Republic vs Leonard Paul (Criminal Session Case No. 21 of 1996) [1999] TZHC 437 (10 March 1999)

IN THE HIGH COURT OF TANZANIA AT MOSHI ORm~ J!JRISDICTION ,, . ( MOS HI REGISTRY) : .... - ' .. -CRIMINAL SESSION CASE NO. 2l OF··l996. BEFORE: E. N.· MUNUO, J: cu;_ I 0 THE REPUBLIC · · Versus \ dioNARD PAUL -~ • J. The accused is clw-ged with th.e off8nceof m.urdel" e/e 196 of the penal code. It is alleged that on the 12.8.93 at abou.t-21.Q; houre at MoNjamu. 'linage in Hai District within Kilimanjaro Region the murdered. Allen Simon Kileo. ~~ I .. Allen Simon Kileo died unnaturally on the ·12.8.93, Hrs body was. spotted by '.· four proaex,ution witnesee lying maked oude his. hou~ Per the. pos.tJn,ortem exF .... report Exhibit Pl the c·ause of death was head injury· and suffaetation. All,fln Simon Kileo there~ore did not die fran natural~~. He is no longer alive. There is no direct evidence an the killing of the late Allen Kilet>, . . • I The accused was suspected of the killing because there was a blood trail from...__ his house to the place tre body lay. ~e inveatigating officer was not. trace,d to give evidence as to why~~~ connected the accused with the killing of the ( The accused denied the charge. He said the deceased was his eo villager and that he had nothing against him. He said on the material day he had gone farming, returned late and only learnt of the deceased 1 s death after he was arrested. Theiwo assessors who assisted the court in this trial opined that there is just no evidence to connect the accused with the killing of the late Allen Kileo so the court ·ahould SA;quit him. That is so. The accused was impliccted in the killing because his house is some 50 paces from the deceased'.~~t from the r.iere·-suspicion there is no evidence to link the.deceased with the killing. The.eouiwc eannot on mere fa.USp1cion - ground a CODVictioi For those reasQrl.S the accused is not guilty of murdering the late Allen Simon Kileo. He. is a-ooordingly acquitted. It is so ordered. I ')

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2 At Moshi this 10.3.99 Republic: · Mrs. Sumari Senior state Attorn€y Aocu.sed: present. Defence Counsel: Mr. Itemba ,, ... ! Assesaors; : Both present. /., ·,,,.z ___ (f;;;:-) ,.,,...,.£_...,....., Ii ~ -~ '-....-- ~ E. No . MUNOO ........ """--, .•. ~ ..... -. JUDGE ···-. 10.3.99 :- .. · . .. . ' . . ., ... .•. - ~ . r· .... :·• ii' ..... ' \

IN TEE TIIGl~ COURT OF TAi'lZAiG.A - · AT rriBEYA ITIGI:: COURT CRIMIWAL APPEAL NO. 32 OF 1995 ,_1, - ·_ - (.Original Crininal Case No. 31 of 1993 of the District Court of Mbeya District at Nbeya) J API!Er Ali;SOK. 1'JZU1'D.A. CO CCC CC •• 0. 0 ' <, 0 ' 0 ' 0 0 0. C .,.APPELLANT VERSUS REFl;'"'"BLI CO o O o f.. O o • c, .c- G o o o 6 0 t) • o O o , (' 0, • t:. t . .., t n .i c- .-, C o ORES PQN'DE!rJT J U I)_G E l'l E l'J T Sha3ro, PBK (E.J.) On the 3rd. July 1995 I allowed the appeal by the app"llant, quashed the conviction and set aside the sente;1ce a:i.lc:. ordered that he be released fror:i Prison fort1.wi th unless he was otherwise held for other law:ful

