Emmanuel Daudi Mollel v The Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA CRIMINAL APPEAL NO. 20240105000000437 (Appeal from the Judgment of Kahama District Court, in Criminal Case No. 197 of 2023 delivered on 18th August, 2023 before Hon. E. P. KENTE, SRM) EMMANUEL DAUD MOLLEL…………..…………………….....……….. APPELLANT

VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT

JUDGMENT Date of Last Order 15.07.2024 Date of Judgment: 07.10.2024 MWAKAHESYA, J.: In the District Court of Kahama the appellant and Julia d/o Peter Hotay (the second accused) were charged as follows: “1ST COUNT

STATEMENT OF OFENCE CORRUPT TRANSACTION Contrary to section 15(1)(a) and (2) of the Prevention and Combating of Corruption Act (CAP 329 RE 2019)

PARTICULARS OF OFFENCE EMMANUEL DAUDI MOLLEL and JULIA PETER HOTAY on diverse date between 26th day of February 2021 and 1st of March 2021 at Kahama Municipal Council’s office within Kahama District in Shinyanga Region being an employee of Kahama Municipal Council as a Legal officer and Revenue 1 Officer respectively, did together or jointly corruptly obtained Tanzania Shillings Three Hundred Thousand only (Tshs 300,000/=) for themselves from one ABEL ZEBEDAYO as inducement to forbear to take legal actions against him for contravening Kahama Municipal Council bylaws, the matter which is related to their Principal’s affairs. 2nd COUNT

STATEMENT OF OFENCE OBTAINING MONEY BY FALSE PRETENCE Contrary to section 201 and section 302 of the Penal Code (CAP 16 RE 2019)

PARTICULARS OF OFFENCE EMMANUEL DAUDI MOLLEL and JULIA PETER HOTAY on diverse date between 26th day of February, 2021 and 1st day of March 2021 at Kahama Municipal Council’s office within Kahama District in Shinyanga Region being an employee of Kahama Municipal Council as a Legal Officer and Revenue Officer respectively, did intentionally deceive and fraudulently falsely obtained Tanzania Shillings Three Thousand only (Tshs 300,000/=) for themselves from one ABEL ZEBEDAYO purporting to be a fine to wit they knew was not true. 3RD COUNT

STATEMENT OF OFENCE UTTERING FALSE DOCUMENT Contrary to Section 342 and section 337 of the Penal Code (CAP 16 RE 2019)

PARTICULARS OF OFFENCE EMMANUEL DAUDI MOLLEL and JULIA PETER HOTAY on 1st day of March 2021 at Kahama Municipal Council’s office within Kahama District in Shinyanga Region being an 2 employee of Kahama Municipal Council as a Legal Officer and Revenue Officer respectively, knowingly and fraudulently did utter to one ABEL ZEBEDAYO a document to wit receipt No. 118119 dated 01/03/2021 purporting to be genuine and issued by Kahama Municipal Council, while to their knowledge they knew to be not true. 4th COUNT (For the 1st accused only)

STATEMENT OF OFFENCE STEALING BY PUBLIC SERVANT Contrary to Section 370 of the Penal Code (CAP 16 RE 2019). PARTICULARS OF OFFENCE. EMMANUEL DAUDI MOLLEL on diverse date between 26th day of February 2021 and 1st day of March 2021 at Kahama Municipal Council’s office within Kahama District in Shinyanga Region being an employee of Kahama Municipal Council as a Legal Officer knowingly and fraudulently did steal Tanzanian Shillings Three Hundred Thousand only (Tshs 300,000/=) the property of Kahama Municipal Council.” It was the prosecution’s case that, on 22.02.2021, following an operation by the Kahama Municipal Council/Kahama District Council (the Council) against welding businesses that were conducted in prohibited areas, Abel Zebedayo’s (PW2) working tools were confiscated. On 26.02.2021 when PW2 went to the Council to pay a fine of TZS 3 300,000/= so that he could reclaim his working tools, he met the appellant who told him to give him the money and he could come later on to collect the receipt. PW2 complied, and on 01.03.2021 he was given a receipt by the appellant bearing numbers 118119. However, the said receipt was forged as it had already been used in a transaction dating 19.02.2021 where one Adam Said deposited TZS 120,300/= in the Council’s bank account, but when PW2 took the same to another office where he was supposed to present it (the community development office),

