iluminatus mkoka vs republic 2001 tzca 24 30 july 2001

IN TIE COURT OF APPJrL,L OF TANZANIA AX jJa k Jjo oAli/VrtM ( CORAM: O S ANGAj J .A ., RAMaDnMI , . J . A . , And LUGAKINGI RA, J . A . ) CRIf-ilHAI APPEAL NO. 6? OF 1999 SfcTiiUijN ILUMINa TUS MKOKA....................... ... APPELLANT AT'D the: r e p u b l ic . . . . . . . . . . . . . . kl ^ j-ondsnt (Appeal from the dec isio n o f the Kirh Court o f Tanzania at Dar es Salaam’) ( Bubeshi, J . ) dated the 2nd day o f J u ly , 1999 in K.C. Economic Crime Casj. No. 3 ,J2.f .A°32 P^i^OWG j Q.lr' Jlj DuIIxji;_T KIoANGA, J . A . : The a p p ella n t was convicted by the High Court (Bubeshi., J . ) o f o c c a s io n in g -lo s s to a s p e c ifie d a u th o rity contrary to paragraph 11 ( 1 ) o f the F ir s t Schedule to , and se c tio n 59 o f , the Sconomic and O rganized Crime C o n trol A ct, 19&^, and was sentenced to 10 y e a rs ' imprisonment with an order to compensate the s p e c if ie d auth ority fo r the l o s s . He appealed to th is Court again st both con viction and sentence. At the hearing o f the appeal he was advocated fo r by H i . Luguwa, advocate, while the respondent Republic was represented by K iss Mkwizu, S en io r S tate A ttorn ey. Counsel fo r both sid e s did not seek to support the conviction and as we v/ere in c lin e d to the smr.e view wo a llo w the appeal a f t e r h earing counsel subm issions, quashed the conviction and s e t a sid e the sentence, re s e rv in g our reasons fo r doing s o . Vie now give our reaso n s. • • «/2 s 2 The ap p ella n t was a branch manager o f the defunct N a tio n a l Bank o f Commerce at Klim ani Branch in the C ity o f Car cs Salaam , A ctin g in that capacity ho auth orised cash payments, on various cheques, to one Abdalaah Mohamod D a li d a li , a fo llo w branch manager o f the s a id defunct Bank a t M 'landizi, Kibaya in the Coast Eegion, who operated two accounts at h is own branch under the names o f A bdallah Monsned I '-a lid a li and M adaila A b d allah Kohamed resp ^ c + i'/ sly . \.hiL= cha two accoun'-.a were m aintained a t the H landizi- -branch, the ap p ellan t authox-irrd payment o f the cheques in question at hit? Mlirr-ani branch. The p.-.'oceeds o f the cheques fo r which payment was so au th orised t o t a lle d TShs, 127,000,000/= p a id out frequ en tly a t short in t e rv a ls and extending only between January and July 1995*. I t turned out that the accounts o f th is ^-.stonier lacked funds to meet such payments, but at the time o f disaove-'ing th ’ s , the s a id Monamed A bd allah D a li d a li alic-? M adaila '•'.ii-.ii."’. ’ i.i.jii’s'J had absconded and has not been traced to date, aru the cheque,^ f i . a m s w h i - . r >he payments t o t a l li n g lS h s . 12*7,000.000/= were irade had a lso disappeared,. The prosecu tion , th erefo re charged the a p p ella n t fo r r e c k le s s ly a u th o risin g payments without a sc e rta in in g that the payee’s accounts at the M lo n d izi branch had funds to meet the payments, In his defence the ap p ella n t a sse rte d that he did a sc e rta in the a v a i l a b i l i t y o f funds a f t e r seein g the endorsement by the K la n d is i branch manager o f such words as 'Good Customer1' or "Good fo r Funds'1 ’ on the reverse sid e o f the cheques in question . However, the t r i a l judp;« r e je c t e d the defence and proceeded to convict and sentence the ap p ella n t as above sta te d , hence th is a p p ea l. The c r u c ia l question both at the t r i a l and in th is appeal was whether i t was proved that the ap p ellan t did not a sc e rta in on the a v a i l a b i l i t y o f funds b e fo re a u th o risin g the payments in question. The burden was on the prosecution to prove th is but the task was obviously made d i f f i c u l t by the .../3 - 3 - disappearance o f the cheques in qu estion . In an attempt to -discharge that burden tho prosecution la d secondary evidence c o n sistin g o f copies o f the s a id cheques. However, that atte^p-. a ic a