NA 2

J._. - - l'!.~~-,...J~t,·~ ·,i ll-,; \ ;. r "' IN TI-IE COURT OF APPEAL OF TAN½A.1\!IA AT DAR ES SALAAM CRIViIN.AL APPJi;Al, NO. 32 OF 1999 BETH:CEN Tl{l!; DrnEc 1.ron OF FlJBLIC PHCX:iIGCU'l'IONS O O O APPI;LLANT A N D PROSP:Sn i'f,.iALUKASA. C O O 0 " •• •""RESPONDENT /·' : (.,\ppeal from the Judgment of the High Court of 'l'anzania at Mbeyc:1} dated tbe 5th day of March, 1999 in Cr=l,.minal2J)J?e~~-- I~?. _!}:Lof .•122§ JUDGMENT The respondent was convicted of eight offences by the District Court of :Mbeya and was sentenced to imprisonment terms that were ordered to run concurrently. Some property fotmd in his possession was forfeited. Re appealed to the High Court where Vioshi, Jo quashed all the convictions, set hirn free and ordered ·that the forfeited property be restored to h:i.nH That has aggrieved the Hepublic and hence this appealo Before we go into the merits 'of the appeal, we think that it is better to preface our judgement with the background of the case of the Republic. 'l'hat, we hope, will put the jigsaw puzzle in perspective. There was a Roman Catholic priest by the name of Father Claudio Mwalukasa whc died in a mysterious ce.r accident on or about 20/09/94. 1 :Je shall refer to him as the deceased. He was the brother of• the respondent. The deceased was the Chief Accountant ot Jvlbeya Diocese up •o,_,/2 ✓ 2 to 28/07/94 when he was supposed to hcmd-over those bodies to Father Atilio Mbogela (PW2). 'i'he case of the Republic is that the deceased diverted a substantial amount of church funds and used i~ to buy himself some property. For ex.a1nple, a cheque counterfoil No. K 04577918 (Exh. P5) shows· that on 09/10/93 Shs .. 5,000,000/::. \·Jere issued in favour of the deceased. HO\·Jever, a cheque leaf bearing the same nmnber and for that amount was on that date written out in favour of Dan General Mercha..vits (Exho P13). That company conducted a business of importing and selling motor vehic.les. 'Ihe proprietor, Dan Abraham Bainomugisha (P}rJ.11+), told the court that one .F·~.1!'! Elizabeth 'l'wisa handed him a cheque for ..Sl~: 5,090,000/= which we.s for the payment for two Toyota coaster mini-busep .ai,.d that he was asked to issue a receipt in the name of Vicent Venance, However, the duplicate copy of the receipt (Bx.'1-i- P4) bears the name Innocent Venance. Elizabeth TVJisa was not called to testify but her statement was tendered in Court. One of those buses, forming the basis of the first count of theft against the respondent, was registered as TZG 7061 •. The theory of the proGecution is that the deceased called himself Venance P; Mwakyembe as a camouflage for his illicit dealings. Other names like Innocent Venance or Vicent Venance have also surfaced but • there is no explanation as to what person or persons they belongedo Now that the deceased is dead, the respondent claims that Vena.nee P •. Jv'i wakyembe is his other name and so, he claims all the property ih that name to be his o This is the bas is of the charges that faced the respondent. Dr. Lamwai, learned advocate for the respondent, has pointed out at the beginning of his submission, and rightly so, in our opinion, that the deceased was never prosecuted .. Bo, we have to be extremely careful in our handling of this whole episode • ... Apart from the Toyota Coaster mini-bus, there were other pieces of property found in the possession of the respondent and formed the basis of other charges against himo rrhere was a Nercedes Benz saloon No. •rzc 3972 which \vas ii7.itially registered in the name of Rujewa Mission and then it was transferred to Venance Mwakyernbeo There was also a parcel of land, Plot No •. 1068, which was registered in the name of ::c1audio Mwalukasa as a Gurdian of Venance Mwakyembe (rhnorf:. The DPP has filed three grounds of appeal: .. · \ :·01.: if-~~- '. 0 • 1. 'lnat the first appellate court erred in law and in fact in allm-Jing the ,appeal and quashing the conviction on all charges despite the prosecution proy~d (sic) its case beyond reasonable doubto 2o That, the first appellate court misconstrued the provisions of section 312 (1) (b) of the Penal Code o 3o 'l'hat, the first appellate court erred in law and fact when it vested the ownership of all property in question to the Hespondento As for the first ground Wf shall have to see what evidence is on record for every charge and v1hetber there was proof beyond reasonable doubt as cl~irned by the DPP, 'l'he first charge against the respo11dent was theft of the Toyota Coaster Mini-bus with f:egistration Nao 'l':W 7061 from the Diocese of Mbeya, The District Court convicted the respondent with a lesser offence of being in possession of property reasonably suspected of having been illegally obtained c/s 312 (1) (b) of the Penal Code., The High Court acquitted the respondent even of that lesser offence. 