Amon Mwakalobo & Another vs Republic ((DC) Criminal Appeal No. 89 of 1999) [2000] TZHC 54 (6 July 2000)

AT MJ31'YA (From lV,be,ya J?istrict Court Criminal Case rh. 237 of 1993 Be 1 f6';;:i; P.11.. Lyinlo - Ilesident'. lfagi$aft·t) EJV1MANUEL ELIYA. l'fi.ATES0 ) APPELLANTS T"tlE REPUBLIC oti cooo c, o o 0 oo 1.>o o o.a ooo ESPONDENT JUDGMENT .- ............... --- HOSHI, J. __ ......,,__..r ____ , ·.:_t;. 'rhe first. and sec.ond .ppellants, Am;n f"iwakalob·· d :E}nmantief Eliya Mateso, .i · ~ . : . . ··-· ·· .. were jointly arraigned 0 before te · distr.i.ct cc,urt of Mbeya as ~he first and second accuseds, respectively, on an indictment which ontained eight counts. Some counts were for coth and some were for each.' All the offences v1ere alleged to have been ommitted within the Municipality of Mbeya. 'I'he counts were: First count (:for both}: Conspiracy to Steal J contrary to sectioh.s 3!..\4 and.265 of the Penal Code, in that on · divers days ,.between 1st September 1992 ai."ld 22nd February 1993 both appellants, and others unknown, conspired to steal Shs.15,263,530/= from Bank of 'l'anzani, Mpeya ranch, through Account lb. 53: 29 of . . . . ' . '. Medical Assistants Training Centre, ivfbeya 1 hereinafter referred to as,M.A.'.l.'.C. Ses.si.~~c.!., cpu}l (For both): F'orgery, contrary to sec·i:;ions 333, 335 and 337 of the Penal Code, it being allege( thaW•b§tween · ¼ 30th Decemer 1992 and 18th January 1993 both appellants jointly and together forged Warrant of li'unds No. 00009872 ,•.,for shs.8,462,6ooLr-, and No. 00009920 for shs.6,800,930/::: 'j· purporting to ~how the same were issued by :~he Principal Bec:i;;tary, Ministry of Health Da:rs.Safaam, something which was fp.]._se to their knowledge • . :1:.; ; . ./ 0000••0•• /2

Thi.rd count (For First App9llant): Forgery, contrary to sections 333, 335 and 337 of the Penal Code, whose particulars were that between 27th January 1992 and 10th Ja.11.uary 1993 the first ap.pellant, heing·a person employed by.the Ministry of Health as Accounts Assistant at i:.LA •. 'l'.C., forged cheque No .. 05600003 for shs.8,925,400/= and cheque rfo. 05600007 for Shs.6 ,338'~ 130/-=. Fourth Count (For F'irst Appellant): Uttering False Documents, .............. -::0.•~.. .... ,,. ......... --...... . . contrary to section 342 of the Penal Code, the particulars of which were that on 18th January 1993 at the Bank of Tanzania Mbeya Branch,' the first appellant, being a person employed by the M.inistry of Eealth as Accounts Assistant at . . . ' ... l'L A, T. C. knowingly and l<'raudulently uttered Warrants of Funds No. 00009872 for shs.8 ,462 ,600/= and No. 00009920 for •: ., :.I• ·· shs.6,800,930/= to on_e Edwin s/o Mwakasonda, knowing that the same were forged docwnents • . F.if..:ph C9.p_!. (For Second ;ppell;;mt): Uttering False Document 1 contrary to section.·342 of the-Penal Code, in that on 28th January 1993 at _the ifationa,l Bank of Commerce, Karume ·- Avenue Branch Mbeya, the second appellant J:<-..nowingly and fraudulently uttered cheque No. 05600003 fo sh~~8,925,400/= to one 1efaziri Hajabu !-:newing that it was a ·forged document • .Sixth __ Coum., (For i3econd Appellant) Uttering lt'a.J.se. Pocument, contrary to s9ction 342 of the Penal Code whose particulars ·,. were that on ~th February 1993 at the. same branch of the National Bank of Commerce the seco_nd appellant knowingly ... r and fraudulently uttered cheque No. 05600007 for shs.6,338,130/= . . ' . to one .firs AtuganHe Mung I ong I o knowing hat it was a forged document. Seve,nt Cou7:2! (For both): Stealing, contrary to-section 265 of the Penal Code, in that between 28th January. .1993 and 22nd February 1993 bth appellants jointly 8;11-d toe-her stole a total of shs.15,263.,530/==, the pr:opety of the Banl of •. . ' Tanzania, Mbeya Branch. 1):ighth. Cou1::,t (For J!'irst Appellant·}-: Destroying:·Ji..'vidence, contrary to section 109 o'f the Penal.. Co·cte •. It .was alleged that between 8th :B'ebruary·1993 and 15tliF~Bruary:1993 the first appellant knowing that ·pa-id cheques ··ifos·;, 05600003 and 0_5600007 and the relevant bank statementsiwould'be required as evidence against him wilfully destroyed the same with intent thereby to prevent the sarne from being used in evidence.

