BENEDICT AJETU v REPUBLIC 1983 TLR 190 (HC)

BENEDICT AJETU v REPUBLIC 1983 TLR 190 (HC)

Court High Court of Tanzania - Mtwara

Judge Samatta J

June 15, 1983

CRIMINAL APPEAL 41 OF 1981

Flynote

Criminal Law - Fraudulent false accounting c/s 317 (c) of Penal Code - Discrepancy B

between stores ledger and physical goods in store - Whether sufficient to convict.

-Headnote

Following the discovery of discrepancies between the stores-ledger and the physical

C goods by the Regional Stock Verifier the appellant was charged with eleven counts

of fraudulent false accounting, each contrary to s.317(c) of the Penal Code, and with

eleven counts of stealing by public servant, each contrary to ss. 265 and 270 of the

same Code. At the end of the trial he was convicted on all the counts and was

sentenced to a D substantive sentence of three years' imprisonment. The whole of

the decision of the trial court is appealed against.

Held: In the absence of evidence demonstrating, to the satisfaction of the law, that the

E appellant had converted the goods to his own use, it was unsafe to hold that the

omissions to enter the details of the purchase in the store-ledger were a product of

design and the intent behind them was to defraud.

Case Information

Appeal allowed. F

No case referred to.

S.M.M. Sengwaji for the respondent. G

[zJDz]Judgment

Samatta, J.: Mkomaindo Government Hospital is a well known institution in Mtwara

Region. It is a district hospital for Masasi district. In 1980 the appellant, Benedicto

Ajetu, was working there. He was a nursing officer. In addition to his normal nursing

H duties he used to work as a store-clerk. In this capacity he was responsible for

buying, inter alia, food items for consumption by the admitted patients in the

hospital. He used to maintain a store-ledger in which he was required to enter the

details of the purchases he made. It was common ground that between March 27,

1980, and July 6, of the same I year he bought and took delivery of items as detailed

herein below:

1983 TLR p191

SAMATTA J

DATE ITEM AMOUNT A VALUE IN SHS

1/3/80 Pigeon peas 3 bags 1,650

28/3/80 Cured Fish 2,200 3,520

1/4/80 Maize Flour 4 bags 972

Pigeon peas 1 bags 550

25/4/80 Rice 60 kg B 321

Cooking oil 18 tins 648

6/5/80 Sugar 150 kg 1,050

Salt 400 kg 600

17/6/80 Cured Fish 8,000 12,800

18/6/80 Chinese Cabbage 300 kg C 1,200

Tomatoes 185 kg 740

Potato Vegetable 300 kg 2,340

(Matembele)

Oranges 200 kg 800

21/6/80 Bananas 281 kg D 1,124

23/6/80 Oranges 286 kg 1,144

Tomatoes 176 kg 707

Bananas 278 kg 1,148

Sweet Potatoes 288 kg 576

5/7/80 Chinese cabbage 430 kg E 1,360

Tomatoes 290 kg 1,160

Potato vegetable 360 kg 2,160

(Mriba)

Oranges 307 kg F 1,288

When, in August 1980, the appellant's store was checked by a Mr. Iddi Ngwale, a

Regional Stock Verifier, none of the above items was found in it. On September

30,1980, the appellant was taken before the District Court of Masasi district where he

was charged with eleven counts of fraudulent false accounting, each contrary to s. 317

G (c) of Penal Code, and with eleven counts of stealing by a person employed in

public service, each contrary to s. 265 and 270 of the same code. The appellant

pleaded not guilty and the case had to go to trial. In the end he was convicted on all

the counts and was sentenced to a substantive sentence of three years' imprisonment.

H

At the trial three witnesses gave evidence for the prosecution. These were: Dr.

Venance Mhando, the doctor-in-charge of the hospital, Insp. Kisilla and Mr. Ngwale.

The appellant, who called no witness, defended himself on oath. Dr. Mhando's

testimony was, strangely, fairly short, at least according to the record of the case. He

asserted, I among other things, that "between June and July, 1980"

1983 TLR p192

SAMATTA J

(sic) he discovered that the amounts of fruits which the appellant was purchasing

were A unusually big. Assisted by a senior nursing officer, he checked the appellant's

store. What did the pair discover? The doctor's answer was: "We discovered that [the]

accused did not enter any fruit in the store-ledger and other food were (sic) not also

shown in the store-ledger." B

The doctor informed the hounds of justice about his discovery.

The appellant admitted to having received in his store all the items which formed the

subject matter of the charge laid at his door. He made no effort to argue that he did

not enter in the store-ledger the details concerning many of the items. He appeared to

C explain away the omission by asserting that, apart from being a very busy officer,

he was not specially trained for the store work. By necessary implication the

appellant was claiming that the food items had been legitimately consumed at the

hospital.