snag when i t turned out that the copies so tendered did not show tho back sid e oi the cheques: only the fro n t sid e usa shown. Vihe re upon the prosecution sou.yht icav's o f the court to tender in evidence m icrofilm s o f t^e cheques in order to reproduce c* p rin l -cherexrom copies ,it/owing the back t c'.e c f the cheques, and thereby to aeren strate that th..rt- wa^- no ;i*. at tU*» back o f the cheques confirtfing the CvVailel.iiity o t fvu’ d':, as ci3s«rtc-.i by the a p p e lla n t. M ic ro film was described as a technique fo r the purposes o f-k e e p in g and re ta in in g bai-I-c doe\<nen ts c r recc^ds in a more perKa- \ lows s u s c e p tib le to destruction or l o s s . A docitiom:, a. e.: .-g :.3 ii; .hie c ase, is passed through a saicrcX iX machine -.inch automat .’.c a lly photographs i t both s id e s . The document is then developed and re ta in e d in c a rt rid g e form u n t il when i t is req u ire d in which case copies may then bo p rin te d or reproduced from i t . The defence objected to tho a d m is s ib ilit y o f the m icrofilm s in evidence sayin g tnat the copies whic’* i-c was intended to p r in t from them b e la t e d ly showing the back side o f the m issing cheques should have been put in evidence at the time the copies showing only th'-s fro n t sid e o f the cheques were tenderea in evidence, i'o admit such evidence at th is stage amounted to re-op en in g in v e stig a tio n and mailing out a no* case c-gains'j the a p p e lla n t. In any case, i t was fu rth e r contended, such evidence was suspect and o f no probative v a lu e . However, the o b jec tio n was o v erru led , the m icrofilm s were received in evidence and copies showing the back side o f the m issing cheques were reproduced or p rin te d out o f them by ordor o f the c o u rt. The copies so reproduced bore no endorsement cn 'hack side - k - o f the cheques as to a v a i l a b i l i t y o f funds as was a sse rte d by the a p p e lla n t. That was the b a s is fc r the t r i a l jud^e r e je c t in g the a p p e lla n t 's defenco. The issu e in th is appeal turned la r g e ly on the a u th rn tic ity and r e l i a b i l i t y o f the m icrofilm evidence which, as pointed out, .was the b a sis fo i- the t r i a l court r e je c t in g the a p p e lla n t ’s defence. The ap p ella n t contended that b e fo re authorising, payment he saw on the back o f tho m issing cheques en d o rsem en t, by the M la n d izi eranch rv-ii- ^er l:o the e f fe c t that the chequcs wore good fo r payment. But the copies reproduced or p rin te d from the m icrofilm s o f the cheques show no such endorsement on the back s i d e , A number o f s e rio u s questions liave been r a is e d concerning the m icrofilm s and the copies p rin te d from them only b e la t e d ly , upon court o rd e r, showing no endorsement on the reverse s id e . The id e n tity o f the person or persons who photograph;.-d th? .’ is s liir ch« :--'s fo r the purpose o f p re se rvin g them in the m icrofilm s w , not ectabl is li-J . The pi'osecution put forward PW9i C h ristin e i'ialamba, as the person who photographed the m issing cheques and processed the m icrofilm s or as the person who su p erv ised the c le rk s to do s o . But the witness was not photographing the cheques and pro c e ssin g the m icrofilm s a l l the tim e. She did that job only when the c le rk s were not there, otherw ise she used to superT ise the c le rk s to do i t . The s a id c le r k s , however, did not giv e evidence, nor were they i d e n t i f ie d . Furthermore PW9 cou ld not recogn ise any o f the micro film, copies, as being cnose o f th« m issing cheques -which she photographed and processed or su pervised the clerics to do s o . She s a id she could not id e n t ify or recognize any o f the cheques because she used to deal with so many cheques. To make matters worse, she s a id that when processin g the cheques she used to look a t the fron t sid e o n ly . And l a s t l y , the m icrofilm s were not