AMANA ERNEST KAZOKA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 5536 OF 2024 (Originating from Criminal Case No. 122 of 2022 of Same District Court) AMANA ERNEST KAZOKA ……………………………… APPELLANT VERSUS REPUBLIC …………………………………………......... RESPONDENT JUDGMENT 02/07/2024 & 15/07/2024 SIMFUKWE, J. The appellant Amana Ernest Kazoka was charged before the District Court of Same (trial court) with four offences: 1st Count: Stealing by agent contrary to sections 258(1), 273 (b) and 265 of the Penal Code, Cap 16 R.E 2019. It was alleged that between 1st day of May 2018 and 30th day of July 2019 being a businessman within Same District in Kilimanjaro Region, did steal a total of TZS 24,697,865.7 the property which had been entrusted to him by 1 Students for Africa for the purpose of paying a contractor who was contracted to renovate Meserani Primary School. 2nd Count: Forgery contrary to sections 333, 335(a) and 338 of the Penal Code (supra). On the same dates, time and place, the appellant was alleged with intent to defraud make a false document to wit: “Personal Account Bank Statement of AMANA ERNEST KAZOKA purporting to show that some amount was deducted for VAT the fact which was not true. 3rd Count: Forgery contrary to sections 333, 335(a) and 338 of the Penal Code (supra). That, on the same dates, time and place, with intent to defraud the appellant was alleged to have signed a document in the name of Ruth Richard without any authority. 4th Count: Uttering false document contrary to section 342 of the Penal Code (supra). That, on the same dates, time and place, the appellant fraudulently used to Canadian Sponsors, NMB Personal Account Bank Statement of AMANA ERNEST KAZOKA purporting to show that the same was issued by NMB bank and some amount was deducted for VAT while knowing that the same was not true. The prosecution in its endeavour to prove its case called a total of eleven witnesses and tendered 13 exhibits. PW1 Edwin Samwel Mulumba 2 testified as senior investigation officer from Prevention and Combating of Corruption Bureau (PCCB). He testified in respect of investigation of misappropriation of donation funds allegations against the appellant. He said inter alia that in May 2019 villagers from Meserani hamlet, Ruvu ward in Same district lodged complaint to PCCB that the appellant who was a focal person for renovation and construction of classes at Meserani primary school through Canadian donor, had stopped executing the project. The appellant had obtained building permit from Same district council to comply to building requirements. PW1 collected various exhibits including a bank statement of the account of the appellant dated 18/8/2018 from NMB Bank (exhibit P3) which the appellant had presented to Same district council alleging Value Added Tax deductions by the bank as a reason for stopping the construction project. It was alleged that in the course of investigation it was discovered that the bank statement was forged. PW2, a retired Manager of NMB Bank Same branch, supported the allegations of forgery of the bank statement of the appellant. PW2 tendered the actual bank statement of the account of the appellant which had no VAT deductions ((exhibit P8). 3 PW3 and PW4 villagers from Meserani hamlet in Ruvu ward, PW5 the hamlet chairperson, PW6 Senior Community Development Officer, PW7 the teacher of Meserani primary school supported the charges of misappropriation of project funds. PW9 a police officer and handwriting expert from Forensic Department and PW10 a bank clerk from NMB who was alleged to had signed the bank statement buttressed the charges of forgery. PW11 a Principal Tax Management Officer for Tanzania Revenue Authority (TRA) based in Kilimanjaro confirmed that the TIN number of the appellant was blank as no transaction had been done from 15/5/2018 to 15/8/2018. In his defence before the trial court, the appellant denied to had committed the offences. He acknowledged that he had friendship with the donor Nicola who funded the renovation and construction of the school through his personal account. However, he contended that the transactions in exhibit P8 by Nicole were done for personal use but not for renovation. After critical analysis and evaluation of evidence, exhibits on the prosecution side and the defence of the accused person, the trial court found the appellant guilty of the offences charged. He was convicted on all counts as charged. He was sentenced to serve five years imprisonment 4 on each count. The sentences were ordered to run concurrently. The appellant was further ordered to refund TZS 24,697,865.7/= which he had stolen from the donor. The appellant was aggrieved. He appealed before this court on five grounds: 1. That, the trial court erred in law and fact for failing to analyze and evaluate entire evidence and testimony adduced during the trial which made it to reach a wrong conclusion. 2. That, the trial court erred in law and fact for failing to draw adverse inference against the prosecution for failing to call a material witness one Nicola Thomas who sent the money to which was alleged to have been stolen by the appellant. 3. That, the trial court erred in law and fact for conviction and sentence (sic) the appellant while the chain of custody of “Exhibit P3” which was the subject of the charge was not well established, as there was no proof how it came into hand of prosecution. 4. That, the trial court erred in law to convict and sentence the appellant while the prosecution had totally failed to prove the charges beyond the standard of proof that is beyond reasonable doubt. 