20050901 TZHC Dar es Salaam

1 IN THE·HIGH COURT O~ TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO.37 OF 2005 (C/f R.M'S COURT OF DAR ES SALAAM IN CRIMINAL CASE NO.949 OF 2000)

BETWEEN ISMAIL ADEN RAGE ............... APPELLANT AND REPUBLIC .................. RESPONDENT [ An Appeal from the Judgment of the Resident Magistrate Court of Dar es Salaam at Kisutu in Criminal Case No.949 of2000 delivered on 23 rd February 2005 by Hon. SEME (PRM))

JUDGMENT MIHAYO,J: The appellant, Ismail Aden Rage, was convicted by the comi of Resident Magistrate of Kisutu on four counts of stealing contrary to section 265 of the Penal Code, one count of uttering a false document contrary to section 342 of the Penal Code and one count of obtaining 1noney by false pretences contrary to section 302 of the Penal Code. He was sentenced to 3 years imprisonment for each of the counts. The sentences were ordered to I ' \ ',. 2 run concurrently. He is aggrieved, and is no\)' appealing to this court against both conviction and sentence. In this appeal, he is being advocated by Mr. Ishengoma, learned counsel of Jurisconsults Law Chambers who was assisted by Mr. Walter Chipeta, learned counsel. The Republic is represented by Ms. Kabisa, learned State Attorney assisted by Mr. Mweyunge, lean1ed State Attorney. I thank the whole team for their valuable inputs. The facts on which both sides are on common ground are that at the material time, the appellant was the Secretary General of the Football Association of Tanzania (hereinafter to be referred to as FAT). In that capacity, he used to man the secretariat of FAT and supervise its day to day activities. He used to authorize payments and make payments to FAT creditors and other clai1nants. He used to pay for services rendered to the national football team, or pay players' allowances. In short, he was

the executive officer of FAT. Again, in his capacity as Secretary General, he ·- supervised the sponsorship agreement between FAT and Tanzania Breweries Limited (TBL) signed by one Muhdin Ahmad Ndolanga, the then Chairman of FAT, on behalf of the former and one Arnold Kilewo on behalf ofTBL. He also used to receive all donations to FAT on behalf of his employer. In short, he was the main actor on all FAT matters. \ ' 3 '\ ( On 26/5/97, one Leonard Thadeo (PW,}3) the Registrar of Sports Associations sent a letter (Exh. P55) to all Sports Associations which had this to say:- "Makatibu Wakuu wote Vyama vya Michezo vya Kitaifa Tanzania Bara. Yah: TAARIFA ZA MAPATO NA MATUMIZI 1994-1996 Kwa mamlaka niliyopewa, chiniya vifungu vya 19 (a-d) na 20(1-4) vya sheriaya BMTya mwaka 1967 na marekebisho yake ya mwaka 1971 ninaagiza uwasilishe kwenye ofisi ya Msajili wa Vilabu na Vyama vya Michezo taarifa za mapato na matumizi ya chama chako kvva kipindi cha kuanzia tarehe 1 Januari 1994 hadi Desemba 31, 1996. Aidha mnatakiwa kuanisha idadi ya mikutano iliyokwishafanywa na uongozi wako kwa kipindi cha miezi sita iliyopita kuanzia tarehe ya barua hii, ikiwa ni pamoja na mihutasari ya vikao hivyo. Taaria zote zilizokwisha kaguliwa na wakaguzi na zile ambazo · hazikukaguliwa ziletwe hapa ofisini kabla ya tarehe 3 Julai, 1997. Nawatakia utekelezaji mwema. Sgd. Leonard Thadeo Msajili wa Vilabu na

Vyama vya Michezo. " The letter was copied to "Kamishna wa Utamaduni" Ministry of Education and Culture and "Katibu Mkuu" National Sports Council. It would appear these reports were never submitted, which made PW13 to write yet another letter which again, I have to quote in extenso :- ' l 4 "Katibu Mkuu '/ FAT S.L.P. 1574 Dar es Salaam Yah: TAARIFA ZA MAPATO NA MATUMIZI 1994-1996 Baruayangu Kumb. Na. EDIMIC.299/148 ya tarehe 29.5.97 · yahusika. Kwa mamlaka niliyopewa chini ya kifungu cha 20(3) cha Sheria ya Baraza la Michezo la Taifa ya mwaka 1967 na marekebisho yake ya mwaka 1971, ninawaarifu kuwa kuanzia tarehe 20. 10.97 nitawatuma wakaguzi kuja ofisini kwenu kukagua hesabu za mapato na matumizi ya Chama chenu yanayoanzia tarehe 1 January 1994 hadi tarehe 1 Agosti, 1997. Hatua hii inafuatia kupuuzwa kwa agizo lililotolewa katika barua iliyotajwa hapo juu, ambayo ilikutaka kuwasilisha taarifa hizo kabla ya tarehe 3 Julai, 1997. Aidha, mimi mwenyewe nitakuja ofisini kwenu kupata taarifa za mikutano iliyokwisha fanywa na uongozi wa sasa kwa kipindi cha kuanzia tarehe 1.1.1997 hadi tarehe 30.6.1997 ikiwa ni pamoja na mihutasari itokanayo na mikutano hiyo kwa mujibu .wa Katiba inayoongoza chama chenu hivi sasa. Nategemea ushirikiano mkubwa kutoka kwenu. Sgd. Leonard Thadeo Msajili wa Vilabu na Vyama vya Michezo This letter is dated 6/10/1997 (Exh P56) and is also copied to persons

