dpp vs hasnain mohamedi murji others 2008 tzhc 122 14 march 2008

IN THE HIGH COURT OF TANZANIA AT MTWARA APPELLANT JURISDICTION ECONOMIC CRIME APPEAL NO. 1/2007 (ORIGINAL ECONOMIC CRIME CASE NO. 1/2006 OF THE DISTRICT COURT OF MTWARA AT MTWARA BEFORE: A. KALLI ESQ R. MAGISTRATE) THE D .P .P ---------- APPELLANT VERSUS I. HASNAIN MOHAMEDI MURJI & 3 OTHERS ------------ RESPONDENTS Date of Last Order: 21/01/2008 Date of Judgement: 14/03/2003 JUDGEMENT SHANGAL1, J . This is an appeal by the Director o f Public Prosecutions against the decision o f the Mtvvara District Court in the E c o n o m ic Crim e Case N o. 1 ol 2006. In that case the respondents nam ely H A S N A IN M O H A M E D I M U RJI, U W E S U A H M A D C H I P A K A , M E T H O D M U H A G A C HI M A R W A ,, C H A M B A S A ID l B I G A M B O , S A L U M B A K A R I N A M G U N G U and M U C H U U Z I M O H A M E D I L I M B A N G A w ho shall be referred to in this judgement as the 1st to 6 th respondents respectively w ere jointly and together charged with two counts under the Penal C o d e and an altenative count u n d e r the E conom ic and O rganized C rim es control Act, 1984. O n the first count, the accusations leveled against the accused persons involved the offence o f conspiracy u nder section 384 o f the Penal Code, alleging that on or about 4 th day o f N o v e m b e r 1999 at T a n d a h i m b a District Council, the responde nts jointly and together conspired to erroneously effect p a y m e n ts o f T sh.4,9 10,817.2 0 vide chequ e No. 0 0 3 0 0 6 4 8 0 to one Hasnain M o h a m e d Murji. T he second c o u n t against the respondents w as theft under section 258 and 265 o f the Penal Code, alleging that on or about 4th day o f N o v e m b e r 1999 at T a n d a h im b a District, the respondents jointly and toge ther did steal T s h s . 4 , 9 10,817.20 vide cheque No. 003006480 the property o f T a n d a h im b a District council, the am ount w h ich w as w ith d ra w n by H asnain M o h a m e d i Murji at the National M ic ro fin a n c e B a n k N e w a l a Branch. T h e third altenative count was o cc a sio n in g loss to a specified authority u nder p arag rap h 10 o f the first sc h ed u le to and section 60 o f the E c o n o m ic an d O rganized Crim e Control Act, 1984. The b a c k g ro u n d giving rise to this appeal m a y briefly be stated as follows. S o m e tim e s in 1999 PWI, A b d u ra h im A budu Salim, the o w n e r o f the co m p an y k now n as A B D U R A H I M E N T E R P R I S E S d ecided to change the status o f his enterprises to a partnership enterprises. He managed to ap p ro ac h and convince two p rom inent b u sin e ssm e n namely H asnain M o h a m e d Murji, the now 1st respondent and Uwesu A h m a d C hip aka, the n o w 2 nd respondent to jo in his firm. Together they agreed on terms, shares, contributions, status o f each partner and m ode o f operation. Eventualy the m e m o r a n d u m o f und erstanding and other legal docum ents to establish the partnership were duly prepared hence Partnership A g re e m e n t, cxibit PI. T he partners agreed to maintain 2 the same n am e o f the firm but decided to divide responsibilities am ong th em selves, w here as PWI was to deal with office m a n a g e m e n t matters, while the 1st r e sp o n d e n t w^as to deal with finance matters and 2nd respondent w as to deal with daily operations. Within the s a m e year and through the efforts of both partners, especially the 1st and 2 nd respondents the firm w a s a w a rd e d a tender to fum igate c a sh e w n u t g o d o w n s at M a h u t a Division by the T a n d a h im b a District Council at the tune o f T s h .6,547,756.28. That Fumigation contract was signed by the 2 nd r esp o n d e n t on b e h a lf o f the firm and the 3 rd respondent M e thod M u h a g a c h i M a r w a on b eh a lf o f the T a n d a h im b a District Council. At that time the 3rd respondent w as a District Executive Director o f T a n d a h in m b a District Council. In A u g u st 1999, the operational Director o f the firm, liw esu A hm ad Chipaka, the 2 nd respondent c o m m u n ic a te d with the T a n d a h im b a D istric t Council Officials req u estin g for an advance paym ent for