he was told to return it to the person who gave it to him so that he could sign it acknowledging receipt of the fine, PW2 took the receipt to the appellant who then signed it, recorded his position and handed it back to him and PW2 in turn presented it again at the community development office to one Amir. At the community development office, he was asked about the source of the receipt and was then asked to record a statement. Frank Masilamba (PW1) an investigation officer from the Prevention and Combating of Corruption Bureau (PCCB) was the investigator. He gave evidence that in his investigation he garnered that the receipt with numbers 118119 was used in 19.02.2021 by one Adam Said for the payment of TZS 120,300/= and that when PW2 made payment he had not previously been issued with a control number, 4 contrary to the procedure used by the Council and the monies were not paid through the bank, but rather cash was paid to the appellant, again contrary to procedure. Specimen signatures of the appellant were taken to a handwriting expert and forensic analysis confirmed that the signatures tallied with the one on the receipt issued to PW2. He tendered the said receipt as exhibit P2 and the letter from the handwriting expert as exhibit P4. He concluded that exhibit P2 was forged. PW2 gave evidence that on 26.02.2021 he gave TZS 300,000/= to the appellant upon the latter’s

request so as to pay the Council’s fine and was on 01.03.2021 given a receipt (exhibit P2) by the appellant. Amir Mussa (PW4), a legal officer at KMC gave evidence that on 01.03.2021 he was handed exhibit P2 by PW2 and it was endorsed by the appellant and when he took the same to one Yazid Ishengoma he was told that it was forged. PW4 identified exhibit P2. Stephen Magala (PW6), a solicitor at the Council and head of the Legal Department, testified that the receipt bearing numbers 118119 and dated 01.03.2021 presented by PW2 bore the appellant’s signature and the same was forged. 5 Joshua Charles (PW7), a cashier at the Council, gave evidence that on 01.03.2021 PW4 came to his office with receipt No. 118119 dated the same day and it bore the name of PW2 and upon crosschecking with the account of the Council he found the amount of TZS 300,000/= which was on the receipt had not been deposited. PW7 identified the signature of the appellant on the receipt, he was familiar with it because he had worked with the appellant for a long time. He also confirmed that the receipt had already been used for another payment. Yazid Issa Ishengoma (PW8), a bursar/accountant at Kahama the Council, gave evidence on the process of payment to the Council. He stated that when a customer wants to make a payment he must be given a control number by the Council’s cashier and then the customer goes to

pay the amount due at the bank or through the Council’s agents and the payment will reflect on the Council’s account. Then a receipt is generated and that confirms that payment has been dully made. He went on to state that on 01.03.2021 one Amir approached him to verify if a receipt numbered 118119 for a sum of TZS 300,000/= was valid and when he (PW8) entered it in the system he found that the same had been used for payment of TZS 120,300/= by one Adam Hassan Said. PW8 identified exhibit P2 and recalled that it was the same that was handed to him by Amir for verification. 6 Fadiel Sawe (PW9) a Manager of NMB Bank, Kahama Branch where the Council operated its own source revenue account (No. 30610001795), gave evidence that he was requested by the PCCB to release information concerning the said account, specifically regarding proceeds from 19.02.2021 to 02.03.2021. He testified further that, on 19.02.2021 one Adam Hassan Said had deposited TZS 120,300/= on the said account. He tendered the bank statement as exhibit P7. PW9 also confirmed that TZS 300,000/= was not deposited in the said account on 26.02.2021 and there was no deposit of TZS 300,000/= on that date. Furthermore, there was no deposit whatsoever on 01.03.2021. Moses Massawe (PW10), a police officer attached to the forensic bureau, gave evidence that on May 2021 he, at the request of the PCCB, examined a receipt from

the Council bearing numbers 118119, dated 01.03.2021 as against the signatures of one Emmanuel Daud Mollel (sample signatures and those on papers used by him in the ordinary course of business). Having compared the signatures, through stroke formation, stroke arrangement, spacing pen pressure, pen speed and general appearance, he concluded that the signatures was of the same person, that is, the appellant. 7 Frank Yusto Masilamba (PW 11) an investigator from PCCB, gave evidence that he collected “exhibits’ from the DED Kahama and acknowledged their receipt. In his defence, the appellant gave evidence that he was employed by the Kahama Town Council as a Ward Executive Officer II (WEO), and he reported for duty on 19.06.2015 and was stationed at Wendele Ward on 10.07.2016. He also worked the same position at Mhungula Ward. He also testified that he acted as a Legal Officer at Kahama Town Council on various dates and that on 22.02.2021 and 01.03.2021 he was working at Kagongwa Ward as a WEO. He also gave evidence that from 2015 to 01.11.2021 he was working as a WEO. He denied ever meeting and serving PW2. In the end, the trial court convicted the appellant with the offence of corrupt transaction (the first count) and acquitted him of the remaining counts (2nd, 3rd and 4th) and sentenced him to pay a fine of TZS 500,000/=. It is against that conviction and sentence that