as the previous one (supra). l I 5 By a letter reference number SA/105/V;OL.IV/l 19 dated 26/1/98, PW13 sent the auditors to FAT offices. They submitted a report to him with a number of audit queries of which PW13 demanded replies frmn FAT. The replies did not please him as they appeared unsatisfactory. Meanwhile, the issue of auditing these accounts was generating some heat, such that it reached Parliament; where, allegations of funds mismanagement in FAT was debated. PW13 directed that further auditing be carried on, to cover all Associations from District level to the National level. This was done and a report submitted to him. After getting this report, PW 13 wrote to the Director of Criminal Investigations (DCI) a letter (Exh P60) as follows:- "Mkurugenzi wa Upelelezi S.L.P. 9492

DAR ES SALAAM Yah: TAARIFA YA UKAGUZI WA HESABU ZA

FEDHAZAFAT -Tafadhali husika na mada iliyotajwa hapo juu. K wa kipindi kirefu sana kumekuwepo s hutuma nyingi dhidi ya viongozi wa vyama vya michezo kuhusu ubadhirifu na matumizi mabaya ya fedha za vyama hivyo. Shutuma hizo zimekuwa zikitolewa na wananchi wa kawaida, wapenzi wa michezo, viongozi mbali mbali na hata wanasiasa. • L ' . 6 Kutokana na tuhump hizo, na kwa kuzingatia mamlaka niliyopewa chini ya kifungu cha 19 na 20 cha sheria Na.12 ya BMT ya mwaka 1967 nilituma wakaguzi kwenda kukagua hes a bu za fedha za chama hicho. Baada ya uchaguzi wa awali, tarehe 23/7/99 tulipeleka hoja zilizotokana na ukaguzi huo ili zipate majibu kutoka FAT, lakini kufikia tarehe 1/10/99 hoja hizo zilikuwa hazijajibiwa. Kutokana na kutojibiwa hoja hizo, na pia kutokana na kuongezeka kwa tuhuma za ubadhirifu kama zilivyotolewa na waheshimiwa wabunge wakati wa Bunge la Bajeti mwaka 1999/2000, ofisi yangu ilituma tena wakaguzi kuendelea na kazi za ukaguzi na hivi sasa kazi hiyo wamekamilisha na kuniletea taarifa kwa mujibu wa kifungu cha 20(4) cha Sheria Na.12 ya BMTya mwaka 1967. Naleta kwako nakala ya taarifa hiyo na kuiomba ofisi yako iifanyie kazi kikamilifu kwa mujibu wa taratibu zilizopo na endapo itabainika kuwa kuna ubadhirifu basi ofisi yako iwachukulie wahusika hatua za kisheria. Ofisi - yangu itatoa ushirikiano wa hali yajuu endapo itatakiwa kufanya hivyo. Natanguliza shukrani zangu

za awali kwa uhsirikiano wako mwema. Sgd. Leonard Thadeo Msajili wa Vyama vya Michezo .' 7 ' f. This letter was copied to the Permanent Secritary Ministry of Education and Culture and Director of Sports. It would appear that the Director of Criminal Investigation (DCI) assigned this job to one superintendent Lucas assisted by one Inspector Mataba (PWI) who carried investigations. At the same time, PW13 yet directed an additional audit to be executed. The result of which he also submitted to the DCI. The outcmne of these investigations by the police was the arraignment and conviction of the appellant as stated above. The original petition of appeal contained 10 grounds thereof. Subsequently ( on 30/5/05) 3 additional grounds of appeal were filled. At the commencement of the hearing, Mr. Ishengoma informed the comi that he was going to abandon grounds 7 and 8 from the original petition. While arguing however, he c_overed all the grounds in the original petition under ground 2 of the additional grounds. This court will how decide on the grounds of appeal as they were argued. Arguing ground one of appeal of the additional grounds, learned counsel told the court that all the theft offences were not established because all the ingredients to prove the offence of theft were not there. One of the ingredients of the offence of theft is that the property stolen 1nust belong to another

person - the owner, within the meaning of section 5 of the Penal I • 8 (. 'i Code. The court was referred to the case of Selemani Tilwilizayo v. ' Republic (1982) T.L.R 403 and the case of Isaya Moses Mwakamele V. Republic Criminal Appeal No.59/90 {Katiti, J) (unreported). Learned counsel told the court that since all Sports Associations are not legal entities, they cannot own property. They could only own property if they registered their Trustees under the Trustees Incorporation Ordinance Cap 375. The property of FAT legally belongs to its Trustees, but since the Trustees did not complain the offences of theft could not be established. Learned counsel told the court that the position was also observed by the trial Principal Resident Magistrate when in sentencing the appellant, she said: "The 2 nd accused must restore all the money stolen and property in value of money to the government and the government shall give the money to the rightful owner, or else distress if 2 nd accused shall fail to pay. " He concluded by inviting the court to quash the conviction and set aside the sentence in respect of the offences of stealing contrary to section 265 of the Penal Code and the offences of obtaining money by false pretences contrary to section 302 of the Penal Code. In reply, Mr. Mweyunge told the court that FAT is an umbrella under which other Football Associations are covered.