0 •.• /4 4 'l'he argument of i"!rs. Makuru, learned Senior State Attorney 1 is that MOSHI, J°o should not have acquitted the respondent but should have found him guilty of another lesser offence of ootaining by false pretenceso On the other hand 1 Dr. Lam~1ai argued that the DPP did not appeal against the conviction of being in possession of property suspected of having been stolen and so~ at ti1is stage, it is wrong to ask this Court to find the respondent guilty 61'.:obtaini.ng by false pretences •. Mrs. Makuru pointed out that this Court •! '• .. can exercise its powers of revision under section 4 of the Appellate Jurisdiction Act, 1979. We shall deal with the issue of revision later. Dr. Lamwai said that the Toyota Coaster mini-bus was first registered in the name of Ad.am Magi.la (FW23) and that the respondent was its second owner. So, if the respondent stolen the mini-bus, then he could only have done that from PW23 and not from the Mbeya Diocese as is alleged in the particulars of the charge. The Vehicle Registration Card No. 00180862 (::Bxh. P9) shows that the r.iii1i-bus \-.Jas first registered in the name of PW23. However, PW23 denied owning that vehicle. He admitted to have placed an order with the Dan General Merchants for that kind of a mini-bus but,•• as the price had shot up, he abandoned the project and had his advance payment refundedo P\~23 denied knowing Venance Mwakyembe who is portrayed in the Registration card as the second owner of the vehicle. t-Jas the respondent guilty of the ft of the mini-bus? 'rhe fact that M1·s. Makuru pressed, both in the High Court and in this Court, for a conviction for obtaining property by false pretences, in our opinion, is an aclmowledgernent that the evidence is not sufficient for a finding of theft. At no tin1e did the vehicle belong to l'foeya Diocese. So,. the respondent could not have stolen from the Diocese something that it did not m111. Then, P\iJ23 himself testified that he had not ovmed the vehicle • •.•• /5 5 • So, the respondent could not have stolen from h:i.m either. In short there is no one complaining that the vehicle has been stolen from h:i.m or her. Could the respondent be guilty of possessing property reasonably suspected of having being stolen'.? We think not and we have two reasons for saying so~ First, according to P\IJ14 there was a tax of Shs. 3.5 million due on the vehicle which the deceased has agreed to pay before he died. 'l'he respondent paid that amount o 3o, i.t could be said that the respondent had a claim of right on the. 'royotao But secondly, if there was anything that was stolen, then it was the 8hs. 5/=: million / ,•'' which was paid to Da..'1 General Merchant as part payment for the Toyota. This is abundax1tly clear from the evio.ence of P\~14, .the counterfoil (Exho P5) and also the cheque leaf (Exh. P13) o This appeal is on aJ.l fours with 0€_wa)A Abuba~!.iJ1ag@1,a 'h. The R~ublis, Criminal Hevision No. 35 of 1993 (unreported). We held in that appeal that a charge of receiving stolen propertyc/s 311 (1) of the :Penal Code cannot lie where the facts show that what was stolen was the money which was used for buying the property found in the possession of the accused persono In that case the appe1lant 1 s son, Modestus, had been an employee of the Roman Catholic Mission at Uwemba, Njombe districto 'l'he young man disappeared and it \•1as discovered in his absence that some Shs o 1 .6/:: million were missing. Some newly bought items of property were found in the house of the appellanto He ·\11as charged with receiving stolen property a 'l'h.is C::ourt had this to say~ ,,.Je ente:rta:i...."1 no doubt whatsoever that that charge was miE,conceived in l;;;.w. f•roperty can be -the subject matter of charge a preferred under so311 (1) of the Code only if it was 'feloniously - ,, 6 stolen, talrnn extorted, obtained or disposed of. Since the property listed iil the charge sheet in the i.