Joseph Sungi vs Republic (Criminal Appeal No. 60 of 1999) [2000] TZHC 248 (29 May 2000)

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• -. •. -.: CRflm!L A1'2'LuITO. 60 OF 1999 (O±i-inating from DisP No rict Court of A±üha Co c S • •• 255/1998) • JOSBPH SUNGI- jo06000000o00eo0oe00oeoo S Versus T1ERBPUBLICoao0000eooe 0 00000eo;ooeoRESPONIZNT JUDGMBNTg E. M.K. UTGU 9 J0 The Lppo1at is, a former of employee of the C0i0C0 Land Rover (T) LtL4 He was emplpyç4 as an cccountant ni Up to the tic of his dismi- sal from employment, on 6/3/i997, hôastationed at the Lrusha branch of the said C0M.Ce Land Rover (T) Ltd in tlae same capacity. On 1st April, 1998 the Appe1iart together with Dominic Chelosi and Abu Haule, his —omp1oyces oro chargcd jointly with a rnimbe of offencos before the Lrusha - Distrit Court 0 The Appellant alone was faoing,.xdno counts of forgory c/ss 333, 335( 1 ) and 337 of tho Ponal Code and ndhe coun -bs o?si&ing by clerk c/s 271 of the Penal Code0 It was being allo'cd in the drgdty chircs that on 111611996, 113196, 3 0/3/96 9 1319119 , 56 2 . 261111996, 111-12/1996, 6/1/1997 and 17/1/1997, he ad with intent to defraud, fored the signature of one J'cob T 0 Mira1i],obo, a casI'-ier t the then NJ.00 Uhuru Road. Branch nd to oid banks rubber staci, on various bank pty - in -. slips purporting to show that he had, banked his cn4oyers 'ioney SilOWfl on the said payin—slips, while be 'wd not e The allegations in the tLoft counts J. wore that having forged the py-ii-sl:Lps and iling to bank 'thu mno- ho :d stolen the same 0 The Appellant did deny all thochrgos 0 liter a full trial, iews found guilty as charged an each and every count and convicted accordingly. In respedtft1aforgcry ohaios he was sentenced: to two year-s sail on each c6unt and in respect of the theft charges ho was sentenced to one yorimrisonment on each count0 All the son-toncos' we ord.crecItoi'unconcurrently, Doing agrrieved by the convictions- and sentences, he"'has lodged this appea1 9 throngh Mr0 Lundu9 learned advocate 0 The Appellant has lodg only two gTounds of appcl, nauoly - (a) that the trial court erred in law, and fact in conc -ting him as charged when the prosecution had miserably jailed to prove the charges, and. - - - - -.

• 'S . ('o) that the tr1a.Icourt-orred in'hdld.ing that ho was tho only person who was remitting rno - y to the hank .,, With those 'ounds of appeal Jn .i4nd I did carefully go through the ontiro evidence adducod at his trial and the juc1iriont of the trial court. kt the end of this exorcise I was satisfied that this aDpoal 1 es lot of merits 4 I an saying so not only because -t a t: r- 1 oout never wrote a judgment in the real sends -.ixit- also bc-causo thorb inci.00d no Gpgont ovidcnco to roe 'th a1L bhcrgds, lthou,h -the ' prosecution managed to prove that thc bank ay-in---slips. were a forgery, it i)Sytaally foiloc" to prove +hat the sane were forged by the AppolLnt• .1 'will -ol&orata. In all, six witnosso' testified 'on bohol& of the pro cuion PtT I Rurosh rc±han iu.cntifiod liiiiéclf as the Aru.sfr- Brinch I - Ho told the trial court that he MsLtoorsoer of the company' in Jki'uzha The ovidonco of B .1 is further tó ..ho'offoct that it was the rOsponsi- Lili-t of -the offioes cshier to pre bank reconcilibions -'l Jaroaro bank pay-iisli and xemit thon together with tc LiO noy to e cli fdZ hrilung• After anung had been done ti. o copios of the pay-in-slips wcio being htded ov -to the said cas' ici' to eo banking susarriy, PW 1 fui'thôr testified. It was io o -videuioo of PT 1 that he had never been "informed or consulted on any 1oblons concorning banking'. P I was p therefore never shown cn' of tho nine Lank pay-in-slips which woro the basis of the forgery chargos. Still testifying on ox iiiiatioii in 'bhi& P 1 ; told the trial court that when a stock taking was done oy An aUdi - tQr and stock verifier froi his head office in Docet'bor, 1996 thQy, -discovered a shortage of s*ro parts. While under cross-xination from the Appeliant lIT 1 testified that it was the cashier who was reoo-i.ing the money and propari pay in slips. This cashier was no other hut Pi1 4 Mariam Juna lIoro' sigei- ficantly, for ; this appeal, is t1e evid•ence of . lIrT 1 2 to the effect that ap'rt f.om tho Appolint, one Jonas Hmis (T 5) had the responsi ility Of bardkipg. the co p-nj' S ronoy, PI 2 Nod' D 7443 D/Sgt.Luis.onl 'in'et'igetod" if nopnly oolleotod various documents and dispatching thottothe,InestigetidnBurdau for handwriting idonUilication purposes. This witness tnL1oro'd number of document as othbits in' evidence, Among those docunonts wore the nine bank pay-in-slips (Exh. P 1 - P 9) forgery chgs. The most significant aspect of Iti 2' s ovidcnce is when he made this adi- sion while under cross-examination from- Appollants. / 3

