director of public prosecution zanzibar vs zalha abdulrahmna takadir 2010 tzca 125 25 november 2010

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR (CORAM: MUNUO. 3.A.. KILEO. J.A. And BWANA, J J U CRIMINAL APPEAL NO. 121 OF 2010 DIRECTOR OF PUBLIC PROSECUTION ZANZIBAR...................... .. APPELLANT

VERSUS ZALHA ABDULRAHMAN TAKADIR................................................. RESPONDENT (Appeal from the Judgement of the High Court at Zanzibar) (Makunqu, J.) dated the 28th day of January, 2010 in Criminal Appeal No. 21 of 2009

JUDGEMENT OF THE COURT 15th & 25th November, 2010 MUNUO, J.A: The Director of Public Prosecutions, through the services of Mr. Salum Toufiq Alii, learned advocate, is challenging the decision of the High Court of Zanzibar in Criminal Appeal No. 21 of 2009. In the said Appeal, Makungu, J. quashed the conviction and set aside the three year imprisonment sentence imposed on the respondent, the accused in Criminal Case No. 139 of 2007 in the Mwera Regional Court, Zanzibar. In the trial court the respondent was charged with the offence of false accounting c/s 322 (a) of the Penal Act, No. 6 of 2004 of the Laws of Zanzibar which states verbatim: "322. Any person who, being a clerk or servant, or being em ployed or acting in the capacity o f a clerk or servant, does any o f the acts follow ing with intent to defraud, that is to say: (a) Destroys, alters, m utilates or falsifies any book, document, valuable security or account which belongs to or is in the possession o f his employer, or any entry in any such book, document or account, or is privy to any such act; (b) ............. (c) .............. 2 Is guilty o f a felony, and is liable to im prisonm ent for a term not exceeding seven years. It was alleged by the prosecution that the respondent, an accounts clerk of ZAPOCO, sometime in October, 2004 and September, 2006 at Dole in Zanzibar, altered the account books of ZAPOCO and

stole Tanzania shillings in the sum of sh.40,000,000/= the property of ZAPOCO. The respondent denied the charge. She was found guilty, convicted and imprisoned for three years by the trial court. However, the decision of the trial court was reversed by Makungu, J. in the High Court of Zanzibar in Criminal Appeal No. 21 of 2009. Aggrieved by the acquittal of the respondent by the learned judge, the Director of Public Prosecutions engaged Mr. Salum Toufiq Alii, learned advocate, to prosecute the present appeal. The facts of the case are simple. The respondent, Zalha Abdulrahman Takadir, was employed by ZAPOCO as a cashier and book­ keeper of the company account books. ZAPOCO produces chicken, eggs and chicken feed at Maruhubi and Kizimbani, Zanzibar. PW1 Dr. Salim Said Nassir stated that the company had a chief accountant under whom the 3 Respondent worked. In September, 2006, PW2 Emanuel Thomas Tete, audited the account books of the company and discovered a discrepancy of sh.40,000,000/=. It was the evidence of PW2 that in the cash book (costs, sales and expenditure) in terms of income and expenditure was correct but the balance was different. PW2 stated that a total of sh. 39,245,000/= was missing from the cash book between August, 2005 and September, 2006. The Managing Director stated that the missing cash was Tsh.39,000,000/=. The investigating officer, PW 4 D. 2647

Detective Sergeant Kombo said that the sum of Tsh.40,000,000/= had been embezzled by the respondent. Hence the present charge of false accounting and stealing. The audit report compiled by PW2 Emanuel Thomas Tete, was, however, not tendered as an exhibit to substantiate the false accounting. The respondent gave a sworn defence denying the charge. She said that on the instructions of her boss figures were sometimes altered to reduce the profit margin, impliedly to evade taxes. Before us, learned counsel for the appellant Director of Public Prosecutions, consolidated the three grounds of appeal namely- 1. That the learned judge erred in law to ignore the evidence o f PW2.

2. That the learned judge erred in failing to consider the evidence o f PW3 and PW4 who proved the change o f figures in the books.