>1stant case was not the property which Eod.cstus stole, the provisions of s.311 (1) of the code could not i11 lai,' be brought to play in respect of it. The fact that the money which vJas used to purchase it we.s stolen money did not make that property unlawfully acquired in terms of the subsection. No contravention of the subsection takes place if the subject matter of the charge was not property' 1 feloniously stolen, taken, extorted, obtain.ed or disposed of 1 o So, 1·,e agree with the learned Judge that the conviction or being in possession of property suspected of having been 3tolen cannot stando But, with due respect, we do not agree w:.th his ~easoning which we ::;hall deal with in due course4 Can we exercise our powers of revision':' This matter 't1as hotly contested~ Dr. Lamwai saic: that Mrs. lfahc1ru could not in this Court be heard to say that the High Court should h.e,ve found the respondent guilty of false pretences. In fact Hrs. ffakuru had made that submission in the High Court but hOBHI, J. o agreed with Dr o Lamwai that she should have cross-appealed. Mrs. Makuru invited us to use our powers of revision in the ccu.rsc of hearing t.his appeal and step into the shoes of the High Court and do what it could have doneo As already said, the h:arned judge refused to substitute a by conviction of obtaining_Ll:alse pretences for possessing property suspected of having been stolen on the ground that the Hepublic did not cross- appeal. Was the learned judge wrong~· Could he have revised that finding? 0 •• /7 7 Mrs. ifakuru is right that this Court can exercise its revisional powers in the course of hearfrlg an appeal. Section 4 (2) of the Appellate Jurisdiction Act, 1979, as a'1lended by Act No. 17 of 1993, provides~ For all purposes of mid incidei1tal to the hearing and determination of oJ.1.y appeal in the exercise of the jurisdiction conferred upon J.t by this Act; the Cciurt of App<::al shall; in addition to any other pow~r~ autbority and. jurisdiction conferr·ed by this. Act, have the powei· of revision and the povJer; authority and juri~_q}ct_ion vested in the ·,· . •' , ' 't l J... court from which the appeaJ,.;;:;~, broug~1L,., (Ernphas is is ours) {.:lo, we havE: the pm-;er of revision when b2aring an uppeai.. But cari we exer·cisc that power of :cevision in this appeal? The latter part of that sub-section provides that this Court has ''the power, authority and juriGdicti.on vested :in the court from which the appeal is brought·,;. So, the next question is did the High Court have powers of revision while hearing an appeal? There is no section in the Criminal Procedure Act that is equivalent to ;c,ci::tion l+ (2) of the Appellate Jurisdiction Acto However, the pi'actice of the Eigh Court has been to revise the finding of the lower court when hearing an appeaL So, we can step into the shoes of the Hir;h Court. But is there evidence of false pretences".? Dan Abraharr1 Bainomugisha (H.114), the owner of Dan General Merchants, told the court that before the vehicle was delivered; he was told that· the deceased had died. He went further to say tha.t Elizabeth' Twisa introduced the respondent to hitn as the one who was to follow up the tnmsaction;; After paying a tax of Shs .. 3d5 million; PW1~- said "1 gnve him (accused) the said motor vehicle ,._iith all documents in the nar;;e of Adam Magi.la': (PW23).. No doubt the respondeiyc transferred the vehicle and registered it in the name of Venance Mwakyembeo 00 .. /8 8 Incidentally, P\~14 said in court that he was told by Elizabeth 'l'wisa to issue receipt for the Shs. 5/= million in the name of Vicent Venru1ce o However, the receipt was issued in tho name of Innocent Venance o So, the respondent by calling himself Vena.nee Viwakyembe did not falsely represent himself to be Vicent Venance or Innocent Vcnance. In fact the respondent was introduced to FW1 1+ as Prosper M:walukasa and not Venance Mwakyembe o Therefore 1 the respondent cannot be said to have obtained the vehicle by false pretences either& Therefore; we cannot revers~ tbe acquittal of the High Court and finding substitute theL · of possession of property suspected of having been stolen with that of obtaiJ1ing. by false pretences., 'rhe second count c:tgainst the respondent w2.s being in possession of :property suspected of having been unlawfully acquired c/s 321 (1) (b). In the months of February and March 1995 the respondent was i.'1. possession of a Mercedes Benz 'l'ZC 3971!, Mrs• Makuru argued that the owner of the Benz is not knovm. She :pointed out that the Registration Card (Exh. · P1) shows that tbe first owner was Rujewa Mission. Bhe explained that there is no such Mission or even Rujewa Diocese in existence. Mrso J\\akuru also submitted that the learned judge placed a v,Tong interpretation of section 312i. Dr~ Larnwa:i., on the other hand, said that there is Ujewa Mission that was mistakcr1ly referred to as Rujewa Mipsionl He pointed out that this car was legally imported into the country from Zaireo 'l'here is evidence that the Mercedes Benz came from the former Zaire from one Namirali Ramzanali to Uje:wa ;v:issiono So, the vehicle according to documents was legally importedo 'I'he vehicle was then registc::rcd under Ujewa Mission. As for the dispute of vihether or not there is Ruj<~wa Mission or Hujewa Diocese, we agree with the learned judge and Dr. La.rn1;1ai that there is Ujewa Mission i\fhere Fr. Drazn Claper o• o/9 9 (PW4) resided and worked. However, that Mission is in Iringa and not in Mbeya and also PW4 denied that they had a vehicle TZC 3972 8:t Ujewa Missiono Later the vehicle was transferred to Venance P. Mwakyembe. MOSHI, Jo is right in holding that when the owner is knbwn then it no longer a question of suspicion. So, the vehicle then, is either stolen or not. We are satisfied that it·was not. Moreover, the respondent has given an afcount of how he crune to possess the vehicle 1 that is, it was transferred from Ujewa Mission to Venance Mwakyembe. vie agree with SINCLAIR, Ago C .J • of Tanganyika, when he observed in _9:e?}J~~j_o-~~J.'at v., Ra, (1952) 1 TLR (H) 366 that: \,/here a. person charged under this_section (s .. 312) gives no account to the court of how he came by the property, or gives an account which is false or unreasonable, he is clearly not giving an account to the satisfaction of the court and the court is entitled to convict. But where he gives an account which might reasonable be true and which is consistent with innocent possession, he is, in my view, entitled to be acquitt~d. The section does not require him to prove that he came by the property honestly. (emphasis is ours but the italics is provided by the report) MOSHI¼ J" discussed at some length the technicalities of section 312 of the Penal Code when dealing with counts one and two. Relying on J:~ !!sel?,gj, s/o ,Abdall~, (1952) 1 T.L.R. {R) 107 .s-md K~.2E.'!O :f!.'2-ffii~..~ t (1963) E.A. 209, he held that section 312 (1) (b) of the Penal Code has to be refad together with section 25 (1) (b) of the Criminal Procedure Act. Since the Police did not detQin the respondent under section 25 ( 1) (b) of the C .Poli., the learned judge held that the second count could not stand. • •• /10 '· 10 With due respect, the learned judge erred. The authorities he has relied upon are applicable to section 312 (1) (b) o Section 312 was repealed and replaced by s2ction 5 of the Administration of Justice (Miscellaneous Amendments) Act, 1971 (Act Noo 26 of 1971). Previously there was just one simple section but now there are tv;o ,subsections o Subsection 1 is further divided into paragraphs (a) and (b). The former section 312, \·Jhich required an accused person to have been detained by the Police, has been retai."'l.ed as pr-i.ragraph (a) o But pnragraph (b) does not have such a requirement ari.d that is. the one m1der which the respondent WM charged. Despite that error, for the rea.sons we have given, we find that that charge, too, was not proved. As for the remaining six charges; counts three to eight, the"ir proofs depend on who is Vena.nee Mwakyembe o In four counts, that is, counts three: 1 six, seven, and eight, the accusations are giving false information to a person employed in the public serviceo In all thes·e counts the respondent is s0-id to have presented himself as Venance Mwakyernbe. He told one official that the original Registration Card of the 1'1erceds Benz TZC 3972 was lost, another official wns made to write a staterncnt of a fictitious Venance Mwnkyembe, and two other officials were made to believe that the respondent WD..S the owner of certain parcels of la~da In the fourth cow1t the respondent was charged with making a document without authority. This was when he wrote a letter as Venance }'i\,•akyembe applying for a duplicate Registration Card for the vehicle •rzc 39720 In cou...'1.t five he was charged with obtaining registration by false pretences·, that is 1 when he obtained the duplicate Registration Card for the vehicle T;,;c 3972. • •• /11 11 Mrs. rviakuru said that Venance Mwakyembe was another name of the deceased and not another Drnn0 of the respondent. As proof of that the learned Senior State Attorney pointed out that in the Certificate of Occupancy (Exho PZO) the deceased was referred to as ··,the guardian of Venance hwakyembe (i"li.