19890227 TZHC Dar es Salaam

I· .f+tqk c~urf- bB~ IN TH~ HIGH"e'ouHT OF TANZANIA AT DAR bb bALRAM APPELLATE JUHI8~ICTION HIGH COUitT CRIMINAL APP1'.:AL N0.138/88 UHIGINAL. CHIMINAL C.Ab£ NO. 199/87 OF Tlli.i DISTHICT COUHT OF MOHOGOHO DISTRICT AT MOROGUHO B.l!,;FU.i:fr.; E. JC NY1-tM,,S1-iGARA B~'-t- SRM. ChUSTINE ALBBRT MW~USI •••••••••••• APP~LLANT (Original Accused) versus TH~ UNIT.BD HEPUBLIC ............... RBSPONDENT (Uriginal Prosecutor) JUDGMBN'l' MRt;MA, PHM. - ~xtended Jurisdiction The appellant was charged in the ;Jistrict Court of Morogoro with three counts of forgery, that is the 2.nct, 3rd and 4th c aunts, and one count of theft, c/s 333 (d) and 337, anu 270 and 265, respectively. He was convicted on all the 4 counts and was sentenced to 3· years _imprisonment on each of the counts which were ordered to run concu- rrently. Dissatisfied \;,;_1hthe conviction, he has appealed to this court. at the trial court, the appellant was accused of having committed the foreeries as follows:- (1) Between li:th day of December, 1985 and 30th April, 1986, the appellant, while employed as Assistant Accountant in the office of the District Executive Director within Township antl District ;f Morogc~o did forge a local purchase order No. 380050 for bhs. 344,500/= purportine to show th~t the said loccl purchase ord~r (L~P.O) was signed by Stuart Msumari - Where as in fact it was not.true; (2) Th~t between 12th December, 1985 and January, 1986, he forged payment vouch8r (~V) Noo55/2 of 16th January, 1986· \ showing an amount of shs. 544,500/= purporting to show t·hat it was signed by one .tielena Hantungimana, assistant, treasurer of Morogoro district council whereas in fact it· was not true; (3) Th~t between 12th of becember, 1985 and Z2nd February, 1986, also with intent to defraud, forged a cheque No. k 043149 of 22nd February, 1986 for shso ' 344,500/= pur- porting to show that the cheque was signJd by the Distri?t ' £xecutive .Llir.,ctor, one Mwakutobe and. as~istant treasurer· Mrs. lielana Itatungimana ... ,,hereas in ft:.c·;; it was not true. On the theft char1c;e the appellant was charged that'between 1st day of Febrn~ry, 1986 and 12th ~ebruary, 1;86 he stole cheque book No.043126 -", 6it3150 valued at .:i~ ~ 57/50 the property of his; employer which came to his possession by virtue of his emiloyment. - 2 - The evi~ence abainst the appellant as adduced at his trial cgn "' .be re-stated in a nut-sh.ell. Jut,en Yoram Mwakatobe':(PW.2) told the tritl.l court thctt svmetime in February, 1986 he sent his assis'tant treasurer, helena Itatungimana (}'w.l) to check the District / J!iXecuti ve lJirector I s (DED 1 ~) bank balances at account No~2 kept and mantained at Moro~oro Post office bank branch. PWol discovered that bhso 344,500/= had been debited agQinst that account and the same amount allegedly credited to the account of a Dar es Salaam firm in the name of ~r~pical bupplies and Internal Yurnisheers. However, the eviJ.en·ce of Helena (PW.l) is some what different from PW.2 1 s evidence. Her eviuence was to the effect that she received a telephone call :from one JvJukunent.,e of lJar es Salaam. th& t Mukunenge wanted to talk to 1-1.. Mweusi (the appellant) but the latter _was not present. Mukunenge, accordins to PW.l, informed PWol that he had a cheque leaf with number 380050 for j,Jhso 344,500/= allegedly issued by the DED's Office Morogoro. PWcl found out th~t the cheque leaf w~s torn from a cheque boL,k containing leaves from Nos. A.043126 - 043150 inclusive. '.l.'he cheque. book was no where to be seen, it would appear, it was stolen. PW.l denied having prepared and isLued the cheque to anyone, let alone the alleged payment voucht:r No.55/2 of 26th Januc:ry, 1986, issued in support of the cheque. Both the cheque and the payment vouchers which were tendered tu court as exhibits were initi&i!