the appellant has preferred this appeal. Initially, the appellant had filed a petition of appeal containing one ground complaining that the case against him was not proved to the required standard, i.e., beyond reasonable doubt. With leave of this 8 court he filed a supplementary petition of appeal containing a further 13 grounds which are to the effect that (quoted verbatim): 1. The trial Magistrate erred in law and fact by convicting the appellant while the document alleged to have been forged was found genuine; 2. The trial magistrate erred in law and fact by entering judgement against the appellant herein without taking into consideration the truth that the prosecution brought only one bank account to build their case leaving behind another collection account as proved by DW2; 3. The trial Magistrate erred in law and fact when convicting and sentencing the appellant without putting into consideration that the prosecution failed to bring the key witnesses who could rather made the court to reach fair justice; 4. The trial Magistrate erred in law and fact by convicting the appellant while the prosecution failed or rather refused to bring the footage of the CCTV cameras and the visitor's book to prove their allegations; 5. The trial Magistrate erred in law and fact when convicting the appellant with the offence of corruption basing on the defective charge sheet; 9 6. The trial

Magistrate erred in law and fact by failing to evaluate evidence properly and reach into unjust decision; 7. The trial Magistrate erred in law and fact by convicting the appellant despite of the great contradiction in the testimony of the prosecution witnesses; 8. The trial Magistrate erred in law and fact when relied on unreliable testimony of PW2 and eventually convicted the appellant with the offence of corruption; 9. The trial Magistrate erred in law and fact when erroneously admitted exhibits and consequently relied upon the tendered exhibits in convicting the appellant; 10. The trial Magistrate erred in law and fact when shifted the burden of proof to the appellant by erroneously considered and relying upon opinion, assumptions and other extraneous matters which were not supported in evidence; 11. The trial Magistrate erred in law and fact when erroneously concluded that appellant was properly identified and respectively recognized; 12. The trial magistrate erred in law and fact by convicting the appellant herein basing on the evidence provided by the 10 prosecution side with no any ingredients of the offence charged; and 13. The trial Magistrate erred in law and fact when violated the criminal procedure and eventually convicted and sentenced the appellant based on irregular proceedings. At the hearing of the appeal the appellant appeared in person, unrepresented, while

the respondent Republic was represented by Ms. Caroline Mushi, learned Senior State Attorney. The appellant, having elected to submit first and for the respondent to reply afterwards, sought leave of the court, which was granted, and abandoned the substantive petition of appeal. He also dropped the 9 th and 10th grounds of appeal in the supplementary petition of appeal. On the first ground of appeal, the appellant submitted that, the base of the charge against him was a forged receipt. However, the receipt was not proved to be forged during trial. Also, PW3 was given back his items after paying the fine and the same receipt that was said to be forged was used to hand him back his items. He was of the view that, the conviction was not proper. On the second ground of appeal, he submitted that, during trial, the 2nd accused was quizzed on the number of collection accounts 11 belonging to Kahama Municipal Council, her response was that there were three accounts (NMB, CRDB and NBC). It was the appellant’s contention that, it was the prosecution’s case that the money received by him was not deposited in a collection account of the Municipal Council, and brought a witness to testify on the NMB account only and not the other accounts. This in turn took away his right of cross examining on these other two bank accounts (CRDB and NBC). He beseeched the court to draw adverse inference

against the prosecution. The appellant referred the case of Allen Frank Maguzo v. Republic, Criminal Appeal No. 46 of 2021 – HC Moshi (unreported), where the court explained the principle of adverse inference and its effect. On the third ground of appeal, the appellant submitted that, there were certain persons named by the prosecution witnesses (one Audax, Adam Hassan Said and Fanaeli) these persons were very crucial to the case and they should have testified. Adam Said was said to have the genuine receipt, Audax was the one who determined the amount of fine to be paid by the complainant, and Fanael was named as the leader of the operation in which PW2’s goods were seized. It was his opinion that, Fanael should have testified that they arrested PW2. The appellant also referred to one Joel Ombeni Mlacha whom it was said to have been at the office when PW2 went to pay the fine. 12 It was the appellant’s suggestion that, failure of the prosecution to call these witnesses should lead to adverse inference being drawn. On the fourth ground of appeal, the appellant submitted that the prosecution failed to bring CCTV footage to prove his interaction with PW2 and the visitor’s register book to prove PW2’s presence at the Municipal Offices. He also pressed the court to draw adverse inference against the prosecution for failure to do so. On ground number six and seven, the appellant