---ior) ;; • She so.id that the certificate wns issued on 16/08/93 while the respondent wa,s born in 19590 Thus 111hen Exh .. P20 \,,::i.G iss ucd he was 34 ye2..rs oJ.d • He was not a minor o Then Mrs .. Malmru pointed out that the respondent introduced to D/Cpl Vernaon (PW13) another person. as Venance Mwal01embe. !3he also said that a letter was written by the respondent. Prosper Mwaluka.sa, together with another person called Venance Mwakyembe to the Director of Criminal Investigation (OCI)., Two different signatures were scrib°b't~d at the end of that letter. t-frs. Makuru argued that that showed that the r~spondent is not J.. -~:;~--1,j . i Venance Mwakyemb(~.' Lastly; the learned :.:.em.or f)tate Attorney warned the court thn.t PWs 27 and 29 did not tell the truth and so, their evidence should be taken with caution. Regarding Bxh. P20, Dr. Lamwa.i pointed out that the letter or fo.rms applying for rogistro.tion were not produced. ~:hese 7 he said 1 would have shown who made the application and whether Venancc Mwakyembe was referred to as a minor A On the contrary, the learned advocate said, I• there is only a J.:,,tter from the Regional Land Officer, Mbeya, addressed to the Registrar of Titles,_· Mbeya, instructing him to regisk·r tho plot the way it b.a.s been registered. 'I'he Ropubhc brought PWs 27 to 29 who were the father, the mother and the elder sister of the respondent. Mrs o Hakuru asked us to take their evidence with caution. But these were prosecution witnesses 0 Mrs. Makuru could not give us a satisfactory reason why these three witnesses were not declared hostile witnesses., Had that been done, ii I i 12 their evidence, would ho.VE: been totally disr<:,gn.rq.ed., Dr. Lamwai pointed out, and properly so, th&t the father had shown that he Wfl.S going to support the caGe of the respondent. Assistnt Inspector of Police Felix liw0yemamu (PW1), the investigating officer, told the trial court that :;Tho accused father jj/vii2Jj told me that the accused \•ias Venance l•h1akyembe (a traditional name baptize by his father):.. So, the prosecution was quite aware what the father, PW27, was going to say in court even before he was brought into the court. In view of the request by Nrso Makuru, one wonders why Plti27 wo.s called as a witness at all. We agree with Dr .. Laim·1ai that these three witnesses are better placed to know whc1.t are the oth0r names of the respondent than PW1, the investigator i PW3 1 a lcmd officer in Vibeya, PW11, a prin1ary school teacher of the respondent an.d PW16; a businessman viho allegedly sold a plot to the deceased~ Nrs o Makuru pointed out the letter to the JX:I U~xh .. P6) which clearly showed thc:.t Vena.nee lh.rak<Jembe and the respondent are two different persons. \'ie must admit tho.t this has exercise our minds a great deaL Howcvers the respondent himself gave an explanation in the tri2,l court when he said: This is my letter (author thereof) I wrote I with my nar1,es of difforent people due to the then surroundinGS there were two motor vehicles na1nely. •rz:,c 3972 M/Benz Saloon (mine) and TtF 763 Audi Sports Turbo (which m/v was the property of my parents who wer8 then in Dar for the same. I so wrote the letter because the cornplai,vi.ant \Vere just at the corner int0nding to bring them here nt Mbeyao It was my style adoptod so that I convince the DCI all the: good of our motor vehicles;. As for the phrase ·'sate kwa po.moja'· in the letter ••• /13 13 :in question, it means both my parents ctnd I 111ere the ol-.rn;rs of the motor vehicles • .C.:que,lly so, I signed at the bottom differently. 'rhe pi·osecution could finally prove it, if could they go about it scientifically ( it is my personal handwriting) •••• ('I'he recording is so pood) That is a probabk expl0.nation. 'l'he reSi)ondent w,;1.nted to put pressure on the DCI to release the vehicles. ~.'hat letter at pest could be an indication of the weakness of the case for the defence but· it is trite law thnt the weakness of the defence should not be taken to substitute the onus on the prosecution to prove & CQSe beyond reasonQble doubt. \:Jc agree \~ith i"1rs. Makuru in ,,.:· her ~t?-bmission ... ,. that an appellate court should not lightly interfere with;,,the triai court es finding of credibility. ·~ '.. ' . . MOSHI, J. h:ims8lf was conscious of that when he said, and rightly so, trot: The question of credibility of a \vitness on the bas is of demeanour is the monopoly of the trial court. However, credibility is not assessed entirely on demeanour. Reliability of a witness can also be established by considering his test:imony in the context of the whole evidE:nceo There could be self~contradictions or conflicts between one witness o..."ld another or others• LUGAKINGIHA, J. ('as he then was) s2,id so in effoct~ :',J\11 appellate court will not lightly interfere in the trial court's f:inding on, credibility unless the evidence reveals fundamental factors of a viti:.::.ting nsture to which the trfal court did not address itself or address it self properly 1:. 0 0 ./14