Amon Mwakalobo and Another vs Republic (DC Criminal Appeal No. 89 of 1999) [2000] TZHC 451 (6 July 2000)

11 M0SHI, J. -·-:"""•---..-,.---..,._ IN 'I'HE HIGH CuURr OE 'I1ANlANIA ' AT MBb,YA (DC) CRIMINAL APPLAL NOo 89·0F 1999 (From l' ✓ ,beya District Comt Criminal Cane No. 237 of 1993 .. Before~ P.A. Lyimo - r;esident ·l'fagis:trate) 10 AMON M\tJAKALOBO - "Ou O LOO O, 0 0) 2. EMM.ANUZL ELIYA .. IV1ATEB0 )' ·~ APPELLANTS Versus '' l T"tlE REPUBLIC 'RESPCJNDENT ....... 'rhe first and second appellants, Amon Mwakalepo and Emmanuel Eliya Mateso, were jointly arraigne,d before the district court of Mbeya as the first and second·accuseds, respectively, on an indictment which contained eight countso Some counts were for both and some were for eacho All the offences were alleged to have. been committed within the Municipality of lVibeyao •:'he counts were~ First count (For both).~ Conspiracy to. Steal I co 1tr:3Ty to . sections 3_84 and 265 of the Penal ode, ?Xl: that on -,- divers days. between 1st .September 1992 arid 2,2nd · Fe.bruary 1993 both appel,lants, and, others unknown, conspired to steal Shs. 15,263 1 530/ f.rrn B3.11J< of ,·: '.:' Tanzania, Mbeya Branch, through Account No., 53: 29 of ·" . Medical Assista.r{.fis ·i:craining Centr.e, Mbeya 1 · hereinafter .,:.;._ .:.:-' referred to ·as M..A.'T.C. '-:§.co_i:i,:i couaj; (For 'both): Forgery, .contrary,~~(_) sectLms 333, 335 and 337 of the Penal Code, it being -=S-leged, Jhat between . 30th Decemer 1992 and 18th January 1993 both appellants j9intly and together forged Warrant ,of ':;:,'ds No. 00009872 ·,•, for s~~ .. B,462,'600L<, and No. 00009920,~~or:"':shs.6,800,930/== purporting to ;show the sarre were issued .. by th. Principal . •:'. ::::r:•: ! ""< t: •: ·• ,. :• .. •. \•': Secretary, Ministry of Heal th Daresa,laam, , sori1ething which ; ' :t:"i . was false to their knowledge. /2

'rhird count (For First App·el1ant): li'orgery, contrary to sections 333 1 335 and 337 of the Penal Code, whose particulars were that between 27th Jam,ary 1992 and 10th J-armary 1993 the first appella1J.t, being a person employed by the·Ministry dr ·~ ;). - . . .. J • • • '. • ' of Health as 'Accounts Assistant at LA.T.C., forged cheque No. 05600003 for shs.-8,925,400/= and cheque No. 05600007 for Shs.6 ,338, 130/-..,. Fcmrt Coun't (For First Appellant): Uttering l"alse,~ Documents, contrary to section 342 of t~~, Pecμ ,Coc\e, he particulars of which were that on 18th January 1993 at the Bank of Tanzania J\tlbeya Branch, he first appellant , being a person employed by the Ministry of Health as :Accounts Assistant at M.A.T.G. knowingly and Fraudulntly uttered Warrants of Funds No. 00009872 for shs.8,462,600/= and No. 00009920 for shs.6,800,930/= to one Edwin s/o Mwakasonda, knowing that the same were forged docwnertts. ;F_itth CouE.t (For ,Second lppellant): Uttering False Document, contrary to sect ion 342 of the Penal Code, in that 'on 28th January 1993 at the National Bank of Commerce, Karume Avenue Branch Mbeya, the second appellant knowingly and fraudulently uttered cheque No.,05600003 for shs.8 1 925,400/= to one \faziri Rajabu knowing that it was a forged document. §jxt}: .. -.C..oynt:_ (For Second Appellant) : Uttering FaJ.se Document, contrary to section 342 of the Penal Code whose particulars were that on 4th,:February 1993 at the same branch of the National Bank of Commerce the second appellant knowingly and fraudulently uttered cheque No. 05600007 for shs.6,338,130/= to one Hrs Atuganile Mung 1 ong 1 o knowing t:1at it was a forged document .. . P..e2:_t,.coun_ (For both)~ Stealing, contrary to section 265 of the Penal Code, in that between 28th January 1~ 1 93 and 22nd February 1993 both appellants jointly and together stole a total of shs.15,263,530/:::, the property:of the Bank of 'I'a.11zana 1 Mbeya Branch. E~~_.ll1 _. Cout (For First Appellant) : Destry:1.hg L'vidence I contrary to section 109 of the Penal Code. 1t .;ifs alleged that between 8th February 1993 and 15th iebruary- 1993 ;the --first appellant knowing that paid cheques Noso 05600003 and 05600007 and the relevant bank statements would be rquiredas evidence against him wilfully destroyed the same with intent thereby to /. ~ 1 r--'......____~event the sarae from b" ing used in €Vidcnce.