submitted that the trial court failed to evaluate the evidence correctly and reached its decision based on the evidence of PW2 which was an oral account of events in the absence of other evidence (oral or documentary) to corroborate it. It was his take that PW2 gave contradictory evidence because at first, he testified that he gave the receipt to one Amir, later on he testified that he gave the receipt to someone who was at the office of community development, and later testified that, he went to pay the money at KADECO offices, but then changed his mind and said he gave the money to the legal officer. The appellant was of the view that the prosecution’s case was not proved beyond reasonable doubt. On the eighth ground of appeal, the appellant reiterated his submission on the sixth and seventh grounds of appeal. 13 On the eleventh ground of appeal, the appellant submitted that, PW2 was not known to him, and when PW2 was asked in court if he knew the appellant, PW2 responded that the appellant was seated to his right and then proceeded to point to a different person. On the twelfth ground, the appellant submitted that, the offence of corrupt transactions that he was convicted with, the prosecution failed to prove any of its ingredients. He submitted further that, the prosecution was duty bound to prove that the appellant and the PW2 had a relationship where the appellant

demanded money or PW2 wanted to give the appellant money in order for the latter to assist him. He submitted that, that relationship was not proved by any evidence of the prosecution. The appellant also submitted that, PW2 did not testify that he (the appellant) was involved in his arrest, which might have made sense when PW2 said he requested for money in order to help him get his confiscated items. He referred to the Court of Appeal case of Fabian Kazimoto Tomas v. Director of Public Prosecutions, Criminal Appeal No. 63 of 2023 (unreported) where it was held that it is expected that for an accused person to have a fair trial, the stated particulars should be informative enough and allege essential facts (ingredients) of 14 the offence required by law to enable the accused to align a proper defence. On the thirteenth and last ground of appeal, the appellant submitted that, the trial court violated a number of procedures in criminal trials. First, the procedure of chain of custody with regard to the receipt. The receipt was taken by the Municipal Director who took it to PCCB, it was the receipt that PW2 said he had given to Amiri. There is no evidence that the receipt was given to the Municipal Director, therefore the seizure from the Municipal Director was bad in law. Second, the variation of the charge and the evidence tendered in court. The charge brought to court by the

Republic had a count of corrupt transaction, obtaining money by false pretence, theft and uttering a false document. However, the evidence given did not tally with the offences in the charge. This made the appellant unable to properly defend himself. The appellant cited section 234 of the Criminal Procedure Act and submitted that its effect is that it is fatal when there is variance between a charge and the evidence adduced. 15 Third, the charge was defective, the sections cited were erroneous. A good example is stealing by a public servant. It was brought under section 370 of the Penal Code, uttering a false document was brought under sections 342 and 337 of the Penal Code, and obtaining money by false pretence was brought under sections 201 and 302 of the Penal Code. Fourth, the time for instituting the criminal proceedings. The appellant submitted that, PW1 stated that he was instructed to interview witnesses and seize the receipt on 22.04.2021. The case was filed 01.06.2022. Section 9(1) of the PCCB Act, states that criminal proceedings should be instituted within six months after seizing the suspected document or else they should seek an extension of time from the Director General of PCCB (a further six months). He submitted that, 22.04.2021 to 01.06.2022 is beyond the initial six months and a further six months that could have been extended by the DG - PCCB.

Therefore, with regards to the offence of corrupt transactions, the criminal proceedings were not instituted within the time allowed under the law. The appellant summed up his submission by praying for the court to allow his appeal, and set aside the conviction and sentence. 16 In reply Ms. Mushi, learned Senior State Attorney informed the court that the respondent Republic was resisting the appeal and supporting the judgment and sentence meted out by the trial court. She then countered the appellant’s submission in chief. Ms. Mushi submitted that, exhibit P2 (the receipt) was not genuine but forged and it was the appellant who prepared it against the procedures of the Council. The evidence of PW7 and PW8 proved that the receipt in contention was forged. PW7 testified that after interviewing PW2 and after looking in the payment system and the bank account of the Council he was able to detect that the number of the receipt that PW2 had tallied with the payments of one Hassan Said, who had previously paid TZS 120,300/=. She submitted further that, PW9 tendered a bank statement and the date that PW2 had stated that he paid the appellant did not correspond with any payment. This was with regards to the first ground of appeal and the learned Senior State Attorney urged this court to find it devoid of merit. Replying to the second ground of appeal, she submitted that, PW9 tendered a