There are other stake 9 \ i holders including the Registrar of National Sfiorts Associations and the public at large. The complaints leading to these charges originated from, among others, members of Parliament. The Registrar of National Sports Associations then acted under section 20 of the National Sp01is Council Act No.12/1967 to order the auditing of FAT books which resulted in this prosecution. The learned State Attorney said it was therefore wrong to say there was no complainant in this case. He said as FAT operated bank accounts, this was evidence of owning property: As the appellant was. employee of FAT, still he could be convicted of stealing from his employer and the offence of theft would still stand. The State Attorney concluded that even if it is found that FAT could not own property, then it was in possession of the property which was stolen. This is not one of the matters to detain this court for a long time. The definition of theft is found in section 258(1) of the Penal Code which has this to say: "A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing. " (underlining supplied). 10 '- The arguments by the appellant, through his ¢ounsel that as FAT could not own

property, then, no one could steal from it appears attractive, but I am not persuaded. The distinction, to me, is far fetched. This is because the . facts on the ground as proved and admitted tell a different story. FAT owned bank accounts, the signatories of which included the Chairman and Secretary General, the appellant in this case. FAT used to get donations from various institutions and/or people. It owned property, and the like. The "owner" as defined under section 5 of the Penal Code cannot be read in isolation of other factors. The definition is framed in the following words:- ''person" and "owner" and other like terms when used with reference to property include corporations of all kinds and any other association ofpersons capable of owning property and also when so used include the Republic "(emphasis supplied). A person or an associatiqp can own property as special owner or general owner. The definition of "owner" or "person or association capable of awning property" would, in my opinion, relate first to physical ownership. 11 , I I "general owner" is defined by the Block's Law Dictionary, seventh edition as: "one who has the primary or residuary title lo property; one who has the ultimate ownership ofproperty" And "owner" is defined in the same dictionary as: "one who has the right to possess use and convey something; a proprietor" The term "special owner" is

defined in section 258 (2) of the Penal Code as follows: "The term" special owner" means any person who has lawful possession or custody of, or any proprietary interest in, the thing in question". This brings me to the definition of a legal person under the Civil Procedure Code as against the legal person under the Penal Code. Whereas one can steal from a thief, the latter cannot sue to enforce ownership of stolen property. Likewise, whereas an Association like FAT cannot sue in its own name but only through its registered Trustees one can steal from FAT if the property or money stolen was in possession or ownership of FAT. 12 \ . '/ The reason for the distinction is not far to find. In criminal law, the real complainant is the Republic, which has criminalized the taking of anything which is not yours from anybody. The victim becomes a witness. In civil law, it is different. The complainant must have the legal capacity to claim for ownership. Otherwise, he must act through a person, or persons with that legal capacity. The case of Selemani Tilwilizayo v. Republic (1983] T.L.R 402 (supra) is distinguishable from the facts of this case. In that case this court restated the law of banking when it said money deposited in the bank does not belong to the depositor but to the bank. This court. Lugakingira J. (as he then was) said: "Bank customers, the government included do not own the money which is deposited in the bank. I am indebted to Mr. Mbezi who referred me to Rwebangira v. R. [1975] TLR n.26 in which I expressed a similar view in the past. There are indeed other and older authorities to the same effect, notably Joachim v. Swiss Bank Corporation [1921] All ER Ref 92 and Foley v. Hill [1848]2 HL. Case.

28. In the latter case, the leading case on this subject, Land Cotternham, L. C. said: Money, when paid into a bank ceases altogether to be the money of the principal; it is then the money of the banker who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it." 13 I. But in that case, the issue was not whether a>-theft was committed, but ownership of the money between the government and the bank. The case of Isanga Moses Mwakamele (supra) was also fronted by the applicants as authority. That case dealt more on the applicability of section 312 of the Penal Code. This court, Katiti, J., said that section (312) does not apply where the owner has been identified. All taken together I hold that FAT owns property or 1noney capable of being stolen and as such one can steal there from. Legal ownership is just one type of ownership but not the only one. This ground of appeal is misconceived. It is hereby dismissed. The second ground of appeal in the additional grounds is framed in the following language:- "That in the alternative the trial court having failed to properly examine and evaluate evidence on record erred in law and in fact in holding that the prosecution side had established its case beyond reasonable doubt. " ·- And to this, while arguing in respect of count one, involving the theft of Tshs.1,000,000/= he said the only

