Court name
Court of Appeal of Tanzania

Director of Public Prosecutions vs Elias Laurent Mkoba & Another () [1990] TZCA 22 (28 August 1990);

Law report citations
1990 TLR 115 (TZCA)
Media neutral citation
[1990] TZCA 22

Chipeta J.: In Kigoma District Court, the two respondents, Elias Laurent Mkoba and Charles Mholo, were charged jointly with the offence of stealing by public servant c/ss 270 and 265 of the Penal code on a total of 22 E counts, that is, l 6 counts in respects of the first respondent and six counts in respect of the second respondent.
After a full trial the two respondents were acquitted on all counts. Dissatisfied, the Director of Public Prosecutions now appeals to this court.
F The prosecution's evidence was that at the material time the first respondents, Elias Laurent Mkoba was an accounts assistant while the second respondent was a general clerk. Both of them were employed by the Tanzania Railways Corporation Marine Operations, Kigoma. Between 3rd July, 1987 and 16 November, 1988, the first G respondent received a total of shs.1,920,507.20 from one Bernard Ezekiel Bundala (P.W.3) being coaching and goods earnings from M. V. Mwongozo. The second respondent, on the other hand, received a total of
shs. 576,908.20 from P.W.3.
H The procedure that was supposed to be followed in dealing with earnings from M. V. Mwongozo was that the steamer clerk, in this case P.W.3, had the duty of collecting revenue. He then had to record the revenue collected in a Cash Remittance Note Book which has two identical leafs. After filling the two leafs with the total amount earned, the steamer clerk himself would go to bank the money, and the leaf on the right hand side of the Cash Remittance I Note Book is then detached and attached to the paying-in slip after Cash Remittance. Note has

been duly stamped by a bank teller. The two documents are then sent to the Chief of Finance who then sends an A acknowledgement to the Marine Department.
An administrative Manager, marine Department, Kigoma, one Sebastian Nandi P.W.4 testified that the two respondents and P.W.3 used to work under him and that P.W.3, who was a steamer clerk had the duty of B receiving revenue and banking the money. According to P.W.4, he changed the system sometime in 1986 after some theft was detected. It was arranged that P.W.3 was to hand the earnings to the accountant, that is the first respondent, who was then entrusted with the duty of banking the money. After banking the money, the first respondent was supposed to give the Cash Remittance Notes and paying-in-slips to P.W.3. P.W.3 was in turn C supposed to prepare comparative accounts and send the same to their Headquarters in Dar es Salaam.
After direction that unusual procedure, P.W.4 took for granted that the new system was being followed, and P.W.3. never complained to him that he was not receiving the Cash Remittance Notes from the first respondent. D Besides, there does not appear to have been any official handing over of duties and relevant revenue documents between P.W.3 and the first respondent.
P.W.3 however, testified that he used to hand over the money to the first respondent and, in the absence of the first E respondent, to the second respondent, and that each one of the two respondents used to acknowledge receipt of the money by signing in a book (Exh.P. 1 ) which was improvised by P.W.3. and is not an official accounting document of the corporation. According to P.W.3, he complained to his supervisors at Kigoma about the failure of F the first respondent to give P.W. 3 the Cash Remittance Notes, a fact which was denied by P.W. 4. P.W.3 also denied having received any miscellaneous receipts for any of the respondents.
An accounts clerk from the Corporations Headquarters, one Naiman Isaya Tarimo (P.W.5), testified that the last G time he received Cash Remittance notes from Marine, Kigoma, was on 10th September, 1987, and that they were prepared by P.W.3.
When the disappearance of the money came to light, the matter was reported to the Police and the two respondents H as well as P.W.3 were arrested. The three of them were then jointly charged with these offences on 31st December, 1988, with P.W. 3 the first accused. However, on 18th July, 1989, the charge against P.W.3 was withdrawn and he was used as a witness.
In his defence, the first respondent, who was the first accused at the trial, testified that prior to his arrest, he was an I acting accountant. Prior

