Court name
High Court of Tanzania

Asia Iddi vs Republic () [1989] TZHC 38 (02 October 1989);

Law report citations
1989 TLR 174 (TZHC)
Media neutral citation
[1989] TZHC 38

Nchalla, J.: The appellant Asia d/o Iddi was jointly charged in the District Court at E Kondoa with another person, Clemence s/o William, with the offence of stealing by servant c/ss. 270 and 265 of the Penal Code, Cap. 16. It is evident that it was an error for the Police to have referred to this kind of theft as "Stealing by Servant". The offence of theft by servant is under ss.271 and 265 of the Penal Code, and not under ss.270 and 265 of the Penal Code. The proper description of the offence in this case should F therefore have been "Stealing by person Employed in Public Service, or, briefly, stealing by person in public service". This error has not, however, occasioned a miscarriage of justice, as the proper sections of the law creating the offence were indicated in the G charge sheet and the particulars of the offence related to that offence. This error is therefore cured.
However, I observe that there are other irregularities in the charge sheet which call for comment and direction by this court on appeal. I will therefore reproduce the particulars of the offence as they appear in the charge sheet. Those particulars are the following:- H "That Asia d/o Iddi and Clemence s/o William jointly charged on 14th day of January, 1988 at about 19.00 hrs, at Kwapakacha Education Store, within Kondoa District, in Dodoma Region, being the persons employed by the Ministry of Education as a store-keeper and a night-watchman respectively, did steal 1505 1600/= exercise I

books worth shs.11,287/50, property of the Ministry of Education which came into their A possession by virtue of their employment."
As it clearly appears from the particulars of the offence reproduced above, the number of exercise books alleged to have been stolen was carelessly and haphazardly indicated B on the charge sheet. The figures 1505 1600/= exercise books are meaningless, and are subject of ambiguity with regard to the exact number of exercise books alleged to have been stolen by the accused. These figures denote an amount of cash, not an amount of things like exercise books. The figure 1505 was recorded by free hand, while the C figure 1600/= was type-written. This means the figure 1505 was not originally recorded in the charge sheet, and it is not explained who later inserted that figure in the charge sheet by free hand and with ink. Moreover, the value of the exercise books alleged to have been stolen was originally indicated in the charge sheet in type-writting thus - D 16,000/=, but, later, someone unknown crossed off that figure and inserted, instead, the figure 11,287/50 in free hand, and with ink. This careless handling and admission of charge sheets cannot pass without comment by this court. I wonder whether those particulars of the charge were read over and explained to the accused. For had the trial E magistrate done so, he could not have failed to spot those glaring errors and discrepancies, and should have immediately ordered the charge to be amended. It is only fortunate that the whole evidence on record related to 1505 exercise books having been stolen and their value consistently stated being shs.11,287/50. For this reason I am F inclined to believe that the accused were not embarrassed and confused by the errors relating to the number of exercise books alleged to have been stolen and their value.
Under the circumstances, I find that no miscarriage of justice was occasioned by the errors which the appellant did not even raise on appeal. For that reason the errors are G cured. However, these errors are deplored by this court on appeal, and I hereby direct that, in future, the trial magistrate should exercise diligence in ensuring that the charge sheet is properly laid out, and is free from such glaring errors which depict nothing else but negligence and sloppiness. H
Having made the above instructions and directions, I now turn to the gist of this appeal.
The appellant Asia, and her fellow accused, Clemence, were convicted of the offence of theft by public servant c/ss.270 and 265 of the Penal Code and were each sentenced to I five (5) years imprisonment under the Minimum Sentences Act, 1972. Asia was