When the appeal was placed before my brother Mushi for admission or otherwise he

D directed, while admitting it, that the District Court take additional evidence and

certify the same to this court. The direction was made under the provisions of s.322(1)

of the Criminal Procedure Code. In the course of the direction the learned judge said:

E

It is not disputed, according to the record, that the alleged goods were received by the

appellant. It is, also according to the record, not disputed that most of the items were

not F entered in the Rations Ledger. Having regard to the nature of the goods, they

could not have stored to be shown to the Stock Verifier, as they were mainly

perishables, even if they had been entered in the Rations Ledger. The goods were for

every-day consumption by the patients as they were vegetables and fruits. G

Having made these observations the learned judge went on to pose this question: "Is

there evidence that those goods were not in fact used by the patients at Mkomaindo

Hospital during the period in question?"

If I may respectfully say so, this was and still is an important question, on the answer

to H which principally hinges the result of the appeal. The additional evidence was

taken by the District Court on October 20, 1981, in the presence of both the public

prosecutor and the appellant. It was given by one witness only: Dr. Venance Mhando.

Unfortunately I the witness shed no further light on the case. The

1983 TLR p193

SAMATTA J

witness tried to fill the lacuna in the prosecution case, pointed out by MUSHI, J., by

A saying:

I received so many complaints from the patients that they were not receiving

vegetables and fruits. During that time I was receiving bills showing that accused was

buying vegetables and B fruits. I was receiving bills which showed that we were

buying many vegetables and fruits. I was surprised because I was paying much

money.

Was it established beyond reasonable doubt that the food in question had not been C

supplied to the hospital kitchen (so that finally it could reach the patients)? As already

pointed out, this was the deciding question in this case. As is well known, in a

criminal trial in this country an accused person bears no burden to satisfy the court of

his innocence. The burden lies on the prosecution to establish his guilt. In the case

now at D the bar, therefore, the appellant bore no burden to satisfy the learned trial

magistrate that the goods in question reached the kitchen of the hospital (or the

wards). What was the difficulty in adducing evidence from one of the hospital's cooks

to the effect- if that was E the true position - that the appellant had not made

available to the kitchen the goods (or at least some of them) mentioned in the charge?

What was the difficulty in calling those members of staff who were responsible at the

relevant time for serving meals to the patients to come and give supporting evidence

on this crucial point? With respect, I think F neither the sophistry of a Roman jurist

nor the labour of Sisyphus can possibly provide satisfactory answers to these

questions. As will have been already noted, Dr. Mhando, in the additional evidence,

made some reference to the complaints which he received from patients on the nonserving

of vegetables and fruits at the hospital. Since none of G the alleged

complainants gave evidence in this case, in so far as that piece of evidence was given

to establish the truthfulness of the complaints (from the patients), it was inadmissible

in evidence for, plainly, it was hearsay: see s.62(1) of the Evidence Act, 1967.

It may be true, as was asserted by Dr. Mhando, that during the period in question the

H appellant had bought far more food than at any other time before. But this fact

could not, by itself, be very useful in establishing the assertion that the food had not

been (legitimately) consumed at the hospital. It was necessary, to make the piece of

evidence I carry some weight, to lead evidence on the number of patients admitted

at the hospital at the relevant time and

1983 TLR p194

SAMATTA J

also to give the numbers in respect of other periods used for comparison and contrast.

A Unhappily, this was not done. It cannot seriously be said that this evidence was not

available or could not be made available. In my settled view the lower court could -

and should - have invoked the maximum omnia praesumuntur contra spoliatorem in

this B case.

The prosecution did prove, and the appellant did not dispute, the fact that when the

store was checked by Mr. Ngwale, the stock verifier, none of the purchased goods was

found in it. I own I find it difficult to understand, in the absence of (proper) proof

that the C amount of goods bought far exceeded the hospital's requirements at the

material time, why anyone should have expected to find some of the goods in the

store. The goods were bought to be consumed by patients. Taking into account, as was

observed by Mushi, J., that most of the goods were perishables, I cannot understand -

and it is not D for not beating my brain - why the fact that the food was not found

in the store at the time Mr. Ngwale checked it could legitimately be taken as being

only consistent with the food having been stolen.

I must now say a word or two on the counts for fraudulent false accounting. In the

absence of evidence demonstrating, to the satisfaction of the law, that the appellant

had E converted the goods to his own use, it was unsafe to hold that the omissions to

enter the details of the purchases in the store ledger were a product of design and the

intent behind them was to defraud. If I may respectfully say so, I think Mr. Sengwaji,

counsel for the Republic, was perfectly entitled to decline, as he did, to support the

learned trial F magistrate's findings on the eleven counts too.

There is not much room, I think, for debate over the fact that there was a fairly strong

suspicion against the appellant in this case, but, as the learned authors of Field's Law

of G Evidence (10th ed., Vol.1) very rightly observe, at p.266, "law reports are full of

access based on the wisdom and experience of eminent jurists that suspicion, however

strong, cannot take the place of proof." If the alleged offences in the instant case were

in fact perpetrated, they were not, as, I hope, I have sufficiently demonstrated, proved

beyond rational controversy. H

For the reasons I have endeavoured to give, I allow the appeal, quash the conviction

and set aside the sentence imposed thereon. The order for compensation is, naturally,

also set aside. As the appellant is now a free man, having finished serving the sentence

I have I set aside, I make no order for his release from custody.

Appeal allowed.

1983 TLR p195

A