DIRECTOR OF PUBLIC PROSECUTIONS v ELIAS LAURENT MKOBA AND ANOTHER 1990 TLR 115 (CA)

 

DIRECTOR OF PUBLIC PROSECUTIONS v ELIAS LAURENT MKOBA AND ANOTHER 1990 TLR 115 (CA)

Court Court of Appeal of Tanzania - Tabora

Judge Chipeta J

28 August, 1990 H

Flynote

Criminal law - Charge - Joint - No evidence of common intention - Not possible to

say which accused committed the offence - Benefit of the doubt to all - Acquit. I

Evidence - Of a witness with own interest to serve - Value.

1990 TLR p116

-Headnote

A The two respondents were jointly charged with the offence of stealing by public

servant. Charges against a third person were dropped and the prosecution used him as

a witness. The respondents were acquitted by the trial court because there was no

evidence of common intention nor was it possible to say which accused committed

the B offence. The DPP appealed.

Held: (i) P.W.3 was a witness with his own interests to serve. He could not,

therefore, be expected to have said anything other than that which would exculpate

him from liability;

C (ii) where, in the absence of evidence of common intention, it is not possible

on the evidence to say which of the accused persons jointly charged committed the

offence, then all the accused persons must be given the benefit of the doubt.

Case Information

D Appeal dismissed.

[zJDz]Judgment

Chipeta J.: In Kigoma District Court, the two respondents, Elias Laurent Mkoba and

Charles Mholo, were charged jointly with the offence of stealing by public servant

c/ss 270 and 265 of the Penal code on a total of 22 E counts, that is, l 6 counts in

respects of the first respondent and six counts in respect of the second respondent.

After a full trial the two respondents were acquitted on all counts. Dissatisfied, the

Director of Public Prosecutions now appeals to this court.

F The prosecution's evidence was that at the material time the first respondents,

Elias Laurent Mkoba was an accounts assistant while the second respondent was a

general clerk. Both of them were employed by the Tanzania Railways Corporation

Marine Operations, Kigoma. Between 3rd July, 1987 and 16 November, 1988, the first

G respondent received a total of shs.1,920,507.20 from one Bernard Ezekiel Bundala

(P.W.3) being coaching and goods earnings from M. V. Mwongozo. The second

respondent, on the other hand, received a total of

shs. 576,908.20 from P.W.3.

H The procedure that was supposed to be followed in dealing with earnings from M.

V. Mwongozo was that the steamer clerk, in this case P.W.3, had the duty of

collecting revenue. He then had to record the revenue collected in a Cash Remittance

Note Book which has two identical leafs. After filling the two leafs with the total

amount earned, the steamer clerk himself would go to bank the money, and the leaf

on the right hand side of the Cash Remittance I Note Book is then detached and

attached to the paying-in slip after Cash Remittance. Note has

1990 TLR p117

CHIPETA J

been duly stamped by a bank teller. The two documents are then sent to the Chief of

Finance who then sends an A acknowledgement to the Marine Department.

An administrative Manager, marine Department, Kigoma, one Sebastian Nandi P.W.4

testified that the two respondents and P.W.3 used to work under him and that P.W.3,

who was a steamer clerk had the duty of B receiving revenue and banking the

money. According to P.W.4, he changed the system sometime in 1986 after some

theft was detected. It was arranged that P.W.3 was to hand the earnings to the

accountant, that is the first respondent, who was then entrusted with the duty of

banking the money. After banking the money, the first respondent was supposed to

give the Cash Remittance Notes and paying-in-slips to P.W.3. P.W.3 was in turn C

supposed to prepare comparative accounts and send the same to their Headquarters in

Dar es Salaam.

After direction that unusual procedure, P.W.4 took for granted that the new system

was being followed, and P.W.3. never complained to him that he was not receiving

the Cash Remittance Notes from the first respondent. D Besides, there does not

appear to have been any official handing over of duties and relevant revenue

documents between P.W.3 and the first respondent.

P.W.3 however, testified that he used to hand over the money to the first respondent

and, in the absence of the first E respondent, to the second respondent, and that each

one of the two respondents used to acknowledge receipt of the money by signing in a

book (Exh.P. 1 ) which was improvised by P.W.3. and is not an official accounting

document of the corporation. According to P.W.3, he complained to his supervisors at

Kigoma about the failure of F the first respondent to give P.W. 3 the Cash

Remittance Notes, a fact which was denied by P.W. 4. P.W.3 also denied having

received any miscellaneous receipts for any of the respondents.

An accounts clerk from the Corporations Headquarters, one Naiman Isaya Tarimo

(P.W.5), testified that the last G time he received Cash Remittance notes from

Marine, Kigoma, was on 10th September, 1987, and that they were prepared by

P.W.3.