independent evidence available is that of PW3 who was an accomplice. He said because PW 1 did not reveal the · names of the persons he interrogated, there is no other evidence to give strength to the evidence of PW3. He said further that it is possible that the 14 story told by the appellant, that he paid Tsh 3;nillion is true, but as PW3 was saving his neck, he told a story he could not defend in court, leaving the story told by the appellant unchallenged. Learned counsel referred the court to the case of Director of Public Prosecutors v. Elias Laurent Mkoba & another [1990] TLR 115. He said this being accomplice evidence, it must be corroborated before being relied upon. The court was also referred to the case of Mansullah N.M. Norialia v. Republic (E.A.C.A) [1971] HCD 440. He said, in the present case, there were no grounds that the trial magistrate could have believed PW3 because that is a question of credibility to be determined by a trial court before whom the witness testifies, but this was not possible because PW3 testified before another magistrate. Learned counsel concluded that, since there was no independent evidence to corroborate what PW3 said in court, it was unsafe to convict the appellant on this count. Ms. Kabisa for the Republic replied that the trial magistrate was not in -- error to convict the appellant on count one. She said there was documentary evidence

that showed the appellant paid a total of Tshs 2 1nillion to Salivation Army and receipt numbers were shown in Exh P2 and Exh P3. She said the appellant was given Tshs 3 million by the accountant of FAT but paid Tshs 2 million on 8/12/98. Further that the appellant knew how 15 much was owed to Salvation Army by FAT gecause there was the bill book which showed such amount. She said the evidence of PW3 could be relied upon under the provisions of section 142 of the Evidence Act. However she continued, there was corroboration from Exh PS, Exh P2 and Exh P4. She said that in his investigations, PWl also visited both the Salvation Army and FAT offices. As to the number of witnesses she said section 143 of the Evidence Act does not specify the number of witnesses that are required to prove a fact. The trial learned Principal Resident Magistrate found that the offence under count one had been proved. It is true the learned magistrate was rather sweeping in her approach and sort of crash landed her findings. But I think this is because she spent a lot of time analyzing what each witness both for the prosecution and the defence said. She then framed 13 questions that she had to answer. This restricted her latitude for discussion. But this is her style of writing a judgment. She can't be faulted for that. In the case of -- Amiri Mohamed VS. [1994] TLR 138, the Court of Appeal of

Tanzania, Makame J .A said: "Every magistrate or judge has got his or her own style of composing a judgment. Some judgment are more logically written, some are more neatly thoughtful, some are more compodious and so on. What vitally matters is that the assence 16 I.. should be there, and these incluqe critical analysis of both the prosecution and the defence. " · I can safely say that in the judgment of the trial court, the essential ingredients of a judgment are there. This being the first appellate court, I am free, and indeed, duty bound to revisit the evidence and make my own conclusions. It is true the star witness in relation to count one is PW3 who, the appellants say is an accomplice. It is also true that the evidence of a single witness can prove a fact to satisfaction. Section 143 of the Evidence Act says: "Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact. " The law on accomplice evidence has been developing. In my opinion, there are three types of accomplices and for each one, the level of corroboration must be different. There is the person who actively participates in a criminal undertaking but for some reason, he is used as a · 'witness'. There is the person who watches a crime being committed with an "I-don't-care-to- whatever-may-happen" attitude, an attitude

of indifference or nonchalance. He knows a crime is being committed, and can even prevent it, but he just stays put. There is the person who is used as a conduit pipe, does not actually know and is not aware of the implications of 17 what he is doing or does it out of fear, inferi<;>rity or ignorance. The three accomplices must be treated differently. Category one requiring a higher degree of corroboration and the last category requiring the least or no corroboration at all. Bernard Chacha (PW3) is in the last category. I will evaluate his evidence with the above position in mind. As shown earlier in this judgment, a lot of auditing of the funds of FAT had taken place. A report was submitted to the DCI who ordered investigation. One of the investigating officers was PWl. He told the court . that he went through the audit report and found that on 8/12/98 the appellant had obtained from the Salvation Army three receipts as follows: (i) Receipt No. 00161 dated 8/12/98 for Tshs 1,279, 760/= for food and breakfast for Taifa Stars. (ii) Receipt No. 00162 dated 8/12/98 for Tshs 570,240/= for food for Taifa Stars. (iii) Receipt No.14719 dated 8/12/98 for - Tshs.150,000/= for soft drinks. Then on the same date (8/12/98) receipt number 15574 for Tsh 3 million was prepared. The book where this receipt was extracted from had ceased being used on 30/6/98. This is what PW3 said: 18 ~'