-gd but PW.l denied having initialed them nor h-vinB knowled&e of the same. An order from the DED's Off'ice was issued to stop any payment against the whole cheque book stolen. 1:'W.2, like Pw.l, denied having signed, let alone authorising payment of the cheque le6.f rio~380050 for bhs o 344 ,500/= o Then hakunenge (PWo3) was physicaD.y contacted in Dar es Salaam. His evidence to the cour.t was to the effect that the office of the ~xecutive ~irector at Moroboro required him (Pw.3) to supply building \ materials from his s~op - The Industrial 6upplies and furniture Company. During that period - the period unuer review~ PW.3 was appro~ched by one adam .tlamza (also of Dar es Salac.,m). Hamza, according to PW.3, was with anoth~r person wh<iinthe witness told the court was definately not the accused person in the dock. ~ven when cross-examined by the appellant (accused), PWo3 categorically denied knowledge of the appellanto pW.3. then issued a proforma invoice to Hamza and the person accompanying him for goods worth more than °hs. 370,000/=. Hamza (Pw.4) hanti~d him the cheque but before he submitted it to.the '-. bank for payment he rant; to DED Moroi'..oro to confirm its genuiness. The office of the D~D MoroGoro r~fuseJ tu have requested for the supply of the allet;ed guuds and also having written the alleged cheque. Pw.3 was warned not to cash the cheque as it was a for8ed one. Adam uamza (1:'W.4) was also ~rrested and brought to Moroboro. after investigations were over, he (PW.4) ~as also required to give evidence. He started off in his e~rnin&tion in chief by saying that "l do not knowcthe accused person in the dock." But he said, he kne}'l one Kassim 11.bdallah Kunandila of 'l'ropica.l Companyo '.i:hen he proceeded ., - 3 - to;testify as follows 1 and.I quote:- , ''••6In Decembe;~ 1985: I introdhced ube A. Mweusi from • Morogoro to Kassim Abclallnh h.c1nd.ila. .c<amadhani introduced me to h. Mweusi at the Mweusi's house when we were having some clrink. h. Mweusi n~etled building material for his purpos~. As i was not cleuline with buildint m&terial I lead A. Mweusi to Kassim. r1.fter a iveek, &mu.dhani told me thL;t payment for the materials had been effected by a cheque leaf. We took the cheque to Kassim. hfter a month it was discovered that the cheque had been iorbed. We were arrested, viz, Kassim and myself. hfb.,rwu.:rtls we were released. '.L'he Morogoro chap had introauced himself us employee 0f Moro 0 oro District Council. On 5th Aprii, 1986, I reported at Morogoro Police Station for irlentification parade. I mana6ed to identify a person who had broutht a cheq~e to us from Moro~oro. I cannot remember if he was A. Mlh·e:.isi.. I cannot rememher him at this stage of these proceedings~ Then ~w;4 was subjected to cross-examination by the appellant (accused) and it was as follows:- XXD to Accused: "There were many peuple ut the identification parade on 5th Apr-il: 1986.· '.l'he paraded people were grown ups,, 1-i.. Mweusi h&d rough hair ancl it appe~red A. Mweusi had been in second from gate sometime. I had seen A•. Mweusi o.my once, I was not so sure if I hacl identified the proper person who had brought a cheque to us in the past.., ,, o o o C' f) o c o c , o • o o • o o o C) •• " Then the court heard the evidence of the arresting officer, No~B 8609 Sgt. Julias (~W.5). His relevant portion of his evidence was as follows as it trans~ir~d at the trial:- o o o o • • o • o o o o o o 4'I o .., o o o o o o o • o o • • o o o o· o u o o o o o o o o o o • On 7th April: 1986 •••••••••.. Helena Itatun-giana