• ' I.- - 3 ItThcre is nowhere to sho' that you were handed the iay—in—s lipst' The N.B.C. TY-auru Branch cashier one. Jacob Tv . ,. Mwakaloboj totif1od as PU 3. He testffiod that he 1ow ike Appdflant. as he was the person who was ttromitting money from C0M.C, oompn! to him at hc said bank. Uhoi shown Exl. P 1 to P 10 9 he instantly told the trial court that they wore all forgeries. PW 3 so arrosted because he found the signitures purporting to be his to be not his and the purported bankt rubber stamps on then where not genüi na. On all this he was born out by 1T 7 No. C 6547 D/Sgt. Gumbo, whandiviting effect. . 'In his reort, Ethibit P 33, on the Specimen handwritinrs, signitures of Dornic 0 C1io1esi'. Abii James and J.J. Mwakalobo and the specimen of the .IT.B 0 C. Uhuru Branch, Arusha rubber stamp 9 PY.7 opined that Exhibits P1 - PIP did not bear the genuine signitures of 11-T 3 but the signituros thereon tore forgerese He was equ.11y emphatic that the fubier stamps appearing on ;thibit P 1 - P 10 were fake ones In this report there is not even an Iota of evidence:.going to implictè 'o incrithinate the aJ)ollant in anyway, Jowever, contrar y to ti e unequivocal evidence of pir 1 1 PU 3 had the audacity to tell the coir-t that had ne- received any monet from the Arus 1 ia C4000 Land Rove (T) Ltd. bra.n. other than the Appellant. ..... -. '• PW 4 testified that she was the one who prepared Exhibit P 1 . 10 and handed the same to the Appellant. ho further allogod that the Appellant was "counter—signing" when receiving the moey from her for banking. Unfortunately, however 9 the record of the trial oourt does not Show that she did identify the signiture of the Appollan -t on any df . the pay in slips forming thibi.ts P1 - PlO. Furthernoro her ovidonco is startly silent on whether or not she actually did hand ovo any money to the Appellant for banking which is the subject of the theft charge. This piece of evidence was crucial for the prosecution in view of the undisputed fact that she was the one who receiving and of sales and services, and preparing the bank pa.inslips, hdforb being banked 0 Responding, to the Appellant's question, W I P wiGnOSS -. told the irial court s also contradicting Ptt 1, that he (Apcliant) was the only person "who was banking the money," If RI 5 was called to strngthen the prosecution case, then it was an abortive mission I am saying so dliboratoly. The ciwa of his testimony was that ho "was not one 'of those taldng company nonoy to the bank." He was explicit that it was the 1 tresponsibilit' of 000/4

the Appliat In so asserting ho s apiaronly iDolying i'T -1 a L lowovor, whlo under cross-examination from the Appcllant ho- aL4ttod. • to havo,.takon t1d company's money for banking. In so adiritting ho not only boiled lmsoif. 1Ut aio PIT 3 and PIT 4 ana bore out PIT I on this aspect of the latter's ovidonce. . . . e . - .• . Fl 6 Victor Mwalcsihdil Is another company accothtant but La-sod. in Dar Os Salaami His evidence was 'to •ho efect. thrjt oi 6/3/197 he was at 'their company's Aruha Offices, i'thorc.:ho witnessed h-4p1lan't hand over his duties to thd 'Finance All in all, after oiuting the entirevidonco I am connood that the posocution thnagod t prdvb that Ehibit P1 P10 1TbiO

• I fororics Iibi, itfailed o&vc rho perpetrated thoso forgeries. T_e.o is no direct ovidonod going to link thc Appellant -witIL the forgeiàs The circtstcia1 cvidico iablo is. vorc sha1r. It doos lOad to an iiD'itibie cOtOliisiOn o inference that t.o. Aeilnt ws the orotrator of t1c s:re 4 he odonce of 11- T 4 aM U 5 is - OryIi'eliablO bodaso'thor are prie suspect and as correctly submitted by Mr. Lundu, they havOtheir own.Jintercsts to corio This is exlainod by their 1lain iic il-i thei' ovidlDoO :as alrqac13r shown. They wore anxious to save their nooks o'ron to th::Xteñt: of committing perjury in. order t implicate the Appellant. T11ord is indood no orodible ovidece on recora t'in&ietb thaLthe Appol1.ntor hedlod LiLiP 1 - P iO. If the Appollant :ilover forged, then it cannot be credibly hold. that he stdlo the money which was th uiDjoct -of 'tbe theft charges. If thoo was aiy money stolen -Ghoif t sood cbuld have been by PIT as was well suLfittod by Mrs. fio Ieend Principal Stato Attoriioy who sujortod this appeal, or by RT 4J:6.: both in collaboration with PIT 3. This can be oxlinod andjor sipportod by thoL oonoortod. efforts to shift the blame to the Appollanit as alroad.y shown. The fact that no audited report was tendered i'i evidence apart from a lottor written on the alleged shortages of spare parts and L'J.ssing money to the Regional crimes officer (Exhibit P 34) made it cvon more difficult from the Prosotion to prove to theft charges. Thd - bits P1 - PlO could have been forged but that is no proof that the monoy was not othorwiso banked. Beyond more suoises there is no cogent evidence to prove the nine thoft charges. I it is then no wonder thai .15

== 5 == the )espondent Republic did not wish to support the conviction of the Appellant on any count 0 All told I hold that the convictions of the Appellant cannot be sustained This apcal is therefore allowed in its ontiroty. The convictions of the Appoliant and the sentences passed on eai count ai'o hereby quashod and sot aside 0 The Appellant should be ho is othor'rise ifully24o1d0 <10 LaKo RUTAKIG•TA -I JuDGE I j29/5/2000 Courtz Judentc d in court in the presence of Mr4 Lundu, Advocatea1sence of Mrs 0 Lyimo, Principal State Atto'noy, this 29th day of Nay, 2000 at Aruzha. 0 E.M.K. RUTJXNGWA J- tn:x 29/5/2000