the Fum igation w ork at the tune o f Tsh. 1,636, 939.08. In S eptem ber 1999 the request was granted and prom ptly the firm was duly paid that a m o u n t vide v ouche r No. 3/9 and cheque No. 003006426. The ch e q u e w as collected by the 2 nd resp o n d e n t U w esu A hm ad C h i p a k a on b e h a lf o f the firm. The centre o f controversy in the w h o le matter was ignited by the mode o f p a y m e n ts o f the final sum balance o f T s h s .4 ,9 1 0 ,8 17.20 after the com pletion o f the work. In processing the paym ents o f that final instalment the T a n d a h im b a District Council prepared a paym ent vouncer (Kxibit P8) in the n am e o f the firm but the ch e q u e (Hxibit P9) was prepared in the nam e o f the 1st respondent w ho w as able to collect the m oney from the bank. 3 It w as con ten d ed that, that unprocedural process o f p ay m en t was conspiraciously facilitated by the 1st and 2 nd respondents in collaboration with T a n d a h im b a District Council Officials nam ely; M ethod M u h a g a c h i M arw a, the 3,d respondent w h o was w orking as the District E xecutive Director; C h a m b a Saidi Bigam bo, the 4 th respondent w ho w a s the District Treasurer officer o f the council; Lt corner Salum Bakari N a m g u n g u , the 5th respondent w h o w as the secretary and c h a irm an o f T a n d a h im b a District Council and M chuuzi M o h a m e d i L im bang a, the 6th responde nt w ho w as the District p la n n in g officer o f the council with intent to steal from the T a n d a h im b a District Council. A fter a full blow n trial involving five prosecution w itnesses and several defen c e w itnesses supported by a go o d n u m b e r o f exhibits from both sides, the trial Resident Magistrate in her well co m p o sed j u d g e m e n t was satisfied that there w as no sufficient prosecution e v id en ce to prove the charges leveled against the respondents and con sequently acquitted all o f them. T he D irector o f Public Prosecution w as dissatisfied with that rd decision hence this appeal. In his notice of appeal filed on 23 O ctober 2006, the Director o f Public prosecutions indicated to appeal against the acquittal o f all accused persons. H ow ever, in his petition o f appeal and the subse quent subm issions the Director o f Public P ro se c u tio n s argued against the acquittal o f the 1st to 4 th respondents only. In this appeal the appellant was represented by Ms. Shio, Learned State A ttorney while the respondents were represented by Mr. C haula Learned A dvocate o f Dar es salaam. The appellant petition o f appeal contain five ground o f appeal, namely; 1 That, the Learned trial Resident Magistrate grously misdirected h e r s e lf in failing to appreaciate the prosecution 4 evidence w hich had proved the case against the respondents in all counts beyond all reasonable doubt. 2. That, the Learned trial Resident Magistrate erred in law by requiring A u dit Report in pro ving that the respondents had com mitted theft and occasioned loss to T a n d a h im b a District Council. 3. That, the learned Trial R esident M agistrate grossly misdirected h e r s e lf and erred both in law and fact by holding that this matter w a s a civil case rather than a criminal case. 4 That, the L ea rn e d Trial R esident M agistrate grossly misdirected h e r s e lf both in fact and in law in acquitting the respondents on the ground that, the re s p o n d e n t’s act o f preparing cheque No. 0 0 3 0 0 6 4 8 0 in the nam e o f the 1st respondent instead o f the firm did not a m o u n t to conspiracy to steal, and 5. That, the L ea rne d Trial R esident M agistrate erred infact in holding that PW1 agreed with his co-partners that is 1st and 2 nd respondents that the second instalm ent be paid in the nam e o f the 1st respondent. F ollow ing the parties request this appeal w as argued by way o f written su bm issions w hich w ere timely filed by the parties save for a rejoinder w h ich w as w aive d by the appellant. H aving gone through the parties subm issions and due to the fact that all grounds o f appeal are interwined 1 w ould prefer to deal with all grounds o f appeal concurrently. Ms. S h i o ’s first com plaint in the appeal is to the effect that the trial Resident Magistrate was w ro n g by holding the view that there was no stealing because the P l respondent acted in his capacity as an agent o f the firm and that he had all blessings and consent from his co-partners to collect the money. 