not satisfied with the decision of the District Court, and has appealed to this Court A against conviction only. The 2nd accused, Clemence, did not appeal.
The appellant was represented by Counsel both at the trial and on appeal. The same counsel, Mr. Rweyongeza, appeared for the appellant both in the District Court and on appeal. Mr. Nduguru, State Attorney, appeared for the Republic in this appeal. Mr. B Ndunguru did not support the conviction that was entered on the appellant by the District Court. He therefore conceded to the appeal.
Mr. Rweyongeza argued the appeal. He submitted that the only evidence that implicated C the appellant with the offence is the co-accused's extra judicial statement which was made to a justice of the Peace, one Neugence Orio (PW.3). In his extra judicial statement the co-accused by the name of Clemence william confessed to have D participated in stealing the exercise books from the store at Kwapakacha. However, at the trial Clemence repudiated his confession. Mr. Rweyongeza submitted that at the trial Clemence, appellant's co-accused, made an exculpatory statement in relation to the commission of the offence. Mr. Rweyongeza argued that the exculpatory statement by E Clemence at the trial obliterated his former confession which he made before PW.3. The resultant effect is that there was no more any confession at all, but a more exculpatory statement or, at best, a repudiated statement which, as a matter of prudence, required corroboration. Mr. Rweyongeza submitted that an exculpatory statement by an accused F person implicating a co-accused cannot be acted upon to convict the other co-accused. To this end Mr. Rweyongeza cited the case of Ali Salehe Msutu v R. [1980] TLR (C.A.) at P 1. Mr. Rweyongeza submitted that even if appellant's co-accused had not repudiated his confession, still, the same ought to be corroborated G before the same can be used to convict the appellant. Mr. Rweyongeza cited the case of R. v Kusenta Cheligia & another [1978] LRT No. 11 where Mr. Justice Mnzavas (as he then was) held, inter-alia "where an accused person implicates himself with an offence, his statement that a co-accused participated in the commission of the offence H must be corroborated by other independent evidence pointing to the guilt of his co-accused." Mr. Rweyongeza submitted that there was no independent evidence on record to corroborate the repudiated confession made by Clemence, appellant's co-accused. Mr. Rweyongeza argued that the evidence of the Store Keeper, one I Magesa (PW.2) and that of the Education Officer Incharge of

Supplies (PW.1) cannot be held to be corroboration to the confession in question. Mr. A Rweyongeza argued that PW.1 and PW.2 can either be imputed as accomplices or actual thieves of the exercise books in question. This is so because on 14/1/88 PW.2 went to the store at Kwapakacha and opened it. He was alone. He took exercise books B from that store, and transported them to Kwamtoro. It is not known how many exercise books he took, and how many he left in the store. PW.2 then handed over the keys of the said store to appellant. it is established that the appellant in turn handed those keys on the same day to PW.1 because appellant was sick. So, PW.1 could also have C had access to the store by opening its door and stealing exercise books there from. Equally PW.2 could have stolen those exercise books because he never handed over to appellant the store, or at least the exercise books the subject of the theft in this case. So, it cannot be proved conclusively under those circumstances that only the appellant could D open and steal the exercise books from the store in question. The store was not damaged anywhere. The theft was committed by opening the store door in the normal way. So, any one among appellant, PW.1 and PW.2 could have committed the said theft. Moreover, it is not known exactly at what point in time the said theft was E committed. It was committed between 14/1/88 and 16/1/88 when the same was discovered. And during this time the store keys had changed hands from PW.2 to the appellant and to PW.1. There is so much doubt as to which persons among appellant, PW.1 and PW.2 opened the store door and stole the exercise books therefrom. in the F circumstances, Mr. Rweyongeza argued that PW.1 and PW.2 were persons with an interest of their own to serve in this matter, and as such, their evidence required corroboration. In this connection Mr. Rweyongeza cited the decision in Abraham Wilson Saiguran v R. [1981] TLR P.265.
Mr. Rweyongeza also made reference to the provisions of s.33 (1) (2) of the Tanzania G Evidence Act, 1967 which reads:
33 (1) When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or H offences charged made by one of these persons affecting himself and some other of these persons is proved, the court may take that confession into consideration against that other person.
(2) Notwithstanding subsection (1), a conviction of an accused person shall not be based I solely on a confession by a co-

