Court name
High Court of Tanzania

Mathias Timothy vs Republic () [1985] TZHC 22 (07 August 1985);

Law report citations
1984 TLR 86 (TZHC)
Media neutral citation
[1985] TZHC 22
Coram
Lugakingira, J.

Lugakingira, J.: Originally, this case involved fifteen persons, all employees of the National Milling Corporation in Dodoma. The appellant, Mathias Timothy, was a night watchman with the   D Corporation and was the third accused at the trial. The charge consisted of two counts. The first count alleged stealing by servant and involved the first accused only.The second count alleged simple theft and involved the rest of the accused, that is, the second to fifteenth accused. Both   E counts related to the same subject matter, that is, theft of 13 bags of sembe flour, two bags of maize and 18 empty bags, all the property of the Corporation and worth 1,569/20. All the accused were acquitted except the appellant and the second accused, one Hassan Juma, who was also a   F watchman. Upon conviction these accused were sentenced to three years' imprisonment each. The second accused has not appealed.
It was common ground that on the night of 15 June, 1984 the appellant and the second accused were on duty outside the Corporation's Mill. The rest of the accused were inside the mill where milling   G was in progress, and had actually been locked there from outside since 6 p.m. The key to the lock was kept by PW4 at his residence. That was the practice, its inconvenience and implications notwithstanding, and was designed to prevent thefts from the Mill. During the night, therefore, no one could enter or come out of the mill.
  H There was information of rampant thefts at the Mill. On that night therefore, No.B.4728/ D/Sgt. John (PW1) and two other unnamed police officers were detailed to keep watch on the premises with a view to foiling any theft. It was alleged by PW3 that around 2.45 a.m. he and his colleagues saw   I people throwing bags of sembe, etc. "from inside the milling machine" over the fence surrounding the Mill. He further alleged that they also saw the appellant and the

second accused collect those items and take them into a nearby hut which was occupied by PW1.  A For no apparent reason no arrest was made then. Instead we are made to believe that when this process was over DSgt. John and his colleagues proceeded to the hut and confronted PW1 over the bags of flour inside and empty bags outside his hut. After PW1 was given a beating, the modus  B operandi by many of our officers, he disclosed that the second accused had earlier approached him with a request to keep his "luggage" there. The second accused was sought out and arrested. The appellant, who was not feeling well, was then resting inside a hut within the enclosure. He was similarly followed, dragged out and beaten and told he was a thief. The following morning the rest of  C the accused came out of the Mill after it was opened by PW4. They were promptly arrested and all the accused were charged as aforesaid. The appellant denied any knowledge of the theft.
The trial magistrate was incredulous about the evidence of Dsgt. John and said (in his typical style): D
   The prosecution evidence is not clear enough to satisfy me that the police exactly saw the packages thrown from inside the concrete fence. The packages are 50kg, and it is hardly to be believed that it can be thrown E out from inside by a person without a ladder hence it have been proved that there was no any kind of ladder around the area.
He then went on to say, "I suspect that the maize flour packages were brought outside in another  F way by the guards or other persons before the ambush policeman's arrival." In the upshot he believed D/Sgt. John that "he detected the second accused and third accused persons carrying the packages outside the milling section fence to the hut adjacent to the NMC compound." G
The only issue in this appeal is whether it was safe to believe D/Sgt. John. That the witness lied on a material particular is beyond question. No one at that time, not even with a ladder, could have disposed of anything from the Mill, for those inside were under lock and key and were not let out until the following morning. The trial magistrate, although conscious of D/Sgt. John's readiness to  H lie, never warned himself of the danger of believing the same witness on other particulars. In the case of Musa v R [1970] HCD No. 278, it was held that the rejection of part of the testimony of a witness does not necessarily make his whole testimony suspect or discredited. In that case,  I however, the issue was one of discrepancies and

  A contradictions as opposed to a palpable falsehood as obtains in the instant case. In my view, where the issue is one of false evidence, the falsehood has to be considered in weighing the evidence as a whole; and where the falsehood is glaring and fundamental its effect is utterly to   B destroy confidence in the witness altogether, unless there is other independent evidence to corroborate the witness.
In the case before me the falsehood was neither trivial nor immaterial. It formed the very basis of stealing from the Mill. If it is held, as it correctly was, that D/Sgt. John never saw anything thrown   C from the Mill, it must necessarily throw doubt on the whole account of the incident, including the allegation of sighting the appellant removing the bags into PW1's hut. There was no other evidence to corroborate D/Sgt. John's testimony. None of the other two officers was called to testify; indeed their very identities remain unknown. Even PW1 never mentioned the appellant in any connection.   D In these circumstances, I am not prepared to say that if the trial magistrate had appreciated the effect of D/Sgt. John's falsehood he must have necessarily believed him on the removal of the bags and have convicted the appellant as he did. Although it is not necessary to speculate, it is nevertheless not unreasonable to say that the witness discovered the loot in his rounds, for PW1's   E hut was just outside the fence, and it seems to be the information extracted from PW1 that led the witness to make up a story. I consider it most unsafe to sustain the appellants's conviction which was in fact not supported by the Republic.
  F I allow the appeal, quash the conviction and sentence and order the appellant's release from custody unless he is further lawfully held.
Appeal allowed.

G