. "This receipt worth shs.3,000,00f)/= I prepared it for food, accommodation and drinks ... Mr. Rage asked/requested me to prepare another receipt worth shs 3 million to enable him balance his books. I refused because I would have to pay the money but he begged me. Being our long time customer I felt obliged to assist him so I gave him a receipt No. 15574... from an unused book. We had ceased to use on 30/6/98 ". This receipt was for purposes of balancing his books because as per exhibit P 1, he had taken Tshs 3 million from FAT coffers for that pay1nent against an actual bill of Tshs 1,936,506/=. Therefore as regards the 1st count, we have the evidence of PWl, and PW3. We also have the documentary evidence being exhibits Pl, P2, P3, P4 and P5. PWl visited both the Salvation Army and FAT offices and there interviewed people. Taking all this evidence together, the learned trial Principal Resident Magistrate was entitled to conclude that PW3 had told the truth in his testimony and therefore, she was not out of context when at page 82 of the typed judgment, she said: "It is on record that the 2 nd accused asked the witness from Salvation Army, a cashier to be supplied with a receipt of shs.3,000,000/= instead of sh.2,000,000/=. It turned out that the witness was clever enough than the 2 nd accused could have realized. Out of use receipt book or a receipt book which ceased to be

used, one receipt 15574 dated 8/12/1998 for shs. 19 ,_ 3,000, 000/= was obtained by the;second accused. The witness said if he could have supplied him with a receipt currently on use he could have been subjected to pay a total of shs. 3, 000, 000/= which he was not ready. This peace of evidence has not been doubtful, it is watertight. " A court can believe a witness is telling the truth from reading what the witness said and comparing it with reality and other documentary evidence, just like court can also believe a witness by watching him or her testify in the witness box. If PW3 had been what couµsel for appellant wants this court to believe he was, he would have destroyed the book where receipt 15574 was extracted fr01n. The trial magistrate before whom PW3 had testified did not make any adverse comment against him. The Principle Resident Magistrate who took over was justified in believing the evidence given by this witness. On the foregoing, I agree with the trial courts finding that the shillings 3 million was not received at Salvation Anny. That only a total of Tshs. 2 million was· received. And-that since the appellant took Tshs 3 million from the office for the payments at Salvation Anny, but only paid Tshs. 2 million, he stole the Tshs. 1 million. His conviction under this court was founded on the evidence and therefore proper. .- ' 20 Did the appellant utter receipt

number ,}5574 to the third accused? It is good to mention here that the appellant had been charged together with three other persons. The 3 rd accused at the trial was one Sereki Mesack Yonaza who was the accountant for FAT. Itwas alleged the appellant took the receipt from Salvation Army and sent it to the 3 rd accused. According to PW3, the appellant had on 4/12/98_ paid Tshs 300,000/= to Salvation Army but did not obtain a receipt as he said he would collect it latter. On 8/12/98 he ( appellant) paid Tshs. l, 700,000/= and various receipts as explained above were issued. The appellant then requested for a Tshs 3 million receipt which resulted in 15574 being prepared. Mr. Ishengoma told the court in strong tenns that there was no evidence of uttering as, according to him, all the documents were found at Salvation Army. He said there was no evidence to establish when the particular receipt was given to the 3 rd accused nor where it was found. Ms. Kabisa for the Republic said the appellant uttered the document (Exh. P4) to the 3rd accused which document was used together with Exh Pl" maombi ya idhini ya malipo" to get the shs. 3 million. The Concise Law Dictionary defines the word "utter" as: "To pass or to attempt to pass off a forged document, die, or seal etc or a counterfeit coin, as genuine when it is known to be forged" 21 \. The main ingredients of this offence are that

(;l) the document must be a forged one (2) it must be passed, presented or shown to another for furtherance of a criminal intention (3) there must be intention to defraud. In the present case, as rightly observed by Mr. Ishengoma, there is no evidence to prove that the receipt extracted from Exh. P4 was tendered to the 3 rd accused. No questions were put to the 3 rd accused on this fact. Taking into account that the 3 rd accused worked according to instructions of the appellant that receipt (15574) could find its way into FAT books without passing through the 3 rd accused. That is was found at FAT offices is no proof that it was uttered to him because it appears from the evidence that the Shs 3 Million was given to the appellant before the receipt (15574)was written. On the foregoing, I am settled that the appellant was wrongly convicted on the second account. I therefore allow the appeal in respect of this count. ·- In count seven,- the appellant was convicted of stealing contrary to section 265 of the Penal Code. Learned counsel for the appellant said because one Athumani Abdallah China (PWl 1) and one Sanifu Lazaro (PWl 2) testified that they were paid by their team manager, the appellant committed no offence. And as the team manager did not testify, there was 22 no way to link the appellant with the offence.:~ven causing an entrance ' ledger showing that appellant had used