bank statement of the account of Kahama Municipal Council, and the statement was for the period of 26.02.2021 to 01.03.2021. PW9 17 testified that the Council had only one account at his bank. Moreover, when PW8, a revenue collector, was testifying on how revenue is collected at the Council, the appellant did not cross examine him about the bank accounts. On the third ground of appeal, the learned State Attorney responded that, section 143 of the Evidence Act provides that there is no particular number of witnesses that is required to prove a fact and during trial the prosecution brought the required witnesses who were able to prove the facts. On the fourth ground of appeal, Ms. Mushi submitted that, even if CCTV footage was not brought to court, it is not fatal as PW2’s evidence was corroborated with that of PW3 and the totality of the evidence for the prosecution. Regarding the visitor’s book, PW2 testified that he was approached by the appellant at the entry of the Council, he could not have registered in the visitors’ book. On the sixth, seventh and eighth grounds of appeal, she submitted that, the evidence of PW2 was reliable and there were no contradictions. The same was also corroborated by PW3 up to PW8. On the eleventh ground of appeal, she submitted that, when PW2 was testifying he was referring to the person whom he gave the money 18 to as the “first accused” and in

the charge before the trial court, the appellant was the first accused. Therefore, PW2 knew the appellant. The learned Senior State Attorney conceded the twelfth ground of appeal. On the thirteenth and last ground of appeal Ms. Mushi submitted that, the handling of exhibit P2 was proper and exhibit P2 was not a thing that could change hands easily. Regarding the allegation of the charge varying with the evidence, Ms. Mushi submitted that the evidence adduced in court matched the charges the appellant faced, save for the first count (corrupt transactions). However, regarding the 4th count (stealing by a Public servant), she conceded that, the section establishing the offence was wrong. On the second count (Obtaining money by false pretence) she submitted that, the applicable provision was section 302 of the Penal Code. The learned State Attorney was of the view that, the errors regarding the offence(s) provisions were not fatal, as the particulars of the offences were read to the appellant which enabled him to ascertain the seriousness of the charges he was facing. Likewise, evidence was 19 adduced for all offences thus he was able to defend himself and was not prejudiced. She submitted further that, the anomalies are curable under section 388(1) of the Criminal Procedure Act. Ms. Mushi referred to the Court of Appeal decision of Jamali Ally @ Salum v. The Republic, Criminal

Appeal No. 52 of 2017 (unreported), where the Court held that, as long as the proper details were given by the prosecution (dates, victim etc.) then an accused is not prejudiced. Ms. Mushi finalized her submission by submitting that, this is a first appellate court therefore it can reevaluate the evidence and can convict the appellant with the other counts which he was acquitted. In rejoinder the appellant stressed that, DW2 was competent to testify on collection accounts of the Council as she was an accountant and she was not cross examined on that aspect. Regarding CCTV footage, he submitted that PW8 did not bring the system despite being requested to do so by the erstwhile accused persons and that PW2 testified that he came to his (appellant’s) office which is not outside the Municipal Offices. 20 The appellant agreed with Ms. Mushi that, this court can re- evaluate the evidence and proceed to deal with the counts that he was acquitted. Having gone through the record, grounds of appeal and relevant submissions of the opposing parties, it is now this court’s duty to determine the merit or otherwise of this appeal. I will start with the 6th ground of appeal for reasons which will become obvious in a short while. The sixth ground of appeal faults the learned trial magistrate for failing to evaluate the evidence properly and reach a just conclusion. Having gone through the

judgment, the learned magistrate simply summed up the evidence of both sides to the case and evaluated the testimony of PW2 where he found him to be credible and was impressed with his demeanour. The learned magistrate then, rather abruptly, concluded that the offence of corrupt transactions was proved and convicted the appellant with the same. At the same time, he acquitted the appellant with the remaining offences by conveniently stating that the evidence led against them was weak, no reason was given whatsoever. Thus, the 6th ground of appeal has merit. Having in mind that a first appeal amounts to a re-hearing (see Court of Appeal decisions of: Siza Patrice v. The Republic, Criminal Appeal No. 19 of 2010; Daniel Matiku v. The Republic, Criminal 21 Appeal No. 450 of 2016; and Kaimu Said v. The Republic, Criminal Appeal No. 391 of 450 (all unreported), in light of my observations, I feel duty bound to reconsider the evidence and come up with my own findings when dealing with the remaining grounds of appeal. In the first ground of appeal, the appellant is adamant that the document alleged to be forged was found to be genuine. With due respect I do not find it anywhere on record where exhibit P2 was held to be genuine. As correctly submitted by the learned Senior State Attorney for the respondent, PW7 and PW8 proved that exhibit P2 was forged. PW7, a cashier at Kahama District