A to 1986, P.W.3 wa responsible for keeping the money and bankin it. Later he, the first respondent, was being given the money by P.W.3 for safe custody prior to the money being banked by P.W.3 the next day. He went on to say that he did receive the money as shown in Exhibit P.1 but he added that he only received it for safe custody B before giving it to P.W.3 for banking the next day. As to why he did not issue miscellaneous receipts, the first respondent said that it was for P.W.3 to issue the same and that there were no miscellaneous receipt books in his office. Regarding his signing in Exhibit P. 1, the first respondent said that it was for the purpose of enabling him to C easily do a reconciliation of the accounts as he also kept other monies for difference purposes in his safe, and also to ensure that the cash deposited with him by P.W.3 was the same account P.W.3 was to take the next day for banking, and further, that the register (Exhibit P. 1 ) would assist him in case of surprise checking by auditors who D would then clearly see the source of the case in his safe. The first respondent denied having received any money from the second respondent.
The first respondent called one Kange who testified that when he was transferred to Mwanza from Kigoma, he handed over his duties to the first respondent and that miscellaneous receipt books were not among the documents E he handed over because they were not available in the office.
In his defence, the second respondent said that at the material time he was charged with the duties of preparing reports in respect of WADU, Insurance, JUWATA and issuing leave passes. He went on to say that when the first F respondent was handed over duties by the former accounts, the first accused assigned him the duties of received earnings, including earnings from the steamer clerk in the absence of the first respondent, and that he used to hand over the money to the first respondent on his return. The second accused said that this arrangement was made G because the prior clerk, one Ndanuka (D.W.4) had no safe.
I have carefully considered that prosecution's evidence. Quite frankly, the prosecutions' case was unsatisfactory. As the learned trials resident Magistrate pointed out, the duty of banking the revenue from M. V. Mwongozo was that H of the steamer clerk, P.W.3. The changes allegedly made by P.W.4 brought in vagueness and lack of clarity as to who was supposed to do the banking. P.W.4 issued no written directive to that effect, and he appears to have not bothered to ensure that his system, which was contrary to the Corporation's regulations, was being followed. So we I only have the word of the respondents against that of P.W.3.

As conceded by the Republic, P.W.3 was a witness with his own interests to serve. He had himself been charged A jointly with the respondents. He could not, therefore, be expected to have said any thing other than that which would exculpate him from liability. For instance, if the arrangement made by P.W.4 was that the first respondent would do the banking and then pass on paying-in-slips and Cash Remittance Notes to P.W.3 for P.W.3 to prepare B comparative accounts and send then to Dar es Salaam, why did P.W.3 remain silent during all those months when he discovered that the Cash Remittance Notes were not forthcoming?
There is one other point. According to the prosecution's evidence, there were not remittances between 3rd July C 1987 and 16th November, 1988. But the evidence of P.W.5 was that he received the last Cash Remittance Notes from P.W.3 in September, 1987. This suggested that P.W.3 was doing the banking.
In short, what comes out clearly from the evidence is that it is impossible to say who between the two respondents D and P.W.3 stole the money. There is authority for the proposition that where, in the absence of evidence of common intention, it is not possible on the evidence to say which of the accused persons jointly charged committed the offence, then all the accused persons must be given the benefit of the doubt. It was so held in the case of E Jumanne Salum Pazi v Republic, [1981] TLR 246, in which Kisanga, J. (As he then was) stated, at page 251:
I take the view that where two or more persons are jointly charged with the offence and it is impossible to ascertain which particular one committed the offence then all of them must be acquitted unless there be established on the part of F the accused persons common intention to commit the offence charged.
That is the position in this case, and there is no evidence to show that the respondents and P.W.3 acted with G common intention.
For the foregoing reasons, I am clearly of the view that the learned trial magistrate was perfectly justified in giving the respondents the benefit of the doubt in the circumstances.
In the upshot, this appeal fails and so is hereby dismissed. H
Appeal dismissed. I

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