complained that ,; ,_ cheque l~o. 11.043149 .from her office had been 1~sed to cash mcmey ••••••• to one Kassim ~andila a businessman at Uar es Sala~m. Kassim told me that he was given the cheque by one Augustine Mweusi 7 of D~D MoroLoroo Kassim admitted th&t he never knew Mweusi but was introduced to him by another businessman called· Hamza Adam .. ✓ 'i'he DED Morogoro wanted written project equipment. The cheque had to be cleared before·uelivery was effected. In the course of such cleltrance, it was tliscovered that the cheque h&d been stolen. I arrested and interrogated hamza. he told me he knew hustine Mweusi of DED Morogoro 0 " •• /4 / ~ \: - 4 - whu hatl L~U unu cheque for paymi::'nt of guoJs to be tleliv&r1::d. I c&mt: tu ~oroGcru with ~assim and hamz& .t1.C:.t,m. I _ht..u to look for thi::' uccus1::d p~rson who w&s it:.untified by bvth Kassim <,(nu ue,;mz.:.. 'l'he cheque h&U siLnntures of 0~U Officials. 1 sent the sp1::cimen si~nuture tu I.0. fur i~entificut~on. ~he ru~ort I bot is th~t the si6nutures ~evgr belonged to the Lawful s i L,;nu tori es." Then the witness (~w.5) ~rot:.uced the cheque anJ the Local purchase Order (L¥O) 1 th1:: vuyment vuucher (~V) un~ th1:: cheque - all seized from Kassim Kundila as exhibit P.l collectively, PW.5 also tendered specimen siGnatures of ~W.2 after huving been examined and analysed by a hunuwritinc ex-part frum I.B. uar es ~ala~m (Fl - F5), also these of ~W.l (G 1 to G 5); an~ of one Stuart Mmuri (M 1 - M 2, and also of the various uocumunts with the accus1::d's h&ntlwriting L 1 to L 5 and K 1 to K 10 - all as exhibit P.2. The appellant was interrogated and vehemently denie~ knowleJse about the businessman and the official documents from D~D - Moro~oro. The appellant ~ave a swurn eviuence. ue simply told the trial court that he h~u nu access to the accountable documLnts nor was he a custo4ian uf the s~me. fh&t the sp~cimsn of his handwriting and sibnature ijere r1::corded and sent t0 the I.B. for identification. The re~ort, he snid, nev~r ascoci&ted him with his handwriting. The pcrade, acc0rding tu him, was not prup rly conducted by the police officer concerned. Th&t h~ w~s until~ when h8 was paruded on the mat8rial date ~nd was not 0 iven an op~crtunity to clean himself and weur attire matchinG tnose of the oth~r par&ded persons. The documents alleG~dly biven tu the Uar es Saluum businessman c~ula have been uttered by any other perKon as the Uar es Sal&um witnesses completely f~iled tu cunfirm to the cuurt that it wus him, the appellant, who was seen by them in Uar es balaam and. thut he wus the v~ry person who ,ttered the for6ed documents to them. hfter all, he said, he was very new in the office of the 0istrict ~xecutive Director, Morogoro ash~ hcd just been ~ransferred from binbida, to Morotoro. Uurine the he~ring of this appeal hr. bhiyo for the ~1::spondent (Mepublic) su0mitted th~t the Hepublic is not supporting the conviction. He said that the 1::vidence at the trial court was inadequate to connect the appellant on the three counts of for 0 ery and on the theft chareeo He saj;d, the exhil.,i ts which were tendered in court, namely, the LP{~, the cheque and the specimen si~natures from the accused (appellant) - the pur~orted handwritint were said by the handwriting expart report from the ID - Dar es &ulaam as not similar to the appellant's specimen hand~t-i~gs. .from this evidence, alone, the learned c 0unsel submitted trwt the al.)-/::~c..<.ti0ns of fore;eries we:~e not prop~rly estci.blished so as to irresistably cunnect the appellant with the said forgeries, let alonG • ...