5 5. That, the trial court erred in law for imposing heavier punishment to the appellant without taking into account the circumstances of the forgery and mitigating factors. The appellant prayed this court to quash and set aside the conviction and sentence of the trial court. The appeal was ordered to be argued by way of written submissions. The appellant had the service of Advocate Mbaraka Katera while the respondent was represented by Mr. John Mgave learned State Attorney. In his submission in chief, the learned counsel for the appellant abandoned the 5th ground of appeal. He joined the rest of the grounds and argued them together. He submitted that proof of the charge beyond reasonable doubts depends on evidence adduced which includes exhibits and paraded witnesses. Mr. Mbaraka faulted the prosecution for failure to call Nicola Thomas the donor as a material witness who sent the money to the appellant. That, what was adduced by other prosecution witnesses remained to be hearsay. It was buttressed that failure to call material witnesses who are within the reach without sufficient reasons being shown by the prosecution is fatal as it was held in the case of Aziz Abdallah vs R [1991] TLR 71. 6 Mr. Mbaraka submitted further that failure to call a material witness draw adverse inference on the prosecution side as it was observed recently in the case of Allan Duller vs Republic, Criminal Appeal No. 367 of 2019, CAT, at page 34, that: “The principle of adverse inference finds its basis on an assumption that the evidence which could be, and is not produced would, if produced be unfavorable to the person who withholds it.” Regarding the cautioned statement of the accused, Mr. Mbaraka condemned the trial court for being influenced with such statement to find the appellant guilty of forgery by his own confession without being corroborated. He cemented his argument with the case of Hemed Abdallah vs Republic [1995] TLR 172 (CA), which held that: “Generally, it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, it is satisfied that the confession must be true.” It was submitted further that, considering our scenario at hand there is no any single piece of evidence to corroborate the said confession of the accused. That, the so-called confession suggests to be corroborated with material witness Nicole Thomas who was not called by the prosecution. 7 The learned counsel continued to fault the cautioned statement of the accused for being recorded contrary to section 50 of the Criminal Procedure Act, Cap 20 R.E 2022 which provides the period of four hours for interviewing a person connected with the offence after being arrested. It was alleged that the officer who interviewed the appellant never testified in court in respect of time of arrest and interview so that the court could ascertain if the confession was voluntarily taken, within the ambit of the law. Exhibit P10 an email printout was also faulted for being tendered contrary to section 18(1) of Electronic Transactions Act, Cap 442 of 2015. That, PW6 never explained how the email was retrieved from the computer without any manipulation or alteration. The learned counsel for the appellant prayed that exhibit P10 be expunged from the record which will render adduced evidence hearsay. Also, Mr. Mbaraka was of the view that evidence of PW3 and PW6 was contradictory in respect of who reported the matter at PCCB. Both of them alleged that they reported the matter. Lastly, the learned counsel for the appellant questioned the chain of custody of exhibit P3 the bank statement. That, there is no paper trail or oral account on how the exhibit came into the hand of prosecution side 8 up to court for tendering. He was of the opinion that exhibit P3 is very easy to be tempered with. The argument was supported with the case of Paulo Maduka & Another v. R, Criminal Appeal No. 110 of 2007 (unreported), which held that: “By a chain of custody” we have in mind the chronological documentation and/or paper trail, showing the seizure, custody, control, transfer analysis and disposition of evidence be it physical or electronic. The idea behind recording the chain of custody, is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance, having been planted fraudulently to make someone appear guilty, the chain of custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it.” Mr. Mbaraka stated further that, in our scenario at hand it seems that there is no any seizure certificate presented before the court from PW1 to PW6. That, it is not known how PW6 got into possession of exhibit P3. Thus, raise a crucial doubt that exhibit P3 is the creation of their own to incriminate the appellant. 9 Mr. John Mgave learned State Attorney opposed the appeal. On the issue of failure to call a material witness, Mr. Mgave agreed that Nicola Thomas was the one who sent money to the appellant for funding the project in question. However, he stated that proof that the said material witness sent the money to the appellant was proved even in her absence. That was the reason they could not bother her while enough evidence was presented on that behalf. It was explained that exhibit P3 which was admitted before the trial court showed that the bank statement presented by the appellant before Same district council was not genuine. Since the appellant had agreed in his cautioned statement to had made it, they found it sufficient to prove that the appellant was given the money. The complaint against the appellant was that he had presented a forged document showing that the funds from his account which were meant for the project from the Donor Nicola Thomas had been deducted 18% VAT. Exhibit P2 which was tendered by PW1, was a building permit which recognized the appellant as the supervisor of the project. PW1 received exhibit P3 from the appellant and the appellant never objected when the said document was tendered. The learned State Attorney prayed that the argument be dismissed for being baseless. 