Newton Weston Mwakabambo (HC Criminal Appeal No. 109 of 1980) [1985] TZHC 180 (7 December 1985)

, C • •.•' . • Ii4 THL, 111011 tJOJhT OF T; JZ,ii ~ , L ll __JUklaJlCi10 hIGl (.UURT ChIbiJt -1tL i. 109 OF 1980 IG1i4g GRfll L C3h 10.305 6T 1979 UI? ii DI CJRT Q IJLT T NJOL. i';(oi isTQN I. i1L3A1L0 ,.......... .•......,• versus !,.•,.,..... ii4nçu 1 ThC appellant, oae /i6T0rJ Li3Q 9 stood Qhrd before the 1owr ;ouxt with the off ençe of steaJin' by srant rls 271 and 2 of th@ Pna gdé invyin the un of shs.70,000/= the property of lina giQn Trad4xi (onipany, he was convicted and sentente& t4k, seven years 4.mpinnient. Thh artics fçund with and $9tzd from the aced wi t h vuc much less tkan thg, annnt alleged tQ have baen 5talan were ,rdred t rfeited t9 the R.T.C. Iringa 9 no Wder was made fir CpmpensatiQn If the sWlëia money, despite the fact that the learned trial ma4~ ;i tratq appreoiatd that the Qffeilce fell undgr the U.niinwn eutençe t. It ig atS ainst sçh gonviction and sentence that this appeal has been preferred to this gourt, ppeaing fgr the appellant hr. 2ukunjoba, learned advocate Pal1erid the ju4 g oment p f the lgwer court, on five grounds, that is to say (i) that the pr9se4;ution failed to prove beyond rea*naile dibt that the appellant was given the two sums of shs.44,55/lO a nd h.3,673/79 by the cashir F. .lO on 6/9/1979 to tka t9theban1 (3) that the 1erned trial magistrate was not justified on ejdence' in hold.iug that the apel1ant wrota all the cash sale and Qfficial receipts; (i44) Th.t the learned trial magistrate overlooked the fact that the pr9ecution witnesses gave contrad.icthry evidence Qfl material particulars and the c.ntradi&tions sh.uld have rajed a reas o nable dubtwhich should have been resolved in fagu' of the appellant; - that the prosecution did not conclusively prove that te Gippellant waQ the one ohQ added figures and wiis.tothe d.up1iate pay..in-siips; that the trial maistrate erred in forfeiting the mtor cyclE te R.T.G. Iringa as it did n o t belong to the appellant. labra'ting g n the above grounds hr. fuku.joba argued with much fQrQe that as regards the allegation as testified upon by the P.1.10, that the appellant had been handed two lots of shs.44.l5/10 and shs. ,_673/ £r banking, wiic was disputed by the appellant, cthS maintaLi1

that he had been handed nd ea.Tkeu lots of shs-4,15 ( 1 5 /14 and oril;, at the Ld.C. hjonue, the evidence the 1 .,1U could pot be r1.i& a ib1 t u cause there no hui in; over th:.tgh was flQreoOrd of StCh ian over she 'lid so in the presence of her fllw, worker io was alleg.d to intV also witnessoj CU.nting of such. money, the rhIl denied to have witnessed the cs;in of the nney thu'h present when the noney ias • handed to the.':pnaflt. jie then surnitted that under such circsinnc' i was difficult tall %vhi between the appellant and'tho I ,.lO was thlling the truth, that it wa§ therefore WTQfl for the trial magistrtte to reach a findi:t the pr ewtn had proved the ease beyond all reasunable dubt, further a'ued that the credibility of the I.1O was also renderee. sus- .pect y the termination of her servics soon after such loss of ciey. lkunjoa further argued that as there was a dispute as to the author Qi' the wQrda and fiares of forty' and 'thirtr' added bef'r; the words and-fiures :lfourc and "e-igIiV on the çr iaalanh OJ-L -: so a5 to read "fQrty four thousand .. . . ' and 'thj.rt1r eight thousand reepeQt.vO1y, it,, was more desirable, thou that gould hot amoznt to a cenrx,lusIve evidence, that an expert conpari. son of the figures and ?iords QonQernd had been obtained. for the .mrds forty', thirty and the figures 4 and 3 preceding the figure 4 standing for four thounnd, and the figure 8tandin fçr eight thousand, could have been fraudulently added by another J.erson.' Ivir. Tkunjoba also uruni on the f dung ef the learned alsiL ma€jstrat in respect of the oinership of both the iiotorcycle a sewing machine found with the apueliant that, the ciendul by a QhurQh official that there was no one knowr as a usi.ng the Church' s postal address of 'xJ,O .niloaga, was iao.equate to estaalinth that the said bel .3anga in whose name the iotoreycle fund with 1'e appellant had been registerod, uao ndnexient at ulsngwa as twirl Court found. Fr the said Lbel Sariga was knoin to have gone to iiest Germany, but hoaction was tdien by theprosecuition to disprove the sage. And therefore the forfeiture order was wrong. s for the ownership of the ewjng machine it was argued that thoug.r: the osecat.ion had suspecte 3 that the appellant iust have used the i.T.C. funds alleged to have beob $tolen in purchasing the sewing ieachiae worth shs.i,700/= on the ground that the appellant had been earning a salary of ahs. 'i40/= per month, there was defence evidence that tfie appellant' a wife who was a teacher was earring a alary of shs.1,040/=, so that such piosecp.tiou evidence had no weight at all. N