3. That the learned judge erred in failing to consider the prosecution side had proved the case beyond reasonable doubt The above grounds of appeal, counsel for the appellant observed, can be reduced to one ground, that is, the learned judge erred in holding that the charge was not proved beyond all reasonable doubt. Counsel for the appellant contended that PW1, PW2 and PW3 established beyond all reasonable doubt that the respondent falsified the account books of the company so the learned judge should not have 5 reversed the conviction and sentence. The writing of the altered books of account, counsel for the appellant contended, was similar to the specimen writing of the respondent. The handwriting expert confirmed the same in his report, Exhibit 1, counsel for the appellant submitted. In this regard the learned judge should have upheld the conviction, he maintained, urging us to quash the decision of the High Court and restore the decision of the trial court. Mr. Patel, learned advocate for the respondent, supported the decision of the High Court. To begin with, he contended that the proceedings of the trial court are a nullity for non-compliance with the mandatory provisions of section 218 (3) of the Zanzibar Criminal Procedure Act, No. 7 of 2004, in that the trial court failed to address the respondent on her right to recall witnesses for further cross-examination when the

new charge was substituted after two prosecution witnesses had testified. The omission, counsel argued, was a fatal irregularity which rendered the trial a nullity. 6 Furthermore, counsel for the respondent contended, the audit report and falsefied account books were not produced at the trial to prove the case beyond reasonable doubt. Mr. Patel cited the case of Nathubhai Thako versus Republic (1957) E.A 632 wherein the then Court of Appeal for Eastern Africa, held that documents purported to have been falsefied should be specifically proved. Conceding, in reply that the trial court failed to comply with the provisions of section 218 (3) of the Criminal Procedure Act, No. 7 of 2004, and that in that situation the trial proceedings ought to be nullified, Mr. Salum Toufiq nonetheless urged us to order a retrial in the event of the trial being nullified. The issue before us is whether the failure of the trial court to comply with the provisions of section 218 (3) of the Criminal Procedure Act rendered the trial a nullity. Section 218 (3) of the Zanzibar Criminal Procedure Act, 2004 allows the prosecution to vary, and or amend the charge. The section states; 7 "218 (1) Where at any stage o f a tria l before the dose o f the case for the prosecution, it appears to the court that the charge is defective, either in substance or form, the court m ay make such order for the alteration o

f the charge either by way o f amendment o f the charge or by the substitution or addition o f a new charge as the court thinks necessary to m eet the circum stances o f the case. (2) where a charge is altered as a foresaid, the court sh all there upon ca ll the accused person to plead to the altered charge. (3) where a charge is altered under this subsection the accused may demand that the witnesses or any o f them be recalled and give their evidence afresh or be further cross-exam ined by the accused or his advocate and, in such la st m entioned have the right 8 to re-exam ine any such witness on m atters arising out o f such further cross-exam ination..." The record shows that on the 21st April, 2008, the prosecution applied for, and was granted leave to amend the charge. A new charge was substituted and the respondent pleaded not guilty to the new charge. By then P.W.l and P.W.2 had already testified. The record is silent on whether or not the trial magistrate complied with the provisions of section 218 (3). We are of the view that if the trial magistrate had addressed the respondent on the provisions of section 218 (3) of the Criminal Procedure Act, the record would reflect the same. The omission to comply with the provisions of section 218 (3) of the Criminal Procedure Act, in our opinion, renders the trial a nullity. Indeed counsel for the appellant conceded the same but

urged us to order a retrial. We are of the settled mind that since the audit report which initiated this case was not tendered at the trial; there is no substantive evidence to justify ordering a retrial. 9 In the light of the above, we nullify the trial for non-compliance with the mandatory provisions of section 218 (3) of the Criminal Procedure Act, 2004. We make no order for a trial de novo. In the result, we dismiss the appeal. DATED at ZANZIBAR this 25th day of November, 2010 E. N. MUNUO

JUSTICE OF APPEAL E. A. KILEO

JUSTICE OF APPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. 10