20140908 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

AT MWANZA CRIMINAL APPEAL NO. 58 OF 2013 (Original Criminal Case No. 76 of 2011 in the Residents' Magistrate's Court in Mwanza at Mwanza) DANIEL PETER WAIJAHA .......................................... .APPELLANT I

VERSUS . THE REPUBLIC ...... I •••• ■■■ •• I •••• ■■ 111 I I-~-- • • ~ ••• I. I •••• ■■ • ■ I ■ I I ••••• I .RESPON DNT

REASONSFORJUDGMENT . BUKUKU, J.: At the end of the hearing of this appeal, on 11th June, 2014, I dismissed the appeal and confirmed the conviction and sentence imposed by the Resident Magis_trate's Court of Mwan_za at_ Mwanza. I reserved my full reasons, which I now proceed to give. In the resident Magistrate's Court at Mwanza, presided over by A.K. Rurnisha, a Resident Magistrate, the appellant together with two other '·,i + :~ ,:,:.:.,._ - V' ·; $,.,... persons, were charged with six counts. In the first count, they were , , I ', I '',\ charged with conspiracy to commit an offence contrary to section 384 of the Penal Code Cap 16 R.E~ 2002, the second count is for stealing contrary to section 258 (1) and 265 of Penal Code (supra) (for first and second accused); the third count is that of forgery c/s. 333, 335 ( d) (i) and 337 of the Penal Code (supra); the fourth count was against the third accused for being an accessory after the fact to stealing c/s 387 and 388 of the Penal Code and final, the appellant was charged with the offence of uttering a false document contrary to section 342 of the Penal Code (supra). After a full trial, the court found the appellant (second accused) guilty of steal!ng c/s 258 (1) and 265 of the Penal Code, Cap 16 R.E. 2002 and was sentenced to serve five (5) years in jail, and on top of that, since he was found guilty of stealing T.shs.

107,859,000/~ the property of CRDB bank, it was ordered that, the appellant should repay the said amount to the bank after serving his jail term. Aggrieved by the said conviction and sentence, the . appellan_t appealed to this court. In his petition of appeal, the appellant has fronted only one ground of appeal to wit::- 2 \ "That the evidence adduced at the trial court was so weak to warrant the conviction of the appellant for an iU offence of theft. // . - ! He thus prayed this court to quash the entire decision of the trial i court by allowing the appeal and also to grant any other relief (s) which this court deems fit and just to grant. When the appeal was called on for hearing, Mr. Makwega, Learned .',j : Advocate appeared for the appellant and Mr. Obadiah Kajungu, Learned State Attorney represented the respondent Republic. In brief, the facts which stands undisputed are that, before his demise, the appellant was working with CRDB bank as a branch manager, first at Bugando branc_h in 2008 and later in 2009, he was also assign~d Nyanza branch and so he became a branch manager of both branches. It is alleged that, on or about 4th December, 2014 at the CRDB Bugando branch, the appellant and two others, did jointly and together make a false document, savings bank withdrawal slip with Ref. No. 7352395402 with intent to defraud; purporting to show th~t a customer, by the name

of NEW AMA Filling .Station, the owner of account No. O1J1016800800 ~· 3 withdrew atotal sum of T.shs. 140,000,000/= from Bugando branch while ' i- in fact it was not true. At the end of the day, it is alleged that the appellant I , I -,i ' ~~ . I l stole T.shs. 107,850,000/= . To this allegation, the appellant's explanation has been throughout that, he never signed any letter on 3/12/2010 nor did he sign the pay in .I \ slips because all payments are done by the cashier. The appellant also testified that, transferring money from Nyanza to Bugando branch is done by the custodian only if there is any c;leficiency or surplus. All in all, the appellant disassociated himself into committing the offence charged with. In his submission, Mr. Makwega learned Advocate for the appellant i argued that, the evidence tendered did not find the accused with the ' offence charged. Amplifying on this, Mr. Makwega averred that, the court relied heavily on Exhibit Pl, a letter which is alleged to have been signed by the appellant at the Belmonte hotel.; According to Mr. Makwega, the . . prosecution has failed. to show if the letter was sent to Nyanza branch as claimed, and if so, it is not clear as to who sent it. On the same vein, Mr. Makwega argued that, when shown Exhibit P1, PW2 denied it saying it was not the one issued at the bank. 4 ., ~ !~~~··,;-· On the issue whether there was any amount

