Court name
High Court of Tanzania

Jonas Nkize vs Republic () [1992] TZHC 22 (19 August 1992);

Law report citations
1992 TLR 213 (TZHC)
Media neutral citation
[1992] TZHC 22

Katiti, J.: Witnessing the prosecution of Jonas Nkize, the appellant, for the offence of stealing c/s 265 of the Penal Code Cap. 16, or in alternative, obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16 of the Law, was Kigoma District H Court, which ultimately found the appellant guilty, of the alternative count - obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16 of the Laws, and accordingly convicted him. The appellant was sentenced to five years imprisonment, a sentence which was followed by the statutory compensation order, that the said I appellant,

shall compensate the Kigoma R.T.C., the value of 100 cartons found stolen. A
The appellant aggrieved, has appealed to this Court, contending that he was unfairly convicted, as he himself was never involved, in the charged crime. The learned State Attorney Mr. Boaz, declined to support conviction, submitting, as he did, that there B was no evidence sufficient enough to sustain conviction. The evidence shall need to be scrutinized, and revisited. The genetic starting point here, is that by the way of two Kigoma RTC Internal Stock Transfer Vouchers, (ISTV) numbered, No. 7617 of 29/9/1988, and No. 624 of 17/10/1988, Exhibits P1 and P2 respectively, one C hundred, and three hundred cartons of match boxes, (Kibo brand), respectively, were taken from the RTC store, or godown, then manned by the 2nd accused. The former ISTV consignment, was purportedly issued for MANYOVU RTC retail shop, and the latter, for MWANDIGA RTC Retail shop. And it remains an undeniable fact, on the D evidence by PW.1 Aron Kimerei, the then Kigoma RTC general Manager and PW.2 B 857 DST Issa, and rightly found by the trial Magistrate, that not a single carton of match boxes, reached their assigned destinations, i.e. Manyovu RTC Retail shop, nor MWANDIGA RTC retail shop, although they were taken out of the godown. On the E allegations, that Exhibits P1 and P2, the Internal Stock Transfer Vouchers, (ISTV), had been issued by the 1st accused Boniface Mhehe, the Marketing Manager, and that the same cartons were taken out of the Kibirizi godown, whose keeper was Hem Shuba, the two were charged, as first and second accuseds respectively. And, because F (ISTV) No. 7617, had in the line "COLLECTED by", J. NKIZES, inserted therein, the person by this name, was arrested and charged as the third accused, and is the appellant charged as above. It is pertinent, to point out here, that the handwriting Expert report Exh. PV reads: G
Hivyo ninayo maoni kwamba sahihi hiyo inayobishaniwa iliyopo penye kielezo "A 4" "Sehemu ya "Collected by " na alama "S" siyo sahihi yake halisi" H
However, it was the 2nd accused who implicated the appellant, in his sworn defence, and called DW.4 Athuman Makongoro, DW.5 Issa Ndiyunviye, DW.6 Ally Dogo, to support the 2nd accused's evidence against the appellant, the prosecution evidence having failed to touch the appellant, and at the stage he implicated the appellant, the I second accused had this to say, and I quote:

A The ISTV was written by Masaba, I took it and went to Kibirizi, then when I was coming down, I saw the third accused, and the driver of motor vehicle 3187 (Rombo Safari) having parked their motor vehicle under a tree. I opened the go-down, and the two brought their motor vehicle. The third accused gave me the ISTV, and a piece of paper. I asked the B third accused as to which country was he taking the goods to. But I knew the standing instructions, that anybody who comes with papers ISTV was not allowed to be queried.... After loading their motor vehicle, they drove off. The porters who loaded the motor C vehicle are present with the RTC, they can testify, if they are needed. It was the first ISTV, coming to the 2nd ISTV which had two hundred cartons of match boxes.
Such evidence, as apparently confirmed by the evidence of DW.4, DW.5, DW.6, D influenced the trial Magistrate to acquit, the first and second accused persons, but to convict the appellant, of obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16. In approaching to convict, the trial Magistrate, did appreciate, that the evidence implicating the appellant came from the defence. He appreciated too, how convictions emanating therefrom, are unsafe, but nevertheless proceeded to convict E arguing, "I think the magistrate has to look at the overall evidence, rather than depend on the prosecution, if justice is to be done." (The under-lining is mine).
With due respect, to the trial Magistrate, the underlined above imputed to his pen, is F inaccurate in law and grossly, if I may add. While, the trial Magistrate, has to look at the whole evidence, in answering the issue of guilt, such evidence must be there first, - including evidence against the accused, adduced by the prosecution, which is supposed to prove the case beyond reasonable doubt. It is question of burden of proof, and G upon whom it lies. The day shall never come, not in my life time, when such highly priced principles, of criminal prosecution, will be as simplifically thrown into the such dirty dust bin of convenience. That, the general rule in criminal prosecution, the onus H of proving the charge against the accused, beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking. Was it not in the case of Woolmington v DPP [1935] 25 Cr. App. R. 72, when Lord Sankey L.C. then said: I

