19900519 TZHC Dar es Salaam

T\f\Q~ct ~ D(µ{ ~ec{=Jctc;.~ IN 2.'HB HIGH COU_;_{'l' uF 'l',.,M:,,d.11-1. 1.T Di~!, .c..S S1,L;...,,}1 il1~d:.LLHT.1:i JULL:i.LilCT10N hlGh CuUi,T h:CvNuhIC CltJ.JviLt> rtr'.l:'.t:.:aL Nlio G/88 0nlGl~AL ~CvNUhIC ChlNbb C=oh ~u. 40 UF 1987 L1.c.,:r"u ... tL J. ~. KHiGlJON £Jui.,: • .h.wiJl.U:B.:NT i-i,,GLST1u-i'l1£ ----··----- L Cl p O 1:-' 0 0 0 0 0 0 0 0 0 0 0 0 • 0 0 0 • 0 0 0 0 0 ' 0 0 C, 0 0 0 0 0 i-Ll.):P Jl;11~l'IT (Uriginal ~rosecutor) versus W111Y M\Ji.IJllJJ!i & 2 OTH1:.r,b ••••••••••• 0 .KciSPONDENT (uriginal Accused) J U iJ G M £ Ill T ~Dv, J: The court below helc:l th&t the Hepulilic: ha.cl not established a prima fctcie case against the accused to require them to defend them~ selves a.nd so it acquitted tliem. 'l'he Director of Public Prosecutions was aggrieved by the acquittal and has filed this a~peal at~inst lhe1. ,:,.t the hH1.ring of th1:: al:J:l?eal the Director of ~ublic i'rosecutiou,; was represei~ed by Mr. K&tluri,learned StLte Attorney. Mr. Ngesula · ~~pearetl for the first respondent, Willi MwQijibe• Mr~ Mkotte for the third respondent lllavin h.h0.t.:.u u.nc.i. th& secunu rcs:i,.onclent .Stephen Mwuseba ap~a&retl in ~cison. Willy kwaijibe w~s first ~ccusetl in the court b&low, St0phen Jviwusebn anG. Navin Kh1;..t.:.:.u w~re secon-:t etnJ. third C(ccused resp~ctively. I will reffer to them in this jutlement us the accused- I The o.cG used were ch[,;.ri;ed· as follows in the District Court:- ~t count: - issunncG of air tick~ts without the per-ission of the ~unk of T&nzbnia. ,¥arti9,2l<--rs: Willy i"lwnijibe, btephen Mwnsebu nnJ Navin Kha tau on the 6th ll&y of 0ctober, 1984, within the .city &nu rtegion.of Lures Salacm ditl jointly and to- 5ether ccuse the is·.sltance of idr Tickets No. 11744069 70?.5ti7/U88 through un ing.eaet:it ii.gent to wit M/S .Sce.nJ.inc:.via 11irlines .System without the permission of the Dank ·of T~nzcnia. 2nd Count: Forgery. SJ;::...rtJc1.IL:.l:r:s:: vJilly' Mva.ijibe on or about the 6th clay of October, 19b4, within the City anQ hegion of Dnr es Salaam, with:intent to tlefr~ud or deceive, tlitl forge sn H■ T. L. U. No. 2G351 receipt purporting to show th..:.t it lu.,ll b1:;en issueu antl authorised by the Dank of T~nz~niu, ~ mLt~rial fuct which wus false and thereby ~cquired two tickets from Scandin&viun hirlin~s ~yst~ms. o•••••/2~ / ( \ ·"·· ,..,,,. - 2 - ... ~rd Count: - Forg~ry Particulars:- Willy Mw~ijibe on or about the Gth day of October, 1984, within the City of Dar es Balaam with intent to defraud or deceive did forge an applitation for Liookins of pasbage, by stamping it approved by Dank of TLlnz~nia while in fact it had not and thereby D.c4uiring two air tickets from Scandinavian airlines Systems. '1'he case which the firOSt:;Cution presented against the accused was that the first accused was an employee of a travel agency called Snlama Travel i-,gency. he booked i,ir passages anu obtained two air ti•kets from Scandinavian 1-drlines Systems for travel abroau for the thira ·a;.cused and his wife. The documents he presented to ijcandinavian hirline; Systems as authorising the booking antl issuance, of the tickets by the Dank of Tunzania turned out to be forged uocuments. These were a document called ;-,.T.L.H. and application for booking of pas;;;,age form. The court below held, as shown, that the above case did not amount t·o a prima facie case ae;ainst the accused petsons. Desides the celebrated case of ~amnal~la T. Dhatt V. R. (1957) I E. 1d:'R ,)l2, to which the learned m&gistr,:;;;te referred, on when a prima facic: case is ml:.cle out there is also the case of 1,li s/o namadhuni v.R. Law lie.J?orts of the High Court of Tl.tnz..:,ni& (1970) 2B. In .thc.t case Georges c. J., c:.s .he then wc.s, stc.ted L:.t p.30. 