of money transferred Mr. Makwega submitted that, it was PW2 who did the transaction, and that the money was acknowledged by Bugando Branch, and that the testimony of PW2 was corroborated by that of PWS. All in all, it is the submission of Mr. Makwega that it was not proper for the court to base its '' conviction on the testimonies of PW1, PW2 and PW3 since all of them I were implicated in the scam, and all had interests to serve, and therefore, their testimonies needed corroboration, citing the case of Mkubwa Said Omari V. SMZ [1992] TLR 365. He thus surmised that, the appellant was convicted based on weak evidence of the prosecution and as such, he prayed that the appeal be allowed. On his part, Mr. Kajungu opposed the appeal. His line of argument being that, the evidence of PW1 was wate_r tight as she explained in detail I as to how the monies were taken after \receiving instructions from the I . I . appellant. According to Mr. Kajungu, PW2 mad~ reference to the letter which had instructions to reverse the order. It was PW2 who was instructed to back date the letter and therefore, the tendering of the letter as evidence h~d no problem. 5 ( f ' Submitting further, Mr. Kajungu averred that, PW3 testified that, she did not witness the so called "client" signing the document. He also u maintained that, according to PW7, on the fateful day, there was money - transfer from Nyanza

branch to Bugando branch which was done against the procedures. Responding to _the issue of the witnesses who had interest to serve, 1 Mr. Kajungu submitted that, it is a rule of practice under section 141 (a) i and 142 of the evidence Act that, an accomplice shall'_ be a competent witness against an accused person; and conviction is not illegal merely ; because it proceeds upon the uncorroborated testimony of an accomplice. ' On the issue of the hand writing report, Mr. Kajungu' argued that, .the issue is on the treasury slip which purported to credit a cyrtain amount in the client's account, which the appellant used_ it. According to PW4 and . ' ; PW7, monies were reversed as if credited mistakenly~ Si.nee the money was taken_ and refunded by the .bank, there still remains a. gap. It is thus· Mr. Kajungu's submission that, the prosecution had provedj its case to the standard required, which is beyond reasonable doubt and therefore, he prayed that the appeal be dismisse~. 6 I In his brief rejoinder, Mr. Makwega submitted that, out of the eleven prosecution witnesses, non had proved that monies were taken. It is only PW7 who showed that there was theft but he did not explain how the appellant was implicated. As for Exhibit Pl, Mr. Makwega argued that, there is no proof that the appellant authorized the same. It is for these reasons that Mr. Makwega prays that the appeal be

allowed. As intimated earlier on, the appellant's grievance boils to one point, that, there was insufficient evidence adduced at the trial to warrant conviction. I will start with a general premise that, it is an elementary rule of law that, in order to convict an accused of theft, the prosecution must prove the existence of actus reus which is specifically termed as asportatiof'l and mens rea or animus furandi/ if any element of the actus reus is missing then there is no liability. More so, the accused's conduct must be "voluntary/rif he is to incur liability. Now, in order to ascertain the guilt or otherwise of the appellant herein, it is apposite that I revisit the testimonies and the evidence tendered in court. According_ to PWl on 31/9/2010 she received a letter informing her that she will be acting as business manager in place of Mr. Steven Harry Mboma who had traveled. On 1/10/2010, she reported at work and notified l~~ the appellant that, she had not been handed over her new duties including being handed over the strong room. The appellant told her to continue with her duties and if there was any prci,blem, she should report to him. As it transpired, on the evening of 1/10/2010, she received monies from the ; 4 cashiers. She counted ·the same and went to the strong room with the cashier. When they compared the figure on the book, the bank system and physical cash, they

