Mnzavas, J.A., read the following considered judgment of the court:
F The three appellants were jointly charged before the Mbeya District court with four counts. The first and second counts are stealing by agent c/ss 265 and 273 of the Penal Code. These faced the firstt and second appellants. The third count was being accessory after the fact to stealing c/ss 387 and 388 of the Penal Code. The fourth count was receiving stolen property c/s 311(1) of the Penal G Code which was in the alternative to the third count. These two counts faced the third appellant before this Court and one Jumanne Nyagawa, the third accused in the District Court who was acquitted.
H The following facts which led to the arraignment of the appellants were not seriously disputed:
The first and second appellants were at the material time employees of the Anti-Corruption Squad and were based in Mbeya. In September, 1990 they were in Sumbawanga on duty. On information received they, on 24/9/90, searched the house of one, Emmanuel, Simba who they suspected to I have in his possession illegally acquired property. In their search they found Simba in possession of
Shs 1,000,000/= cash. They brought the money with them to Mbeya for further investigations. On A arrival in Mbeya they briefed their boss one Victor Mimbe, (PW9), about the money and Simba's explaination that the money had been sent to him by a businessman in Dar es Salaam to buy maize. After hearing from the two appellants their boss ordered them to return the money immediately to Simba in Sumbawanga. They returned to Sumbawanga on 20 September 1990 and, B according to the evidence of their boss, PW9 when asked about the money by the Regional Police Commander in Sumbawanga they told him that they had handed over the money to their boss, PW9, and that it was now in the Anti-Corruption Squad office in Mbeya. It was after this information that the RPC. in Sumbawanga ordered the arrest of the first and second appellants. C Soon after their arrest PW9 received a telephone message from Sumbawanga asking him to go to first and second appellants' houses and collect Shs 700,000/=and Shs 300,000/= respectively from their wives and take it to the office of the Anti-Corruption Squad in Mbeya. The two appellants' D houses were searched. Shs 680,617/= was found in a big suitcase in first appellant's house but no money was found in second appellant's house.
After the appellants were brought to Mbeya they, on interrogation, said in their statements they had E kept the money in their houses - (Exhibit P.5.). In their defence before the Court of first instance both the first and second appellants denied that they had committed the offence. It was their defence that there was bad blood between them and police officers in Mbeya because at the F material time they were investigating the RPC Rukwa, one, Omari Mahita, on an allegation of corruption and that they were in the process of traping the Rukwa OC-CID, (PW2), who was about to receive money as corruption but that the trap leaked. It was because of this enmity that the police in Sumbawanga decided to tell lies against them so as to cause them their undoing. The two G appellants also told the Trial Court that they decided to keep the money in their houses after they had failed to get reliable transport from Tunduma to Sumbawanga and that they found it unsafe to remain with such big amount of money in a guest house in Tunduma. H
As for the third appellant, (fourth accused in the District Court), the prosecution case was that on 1 October 1990 he took money from Juma Kondo, (PW10), in the presence of one, Asha Kondo and the third accused who was acquitted. Juma Kondo (PW10) stated in his cautioned statement the amount was Shs 300,000/= which was in six bundles of Shs 50,000/= each. I
A Third appellant's defence in the District Court was a complete denial. After hearing evidence from both sides the District Court was satisfied that the prosecution has proved the charges against the appellants and convicted the first and second appellants of stealing by agent and sentenced each of them to three years imprisonment. The third appellant was convicted of B receiving stolen property and was sentenced to three years imprisonment.
Dissatisfied with the decision of the District Court they appealed to the High Court. After evaluating C the evidence in the district court, the High Court, (Mchome, J.), was of the view that there was ample evidence before the District Court to entitle the learned resident magistrate to find that the prosecution has proved the charges against the appellants beyond reasonable doubt and accordingly dismissed the appeal. Still dissatisfied the appellants have come to this Court.
D In his defence before us the first appellant who appeared in person and unrepresented argued that he should have been charged with stealing Shs 600,000/= not Shs 700,000/= as shown in the charge sheet because the second appellant had admitted receiving Shs 400,000/= not Shs 300,000/= as shown in the charge sheet. It was his argument that if this Court accepts his E submission then it should find that the charge against him was defective.
Secondly it was his defence that the Trial Court should not have believed the evidence of Ester, (PW11), because it was argued, she gave her evidence one year after the case had started and that she was summoned by the police to tell lies against them (first and second appellants). The F first appellant went as far as saying that he believed that the police message said to have been received by PW.9 was sent by the police in Sumbawanga and not by Ester (PW.11). The reason for such behaviour by the police in Sumbawanga was that they were determined to cause them G their undoing of the alleged enmity between them.
Finally the first appellant argued that as the owner of the money was not called as a witness it was wrong for the Republic to charge them with stealing by agent. According to his defence they should H have been charged with stealing by person employed in public service.
The second appellant, like the first appellant, also challenged the credibility of Ester (PW11). He said she lied against them. It was his argument that the owner of the bar from which she telephoned was not called as witness.
I As for the money he is alleged to have stolen he said he had Shs 400,000/= in his office.