11 In o. pr.uctice Note (1962) IWLl< at p.227 the 0ivision~l Court Spoke l!S follows:- Those of us who sit in the Livision~l Court huve the distinct impression thc,.t justices tod ... y c.1.re being pursu.:,:tled o.11 too often to uphold a submission of no case. In the result, this court hc:Ls hc.tl on many occa.ssio.ns to St)nu the cc.se be.ck to th12;• justices for the bee.ring to be continuc:d with inevituble delay c.nJ increased ~xpenditure. ~ithout attempting to lay down any J:irinciple of lc:..w, we think th"'t L..S a mD~ter of practice justices should be GUiued by the following consiuerations:- A submission th~t there is no case to unsw~r may properly.be made antl upheld; (a) When there has been no evidence to prove an essentia.1 element in the alleged of1ence; (b) when the evidence adduced by the pros0cution hb.s bec:n so discredite~as a result uf cross-exG.minution or is so manifestly unreliable that no ren- sonable tribunal could sufely 6onvict upon it. i1.pnrt from these situation.a tribunu.l shtiulc'. not in general b0 (plled upon to rench u decision as to conviction or i.,C4uittul until the whole evidence which either side wishes to tc:ntler h&s been placed b~fore it. If, howevcril e••a•·•t;:'o3 , \ -~., - - 3 - fJ submission is mate th~t there is no ca&e to answer the decision should ~e~entl not su much on whether the aJju~icating tribunul (if c0mpelled to do so) w~ulJ at th~t st~~e convict or cc~uit Luton whether the evidence is such th~t a re~s0ncble tribunal might convict~ If a re-sonnble tribun&l might ccnvict on tue evidence so far le.id btfore it, there is a c ... se tu unswer. 11 This e.ppeo.rs to me as clee.r a t:,uide us can lie givE:n in a situation which is undoubtedly tricky .' 1 I at;r·ec with Georees C oJ., as he then was, unC. C.i,Jplying the above. guiJes to the present case, it appeurs to~= that nothing at all has been estE,blished a1::,ainst the secuw anu the third accused persons. There is nothing to show th~t they purticip~ted in obtaining the· forged documents presented by the firGt accubed to ~c~ndinavian ~irlines Sjstems ur that they at all particip~tetl in the forgeries~ The first accused w&s in the business of booking air pass&ges for customers. Once the thirtl accused paiJ him to ~o the work it was not the ccincern of his ( thirJ accused) to knov, whether the pa.i:,c,rs first accused used in obtaining the tickets anu bovking pass~ges were valid or not, fho.t was a matt~r for the first accused alonj, especially if he did not Jisclose to the thir~ accused, and there is no evi0ence here that he di~ so, th~t he had us0d forged documents to Look his passage and obto.in tickets. I hole tht:refore thc.t the court below correctly held in this Cc1se th;;.t the sec0nJ &nJ. thiru o.ccuu,d p~rsons h.::td no c""se to unswer in relation to the ch.:>.rges lo.iJ. The o.ppe ..,l by the Director of Public .l:'rosec.utions .:.eu.inst these C.cl-used/responllents is occorJingly Jismiss;;;cJ.. ~he p0sition of th~ fi~st uccu~~~ is tlifferent. He is the one who presentc,ll the forgeu. t.locuments li.nu m~,de the bookings. ne ho.J to explain how he came Ly them if he ~iu not forte them himself. I hold th... t the leurneJ m1..;gist1·<---te erred when hel<.l thL.t the first accused vJilly :Mw1..cijibe hctJ n9 cc..se to nnsw~r also. He haci o.. co.se to answer ~<~a.n:-:fo~s:;spect of hirn I allow the &1Jpe1....l filed by the Direct or of /. - \J • J O ·~~ /. 0.., .t:'ubli°c :i!r~~cutions. The first accused is tb o.ppe~r before the court ag~:t - I ~, '-:,., • ~ "'-. :bel.'ow.·.:and\t"J:1'e. court is to continue with the case by putting the first ,~ / . ' '. ;,'.',\ on ·.hi'.s J.erence in relation to 0 . UCCUS6U , , I l.,, '} I ..,...: the/Achar:e¼laid him. \',·;,) ';:.::, tlA. w--·c-0 . / J:,/ --- .• ., o o lo ./KYhNDO . / i.i11.i.C J;o bii.lJ1.1-,M JUDGE -~:9j~Jr,-Jvr<l.y, 1990 . Present: - Kr.:..J.uri, .State 1 1 . t t o r n e y ~ Mkatte for 3rd accused 1st ~ccuseJ in•person i,bs·ent: - Second accused. Ju~gm~nt LJeliver0d.