 E N T ' The aJJpellant and one ida.du SaiJi I r 1 1bnno were char9ed 1:1i th stealing by servant c/ss 271 and 265 c,f the Penal Codec Zidudu Saidi l"ibanc, was ucquitted. The uppelL.1.nt was Cf nvictcd c.md sentenced to tnree yec.1rs imμrisonment .. He he.is apμ1::a.led c::go.inst both ccnviction and sentence .. The av11ellant hc1d lodged the grounds of appeal., He h.:1s argued that he was auly u pssenger in the tanker anJ that he was not emJ.:.>loyeci by t'Wl. He argued th,it even i->Wl did not state in his E:::Vidence that he emJ..)loyed the cipiJellant. It is common gr0und thut the UJ?1-1ellant c,wns a tr,.msport business ana\hdd oil tankerso It is 0nceded h employed Zidadu Saidi Mbano ciS a drivt:r. rt was nlso: not indispute at the triul that the said Ziuadu Saidi Mbano WE:nt. to ccllect diesel from BP shello rt is also in evidence tnt op the way back from DSM and at a place known as Tamangozi the oil tanker broke down. Evidence 'I further shows that when 2iuadu .'.:>aidi JVJbano rei-iorted to PWl it was found out thdt 1,900 litres of diesl·was missingo Zidadu Saidi Mbano alleged that the oil was stoln_b th~ 3μμellanto In his judgment the trial magistrate fc,und thctt the apJellant stole the fuel, that he was emlc,yed y PWl and he esc3ped from th0 place where the oil tanker brok Jown. The state attorney had suported the conviction of the cμvellanto oooo/2

""". 2 To suort a c0nviction under section 271 the prosecution must estublish thctt the uccused WctS erni::iloyed as iJ clrk or srvant ana the thing stolen was the μropeity of his emμloycr or came into his μossession ny virtue of his ·emμloymento The fact of employment must be provedo In his evidence P\tl stated th2.t the aμellant wus taken us the ssistant of the driver. He said that the uμellunt wcts a turnboy. - When he was cross exmin0d by the aμpellunt PWl stuted that the .i?ellant was rought as an assistant ana that he worked in the garage. The appellcnt has denied that he was emi::il oyetl by P\rl as a turnboy or in uny other capacityo It oi?μeurs to me tht ?Wl wus uncertain as to whether he "emi?loyt!<.1 11 tht! apJellant or thi.i.t the apμellant was t 1 Broght" to work in his gurage. If the aμellant was br0ught to work there he did not SiJ.Y who orought him there. This cannot be t2ken as employmento In my view there is no evidence that the apJell □ nt Wi..lS emi-il oye<l by i:>VJl O There is another point, and thut is whether the pellont stole the fuel. There is no direct evidence that th 3p~ellant stole the fuel. The only evi<.1ence Ltgainst the aμpellu.nt is thnt his co- accused. But that evidence should not hdve bn acted upon in the absence of corroborution. i,ccording to J?Wl when he interrogated Zidadu Saidi Mbano bDout the missing fuel in the tanker, the saili r10ano st..,,ted to him thi::it he did not know ,:mything about it. He said .Mbano refusc:J to yive ,my expl,:.mution about the missing oil. rn his evience Mbanq testified that he wns informed that the apellant wus taking the oil dnd μutting it in drums. The i?erson who dllegedly saw the aμellant fill the oil in drums WbS a shokeeμer. He was not called. This evitiencc being hearsay shc.,uld not have been Deliev8do Mbano also test- fied that he reported the mattt::!r to CCM office at Tamangozi \·Jho gave him a letter. This shoulli huve been Jisbelieved. First it is hearsay and secondly and this very important to note that Mbano never told f>Wl about his reporting the matter to CCM office at Tamangozi or that the fuel was stoltn by the apellnnt when he was asked to explain wnre the missing oil was. rt is \ clear in my mind that Mbano was trying to shift and has shiftcJ the blu.me to the appellant. Hod it not ben for the eviJence of Mbano tne aμ~~llant would not have ben convicted. s I .hve tried to illustrate the evidence of i"ibano was not only corrobo- rated but wus such of little eviJenti~l value that it ought not 0 •• /3

3 to have been believed c1t u.11 o For then.'. rei1sc::ns c:in<.1 with respect to the 10rned state attorney th~ aellan~ WdS wrongly convicted. I thE:!refore ullow the <l;Ji.-'ec1l, quctsh ccJnviction .J.nd set nsidc th~ sentnce imposed agoinst him. I orJer that th aμ~ellant be released from prison unless ctherwise lfully held. Coram: S.J. Lawenu - DR. Appellant: -Absent~ E.I:;. Kuzimoto Judge 6 .8 .,.88 •· For Republic: Mrs Hyera - State kttorney. Order: Judgment delivered in the presE:!nce bf Mr. Hyera - State Attorney for thE:! kepublic,;thir; 6th day of AU<JUSt 1988. Af.ipellctnt did not 1aJish to:u.p,t,>ear. i \ ;;:, .J. Lawena DI.:iTRICT I-d:,;GI!:)'l'H.J.R 6.,8'.88