Kabaka

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB- REGISTRY

AT TABORA DC CRIMINAL APPEAL NO. 50 OF 2023 (Appeal from the decision of the Resident Court of Tabora at Tabora in Economic Case No. 20 of2022) ALLY MAULID KABAKA.................... ........ APPELLANT

VERSUS REPUBLIC..... .............................. . RESPONDENT

JUDGEMENT Last Order date: 04/03/2024 Judgement date: 10/06/2024 MANGO, J. The Appellant was arraigned before the District Court of Tabora via Economic Case No. 20 of 2022 facing two counts to wit, Abuse of Position contrary to section 3.1 of the Prevention and Combating of Corruption Bureau and section and Use of Documents to Mislead Principal contrary to section 22 of the Prevention and Combating of Corruption Act, [Cap. 329 R.E 2019] read together with paragraph 21 of the first schedule to and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act,[ Cap. 200 R.E 2019]. Brief facts of the case indicates that Mirambo Secondary School was renovating some of its buildings. It was alleged that, the Appellant who was 1 a procurement officer of Mirambo Secondary school violated procurement procedures and obtained undue advantage of Tshs. 8,950,000/-. It was alleged further that, in facilitating the offence he used invoice No. 277 dated 24th December 2020 and delivery note No. 242 dated 24lh December 2020 which contained false material particulars purporting to show that he purchased building materials worth Tshs. 8,950,000/- the fact he knew to be false. After full trial the Appellant was convicted and sentenced accordingly. Aggrieved by both Conviction and sentence, the Appellant preferred the current appeal on the following grounds: - 1. That the trial

Magistrate erred in law and in fact in convicting the Appellant basing on uncorroborated evidence 2. That the trial Magistrate erred in law and fact for convicting and sentencing the Appellant while the case against him was hot proved beyond reasonable doubts 3. That the trial Magistrate erred in law and fact by convicting and sentencing the Appellant while available evidence did not support the same 4. That the trial Magistrate erred to convict the Appellant basing on the admitted exhibits while the said exhibits were admitted against the law On 4th March 2024 when the appeal was called on for hearing, the Appellant was represented by Flavia Francis learned Advocate while the Republic was represented by Idda Rugakingira, learned State Attorney. In her submission the Appellant's counsel consolidated the first, second and third grounds of appeal into one ground of appeal which readsy the 2 Prosecution failed to prove the case against the Appellant beyond reasonable doubts. She commenced her submission with the 4th ground of appeal which now appears as the second ground of appeal. She highlighted that, in this ground of appeal the main concern is the manner the exhibits were admitted by the Court. She argued that the exhibits were not admitted in compliance with the law. She explained that, it is a legal requirement that all documentary evidence need to be read aloud in Court

after they are admitted in evidence. The main reason is to make sure the accused understand the contents of such documents so as to prepare for his defence. She pointed out that, in this matter, some crucial documents were tendered and admitted as exhibits without being read after their admission. She referred the Court to page 10 of the trial Court proceedings which indicates that payment voucher, and certificate of seizure were admitted as Exhibit P2 but they were not read. She added that, at the same page the Court admitted store ledger as Exhibit P3. The ledger was not read after being admitted. She also mentioned the receipt voucher book which was admitted as exhibit P4 as among documentary exhibits which were not read after their admission. She argued that, the documents mentioned constitute main evidence that led to the Appellant's conviction unfortunately, they were not properly admitted. On the remedy for such improper admission of exhibits, the learned counsel cited the decision of the Court of Appeal in the case of Issa Hassani Uki vs Republic (Criminal Application No. 122 of 2018) [2019] TZCA 372 (4 November 2019) and argued that, exhibits which were not read after their 3 admission need to be expunged from record. She then prayed to have the exhibits mentioned expunged from record. Submitting on the first ground of appeal, the learned counsel registered her opinion

that, the prosecution did not prove their case beyond reasonable doubts. She highlighted weaknesses in the prosecution case to include contradictions in the testimonies of witnesses and failure of the remaining documentary evidence to prove the case against the Appellant. On the alleged contradictions in the prosecution case, the learned counsel submitted on the contradictions as to time at which the renovations were commenced and finalized. She argued that, PW2, Herman Felicia n, who was the investigator of the case stated that the renovation of the buildings started on 14th December 2019 and was finalized on April 2020 without mentioning date on which the renovations were completed. She argued that, PW2's evidence contradicts with that of PW3, Leah Hamis Makonja, who stated that the renovations started on 16th December 2019 and were finalized on 23rd January 2020. She also referred the Court to the testimony of PW5, Sospeter Simon who merely stated that the renovations were finalized in 2020 without mentioning a specific date of such finalization. She argued that, with the contradictions as to when the renovations were completed, it is hard to establish that, by 24th December 2020 when the delivery note was issued, no renovations work was going on at the school. The learned advocate also submitted on the contradictions regarding the payment procedure. She argued that, while

