Court name
High Court of Tanzania

Jeremiah Shemweta vs Republic () [1983] TZHC 38 (23 September 1983);

Law report citations
1985 TLR 228 (TZHC)
Media neutral citation
[1983] TZHC 38

Sisya, J.:  This appellant, Jeremiah s/o Shemweta, and another, who has not appealed, were, jointly, charged with and convicted of the offence of stealing by servant contrary to section 265 and 270 of the Penal Code and they were H each sentenced by the learned Senior Resident Magistrate, Tanga, to five years imprisonment under the Minimum Sentences Act, 1972.  Dissatisfied the appellant is now appealing to this Court.
The first ground of appeal in his petition of appeal drawn on his behalf by learned I Counsel, Mr. Mramba, is that the learned Senior Magistrate failed to deliver judgment according to the provisions of section 171(1)

of the Criminal Procedure Code. A
The said section 171(1) of the Criminal Procedure Code reads:
   171-(1) Every judgment under the provisions of section 170 shall, except as otherwise expressly provided by this Code, be written by, or reduced to writing under the personal B direction and superintendence of, the presiding judge or magistrate in the language of the Court, and shall contain the points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by such presiding officer as of the date of which it is pronounced in Open Court. C
After giving a synopsis of the evidence adduced by both sides of the case, that is, the prosecution and the  defence, the learned Senior Resident Magistrate then went on to direct himself in the following terms and I quote: D
   From the foregoing evidence it is far from being in dispute that the first accused (N.B. Now the appellant) was arrested on the material date with the  motor in question at his house.  There is evidence showing that the first accused was arrested while trying to load the same onto a E wheelbarrow.  There is also evidence showing that as the first accused was being arrested another person ran away from the Scene, the said person was seen by two of the three prosecution witnesses-Police Officers who went to the Scene the said person was said to be the second accused.  There is evidence showing a motor had been stolen from the Kiwanda F cha Walemavu in Tanga a place where the second accused was working.  After going through all the relevant evidence on record, (I) find that the evidence relied upon by the prosecution has proven its case against both accused person(s) and each is found guilty and convicted as charged. G
With great respect to the learned Senior Resident Magistrate the judgment did not, indeed, comply with the requirement of section 171(1) of the Criminal Procedure Code. H It is not sufficient under the said section merely to make plain reference to the evidence adduced, for example, by merely saying that there is evidence showing this and there is evidence showing that, without even stating whether or not the said evidence is acceptable and/or accepted as true and/or correct. I

It may be argued that from his final decision in the case one may reasonably presume A that the learned Senior Resident Magistrate considered all the evidence before him and he, eventually, accepted the prosecution evidence in preference to the defence story.  This argument may be viable only as far as the factual aspect of this matter is concerned. B It cannot be stretched beyond that because under the law it was incumbent upon the learned Senior Resident Magistrate, explicitly, to single out in the judgment the point  or points for determination, evaluate the evidence and make findings of fact thereon and, applying the law, come to a decision in the matter.  This the learned Senior Resident Magistrate failed and/or neglected to do. C
The question that now naturally, arises is, what effect does noncompliance with section 171(1) have on this instant matter.  Fortunately, this type of situation is by no means new and the position was authoritatively made clear in the fifties by the precursor of the Court D of Appeal whose decisions are binding on this Court.  The relevant authority was, with gratitude, quoted to me by Mr. Mramba, learned Counsel for the appellant.  It is the case of Kagoye s/o Bundala v.R. [1959] E.A. 900. on appeal from the decision of the forerunner of this Court, i.e. H.M. Court of Tanganyika.  In it the Court of Appeal had this to say at page 901: E
   Clearly the judgment did not comply with the requirements of section 171(1) of the Code ..... A noncompliance with section 171(1) does not, however, necessarily invalidate a conviction, and F this Court, therefore, had to decide whether the conviction was invalidated or whether it could hear and determine the appeal on its merits
   A similar question has come before this Court on a number of occasions, but we think that it G will be sufficient if we refer to the most recent reported decision, Willy John v R (1956) 23 E.A.C.A. 509, in which the principle to be applied is clearly stated.  That was an appeal from the Supreme Court of Seychelles, and in its judgment the Court said at P.510: H
      There is no doubt that the judgment does not comply with the requirements of section 149(1) of the Criminal Procedure Code, namely - 'Every such judgment shall, except as other-wise expressly 'provided by this Code, be written "by the presiding Officer of the I Court in the language of the Court, and shall contain the point or points for determination, the decision thereon and