·'

• 3 - The appellants pleaded not guilty to their respective counts and a full ·trial e·nsued. · -The -first· appellant .was· acq:μ_itted:,of the 8t~ C!;l}fil~ but onvicted of the 1st, 2nd,. 3rd, 4th and .?th· counts f9:r;. whic.h,-.-he v-ias. sent_encE;d to terms of"imprisonment of one'·year,<fiye,years, f:i-v: y.ear1H_;five ears and five years respectively, which was.ordered to run concurrently. Th~ second appellant was '· convicted of the 1st, 2nd, 5th., 6th and 7th counts as. charged and sentenced to . . . . . ~ . . . . . . . terms· of imprisonment of 'cme. year, five .ye_ars,~ f_iv_e. years; five years and five ·.:: years, respectively 1 which· was or.dered to .r,μi:· cop.c,urren_tly. • • I . . The convictions cmd\3ntences aggrie:,,ed.''"the appellants I hence this appeal preferred d argued befo;e me by their ilearriei'd. advocate I Mr. Naali. The appeal is resisted by the Republic, and one Mr. Kapinga, learned advocate, had defended the appellants at · the trial. · The first a:;;iJiant was at all rnate:tial .. times Accounts Assist.ant ·employed. ,:'· . by the· Ministry of Health at H.AT·;c'. · Mbeya·i -·He worked with .Zebedayo Mgoda 1 ,,·. ·"·. ·,,, .,. .. ,} .· h did -ot testffy ,· a:n·ct' egiald J.elwa {P~3), \1ho was their, incharge. His duties COlprised or' keeping and writi'r1g p·yment \io1ichers 'ruid ·cheques 1 . keeping the vote book and bank statements; 'a:rtd ba..."lk r·cdnciliatiorl matters. He was however not a cheque s1gna.t'ory.. ·checiu signatories i-1ere Hrs Kmiga' (PvJ4), PW3, l'fJr Sanga~ and .Dr. Peter Gamba (p1;J5). They ach- kept their documents and books .,. of acount under iock and Key. When cine · went·- on leave-- -he would· hand· over his books of account to another in -vriting, and· the·· :Friricipal •of M.A.T.C. would The second appellant was. at all mate.rial times the .proprieto:i:- of M/S Mnui Enterprises, a fumigation firm, with an off ice at Sabasaba. grounds in Mbeya .. ✓• ·, • The· firm operated ,a Current Account _;No. P/02966 at the K'¥'U1T1e _Br?-U?g of the ;.thn National· 'Ba:nk of Commerce (NBC) Mbeya. Th firm had .never. had any business dealings ~ith M.A.T·.c. Mbeya. -: : . ' .. ' It was not only established inevi<l.ence but uridisputed:as.•well that .. , . ..... ' .... ·: ·-· : .. , ·• -- . . ' ' . . . between 28 January 1993 and'." 22nd 'Feb:hiary .1·993 cash· shs.; 15,,263 ,530/= belonging .. ' to the .Bank of Tz.r1ia~-;Mbeya Branch, was .stolen>tbrough Ac~_t· No. ... 53~29 of .f-, .. ; o O Cl • 0 0 • • 0 • • /4