A ... if at any period of trial, it was permissible for the judge to rule that the prosecution had established its case, and that the onus was shifted on the prisoner to prove that he was not guilty, and that unless he discharged that onus, the prosecution was entitled to succeed, it would be unabling the judge in such a case to say, that the jury must in law, B find the prisoner guilty, and so make the judge decide the case, and not the jury, which is not the common law. It would be an entirely different case, from those exceptional instances, of special verdicts, where a judge asks the jury to find certain facts, and directs them that on such facts, the prosecution is entitled to succeed. Indeed, a consideration of C such special verdicts show, that it is not till the end of the evidence, that a verdict can properly be found, and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence, on D behalf of the prosecution, so there may be evidence on behalf of the prisoner, which cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise a doubt, as to his E guilt; he is not bound to satisfy the jury of his innocence ... Throughout the web of the English criminal law, one golden thread, is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ... No matter what the charge, or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the F common law of English, and no attempt to whittle it down can be entertained.
And in the case of Mancini v DPP [1941] 3 All E.R. [1941] 3 All ER 272 Viscount Simon LC, added: G
.... I would formulate the following propositions: Woolmington's case, is concerned with explaining, and reinforcing the rule, that the prosecution must prove the charge it makes, beyond reasonable doubt, and consequently, that if, on the material before the jury, H there is a reasonable doubt, the prisoner should have the benefit of it. The rule is general application, in all charges, under the criminal law. The only exceptions arise, as explained in Woolmington's case, in the defence of insanity, and in offences where onus of proof is I specially dealt with by statute.

And back here, we have cases, like Moshi d/o Rajabu v Republic [1967] H.C.D. A No. 384, that, the burden of proving the charge against the accused is on the prosecution so that the trial Magistrate, to say he cannot depend on the prosecution evidence, is to read the upside down the authorities - and if it is by design, then it is strange and unjudicial behaviour. B
Again, in the same vein of caring about the law, if the trial magistrate had exercised a little care, to acquaint himself with the provisions of section 230 of the Criminal Procedure Act 1985, he would have discovered that the trial Court is enjoined to direct its minds to the evidence adduced by the prosecution when it has closed its case, and C if it appears to the Court that, "the case is not made out against the accused person, sufficiently to require him to make a defence, either, in relation to the offence, with which he is charged, or in relation to any other offence of which under provisions of section 312 - 321 - he is liable to be convicted, and shall dismiss the charge, and acquit the D accused person. Thus, the subordinate trial Court is enjoined at the closure of the prosecution case, to see whether the crime charged, or such offence as is convictable, in the alternative, under Sections 312 - 321 of the CPA 1985, has been established, E and if it has not, the court has to acquit the accused. Thus the trial Magistrate's observation that is not necessary to depend on the prosecution case, is inadmissible and extravagant. In fact, if the trial Magistrate had looked upon the provisions, and I note the said provisions are not even referred to, in the proceedings, he would have noted, F that, by the closure of the prosecutions case, there had not been, an iota of evidence implicating the appellant - and the provisions of Section 230 of the Criminal Procedure Act 1985, would have carried the day triumphantly. That is, if upon the administration of Section 230 of the Criminal Procedure Act 1985, the offence as charged, or as G alternatively convictable under Sections 312 - 321, of the CPA 1985, is not made out, or established, it is mandatory for the trial Court, to dismiss the charge, and acquit the accused person. Of course the trial magistrate, did not acquit the accused in this case.
When all is said and done above, we must concede, that the evidence by the second H accused, and his defence witnesses - DW.4, DW.5, DW.6 implicated the appellant, as having in September 1988 loaded a hundred cartons at RTC godown, carried and left with the same. This evidence, is not useless in law, I must concede. While it is a fundamental rule of evidence, that statements made by co-accused, statements made I in the course of, and in pursuance of a