The third appellant challenged the Trial Court's assessment of the prosecution witnesses. It was A argued that it was wrong for the learned resident magistrate to find that the evidence of PW10 was corroborated by Jumanne Nyagawa who was a co-accused; and whose evidence needed corroboration before being acted upon. It was also his defence that Juma Kondo told lies against him. B
We would like to start with the evidence of PW9, Victor Mkumbe, regarding the instructions he gave to the two appellants (first and second appellants). He said inter alia:
`. . . I ordered the investigators to return the money to Simba so that the process of buying maize could proceed as C scheduled. I also gave them a pistol so that they could use it for protection on the way to Sumbawanga . . . On the following day the RPC (Sumbawanga) telephoned me . . . and told me that Kondo and Mwita had told the RPC in their statements that they handed over the money to me in the office and that by that time the money was in the Anti-Corruption Sqard Mbeya office.' D
That the first accused lied to the RPC Sumbawanga that he had handed the money - Shs 1,000,000/= to his boss, (PW.9), is amply demonstrated by his cautioned statement to PW.5, E Exhibit P.3. When he was cross-examined by the learned state attorney in the District Court about his statement to PW.5 he replied inter alia:
`. . . I did not deny to make my cautioned statement . . . I do not deny the cautioned statement but I am saying that the statement on it is not sufficient.' F
In his defence he gave a diametrically opposed story about the money. He said he had left the money, Shs 600,000/= according to him, at his house. As his wife was away when he left he G entrusted the money to his house maid who was to tell the wife to return the money to the Anti-Corruption Squad the following morning. The money was apparently not returned to the office, and when his house was searched and Shs, 680,617/= was found in a suit-case his wife claimed that Shs 400,000/= belonged to one Mahali who had requested her to buy a car for him as she was H going abroad. Shs 200,000/= belonged to one Egina, who had requested her to buy her a video set. Shs 50,000/= has been paid to her as an outfit allowance. The rest of the money was proceeds from their shop-business.
If first accused's story to PW8 was anything to go by, the I
A Shs 600,000/= the 1st appellant said he kept in his house to be handed to the office was no where to be seen. However, as there was no evidence either from the said Mahali nor from Egina that they owned the money the Court believed that the money found in the suitcase was part of the Shs 700,000/= the first appellant was entrusted to return to the owner.
B At this juncture we are to ask ourselves why the first appellants chose to lie to the RPC that they had handed the money to their boss PW9.
Dealing with a similar situation the Eastern Africa Court of Appeal has this to say in R v Erunasoni C Sekoni s/o Eria and Another (1),
`Although lies and evasions on the part of an accused do not in themselves prove the facts alleged against him, they may, if on material issues, be taken into account along with other matters and the evidence as a whole when D considering his guilt.'
In the present case, and as rightly observed by the High Court, because of the urgency of the matter PW9 gave the first and second appellants a pistol to protect them and the money they were E carrying to hand over to its owner in Sumbawanga.
They said they found it risky to stay with the money in a guest house at Tunduma so they decided to return to Mbeya. In our view it would have been more logical for officers of first appellant and second Fappellants' calibre to entrust the money to the police at Tunduma police station for safe custody till next morning when they would continue with their safari to Sumbawanga that to travel all the way to Mbeya to keep the money in their houses.
And what is more they arrived in Mbeya at 4 p.m. but for reasons best known to themselves they did G not think it wise to contact their boss and inform him they had decided to return to Mbeya with the money. If they had done so and failed to trace him; they, being senior officers, knew or ought to know that they should have surrendered the Shs 1,000,000/= to the police station for safe custody. This they did not do but decided to keep the money in their houses - but as already mentioned above on arrival in Sumbawanga they told naked lies to the RPC that they had handed the money to H their boss PW9.
Even if we are to agree with the appellants (first and second) that they decided to keep the money in their houses that act was a departure from instructions by their boss, PW9. That this is the law is I shown in the decision in R v. Nanji Sunderji (2) it was held:
`Where property is entrusted to a person and he converts it to his own use and disposes of it, whether or not the A intention to do so was conceived at or after the receipt of the property, as soon as there is an overt act showing a departure from the instruction in regard to it, the offence of theft is complete and a foundation for a case of receiving with guilty knowledge laid.' B
In the present case the money Shs 700,000/= kept in first appellant's house was found to be Shs 19,383/= short. Of that kept in second appellant's house Shs 300,000/= disappeared into thin air and is yet to be recovered.
As for first appellant's argument that PW11 should have been found by the Trial Magistrate to be C unworthy of credit because she was called as a witness very late in the case in an effort by the prosecution to fix them as they were at the time investigating allegations of corruption against the RPC and the OC-COD. It is our considered view that even if the testimony of PW11 is excluded D there was, as rightly argued by Mr Sengwaji, learned state attorney, other evidence in support of the prosecution case. There was for example no reason why the first and second appellants told lies to the RPC that they had handed the money to their boss, PW9. The question of enemity with the police could certainly not have made them lie about the where-abouts of the money. E
The argument that the first appellant had Shs 600,000/= and the 2nd appellant Shs 400,000/= was clearly an afterthought as there was evidence from PW1 that the first appellant was entrusted with Shs 700,000/= while the second appellant was handed Shs 300,000/=. There was also the F cautioned statement of Juma Kondo (PW10) which was to the effect that second appellant's wife handed him Shs 300,000/= for safe custody while he later told the court in his evidence that he had received Shs 400,000/= from second appellant's wife. In her assessment of PW.10's evidence the learned resident magistrate was in a better position to decide which of the two versions was to be G believed. She said she believed the cautioned statement because his evidence in court was to support first and second appellants' story that the second appellant had Shs 400,000/= and the first appellant Shs 600,000/=. The reason for the change was found to be the fact that the witness, H (PW10), is a brother of second appellant. We need not mention that this is a second appeal and we ordinarily do not deal with questions of fact which as in this case have been thoroughly scrutinised by the two courts below. I
A On the facts the first and second appellants were properly charged with the offence of stealing by agent; and, on the evidence, they were rightly convicted of the offence as charged.
There was also, as we have already shown above, ample evidence in support of receiving stolen property knowing it to have been stolen in respect of the third appellant.
B As for the sentence of three years imprisonment we are of the view that it does not call for interference by the Court bearing in mind that the maximum penality for offences of this nature are ten and seven years imprisonment respectively.
C The appeal is accordingly dismissed in its entirety.
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