      the reasons for the decision, and shall be dated and signed by the presiding officer in A open Court and at the time of pronouncing it".
   The failure to date and sign the judgment is a mere irregularity which can be cured by the application of section 304 of the Criminal Procedure Code since the whole of the record of the B proceedings is in the hand of the trial judge and there was no prejudice to the appellant.  But the failure to comply with the other requirements of the section is fatal to the conviction.  In Desiderio Kawunya v Regina, (1953) 20 E.A.C.A. 281, this Court held that failure to comply C with the provisions of section 169(1) of the Uganda Criminal Procedure Code which is in similar terms to section 149(1) of the Seychelles Criminal Procedure Code will not necessarily invalidate a conviction if there is sufficient material on the record to enable the Appeal Court to consider the appeal on the merits.  In this case there is clearly insufficient D material on the record to enable us to consider the appeal on the merits.
   We have therefore to decide whether in the instant appeal there was or was not sufficient E material on the record to enable us to determine the appeal on its merits.
The ratio decidendi of the Bundala case is, therefore, to the effect that non-compliance with section 171(1) of the Criminal Procedure Code notwithstanding the appeal Court still has to decide whether the record of proceedings contains sufficient material for the F determination of the appeal on its merits.  It is towards this goal that I now direct my mind.  In doing so I am guided by the principle of law that sitting as the first appellate Court in this matter it is incumbent on me to treat the evidence adduced in the case as a whole to that fresh and exhaustive scrutiny which the appellant is entitled to expect in Gorder to ascertain if the conviction is justified and supported by the evidence, see Dnikerei Hamkrishan Pandya v R. [1957] E.A. 336.  The case for the prosecution rested mainly upon the evidence of three witnesses, all Police Officers: These were Detective Sergeant Major Saidi Abadalla (PW1), Sergeant Major Hassan (PW2) and H one Amani Hassani (PW4) who simply described himself as a Police Officer without disclosing his rank, that is to say, if he has any.  All these three witnesses for the Prosecution i.e.  PW1, PW2 and PW4 are agreed that on the material day acting upon information received they proceeded to the house of this appellant whom they arrested as he I

prepared to load the offending object in the case, to wit an electric motor, on to a A wheelbarrow.
The appellant in his defence did not dispute this.  In fact he conceded the same although according to him the said motor had already been loaded in the wheelbarrow when the Police pounced on him and the motor.  He, i.e. the appellant, however, gave an B explanation as to how the said electric motor which, incidentally, was tendered and admitted as real evidence at the trial and marked Exh "A" came to be in his house.
In his sworn statement in his own defence the appellant stated that on Good Friday in 1981, which was also the day on which he was arrested in connection with this matter, C he was visited by several persons at his house.  One of the said visitors was the man with whom he appeared jointly in the Court below.  The said person appeared as second accused and I will, throughout hereafter, continue to call him so, i.e. second accused.
The second accused arrived on a bicycle on which he had also carried a bag.  The two D of them knew each other before; both of them being subordinate or junior employees in the Ministry of Labour and Social Welfare Stationed here at Tanga.  He, i.e. the appellant, was office attendant at the office of the Regional Welfare Officer - at the material time this was one Earnest Mtela (PW3) - whereas the second accused was E night guard at the Kiwanda cha Walemavu.  As it was still during the morning hours they, i.e. the appellant and second accused, and another visitor, one Mussa Iddi Bakari (DW1) drank tea together.  Later, as if to crown all, they all went out to imbibe some liquor.  They went on foot, the second accused having left his bicycle at the appellant's F house.  They drank liquor until 2.00 p.m. when they returned to the appellant's house.  On their arrival the second accused pleaded that he was too drunk to ride his bicycle with the handbag and its contents on the carrier.  He, therefore, asked and was permitted to leave the said handbag and its contents behind and collect them on the morrow.  Unsuspecting and without any knowledge as to what the bag contained the appellant agreed. G
The appellant stated in his defence that on the following morning the second accused followed him at his place of work and demanded his luggage.  Two of them then proceeded to the  appellant's house.  On the way the second accused hired a wheelbarrow which was being pushed by two boys.  At his house the appellant opened H the door and handed over the bag to the second accused.  The latter put it in the wheelbarrow.  At the same time the Policemen came whereupon the second accused took to his heels and fled.  The Policemen then opened up the bag which, incidentally, is actually a big handbag and in it was found an electric motor, Exh. A. I

