CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 174 OF 2022 (Arising from the Resident Magistrate’s Court of Dar es Salaam in the Criminal Case No. 60 of 2021) CHRISTINA LUDOVICK KAALE ............................................ APPELLANT

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

JUDGMENT 11th December, 2023 & 18th March, 2024 BWEGOGE, J. The appellant herein one Christina Ludovick Kaale and one Edwin John Makene were jointly arraigned in the Resident Magistrate’s Court of Dar es Salaam on four counts under the Prevention and Combating of Corruption Act (No. 11) of 2009. The 1st, 2nd, and 3rd counts were in respect of the offence of use of documents intended to mislead principal c/s 22 of the Act. And, the 4th count was embezzlement and misappropriation c/s 28(1) and 3 of the same Act. 1 In respect of the 1st count, the particulars of the offence alleged that on 19th day of June, 2015 at the Ministry of Home affairs Office within Ilala District in the City and Region of Dar es Salaam, the appellant and her co- accused, with intent to defraud, knowingly used the receipt No. 35734 dated 19th June, 2015 which contained false particulars indicating that TZS 4,400,000/= was employed for payment of dinner and drinks for a farewell party of retired employees of the relevant ministry, the fact which was false and which to their knowledge, was intended to mislead the principal. In respect of the 2nd count, it was alleged that on the same date and place, the appellant herein and her co-accused, with intent to defraud, knowingly used receipt No. 74623 dated 19th June, 2015 which contained false particulars indicating that payment to the tune of TZS 2,000,000/= was

for dinner and drinks served during the farewell party of retired employees of the relevant ministry, the fact which was false and which to their knowledge, was intended to mislead the principal. Likewise, the particulars of offence in the 3rd count alleged that the appellant herein and her co-accused, with intent to defraud, used receipt No. 43879 dated 19th June, 2015 which contained false particulars indicating that payment to the tune of TZS 8,000,000/= was made for 2 purchase of radios (music systems) intended to be handed to the retired employees of the respective ministry as gifts, the fact which was false and which to their knowledge, was intended to mislead the principal. Lastly, in respect of the 4th count, the particulars alleged that the accused persons, on diverse dates between 19th June, 2015 and 30th June, 2015, within the place above mentioned, did fraudulently and dishonestly misappropriated for their own use TZS 15,200,000/=, the money that was entrusted to them as public officers. The trial court upon evaluation of the evidence laid on the table by the prosecution, found the appellant herein guilty of all four counts whereas the 2nd accused person was found not guilty and left to walk scot-free. The appellant was not amused; hence, this appeal. In total, the appellant advanced 8 grounds of appeal. The relevant grounds are hereunder reproduced in verbatim as follows: 1. That the trial court erred in law and fact in convicting and sentencing the appellant on the offence of forgery which the appellant was not charged with and there was no evidence on record adduced by the prosecution to that effect.

2. That the trial court erred in law and fact in applying the provisions of the Public Finance Regulations to convict and sentence the appellant, the law which the appellant was not charged with; hence, denying the same her right to be heard. 3 3. That the trial court misdirected itself in raising the new issue of delegation suo motu.

4. That the trial court erred in law and fact in convicting and sentencing the appellant based on an incurably defective charge.

5. That the trial court erred in law and fact by failing to analyse and evaluate the evidence adduced by both the prosecution and defence.

6. That the trial court erred in law and fact in relying on the weak evidence (exhibits P2 and P3) procured by the prosecution which was insufficient to ground conviction against the appellant.

7. That the trial court erred in law in imposing an excessive sentence against the appellant contrary to the enabling provisions of the law whereas the compensation order was entered without the appellant being accorded the right to be heard.