-.3- uh argJments were, however, countered ay I r. hduu.ru , learned state Attorney, aippea r ing for the iepuhlic who arped in supp4rt of the GQflv.Ction. on his part i.r. .'idnguru, conceded to the de f enoe counsel's argument that there was inac1euate evidce - ce to dish that the artjes found uith arid, seized from the appelirnt 1:ad been purchased with the money alleged o have been stolen by him. . the other hand Lr, i ~ du nG uru arued that the appe'lant having admitted befre the lower QQL1X't to have teen the one who had recorded the duplicate and arjginal bnk.pay-inslip and there being no apparent differenoe in the words and 1jues appearing on both the riinal and dup1iate bank payin- i.n respect of the sums of ?iey the subjeot of the charge, and in view o f the fact that before banking the money the appellant was upposed aane the money he had been handed with the cash sale eceipt, the R.j..C. Official reeeiptIand th oank notification, there was no dut that the appellant was reuponsible for the loss of money QOmpained f 8 in reply i.r, 2u1cnneba argued that it me not true as suggested by the learned btat ttorney, and I think he, is right on this point, that 'the appellant had adunitted to have been the author of all the WQrd and figures aipearing on the b k-ay..in-slip from which the contrgery arose, 2or he was disputing the norris., and figures "forty' and 1 trty' 4 appearing on The original copy of cuçh, pay-im.s1ip I further argued that there was nthitg in cidencc., before the lower OQurt that it was the 1roc0dure oefore the ironey ':as banked to compa,r the runey in hand with the tutali of the dash aule receipts R.T.C.'s Qffiçj.4 receipt and the bank notification, as the same were used in the in ,9 tant ease simply for the purpose of handing ier the moneys by the I'.'. , who was -the shop inanager, to the ppeliant who had to take c over the shop manager's duties terLoorarily. all the above arguments having been considered and in the light o f the facts as stated above 9 the only issue that th .urt had to resoe is whether the appellant, had been handed over only the amounts of money banked on 7/ 9/197., or together with the 'amoimt .f moj .1aind to have been stolen by him. On eareful consideration of the facts of the case as deposed Defore the loier court this court is of the opinion that the proscution ease leaves a douct rihich is considerd to be r.ore than reasonable, as to whether the appellant stole the mo;ie corplaiiied of , on the following grounds:

• 4

f'irst, slnco the uuplicate of thc 3anh lar-ii_slins 1só bear the baiihs staip anf he te1lers signat - re, the added rcts and figures aj,pearin' on the original copy of such pay-in--slip 'iust have been so added after the banking Other - use as the words and •'figures appearing on the oi'iginal pa!-n-s1ip di not aee with the amount banked, the sene could have been easily detected o y the teller, (F. n3). i3econdly, on close earLthatiordf the added. .riti:gs of the words and figures on duplicate iank lay-in-slip for sii4j/lQ; one may note a i:arhed difference on the usual capital lett-rs used by the appe.aut for the letter :hich are consistent in the rest of the sentence, but different from the lett'r that is used for the word hlfortyu oofore the eorls four -bhóL'sa -1d •0 . - nd the same can be discerned fo the first figure L4

• preceding the number 4,155/10. In the circurstaucs, expert comparison of the semd nould have been most preferred.. Third, there is al-so the aicnaillnfed defence eviaence that the 1.1.10, Irho was the cashier, took custody of the thai: iay-in-slip after the barikin;; of the moa - y, nonce ci - rorthnity fc.r her to fiddle with it. Fourth, although the Iiathin; of suchsuru of roney to the appellant was witnessed y the 1 .1l it -as not coin.ted before her as alleged by the 1.s.10, the cuhicr. Fifth, even if it were to be accted to thve ':eo usual to have the money to cc bard:ed compared eiti: the &otal ar:ountrj reflected in the cash sale receipts nank notification and d..T,0, official receipts such comparison was, in th •.iords of the appellant, iojsiol 1oau.a by then sack other- doeainats hal boon looked. in by th 1 .5, the shop manager, iio was then absent. Sixth, it also smacks of saspicion to note t at saboequent to •sud loss complained of,, the i-.:.lQ, who was then the shop ashihad, on 30/10/1979, to terniiat-u her servico without notice and. £or.:n0 reason at all, before the loss had been d.iscevered.. -

Seventh, suspicion over the appellant for havingpurchased one second-hand singer sewing machine for shs.l, 600/= about two months later following such loss as having been out of the funds alleged to have been stolen is untenable, in the light of the evidence that besides appellant's own monthly salary of shs.630/=, his wife, who was a teacher was earning a iionth1y salary of shs.1.0401=, iighth, while the hiVlO, claimed to have been the procedure to hand the sales proceeds for banking purposes, vervally•, but witnessed only by the 1hi.11, that had been rebutted by the evidence of the 1.4,5, the shop manager, tho testified that such had be done in I' writing, hence the supicioi1 over the lh .lO, as to wily, despite S such practice, the lO not done so she must have had a sirnjster motive. hinth, there was certainly inadequate evidence to establish that the name of one .ijel 3an:a was a fictitious one as to warrant the inference that the nicicr crcle seized from tIn znpellant belonged to the appellant. For the above rnaons this apneal had to allowed, conviction quashed and sentence :t ahlie, .ith an orier that the appellant should be set at liberty forth.ith unless lawfully held for another cause, is judgement was reserved, i is hereby so delivered, .L)ated 7th December, 1985 J. A At i'Abeya. J JDGh, Ihr. iidanguiii for the Republic 'funkunjoba for the .appellant. .// ,J •1 lIASU, JJDGI, 7/12/1985.