· .. : ,-:·, ,· .. The appellants pleaded not guilty to their respectiv~ counts and a full . . . •:•·. · .• ,,. . C -:.. r. ·. ~ .: j :~. . I J • • trial e;nsued. The first. appellant was acquitted of the 8th count but convicted of he 1st, 2nd, 3rd, 4th and 7th counts for which he was sentenced to terms e of.. imprisonment of one year, f_ive years., ,:i,ve years, five ye"c;rs and five years - :·. respect i v:ely I whic was ordered to run concurrently o The se·cond appellant was crivited of the 1st, 2nd, 5th, 6th and 7th counts as charged and sentenced to terms of imprisonment of one year, five years, five years; five years and five years, respectively I wh_ich was ordered to run concurrently. . . The convictions and sentences aggr;i.eved t_he appellants, hence this appeal . • ·, . • • ·- .. ~ .. ,-. i : preferred and argued before me by their learned advocate I Mr. Naali. The appeal /is .. resisted by the Republic, and one iVir. Kapinga, learned advocate, had defended ·'! the ;3-ppell,ants at the trialo . The firs.t appellpnt was at all mat.r\f times Accounts Assistant employed .; '.;'_by.the Ministry of Heq].th at f·LA.T.C. Hbeya. , •• , ., •• ·,· •. • r . ae worked with Zebedayo Mgoda, ·who did not testify,· and Reginald fJJ.elwa (PW3), who was their incharge. His . • " • ; . I I • _' ~ . ' • "• ' • duties .comprised of .-keeping and writing payment vouchers and cheques, keeping , ' .. . ··:. ·. · .. · ·: .. · the vote book and bank statements, and ba:."lk reconciliation matters. He was ' •, . however not ,a· cheque '.sig!).a.tor;y-., Cheque signatories were Mrs Koriga (P1:J4), PW3, . : . . ~ . ,. ' . }.\l'!r Sanga., and ~ .. Peter Gom}:)a (H-J5)_e They each kept their docunients 'and books of account under· l()ck d Iey •. W+1i,m one went on leave he would hand over his books of account to another in writing, and the J?rincipal of rri.A.T.C. would know. The second appellant was at.all material times the proprietor of M/S Mnui ;..·_1, Enterprises, a fumigation firm, 1rtith' an office at Saba.saba grounds in Mbeya The fm operated a Current Account No. P/02966 af the Karue Branch of the then National Bank of Commerce (trnC) Mbeya. ·' The firm had rieve:t had any business -.\ . : ' ,: .dea]..,ing? with M.A.T.Co Mbeya • . • I,.),,,•: ' :It.;.was not only es'!;i3,.bl;i.shed in evidence but undisputed as 1uell that .. ,' . between 28 ,Jqn.,u.ary 1993 }?,lld. 22nd. February 1993 cash. shso 15,263,530/= belonging . • • . ' ' . - • ~ .. • • ,,. • . • . : • • ·- • • 'f • ·to the ::BBJik i;{ Ta.nz?,U:j,.a, ,!Vibeya. Branch, was stolen tbr-ough Acco.unt Noo 53:29 of :· ' . - . ~ . ~... . .. ·'/.. . . ~ •.. - ::.

