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IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: KOROSSO, J.A., KEREFU, J.A., And MDEMU, J.A.) CRIMINAL APPEAL NO. 82 OF 2023 THE DIRECTOR OF PUBLIC PROSECUTIONS............................... APPELLANT VERSUS HASSAN ABDALLA MITAWI..................................................... 1st RESPONDENT MAMY JAMES MATATA..,......................................................... 2nd RESPONDENT (Appeal from the Decision of the High Court of Zanzibar at Vuga) (M oham edJ.) dated the 5th day of January, 2018 in Criminal Case No. 14 of 2014 JUDGMENT OF THE COURT 22nd & 30th April, 2024 KEREFU, 3.A.: This appeal stems from the decision of the High Court of Zanzibar at Vuga where Hassan Abdalla Mitawi and Mamy James Matata (the first and second respondents respectively) were charged jointly and severally with two counts. On the first count, the respondents were jointly v charged with the offence of tax evasion contrary to sections 44 (1) (e), (2) and 61 of the Zanzibar Anti-Corruption and Economic Crimes Act, No. 1 of 2012 of the Laws of Zanzibar (ZACECA). It was alleged that on different times in the year 2014 at Zanzibar Broadcasting Co-operation premises in the Urban District within the Urban District West Region of i Unguja, the respondents intentionally conducted a business of selling cars without being registered as taxpayers and paying due taxes to the appropriate tax authorities in Zanzibar. On the second count, which was for the first respondent alone, he was charged with the offence of abuse of office contrary to sections 53 and 61 of the ZACECA. It was alleged that on the same time and place, the first respondent, who was then the Director General of the Zanzibar Broadcasting Co-operation, intentionally used his position to conduct a business of selling cars for the purpose of obtaining undue advantage for himself. Both respondents denied the charge laid against them and therefore, the case had to proceed to a full trial. To establish its case, the prosecution paraded a total of six witnesses and one physical exhibit. On the other side, the respondents relied on their own evidence, summoned one witness and tendered one documentary exhibit. In essence, the substance of the prosecution case, as obtained from the record of appeal is to the effect that, on 11th February, 2014, Rashid Said Suleiman (PW1), the investigation officer at Zanzibar Anti- Corruption and Economic Crimes Authority (ZAECA), while on his normal duty at around 11:00 hours, he entered into the premises of the Zanzibar Broadcasting Co-operation (ZBC) at Mnazi Mmoja where he found several motor vehicles parked. Some of the said motor vehicles had foreign registration numbers. PW1 suspected them being there and upon inquiry, Ali Mbarawa Kombo (PW3), an employee at the ZBC Administration Section as an Office Superintendent (OS), informed him that the said motor vehicles were for sale and belonged to the first respondent. Acting on his suspicion, PW1 relayed the information to his office. Abubakar Mohamed Lurida (PW6), also an investigation officer at ZAECA, took up the matter from PW1 for investigation. PW6 testified that, he visited ZBC premises where he found various motor vehicles With foreign registration numbers. Upon interviewing PW3 and Ahmed Haji Saadati (PW5), the store keeper and treasurer at the Zanzibar Revenue Board respectively, PW6 was satisfied that the motor vehicles were owned by the first respondent. However, PW6 asked for the phone number of the second respondent from Amir Ali Amir (PW2), the former procurement officer at ZBC, as at that time, the first respondent was away. Upon calling the second respondent and posed as a buyer, they started negotiating the sale deal of the said motor vehicles. At that time, the second respondent was at Dar es Salaam but promised to come to 3 Zanzibar and meet him on 3rd June, 2014. They met on the said date at ZBC premises where PW2 handed over the keys of the said motor vehicles to the second respondent because at that time, the first respondent was abroad. The second respondent gave them the keys to inspect the cars and handed over some documents as she told them that other documents were with someone else whom she can find. While there, and before the completion of the said deal, two female police officers appeared and arrested the second respondent and brought her to ZAECA for interrogation. However, later on, she was released on bail and the six motor vehicles were seized and taken to Madema Police Station. Among the six seized motor vehicles, it was only the BMW of gray colour with Registration No. Z992 EU which was properly identified by PW6 during the trial and admitted in evidence as exhibit PI. In their testimonies, PW2 and PW3 stated that they were aware that the said motor' vehicles were parked by the first respondent for onward transportation to Dar es Salaam. PW2 added that the first respondent handed over the keys of the said cars to him and instructed him to give the same to his daughter, the second respondent who was to transport them to Dar es Salaam. PW3 also added that at the ZBC premises there were other cars that belonged to other employees of the 4 ZBC. That, the employees of ZBC were allowed to park their motor vehicles at the ZBC's premises and the procedure was only to ask for permission through him or the first respondent. Zuwena Omar Kesi (PW4), a business officer responsible for business licenses testified that there was no record of respondents being business persons. Likewise, Ahmed Haji Saadati (PW5), a supervisor from