19920416 TZHC Tabora3

CDi11tn,ss I ON

IN THE HIGH COURT OF TANZANIA AT TABOP..4.

APPELLATE JURISDICTION (HC) CRIMINAL APPEil NO. 138 OP 1991 ORIGINh.L CRIMINAL CASE NO. 316 OF 1989 OF THE DISTRICT COURT OF TABORA DISTRICT ~T TABORA Before; Mwanga1 s. A. Esq.~ DISTRICT W.G ISTBATE THOMAS .MICB/l.EL KALIMA •. ·o • • ••• • •• ., • ., •••• • • • • • . • • •• • • • •., • . • • APPELT.J.;NT

VERSUS TEE REPUBLIC • • .,. • ••••• • ~. • •• .,. •• • ••••• ., ••·• • •·•. • •.••••••• •• RESPONDENT CHARGE:· Stealing by public servants c/s 270 and 265 of the Penal Code, Cap. 16

JUDGMENT K.ATITI 2 J. Thomas Michael Kalima, hence and hereafter, to be called the appellant, was convicted by Tabora District Court_, of the offence of stealing by public Servant c/s 265 and 270 of the Penal code Cap. 16 of the Laws. The said appellant ' was made to earn, or, harvest from such the:f't, five years imprisonment, under tl-:e Minimum Sentences "'ct 1~72, _the property belonging to the "speciped authority" SIOO - Small ;tndustries Development Organisation, and the amount i.iwolvea, exceeding five thousand shillings• On heels of such punisbment, was a statutory compensation ' . ' order, that the said ~ppellant sh.all refund the victim authority - SI]X) Shs. 221,025/15. The appellant aggrieved, is appealing against conviction, through t:ic professional Services of Tabora basec: advocate,, Mr, Kwikim~ The learned Counsel Mr. ICwikima, had tJ:i..ree frontal va.ntage a.reas, from which. to attack the trial Court and the evidence, and such areas; are as follows,- ( 1) Tha.t 1 the Court ought to have rejected the audit report, by P,W.1 lliban Llip Who did not produce o:i;odon:t;iri.).s as r.equ.ired, by th,e National Board o:f J..ccov.ntants and Auditor's .ict, The ~ t il'flol.F was ba.d because it wo.s done without the presence of the appellant. (2) That, there was no evidence to show that any money, had been taken out of SIOO coffers by the a.ccusea, a.nd IOU Chits

pointed to another taker~ (3) That the trial Magistrate, misdirected himself on the appraisal of evidence, and on the burden of proof, by failing to appreciate the significance of the IOUs, a.11d the nature of the evidence of the appellants colleagues, who had interests to serve • . . 1 th n,1· t~;.a ...:,...,A.U1r.i.Go-. .,...,..,..., ' ,_ ()GLlJ.)lcint .1bovo ucll set r..n,l posed, tl:o iclontifica.tion of uniisputcd c.1x.l. oomon c,-raund f ~ frorJ ~a. ~Ql..:i,tiva;!y ~tl:lo" &f t!:_g o'Y'i.donoo, 'Will i11 my view, oloa.r t}.:c wo:y, a.1-tl plc.co, t!.:.o sdd [;"rounds of cor.1plcint in tl:oir propor plc.co in t:.:..o rccorc1., for ocso of solution, in t::c intorcsts of justice. In t2c...t sow;.:t cliroction, :i. t is in ny view a. find.in(; of f¼ct, tl:o,t clofios c'..:.o,llcnc.'O, tl:o;t t!:le ·nppolla.nt 1-10..s a.t ~:c nc,torioJ. tine o. c~:,s· .. :i.or, as is wall v:i.n::lica.tod by lottor of sue:'..:. c.ppointoont, Raf., !Io. SV/K1J.:J.r1;.1./;ra/271/17 of 1/11/1986 Erl:ibi t ''i'.5 11 , so o.ppointin:; 2:in. To bo so :::,ppointod, for sue':: c, dm:1a11din.:; job, can only s.'.::.01v, tl:nt, 11ot 011J.y ~~a ~ppollunt ::c...cl ~.:a nocossti.l\Y ].(11ow :.:1-ow, bv.t toa, t~:~~t 1-:i.o wo.s fertile crotu'Xl, for t::o oonfidonco t:20..t wc.s so 'toin,3 hwostoc.l in ~-;.io, by t::o o,ppointin:; nut:.:.o:dty. .:..s is oxpocto<l. of ca.s::ior, ;:;is duties inolu..clocl