PW2 alleged that the payments made via the disputed deliver note and payment voucher were made without following the laid down procedure, PW10, Emmanuel Alexander Mtonge, the officer who was authorizing all payments stated that he authorized ali payments after ensuring that the procedure were followed. She is of the view that, even the disputed payments were done by following all procedure. The learned advocate submitted further that, with such contradictions and the fact that all important documents are liable to be expunged from record, the prosecution cannot be considered to have proved their case on the required standard. She prayed the appeal be allowed. In her reply submission, Rugakingira SA conceded that PE2, PE3, PE4 and PE5 were admitted but they were not read. She also conceded that, the remedy is to have them expunged from record. The learned State Attorney argued that, expunging the mentioned documents from record does not affect the prosecution case. She explained that, after expunging mentioned documentary evidence, the prosecution still have testimony of PW3, PW4, PW5 and PW6 who explained that the delivery note dated 24th December 2020 was issued at the time when the renovations had already finished. The mentioned witnesses testified further that, no materials were supplied to the school on that date. The learned State Attorney referred the Court to

the testimony of PW3, the officer responsible with receiving building materials during renovation. PW3 stated clearly that, she did not receive any materials on the disputed date. She added that, in his defence, the Appellant admitted to have signed the disputed delivery note and there is a handwriting expert report and the testimony of the expert which point all accusing fingers to the Appellant. With this testimony the learned State Attorney is of the view that, the 5. prosecution managed to prove that the delivery note was issued by the Appellant at the time when renovations were compete. As to whether the payments were made by following the procedure, the learned State Attorney argued that the payments were not paid by following the laid down procedure. She mentioned the missing minutes of the renovations committee approving the payments aS stated by PW2, and the fact that the payments were made for materials that were not received by the school as stated by PW3, PW4 and PW5. She concluded that, the prosecution managed to prove its case on the required standard and prayed to have the appeal dismissed. In her rejoinder, Advocate Francis reiterated her submission in chief. She submitted that, despite testimony of the prosecution witnesses mentioned by the prosecutor, there is the testimony of PW10 who testified to the effect that, all payments followed the laid down

procedure. She is of the view that, by that statement, it means even the payments in dispute followed the procedure. The learned advocate submitted also on the testimony of the handwriting expert and a forensic report containing examination of handwriting that appear in the disputed documents. She is of the view that, such evidence has no value evidential since the exhibits that were examined, were not properly tendered before the Court and if expunged, they will not form part of court record. 6 I have considered submissions by both parties and Court record. Court record establishes that the roots of the case at hand are built on the delivery note and the invoice dated 24th December 2024 alleged to have been drawn by the First Appellant. It is alleged that the Appellant used invoice No. 277 dated 24th December 2020 and Delivery note No. 242 of 24th December 2020 purporting to show that building materials worth 8,950,000/- were purchased by Mirambo Secondary School. As noted by both parties and established by Court record, the two documents were tendered during trial and admitted as Exhibit PE2 but the two documents were not read after their admission as evidence. It is a well-established legal requirement that, documents admitted as evidence should be read so as to enable the person against whom they are tendered to defend himself properly. As correctly submitted by the learned

state Attorney and the Appellant's advocate the remedy is to have the documents expunged from record as I hereby do. In absence of the two documents, the remaining evidence cannot sustain the Appellant's conviction. I hold so because the main point of contention regarding the two documents is that they contain false information that the school purchased building material from Kinyota Hadiano Kitebe t/a Kitebe (KTB) Traders while by that time the school did not purchase any building materials. Remaining pieces of evidence establishes that the school was renovated and the renovations were done from 14th December 2019 to April 2020. Evidence reveals further that, no construction works was being conducted by the school on 24th December 2020. Such evidence does not prove that the Appellant issued a delivery note on 24th December 2020 or there was an invoice for the purchase made on 24th December 2020 which 7 are the basis of the first and second count that were preferred against the Appellant. I am alert of the existence of the handwriting expert report which was properly tendered and the testimony of the Appellant himself in which he did not dispute to have a hand in the two documents. However, since the documents are no longer part of the record, the two pieces of evidence are of no evidential value. Moreover there is the testimony of Venance Isango, PW9, a customer manager of NMB

who tendered the bank statement of Mirambo Secondary School which was admitted as PE3. The testimony of PW9 establishes that, the disputed payments via cheque No. 250258 was made on 06/02/2020. Thus, the payments cannot be considered to have been initiated by an invoice dated 24th December 2020. Unfortunately, the bank statement that was tendered does not contain transactions made through the account for the month of December 2020. It contains transactions made from 1st February 2020 to 29th February 2020. In such circumstances, there is no proof that there were payments that were made after the invoice was issued that, on or after 24th December 2020. This suggests that, there was no undue advantage that was received by the Appellant or any other person. In brief the two offences that were preferred against the Appellant depended on the existence of the invoice and the payment voucher that has been expunged from record for being admitted contrary to the laid down procedure. Without the two documents, the prosecution cannot be said to establish the offence of abuse of position which require proof of existence of the documents, that the documents were drawn by the Appellant in violation 8 of the law with the purpose of obtaining undue advantage to himself or any other person. What remained in Court record is evidence that suggests that, the disputed invoice and the delivery note

were drawn in violation of the law with no proof as to the existence of the two documents. Thus, the offence of abuse of position was not proved on the required standard. The offence of use a false document intended to mislead the principal also requires proof of existence of a document containing false material particulars and use of the same document with intent to deceive or defraud the principal. Again, in absence of the disputed delivery note and invoice, the prosecution cannot be said to have proved the offence on the required standard. It is my considered view that, with evidential gaps resulted from improper admission of the disputed documents, weakened prosecution's case and caused failure of the prosecution to prove the case against the Appellant beyond reasonable doubts. For those reasons, I hereby allow the appeal, quash conviction and set aside sentence meted against him. Dated at Tabora this 10th day of June 2024 Z.D.MANGO

JUDGE 10/06/2024 9