5 In the foremost let me put som e issues clear. There is no dispute that ac cording to exibit PI both P W I, 1st and 2 nd respondents are both lawful partners with equal interests, rights and status in the operation o f their firm called A bdulrahim Enterprises. It is also undisputed that A b d u ra h im Enterprises (the firm) throug h the supervision o f the 1st and 2 nd respondents delivered fum igation services to the T a n d a h im b a District Council. In turn, there is evidence on record that T a n d a h i m b a District Council paid T s h . 4 , 9 10,817.20 for the fum igation w o r k in the nam e o f 1st respondent, a lawful and active partner o f the firm. The p a y m e n ts w ere also blessed and ap p ro v e d by his co-partner, the 2 nd responde nt w ho was the firms operations Director and the very person w ho signed the whole fumigation contract on beha lf o f his firm. T h e ta xing question is w ho is the actual com plainant and w hose m o n e y were actually stolen. W ere the alleged money stolen from T a n d a h im b a District council as indicated on the charge sheet or from A b d u ra h im Enterprises firm w h e r e the 1st and 2 nd respondents are part and parcel o f proprietors. W as there any scintilla o f prosecution evidence to suggest that, that am oun t o f T sh.4,910,8 17.20 w as actually stolen from T a n d a h im b a District Council or any audit report suggesting that the council had incurred a loss o f that am ount during the alleged period. In his submissions, Mr. Chaula, Learned A dv ocate for the respondent stated that the trial courts record o f proceedings is clear that there w as none. Indeed that is the position. A ccording to the evidence PW 4, PW’5, DW’3 and D W 4 the Councils accounts are audited by internal and external auditors in every financial years and yet there is no evidence from the auditors report or any other person to suggest or establish that there w as theft or loss or double paym ents w rongly effected in the C ouncils accounts within the alleged period o f 1999 or 2000. Mr C ha ula stated that even PWI 6 w ho h a p p e n e d to be the appellants key w itness testified to the effect that he did not k n o w as to w hether there w ere m o n e y stolen from T a n d a h i m b a District Council. His (PW I) m a jo r concern was that he w as not paid a balance o f his T sh .4,910,817.20. T he questions here is w h e th e r even PWI w as entitled to be paid that am o u n t o f m o n e y as a person taking into consideration that the firm w as already a partnership entity. It m u s t be re m e m b e r e d that PW I w as no lo nger the sole proprietor o f the firm having invited the 1st and 2 n respondents as equal partners. It w as therefore upon the firm to take legal action as a firm against w h o e v e r contravened the term s and conditions o f the partnership agreement. Be it as it may, the crux o f the matter still revolves on the fact that the alleged a m o u n t o f money was paid direct to the 1st respond ent instead o f the firm. Mr. C ha ula correctly submitted that ac c o r d in g to the evidence on record the P l r esp o n d e n t was lawful partne r o f the firm dealing with finance matters. Secondly the p a y m e n ts w ere effected with the blessings o f the 2 nd respondent, a co-partner and operational D irector o f the sam e firm. Thirdly, a c c o r d in g to the testimony o f P W I before the trial court, it w as the p artners o f the firm who agreed from the beg in n in g that the 1st re s p o n d e n t should make a follow-up o f the balance from the Council. F outhly, it was the 2 nd respondent, a star player in the w hole transaction w ho signed both Exibits P2 and P4 authorised the cheque to be written in the name o f the 1st resp o n d e n t through a special request to T a n d a h im b a District Officials, to wit 3 ld and 4 th respo ndents and fifthly there is ample evidence that during all the period o f fum igation work all supervision