shs.400,000/= is not a theft by itself. He said there was no evidence to show money was issued twice. Ms. Kabisa was of the opposite view. She said there was evidence that the National team players were paid only once at Tshs.20,000/= each as family allowance through PV No. 9308 dated 14/11/96. Every player signed under the voucher. The learned State Attorney said the money was given by team manager and not the appellant. Although no extra cash was paid to the players, when they came back the appellant filed a claim for a refund of Tsh 400,000/= money he knew or had reason to believe he never spent on the players. The case against the appellant regarding count seven as given at the trial was that on 14/11/96 a payment voucher was prepared for payment to Taifa Stars players in respect of family allowances. A "maombi ya idhini ya malipo" was prepared on 15/11/96 and according to the attached list of ·- players, they were paid on the same date. PW12 and PW13 confirmed they were paid family allowances only once, by the team manager. On coming back from the Sudan trip, the appellant prepared a retirement of imprest wherein he claimed to have spent Tshs.400,0000/= as "posho za wachezaji 20 shs.20,000/= kwa ajili ya familia zao." 23 I have gone through the record and the,.,exhibits. There is evidence that the players were paid only once. There is evidence that the appellant, in his

imprest retirement, also claimed to have spent another like amount on the players. This was not true. Did the appellant steal the Tshs.400,000/=? Exh P 15 tells of three payments all being refund or repayment of loan. The total amount is Tshs.420,000/=. Out of the retired imprest we are certain that Tshs.400,000/= was not genuine. The retirement of the imprest was fraudulent false accounting in relation to that amount. The accepting of the refund is obtaining money by false pretence within the meaning of section 3 02 of the Penal Code and not stealing. As the facts in relation to count seven and count eight are the same, I find that count seven was not proved. I quash the conviction in that count. The conviction in count eight is supported by the evidence. I uphold the conviction in that count. Learned counsel coin.plained that the conviction in count three (3) could not stand. The appellant was charge of stealing 50 footballs worth Tshs.500,000/=, the property of FAT. The evidence for the prosecution was that on 22/2/99, FAT received 12 cartons of footballs each containing 5 0 baUs. These were received from a company known as TITCO Trading. It was aid routed through the Ministry of Education and Culture. These were handed to the appellant on 24/2/99 but by 8/3/99 the number of balls entered 24 in the FAT stores ledger had dwindled to 5501 And on the same day, they were sold to

Tanzania Breweries Limited (TBL ). Mr. Isheng01na attacked that evidence saying there was nothing fo prove that each carton had 50 balls. He said PW2 said he received the 12 cartons intact and handed them to appellant without opening them. The air bill of lading does not show the number of balls. Mr. Ishengoma also said the consignment of balls did not belong to FAT but to a company known as Inamula Holdings owned by the 4 th accused at the trial. He said this company imported the balls through FAT for purposes of evading tax. He concluded, on this aspect that there was no evidence to prove that the appeliant stole the alleged balls. What is more, he argued, the unchallenged evidence of PW14, PW15, PWl 7 and DWl was to the effect thatthere was no clear financial · regulations in FAT, there was no store keeper and no proper recording. It was therefore possible for stores to miss without necessarily being stolen but ·- rather through poor recording. The Republic would have none of that. Ms. Kabisa said there was no error in fact or law in convicting the appellant on count three. The 12 cartons of 50 balls each were received intact by the appellant. PW2 issued an issue voucher and both he and the appellant signed. She said the 25 contention of the Republic was that, that wasf AT property, that is why they got tax exemption. Then PWl 1, the FAT storekeeper received a total of

550 balls from the appellant instead of 600 balls. He, (PWl 1) entered the stores in goods received ledger and they were later sold to_ TBL. Ms. Kabisa concluded by saying that the case for the prosecution was intact. If there were any contradictions, they came from the defence. In dealing with this count the learned Principal Resident Magistrate agreed with the prosecution evidence and rejected the defence. This is what she said: "According to the evidence adduced in court there were a total of 600 footballs. The prosecution established that out of the 600 footballs only 550 were sold to TBL." And then concluded: "But that, the 5 0 footballs as we learn fi~om evidence in court were in actual fact criminally taken by the 2 nd accused, because he is the one who received a total of 600 footballs instead, sold to TBL only_J__50 footballs and the remaining 50 footballs have a value ofshs.500,000/=. The prosecutions has established beyond reasonable doubt that the 2 nd accused is the very one who stole 50 footballs worth shs.500, 000/= ". Was her conclusions backed by evidence? The following is my answer. How many footballs were received through Air way bill No. 176 - 1250 9884? Taking all the evidence together, I am satisfied that the amount .. 26 of balls was 600. We get this from the evidel)ce of PWl, p.w2, DWI and Specioza Lugazia (DW5). Although the air way bill and the house

airway bill do not talk of 600 balls but talk of 12 cartons, there is ample direct evidence from the above mentioned witnesses. For exainple, Dwl, while answering questions during examination in chief said inter alia:- "Supplier imported 600 footballs. Ministry ofEducation made subside (sic). At the airport some were stolen, balance was 570. After checking out there were 550balls, which TBL paid and were in accordance with the contract. Had TBL trade mark. " The story ofDW5 on this aspect was not very different. This is what she said:- "I bought 600 footballs. The customer selected 550 balls and the rest possibly were reject, I do not know. Inamula bought 600 footballs. I received a note that the 600 footballs were . received by FAT Even FAT officials told me that they have received. Jwaspaidfor the 550. FAT needed 550. I bought 600 because there can be damaged on any problery.. " Julian 0. Kuliyrara (PW2j had this to say, in fact: "I receive and issue stores. On 24/2199 I handed over 12 cartons offootballs to Aden Rage all intact totaling 600 footballs. He received the footballs on behalf of the FAT The Consignment had come from DUBAI a Company called TITCO." 27 j It is settled law that an accused person cannot,be convicted on the weakness of his or her defence, but rather on the strength of the case for the prosecution. However glaring contradictions in the testimony of the