accused (underscoring is mine). Mr. Rweyongeza submitted that since no other A independent evidence is available to implicate the appellant with the charge, save for the co-accused's confession which contains exculpatory statements, and which is repudiated, then conviction cannot be sustained on the appellant based solely on B appellant's co-accused's confession.
Mr. Rweyongeza further submitted that Clemence, appellant's co-accused, is not a truthful person. He made three different statements all of which are contradictory. These C statements are his extra-judicial statement to the justice of the peace (Exh.B), his caution statement to police (Exh.D) and lastly his testimony in court. Each of these three statements has its own version, different from the other. Clemence did not complain anywhere that he was either tortured, threatened or induced into making those D statements. The only reasonable conclusion on that point is that Clemence, appellant's co-accused, is not a truthful person. Moreover, Clemence told the court on 17/8/88 during the trial that one Ally Hussein (DW.3) saw him (2nd accused) in appellant's company when Ally gave to 2nd accused the key to his house to go and see the exercise E books which had been hidden therein. But in his evidence Ally Hussein (DW.3) denied that he saw appellant in 2nd accused's company on 15/1/88 when he (Ally) gave him (2nd accused) the key to his house. Ally also denied that he knew the appellant. This evidence goes to show how incredible 2nd accused is. F
Having considered the evidence on record and the exhaustive submissions by Mr. Rweyongeza, counsel for the appellant, I am quite convinced that the appellant was wrongly convicted in this case. I quite agree with Mr. Rweyongeza that the only evidence that the court could have acted upon to convict the appellant with the charge is G the repudiated/retracted confession of the 2nd accused, Clemence, who is appellant's co-accused. The said confession required corroboration, particularly so bearing it in mind the fact that its maker has been shown to be an untruthful person. The only corroboration, if any, could be only found in the evidence of PW.1 and PW.2. But as H indicated above, the testimony of these two last mentioned witnesses also requires corroboration, as they are established to be persons who have an interest of their own to serve in the matter. The evidence of PW.1, PW.2 and the 2nd accused Clemence, I excepted, then there is no any other evidence on record to go by in order to justify a conviction on the appellant. The rest of

the evidence is merely shaky circumstantial evidence which is not incompatible with A appellant's innocence. There are so many gaps in the prosecution case which cast doubt as to appellant's guilt in this case. Apart from what has been demonstrated afore, one wonders why the ledger book in which the exercise books in question were recorded B was not produced in court. Without the said ledger, it cannot be proved what balance of exercise books there was in the store on 14/1/88 after PW.2 took some of them and transported them to Kwamtoro. The evidence adduced in court on this aspect is, with due respect, mere hear say, and the same is inadmissible. C
On the authorities cited here by Mr. Rweyongeza, the conviction and sentence entered and passed on the appellant cannot be left to stand. I quash the said conviction and set aside the sentence of 5 years term of imprisonment meted out to the appellant, Asia d/o Iddi. D
Before winding up my judgment, I wish only to point out to the victims of this offence, that is, the Ministry of Education and its agent, the Kondoa District Council. It appears that they have not realized that store is cash, just like bank notes or coins are. Its custody must be exercised under strict and established store procedure coupled with E Financial Procedure and Regulations. In financial Regulations applicable to government, store and hard cash are regulated in the same way. It is therefore surprising to note that the District Council at Kondoa deals with stores as if the same had no economic value, or as if the same were different from hard cash. Whoever is responsible for the F supervision of stores at Kondoa District council should revise his stores training and administration in order to avert similar unaccounted losses in future.
Having said this last remark, I direct that the appellant, Asia Iddi, be released from G prison forthwith, unless further detained for another lawful cause. The appeal is allowed in its entirety.
H Appeal allowed.