Zanzibar Revenue Board, informed the trial court that in their systems, they did not have the names of the respondents as registered taxpayers. That, the law prohibits conduct of business without being registered. In their respective defense, both respondents denied any involvement in the alleged offence. The first respondent, who testified as DW3, apart from admitting that he was an employee of ZBC in the capacity of Director General and that he used to park his motor vehicles at the ZBC premises, he denied to have committed the offences he was charged with. He clarified that he did not conduct any business of selling cars at the ZBC premises and he never evaded any tax as he paid all import taxes and that was why the said cars were released from the port. DW3 stated further that, he was a registered taxpayer with Taxpayer Identification Number (TIN) 116 - 576 -368 dated 2nd March, 2012. It was his further defense that it was a normal practice in their office for employees to park their motor vehicles freely in the office premises if there was a space. He thus denied to have any intention to conduct business at the ZBC premises as alleged. That, the said motor vehicles were sent by Farida Matata (DW2), his wife, for onward transportation to Dar es Salaam and were not intended to be sold in Zanzibar. The second respondent, who testified as DW1, testified that, she received a phone call from a person who told her that he knew her father and he wanted to buy a motor vehicle parked at ZBC. She informed him that the motor vehicles belonged to her mother and not her father. That person asked her to talk to her mother. She talked to her mother, who asked her to handle that person as she was away. DW1 travelled to Zanzibar and met the said person who wanted to buy a car. They went to the ZBC premises,, where the said person asked for documents for the said car which she did not have, as the same were with the agent who was in Dar es Saiaam. It was the further testimony of DW1 that, while still there, she was arrested. It was her defense that she did not conduct any business as there was no exchange of money and issuance of receipt. 6 DWl's and DW3's accounts were supported by DW2 who testified that the motor vehicles in question belong to her and she sent them to the 1st respondent from the UK and asked him to clear and keep them. That, she was informed by DW1 that there was a person who wanted to buy one of her cars, and she asked DW1 to assist her as she and DW3 were away., When the respective cases on both sides were closed, the presiding learned trial Judge summed up the case to the assessors who sat with her at the trial. In response, the assessors unanimously returned a verdict of not guilty to the first count for tax evasion. They were of the opinion that since the sale transaction was not completed, there was no tax evasion. They however returned a verdict of guilty to the first respondent on the second count. Nevertheless, the learned trial Judge, found that the prosecution has failed to prove both counts against the respondents at the required standard. As such, both respondents were acquitted. Aggrieved by that decision, the appellant has come to this Court on the following grounds: 1. That, the learned tria l Judge erred in law and facts by holding that the respondents did not engage in the business o f selling cars a t ZBC premises, the workplace o f the 1st respondent; 2. That, the learned tria l Judge m isdirected herself by holding that I the 2Pd respondent had no authority to se ll the cars which i legally belonged to the 1st respondent as the legal owner; 3. That, the learned tria l Judge erred in law and facts by holding that the offence o f tax evasion was not proved beyond reasonable doubt against both respondents; and 4. That, the learned tria l Judge erred in law and facts by holding that the offence o f abuse o f office was not proved beyond reasonable doubt against the first respondent At the hearing of the appeal, the appellant, the Director of Public Prosecutions was represented by Mr. Said Ali Said, learned Principal State Attorney assisted by Mr. Shamsi Yasin Saady, learned Senior State Attorney whereas the respondents were represented by Mr. Salim Hassan Bakari Mnkonje, learned counsel assisted by Mr. Abdulkhalid Mohamed Ally, learned counsel. At the outset, the Court was informed by Mr. Mnkonje that the 2nd respondent passed away -on 19th April, 2023 in Dar es Salaam at Muhimbili National Hospital. To substantiate his submission, Mr. Mnkonje availed the death certificate of the 2nd respondent with Ref. No. i00000439615 dated 20th April, 2023 that, indeed the 2nd respondent is deceased. Accordingly, in terms of Rule 78 (1) of the Tanzania Court of Appeal Rules, 2009, we marked the appeal against the 2nd respondent to 8 have abated. Therefore, this judgment is in respect of the surviving respondent. Upon taking the stage to amplify on the grounds of appeal, Mr. Said intimated that he would argue the first, second and third grounds conjointly while his colleague, Mr. Saady would respond to the fourth ground. Submitting in support of the first, second and third grounds, Mr. Said argued that the trial court wrongly acquitted the first respondent on the first count while there was sufficient evidence to prove the charge against him. Specifically, in establishing that the first count against the first respondent was proved to the required standard, Mr. Said referred us to the evidence of PW1, PW3, PW6 and DW3 found at pages 23, 28, 35 and 44 pf the record of appeal. He specifically argued that, in his