8. That the charges upon which the appellant was convicted and sentenced were not proved beyond reasonable doubt. During the hearing of this appeal, the appellant was represented by Mr. Godwin Opande, learned advocate, whereas Messrs Imani Nitume and Clement Masua, learned state attorneys, represented the respondent Republic. The appeal was heard by oral submissions. In substantiating the 1st ground of appeal, Mr. Opande submitted that the trial court had convicted the appellant on the offence she was not charged with, neither evidence adduced to that effect. That there was no charge of forgery on which the appellant was arraigned in the trial court. 4 However, the reasoning of the trial magistrate in the impugned judgment, it is recorded in that the trial senior resident magistrate found evidence of forgery which the appellant herein was not charged with. That the exhibit P2 and P3 were invoked to substantiate the alleged forgery whereas there was no exparte evidence adduced to prove the purported forgery as provided by sections 48 and 49 of the Evidence Act. The counsel concluded that there was no tacit evidence adduced to prove that the receipts issued were forged. He cited the case of Happy Kaitiri Brilo t/a Irene Stationery & Another vs. International Commercial Bank (Civil Case No. 115 of 2016) TZCA 286 to cement his argument. Likewise, in respect of the 2nd ground of

appeal, the counsel argued that the trial court erred in law in convicting the appellant on the charge which she was not charged with; hence, denied her the right to be heard. That the trial court invoked the provisions of the Public Finance Regulations in convincing the appellant herein, the law which she was not charged to have contravened. Hence, the counsel concludes that the appellant’s constitutional right to be heard was curtailed. To bolster his point, the counsel referred the case of Mbeya Rukwa Autoparts vs. Christina Justine George Mwakyoma [2003] TLR 251. 5 Regarding the 3rd ground of appeal, the counsel charged that the senior resident magistrates court erred in law and fact in discussing the new issue of delegation which was raised suo motu by the court and which was not argued by the prosecution or defence. In respect of the 4th ground of appeal, the counsel argued that the trial court erred in law and fact in convicting and sentencing the appellant on the incurably defective charge. That the trial court had abandoned the valid charge facing the appellant and created its own charge and proceeded to convict the same. The counsel asserted that, if the trial court found that the evidence adduced didn’t prove the charge, would have advised the prosecution to amend the charge to that effect. In establishing the 5th ground, the counsel charged that the trial

court failed to analyse and evaluate the evidence adduced by both the prosecution and defence; hence, arrived at an erroneous conclusion. That the record entails that the trial court jumped to the conclusion that the appellant was guilty of the invented charge. The counsel expounded that the trial court had a legal duty to analyse the evidence and evaluate the same before coming to the conclusion. The case of Augustino Emmanuel vs. Republic, Criminal Appeal No. 8 of 2020, HC (unreported) was cited to validate the argument. 6 Pertaining to the 6th ground of appeal, the counsel argued that the trial court erred in law and fact in relying on weak evidence, specifically exhibits P2 and P3 tendered by the prosecution. That the trial court hinged its decision on the above-mentioned exhibits which were insufficient to ground conviction. In the same vein, the counsel alleged that the trial court ought to consider the defence case, failure of which is fatal. The cases; Abel Masikiti vs. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 219 and Agasto Emmanuel vs Republic (Criminal Appeal 8 of 2020) [2020] TZHC 1838 were cited to make a point. In respect of the 7th ground of appeal, the counsel argued that the sentence imposed by the trial court was manifestly excessive and the accused was not accorded the right to be heard before the sentence was entered. That the law provides the

guideline for imposition of the order for compensation which the trial court failed to adhere to. The provisions of sections 25 and 31 of the Penal Code; section 338 of the Criminal Procedure Code, and the case of Shisa Sweka vs. Republic [2003] TLR 398 were cited to bring home the point. Lastly, in arguing the 8th ground of appeal, the counsel submitted that it is their stance that the prosecution failed to prove the charge beyond reasonable doubt. That the prosecution had failed to prove both the mens 7 rea and actus reus of the offence alleged to have been committed by the appellant. The counsel asserted that it was never proved that the institution which issued the receipts never existed to arrive at the conclusion that the same were forged. That the appellant had given an explanation as to who was responsible for retiring the documents alleged to have been forged. Hence, the counsel opined that the prosecution case was weak to ground conviction. On the above premises, the counsel prayed the appeal herein to be allowed and the conviction and sentence entered by the trial court be reversed. In responding to the 1st ground of appeal, Mr. Nitume conceded that the charge of forgery was not preferred by the prosecution. However, the attorney contended that the trial senior resident magistrate inadvertently employed the word forgery referring to the falsity in the receipts

