D. P.P. v. Ngonyani Crim. App. 199-D-71; 22/9/72; Onyiuke, J.

 D. P.P. v. Ngonyani Crim. App. 199-D-71; 22/9/72; Onyiuke, J.

The respondent was charged in the District Court of Dar es Salaam with stealing by public servant c/ss 265 and 270 of the Penal Code.

The facts tendered by the prosecution in the court below were that P.W. 1, an Assistant Principal Secretary in the Ministry of Commerce and Industries, obtained on the 11^th May 1971 a cheque for Shs. 3,000/= from the Accounts Section of the Ministry. This money was to be used to defray expenses in connection with the projected Japan Expo 1970. The witness cashed the cheque on the same date (11/5/70). He spent Shs. 1,400/= and had a balance of Shs. 1,600/=, all in Shs. 100/= notes. As he did not wish, for security reasons, to take all that money to his house, the witness took the money to the respondent for safe keeping in the safe kept in the office of the Commissioner for Commerce and Industries. The respondent was then working as the personal secretary to the Commissioner and by virtue of that position was entrusted with the key to the safe and with other confidential matters. The transaction between the witness and the respondent took place about 2 p.m. on the 11^th May, 1970. Nobody was present when this money was handed over to the respondent and the witness obtained no receipt for it. He said, however, that he trusted the respondent and had in fact entrusted, on at least fifteen previous occasions, similar sums with the respondent’s predecessors in office without obtaining any receipts. The next morning (12/5/70) the witness called at the respondent’s office to take the money, but the respondent did not turn up for work and was absent from duty for the next three days. The safe remained locked in the respondent’s absence. The respondent was found dead drunk by the police on the third day in a house at Kisutu. He had the key to the safe. The safe was opened in the presence of the respondent but no money was found therein. According to P. W. 2, the investigating police inspector, the respondent denied receiving any money from P.W. 1.  The trial magistrate “found it difficult to believe that P.W. 1. Handed over the money to the respondent for the reasons: (1) That it is incredible that P.W. 1. entrusted all that money to an officer on such a low salary without obtaining a receipt from him. (2) That the relation between P.W. 1 and the respondent was purely official and could not be a basis for such great trust; and (3) That P.W. 1’s evidence had not been corroborated by other persons who could have been called as witnesses.” Accordingly he acquitted the respondent. The Republic appealed to the High Court under s. 334(1) of the Criminal Procedure Code against the acquittal. The Republic contended that the reasons given by the trial magistrate in rejecting the evidence of P.W. 1 were untenable and showed that he misdirected himself.

            Held: (1)”The case for the prosecution depended to a large extent on the credibility of P.W.1 based as it was on his oral testimony and his demeanor in the witness box. The trial magistrate was therefore, prima facie, in a better position than an appellate court to decide the issue of credibility based on such oral testimony. It is only where it is clear that the trial court acted on a wrong principle or misdirected itself in arriving at its conclusions that an appellate court can properly interfere. The reasons given by a trial court in arriving at its conclusions may indicate such misdirection. It is in this light that this appeal has to be considered.” (2) “The question was not whether P.W. 1 was prudent in entrusting the money to the respondent without obtaining a receipt but whether he in fact did so. In coming to a

Conclusion on this point the learned magistrate failed to direct his mind to the fact that as the respondent was the personal secretary to the Commissioner for Commerce and Industries and by virtue of that office had custody of the key to the Commissioner’s safe and other confidential matters, he was clearly occupying a position of trust in the Ministry in which P.W.1 was working. The learned magistrate further ignored the uncontradicted evidence that it was P.W. 1’s practice to leave money in the Commissioner’s safe and he had done so on at least fifteen previous occasions by simply handing the money over to who ever was the personal secretary to the Commissioner without obtaining a receipt therefore. The reference to the respondent’s salary was irrelevant unless the learned magistrate was thinking that P.W. 1 should not have tempted a person on such a low salary by handing such a heavy amount to him without obtaining a receipt. But this could hardly be a ground for holding that P.W. 1 did not in fact hand the money to him.” (3) “….. The learned magistrate was under the impression that every fact testified to by P.W. 1 must be corroborated by other witnesses. P.W.1 ’s evidence did not require corroboration either as a matter of law or as a matter of practice. He was not an accomplice but a victim. His evidence was not inherently improbable as to require confirmation by other witnesses to induce credence. Secondly, some of the facts for which the learned magistrate required further proof were not disputed. P.W.1 stated that the respondent absented himself from duty and was not in the office for three days after the event. The respondent did not dispute this fact in his cross-examination of this witness and did not give any evidence denying it. There was no need therefore to belabour the issue by calling more witnesses on the point. If, on the other hand, the magistrate felt that the evidence of any witness was essential to the just decision of the case, he had not only the power but the duty to call such witness under section 151 E.A.177.” (4) “In view of the foregoing and as nothing turned on the demeanour of P.W. 1 in the witness box I am of the view that the learned trial magistrate misdirected himself in his reasons for rejecting the evidence of P.W. 1. I will allow this appeal and set aside the acquittal and order a retrial before another magistrate of competent jurisdiction.”