joint criminal enterprise, which the accused was a party excepted, are not evidence A against the co-accused, unless such co-accused, has expressly, or by implication adopted the same as his own, such statements assume a different dimension, when given sworn in the course of a trial in the presence of an accused. That, is, where in joint trial, an accused goes into a witness box, and gives testimony, such evidence he has given, B becomes evidence for all purposes, including being evidence against his co-accused. See R. v Rudd, [1948], 32 Cr. App. R 138.
How such evidence should be approached, and utilised is well settled. In the case of R. v Pratter [1960] 44 Cr. App. R. 83, as qualified, in R. v Reck (1982) 74 Cr. App. C R. 221, it was held that where the co-accused's evidence implicating the co-accuseds, is tainted by improper motive, as having a purpose of its own to serve, it should be received with caution, and accomplice warning may be give, if there is basis, for suggesting that said co-accused, was participant in the crime, or was in any-way D involved in the crime the subject matter, of the trial. That is, co-accused evidence is suspect for many reasons i.e. holier that thou mentality, expectation of elemency, or mercy, etc.
In this case, with a lot of respect, though the evidence by DW.2, and the witnesses E called by him, is indeed implicating the appellant, the said evidence, is also raising questions, that are post-trial difficult to answer. First, although the offences charged, were allegedly committed on the 29/9/1988, the said witnesses gave damning evidence on 28/4/1990, over a year later, why they were not available as prosecution F witnesses, is surprising, and why, the 2nd accused had not disclosed their whereabouts, is a piece of curiosity, a gordian knot. Second, the ISTV No. 7617 Exhibit P1, that the 2nd accused handled first, at the Kibirizi godown, was for transferring hundred G cartons of Kibo Match boxes, from such godown, to Manyovu RTC Retail shop, but according to the 2nd accused, "Asked the third accused, as to which country he was taking the goods to. But I knew the standing instructions, that anybody who comes with ISTV, was not to be queried." But with respect to the 2nd accused, if the ISTV Exhibit H P.1, he was given, was to transfer match boxes from Kibirizi to Manyovu, as it does in equivocally speak by itself, and endorsed, passed by the 2nd accused himself, and the carrier, obviously doing it, on behalf of the said RTC, I cannot see how the question, which country the carrier was taking the goods, arises? I cannot see how, the 2nd I accused, could have received instructions, not to query under the circumstances!

Third, the 2nd accused said in court, in Examination - In-Chief, and I am sure he had A encouraged his witnesses to say so, that, the used motor vehicle was No. TB 3187, Rombo Safari, but in the ISTV Exhibit P.1, the name of carrier is shown as TB 3178, after an unsuccessful erasure of another 3178. If according the 2nd accused, it was B motor vehicle TB 3187, that carried the charged goods, as he testified in evidence in chief, then why did he, if he did, insert TB 3178 in the ISTV Exhibit P.1, and where is the ISTV, if any, that was used by motor vehicle 3187? From the above, it is my view, that the innocence that the 2nd accused boldly put on his face, is questionable, as the C legal guilt of the appellant becomes even more doubtful. The 2nd accused, may have been improperly motivated, if not an accomplice, and his evidence is very suspect, and we have no corroboration on the same. In the event, the appeal is allowed, conviction quashed, and sentence set aside. The appellant to be released forthwith, unless he is otherwise legally held. D
Appeal allowed.

E
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