tendered in evidence. That the term forgery employed by the court referring to the document tendered in evidence, in itself, doesn’t mean that the court created a new offence which the appellant was not charged with. Replying to the submission made in respect of the 2nd ground of appeal, the respondent’s attorney contended that the trial senior resident magistrate has the liberty to make any reference to the law and, or 8 decided cases in determining the issues raised in the case. And, in so doing, the trial senior resident magistrate made reference to the Public Finance Regulations to ascertain who between the accused persons was obliged to make the retirement of the disputed documents. Further, the attorney responded that the 3rd ground of appeal is patently related to the 2nd ground of appeal; and argued that the court was entitled to raise key questions which would lead to the just and conclusive determination of the case. Concerning the 4th ground of appeal, the attorney replied that it is their take that the charge was not defective to warrant amendment of the charge. In the same vein, the attorney submitted that the trial court didn’t create a new offence to render the charges preferred by the prosecution defective as alleged by the appellant’s counsel. Responding to the 5th ground of appeal, the respondent’s attorney opined that this ground of appeal is misconceived. He

asserted that pages 10, 11, and 12 of the judgment indicate that the trial court analysed and evaluated the evidence adduced by both parties to the case. Regarding the 6th ground of appeal in which it was alleged that the trial court relied on the weak evidence emanating from exhibits P2 and P3 to 9 ground conviction, the attorney contended that the false information on exhibits P2 and P3, among others, depict that the prosecution had succeeded in proving the offence levelled against the accused persons (appellant inclusive). And, responding to the allegation made in the 7th ground of appeal in that the compensation order was made without the accused being accorded the right to be heard before the manifestly excessive sentence was meted; the attorney opined that this ground of appeal is likewise misconceived. That the trial court had adhered to the dictates of section 31 of the Penal Code in imposing the compensation order. That the appellant was merely required to compensate the government for the fund found to have been embezzled. Lastly, in countering the argument made by the appellant’s counsel in respect of the 8th ground of appeal in that the prosecution failed to prove the charges beyond sane doubt, the attorney contended that the prosecution had successfully proved that no ceremony was occasioned and, or gifts given to the retired officers to justify the

expenditures incurred. Hence, the purported expenditures amounted to embezzlement as rightly found by the trial court. 10 In tandem with the above, the attorney contended that the requirement of exparte evidence in terms of section 49 of the Evidence Act was uncalled for in this case as the charge of forgery was inexistent. On the above premises, the attorney asserted that the appeal herein is without merit. Hence, he prayed the appeal herein to be dismissed. In rejoinder, the appellant’s counsel maintained his previous stance of which I find needless to recount the same herein. It suffices to point out that the appellant’s counsel alleged that no evidence was called from the retired officers who were intended to be the beneficiaries of the farewell ceremony to establish the charges on which the appellant herein was convicted. This is all about the submissions made by the counsel for the parties herein. I would canvass the preferred grounds of appeal sequentially commencing with the 1st ground in that the appellant was convicted on the offence of forgery which she was not charged with. This ground of appeal need not detain me. With due respect to the appellant’s counsel, as rightly asserted by the respondent’s attorney, the trial court didn’t convict the appellant on the offence which she was not charged with, neither created the offence of forgery. I subscribe to the

respondent’s attorney in that the trial court, inadvertently, employed the term forgery in referring to the 11 receipts (collective exhibit P3) bearing false information pertaining to the purported purchases and payments made by the appellant. The judgement of the trial court is clear in that the appellant was convicted on the 1st, 2nd and 3rd counts relating to the use of documents intended to mislead the principal c/s 22 of the Prevention and Combating of Corruption Act (No. 11) of 2009 as well as the 4th count of embezzlement and misappropriation contrary to section 28(1) and (3) of the Act. All four counts on which the appellant was convicted were the very counts she was arraigned on. Thus, the charge made by the appellant’s counsel is unwarranted. That said, I find the 1st ground of appeal without ground to stand on; hence, it collapses. The 2nd ground of appeal alleges that the trial court invoked the provisions of the Public Finance Regulations to convict and sentence the appellant, the law which the appellant was not charged with; hence, denying the same her right to be heard. I have laboured to scrutinize the judgment rendered by the trial senior resident magistrate. I found that the trial senior resident magistrate, in determining the 2nd issue as to who between the accused persons was obliged to retire the fund (impress) allocated to cater for the proposed farewell

