Benedict Ngwenya vs Republic (Criminal Appeal No. 81 of 2014) [2014] TZCA 2164 (23 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MSOFFE.J.A.. KAI3AGE. 3.A. And MMILLA.JJU CRIMINAL APPEAL NO. 81 OF 2014 BENEDICT NGWENYA ............................................................ APPELLANT VERSUS THE REPUBLIC ......... ............................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Kalombola. 3 .^ dated the 20th day of April, 2012 in (DO Criminal Appeal No. 36 of 2011 JUDGMENT OF THE COURT 20th.& 23rd June, 2014 MSOFFE. J.A.: Before the Resident Magistrates' Court of Songea the Appellant was charged with twelve counts of stealing by agent contrary to section 273 (b) of the Penal Code and one count of forgery contrary to sections 333, 335 (d) (1) and 337 (b) of the said Code. After a full trial he was convicted of all the counts of stealing by agent and sentenced to consecutive terms of three years imprisonment on each count. He was acquitted of the forgery count. Aggrieved, he appealed to the High Court at Songea where the appeal was

allowed on all the counts except count number nine. He is still dissatisfied, hence this second appeal. In both his three-points memorandum of appeal and in the oral submission before us it is evident that the Appellant's main complaint is that the prosecution case against him was not proved beyond reasonable doubt. From the outset, we wish to say that this complaint has merit for reasons which we will assign hereunder. To start with, we wish to make one observation. All the counts of stealing by agent had one common feature. It is evident therefrom that the Appellant was alleged to have stolen the stated sum(s) of money through the relevant vouchers mentioned in the respective counts. It was therefore, expected that since the counts had that common characteristic the analysis of the evidence ought not to have been treated differently. The standard of analysing the evidence ought to have been the same in order to avoid double standards in the evaluation of the evidence on record. Count number nine was in respect of a sum of shillings 50,000,0000/= which, it was alleged, the Appellant stole through payment voucher No. 1366 and cheque No. A0617803 entrusted to him to pay eleven clerks from

different Farm Plants. The clerks mentioned in this count testified at the trial. In dismissing the appeal in respect of the ninth count the judge on first appeal laid out the gist of the evidence given by the prosecution witnesses on the said count and then opined as follows:- Having brought the above testimonies before this court there is proof that Shs.50,000,000/= was withdrawn by the appellant on 8/10/2008. The appellant testified in court that he paid some o f those clerks by using mobile payment voucher and the remained sum he presented to accounts section. But the people as I have hereinabove pointed out their testimonies, denied to have received sum of money indicated in the payment voucher dated8/10/2008. [Emphasis supplied.] In our considered view, the fact that the said witnesses were not paid on 8/10/2008 was not "a big deal/' if we may respectfully say so. We say so because the record is clear that although they were not paid on 8/10/2008 they were nevertheless paid on subsequent dates, with others being paid less and others more. For instance, PW5 Selemani Adam was paid

8.000.000/= instead of 10,000,000/= and PW17 Raphael Kapinga was paid 13.000.000/= instead of 10,000,000/=. At any rate, no evidence was forthcoming to show whether or not the sum(s) of money paid did not tally with the total sum of Shs.50,000,000/=. Furthermore, there is nothing in the prosecution case to explain why others were paid different sums of money from what they had applied for. Better still, the fact that the witnesses were paid on subsequent dates was not the issue of the moment. The witnesses were positive that they were not paid on 8/I0/2008 for reasons which they assigned, and for which they were not contradicted by anyone, but were nevertheless paid on subsequent dates. If so, the judge ought not to have capitalized on this aspect of the case in dismissing the appeal on the conviction in the ninth count because the bottom line was that the witnesses were paid, after all. At the hearing of the appeal Mr. Shaban Mwegole, learned State Attorney for the Respondent Republic, contended that the sum(s) of money paid to the said witnesses came from other sources. If we understood him correctly, and we think we did, he was of the view that the said payments did not result from PV1366 _ to suggest in effect that the Appellant must have stolen the said sum of Shs.50,000,000/=.

With respect, the above assertion is not borne out by the record. There is no evidence that the above witnesses were paid from other sources. The procedure obtaining in the Company in effecting payments was as explained by PW4 Aidan H. Mapunda, the then Purchasing Officer of the said Company. According to him, the procedure was that a clerk who bought coffee through a Coffee Milling Mashine was normally required to prepare a report and send the same to him (PW4) who was to send the same to the Production Manager, then it was to be taken to the Principal Accountant, and finally to the Chairman and the Director of the Company. After the payment voucher had been prepared, it would be taken to the Accountant who, after going through it, would send it to the Chairman and the Director of the Company for authorization before the payment was effected by the Cashier. If, for instance, a clerk from a Coffee Milling Machine was in need of money, he/she would make a call to the Chairman or Production Manager or to PW4 or to the Appellant or to the Principal Accountant then one of the selected clerks would be required to fill in the form sought for payment and the above procedure would follow. PW4 said that this was the procedure for all payments.

It follows therefore, that payments in respect of PV 1366, and the payments in the other counts, must have followed the above procedure. If so, if the above payments were not effected from PV 1366 then the prosecution ought to have tendered the PV that was used in making the above payments. In the absence of a PV to that effect it will be fair to say that the money paid to the above witnesses must have come from PV1366 as submitted to us by the Appellant. In conclusion in the above point, in analysing the evidence on the ninth count the judge on first appeal ought to have approached it in the same manner as she did with the other counts because the payments were effected through the same procedure. There was no reason for her to treat the ninth count as an exception to the other counts. For the above reasons, we are of the considered view that the Appellant did raise reasonable doubt in the prosecution case against him for which he was entitled to be given the benefit of doubt and thereby earn an acquittal. The appeal has merit. We hereby allow it, quash the conviction and set aside the sentence. The order given by the District Court on 25/7/2011

for-the Appellant "to return to the PW1 the amount he stole"\s also set aside. Since the Appellant has already served sentence there will be no order for his release from prison, DATED at IRINGA this 21s t day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S: KADAGE- JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEA 7