20160622 TZHC Dodoma

All 35 persons had to sign on the minutes of a eeting for which the money was intended for. A single person could not make any purchase Three persons from TASAF and ihee Ii'orn lhe Makulupora Government had to do any purchase Two persons would receive the money from the NMB Bank but six persons had do any purchase Before any purchase was made 3 quotations had lo be submitted and one of them was selected by the meeling of boih IASAF and village government members Thereafter. the six persons purchase and the purchased items are given io the village government leaders, who in turn hand them over to the TASAF storekeeper The storekeeper then issues items to users under the supervision of two persons one from TASAF and the other form The village government He went on to submit that there is no written evidence that he took any money from Esther Edward the signatory of TASAF or from the NMB Bank in regard to the third ground of appeal, he denied that Paul Ngwala, the storekeeper handed over the store to him He added there was no evidence or writtendocument tendered in court proving that he had been handed over the said store or any key to it In regard to the 4th ground of appeal, that the court foiled to visit the locus Jn quo to ascertain whether the project was going on well, he submitted that the trial magistrate only relied on a report by the Manyoni District Council's Inspector

of Buildings to convict him He did not bother to visit the site to verify whether the prosecution's 3 allegations were true or not He went on to state thai the committee had written to TASAF reauesfina for extra funds which was nnnrrvr and 10 million shillings was ..sent by TASAF for completion of the projoct On the 51h ground of appeal, He contended that a person can only draw monies from the NMB Bank upon being given a grant lottor by the TASAr project cashier duly ndoised by. the Manyoni District TASAF accourilant before being presented to the NMB Bank He said two signatories fiorn gioup A arid group B have to sign on the check That Group A was compose d of himand Elizube lii Bruno, whole Group B was composed Mr. Mbasha and Esther Edward There had to be six persons present when the money was drawn, three form TASAF and three from the villagegovernment He said on both occasions when money was drawn from the NMB account no grant letter was presented to the bank In regard to the 6th ground, he submitted that he was convicted on the strength of the defence case in reliance of accomplice evidence instead of the prosecution proving its case beyond reasonable doubt In resisting the appeal, Ms Mgoma for the respondent submitted on the 1st ground that as is seen at 28 of the proceedings, before the check book was tendered, the learned trial magistrate asked the defendants whether

they had any objection for the document to be tendered and they repliedthey did not have any objection which included the respondent She therefore was of the view this ground should be dismissed as it has no basis------- In reply to the 2nd groundof appeaL Ms Mgoma maintained that the evidence before the court was sirong PW1 has testified that the check was from the committee and it should have been endorsed by an officer from the Manyoni District Council but this was not done She said Ihat when PW1 was cross examined by the 1st accused (now the appellant), he replied that the check which was used to diaw 11 170,0001= shillings shows the money was received by the appellant as is seen at pages 23 and 24 of the proceedings Festo Mutayobya (PW2) 1 the internal Auditor of the Manyoni District Council made an internal audit of the project He testified in court that his audit had discovered that the 1' accused drew 2 million shillings intended for purchase of doors, each costing 1 50,0001=, but none was purchased M.S. Mgoma said that, it is clear, the appellant did not use the money for 1he purchase of the said doors or construction of the said buildings She went on to submit that when DW4, who is the appellant's wife, was cross examined by the 9th accused, she had said that it was the 1st accused (now appellant) and the 2nd accused person who stOle the money Ms Mgoma concluded on

this ground by reiterating that the prosecution proved beyond reasonable doubt that Jt was the appellant who stole the money She urged this court to dismiss the ground as it had no merit 5 irielevant She stated as the appellant was a signatory, he had conspired with others to draw the sums from Ihe bank She said had the appellant followed the laid down procedure he had detailed, then the theft would not have o curred In regard to the 6th ground of appeal, Ms Mgoma was of the view the prosecution's evidence was able prove ifs case against the appellant but it failed against the rest and that is why they were acquitted She went on to say that there is no law barring using accomplice evidei ice lo convict a person if that evidence supports the prosecution's evidence She siressed that the defence's evidence only supported the prosecution's evidence and that is why the appellant was convicted She finally, urged this court to dismiss the appeal and uphold the conviction and sentence In rejoinder the appellant submitted that It was impossible to draw 1,170,0001= shillings from the NMB account and later draw another 2 million shillings form the same bank He was surprised why was no person from the Makutopora village government, the project owner, brought to testify against him He submitted that prior to the last audit by the Manyoni District Internal auditor, an audit team from TASAF

headquarters and another from the Manyont District Council audited the projects quarterly and did not report any theft He said the project's cashier had reconciled the accounts with the Manyoni TASAF headquarter's audit team and it was accompanied by the Manyoni TASAF accountant He further submitted that the TASAF headquarters releases money in phases, when the preceding phase is completed it then releases other funds Hewciton to say that th vifiage committeéis ñOt composed of engineers Its members were selected by the villagers to oversee the construction or the buildings in the project The quality of the building is not the committee's concern but that of the District lnpectoi of Buildings whO auihorized the consftuction to proceed In regard to the allegalion that he and DW2 Esiher Edward stole the money from the bank, he queried why. didn'I Elizabeth Bruno (DW4) report the alleged theft to the relevant authorities2 He said that in her statement to the police, she had said she was on maternity leave until she delivered ano was noi involved in the projeci for the whole of thatperiod He finally prayed this court to acquit him as he is on ERV medication and was during the pro:ect's lifetime After hearing the parties' submissions and having gone through the trial court's record, I have considered the contentions raised and find those of the appellant merit my acceptance I will

begin with the first ground of appeal that the appellant was not shown the check book tendered and admitted as exhibit P2 Having gone through the record find ihat the trial court misdirected itself as there was no evidence at all tendered and admitted in respect of two checks allegedlyused by Ahe appellant to draw monies from the NBC Bank The I couni alleged the appellant on 5/412007 drew 1,170,000/= shilIngs from the NBC 8 a