party, revisited the provisions of the Public Finance Regulations [G.N. No. 132 of 2001], specifically regulation 98, 12 which provides to the effect that the holder of imprest shall not be relieved of any part of his or her responsibility by delegation of the custody of operations of an imprest to another officer. Based on the relevant provision, the trial senior resident magistrate arrived to the conclusion that it was the appellant herein, the imprest holder, who was vested by law with the obligation to retire the imprest, the obligation which could not be delegated to the 2nd accused. Now, can it be stated that the trial court’s endeavour in revisiting the provision of the above-mentioned regulation in determining the pertinent issue raised amounted to creation of a new offence which was not preferred by the prosecution? The answer is negative. I am of the considered opinion that the argument of the appellant’s counsel in this respect is nebulous in this jurisdiction. As rightly asserted by the respondent’s attorney, the judicial officer is at liberty to formulate issues and revisit the laws, both substantive and procedural, the decided cases and writings of renowned jurists in determining the case before him. As aforesaid, all the four counts on which the appellant was convicted, were the very counts she was arraigned on. Therefore, I likewise, find this ground without a

limb to stand; hence, it collapses as well. In the same vein, the 3rd ground of 13 appeal in that the trial court misdirected itself in raising the new issue of delegation suo motu, likewise, collapses. I now proceed to canvass the 4th ground of appeal in that the trial court erred in law and fact in convicting and sentencing the appellant based on an incurably defective charge. The charge herein stems from the argument by the appellant’s counsel in that the trial court had abandoned the valid charges facing the appellant, created its own charge and proceeded to convict the same. Further, the appellant’s counsel asserted that if the trial court found that the evidence adduced didn’t prove the charges levelled against the appellant, would have advised the prosecution to amend the charge to that effect. I, likewise, find this ground to have been misconceived. As rightly submitted by the respondent’s attorney, the trial court didn’t create new offence to render the charges preferred by the prosecution defective as alleged by the appellant’s counsel. I would reiterate once again that all the four counts on which the appellant was convicted, were the very counts she was arraigned on. Therefore, I would hasten to find that this ground of appeal is without substance, At this juncture, I proceed to tackle the 5th and pertinent ground of appeal in that the trial court failed to analyse

and evaluate the evidence adduced 14 by both the prosecution and defence; hence, arrived at the erroneous conclusion. The appellant’s counsel alleged that the record entails that the trial court jumped to conclusion that the appellant was guilty of the “invented charge.” The counsel expounded that the trial court had a legal duty to analyse the evidence and evaluate the same before coming to the impugned conclusion. Unarguably, the trial court is legally obliged to analyse and evaluate the case made by both the prosecution and defence in the determination of the case before it. See Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294; Paulo Maduka & Another vs. Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69 and Nyerere Nyegue vs Republic (Criminal Appeal 67 of 2010 [2012] TZCA 103. Likewise, it is trite law in that it is the prosecution which has a burden to prove the case against the accused. And, the standard of proof is proof beyond sane doubt. In the same vein, the accused in criminal proceedings is to be convicted on the strength of the prosecution case not on the weakness of his defence. Now, the delicate issue arising herein is whether the trial court abrogated its legal duty. This question I would attempt to answer. 15 Primarily, I find it pertinent to revisit the evidence adduced by the key witnesses for the prosecution case in the trial