noted that, there was a difference of T.shs. 127 Million. According to PW1 upon noting the deficit, she reported the matter to. I the appellant on the following morning. fhe appellant told PW1 that he I t will discuss the matter with the branch cohtroller (Mr. Mboma). On 28/11/2010 PW1 was again acting business manager. Having· finished the day's work, she started balancing the books and found that, in the system there was a balance of T.shs. one biUion th~ee hundred and sixty million three hundred fifty thousand. But when she counted the I physical cash, she realized that there was :r.shs. one billion four hundred thirty two Million and five hundred thousand, making a difference of T.shs. one hundred and seven million eight hundred fifty thousand. As usual, PW1 reported the deficit to the appella_nt who told her that he will mqke a . . th follow up. According to PW1, on 4 December, 2010 while in the office, OOJs cJ she received a letter from the appellant which instructed her to prepare a letter to transfer monies from CRDB Nyanza Branch to CRDB Bugando Branch for an amount of T.shs. 107,850,000. After preparing the said transfer letter, she took it to the appellant, who was at Nyumbani hotel (Belmonte) and upon reading it, the appellant ordered PWl to backdate the letter to read 3/12/2010 instead of 4/12/2010 since the transfer was supposed to be effected on 3/12/2010 and not

4/12/2010. PW1 complied and after effecting the changes, the appellant signed the letter, so as PW1. The cash deposit form with reference No. 4467/CASH/90/2010 dated 3/12/2010 signed by the appellant and PW1 as vault custodians was tendered in evidence and admitted as Exhibit Pl. Exhibit Pl shows that, T.shs. 107,850,000 was repatriated to Bugando branch on 3/12/2010. The . form bears a ''received stamp// of Bugando Branch dated 3/12/2010 indicating that, cash was received by Bugando Branch on 3/1~/2012. Now, one wonders, if at all the appellant never ordered. the preparation of Exhibit Pl, nor signed the same, one could have expected an.objection to . . . ·. . r!/1- be raised at the tendering of Exhibit Pl. By accepting the tendering of 9

I I I 'I j . " .G12J tbrJ /tl__ Exhibit Pl, it means that the appellant admitted to have. given the orders and signed Exhibit P1. t Secondly, we have the testimony of PW3, one Stella Wilbard Segu ·' I \ who was a bank teller at Bugando Bran.ch. She told the court how on 4/12/2010 the appellant told her that they had received bulk money from one customer and that the money was ·deposited in the strong room. According to PW3, the appellant ordered her to prepare a treasury slip to which she did, she signed it and gave, the appellant to sign as first. ' custodian. The appellant took the slip and told PW3 that he was going to give it to Dismas to sign as second custodian. PW3 further narrated that, the appellant later in the day ordered h~r to prepare a treasury out, amounting toT.shs. 150,000,000/=. She complied and thereafter, Dismas, brought cash T.shs. 10,000,000/= and PW3 received the same and the _appellant left with the slip.The treasury slip ,of 4/12/2010, the treasury slip paid out dated 4/12/2010, the cash slip of 4/12/2010 valued at T.shs. l 107,850,000/= and the cash slip valued at T.shs. 140,000,000 of 4/12/2010 were all admitted as Exhibit P6 collectively. During cross examination PW3 told· the court that, the_ cash deposit of T.shs. 107,850,000 is normally handled by custodians only. She was only .. ', ·. ~} -given the account number which was in transit account. As

a teller, she had no obligation of checking whether the money had been paid rather, it was the duty of the custodian to do so. The testimony of PW3 is corroborated by that of PW7one Aloyce Leonard who is an internal auditor. PW7 told the court that, on 4/12/2010 he made a surprise check at the Bugando Branch strong room. During the check, he discovered that, there was an excess of T.shs. 107;850,000/=. When he asked one Mr. Mboma, he was told that, the said money had been transferred to Bugando strong room from Nyanza Branch on 3/12/2010, showing him Exhibit Pl. In actual fact, this· information appears to have confirmed the explanation of ~ashT.shs. 107,850,000/= which was transferred· from Nyanza Branch to Bugando Branch, upon directives of the appellant. Not only that, according to PW7, on 6th December, 2010 while still on c;:heck, they randomly picked electronically. one of the big transactions posted at Bugando Branch on 4/12/2012 and reviewed its respective vouchers. PW7 told the co.urt that, the biggest transaction o·n that day was that of T:shs. 140.0 Million debited into account No: 01]101680800 of New AMA Filling Station, which shows that,. the said custome·r withdrew cash -~ T.s\1s. 140.0 Million from the account. It is this transaction which was \ authorized by the appellant and posted by a teller, PW3, Stella Segu, at the Bugando Branch, on that day. According to