10 In reply to the assertion that the cautioned statement of the appellant was not corroborated, Mr. Mgave submitted that the appellant was present when the cautioned statement (exhibit P7) was tendered. He said that it is on record that the appellant never objected the content nor its admission before the court. He submitted further that it was not true that the court used it as sole ground for convicting the appellant. At page 18 the court stated that the credibility of prosecution witnesses herein PW1 and PW6 was not shaky and the court believed their testimonies and their evidence corroborated the cautioned statement among other evidence to warrant conviction of the appellant. The learned State Attorney was of the view that the reasoning of the appellant was an afterthought as his hands are tied up as he never utilized his chance to object and cross examine the tendering of the above exhibits before the court. To the same effect was the reply of Mr. Mgave in respect of the issue of the time used for interviewing the appellant. He suggested that the appellant should have raised that issue during the trial when the exhibit was tendered. Reference was made to the case of Nyakwama s/o Ondare @ Okware v. Republic (Criminal Appeal No. 507 of 2019 [2021] TZCA 592 [Tanzlii] which stated that a party who fails to cross 11 examine on an important matter in the testimony of the adversary side is taken to have accepted what is stated by the said party. Concerning the issue of authenticity of electronic email tendered by PW6, Mr. Mgave agreed that the data message before it is admitted must comply with the requirement under section 18(1) of Electronic Transactions Act. It must show its reliability of the manner in which the date message was generated, stored or communicated. Second, it has to show reliability of the manner in which the integrity of the data was maintained and third, the manner in which its originator was identified and any other factor that may be relevant in assessing the weight of evidence as stated in the case of Attorney General & Others v. Bob Chacha Wangwe (Civil Appeal No. 138 of 2019) TZCA 346 (16 October 2019) Tanzlii) at page 51. It was explained that, in line with the above position of the law, it was the testimony of PW6 at page 38 of the trial court proceedings that the computer used to print the email presented before the court was for official use at his office. Second, PW6 told the court that the computer had a password that only him could access and no other person had access to it. PW6 further told the trial court that the folder to which the data message printed was stored had password. That even the emails 12 received in his computer, he was the only one who could access them. Hence, laying a good foundation to the authenticity of the data message. The integrity was not in question that’s why the court believed it and accepted the email. It was submitted further that exhibit P10 was not the only proof that the appellant was assigned to supervise the project. It was his account that received the fund and it was him who forged exhibit P3 and submitted it before Same district council. That, the same was not disputed by the appellant as exhibit P3 was admitted without objection nor cross examination. Again, the appellant acknowledged in his cautioned statement to had prepared exhibit P3. On the issue of contradictory evidence of PW3 and PW6, Mr. Mgave stated that there was no contradiction as it was PW3 who stated at page 25 of the trial court proceedings that he reported the matter. Thus, the argument is not backed up with evidence, hence, it was prayed that it should be dismissed. Regarding the issue of chain of custody of exhibit P3, Mr. Mgave reiterated his submission in respect of authenticity of the said exhibit. He added that the exhibit never required seizure certificate as it was PW6 who handed it over to PCCB. Thus, there was no broken chain of custody. 13 It was concluded that the task of the prosecution was very simple in proving that the appellant committed the offence as per charge sheet. First, it was seen from the confession of the appellant who acknowledged receipt of cash from the donor Nicole Thomas though he changed the story that the money was for his own use. It was the opinion of Mr. Mgave that once the appellant had agreed to know the Donor one Nicole Thomas to be his friend and that he received the money for his own use, that evidence was not in his favour. It was reiterated that the appellant agreed to know the content of exhibit P3 herein, the forged bank statement which he himself submitted to Same district council. Hence, the argument that he never committed the offence as charged is an afterthought after being realized that he intended to lie to the donor regarding the VAT in question. Therefore, the case against the appellant was proved beyond reasonable doubt. The learned State Attorney prayed that the decision of the trial court be upheld and this appeal be dismissed in its entirety. Having considered submissions of both parties, the grounds of appeal and the trial court’s record, the issue for determination is whether this appeal has merit. 