4 M.A.T.C. Mbeya. A long·cha:m.o.f accomplices were involved, and this is how .· :.:;; :- '. the theft was perpetrated. 'l.).10" forged warrant of funds, No. 00009872 of shs.8,462,602/= andNo'-◊0009920 ef shs.6,800,930/= (Bx:t P 1 ), both dated ;. !' 30. 12,92, found their way into the Bank of 'I'anzania, Mbeya Branch. They , purported to have been issued by the Principal Secretary, Ministry of Health ; . ' at Dar-esSalaam in favour of M A" T. C. Mbeya. The BOT computer operator who :::1 posted them into the Iv1.A.T.C. Accourit No. 53:29, Lucy Kilapilo (PW8) could . . . not identify their presenter;.El.:C. the BOT •. She claimed she did not then know· that Account No. 5329 belonged to }'i.A.T,C. Mbeya. The warrant of funds.were not genuine. On 28., 1.93 the secorn;L a.ppellant deposited a forged cheque No. 05600003 ' . > '/'f : . : · ;; ;f '• •···:11· . of shs.8, 925 ,400/= into his account at the kafhme Branch p;f)IBC.. 'l'he heqe · · ,; ; . was allegedly drawn in favour of his firm by M.A.'1 1 .C.;'. Ag_ain.o 4.2.93 the .: ,· :, ., I ' "J,',.._ ·•.,. second appellant deposited into his .accoub.t at the .s1;c1.rne bank a forged cheque ' • '•• 'I, ' ' No" 05600007 of shs.6,338, 130/= .alleged1y drawn by M_"A.T.C. in favour of his firm. The two cheques. were from cheque botik Nob 05600001 - 05600100 which was issued by PW3 to the_ first appellant on>1_3.10o92. 'I'he two cheques were cleared by BOT i and within 14 days of their depbsit the second accused had withdrav-m all the money through personal cheques he drew in favour of himself or in favour of other persons. Fourteen wi thd1·awals were made in allo The leafs of the ,two cheques could not be traced. But their counterfoils (Ext P3) told a storyo One indicated that the cheque was issued to o~e Kamwela on 23.9.92. The other indicated that it was issued to Kimele construction Ltd. · Both counterfoils were however written i,'cancelledi;. II A handwriting expert·expre$sedan opinion that the handwriting on the counterfoils ,., ... resembled that of the. firt;,t appellant. PW3 also expressed the sasne view. A report of a handwriting expert is only one of ttie methods a court of law can use to obtain an opinion as to the author,.-hip of the doc.Ulilent in question. . . -~ft Section 49 of the £'vidence Act provides the other method, which. is that the · · . , . acquai1i-,:ed · . t'. th cour.f· can rely· on the ev_i<i;ence of a peJ:'.son- or ;persons . , . . · wi n . e ·1 /",I ~ . /,,- . . ..,

.... 5 - . . . handwriting of the accusedo But these methods are only for the purpose of obtaining an opinion to be considered with other evidence against the accused. 'I'he opinion on its own is not proof beyond rec:.~onable doubt. It depends on circumstances of each case. J:n this case Y \ for instance, there was not 1 and there could not have been, muclJ:-ff a writing on the;. c;:~1.eque counterfot;J..o , .. ,. - . .- .... !. 'l'he first appellant denied any complicity in the· crimes. At page 8 of his typed version of the judgment 1 the learned trial inagistrate indicated that the first ·appellant admitted that he was the one who,.issued the two cheques and that he was on duty at the material time·.· 'vJith 'resp_ct, that was a grass misdirection as to what the first appellant had said·: in::his defence. Nowhere in his defence did he make.the adinission·a11egd by'the:rrtagistrate. In fact, .. ' ' " . ' ~,. • '.',f I ~ • " j • • • •"\ • .: -• • • his defence, basically, was thaf"he was not on duty :t'·the times""itrthe of.fences · -:, having handed over his duties and working tools including the relevant cheque to Zebadayo Mgoda on 1.12.92 when he vient ·on ieave· and'· tha'.t they had not been hGilded back t.o hi.m when he w'as arrested n 22.2.93· 1 .. ·. :),uite ·clearly, therefore, • i the learried trial magistrate ·was riot properly" se'ized of the defence of the first appellanL I{e had not· considered that ·defence at all, let alone pronounce. on iL That the first appellai-i't had gone on leave"'ancJ. 