court. One Lilian Lameck Mapha (PW5), the Director of Administration and Human Resources, deponed in the trial court that sometime in 2015, she received instruction from the Permanent Secretary of the Ministry of Home Affairs, to organize a farewell party for retired staff of the Ministry of Home Affairs. She convened a committee to deliberate on the proposed affair of which she was a chairwoman. The budget for the farewell was prepared and the document (exhibit P8) was remitted to the Chief Accountant to allocate fund for the next incoming monthly fund. Consequently, the Chief Accountant (the 2nd accused) had complied with the order and allocated fund to the tune of TZS 15,200,000/= to that effect. However, PW5 deponed that to her knowledge, the party was not occasioned. One Martina Michael Ngulima (PW6), the Chief Internal Auditor, deponed that in the 1st quarter of the year 2015/2016 she conducted an audit at the Ministry of Home Affairs and made the audit report (exhibit P1). She found that, among others, the imprest paid to the appellant herein in respect of the fund to the tune of TZS 15,200,000/= was not retired (remained outstanding imprest). She recommended for retirement of the 16 imprest. That to this moment, to her knowledge, the fund is yet to be retired. One Omega Julius Mosi, PW1 herein, was the investigator of this case. The same deponed in the trial court that

upon investigation, he found the planned farewell party for retired staff of the ministry was not conducted. Yet, the retirement purporting to be expenditures incurred for the ceremony was made by accountants. He found the receipts for the purchase of 15 radios (music systems) purported to have been issued by the company namely, Mansoor Electronics to the tune of TZS 8,000,000/; payment for food and beverages to the tune of TZS 4,400,000/=; payment for ceremony hall, chairs and decorations to the tune of TZS 2,000,000/=; purported to have been issued by Beriego Fair View Hotel and payment made to the master of ceremony TZS 800,000/= (exhibit P4). The receipts for payment of the above services were admitted as exhibit P3 collectively. However, the relevant company purported to have sold the radios (music systems) could not be found. Likewise, the search made by the Tanzania Revenue Authority (TRA), revealed that the tin numbers on the receipts were not traceable. Further, PW1 deponed that his investigation revealed that the retired staff for whom the farewell party 17 was planned, denied knowing anything. None confirmed to have received any gift. Lastly, PW1 deponed that his investigation revealed that the money was paid to the appellant herein. The same retired the imprest in respect of the fund vested under her custody, purporting that the fund had been expended as budgeted

whereas no ceremony was convened. The retirement form was admitted in evidence as exhibit P2. The testimony was PW1 was corroborated by one, Salama Selemani (PW2) and Augustino Dominic Shio (PW4). These are retired staff of the Ministry of Home Affairs. They retired in 2015 and 2016 respectively. They denied to have attended any farewell party, neither received any gift. Moreso, one Rehema Senkoro Mdee (PW 3), the Manager of Beriego Fair View Hotel deponed that in 2015 and 2016 the hotel never received any payment from the Ministry of Home Affairs. That no function was held at the hotel under her supervision. She denied the receipts purporting to have been issued by the Hotel. And, PW3 enlightened the trial court that the hotel provided only hall service, not food or beverage services as the receipts (exhibit P3) purport to depict. She clarified that the hall services renting ranged from TZS 200,000,0000/= to TZS 300,000,000/= not TZS 2,000,000/= indicated on the receipt. 18 Lastly, PW7 namely, Laurent Laurian Sanya, the Supplies Officer and employee of the Ministry of Home Affairs deponed in court that he never received stores/goods in respect to the purported gifts intended for the retired staff. On the other hand, it was the defence made by the appellant herein in that in 2015 she was the accountant and employee of the respective ministry. That she was instructed by the 2nd

accused to handle payment of the fund allocated for the farewell party, as per exhibit P8. She prepared the imprest for payment to the tune of TZS 15,200,000/=. DW1 admitted that the fund had been paid into her account (NBC) on 19/08/2015 of which she withdrew on 19/08/2015 and remitted the fund to the 2nd accused who had never returned it back to her. The appellant maintained that she has no information that the ceremony was not conducted, but admitted she was required to retire the money and requested the 2nd accused to return the money whereas the same responded that the money had been expended and promised to give her the supporting documents for retirement. And, the same duly provided her with supporting documents for retirement. Thus, she filled retirement form and signed thereon whereas the 2nd accused endorsed the same. 19 She opined that she is not sure whether the supporting documents were authentic or otherwise falsified. One Edwin John Makene (DW2), conceded to have allocated the fund for the farewell party and paid the 1st accused to supervise the activities. He hit the sky denying to have received back the fund or otherwise inquired on how the appellant managed the same. He asserted that it was the obligation of the appellant to retire the fund as the imprest holder. He admitted to have endorsed the retirement form having satisfied himself that the appellant had