• /5 ") ·- 5 - the theft chnrLeR Mr. Hh~yo, further referred ton portion of , judgement of the ben~or rlesident Magistra~e, Morogoro which contains the fol],.owing statements:~. II e O O O C C· 0 0 0 0 0 0 0 0 Q O O O O O O O & 0 0 0 0 o • • • • • o • • e Cl O O O • O • e • • • O 8 t, o et e the prosecution never adduced satisfactory evidence to imvlic~te the accused's ~erson with forgeries obtained on the LPO and the cheque leaf. ••·•·•·••n••••••••••••••• • • 0 0 O .., o O O o o o o O o o o o o (.~ O o o o n O o o o <I e • • o • • o • ., o o tJ o ci, e o • o o • • o o • • o • o Then the Learned bento~ Hesident Magistr~te contradicted himself after havint:, said the abov3 quoted words, and I quote:- ''••••·•but I accept as a fact that the documents origiuated from DED Morogoro. 'l'he 011ly inference Hhich can reasonably be druwn at this ju~cture is that someone who had access to the accountabl9 ~oc~m~nts tempered with the same in the manner which ~as all out to assist and carry out the commi- ssion of the offence ooupled with the above analogy, 1 have in mind the ,:;a.se of SIMON MUbOK_t;VS. R. (1959) EA 715 where the court held v □ ong other things that:- - where the evi- dence is exclvGively circumstantial, the court must, before decidi;:1b upo::i a C'•J'Wi-;tion find th1.,..t the inculpatory facts are inoompct'."til:,le with the in~o ·::.: c2 of the accused and inca- pable of explr.~~ti6n ~pan any other hypothis than that of the t,uilt of the },Jers JD char 0 e::l~ 11 As rightly pointed out by the Learned bt~te At·torney that after the Learned trial magis':rRte had observed as he did - that the "prosecution never adduced satisQa~tory evidence ••• D'' th~t by itself was a reasonable doubt in the mind of the trial mabistrate which doubt ought to have been given in f&vuur of the appellant. The trial magistrate was therefore wrong to proceed to c0nvict the appellant wh:L ..e harbouring such reasona- ble doubt that had effectively impaired the s-';:cength of evidence of the prosec..ution as al:,ains+. the innocence of the appellant. i-.gain; I am in concurrence with Mro Shiyo that the Learned Senior Hesident Magistrate did not properly ev~luato the evidence o.: the material witnesses, namely, Pw .3 and Pv/ o4, whers relevant parts of thei.r e7idence I have reproduced above for the purpose of reference for the sak9 of this judgement, as . to .the proper their evidence v1as not snt:i_sfactorily establ-ished · 1it~ r:i ::a~d L identi- • fication of the appellan~ as the v~ry person·who utt~r~d the documents to one .1-1.dam hamza v:ho in ~:urn handed them ov2;r to Makunen€£e (PW.3) • As we have seen from thei~ AVidence, neithLr ~w.3 nor PW.4 sp~cifically and unambigously iden~ified the appellant - e~~her in Dare~ Salaam or in Moroe,oro both at the identification parade · and at the tria:f, of the Bl:Jpella.nt when the two witnes.ses were called to the identificati~.on parade and to court to give evidence, respect.!v~ly. ~W.3 categor~cally and emphatically stated, in answerirg the ace, s~d 1 s (appellant's) cross-examination. 1:::.: d.0 not know ~ ou. I ha\ e 11ever seen you. Adam' • 0 • .. /6.,, - 6 - Hat1~a is the one who brout;ht the cheque leaf to me." Whereas, PW.4's evidence is to the effect that one rtamadhani int;oduced one a. Mweusi to him (~w.4). Y~t, this riam~dhani was never called at the·trial-to t~stify and s~ow who was this A. ~1weusi, where he came from, etc. Also PW.4 told the court that as he was not dealing with building materials he lead that person - A.. Mweusi to one Kassim - who was selling builtling r.1aterialso .i:-'w.4 took the oheque allet,edly &iven to him by A. - Mweusi to Kas:im. rtg&in, the prosecution, for reasons best known to them nev.,,r oa.Lled Kassim to Glarify as the identity of that pe.;,;son ~vho was ::'..ead -~.o him by J-1.c..am hamza (l'w.4) •. It is also not known how the said hamza (kWa4) and Kassim could have trusted a person whom they did not know before. From the evidence of the District Executive Director (~w.2), none of the firms belonging to ~w.3 and Pw.4 were ever accepted as custom~rs or supplj_ers of stationeries, or other materi~ls of the DED's Office Moro~uro. It was not con~radicted at the trial that the appellant reported for d~~y at the office of the ~~D - Morot,oro on 4th November, 1985 from ~i~fida. It was also said in evidence by PW.l on cross-examina-· tion by the r.:.1.,pellant that between 8th Lecembcr, 1986 and 1st January 1 1986 the appellant wu.s permitted to go to bingida to collect his belonginss. 'l'he api.,ellant was i --· ".'.'idicted on 4th hpr-il, 1986~ Therefore the appellant was not a fam~ liar pE::~son in ;~hat of1ice to the extent that he could be belieVt.:d or ·!·:u_stE:d b;f any person transacting business with that officeo I am not also sure if the prosenution properly investigated the case and char1::,ed the O.J.)pellant on the sorrect date he W9.S alleged to have comm:itted the ofien,:es, -~·or example on count Non 2, the date.s mentioned are between 12th Decembur. l985 ~~d 30th ~pril, 1986e The appellant was interdicted on 4th April) 1986 a(~er having been suspected of having committed the allet:,ed forg1;;;:des. How ·:.)en could he have committed the allE:ged offence on 30th hpril, 1986, when he was alre&dy interdicted1 This is another grave doubt 1 which, if it was considered by the trial ~curt, would have created a stI~ong doubt on the part of the prosecution c&.sa and such of been benefiti doubt would have undoubtedlyL resolved in favour of the appellc:mt. The trial magistrate wns ritht to find as a fact that the case against the appellant was b~sed on circumstantial evilence, but, he sas, on the oth~r hand, ofi the corr1;:;ct path when he sD~d that 11 ••• ~I accept without reserva":ion , .ie credibilities of both i!w.3 r.ri.d PW.4," and then he procee- ded to contradict himself by so.ying - "The prosecution never adduced satisfa~tory evidence to implicate the acc11sad :~~son with the forgeries obtaining on the Ll'O and the cheque leaf~" The learned benior Resident Magistro.te ~rred in not considerint whether or not the inculpatory facts as established in the evidence were incomp1tible with the innocence of the appellant (sccused~ and incapable of any ,-xplanation upon any other reason- able hypothcd.s than that of the 1;;uilt o.f the appellant. Had the Learned trial Magistrate properly analysed and c ~sidered the evidence the way 1 have done: he w0ulcl, I believe 1 come f o the same view as I do, that the - 7- case for ptdsecution left a serious loop hole for specul~tion - that the a.ll_eeed ofiences could have been done by u person other than the e>:ppellant. In the finality, I no longer have any doubt to state that the evidence I have re-evaluat~d cannot be safely relied upon as it is not certain if Pw.4 clearly identified the pe1son who _brought the cheque to him. It is therefore quite unsafe to rely un such evitience and for that reason the trial ma5istrate was wrong to convict the appellant ~n such evidence • .l!'or the same reason I quash the conviction and set aside the sentence abainst the appellant. The appellant should therefore be released for- thwith unless he is held up for other lawful cause. This is the order of the court. j J,- A . . ~ MREMA Pl<INCIPAL RE$ IDENT M.i-iGLSTRA'l'E -Extended jbrisdiction - 27 - 2 - 1989 J~dgment delivered at Morogo.?;'O 27th February, 1989. Mr~ Shiyo - For the Republic Absent~ Appellant/unrepresented. " I J/'-- A. ~ MREMl\ PHINCI~A.L RESIDENT MAGLSTRA.TE Extended Jurisdiction - 27 ~ 2 - 1989