'handed over t9 Mgoda was uncontrovertedo On the contrary, it was aff{rmed fry _then Vice-Pri..vicipal f Mo A. T. C. , Dr o Ndikumana Ngajekamwa ( PW2). · f,\goda did not· testify to deny or affirm He was not eve subjcted to the hruidwr:i.1::ing. exercise. It did not rest on the first appellant to establish that· he· handed over to I',goda and went on leave. 'l'his would• have meant calling on him to prove his innocence. A person accused of crime is not required to prove h\s innocence. That . innocence must, under the law, be assumed by the court unless guilt could be. proved by the prose cut ion· beyond reasonable doubt. ~ would, therefore, ~d . . with respect, 13.aoree with Jvlr. Naali that in tnis case there was a glaring •" possibility of a person other than the first appellant·cammittii..rig the offences, without the knowledge and or assistance of the f irs_t appellant f · and thus , . mak.ing his complicity in the crimes not deinonstrated ·beyoh<i- r-easonable. 'doubt_. ,;J • 0 0 0 0 0 0 • 0 • /6

6 The story, however, is· different with the second a:i::pellant. He was certainly a culprito Ee, sid i,n., his defence that tvio persohs he did not know requested him to have their cheques paid through his ac'count at. NBC Karume :.",! < .- Brancho 'l'hey called themselv:s Eliya Bakari .Sanga and 1 1 hol::>ias He said they told him they did not have a bank account. He agreed::· arid Gave them particulars in respect of the name and rtumber of acc0-unt a.i--id the bariko They ·1ater brought ., :. to him the two forged N.AoT.C. cheques which he deposited in his .account and withdrew as alrady described. . He claimed he was wHhdrawing the money as i'. :: instructed by them. and that he was handing over.i the .money.. to .them. ··When•. all -the money was. withdrawn,. Sanga fled to Swaziland an~. 'I'hobias t<J. an unknown ·,·aestination.. He did not question them on the. cheques_., He did not even ask them what they had supplied to, or worked for,. M:. _A· T. C. Yet t_h-e two cheques were drawn h $the name of his firm. The second appellant was part, of their ' .. .. ·.·. manufacture. The story about the two persons was a sharn. If ;Lt. was anything ,;,)to ''go by the two cheques ought to have been drawn in their names as payees who wduld then have indorsed them for deposit in the account of the second appellant. Tl1.at defence was so lousy that anyone hearing it would have without ·any doubt held the second appellant of impropriety. In. saying so I arn mindfμl. that :a •,.•. \ ·. . : . . . • :. 1 person accused of crime is. not to be convicted on the we.akne.ss . of his defence, but'" on the strength. of an affirmative prosecution caseo In this· case, I EUTI· safified that· the complicity of the second appellant in the crimes .charged was proved beyond reasonable doubt, and, in consequent, I find his 0 ppeal .devoid of merit,, In the final analysis, therefore, I allow the appeal by the first Appellant, Amon Mwakalobo, quash his convic_tions, set aside his sentences and the order for comper,.sation made agc;tinst him thereunder, and hereby order his immediate release from prison, .unless he is otherwise lawfully held. By the same stroke of the pen I the appeal Y- th secor1d af)pellant, Emmanuel Eliya Mateso, stands dismissed in its' -fi.tirety. -----, ..... ,... ... . ., ··; > ;~~~ -, ... - ----, B. P. MO,SI{l AT MBEYA • ..,,,...,,.__-UL..,.---=> 6 July 20000 ·' J'or Appellants~ Hr,, Hbi.se for 1°11' .. Naclio . · 1 ~~r r:1e··:'.'U1c· 1 .ic ~ '.----" ~ ~- ~1.:,,1tQZi 1 t) > J ,, .,