defence and/or the testimony from the accused persons can add weight to the case for the prosecution. The evidence ofDWl and DW5 give weight to the prosecution case that 600 balls were imported and that PW2 handed the appellant 600 balls in 12 intact cartons. Did the balls belong to FAT or DW5? Again, taking the evidence as a whole, the trial learned Principal Resident Magistrate was justified to find that the footballs were the property of FAT._ The behavior of FAT officials was inconsistent with the fact that the footballs would belong to Inamulla. For example Stephania Kubumba (PWl 1) said: "I recall on 8/3/99 I received a total of 550 footballs. The Secretary General then was Al-Haj Aden Rage .. .I received the footballsfromhim. I entered them in goods Received Note and also in the ledger. " _ Why would stores belonging to another company, and destined for TBL be entered in FAT stores' documents? There is only one answer. The footballs belonged to FAT. Now, since on 24/2/99, PW2 handed the appellant 12 cartons of footballs intact totaling 600 but the appellant on 8/3/99 handed 550 balls to 28 PWl 1, he would be the one to give an explan_ation as to where the 50 balls went. No explanation was given by the appellant. The trial Principal Resident Magistrate was correct in convicting the appellant on the theft of 50 balls under count three. The appeal against conviction in this

count therefore fails. It was the position of the learned counsel for the appellant that there was no evidence against him in relation to count 13 and therefore, he was wrongly convicted. This is because there is no evidence that he appellant was paid twice. The evidence for the prosecution under this count according to PWl was that on 9/5/98 there was a football match between Young African Sports Club vs. Coffee of Ethiopia. The 1st accused (who was acquitted) and the appellant went to TBL and requested that they be assisted with the printing of tickets. This was on 7/5/98. TBL responded that it was late in the day for them to process that transaction. They however authorized the appellant and. · 1st accused to raise not more that Tshs 600,000/= from anywhere and TBL would refund. The appellant went to Comprint International where he placed an order for tickets, paid Ths. 750,000/= and obtained a receipt No.370 dated 7/5/98. The money used was Simba Sports Club 1noney paid by Chipungu F.C. of Zimbabwe. 29 After the match, the appellant wrote a l~tter reference number F A/TC3/84 dated 13/5/98 to TBL requesting for the refund of money used to print for the tickets to the tune of Tshs.750,000/= TBL requested for evidence which the appellant supplied by submitting receipt No.3 70. Then on 12/5/98 the appellant took Tshs.750,000/= from the FAT accountant ostensibly as payment for

ticket printing. Then the appellant is alleged to have gone to Comprint again and asked for another receipt claiming the first one No.3 70 had been lost. He was issued with receipt 3 71. So the appellant used the second ticket to obtain more money from FAT. Learned counsel for the appellant told the court tha\ in absence of evidence that the appellant was paid twice, he cannot be convicted. There is no record to show where the appellant got the money to pay the printers. He said the appellant was convicted on mere suspicion. This is because it is only PWl who said Chipungu money was used to pay to the printers at first. He said further the trial Principal Resident Magistrate failed to analyze the evidence and so did not come to the right conclusion. He referred the court to the case of Willian Msaba vs R. 1968 HCD 216. He prayed that the appellant should be acquitted. Ms. Kabisa argued with equal force that there is evidence that the appellant obtained two receipts from Comprint instead of one, lying that the 30 first one got lost and promised to destroy the first one if found. She said receipt 371 was paid through PV No.11522 of30/5/98 where the appellant pretended he was going to pay TBL as a refund. The learned state attorney said this charge had been proved beyond doubt. The trial magistrate took the view that the official money for printing costs was Tshs.750,000/=. She

said the additional Tshs.750,000/= was pocketed by the appellant. This is what she said: "It is evident that the amount of money, officially for the football match printing costs were 750,000/- and not the (sic) otherwise. The additional shs. 750, 000/= for printing costs were (sic) not meant for FAT business although the 2 nd accused was paid the money, he did not pay twice. Why? The answer is obvious the 2 nd accused pocketed shs. 750,000/= as per receipt No.371 from Comprint International. Therefore the prosecutions evidence in this regard is watertight, against the 2 nd accused and not the rt accused". Was the trial magistrate correct in her analysis of the evidence" This is what I now tum to. To answer this question, I think we must start by answering this question. How many times did FAT pay Tshs.750,000/=? They paid only once, as per evidence, using receipt 3 71. On the evidence or record, we do not know where the money which resulted into receipt No.370 being issued . '' 31 by Comprint came from. The money from TBL was a refund to FAT who used own sources to print tickets paid through receipts 3 70. But we must keep in mind that receipt 371 was issued without any payment being made. Only one payment was made to Comprint. Only one payment was made to FAT from TBL and only one payment was made from FAT. That the appellant does not reveal where he got the money to pay for