Council, gave evidence that he crosschecked with the account of the Council and found that the amount borne on the receipt/exhibit P2 had not been deposited in the Council’s bank account. His evidence is corroborated by PW8, also an accountant/bursar of the Council, who crosschecked with the Council’s payment system and found that a receipt with the same numbers as exhibit P2, the numbers being 118119, had been used for the payment of TZS 120,300/= by one Adam Hassan Said. PW9 further corroborated the assertion that exhibit P2 was telling a lie when he gave evidence that a receipt bearing the same numbers as exhibit P2 had been used at a prior date, 19.02.2021, to deposit TZS 120,300/= by Adam Hassan Said. 22 This court is therefore convinced that exhibit P2 was found to be ingenuine. Thus, the first ground of appeal lacks merit. The second ground of appeal faults the trial magistrate for not taking into consideration that the prosecution brought evidence of only one bank account whilst leaving behind another collection account of the Council as proved by DW2. As submitted by the learned Senior State Attorney for the respondent Republic, PW9 gave evidence that his bank operates the revenue account of the Council, the appellant had ample room to cross examine him on whether there are or there might be other revenue accounts of the Council, but he kept mute. Thus, it can be

inferred that the appellant accepted PW9’s evidence as the truth. In the Court of Appeal decision of Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019 (unreported), the Court held that: “…We have held in our previous decisions, times without number, that failure to examine a witness on an important aspect depicts the acceptance of the truth of that testimony.” Again, in George Jonas Lesilwa v. The Republic, Criminal Appeal No. 374 of 2020, the Court held that: “It should be very elementary to state at this juncture that, an accused person is expected to cross examine prosecution witnesses with a view to challenging facts which are 23 disputed during trial. Failure to cross examine a witness on a material fact may lead the court to infer admission of that fact.” Thus, the second ground of appeal is equally devoid of merit. The third ground of appeal concerns an alleged failure by the prosecution to bring key witnesses. This ground of appeal need not detain us. Indeed, section 143 of the Evidence Act is crystal clear that no particular number of witnesses is required for the proof of any fact (see Court of Appeal decision of: Allan Duller v. The Republic, Criminal Appeal No. 367 of 2019, (unreported). In Khatibu Kanga v. Republic, Criminal Appeal No. 290 of 2008 (unreported) the Court of Appeal had this to say: “…in presenting its case, the prosecution is not

obliged to call all the witnesses, if it is satisfied that the witness at hand were sufficient…” If the prosecution felt that the witnesses it brought were sufficient to prove their case there is no wrong doing and adverse inference cannot be drawn unless the appellant proved that the same were material witnesses. In this case the appellant has simply mentioned them and referred to them as very crucial to the case. The third ground of appeal is therefore unmeritorious. Next, the appellant has attacked the alleged failure by the prosecution to bring CCTV footage in order to prove his interaction with 24 PW2. The learned trial magistrate who had the chance to observe PW2 was impressed by his demeanour and found him credible. The evidence of PW2 regarding interacting with the appellant, therefore, suffices to prove the same. CCTV footage would have corroborated the evidence of PW2, meaning its absence does not put a dent into his testimony. The fourth ground of appeal lacks merit. On the seventh and eighth ground of appeal, having gone through the evidence of PW2 I have failed to see the alleged contradiction. In his evidence in chief PW2 stated: “…On 26.02.2021 I went to pay the stated fine at Kahama district council. I directly went to the legal section it was on Friday. Before entering the said office, one legal officer came outside, the first accused came to me. He asked

me why I was there. I told him that I had gone there to pay the alleged fine. I asked if Amir was present. I was told that, the said Amir was not there. I told them I wanted to pay the alleged fine. The first accused told me that ‘nipe tu hela nitailipa wewe utaikuta risiti’…I then gave Tsh. 300,000/= to the first accused, I waited for the receipt. On 01/03/2021 I went back to the district council. I met him and he gave me the receipt. I was told to take the receipt to the community development office. At the said office I was told to return the receipt to the person who was given the money. I went back to the first accused and told him what I was told, the first accused signed the same and I took it back to the community development office, I was told to wait. I handed the receipt back, they started to prepare my tools. While there the said Amir came, he was with the receipt…” 25 And when cross examined by counsel for the second accused, PW2 stated: “…I was told to go to community development office. The receipt was signed by the first accused and I returned the same to one Amir. Amir took my receipt and I went with him I was told to stay outside…” From the above excerpt the allegation that the evidence of PW2 was contradictory seems to be nothing but the appellant’s imagination. The appellant has also submitted that there was no evidence to corroborate the evidence of PW2.

