Samson Ndegeleki v. R., Crim. App. 527-M-71, 29/6/72.

 

Samson Ndegeleki v. R., Crim. App. 527-M-71, 29/6/72.

JONATHAN. AG. J. The appellant was convicted on a charge of stealing by servant c/ss 271 and 265 of the Penal Code and sentenced to 2 years’ imprisonment and 24 strokes, being ordered also to pay a compensation of Shs. 2905/45 to the Mwanza District Council, his employer, whom he is alleged to have swindled.

            A good deal of the evidence is not in dispute and can be summarized thus: The appellant was employed as a clerk b the Mwanza District Council and posted to Masanza I Primary Court. Among his duties was collection of personal tax as agent, it seen, of the Internal Revenue Office, Mwanza, for which he was issued with receipt books out of which to issues receipts to tax payers. He was supposed to remit such revenue to the Internal Revenue Office twice monthly.

            On the 16^th September, 1970, P.W. 2 a revenue inspector issued a personal tax receipt book, which I shall call the receipt book, to the appellant. On the 5^th of April, 1971, he was sent a letter of dismissal by his employer, and he was required to hand over his duties to another clerk of the Council called Mihayo (P.W. 3). This was done on the 8^th April, 1971, in the presence of P.W. 4, an accounts clerk at the Council’s headquarters. I may as well say here, in advance, that his is also a defence witness (D.W. 1). A handing – over certificate was made out and duly signed by both the appellant and Mihayo, as did D.W.1.

            It is the prosecution’s case that although the appellant handed over to Mihayo three cash boxes, on of them had no key, the appellant promising Mihayo that  he would hand it in on the following day, which he never did. It was proved and not disputed that the receipt book had not been accounted for to the Internal Revenue office. Initially, criminal proceedings were instituted against the appellant because investigations revealed that some people had made payments and been issued with receipts out of that book. After the particular cash box was produced and put in as exhibit, the court ordered that the service of a locksmith should be sought to get it broken open. This was done and P.W. 12, a locksmith opened the box in the presence of several witnesses who duly testified. However, though asked, the appellant refused to be present when the cash box was being opened. In it the receipt book was found, among other things, but there was no money. In the receipt book as much as Shs. 2905/45 had been received. At that stage the prosecution successfully applied to withdraw the previous charge substituting therefore the present charge …….

            At the close of the prosecution’s case the appellant, in answer to the provisions of S. 206 of the C.P.C., elected to give evidence from the dock and to call one witness (D.W.1). He stated that after receiving the letter of dismissal he handed over all Government property he had in his charge to Mihayo in the presence of Mashimba (P.W. 2 or D.W. 1) and that they completed a handing –over not. The court then seems to have gone completely out of its way and cross-examined the appellant. The learned resident magistrate must have overlooked the provisions of S. 206 which make it clear that, in the event of an accused person making an unsworn statement he is not liable to cross-examination. That means he is not liable to cross-examination by the prosecution and the court (including assessors) alike. Though occasions rarely arise, of course, there is nothing improper for a court to put in a brief question to an accused person when making his statement, if to do so would give sense to what is otherwise incomprehensible, which indulgence, in my view, is desirable and certainly in the interests of the accused and justice in that it affords him assistance to communicate reasonably intelligibly. Here this was not the case, for the court asked questions which were not calculated merely to clarify what was otherwise unintelligible. Though the procedure adopted here was unlawful, I am satisfied that it did not cause a failure of justice and is a curable irregularity. The evidence thus elicited by the court shows, among other things, that the appellant handed over to Mihayo 3 cash boxes and one key for each cash box.  D.W.1 was, however, clear that one cash box had no key and that for that reason he had specifically ordered that it should be sent to his office where arrangements could then be made to have it opened.

            As will have been apparent, the defence case was that the appellant handed over the money which is the subject of the charge to Mihayo. For reasons which will be reverted to a little later, the learned resident magistrate found as a fact that the appellant handed over Mihayo one key for each cash box. However, having regard to the absence of any reference in the handing-over certificate, to the receipt book and the cash collected therein, he came to the conclusion that the appellant did not hand over the money to Mihayo. With respect, this conclusion would appear insupportable in view of the magistrates finding that the appellant handed over the relevant cash box to Mihayo together with the key. When the cashbox was forced open the receipt book was found in it.  Even though it was not included in the handing-over certificate. In that case what reason was there for ruling it a possibility, and even a likelihood, that the money may have been in the cash-box together with the receipt book at the time of handing over? No reason to this effect is disclosed in the trial court’s judgment and, in my view, the appellant should have been given the benefit of doubt resulting in his acquittal.

            It remains, however, to consider of on a proper approach on the evidence before it the trial court ought not to have convicted the appellant. To answer this question it would be necessary to review the finding of the lower court that the appellant handed over to Mihayo the key to the particular cash box. This begs a question: has this court power to review the evidence in support of that finding, it being a finding in appellant’s favour, and if necessary to reverse it?

            A first appeal is in the nature of a rehearing and, as observed by Biron, J. in Mhina Athumani v. Republic (1970) H.C.D. n. 151 where-in he followed a decision of the East Africa Court of Appeal in Dinkerrai Ramkrishan Pandya v. R., (1957) EA 336, a first appellate court has an obligation to re-evaluate the evidence as a whole and then to make its own decision on it, not discounting, of course, the fact that the trial court was the better placed in assessing credibility.  In the case of Pandya v. R., the Court of Appeal referred to the decision of the English Court of Appeal in Glannibanta, (1876) 1 P.D. 283, part of a paragraph of which decision reads, and I would quote: “But the parties  to the cause are nevertheless entitled, as well as on question of fact as on questions of law, to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inference and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect.”

            The case before the English Court of Appeal would appear to have been a civil matter while the East African Court of Appeal was dealing with an appeal from a conviction for an offence and not with a finding of fact in favour of the appellant in that case. I am, however, of the view as was my brother Judge in the decision of this court above referred to, though his seems to have been stated only in obiter, that the above quoted dictum of the English Court which was adopted by the East African Court of Appeal, applies with equal force to the case now under consideration especially, again as pointed out by Biron J., in view of the fact that the Republic now enjoys the same rights as an accused person in matters pertaining to criminal appeals. I would hold, therefore, that it is open to this court to re-examine the evidence and to reach its own decision whether the finding of the lower court hat the appellant handed over key to the particular cash box was reasonable on the evidence.

            [The court then proceeded to review the evidence and found that, contrary to the finding of the trial court, the accused did not hand over the key to the cash box in question, and therefore rejected the defence which this finding supported. The conviction was upheld and the appeal dismissed].

            Ed. Note: The court’s holding with respect to cross-examination of an accused making an unsworn statement is identical with that of Leonard s/o Kaseko v. R., (1968) H.C.D. n. 45.