14 Supporting the raised grounds of appeal, the appellant complained inter alia that the prosecution did not call a material witness Nicola Thomas, his repudiated confession was not corroborated, the cautioned statement was recorded contrary to section 50 of the Criminal Procedure Act (supra), the email print out was admitted contrary to section 18(1) of Electronic Transactions Act (supra), evidence of PW3 and PW6 contradicted and that there was no chain of custody of exhibit P3 the bank statement. The learned State Attorney for the Republic, countered all issued which were raised by the learned counsel for the appellant. I would like to start with the issue of cautioned statement of the appellant. When he was cross examined, the appellant said that he did not object the cautioned statement before the trial court because he did not know the law. However, he agreed that the donor used to send money through his NMB bank account for the project. Thereafter, he said that the money which he received from the donor was for his personal use. Respectfully, to the learned counsel for the appellant, a cautioned statement must be objected prior to its admission in court and not otherwise. In the case of Nyerere Nyague v. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) at page 7 last paragraph to page 8, it was held that: 15 “As we understand it, the relevant law regarding admission of accused’s confession under this head is this: First, a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at all (See Selemani Hassan v R Criminal Appeal No. 364 of 2008 (unreported) Secondly, if an accused intends to object to the admissibility of a statement/confession, he must do so before it is admitted, and not during cross examination or during defence (See SHIHOZE SENI AND ANOTHER v R (1992) TLR. 330, JUMA KAULULE v R Criminal Appeal No. 281 of 2006 (unreported). Thirdly, in the absence of any objection to the admission of the statement when the prosecution sought to have it admitted, the trial court cannot hold a trial within trial or inquiry Suo motu, to test its voluntariness. (See STEPHEN JASON AND ANOTHER v R Criminal Appeal No. 79 of 1999 (unreported). Fourthly, if objection is made at the right time, the trial court must stop everything and proceed to conduct a trial within trial (in a trial with assessors) or an inquiry, into the voluntariness or otherwise of the alleged confession before the confession is admitted in evidence (See TWAHA ALLY AND 5 OTHERS v R Criminal Appeal No. 78 of 2004 (unreported). Fifthly, even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of evaluating the weight to be attached to such evidence given the circumstances of each case (See TUWAMOI v UGANDA (1967) E.A 91, STEPHEN JASON & OTHERS v R (supra). And lastly, everything being equal the 16 best evidence in a criminal trial is a voluntary confession from the accused himself (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal No. 110 of 2007 (unreported).” Emphasis added In this case, the appellant objected the cautioned statement in his defence and submission in chief in support of the grounds of appeal. That was contrary to the principles which were expounded in the case of Nyerere Nyague (supra). The objection should have been raised prior to admission of the cautioned statement. Whereas as a matter of procedure an inquiry could have been conducted in order to determine the raised objection. Short of that, no wonder, the trial court relied on the cautioned statement to convict the appellant on the reason that he did not dispute it. See page 17 of the judgment of the trial court, last paragraph. As correctly concluded in the case of Nyerere Nyague (supra), the best evidence in this case was the cautioned statement of the appellant. Apart from that, the learned trial Magistrate scrutinized evidence adduced before her in details. She did not rely on the cautioned statement alone. With the foundation of the cautioned statement of the appellant, I am strongly convinced that prosecution witnesses who testified proved beyond reasonable doubts the four offences of which the appellant was 17 implicated with. The investigator who interrogated the appellant (PW1) narrated what transpired in respect of the accusation against the appellant. The bank clerk whose signature was forged, testified before the court (PW10), handwriting expert (PW9) proved the forgery of signature which was done by the appellant, the villagers and leaders who had complained to PCCB (PW3, PW4, PW5 and PW6) confirmed their complaint in respect of the purported project. Moreover, the prosecution tendered a total of 13 exhibits to substantiate the charges against the appellant. In the circumstances, there was no need to call the donor as adduced evidence sufficed to prove the case beyond reasonable doubts. Notwithstanding the above principles concerning objection of the cautioned statement, also, the appellant did not cross examine in respect of the cautioned statement. It is trite position of the law that failure to examine amounts to admission of fact. In the case of Nyerere Damian Ruhele v. Republic, Criminal Appeal No. 501 of 2007, CAT at Mwanza, at page 7 it was stated that: “We are aware that there is a useful guidance in law that a person should not cross examine if he/she cannot contradict. But it is also trite law that failure to cross examine a witness on an 18 important matter ordinarily implies the acceptance of the truth of the witness’s evidence.” Emphasis added On his part, the appellant kept on implicating himself even in his defence. As noted herein above, he admitted that funds for the project were sent through his personal account. In his cautioned statement he said that the forged bank statement which contained VAT deductions, was prepared by him on agreement with the donor. On the available evidence on record and the evaluation which was done by the trial Magistrate, I hesitate to disturb the findings of the trial court. I therefore, dismiss this appeal in its entirety. Dated and delivered at Moshi this 15th day of July 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 15/07/2024 19