4 M.A.T.C. Mbeya •. A long _chain of accomplices were involved, ·and this is how the theft was perpetrated. Twov forged warrant of fup~, No·. :ooop9872 of shs.8,462,602/= and No. 00009920 ef shs.6,800,93,0/= (1'.:xt P 1 ), ·both dated 30.12.92, found their way into the Bank of 1 ranz.ania, ·Mbeya ·Branch. They purp?rted to have been issued by the Princi]?al f?ec;.;reh{ry, Ministry qf Health at Dar-es-Salaam in favour of :[l:i.A. T. C. f:ibeya. The BOT computer operator who posted them into the M.A.T.C. Account No. 53:29,,.,, ,_Lucy -Kilapilo (P\IJ8) col.lld not identify th_eir presenter at the BOT. She claimeo. she did not then know . : . that Account No. 53: 29 belonged to f"1. A. T. C. Mbey~~ .. Tpe ~varr,§Ul!. of funds were •• •J • .. ·; not genuine. ·· .. ,·· ..... . 1:' On 28.1. 93 the second appellar1t deposiJeg a fo:rged- cheque No. 05600003 of shsa8,925,400/:= into his account at the Karume Branch of NBC. 'l'he cheque .... ' .i ... : :·: . ·; .r · . was allegedly .drawn in favour of his firm by M.A.1 1 .C. Agi=itin.on ,4.2.93 "the . . . . . ' ·; .. ··.: . - . . ·. . . .,. -- ',. ~ .. : ! ~ .• second appellant deposited into his account at the same b.ar).k,a,:(orged 1 cheque :· ___ : .. -; ·,,· '.;; ,t _ ., No. 05600007 of shs.6 1 338, 130/:: allegedly dr,aw:i:i, by .M"A.T.G~. in, favour: of his . . ' .• ..:,. __ ,·';1.,..; .•• firm. The two cheques were from cheque_book No. 05600001,- 05600100 which was issued by PW3 to the first appellant on 13. 10.92. 'I'he two chequ,E;l_S w_ere cleared by Bar, and within 14 days of their deposit the second accused had withdrawn ·,· '1 I • . 'all the money through personal cheque_s he drew in favour of .himself or in fa:ltbtir · of other persons. Fourteen withdrawals - were made in all. The leafs of the two cheques could not lie traced. But theii~ counterfoils (Ext ~) told a story..: One indicated that the cheque was issued to ope Kamwela on 23.9.92. 'l'he other indicated that it was issued to Kimele . ' ' . qm,,t:r,uction Ltd~ Both counterfoils were however written ·,:··cancfolledi:. A hand~iti:p.g expert expressed an opinion that the han'dv.rr:i'.ting on the counterfoils resembled that of the first appellant. PW3 also -expressed the same view. A report of a handwriting expert is only one of tl:11:i methods a ourt of law . ·.·. . .... '. : . ... : .. .,. . .. . . can use to obtain.an opinic;m. as to the authoriihi,p of the docurn_Eln-; _in question. . . ' . ·' ' ... ..: .. - ' ,' . . . . . . . ... ) - .... ~ .. Section 49 .of .the E,'v,idence Act provides the _.o_thr meto_cl, _whi,G.1:t ,is that the cot -a:·-;·~~y n -t: --vie1c--of. a -rson or p~~sons;~~~~int-~ with the 0 0 • 0 0 0 .., 0 ... 0 0 /5