This suggestion is also unfounded. There is documentary evidence in exhibit P2 which corroborates what PW2 testified, and the same was found by PW10, to have been signed by the appellant. There is also the evidence of PW4, PW6, PW7, PW8 and PW10 who testified to the extent that exhibit P2 was forged and that the amount of TZS 300,000/= was never deposited in the Council’s account neither on 26.02.2021 nor 01.03.2021. The seventh and eight grounds of appeal are, thus, lacking merit. Turning to the eleventh ground of appeal, during trial, the appellant was positively identified by PW2. PW2 kept referring to the appellant as the first accused, and indeed in the charge sheet the appellant was the first accused. The appellant’s submission that when PW2 was asked by the court if he knew the appellant, PW2 responded 26 that the appellant was seated to his right and went on to point to a different person is unsupported by the evidence on record. There is no indication by the trial court's record that PW2 pointed to a different person, other that the appellant. The relevant extract from page 32 of the trial court’s typewritten proceedings read: “…This is the letter I am referring to. The said Mollely (sic) is here before the court he is here seated on my right side…” Therefore, the eleventh ground of appeal lacks merit. The appellant assailed the handling of exhibit P2 and stated

that the chain of custody was vitiated. With due respect, I do not think that the issue of chain of custody applies in this instance. Exhibit P2 was not found in the possession of the appellant, but was handed over by PW2 and ended up at the Municipal Director’s Office, only to be subsequently forwarded to PW11 and set the investigative wheels on motion. Moreover, PW4 in his evidence stated that the forged receipt, that was produced to him on 01.03.2021, bore the signature of the appellant and he identified the same (exhibit P2) when he testified during trial. At this juncture I find it opportune to deal with each offence that the appellant was charged with, albeit the drafting of the charge left a lot to be desired and it was not helped by the trial magistrate being unvigilant. 27 The first count that the appellant was charged with, and convicted of at the end of the trial, was corrupt transactions. Section 15 of the Prevention and Combating of Corruption Act reads: “15(1) Any person who corruptly by himself or in conjunction with any other person- (a) solicits, accepts or obtains, or attempts to obtain, from any person for himself or any other person, any advantage as an inducement to, or reward for, or otherwise on account of, any agent, whether or not such agent is the same person as such first mentioned person and whether the agent has or has no authority to do, or

forbearing to do, or having done or forborne to do, anything in relation to his principal's affairs or business, or (b) gives, promises or offers any advantage to any person, whether for the benefit of that person or of another person, as an inducement to, or reward for, or otherwise on account of, any agent whether or not such agent is the person to whom such advantage is given, promised or offered and whether the agent has or has no authority to do, doing, or forbearing to do, or having done or forborne to do, anything in relation to his principal's affairs or business, commits an offence of corruption. (2) A person who is convicted of an offence under this section, shall be liable to a fine of not less than five hundred thousand shillings but not more than one million shillings or to imprisonment for a term of not less than three years but not more than five years or to both. (3) In addition to a penalty provided for under subsection (2), the court shall where such person— 28 (a) is an agent, order him to pay to his principal, in such manner as the court may direct— (i) the amount or value of any advantage received by him or any of its part; (ii) part of the amount or value of any advantage received by him, and that the whole or part of the residue be confiscated to the Government; or (b) is an agent or not, order that the amount or value of any advantage received by him, or

any of its part, be confiscated to the Government.” [Emphasis added]. From the evidence on record, it was not proved that the appellant solicited any advantage from PW2 in order to do, or forbear to do anything in relation to his principal’s affairs or business. The evidence brought only proved that the appellant requested PW2 to give him money (TZS 300,000/=) so that the appellant can pay the same amount, which was a fine to the Council on behalf of PW2. The learned State Attorney for the respondent Republic also conceded that this offence was not proved. Thus the 12th ground of appeal has merit and is accordingly allowed. The second count was obtaining money by false pretence. The provision contravened were cited as sections 201 and 302 of the Penal Code. Section 201 relates to killing on provocation and is unrelated to 29 the appellant’s conduct which landed him in court. However, section 302 provides: “Any person who by any false pretence and with intent to defraud, obtains from any person anything capable of being stolen, is guilty of an offence and is liable to imprisonment for seven years.” Thus, section 302 is the proper charging provision coupled with section 301 which provides for the meaning of false pretence. Including section 201 in the statement of offence was erroneous. However, since section 302 creates the offence and specifies the punishment, regardless of the