When the disappearance of the money came to light, the matter was reported to the

Police and the two respondents H as well as P.W.3 were arrested. The three of them

were then jointly charged with these offences on 31st December, 1988, with P.W. 3

the first accused. However, on 18th July, 1989, the charge against P.W.3 was

withdrawn and he was used as a witness.

In his defence, the first respondent, who was the first accused at the trial, testified

that prior to his arrest, he was an I acting accountant. Prior

1990 TLR p118

CHIPETA J

A to 1986, P.W.3 wa responsible for keeping the money and bankin it. Later he, the

first respondent, was being given the money by P.W.3 for safe custody prior to the

money being banked by P.W.3 the next day. He went on to say that he did receive

the money as shown in Exhibit P.1 but he added that he only received it for safe

custody B before giving it to P.W.3 for banking the next day. As to why he did not

issue miscellaneous receipts, the first respondent said that it was for P.W.3 to issue

the same and that there were no miscellaneous receipt books in his office. Regarding

his signing in Exhibit P. 1, the first respondent said that it was for the purpose of

enabling him to C easily do a reconciliation of the accounts as he also kept other

monies for difference purposes in his safe, and also to ensure that the cash deposited

with him by P.W.3 was the same account P.W.3 was to take the next day for banking,

and further, that the register (Exhibit P. 1 ) would assist him in case of surprise

checking by auditors who D would then clearly see the source of the case in his safe.

The first respondent denied having received any money from the second respondent.

The first respondent called one Kange who testified that when he was transferred to

Mwanza from Kigoma, he handed over his duties to the first respondent and that

miscellaneous receipt books were not among the documents E he handed over

because they were not available in the office.

In his defence, the second respondent said that at the material time he was charged

with the duties of preparing reports in respect of WADU, Insurance, JUWATA and

issuing leave passes. He went on to say that when the first F respondent was handed

over duties by the former accounts, the first accused assigned him the duties of

received earnings, including earnings from the steamer clerk in the absence of the

first respondent, and that he used to hand over the money to the first respondent on

his return. The second accused said that this arrangement was made G because the

prior clerk, one Ndanuka (D.W.4) had no safe.

I have carefully considered that prosecution's evidence. Quite frankly, the

prosecutions' case was unsatisfactory. As the learned trials resident Magistrate pointed

out, the duty of banking the revenue from M. V. Mwongozo was that H of the

steamer clerk, P.W.3. The changes allegedly made by P.W.4 brought in vagueness and

lack of clarity as to who was supposed to do the banking. P.W.4 issued no written

directive to that effect, and he appears to have not bothered to ensure that his system,

which was contrary to the Corporation's regulations, was being followed. So we I

only have the word of the respondents against that of P.W.3.

1990 TLR p119

CHIPETA J

As conceded by the Republic, P.W.3 was a witness with his own interests to serve. He

had himself been charged A jointly with the respondents. He could not, therefore,

be expected to have said any thing other than that which would exculpate him from

liability. For instance, if the arrangement made by P.W.4 was that the first

respondent would do the banking and then pass on paying-in-slips and Cash

Remittance Notes to P.W.3 for P.W.3 to prepare B comparative accounts and send

then to Dar es Salaam, why did P.W.3 remain silent during all those months when he

discovered that the Cash Remittance Notes were not forthcoming?

There is one other point. According to the prosecution's evidence, there were not

remittances between 3rd July C 1987 and 16th November, 1988. But the evidence of

P.W.5 was that he received the last Cash Remittance Notes from P.W.3 in September,

1987. This suggested that P.W.3 was doing the banking.

In short, what comes out clearly from the evidence is that it is impossible to say who

between the two respondents D and P.W.3 stole the money. There is authority for

the proposition that where, in the absence of evidence of common intention, it is not

possible on the evidence to say which of the accused persons jointly charged

committed the offence, then all the accused persons must be given the benefit of the

doubt. It was so held in the case of E Jumanne Salum Pazi v Republic, [1981] TLR

246, in which Kisanga, J. (As he then was) stated, at page 251:

I take the view that where two or more persons are jointly charged with the offence

and it is impossible to ascertain which particular one committed the offence then all

of them must be acquitted unless there be established on the part of F the accused

persons common intention to commit the offence charged.

That is the position in this case, and there is no evidence to show that the respondents

and P.W.3 acted with G common intention.

For the foregoing reasons, I am clearly of the view that the learned trial magistrate

was perfectly justified in giving the respondents the benefit of the doubt in the

circumstances.

In the upshot, this appeal fails and so is hereby dismissed. H

Appeal dismissed. I

1990 TLR p120

A