colloo-tion of rovonuo, issu:i.n::; rogoipts for t'.:.o sa.r.10, rooordi:nc in c.:..s:'. book ~'.1.1)i t ''P,0 11 , bo.1·1}d.n::; ~:.c so..TJc, if for ba.nldn3, a,n::l cottin.:; pcy-in-slips in ros-_;?oct of t}.:o sCLo enc"'.. offoctin:-; p4.,vr.1onts ::lS c.ut:-:.orisod. 'l':-:.a nppollc.nt, it l:c.s to jo corocndod, directly workacL tuil.cr t'..~o SIDO Project I-1."'..l'lo..::;or P. w.4 M0:L.:.M'ID s/o l\W...1ill1&, as unclis:put::i,bly o.nl dof'yin.:; oontro..varsy, !'.;:r.J M.'..K,.UUOUS s/o !,Il'iJ}DTE NG01IT, wc.s tl:..a ovol'-1111 SIDO Roc;i.on.-iJ. N.-.w~:;or. Tl:;o two Ma.nncars, it is oour.:on ::;t"OU1'Jd, n.por;--.toC:. for bn.nld:n.:· purposes, diffor~mt bc.11k aQoounts, ni'ld. cor.10on cround, a.nd rolova,nt hara, is ~:~ l'rojoct Ma.nc3cre ?rojact Account, ii.:icl: oonoodocl.ly n.nd rclovnntly toU.C::os tho ~pclln.nt 1 Q.nd not t:.lo Roc..,i.011.;,l, liL.1.lln.-.::;ors o.oQount~ In f<.10t, tl10 Projact M;::,,,11.-:.,::;or n.ccount 11ur.10or, uaa conspicuot1Sly c':crietaniaod - SIDO 1.z:rnrro ?ROJIUCT, l'.0. BOX 481 T..'.J30~U., a.nd it would ohv.i.ously soom1 t::.D..t c.11 tJ:o roldod roooipts, - 0 -- ,- cell t~·:.on puy.i:r.-slips, stc:tononts, ocs::. sclo raooipts, nne. ot:.:ar c'loour:ionts, woro so on:lorsad, a,11cl r,1ost, if not cJ.l, sio~.ocl by t::.o ~tipall.:-.11t• 1J.l t~:c sc."10 it ODDO to pa.es, o,nd. on t::.is ~ore is no o;::.cllc:;o too, tb.ut

on t:::.o 16/2/1989, tl,.o qppoll::i.nts accounts. suff:irod c surprise e~:.oclc, in t::c praso:r...co of P.i;. 4 M01~J1I![D 1-rJCT.,•Mai, ::mcl. t:::o clisQovory of n.n o.:_:ipQ.ront O::.:ort2.Do, of Sl:s.36,065/55, orgosoc1. t:::c cppollr.nt to suspicio11, ::-.rtl Lonca tl~c official lotto:r Ei!:ibit r.6 to.:.:ir.1, eoold.n.::; :::.is o:x:pln.11,:.tion a.bout ~-.: s2.1:10, 1-Lic!: letter nttr::,,ctocl. l::is own (n.ppclln,nt) dafancc, t:.:c::t no su..O:.:: s::ort1130 wcs real, vi.<la n.:ibi t ''P• 711 • J.ri.r. finclly o.·:-.,no, ~:o on.slo,u;;!1.t fron ?.ii5 lJJ: E::JlRITC NGOT:I, t:~o Zon".1 IntorncJ. Attcli'tor, vl.:o v.;uc!i tccl t~:o o,ppoll:::.nts oporntionst for period rr.:.r(;i.n~ fro□ July, 198G up to 30/6/1989• encl cn.r.10 to t:.,o co::clusion, t::.,, t t~10 nppoll1:mt ~:nc as par ~cli.. t rcpon Ex!:. :;;. 24 et~1v: S:.:ortu..;o of ~u. 221,025/15, D.11U. :ionca t!:,.o g::n.r30. 'l!:o nppollc,lrt w~:ilo conorall;y clon;yirc atoalins, ilncl w..:ilc not sr,ocificc.12~- do;,-zy-j.;,-c t:.:c qu._•,..ntun, r:i,.--:;i.11tn..i.11ocl i;;~::-,t t::o same, nonoys, were still in t:.:o ~1.::-,11ds 0f SIDO offioia.lla on ~o IOUS o1:,,i ts, n.:.1c. t:.::::t S:2s• 200 1 000/•• llo,vi.n.:; boon tn.ko11 by f:.20 SIDO Roc;ioi:'lcl. Mmn.:;or• In c, (;oocl o.nalyticn,l Juda;iont, t~10 t-ricl Court Ro joctcd t.!::c da:fonco, (Hc).cr, 1.PP.138/91,, - 3 ... found Shs. 221,025/= indeed