anomaly, the appellant was made to understand the offence he was charged with and its requisite punishment and, in my view, was able to mount his defence accordingly. Thus, the shortcomings of the charge sheet are curable under section 388 of the Criminal Procedure Act. Next is to see if the offence of obtaining money by false pretences was proved. From the provision of section 302 of the Penal Code, in order to prove false pretence the following must be satisfied: one; there must be a false pretence; two, there must be an intent to defraud; and three, the person charged must obtain or cause another to deliver to another something capable of being stolen. See Jadav v. Republic (1971) H.C.D. n. 393. 30 In Jadav’s case (supra) it was held that: “The representation of a matter of fact is held to be false if the representor knew that it was false or that he did not believe in its truth, and this representation has to relate to past or present fact. It could not relate to the future for the simple reason that what is in future is unknown and could not therefore be said to be false…” [Emphasis added] Also, in Augustino Brown Chanafi v. Republic (1968) H.C.D. n. 73, it was held that: “to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action”. In the appellant’s case, evidence was led to prove that he induced PW2 to part with TZS

300,000/= in the pretence that he was going to pay the fine that PW2 was supposed to pay, and that inducement made PW2 part with the money which is a thing capable of being stolen. There was also ample evidence from PW7 and PW9 that the said sum was not deposited in the Council’s account. Therefore, I am of the view that the offence of obtaining money by false pretences was duly proved against the appellant. The third count relates to the offence of uttering a false document and the relevant provisions of the law were cited to be sections 342 and 31 337 of the Penal Code. Section 337 deals with the offence of forgery, while 337 deals with uttering a false document. Since it is the prosecution’s choice to charge an accused with an offence(s) they deem fit to charge, I can infer that they were interested in the offence of uttering a false document, and had no interest whatsoever in the offence of forgery. I also believe that, citing section 337 was not an anomaly as the same establishes the offence of forgery and provides for its punishment. Meanwhile, section 342 provides for the offence of uttering a false document and provides that the punishment for the same shall be the one provided for in respect of forgery in relation to that document. The question that now begs for an answer is, was the offence proved to the hilt? To constitute the offence of uttering a false document the

following must be proved: One; the document must be false in its material particulars about itself (it must be forged); two, the person uttering it must have knowledge of its falsity; and three, he must utter if fraudulently with intention to make another person to act to his detriment (see: Alley Ali and Another v. Republic (1973) LRT n. 43). 32 From the evidence adduced when previously determining the first and second counts, undoubtedly the appellant did utter to PW2 exhibit P2 which was a forged receipt having first made PW2 part with his money to the tune of TZS 300,000/=. Thus, the offence of uttering a false document was duly proved. The last count the appellant was charged with was stealing by public servant and the relevant provision was cited as section 370 of the Penal Code. The cited provision was wrong as section 370 of the Penal Code deals with falsely acknowledging deeds, recognisances etc. It reads: “Any person who, without lawful authority or excuse, the proof of which lies on him, makes, in the name of any other person before any court or person lawfully authorised to take such an acknowledgement, an acknowledgement of liability of any kind, or an acknowledgement of a deed or other instrument, is guilty of an offence.” The framing of charges is governed, amongst others, section 135(a)(ii) of the Criminal Procedure Act. It provides: “135. The following

provisions of this section shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or an information shall, subject to the provisions of this Act, not be open to objection in 33 respect of its form or contents if it is framed in accordance with the provisions of this section- (a) mode in which offences are to be charged – (i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence; (ii) the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence.” [Emphasis added]. The fourth count having failed to refer to the section creating the offence of stealing by public servant offended section 135(a)(ii) of the Criminal Procedure Act, and I find the same to be incurable. The thirteenth ground of appeal is wanting in merit as well. The issue of contravention of Section 9(1) of the PCCB Act need not detain us, the same has morphed into an academic exercise since the twelfth ground of appeal was found to have merit. In the upshot the appeal is partly allowed, the conviction for the offence of

corrupt transactions is hereby quashed and the sentence of a 34 fine of TZS 500,000/= is set aside. The acquittal for the offence of stealing by a public servant is also upheld. However, the appellant is found guilty of the offence of obtaining money by false pretence contrary to section 302 of the Penal Code and uttering a false document contrary to section 342 and 337 of the Penal Code. The appellant is hereby sentenced to imprisonment for four years for the offence of obtaining money by false pretence and four years imprisonment for the offence of uttering a false document. the sentences are to run concurrently. DATED at SHINYANGA this 07th day of October, 2024. N.L. MWAKAHESYA

JUDGE 35