5 handviriting of the accusedo But these methods are only or the purpose of obtaining an opinion to be. considered with other evidence against' the accusedo The opinion on its own is not proof beyond reasonaole doubt. It depends on .·,. :. circumstances of each case. In tDis case, for instance, there was not, and there could not have been, much 1:.f a writing on the 9heque coilllt'er-foiL, '.!.'he first appellant denied any complicity in 'the ·cri111es. At page" 8 of. his typed version of the judgment, the learned trial ·rr1ag-i9.t:rate indicated. that .. •':·,·:u·•. the first a:ppel_lant admitted that he was the one who :i{Ssue,d.,.,11e two cheques ··',,' and that h-,w n duty at the mateial time. misdirection as to what the first 13:ppellant had said in ,his defence. Nowpere .'.·C·. in his defence did he make·· 'tlie ad!Jd,ssion alleged b·y the .mag:i.strate. •I.. 4.7 :; ! . his defence I basicctlly, "as tli.at he was not/ oi{ dty at. t.qe times if '.tti~' B°ffences '·•·. t (,: . .(; having handed over his du.ties . and wor:J;<ing tools iritluding the relevant cheque ·:·:· to Zebadayo Mgoda on 1012. 92 when. he went on ~ave and tlat they had nbt heen . ', .. ; ~ .. i1&nded back. to him when he was arrested on 22..2:93. · ·:.iu\1:;e clearly, therefore.,. the learne·d trial magistrate was not ;properly· seized .. of ,the defence o('·the '· first appellant. He had not considered .that defence .t all, _let alone' prionqunc. .' .. ,. -.·. on ite _Tl;lat the first appellant had gone on leave and· handed over to Mgod:3- was uncontroverted. · On the contrary, it was a:ffirme'd by: then V_ice-Principal :i M.A.T.C/, Dr. ·Ndikuma·Ngaje,kamwa (PW2). :·igoda did npt testify to ,.deny or • I • , affirmo He was not even subjected to the handwriting exercise. It· did--·not . rest on the first appellant to ,.stablish that he· handed over to I'-:gcida and , . went on leave. This would have meant call:i.rig on -him to prove his innocemce. A person aqcused of crime is not required to prove :his innocence. 'l'hat innocence must, ·μnder ·the law,' be asswned by the court. unless guilt could be proved by the prosecution beyond reasonable doubt ·I would, therefore, and with J:'espect 1 _ agree· with Mr:-· Naali that in 't.1:1is · case there. was a glaring possibility of a person other than the f:i:rst ,ap4-la.ri.t committing..i :t,h 6/fenees· without the knowledge and or assistance of the first appellant, and·thus making his complicity in the crimes not demonstrated beyond r€asonable doubt. '-' • 0 0 0 4 0 0 0 • 0 /6

,, 6 .. The story, however, is d·ifferent .with the second appellant. He was certainly a culprito · Ee said in his defence that. hm per~~ns l;• did. not know requested him to :1ave · their cheques .. paid through his acc·ut at :NBC Karume Branch. 'i'hey called themselvs ,Eliya Bakari .Sang,3_ ar1d '.J:'hol::Jias. He said they told him they did not have, a bank. accounto He. ·agreed -1i11d c;ave them part icuiars 9 in respect of the name and nUinber of account and-the bank. They later brought to him the two forged N.A.T.C. cheques which he deposited in his· account and. withdrew as already described. He claimed he was withdrawing the· money as .. instructed by. them and that he was handing over the money to''them • .- When. all· · :-·; the money was withdr.awn,. Sanga fled to Swaziland and 'rhobias to an unknown . . desti:nationo He did not question them on the cheques. :fo, did not even ask , .. - them what they had supplied to, or worked for, M.A.T.C. · ·Yet the two cheques· "1 ii . . were drawn in the name of his firm. The second appellant ·was part of their ' . manufacture. The story about the two persons was a' sham. If it was anything to go by the two cheques ought to have been.drawn in their names as payees who . ' would then ·have indorsed them for deposit in the account of the second appel],.ant •.. That defence was so lousy that anyone hearing it would have without any doubt, held the second appellant bf impropriety. · In sayiiig so I am mindful that a , person accu"ed of crime is ·n:;t ·to'· be convicted ·oi:1 the ·weakness. of his defence, ~ .. ,. ' . • .. but on the strength of. an affirmative· prosecution case.· ·rn this case, I am satisfied that. the complicity of the second appellant in t.he crimes charged was. proved beyond reasonable doubt, and, in consequent, I find his appeal devoid of merito .. · .. In the final analysis, therefore, I allow the appeal by the first Appellant,, Amon Mwakalobo, quash his convictions, set aside .his sentences and ., .. -. ; the order for comper..sation made: against him· thereunder I and hereby order his immediate release from prison, ·uniess he- is otherwise lawfully held. same stroke of the pen, the appe.tl by/diP.ellant·•. anuel /' .; '- '- .. · . Mateso, stands dismissed.in its e1;t_i}'ety. ~ 1 :.,..·· .••• • ',. ·-.;----, - :.: ~ · :-1-::: ---:r:.__ ~ ~ :. . !> AT HBEYA. ..,... ...... .....---,.:-., JUDGE. ..·---- 6 Jui~ 2000. ::.'or Appellants; Lr. t•fuj_se for i:;r. Hac:J.i•u ]f'or ?e-r.:uO_ic~ ;•i"1. :~-::(:,:_osii 3:,,-=1, ... • ,:.1 By the Eliya