• -~~. caUses" I had reserved my reasons 1.;hich I now give11 The appellant J,aphet Anson Nzunda was c).:-.a.rged together with two other persons with three counts namelyg Conspi:racy to.defraud c/s 306, Forgery. c/s 333p 335 and 337~ and Uttering false document c/s 342 of the Penal Code. He was convicted of the second and third counts and senten.ced .to a ·concurrent sentence of twelve months,. .Aggrieved by the both tl1e conviction and sentence 9 he has now aiJpealed., The facts can be narrated as follows - On 16/11/93 at. Nabatini areaJ PW4 the proprietor of lla,ffas ::Enterprises .. .-; ancl Ge;1eral Supplies clealing with dive:'""~ goocls inter aia pesticides and fertiliz3rs, was j_n 1is office toget-:i.eJ 1-rit::.1 '1is shop attendant P1T6. It is al:' egerl t-wo persons a man and 2.- wo171c:m went t() their office& These two persons were tlw 8. 1 )pel~_an-' a:::ic"':. -;;'::.n t:·_j_rd aqoused., They wanted to pu:-i.'C~::.ase pesticiclos and furti1izcrs fo:;:- 1[;Ticul tm::3,l Development PrograL:I.1e at 1:bozi 9 that is, 1 On hags ·urea 2,:_1c7- 200 litres Gramaxone valued a.t shso7 5 624;-000/=e FW4 allegedJ.y issued tt,e1:1 a,•Proforma Invoice ancl.. as:ed them to "bring a banker's cl~equeo O:a 19/3/9.3; as alleged by PvT4 ancl PW6j the appellant went a.lone to t'iei:r office an9- presented a cheque Hoo K 04811356 dated 16/11/93 (16P1) worth sA.7,624,000/= drawn l:r-J ADP..;Ji./Jl"lozi in favour of PW4' s co:11pany, .After receiving the cheque PW4 allegedly issued a deposit receipt to -clj_e appellant and asked him to come a;f·cer a week to collect the gooc1s ~ Meanwhile PW4 sent the cheque to 1'.:balizi NBC Branch in his accou.nt No., 22/3288 for clearance., On tl10 sane date, PW1 a coordinator of ADP...;J:iibozi happened to go to draw money at Lbalizi Brancb.. He was shown tJJ.e cheque No. K;(,4811356_valued shsL?,624,000/"""e PW1 was surprised to the signatories.as they were not of ADP.and infact they had not issued such a cJJ.eque for that _c;l,mount, · Pff1 investigated f'urther back

in his o:f:fice and ciscovered thq,t· equ.e No .. X_ 04811356 was in their cheque book which was in -μse., That cheque had been issued to rr .. :r:. Malik for shs"22no91 /= (Iilir:b.. P2) ·but was cancellede .. On 22/11 /93 the saia_ c:.ieque No, 04811356 (Ex:b. .. P1-,)°.,;as sent to PW5 · a Branch Ac_countant at J:)ozi 1'il3C Branch fc;:,-;r purposes of clearance. Upon checking 9 it was :.. cc1lisod t:.1at the signature of one of the e11c.orsed signatorj.e □ · differed wit1 t:;ie spec men in tl1ei;r B:r anch .Account No. 28/0075 for ADP Mbozio PW5 f1..::rt::.er cc;ater ci.leclmd and fo-.md out that .ADF -:bozi had been sold :!;_oque )00l::: lfo - K 4811 3n1 ·-- l· 0481 1 f. J, f::'om w'.:iicll c:._eqae leaf' Noc K "'4811356 :a..:.'. co:.-.1e; 2r:d. t).:,.3t. c:\0.qao. boo!: 11· .s ·-:rl'act sole".. to AC No., 28/0050 al'ld not AC io,, 28,/0075 Prl5 Jcl:v.;:- ro-1-:,lrned. t1e--f.or,i"ed .. cheque to Mbaliz.i. 1.mpaid. On 2':)/11 /93 PU4 w53nt to -l.ia:..izi, NBC B::-2 . .:1cl1 only to be told that tt.e cheque had pro bl er.is and t:.c.at H h~~- bee_1:- sent to Policeo PT7 D/Scste Ebmanuel was assigned. to investigate the l'!lattero ~~e interrogated PW4 wl:o na:rra.ted how he got tho cl:eque fom _two persons a man and a woman whose 11a;.1es he did not know,, Coincide;tally, on 30/11/93 PW7 was interrogatinG te appellant and his co-accusd (3rd accusccl) at . . . ..: . ~ . \ the Police Station in connection with forgery at Ujenzi. Mbeya! P1:T4 happened I' • _. also to go there and. he pointed/identified the ap:rel],ant and the 3rd. accused as the people who ha.c"'.. sent :him the cheque., PW7 hurriedly arrested t:.ie appellant and the third accused and booked them for this offence. Eeanwhile, he intrrogated PIG Ric:1ard Msongole the Accountant of' .ADP Mbozi wl:o conf?,-rmed that there hcl been no such pent of shs·.,7,624,000/= in favour . . : . . . . ... , .. ' . . .. ·' of' PW4's Company. Pff2 .:ford.an Fo Mwaipopo also refuted to have signec1.. the forged cheque K 04811356 va.lud shs,, 7, 624,000/= and ip.fact tb,ere had been n) P/V supporting sl1.0ll payr.iento ~ . . In his defence a.J.; t~~e trial couxt, the a:Jpellant. strongly nai:.1tah1ed that he did not lmow P:-i4 and ::ie had noth~ to d.o with tl::.e .alleged. forged cheque. He firmly s·boor.l 011 ::,is toes t:iat he was only identified b-J PW4 . . , at the Police Station w:ere lie :1ad be?n arrested. in respect of :: or 6 e-ry- at Ujenzi 11".beya., Ee e):;,Jarontly maintained the sane stand 1...n his ne,:10 .of appeal, and went fv.rt:.:.er t:.1at Pff4 was an accoi:1:r,,lice and as sue!: :iis _·vidence would not· be relied upo:1 to found a conviction agains.t l1iII: wi t:10ut see~;:ing for corroboration,, T1:.at fiT6 would not afford such corrobo+."ation -as l:e was a se:rvant of PW4 wl:o :cn.:.at l.1ave an interest of his own to i=rv:q, a11c".. i;.1.fact he never saw hira :ia11Ll over the cheque to PW4. The republic/res:ionclcnt who ws representec:. by }':r., Mbise S<:mior. State Attorney, for n1:Jvio1.ts reasons would not support the conviction. . ~ . . It is absurd tit t}: yr?ecution evidence wl1tcp. ~~11 short of a.ny naterial substancej was w:ro-islY :r_elied upon by the lea:rned trial Resident -I-Ia.~istrate