The appellant's story that there was a wheelbarrow which was under the management of A two persons was confirmed by the three Police Officers who went and arrested the appellant, i.e.  PW1, PW2, and PW4.  According to PW1 the second accused was not present when the appellant and the two wheelbarrow managers were walking towards the appellants house, where Exh.P."A" was admittedly kept.  The impression that one B may derive from this piece of evidence is that the appellant must be the person who hired the wheelbarrow.  This was denied by the appellant who, as aforesaid, stated that it was actually the second accused who hired it.
Although it is in evidence on the prosecution own side that it was the same wheelbarrow C and its two managers who were hired to take the motor, Exh.A, to the Police Station and that they did do so, the names of the two persons who pushed the wheelbarrow were not disclosed nor were they, or either of them, called as witnesses in the case.  The end result is that the only evidence available on as to who hired the wheelbarrow is that D of the appellant who, again, as aforesaid, stated that it was the second accused.  There is absolutely no reason why this piece of evidence should not be believed.  I accordingly accept it as true.
The issue of the second accused's flight at the sight of the Policemen was variously described by PW1, PW2 and PW4.  According to PW1 he saw the second accused E come out of the house of the appellant while, together with the latter, carrying Exh."A".  He, i.e. Second accused, however fled and escaped when the two of them were challenged by the Police.  PW2 recalled that the appellant was 'with another person who escaped'.  According to his evidence it seems he failed to identify the said escapee. F
This witness, PW2, added that he was the one who, however, later, led by the appellant, went to the house of second accused and arrested him in connection with this same matter.  PW4, on the other hand, made absolutely no mention whatsoever of the second G accused, or any other person who allegedly escaped, in his evidence in chief.  He went even further in his cross-examination by Mr. Mramba who appeared for the appellant and said:  'I did not see the second accused.  I did not see the second accused run away.
I find these discrepancies in the evidence of PW1, PW2 and PW4 almost inexplicable. H These Police men had set out to do the same piece of work and they were all the time together, acting in concert.  How then it may be asked, could anyone of them possibly fail to see a person escape, particularly so when, on the other hand it behoves me to believe that not all the three Police men, i.e. PW1, PW2 and PW4, were acting with the I same alertness as would be expected of a police officer duly

detailed to pursue a particular assignment. A
Be it as may, the discrepancies under querry on the prosecution own side raise some reasonable doubt as to whether or not the second accused did, indeed, escape on the arrival of PW1, PW2 and PW4.  I resolve this doubt for the benefit of the appellant as required by law and consequently I am satisfied, and I so find, that the second accused B took to his heels and fled when he and the appellant were challenged by the Police.
Although the learned Senior Resident Magistrate did not specifically say so in his judgment it sounds clear that he invoked the doctrine of recent possession in arriving at the conclusion which he did in the case.  I am strengthened in this because no direct C evidence of theft was adduced in the case.
The appellant gave an explanation as to how Exh. A came to be in his house and/or possession.  His version of the story, as summarised here in above, was supported in material particular by Musa Iddi Bakari (DW1).
The defence story on this aspect of the case is in direct conflict with the testimonies of D PW1 and PW4 on the same point.  PW1 stated in his evidence that when challenged the appellant said that Exh. A was his own property.  PW4 too gave evidence to the same effect on this point.  PW2, on the other hand, swore that the appellant "stated that he was given the motor by the second accused who was a fellow employee for safe E keeping."  Again, the Police men have contradicted each other on a material point.  This raises a reasonable doubt the benefit of which, as usual and according to law, goes to the appellant.  I am satisfied, therefore, and I so find that the appellant did point out to the Police Officers, PW1, PW2 and PW4 that Exh. A belonged to the second accused F and that it was temporarily kept in his house for safe custody.
The question arises as to whether the appellant could have failed to querry his fellow employee's ability to own an electric motor.  The appellant's reply to this was that till the G time of interception by the Police he did not know what the handbag contained.
As aforementioned the electric motor was tendered as real evidence.  I have looked at it in the handbag.  When the bag is closed the motor is completely concealed.  The appellant's explanation that he did not know what the handbag contained could therefore, jolly well be true.  The fact that the appellant was not, so to speak, nosy H cannot be taken to detract adversely from his credit.  The material point to note is that there is uncontroverted evidence to show that the appellant knew that second accused before and, further, that there is no conclusive evidence to show that whatever he did, he did  the same with the necessary animus furandi.
Had the learned Senior Resident Magistrate evaluated the evidence before him with I judicial objectivity I entertain grave doubts as to whether

or not he would still have come to the same conclusion at which he arrived in this case. A On my evaluation of the evidence and in all the circumstances of the case I find that the explanation given by the appellant in his defence is reasonable.  This is enough to dispose of this appeal which is hereby allowed.  The conviction is quashed and the sentence passed thereon is set side.  It is further directed that unless he is being held for B some other lawful purposes the appellant should be released from prison forthwith.
Appeal Allowed

C