testimony, PW1 testified that when he visited the premises of the ZBC, he found several motor vehicles parked and some of them had foreign registration numbers. Upon inquiry, PW3 informed him that the said motor vehicles were for sale and belonged to the first respondent. Although, Mr. Said admitted that in his testimony, PW3 did not state that the said motor vehicles were for sale. He also referred us to page 55 of the record of appeal and argued that, the first respondent himself admitted to be the owner of the six cars which were parked at the ZBC premises for almost five months on transit to Dar es Salaam. Upon being probed by the Court as to whether or otherwise the said sale transaction was completed to prove that the first respondent conducted business of selling cars at ZBC premises, although, Mr. Said readily conceded that the sale transaction was not completed, he was still convinced that the charge against the first respondent was proved to the hilt. On the fourth ground, Mr. Saady faulted the learned trial Judge for failure to find that the second count against the first respondent was proved beyond reasonable doubt. He argued that, to establish the offence under that count, the prosecution was required to prove that, the first respondent intentionally abused his position in the discharge of his function for purpose of obtaining an undue advantage for himself or for another person. According to him, the said count was proved through the evidence of PW2 to PW6 together with the evidence of DW1 and the first respondent himself. He argued that, the first respondent used ZBC premises to park his motor vehicles for sale business (show room) for over five months contrary to Regulation 32 (a) and (e) of the Public Service Regulations of 2014. To bolster his argument, he cited the 10 case of Antony Mkala Chitavi v. Republic, Criminal Appeal No. 11 of 2014, Court of Appeal at Mombasa, Kenya (eKLR) at www.kenvalaw.ora/caselaw/cases/view/278338/. In conclusion and based on their submissions, he urged us to allow the appeal. In response to the first, second and third grounds of appeal, Mr. Mnkonje challenged the submission of his learned friend by arguing that, there is no evidence in the record to prove that the motor vehicles parked by the first respondent at the ZBC premises were for sale. He argued further that, parking cars at the ZBC premises was not an offence and the first respondent cars were parked to be transferred to Dar es Salaam. To clarify further on his point, he referred us to the evidence of PW2 and PW3 at pages 27 and 28 of the record of appeal who testified that parking cars at the ZBC premises was allowed and there were several cars of other ZBC employees which were parked there. He also referred us to the evidence of the-first respondent at page 50 of the record of appeal who testified that he was a registered taxpayer with Taxpayer Identification Number (TIN) 116 - 576 -368 of 2nd March, 2012. He insisted that, since before the trial court, the appellant failed to lead evidence to prove the issue of sale of the said cars as alleged, the learned trial Judge rightly found that the case ii against the first respondent was not proved to the required standard. He thus urged us to find that the appellants complaint under the first, second and third grounds is baseless. On the fourth ground, Mr. Mnkonje submitted that, since the appellant failed to prove the first count that the first respondent conducted business of selling cars at the ZBC premises, the second count cannot be said to have been proved as the same depended much on the establishment of the first count. He thus distinguished the Kenyan case of Antony Mkala Chitavi (supra) relied upon by Mr. Saady by arguing that the facts in that case are not relevant to the circumstances of this appeal, as in that case the offence of abuse of office was proved to the required standard which is not the case herein. As such, Mr. Mnkonje prayed for the entire appeal to be dismissed for lack of merit. In a brief rejoinder, Mr. Said emphasized that the facts in the case of Antony Mkala Chitavi (supra) are relevant and applicable to the current appeal. He then reiterated their previous submission and insisted for the appeal to be allowed. On our part, having carefully considered the grounds of appeal, the submissions made by the learned counsel for the parties and 12 examined the record before us, the main issue for our consideration is whether the prosecution proved its case beyond reasonable doubt. We shall therefore determine the grounds of appeal in the same manner as submitted to us by the learned counsel for the parties. However, before doing so, it is crucial to state that, this being a first appeal it is in the form of re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact. See the cases of D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007 (unreported). Starting with the appellant's complaint on the first, second and third grounds, which are in respect of the first count where the first respondent was charged with the offence of tax evasion contrary to sections 44 (1) (e) (2) and 61 of the ZACECA which provides that: 44(1) Any person who by an act or omission, intends to evade tax or assists in tax evasion by any o f the follow ing means: (e) Any other method, scheme o r connivance designed to result in tax evasion; (2) For the purpose o f this section tax shall include tax, levies, fees and any im position made under any law 13 passed by the House o f Representatives, Parliam ent o f the United Republic o f Tanzania or under any regulation made by a relevant Minister, M unicipal or local government authority. 