• .·. to convict the appella:cYb.. As ri1shtly prointed out by Mr., I\fuise f0r t:ie -: respondent/republic~ t'.:e only evidence that wa.s a.cted upon b-J t;.:e t:rial i I

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• 3 - court to found a conviction against -c!LO appellant was that of PW4 and PW6., There is no doubt that Pw4 was t::e one who was found with :forged cheque as he is t!1e very one w10 ha.cl aot:ially presented it to tb.e bank4' I':e was thereforey in all :fours, su 1 Jrosed. to be suspect nunber one, and as such he squarely qualified as aa acoooplice witness. Ris evidence though admissible in :aw (see Sec. i42 o:'.: Evidence Act 161·, Juld not just easily be relied upon by tl:e trial court without caution; and in practice an independent evidence s!10-,1.lC. be available to corroborate it. It would appear from the record of the trial court, such corroborative evidence was purportedly sought froD PW6o But PW6 was a servant of PW4 and as suchi he had an interest of l~.is OW..'l to r.z.,,. His evidence also could not be relied upon wi thou:tl corrol)oration. If PW6 's evidence required corroborator then it cbuld not corroborate that of PW4. i- ,,. . l.x:;tw-oon Moreover, there seemed to be.a·contradict;.;__on . PW4 and PW6 regarding T the tirae the appellant and the woma.."l 3rd accused went to the shop of PW4 on 16/11/930 PW4 was recorded saying that it was around 9.0G am, but PW6 was recorded saying that the two went there in the af'ternoone .Again it is quite clear from the record that the appellant was purpotedly identified at the Police Station by PW4. Such identification was not at all proper in law and it was danger'.)U.S to act upon it., I w011d.()T1 ' - ... -' whether he would have been a'ble to i-d.c:.1"i:iify the appellant if he had not f/o·UlJd. him at tl:e Polic8 Station. :.:.1e hounds of justice were supposed .. . to have conducted an identificatio1· po.:racle to that effect to see whether PW4 and PW6 could :1ave icle;1tifiecl t::.o cilleged suspects who had presented the cheque to ViJ4., If I may go fu:rtrnrs t:,o a.llet;ecl c1:,eque was no do~bt forged from ADP-Mbozi by U11...u;:nown culprits., Ea·cu.rnlly, since is was found in the hands of PW4s he was the only one w:':;o was supposed to give a reasoned explanation of how l:..e had aoquircc:. t:~a:ii Iorged cheque in the circumstances, short of' wl1icl1 he is presur:uned to :.1ave forged the sarae. .As it was held in the case of Zakayo s/o Kiwere Vs Ae.P. ( i 981 ) TLR 182 - Kisa.nga, J (as he then was), once it is establishec1.. t:la·b a forged document was actually in possession of a person found wit:::. itJ in such a person is taken to llave forgec. it unless he gives an c:q::la,1ation to the contrar;:7 ~ The evidence at the trial court overwl1elmingly seemed to implicate PW4 himself rather than the appellant., Iar;1 strongly moved to agree with the appellant as he was so joined !::ands b-.f the respondent/republic, that the learned trial Resident Mauistrate 2:ravely misdirected himself .•· on the evirl.ence before him 1 and t].1us failed to appreciate the fact that -blie prosecution sic:te had failed to prave the charges against the appellant beyond a1zy- shadow of doubt. =re tlius e:;:roneously ended up convicting the appellant based on a naked evidence. Cte<io4•

-4 It was for t:,:.e foregoing reo.,sons thc:;,t I allowed the apJ_Jecl, quashed the convictHm 1 · E;Irl, _set aside tl1e sentence, end ordered that tl10 appellant be released fr ·m P:dson forthwith, unless he was l1eld for . . . other lawfull,caues • . :· . (E, J.) i./7/1995 Delivered in Chc::.D"'.Jers t:Uis 17th duy of July 1995 in the p:.1.esence of.. Mr• Mlokozi for tl1e :lepublic/:aes:pon::l.ent • -J