executed her responsibility. When asked why he failed to verify the authenticity of the documents he endorsed, he explained that the verification was the duty of the inspection unit, not him. Based on the above-revisited evidence, the trial court was of the considered opinion that, the appellant herein admitted to have been the imprest holder; hence, responsible to make retirement of the same. Likewise, the trial court considered that the appellant admitted that she had duly retired the imprest in respect of the fund paid to her. The trial senior resident magistrate refused the appellant’s defence in that the falsified documents were given by the 2nd accused as it was the appellant who was charged with the obligation to make retirement of the imprest 20 paid to her. The trial senior resident magistrate found the 2nd accused without blame and let him walk scot-free. Admittedly, one would raise an eyebrow that the 2nd accused was found innocent given the fact that he endorsed the imprest retirement made by the 2nd appellant being aware of the fact that the ceremony had not gone through. It suffices to point out that the trial court had considered the evidence given by PW1 in that the company purported to have sold the radios (music systems) was inexistent and tin numbers on the receipt could not be verified by the TRA. Likewise, the trial court considered the evidence given by

PW2 and PW4 in that being retired staff of the respective ministry they have never been invited to any farewell party or given any valuable gifts (music systems). In the same vein, the trial court accorded weight to the evidence adduced by PW3 in that the Beriego Hotel’s hall was never hired for the ceremony conducted by the respective ministry or sold beverages/food, as receipts (exhibit P3) purport, let alone the inflated charges thereof. In tandem with the above, the trial court considered the evidence of PW6 (the auditor) in that it was the appellant herein who was supposed to retire the imprest in respect of the fund paid to her as well as the evidence of the PW7 (supplies officer) in that he never stored any goods purporting to be gifts purchased for retired staffs. 21 Based on the above factual matrix, I wholly subscribe to the findings of the trial court. I find no cogent ground to fault the same. The prosecution had made a cogent, coherent and credible case against the appellant herein. The appellant’s evasive defence which tended to implicate the 2nd accused was rejected by the trial court. Likewise, I am of the considered view that the appellant, being the imprest holder of the fund paid in her name, was well alive of the fact that the ceremony had not gone through. However, she proceeded to retire the fund as if it was expended on the planned event. Therefore, the

appellant’s conduct constitutes the mens rea of the offences upon which she was convicted. Thus, she cannot cast the criminal liability on the 2nd accused who had taken her for a ride. That said, I find the 5th ground of appeal without substance as well. In the same vein, the 6th and 8th grounds of appeal which are intrinsically related to the 5th ground of appeal, likewise, are found without substance. Lastly, I would conclude with the 7th ground of appeal. It is charged that the trial court imposed the excessive penalty against the appellant contrary to the law and made the compensation order without affording the appellant the right to be heard. With due respect, I find this ground misconceived as well. I would not tarry to hold that the appellant was given the chance to mitigate the sentence. And her counsel had made 22 meticulous submission to that effect. As a result, her personal freedom was not assailed. She was sentenced to pay fine and walked scot-free. Upon scrutiny, I found that the totality of paid fines in all four counts doesn’t reach half of the fines imposed by law. And, as rightly asserted by the respondent’s attorney, the compensation order was entered in compliance with the statutory provision of section 28 (3) of the Prevention and Combating of Corruption Act (No. 11) of 2009 which requires the government to be redressed for embezzled money. Payment

of compensation was a statutory redress which didn’t depend on whether the appellant had the financial capability to pay or not. I need not mention that failure to pay statutory redress for financial injury suffered by the government would attract distress writ. In fine, I find the appeal herein devoid of merit. The appeal fails in its entirety. The conviction and sentence entered by the trial court are hereby upheld. I so order. DATED at DAR ES SALAAM, this 18th March, 2024. O. F. BWEGOGE

JUDGE 23 24