REPUBLIC Vs MANENO MATOLA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 40010 OF 2023 DIRECTOR OF PUBLIC PROSECUTIONS................. APPELLANT VERSUS MATOLA S/O MANENO @ MATOLA............................ RESPONDENT JUDGMENT 13th August -17th September 2024 A. MATUMA, J. The respondent Matola S/O Maneno @ Matola stood charged in the Resident Magistrate's Court of Mwanza at Mwanza for a total of 972 counts all of which are Stealing by servant contrary to Section 270 of the Penal Code, Cap. 16 R.E 2019. He was alleged to have in each count stolen various amounts of money which came into his possession by virtue of his employment as an accountant of Tanzania Institute of Accountancy (TIA) at Mwanza Campus. i The allegation was that he was receiving school fees from students, and issuing them receipts but did not deposit such money into the institute's bank account. For all 972 counts, he was alleged to have stolen a total of Tshs. 404,866,000/= the property of his employer. During trial, the prosecutions paraded a total of eleven witnesses and the defence side had only two witnesses including the accused himself. At the end of the trial, the trial magistrate ruled out that the prosecution did not prove its case to the required standard and thus acquitted the respondent. The appellant became aggrieved by such acquittal hence this appeal. Three grounds of appeal were presented in the petition of appeal but during the hearing of this appeal the appellant dropped one ground and argued the remaining two grounds in one complaint to the effect that; The trial Magistrate erred in law and facts by acquitting the accused on the ground that the prosecution failed to prove the case beyond reasonable doubt while the case was proved to the required standard. At the hearing of this appeal the appellant was represented by Naila Chamba and Jayness Kihwelo learned State Attorneys while the 2 Respondent who was also present in person was represented by Mr. Kassim Gilla and Mr. Msafiri Henga learned advocates. Submitting for this appeal, M/S Jayness Kihwelo learned State Attorney argued that out of the 972 counts, the prosecution managed to prove three counts and thus it was wrong for the trial Court to acquit the respondent in all counts. She submitted that the counts proved were count No. 277 in which the respondent was alleged to have received Tshs. 285,000/= from Ngimbuchi Christina (PW5), count No. 583 in which he was alleged to have received Tshs. 285,000/= from Yusto Medson (PW8) and count No. 780 in which he was alleged to have received Tshs. 285,000/= from Mtandika Nuru Seifu. (PW7). The learned State attorney argued that under section 270 of the Penal Code in which the respondent stood charged the prosecution was required to prove that the respondent was a public servant and that there was theft. She argued that the evidence on record proved beyond doubts that the respondent was a public servant employed by the Tanzania Institute of Accountancy as an accountant. To that effect, she pointed out the evidence of PW1, PW3 and that of the Respondent himself during his defence. 3 About theft, the learned state Attorney referred the evidence of Christina Ngimbuchi (PW5), Samson Sifa (PW6), Nuru Seif (PW7) and Medson Yusto (PW8) who testified to have given money to the Respondent. She also pointed out the evidence of Internal and External Auditors who established loss of money as a result of the non-deposit of the money received by the respondent. The learned State Attorney further argued that the respondent having received cash money from students updated the institute's Soatel system to show that such students had paid the requisite money but such money was not ultimately deposited into the institute's bank account. Citing the case of the Director of Public Prosecutions versus Shishir Shymsingh, Criminal appeal No. 141 of 2021, the learned state attorney argued that theft is proved by establishing that there was an act done fraudulently and without claim of right. She argued that the trial Court erred to disbelieve the evidence of PW5, PW6, PW7 and PW8 against the principle that every witness is entitled to credence. She also argued that the respondent did not dispute to have issued receipts nor cross-examined on that fact which implied his acceptance of the truth of the witnesses' evidence on the^fact. To that effect, she cited 4 the case of Amos Jackson versus the Republic, Criminal Appeal No. 439 of 2018 The learned state Attorney also faulted the trial Magistrate for discrediting the evidence of the handwriting expert (PW9) merely because he did not tender the certificate and the gazette through which he was gazetted. She argued that since PW9 mentioned G.N No. 180 of 8th May 2015 through which he was gazetted, it was enough for the trial magistrate to take judicial notice. The learned state attorney further faulted the findings of the trial Court which faulted the prosecution for having failed to tender the laboratory book arguing that oral account on the chain of custody of the samples by PW2 D/CPL Makala to the effect that it was him who took the samples and handled to PW9 was enough. She added that the students were giving money to the respondent instead of depositing it to the bank account because they believed him as an accountant of the institute. Mr. Kassim Gilla learned advocate on the other hand submitted against this appeal by arguing that the prosecution case was not proved beyond any reasonable doubts. He was of the view that the accused was charged under section 270 of the Penal Code which does not create the offence. He also argued that none of the prosecution witnesses testified on the offence of theft but each testified on loss and that even the evidence of loss was contradicting to each other. At the times the loss was testified to be Tshs. 133,935,000/= while other witnesses testified the loss to be Tshs. 404,866,000/ = . He further argued that even when the money alleged to have been given to the respondent by PW5, PW6, PW7 and PW8 are added together, it does not tally to the alleged loss. The learned advocate argued that there is no evidence that the respondent received cash from the students as they themselves admitted that their joining instructions directed them to deposit the money into NMB bank account of the institute. Responding to the argument that the respondent was issuing receipts to the students after receiving cash, the learned advocate argued that receipts could have been issued by other persons in the institute according to the evidence. He argued that the offence of stealing by servant is not proved by a mere loss as it was held in the case of Haruna Said versus The Republic (1991) TLR 124. About the evidence of the handwriting expert, the learned advocate argued that the trial magistrate property disregarded such evidence 16 because there was doubts as to the genuineness of the specimen or admitted handwriting of the concerned accused. He concluded that even the three counts No. 277, 583 and 780 were not proved to the required standard. Then the learned advocate argued this court to dismiss this appeal. In rejoinder, the learned State attorney argued that section 270 of the Penal Code by itself creates the offence and provides the punishment thereof. Having heard the parties as herein above reflected, it is now my turn to determine whether the prosecution case was proved against the respondent beyond any reasonable doubts and thus the trial Court erred to acquit him. The appellant through the learned state attorney admitted that out of 972 counts in which the respondent stood charged 969 counts were not proved. In that respect, the trial Magistrate properly evaluated the evidence on record and acquitted the respondent to such 969 counts of the charge. The contention between the parties is whether counts No. 277, 583 and 780 were proved against the respondent beyond reasonable doubts. In respect of count No. 277, the respondent was alleged to have received Tshs. 285,000/= from PW5 Christina Ngimbuchi on 12/03/2015. In my thorough scrutiny of the evidence of PW5, I find that the witness was not credible to be relied upon. This is because on page 101 of the typed proceedings, she testified that at all times she was paying her school fees to the Bank account of the university serve only for one semester which was the second semester in the first year. That means even in the first semester of the first year she paid the requisite fees through a bank account. That was a well-known procedure for paying school fees as she personally admitted during cross-examination at page 102 when she stated; "'Before to be admitted to university I had served with joining instruction. Joining instruction has the procedure to pay fees. We have to pay fees through a university bank account" This witness who testified to have well known how school fees were to be paid yet testified that in the 2nd semester of the first year she decided to go to the respondent to ask for directives on how she could pay the school fees; " In the 2nd semester of the first year, I went to an accused person in order to direct me on how can I pay feed' 8 The question is; how and why this witness went to seek directives to the respondent on how to pay school fees while she had already paid the previous fees and had the joining instruction which bears clear directives that school fees must be paid by students to the University's bank account. It seems this witness and the respondent if at all we have to believe her that they discussed the mode of payment of school fees had their hidden agenda for the respondent to survive her at the University without paying the requisite fees. In that respect even if the respondent issued her a receipt such receipt cannot be taken as a conclusive proof that the cash money was really given to the respondent. This is more so when the evidence on record is clearly showing that receipts were issued to students after their payment of the school fees to the Bank account and bring the pay-in-slips to the college administration. Therefore, a mere receipt is not conclusive evidence that cash money was given to the person who issued such receipt. Even though under section 100 of the Evidence Act, Cap. 6 R.E 2022, the contents of the document must be proved by the document itself. Oral accounts purporting to establish the contents of the document contrary to the contents by themselves cannot be accepted inthe administration of criminal justice. In the instant matter PW5 stated in evidence that she gave cash amount of Tshs. 285,000/= to the respondent and her evidence was a receipt no. 206443 (exhibit PIO) allegedly issued by the respondent in acknowledgment that he received the said amount from her. But the receipt itself contradicts such averments. The said receipt so does other receipts which were received collectively as exhibit PIO bears modes of payment such as cash, cheque or other modes upon which the receipts were issued. In the receipt of PW5 Christina Paul Ngimbuchi the mode of payment is clearly indicated as "BPS". Although no witness explained what did "BPS" stood for, by inferring to the evidence generally which shows that students were paying school fees through Bank account of the institute then takes the deposit slips to the Institutes authorities to be given the receipts, I define "BPS" as Bank Pay Slip. In that respect PW5 was issued the receipt not because she paid cash or by cheque, but because she presented the Bank Pay Slip. Therefore, the evidence that she paid cash is nothing but false more so because PW5 having been issued such receipt did not query why the mode of payment was not indicated as cash and instead indicated as Bank Pay Slip. By her silence since then up to when she was called to testify signifies that she didn't pay cash. Any contrary claim is estopped under section 123 of the Evidence Act supra. o Again, no witness pointed out in a specific manner that the amount alleged in such receipt is not seen in the bank account of the institute or that the Bank Pay-in-Slip in respect of such amount from the said witness was nowhere to been in the Institute's custody. There is no evidence that the respondent was asked to explain about the Bank Pay slip stated in the receipt but failed to explain. We have therefore no specific evidence that the money in the said receipt was not banked. In that respect, I rule out that count No. 277 of the charge was as well not proved beyond reasonable doubt and find that the trial court properly determined such count as having not been proved. In the like manner and for the same reasons I have advanced in determining court No. 277, I find that counts No. 583 relating to the money allegedly received from PW8 Yusto Medson and count no. 780 relating to the money allegedly received from PW7 Nuru Seif Mtandika were as well not proved. In their respective receipts no. 318841 (for Yusto) and no. 318816 (for Nuru) the modes of payment upon which such receipts were issued were "BPS" i.e Bank Pay Slip as explained above. This documentary evidence contradicts the oral evidence of the said two witnesses PW7 and PW8 who alleged to have given cash to the respondent. In fact PW8 Medson Yusto who was alleged to have given the respondent Tshs. 285,000/= in respecjzdr count No. 583 testified clearly i at page 109 of the proceedings that the respondent had never asked him to pay him in cash the school fees; "Accused person didn't ask me to pay fees to him" Also, in respect of count No. 780, PW7 Nuru Seif Mtandika made it clear at page No. 105 that at one time he had misused the school fees and that is why when he got another money, he decided to give it to the respondent to avoid misusing it again. Therefore, this witness was not so clean to be trusted. As rightly argued by the learned advocates for the respondent, the prosecution witnesses concentrated on establishing loss and not theft. It might be true that the respondent executed his duties negligently by issuing receipts to students without verifying whether they had really deposited the requisite money into the institute account thereby occasioning loss to the institute, but in the instant matter the respondent was not charged for occasioning loss. He was charged with stealing. The offence of stealing was not proved because the respondent did not at any time take the institutes' money nor there was any witness who gave evidence to that effect. University instructions and procedures for the collection of school fees from students did not provide a room to the respondent to access money 2 be it cash or from the bank account. That was well known and testified by all witnesses. In that respect, if the respondent took the money from the students that could be a different offence like cheating, obtaining money by false pretence etc. and the victims could be those students who were made to pay the money contrary to the requisite procedure. I therefore find that the prosecution case was not proved to the required standard and thus the trial court properly reached the decision it had reached. I thus find that this appeal was brought without any sufficient cause and it is accordingly dismissed. 3H1 13