Samatta, J.: Mkomaindo Government Hospital is a well known institution in Mtwara Region. It is a district hospital for Masasi district. In 1980 the appellant, Benedicto Ajetu, was working there. He was a nursing officer. In addition to his normal nursing H duties he used to work as a store-clerk. In this capacity he was responsible for buying, inter alia, food items for consumption by the admitted patients in the hospital. He used to maintain a store-ledger in which he was required to enter the details of the purchases he made. It was common ground that between March 27, 1980, and July 6, of the same I year he bought and took delivery of items as detailed herein below:
DATE
ITEM
AMOUNT
A VALUE IN SHS
1/3/80
Pigeon peas
3 bags
1,650
28/3/80
Cured Fish
2,200
3,520
1/4/80
Maize Flour
4 bags
972
Pigeon peas
1 bags
550
25/4/80
Rice
60 kg
B 321
Cooking oil
18 tins
648
6/5/80
Sugar
150 kg
1,050
Salt
400 kg
600
17/6/80
Cured Fish
8,000
12,800
18/6/80
Chinese Cabbage
300 kg
C 1,200
Tomatoes
185 kg
740
Potato Vegetable
300 kg
2,340
(Matembele)
Oranges
200 kg
800
21/6/80
Bananas
281 kg
D 1,124
23/6/80
Oranges
286 kg
1,144
Tomatoes
176 kg
707
Bananas
278 kg
1,148
Sweet Potatoes
288 kg
576
5/7/80
Chinese cabbage
430 kg
E 1,360
Tomatoes
290 kg
1,160
Potato vegetable
360 kg
2,160
(Mriba)
Oranges
307 kg
F 1,288
When, in August 1980, the appellant's store was checked by a Mr. Iddi Ngwale, a Regional Stock Verifier, none of the above items was found in it. On September 30,1980, the appellant was taken before the District Court of Masasi district where he was charged with eleven counts of fraudulent false accounting, each contrary to s. 317 G (c) of Penal Code, and with eleven counts of stealing by a person employed in public service, each contrary to s. 265 and 270 of the same code. The appellant pleaded not guilty and the case had to go to trial. In the end he was convicted on all the counts and was sentenced to a substantive sentence of three years' imprisonment. H
At the trial three witnesses gave evidence for the prosecution. These were: Dr. Venance Mhando, the doctor-in-charge of the hospital, Insp. Kisilla and Mr. Ngwale. The appellant, who called no witness, defended himself on oath. Dr. Mhando's testimony was, strangely, fairly short, at least according to the record of the case. He asserted, I among other things, that "between June and July, 1980"
(sic) he discovered that the amounts of fruits which the appellant was purchasing were A unusually big. Assisted by a senior nursing officer, he checked the appellant's store. What did the pair discover? The doctor's answer was: "We discovered that [the] accused did not enter any fruit in the store-ledger and other food were (sic) not also shown in the store-ledger." B
The doctor informed the hounds of justice about his discovery.
The appellant admitted to having received in his store all the items which formed the subject matter of the charge laid at his door. He made no effort to argue that he did not enter in the store-ledger the details concerning many of the items. He appeared to C explain away the omission by asserting that, apart from being a very busy officer, he was not specially trained for the store work. By necessary implication the appellant was claiming that the food items had been legitimately consumed at the hospital.
When the appeal was placed before my brother Mushi for admission or otherwise he D directed, while admitting it, that the District Court take additional evidence and certify the same to this court. The direction was made under the provisions of s.322(1) of the Criminal Procedure Code. In the course of the direction the learned judge said: E
It is not disputed, according to the record, that the alleged goods were received by the appellant. It is, also according to the record, not disputed that most of the items were not F entered in the Rations Ledger. Having regard to the nature of the goods, they could not have stored to be shown to the Stock Verifier, as they were mainly perishables, even if they had been entered in the Rations Ledger. The goods were for every-day consumption by the patients as they were vegetables and fruits. G
Having made these observations the learned judge went on to pose this question: "Is there evidence that those goods were not in fact used by the patients at Mkomaindo Hospital during the period in question?"
If I may respectfully say so, this was and still is an important question, on the answer to H which principally hinges the result of the appeal. The additional evidence was taken by the District Court on October 20, 1981, in the presence of both the public prosecutor and the appellant. It was given by one witness only: Dr. Venance Mhando. Unfortunately I the witness shed no further light on the case. The
witness tried to fill the lacuna in the prosecution case, pointed out by MUSHI, J., by A saying:
I received so many complaints from the patients that they were not receiving vegetables and fruits. During that time I was receiving bills showing that accused was buying vegetables and B fruits. I was receiving bills which showed that we were buying many vegetables and fruits. I was surprised because I was paying much money.
Was it established beyond reasonable doubt that the food in question had not been C supplied to the hospital kitchen (so that finally it could reach the patients)? As already pointed out, this was the deciding question in this case. As is well known, in a criminal trial in this country an accused person bears no burden to satisfy the court of his innocence. The burden lies on the prosecution to establish his guilt. In the case now at D the bar, therefore, the appellant bore no burden to satisfy the learned trial magistrate that the goods in question reached the kitchen of the hospital (or the wards). What was the difficulty in adducing evidence from one of the hospital's cooks to the effect- if that was E the true position - that the appellant had not made available to the kitchen the goods (or at least some of them) mentioned in the charge? What was the difficulty in calling those members of staff who were responsible at the relevant time for serving meals to the patients to come and give supporting evidence on this crucial point? With respect, I think F neither the sophistry of a Roman jurist nor the labour of Sisyphus can possibly provide satisfactory answers to these questions. As will have been already noted, Dr. Mhando, in the additional evidence, made some reference to the complaints which he received from patients on the non-serving of vegetables and fruits at the hospital. Since none of G the alleged complainants gave evidence in this case, in so far as that piece of evidence was given to establish the truthfulness of the complaints (from the patients), it was inadmissible in evidence for, plainly, it was hearsay: see s.62(1) of the Evidence Act, 1967.
It may be true, as was asserted by Dr. Mhando, that during the period in question the H appellant had bought far more food than at any other time before. But this fact could not, by itself, be very useful in establishing the assertion that the food had not been (legitimately) consumed at the hospital. It was necessary, to make the piece of evidence I carry some weight, to lead evidence on the number of patients admitted at the hospital at the relevant time and
also to give the numbers in respect of other periods used for comparison and contrast. A Unhappily, this was not done. It cannot seriously be said that this evidence was not available or could not be made available. In my settled view the lower court could - and should - have invoked the maximum omnia praesumuntur contra spoliatorem in this B case.
The prosecution did prove, and the appellant did not dispute, the fact that when the store was checked by Mr. Ngwale, the stock verifier, none of the purchased goods was found in it. I own I find it difficult to understand, in the absence of (proper) proof that the C amount of goods bought far exceeded the hospital's requirements at the material time, why anyone should have expected to find some of the goods in the store. The goods were bought to be consumed by patients. Taking into account, as was observed by Mushi, J., that most of the goods were perishables, I cannot understand - and it is not D for not beating my brain - why the fact that the food was not found in the store at the time Mr. Ngwale checked it could legitimately be taken as being only consistent with the food having been stolen.
I must now say a word or two on the counts for fraudulent false accounting. In the absence of evidence demonstrating, to the satisfaction of the law, that the appellant had E converted the goods to his own use, it was unsafe to hold that the omissions to enter the details of the purchases in the store ledger were a product of design and the intent behind them was to defraud. If I may respectfully say so, I think Mr. Sengwaji, counsel for the Republic, was perfectly entitled to decline, as he did, to support the learned trial F magistrate's findings on the eleven counts too.
There is not much room, I think, for debate over the fact that there was a fairly strong suspicion against the appellant in this case, but, as the learned authors of Field's Law of G Evidence (10th ed., Vol.1) very rightly observe, at p.266, "law reports are full of access based on the wisdom and experience of eminent jurists that suspicion, however strong, cannot take the place of proof." If the alleged offences in the instant case were in fact perpetrated, they were not, as, I hope, I have sufficiently demonstrated, proved beyond rational controversy. H
For the reasons I have endeavoured to give, I allow the appeal, quash the conviction and set aside the sentence imposed thereon. The order for compensation is, naturally, also set aside. As the appellant is now a free man, having finished serving the sentence I have I set aside, I make no order for his release from custody.
Appeal allowed.
A