the tickets vide receipt 3 70 may appear suspicious, but, just. That the appellant asked for a second receipt knowing that receipt 3 70 was not actually lost rnay also look suspicious, but again on the facts, one can only end there. FAT suffered no loss. Had the trial Principal Resident Magistrate analyzed the evidence, she should have came to a different conclusion. I agree with learned counsel for appellant that there is no evidence that the appellant was paid twice, nor that FAT paid twice. It was not established that the payment to Comprint came from FAT. We just have the bold statement by PWl that it was from Chipungu money. But without further evidence, the trial magistrate did not have enough substance upon which to base a conviction. I therefore find that the appellant was wrongly convicted on count 13. I allow the appeal and quash the conviction on this count and set aside the sentence imposed. 32 rd The 3 ground of appeal on the additioi;ral grounds of appeal notice has this to say:- "That the trial magistrate erred in law and infactin convicting the appellant basing on the (sic) extraneous matters and . zmproper . . opznzons. '' Learned counsel for appellant then listed what he called extraneous matters. Because of tbe seriousness of the accusation leveled against a judicial officer, I feel it better to list "these matters":- (i) The first is that part of the

judgment at page 9 of the typed proceedings which says:- "On 22/2/99 FAT received twelve (J 2) cartons offootballs,· each carton had 5 0 balls, therefore a total of 600 footballs, from TITCL Trading company. " Learned counsel said there is no such evidence on the record. But at page 16 of the typed proceedings PWl said: "On 22/2/99 FAT received 12 cartons offootballs each carton 50 so total 600 from TATCO Trading Company ... " Then at page 42, PW2 is on record to have said: "On 24/2/99 I handed over 12 cartons offootballs to Aden Rage all intact totaling 600 footballs. " 33 Mr. Ishengoma misled the court when he said.A:here was no such evidence on record.

2. The second extraneous matter according to the learned counsel is at page 82 of the typed proceeding where the learned Principal Resident Magistrate said: "It turned out that the witness was clever enough than the 2nd accused could have realized ... " Learned counsel for appellant said of this that there were things considered but not forming part of the judgment. I have tried to understand what learned counsel meant by this but I have failed to get an answer. The trial magistrate was commenting on the behavior of PW3 submitting to the appellant a receipt from a closed book to avoid his being required to repay money. I do not see anything wrong in that, especially when it is taken in the context of the whole paragraph at page 82, of the judgment. (3) The last extraneous matter referred to the court isthe . sentence at page 83 which says: "The prosecution has established beyond reasonable doubt that the 2 nd accµsed is the ve,y one who stole 50 footballs worth shs.500,000/=" ,, 34 Learned counsel said there is no such evidenc~. This court has dealt with that when dealing with count 3. Then Mr. Ishengoma concluded by saying this:- "The trial magistrate appears to have been biased/ram the very go. " I have given the court's position on what learned counsel calls extraneous matters. They are not. Actually it is he who is trying to bring extraneous matters into this appeal. But I

am sure Mr. Ishengoma realizes that this was a long trial by two different magistrates. The judgment, ninety six typed pages, is not a short one. A lapse here and a lapse there can never be ruled out. If a lapse goes to the root of the evidence, or a clear 1nisdirection or non-direction on the law or fact such as to occasion failure of justice, this court will surely interfere. There is nothing like that in the quoted sentenc~s. Before I conclude, I will comment on the allegation of bias from counsel for appellant. I am not very comfortable with the tendency of learned counsel to brand a trial magistrate or judge as biased just because he/she gave an unfavorable decision to their clients. An allegation of bias is a very serious accusation in any form of the administration of justice. It should therefore be founded on strong and cogent evidence. Coming to a wrong conclusion is different from being biased. The court of Appeal, in the 35 ·,~·case of Kataraia v. Luangisa & Another [19 86] TLR 54 in dealing with 1 r an allegation of being partisan said at page 5 5: "He should be more careful and more responsible in his submissions before a court; or in making serious allegation against the trial judge being a partisan of the F 1 respondent, unless he had some sort of evidence to substantiate such allegation" . Indeed, I see no evidence of bias from the paragraphs quoted, nor from

the judgment as a whole. Impeaching the credibility of a trial magistrate or 1 judge requires more than sweeping statements of the type 1nade by learned · counsel for the appellant. I hope learned counsel gets this message. In conclusion, I allow the appeal, quash the conviction and set aside the sentences in relation to counts 2, 7, and 13. The appeal against conviction and sentence in relation to counts 1, 3 and 8 is dismissed in its entirety. Order accordingly. ~--- ---~~-;B;--M ,,,,.- ayo JUDGE.