and contacts with T a n d a h im b a District Officials was done by the 1st and 2 nd respondent. Such a formidable surrounding env iro n m e n t conclusively m ade the T a n d a h i m b a District Officials particularly 3 rd and 4th 7 respondent to believe that there w as nothing w rong to pay the m oney in the nam e o f the 1st respondent. PW 2, PW 3, P W 4 and PW5 categorically stated that such changes in paym ents are ordinary and possible w h ere there is a special request from the respective payee. T h erefo re the arg u m e n t by the Learned State Attorney that there w'as no piece o f evidence to substantiate respondents allegations that there was a consent or special request is mis conceived b ec au se it is the sam e prosecution w itnesses PW 2, PW 3, PW4 and PW 5 w h o testified before the trial court that the payments w ere effected follow ing the consent and special request from the respective payee. In addition, that prosecution witnesses evidence tallies with the ev idence o f D W I, D W 2, D W 3, D W 4 and D W 5 that a special request supported by the 2 nd respondent as a co-partner and operatio ns director o f the firm w'as made to T anda him ba District Council authority, to wit the District Executive Director and the District Treasurer, lt was also insisted that such special request need not be in written form because even orally made request is enough provide the applicant is known. On the other hand, I agree with Mr. C haula that even if that consent or authority w as not secured, the omission connotes a minor financial irregularity w'hich does not establish the offence o f conspiracy, theft or o cc ass io n in g loss. In other w ords the fact that the cheque w as written in the n a m e o f one o f the partners in business is not e noug h to establish the offences laid against the respondents. In the case with almost similar facts o f T H E R E P U B L IC VS. C H A R L E S K I E G L Z O (1984) TLR 106, a contract w'ork w as done and paym ent effected through one o f partners and not the firm, it was held that a mere discrepancy in the accounts perse does not constitute conclusive p r o o f o f theft. Ms. Shio, Learned State A ttorney went further to digest and elaborate on the issue ol the 11 and called in aid the provisions o f section 2 5 8( 1) (2) and 263 o f the Penal code. She contended that the money received by the Lst and 2 nd respondents were neither 8 deposited in the firm account nor used in any lawful activity o f the firm. T h at the allegations by the tw o resp o n d e n ts that they used the m o n e y for an o th er project at N e w a l a w as not supported by any evidence and therefore it is obvious that they conv erted the said m oney into their personal use. She insisted that the m o n e y were the property o f the firm and the mere fact that the respondents were partners, h en c e hav in g interest in the said m o n e y did not warrant them to use the sa m e at their will and wish. She con c lu d ed that this w as a clear theft and not civil dispute. This proposition sounds to be attractive but it refers me back to my earliar question, w hether the sum alleged stolen belongs to the T a n d a h i m b a District Council or the firm. In her submission the Learned State A ttorney is attempting to suggest that the stolen money w as the properly o f the firm and therefore the offence was co m m itted against the firms money. Mr. C h a u la Learned counsel for the re sp o n d e n ts correctly said no; he stressed that the present appeal e o n c en e d with the decision o f the Trial R esident Magistrate that acquitted the respondents o f allegation o f theft o f T and ahim ba District C o u n c ils money and not that o f the firm. Mr. C h a u la argued that even if the charge w ould have been related to the firms money yet on the basis o f Exibits PI and P4 the 1st and 2 nd resp o n d e n ts w ould have not been held responsible as they had by v irtue o f section 9 o f the Penal C o d e , a bonafide claim o f right as p ro p o u n d e d in the case o f the D irector o f Public Prosecution Vs. I lenry s/o R w e g ash a m ira (1973) LRT n. 15. O nce again, on point o f law and facts I agree with Mr. C h a u la ’s stance tiiat section 263 o f the Penal C o d e is inapplicable because the respondents were charged with the theft o f T an d a h im b a District Councils money and indeed they appeared and defended themselves before the trial court on that very charge o f stealing T sh.4,910,S 17.20, the property o f T a n d a h im b a District Council. In addition even if the respondents w ere charged for 9 stealing the firms money, yet on the basis o f their positions as lawful and active partners o f the same firm could have been exonerated u n d er section 9 o f the Penal C ode as discussed and elaborated in the case o f DPP Vs. Henry s/o R w e g a sh a m ir a (supra). T h e a r g u m e n t by the Learned State A ttorney that the trial Resident M agistrate failed to consider the prosecution evidence in exhibits PI 1 and P I 2 w hich are the cautioned sta tem ents o f 3 rd and 4th resp o n d e n ts docs not advance the prosecution case any further, because in those exhibits the respondents did not confess to have stolen the T a n d a h im b a District Councils m one y and indeed there was no a m o u n t o f m oney stolen from T a n d a h im b a District Council. The ev idence indicate that the 3 ld and 4 th respondents perform ed their duties in good faith believing that they were dealing with the responsible partners o f the firm. The fact which is still subsisting because the 1st and 2nd respondents are still lawful partners o f the firms. In the final analysis it is apparent that the fumigation work w as properly done and paym ents effected to the firm th rough the 1st r e s p o n d e n t’s nam e after the authorization from the firm. Indeed that am o u n t was paid to the majority partners o f the firm, m eaning the 1st and 2 nd respondents as the partnership w as constituted with only three partners. As 1 have shown above there was no evidence to establish that any money was stolen from T a n d a h im b a District Council coffers. Likew ise, there was no evidence to suggest any conspiracy to defraud the Council nor a shred o f evidence to establish the offence o f occasioning loss to the specified authority. Before 1 part with this appeal let me point out my few observations. To me this is an unusual case. It is unusual in the sense that the Director o f Public Prosecutions is striving to 10 interfere and resolve the problem s o f the partners arising out o f their partnership agreement. There is no dispute that the 1st respondent in collaboration with his co-partner, the 2 nd respondent collected ine alleged am o u n t from T a n d a h im b a District Council on behalf of their firm after completion o f the agreed work. At the sametime, in his strong defence the 1st respondent categorically expressed his dism ay and disa ppointm ent as to w hy the matter w as not left to the partners and be resolved in accordance with the terms o f their partnership agreem ent (Exibit PI) particularly clause 16 which pro v id e lor arbitration process. I do agree that in law every partner is an agent o f the firm and partners are required to be ju st and faithful to each other but in my h u m b le opinion it is not the duty o f the Director o f Public Prosecution to prematurely interfere and attempt to resolve problem s arising out o f partnership arrangements through criminal charges. Conflicts arising out o f partnership a g re e m e n ts should be left to be resolved and dealt w'it'h by the parties in terms o f their partnership agree m ents before resorting to criminal charges. With those remarks, this appeal must fail because the evidence on record and the circum stances o f the case justified the Learned trial Resident Magistrate to acquit all the respondents on all offences. I therefore uphold the decision o f the Trial Resident Magistrate that there w'as no sufficient and cogent prosecution evidence to prove the charges beyond all reasonable doubt against the respondents. Por the above reasons this appeal is dismissed in its entirety. >\ z M.S. S h a ^ a l i JUDCJE 14/3/2008 Judgem ent delivered todate 14th M arch 200 8 in the presence o f Mr. Hyera, Learned State Attorney for the appellant and Mr. Chaula, L ea rne d advocate for the respondents. R ig h t o f a p p e a l E x p l a i n e d .