stolen, and hence ihe conviction, that is being challenged. We a.re now, entering a slipperly 'torrito:r:y,strewn with evidential mines,,~ oonf'li,cts, chaJ.langes, denials and cc--·ri;e:r denials, counter accusations, a.nd outright turnabouts. The learned defence Counsel Mr. Kwilcima., first in saying the spade should not be called one, submitted, that the audit~d report by P. w.5, should have been throw into the legal dust bin because, the sa.id P.W~ 5 did not produce his credentials, as required by the National Boa.rd of Accounts and Auditors Act. This indeed was, and is an incredible mesmerising submission~ mesmerising because of its strange ambiguity, whether the evidence, should be inadmissible because thereof', or whether the figures become automatically false, because of such reason, or whether the credentials must be carried, load and. ba.ggage like, or whether the Honourable Gentlemen, of the 1972 generatS.on~, :Ln Ka;rµajee Hall/Parliament, ever in their legislaUve capacity and wisdom9 s2,..i.cl such a thing. With a lot of respect, to the senior counsel, after a studi.ous and even microscopic examination of the AuditoT.s a.nd~ocountants (Registration) Act 1972, and as, it has been Bl:lended, no where have I discovered an.y provisions, artj,oul.<.,,ting that for the purposes of forensic use, an accurate report, is ipso!'a.c1:-o inadmissible, i:f' the auditor

il:lVolved has not podu.ced his cridentWs, as such auditor/accountant, and ·no sucll provisfo:.1 ,:,:~::.:::ts. Any such demand, which wa.a not intended a.J.zy-way, and does not exist, would make everyday li:f'e difficu1.t~ ""nd uninten.-::·~_onally ~Atapul t :iuch people to unimaginable eminence;. if two plus two needed a. registered a.uditor/Accounta.,.-.;:t. to make four• But i f I may go 1.mc:{, of cot:rne:; :10-t; to vindicate Mr, Kwikima5 c7en if such credentials were nec"rscary1 the witness does not have to carry them framed bag and baggage. But eve1'tfl,. it were. ot~•i::-rwise, in this case, P. w. 5, told the court, that, he had a.dvancecl_l~~~ Accotmtanc;y a.nd refg.stred with NE.AA Reg. No. 1149/1984, and this goes ~:~::, ..:.:.lc'.JU(;Gd. at aJ.1. Collateral to the above, was a complaint· not a..rUculated oea.ningfuJ.lyy nor amplified by Mre Kw:Udma., tha~1;, the audit was ba.d because; it wa;s done without the prese11ce of tl:e appellant. If I do harp Mr. Kwild.ma. right, he' is not s2.ying and I should not underst2J1d hit1 to be saying, that the report was bad 1'ocn..m:,~:, :;;:,.c appellant was absont, as if the appellants presence, is constitutive of tao report figures, or part a.nd parcel of it. I would with trepidation shudder to tlJ.nk, in that line1 While the appellant presence would be appla.usibles though suzpect, it is not in law necessary, and after

a.11· i't ;is all figures and documents which the appellant had· opportunity to inspect, examine, and even cross axaoine the:reor4 From the above, it is clear tha.t the auditors report was and is admissible, and . rightly admitted. If follows therefore,. that, Mre Kwikima.' s ground collapses meritles~ , unf ortuna.tcly., t..fter serious stuczy, scrutiny and miscrossopic ecomilmtion of ~l the pertient, 4 and relevant documents, I am like the trial Court, satisfied that the reported shortage of Shs. 221,025/=, was real, and I can see 110 arithraetical/ ma.t:hmatical aberrations, in the circ::;_:stances,. This does invite consicleration of ground No. (2), "fillat I consider t be cousin o.nd sister of ground of appeal No. 3, and therefore to be del t with together, th.at tl1e evidence does not show, that the appellant ptole, and that the IOU Chits show sor.1ebod;y else did.. I derive a lot of cod'ort from this ground of appeal and the n.i-nplication on tl:e srune, as it :ir11plies the shortage amount is correct, 2.s tho trial Court, a.nu now this court ccl.c:til.r.-,,tac!.ly- . found as a fact, except that the tokers of tho same through the IOUs, were diff"erent and not the appellan:t, not for-getting Shs. 200,000/=~ that the appellant alleged, was with the Regional Manager P.W.3 ¥.1.t.K.iRIOUS NTEnErE NGOWI. With due respect, beautifully attractive, as it is; the above defence in