61. A person who is convicted o f any offence under this A ct where no penalty is specifically provided for, shall be liable to a fine not less than one m illion shillings and not exceeding five m illion shillings o r to imprisonment fo r a term o f not less than two years and not exceeding five years or both such fine and im prisonm ent It is obvious from the above provisions that, to establish the offence of tax evasion against the first respondent, the prosecution was duty bound to prove that the first respondent intentionally conducted the business of selling cars without being registered as taxpayers and pay due tax to the appropriate tax authorities in Zanzibar. The prosecution was also required to prove the methods, schemes or connivance designed by the first respondent which resulted in tax evasion. We are mindful of the fact that, although, in his submission on the above grounds, Mr. Said readily conceded that the issue of sale of motor vehicle was not completed to bring the issue of tax evasion in existence, he relied on the evidence of PW1, PW3, PW6 and DW3 and argued that 14 the same was proved to the required standard. With profound respect, having revisited the evidence of the said witnesses, we are unable to agree with Mr. Said on that point. We shall demonstrate. It is on record that, although PW1 at page 23 of the record of appeal testified that when he visited ZBC premises and found cars parked therein was informed by PW3 that the same belonged to the first respondent and were for sale. In his evidence found at pages 28 to 29 of the same record, PW3 did not state that the said motor vehicles were for sale. To the contrary, PW3 only testified that, at the ZBC premises there were other motor vehicles which belonged to other employees of the ZBC. That, the procedure of parking motor vehicles at the ZBC's premises was only to ask for permission through him or the first respondent. In addition, PW2 at page 26 of the same record stated that, the first respondent handed over the keys for the said cars to him and instructed him. to give them to his daughter, the deceased (DW1) who was to transport them to Dar es Salaam. Furthermore, the first respondent himself at pages 50 to 55 of the record of appeal clearly stated that, it was a normal practice in their office for employees to park their motor vehicles freely in the office premises if there was a space. That, the said motor vehicles were sent 15 to him by DW2, his wife, for onward transportation to Dar es Salaam and were not intended to be sold in Zanzibar. He also stated that, he was a registered taxpayer with Taxpayer Identification Number (TIN) 116 - 576 -368. Worse still, even PW6 who set the trap and posed as a buyer, failed to prove the said business at the ZBC premises as he never testified to have bought any of the said cars and for how much. We must emphasize that, this being a criminal case, the prosecution side i was duty bound to prove the guilt of the first respondent beyond reasonable doubt. The said burden of proof never shifts as held in the cases of Woodmington v. DPP [1935] AC 462 and Magendo Paul & Another v. Republic [1993] T.L.R. 219. In the latter case, the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence m ust be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. " It is clear to us that, the evidence of PW1 and PW6 was based on suspicion which at any rate, in our view, cannot be said to have proved that the first respondent intended to conduct business of selling cars at 16 the ZBC premises. It is trite principle of the law that suspicion, however strong is not enough to find the accused guilty of an offence charged. Instead, suspicion entitles an accused to an acquittal, on a benefit of doubt. See for instance the cases of MT. 60330 PTE Nassoro Mohamed Ally v. Republic, Criminal Appeal No. 73 of 2002 (unreported) and Lidumula Luhusa @ Kasuga v. Republic, Criminal Appeal No. 352 of 2020 [2021] TZCA 418: [26 August 2021: TanzLII]. In the circumstances, we find no difficult to agree with Mr. Mnkonje's submission that, since before the trial court, the appellant failed to lead evidence to prove the issue of sale of the said cars, her criticism of the learned trial Judge to decide the case in favor of the first respondent is, with respect, without any justification. In the event, we find the first, second and third grounds of appeal devoid of merit. As for the fourth ground, we equally agree with Mr. Mnkonje's submission that, since the appellant failed to prove the first count that the first respondent conducted business of selling cars at the ZBC premises, the second count cannot be said to have been proved as the same depended much on the first count. As such, we find the submission by Mr. Saady on the said ground to be misconceived. As such, we also find the fourth ground unmerited. 17 In the light of the foregoing, and looking at the totality of the evidence, we entertain no doubt that the learned trial Judge properly evaluated the evidence on record and held that the case against the first respondent was not proved beyond reasonable doubt. Consequently, we find no merit in the appeal and we hereby dismiss it in its entirety. DATED at ZANZIBAR this 30th day of April, 2024. W. B. KOROSSO JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 30th day of April, 2024 in the presence of Mr. Said Ali Said, learned Principal State Attorney for the appellant Republic and Mr. Emmanuel Asama, learned counsel for the respondent is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL