20130727 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA (CORAM: KILEO, J. A.. MASSATI. J. A. And MANDIA J. A.1 CRIMINAL APPEAL NO 133 OF 2013 DIRECTOR OF PUBLIC PROSECUTIONS.......... .... APPELLANT

VERSUS 1. MORGAN MALIKI"!

2. NYAISA MAKORI J................................ ......... RESPONDENTS (Appeal from the Judgment of the High Court of Tanzania at Tanga) (Mussa. J.l dated 23rd day of November, 2012 in Criminal Appeal No. 6 of 2011

JUDGMENT OF THE COURT 25th & 30th July, 2013 MASSATI, J.A.: The Director of Public Prosecutions was aggrieved by the decisions of the Court of the Resident Magistrate of Tanga and the High Court of Tanga thereafter, which confirmed that the respondents had no case to answer the charges laid at their doors. He has filed the present appeal to impugn the said decisions. At the trial Court there were seven accused persons; who faced a total of 17 counts. The respondents were described as the 4th and 5th accused persons respectively. In the 2nd count, all the accused persons were alleged to have conspired to commit an offence. In the 3rd and 5th counts, the 1st respondent was alleged to have made false shipping documents, whereas in the 4th and 6th counts he is alleged to have uttered those forged documents. In the 7th count, the 2nd respondent was charged with making false examination reports, and in the 8th count, he was charged with the offence of uttering the said false documents. In the 11th counts all the accused persons were charged with loading 60 bales of sisal fibre without written permission of a proper officer. Lastly, in the 17th count, all the accused persons were charged with unlawfully exporting elephant tusks, concealed as sisal fibres. They denied their charges, but at the close of the prosecution case, the trial Court found that the respondents herein had no case

to answer. The High court upheld it. The appellant has listed down three points of contention. (1) That the Honourable High Court judge grossly erred in law and fact to misapprehend the nature and quality of prosecution evidence and eventually holding that the prosecution evidence was short of a prima facie case and that the learned trial Magistrate cannot be faulted in his finding of no case to answer against the Respondents. (2) That the Honourable High Court Judge erred in law by holding that the information (charge) at hand was bad for duplicity as forgery and uttering a false document are offences of the same kind and the prosecution ought to have preferred either of the offence in the alternative. (3) That the Honourable High Court Judge erred in law for holding that there was no prima facie case in support of the offence of forgery against the 2nd Respondent in absent (sic) of the exparte evidence to prove the same" At the hearing of the appeal, the appellant was represented by Mr. Biswalo Mganga, learned Principal State Attorney, Mr. Joseph Pande, learned Senior State Attorney and Mr. Iboru Saraji, learned State Attorney. On the other hand, Mr. Steven Sangawe, learned counsel and Mr. Mwita Waissaka, learned counsel, appeared for the 1st and 2nd respondents respectively. Submitting on grounds 1 and 3 together. Mr. Saraji, argued in effect, that, contrary to the findings

of the lower Courts, there was sufficient evidence on record to justify putting the respondents to their defence. He quoted several passages from the testimonies of PW1, PW2, PW6 and PW11, as well as Exh P2. Basing his opinion on the decision of the High Court in REX v JAGJXWAN M. PATEL AND FOUR OTHERS (1948) 1 TLR (R) 85 the learned counsel submitted that a prima facie case need not lead to a conviction. He also referred to the decision of R.E.W POPE v R. (1996) EA 132, to argue that, as there was no dispute on the evidence of handwriting in Exh PII, it was sufficient to put the 2nd respondent on defence. With regard to the 1st respondent it was his contention that, he had some explaining to do regarding his activities in the ARUSHA CARGO CLEARING AND FORWARDING AGENCY COMPANY, even if it was undisputed that he was just an employee. Mr. Mganga, then took over and argued the second ground of appeal. He said that the learned first appellate judge was plainly wrong in holding that there was duplicity of charges in the offences of forgery and uttering false documents. He submitted that the two were distinct offences each with its own ingredients, and may be committed independently of each other. Mr. Mganga also commented on the other grounds generally. He submitted that in finding that there was no evidence of forgery, the learned first appellate judge ignored the clear testimony

of PW11, and the provisions of sections 49 and 69 of the Evidence Act, Cap 6 R.E 2002. He then prayed that the appeal be allowed. Mr. Sangawe, resisted the appeal. He began by citing to us, the celebrated decision of RAMANLAL TRAMBAKLAL BHATT V. R. (1557) E.A 332. He then took us through various pages of the proceedings through the eyes of PW1, PW2, PW4, and PW10, to illustrate that the prosecution did not establish a prima facie case against the 1st respondent on the tests set in BHATTs case. He distinguished PATEL's case, describing it as irrelevant because the facts there were different. He therefore urged the Court to dismiss the 1st and 3rd grounds of appeal. On the second ground, Mr. Sangawe conceded that it had merit. As the offences of forgery and uttering false documents were distinct, the learned judge on first appeal was wrong in holding that there was duplicity of charges. Therefore he asked us to allow this ground. On his part, Mr. Waissaka, also premised his submission on the test set in BHATTs case. Referring to the testimonies of PW1, PW6 and PW11, he said that there was no evidence touching on the involvement of the 2nd respondent, as there was no witness to prove that he signed in the disputed inspection/examination report or single bills of entry. He was particularly emphatic that according to PW11, the 2nd respondent was absent on the day in question, and

ADEN MWAKALOLO who discharged his duties on that day was not called to testify. Therefore, in his view, no case had been made out against the 2nd respondent, and urged the Court to dismiss the 1st and 3rd grounds of appeal. Mr. Waissaka, also conceded that there was merit in the second ground of appeal. As argued by the respondent and Mr. Sangawe, he was also of the view that the learned judge on first appeal, erred in law when he held that there was duplicity of charges between forgery and uttering false documents. He too, urged us to allow this ground of appeal. We shall begin with the second ground of appeal. The first appellate Court had held that a charge which had both counts of forgery and uttering false documents was duplex, and should have been in alternative counts. All counsel in the present appeal agree that this was a misdirection because as the two are distinct offences they were correctly charged in separate counts. In our view, the situation is governed by sections 133(1), and 135(b) (i) of the (The Criminal Procedure Act, Cap 20 R.E 2002, (the CPA), and sections 337, and 342 of the Penal Code Cap 16 R.E 2002. The total effect of these provisions is that any offences may be charged in the same charge or information, if the offences charged are founded on the same facts or if they form or are a part of a series of offences of the same or similar character. If an

enactment constituting an offence consists of the doing of any different acts in the alternative, the charges may state any one of those others in alternative counts. In the present case save for the punishments, the offences of forgery and uttering false documents are distinct offences; and there is nothing in the wording of sections 337 or 342 of the Penal Code, to suggest that, they were intended to be alternatives to each either. A charge is said to be duplex if, for instance, two distinct offences are contained in the same count, or where an actual offence is charged along with an attempt to convict the same offence. In the present case, the offences of forgery and uttering false documents were alleged to have been founded on the same facts, and as the two are distinct offences, were correctly charged in separates counts in the same charge. So, with respect, we agree with the learned counsel that there was no duplicity of charges here, and the learned first appellate judge erred in law in so holding. This ground therefore succeeds. As adopted by the learned counsel we think the 1st and 3rd grounds of appeal may, conveniently be disposed off together. The statutory basis for a subordinate court's powers to decide on a no case to answer is section 230 of the CPA. This provision is a substitute of section 205 of the repealed Criminal Procedure Code (the Code) which was

replaced by the CPA. Like section 205 of the Code, section 230 of the CPA provides 230. I f at the dose o f the evidence in support o f the charge, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any offence o f which under the provisions o f sections 312-321 inclusively o f this Act, he is liable to be convicted, the court shall dismiss the charge and acquit the accused person." We think there was a legislative oversight in this provision. Instead of reffering to sections 300-305 that related to powers of trial Courts to enter verdicts for alternative, kindred, but cognate minor offences; it refers to sections 312 to 321, which, under the present scheme of the Act, refer to contents of judgment and sentence. This however, should not detract us from our discussion over the application and scope of section 230. In both the Code and the CPA, the mainstay in that provision is that a case is made out against an accused person when the evidence adduced in support of the charge is sufficient to require him to make a defence. So the question is, when can evidence be said to be sufficient for the purposes of section 230 of the CPA? The respondent has relied on the decision of the High Court of Tanganyika in R v. JAGWAN M. PATEL AND

OTHERS (supra) which set to consider what constituted a prima facie case under section 205 of the Code. There, it was held inter alia:- "... all that the Court has to decide at the close o f the evidence in support o f the charge is whether a case is made out against the accused just sufficiently to require him to make his defence. It may be a strong case or it may be a weak case. The Court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy o f credit or whether if believed it is weighty enough to prove the case conclusively beyond reasonable doubt. A ruling on a case to answer would be justified in my opinion in a borderline case where the Court, though not satisfied as to the conclusiveness. o f the prosecution evidence, is yet o f opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction." But this passage was disapproved by the Court of Appeal for East Africa, in RAMANLAL TRAMBAKLAL BHATT V. R. (supra) which came out with the following formulation (i) the onus is on the prosecution to prove its case beyond reasonable doubt, and a prima facie case is not made out, if at the close of the prosecution, the case is merely one "which on full consideration might possibly be thought sufficient to sustain a conviction." (ii) the question whether there is a case to

answer cannot depend only whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence." This formulation was followed in MURXMI V R. (1967) I EA 542, where the same Court went on to emphasise that:- "The provisions o f section 205 are mandatory, and if at the dose o f the prosecution case, a prima facie has not been made out the accused person is entitled to an acquittal. I f an accused person is wrongly called on for his defence then; this is an error o f law..." We think that the formulation in BHATT's case reflects good law, and must be followed. Therefore, it is wrong to place reliance on PATEL's case as the appellant has pressed us to do. So, on the principles set out in BHATT's and MURIMI cases, we think that a prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged or kindred cognate minor one. Which means that this stage, the prosecution is expected to have proved all the ingredients of the offence or minor, cognate one thereto beyond reasonable doubt. If there is any gap, it is Wrong to call upon the accused to give his defence so as to fill it in, as this would amount to shifting the burden of proof. Applying the above tests to

the facts in the present case, we think that, as against the 1st respondent the undisputed prosecution evidence was that at the material time he was an employee of ARUSHA CARGO CLEARING AND FORWARDING AGENCY whose document, (the controversial Booking Application and Shipping Order, (Exh P2) was used in shipping the contraband. Then there is also a remark by PW1 in cross examination that, he was seen somewhere waiting for payment. But the document was signed by someone else and there was also evidence that ARUSHA CARGO did not otherwise take part in the transportation of the cargo. In the circumstances, we agree with the lower courts and Mr. Sangawe, that the available prosecution evidence on record was not sufficient to call upon the 1st respondent to make a defence. But in respect of the 2nd respondent, there was evidence that he had the duty to inspect the containers prior to shipping; that he signed a customs examination report in respect of the respective container No MEAU 7915043 destined for Manilla. This is found in the testimony of PW1, PW11 and PW14, before whom he admitted his signatures in the documents in question. In so doing, he became privy to dealing with government trophies. Here, we think, there was sufficient evidence to call upon the 2nd respondent to make his defence. When all is said and done, we, conclude by allowing this appeal only in part. We find that

the 2nd respondent has a case to answer, and was therefore wrongly acquitted at that stage. He is to be rejoined with the rest of the accused persons in the trial court for him to enter his defence. We also find that the first appellate court erred in law in holding that the offences of forgery and uttering false documents could not be charged together. Such a charge sheet, as was the case here, is perfectly in order. However, the appeal against the 1st respondent is misconceived. It is accordingly dismissed. Order accordingly. DATED at TANGA this 27th day of July, 2013. E. A. KILEO

JUSTICE OF APPEAL S. A. MASSATI

JUSTICE OF APPEAL W. S. MANDIA

JUSTICE OF APPEAL I Certify that this is a true copy of the original. Z. A. MARUMA

DEPUTY REGISTRAR

COURT OF APPEAL