PW7, upon further scrutiny of the account, it was revealed that, the T.shs. 140.0 Million debited on the said account on 4/12/2010 had been credited on 6/12/2010 by a teller at Nyanza Branch to indicate that, the customer had deposited cash T.shs. 140 Million into his account. This teller, PW2, Jesca Nestory, told the court that, she was instructed by Mr. Mboma to post that transaction because he (Mr. Mbona) had received cash into the strong room. According to PW2, when bulk cash is received into the strong room and a teUer is supposed to post it a write a treasury in slip, and once treasury in slip is signed by the strong room cash custodian, the transaction is concluded. Exhibit P9, which is the Account statement for New AMA filing station bears testimony to the said transaction. ·This piece of evidence clearly shows that, on 4/12/2010, an amount of T.shs. 140,000,000/= was debited from account No. O1J1168008, and on ··6/12/2010, the same . . statement clearly show·s that, the same amount of. money was reversed ·. and then credited into the account. All this goes to show that,· the debit . . . (Jb-- 12 .;... --- ana credit done in this bank account was done under the directions of non other than the appellant. PW6, Ally Mohamed Adon who is the owner of this account, testified that, he has never been to CRDB Bugando Branch and that he has always been transacting at Nyanza

Branch and most of his · transactions are done by cheques and not by cash withdrawal slips. The evidence of PW6 explains what PW3 did on that day. Which ' means, on that day, there was no money received in that account since it was the appellant who told PW3 that he had received bulk money in his office, something which was not true. Believing his boss, PW3 prepared the treasury in slip and thereafter posted the amount on the system as directed,. while in fact there was no money at all. ~W2's testimony is also ·i. corroborated with that of i>WS. PWS who was the branch controller testified that, transfer of monies from one branch to the other is normally done through the Mwanza branch which was the centre for rec~iving monies. PWS ~estified that, if there was any branch that needed cash, they request from Mwanza branch. When the Mwanza branch· receives . the request they process it and if there isn't ' . enough money, they request from the · Bank of Tanzania and upon . receiving the same, they communicate with security group \•vho are their . yif? agents for money transfer, who then transfers the money to. the required branch. It is the manager of Mwanza branch who writes a letter forwarding the said money to the requisite branch. Once money is received by the branch, the said branch manager acknowledges by signing on the receipt. During cross examination, PWS testified that,

ha_ving perused Exhibit Pl which was signed by the appellant and PW1 he knew that, the procedure for transferring funds was not followed although th€= monies were received at Bugando branch. From the above, what struck me most is the evidence of PW7, the internal A~ditor. I think he is a witness of the truth. ~is det~iled report was tendered in evidence (Exhibit P 8) ·and which was not objected to by the appellant. PW7 did the physical check and also had an opportunity of interviewing the bank staff from both branches i.e. Nyanza and Bugando, including the appellant himself. According to PW7, when questioned, the third accused, one Dismas Ndaliko, who was the second custodian of Bugando branch vault cash, the first being the appellant. Mr. Ndaliko admitted that ~e never received money on 3/12/2010 as_ alleged, but that he had been given a letter by the appellant which letter was back dated .. According to Mr. Ndaliko, on that day, the appellant sent him a delivery v~l-=4 I . I • I note Ref. No. 4467/CASH/90/2010 for T.shs. 107,850,000/= and requested rd that it be stamped to read as if it was received on 3 December, 2010, which would mean that Bugando branch received :cash T.shs. 107,850,000/=from Nyanza branch on 3/12/2010. This piece of evidence tallies with that of PW1. · Likewise, as far as PW3 was concerned, she said that she had credite.d inter branch cash transit to show