produced from PV9's custody. They were re trie v e d from what was described as "Dar es Salaam Zional O ff ic e - Metro O ffic e '-- but no one from tnat o f f i c e was c a lle d to .../ 5 - 5 - t e s t i f y on how the m icrofilm s were receiv ed and preserved th e re . There i s , th e re fo re , -no cogent evidence to prove whether o r not the back s id e o f the cheques was m icrofilm ed and i f so whether the m icrofilm s th e re o f were kept in tact and not tampered w ith . In the circum stances, t h e re fo re , the au th e n ticity o f the m icrofilm ed copies tne <uissing cheques p rin te d out only b e la t e d ly upon the order o f the court was, to say the le a s t , qu estion ab le. Counsel fo r both cii.ec- •v,b«.j t hed that the m icrofilm copies r e la t in g to the back side o f the m issing cheques were wrongly adm itted in evidence in ncn-compliance with p ro v isio n s o f section s 78 and 79 o f the Evidence A c t, e s p e c ia lly as the copies were not at any stage examined with the back sid e o f the o r ig i n a l cheques. That c ritic is m is qu ite ju s t i f i e d , and that p a rt c l the evidence o>.i£,nt to nav~ been held in a d m is s ib le . The other piece o f evidence * : l i e d on by I’.-.. —? ia l ccurt to convict the a p p e lla n t was that the a p p e lla n t, in au th o risin g payment o f the cheques, acted r e c k le s s ly find in t o t a l d isre g a rd o f the normal banking p ra c tic e or procedure. This fin d in g was a lle g e d ly based on the evidence o f PW2, Fatuma Kkangara, who, i t is a lle g e d s a id that the normal banking procedure re q u ire d the a p p e lla n t, b efore a u th o risin g the payment, to send a teste d message to the responding M la n d iz i branch fo r confirm ation as to the existen ce o f the customer's account there and the a v a i l a b i l i t y o f funds, and that when the witness .asked the a p p e lla n t i f he had taken such precau tion s the ap p ellan t r e p lie d that he knew what he was doing and that the cheques would not be dishonoured. But even assuming that th is pointed to the a p p e lla n t 's g u ilt,, the point is that th is statement is nowhere to be found in PVv'2's evidence in c o u rt. It is to be found in the f i n a l submission by the prosecuting attorn ey who a tt r ib u te d i t to F«v2 b u t, as alre ad y s a id , there is nothing lik e i t in PV.'2's evidence in c o u rt. With due , . ./o 6 res.pect tc the learnoo t r i a l judge, she wrongly acted on the statement to tho a p p e lla n t ' k detriment without bc-iri/: sc-.tiafiw!d that the statement d id , in fa c t , form part o f the recorded evidence o f PW2. Once the evidence oi' niicroiilins and the " a id statement wrongly a tt r ib u te d to PW2 arc discounted, there is nothing to support the a p p e lla n t 's conviction# The t r i a l judge in her judgement lamented that the in v e s tig a tio n and the prosecution o f th is case hi c e rta in aspects l e f t a lo t to bo d e sire d . Indeed she should have gone fu rth e r and found that the evidence as adduced, although i t cast a lo t o f su sp ic io n on the a p p e lla n t, f e l l fa r short o f the r e q u is ite standard o f p ro o f o f a c rim in a l charge. As already intim ated, h is s Kkwizu, learn ed S en io r State Attorney fo r tho respondent R epu blic, did net seek to support the ap p ellt’- n t 's con victio n , and fo r the reasons b r ie f ly sot out herein above, w& are s a t i s f i e d that she took the riy h t d e c isio n . Tt is fo r these reasons that '.,e allow ed the appeal and se t aside the conviction and sentence with an order fo r the a p p e lla n t 's immediate re le a s e from p rison unless he was otherwise la w fu lly detained th ere. DAT&D at DAI; £T, BALAAM th is 30th day o f J u ly , 2001. fi.K. KKANGA JUSTICE 01' Al-VEAL A ,b L-. 1-iAi'lADriiiJ'i I JUSTICE Or' APPEAL K.o .K.LUGAKIi-iGIRA JUoTICK OF Ai-P&iL I c e r t i f y that th is is a true copy o f the original ( F.L.K . .■Af-:j^-iLI ) Dh'i e""Y