its own ailement, would pervasively destroy the prosocution' s case, .:md creanse the appellant, and regroup him among the law abiding citizenso But I propose to consider the same, with other evidence, and see wha,c em_erges therefrom, as to who took the charged money. How the "IOU" process., could prejudice the appellants ca.sh bc:-la.11.ce, to the tune of the charged shortage• ~aises first here, for conside- ration. Without tresspassing into the territory of the law.: of :Jillo . .c~: D.tc."'ltH;o, and pn a shallow ground, it sevm.J to □ e tlut 1 an 111.2[11 ; i's a written acknowledgement of debt,. not amounting to n. promisory note, by. the taker, it is evidence of tl:e amount stn.teci., and the debtor hc".s -to leave it with the creditor, as P.W.3 cid testify, as how else and 1r.i:.t!iou:t whic~_,rould the creditor show how the debtor is :i.ndebtcc~ -;;o l:.:i.m, how would the ·aebt ·o~ r·eflected in the books, of accounts? Having on my part, given commensurate a.ncl dutif..U. cligging thought, i;.:,tc. tLo IOU system, as disclosed by the evidence, I am far from being convfoed, that the same could affect his cash account bala.noes. If the. IOU Vouchers, ret1ai::-iing in ., the hands of the appellant, o;fter borowing as it should. be the case, representine the cash ,mken vide ther:1 for c:1ucliting purposes, those vouchers woulc.l roprosent the money taken, and not money

short,or money unaccounted for. In this case, there a.re no such 11 IOU 11 vaucLor•s repres'enting the amount found short, nor pa.rt thereof, nor docs the appellant tell withch part of Shs. ·221,025/=, is covereC:. by tho IOU chits, he is capitalising on, a.nu in any case, the IOU chits should be there to. show the amotuTb acknowledged as taken, - they a.re not there. It is unexplainable that the ap,-.,ellant • should hn.ve both no "IOU 1' chits 2..ccounting formane.y tc.k:en p '..:jf:...3l. r,~ 11 , Yo vido thei:1, nt)r-·t.':o oqu_"ivc.lont noney ; Further, . there were two accounts - -!;he project Account, and the Regioncl Jlf.ianager li.ccount,. According to · P.W. 3, tho rorr, system used to be operative on the Regiofil>. l MD..aager 1 s ii.ccount, and not 011 the - 5 - Project M.:.·,.n2..ger Account, which latter ,!,.ccount the appellri.nt operatea.. These evidenticl 2.spects of evid:3nce, are not challenged at all. It follows therefore, that if the 2.ppellant, opcro..ted the Project Nw.nager 1 s .A.ccount/Vote, as documentn.ry , exhibits audited demonstrate, .- .. u, . then he had nothing to do, with, the "IOU" system~ Further thoL<.gh no· longer currently in.; us, and had nothing to do with the Project Manager's Account, the same said IOU practice, could not b2.ve affected the appellants books of Accounts, as to reflect the shortage charged, first becav~e, as above said,

it was not part the Project Manager's business, and could not be in his boolcs, and secondly even if they were pa.rt of the said busines~, the vouchers for maney taken, or such "IOU" acknowledgeL1ents, would have been there, reflecting the amount for purposes of accounts/auditing - but they were not there, It follows rightly in my view, that, the 11 IOU" theory, was just an after thought, and rightly rejected by the trial Magistrate, a.nd I too, do reject the same~ The appellant and his Counsel ,seera to have boil ta lot of hopes, and expectations on th~- defensive "IOU11 theory, Jllld on Sbs. 200,000/=, the Regional Manager P.W.3 had entrusted to and taken ·from him. Let us loolc at the Sbs. 200,000/= a13pect. P.W. 3 did tell the Court, -that Shs. 200,000/= was not his office's money, it was seminar money brought there by e. Mr. KUMINGE for seminars, a.nd that it was so used, as per vouchers. I have with attendant enxiety considered, the evidence on the Shs. 200,000/= aspect, a..11d I am satisfied, as the trin.l Court was, that this was money for seminars as per vouchers, so used o.nd most appropriately. We are now witnessing, the total collapse of the defence lines, retreat is :iJnpossible, and the surrender ignora:i:,nous - with tl1e appellant "IOU" theory not deciphera.ble into cash araount terns - how ouch'? - n.nd. not applicable anyway, nothing to do with the imditecl

a.ccount, nor a.uditec., nor shown to auditors, the· Shs. 200,000/= again having nothing. to do with the appellants audi tecl· accounts, but properly a ."l.d . officiall3r spent, the charged unaccounted for Sbs• 221,025/15, stands protruding prominently in the appellants books, as a lonely oe..sai in the savanna grasslands for anyboey_ with seeing eyes to see, even from a far. I am left to concur, with the trial Magistrate, i~ his conclusion that the prosecution did prove its case beyond reasonable· doubt, that the accusea./appelle.nt did steal the chc':.I'ged amount,· as a servant of srro. I there - fore considering tMt the proviaions by section (5) of the Penal Code, defining "person employed in public servicen, would nbt. in my view epply to SilX) - servant, change the conviction and have- it fall under sections 265 n.nd 271 of the-Penal Code• It is so done. As the five years inpriso:nraent, is imposed under the authority of the Min:iJnur.1 Sentences Act 1971 Sentence for the offence· and runount involved, it is hereby up held, and the appe~ dismisGed in its entirety. Delivered this E.W. Ki.TITI I JU!X}E.