receipt of T.shs. 107,850,000/= which voucher was credited at Bugando Branch from Nyanza Branch. When asked if she received the money, PW3 said she did not receive the money, rather, it was her "boss" the appellant who was the custodian, and who purportedly, received the money and she only received .instructions to enter the transaction into the bank re.cords. From the totality of the evidence adduced, I have no iota of doubt that, the above evidence and Exhibits tendered during· the trial were sufficient to convict the appellant. T~e appellant never. disputed the exhibits tendered in court. For example, in his defence, he never challenged the authorization of withdr9wal of T.shs. 140,000,000/= in account No; 01]1016800800 of New AMA filling statjon, nor did he ' ' challenge Exhibit PS which was tendered by PW7 an internal auditor who j)Ls-... . ' I . . did the snap check. The appellant also did n~t challenge the testimony of . ➔ • · PW1, PW3 and also that of PW4 who clarif,ied on the procedure used by 1 I 0 1 the bank in transferring funds inter branch 1n cases where a branch has excess or less monies, in the implementation of its duties. The above notwithstanding, the testimony of DW3 is also illuminating and was not challenged by the ?ppellant. According to DW3, on 4/12/2010, the appellant went to his offke (strong room) at Bugando ' Branch and requested him to sign a

treasury slip in, and he did. Later, he ' came and requested him to sign, as custodian another form, a treasury slip out which had already been signed and stamped. ' DW3 signed the same . which had a transaction of T.shs. 140,000,000/= and did not doubt-them because they came· from the appellant (manager). As a branch manager, he ought to have known and followed the procedures. The evidence of DW3 is complemented with that of PW3 as to what transpired on that day.· ' The totality of the testimonies and th~ exhibits tendered in the trial court leaves me with nq doubt that, the appellant is guilty a~ charged. I find the evidence from the prosecution witnesses overwhelming as to how the appellant a.ttempted to conceal the discovery of the stolen monies. The .. : ·~ testimonies of the prosecution witnesses were corroborated with the documentary evidence which was admitted by the trial · court, and testimonies of the accused persons. It is settled principle pf law that, every witness is entitled to credence and must be believed u~less there is good and cogent reasons for not believing him. It is now common for the court to deduce intention to commit an offence from. the conduct of the accused person. The cqnduct of the appellant in attempting to conceal the theft shows his ,mens rea in committing the offence, and therefore an inference is drawn to that effect. In fact, the conduct

of instructing PW1 to make a false document, Exhibit Pl bearing his signature, purporting to transfer T.shs. 107,850,000/=: from Nyanza to Bugando branch shows how crafty the appellant was. As a custodian he was duty bound to know the procedures of handling customers accounts and also transferring monies ·inter branch. It is obvious that the appellant defrauded the bank by falsifying documents · and undertaking fictitious transactions in an effort to conceal. the amount of money he had misappropriated. · Before penning off, I wish to make a remark on the handwriti'ng expert. According. to PW3, the forged document was brought to her by the ~ .., appellant alleging that the customer had already signed. PW3's evidence • was corroborated by Dismas Ndaliko who was present when the appellant u gave PW3 the said document. PW3 testified that she was conversant with the appellant's signature. It is trite that, the. evidence of a person who is ·conversant with the accused person, is as good as more than of a handwriting expert. (See: Joseph Mapema V.R [1986] TLR 148. It therefore goes without saying that, since the appellant admitted that PW3 was conversant with his signature, and since the appellant told the court that he had no grudge against PW3, then there is a strong inference to show that, the forged document was signed by the appellant as confirmed by the handwriting examin·er.

Likewise, since the said document was ·in the exclusive possession of the appellant at the time when it was forged, then, this court is entitled to draw a inference that it was the appellant who forged the same (See: Chokwe .v. R [1969] EA 23). From the above series of false transactions which were proved by the prosecution witnesses together with the defence testimonies that it has been observed that, the uttering was made by the appellant in order to co11ceal the stolen monies to the detriment of CRDB bank. I am therefore satisfied that, there was en.ough evidence to warrant a conviction~ afore reasons, I find that the appeal has no merit and it is therefore dismissed. Right of appeal explained.

JUDGE Delivered at Mwanza This 8 th September, 2014 19