20130304 TZHC Iringa

.. :''· ·': .<.:'° ·: .,__ -:~' ·, .r: . : : •.• I-... • :·• ... ~: . .. •' · . . . ··.· ... .... ·, ,' . :, ~ ' .. IN THE HIGH COURT OF TAI\JZANIA. . DC CR1MINAL APPEAL Na°: 23· OF 2011 ORIGINATING FROM-MU FIN Di DISTRICT COURT· ... ,::,: : ... ~:: . ·.· . CRIMINAL CASE NO.' 43. OF ·2006 _- :- ~ .. ·•.- "' -·. •..- :3 t _' KANDiDUS CHALAMILA.:~.::,: ..:....... :.:'..-.:: .. :· ....... :.. {,:.,:,~-·;·· 'APP:ELLANT. VERSUS.·. .... • THE REPUBLIC ......... :...................... :... ,.. '..'. .. ~,.:~.; .. :... ~ .... . RESPONDENT.

JUDGMENT MKUYE,J The appellant Kandidus Chalamila was together with Lucas Msigwa (who was acquitted) arraigned before the District Court of Mufindi at Mafinga for a charge containing three counts which were one, conspiracy to defraud c/s 306 of the Penal Code, Cap 16, R. E. 2002; two, forgery c/s 333, 335( d)(i) and 337 of Penal Code and three stealing c/s 265 of the same Act where upon full trial was convicted on the 2 nd and 3 rd counts and sentenced to 7 and 3 years imprisonment for the 3 rd counts which sentences were ordered to run concurrently. 1 ·.· .. '· . : ·. . ••. ··, . ·.. .· ... : ' . . .·:_. ·.· . ·,· .·.. . , ...· .·· . . ·' .; ' 0 ; . · · Ag·grieved.,·wJtq such convi-cticin and s~nt~rices he h~s through th~-- ser.vices:· bf ~r. Mush6k~r~a Lear~:ed advo~at.e abp~aled ·to. :·· :_ ~:... .' .. :_:.j' :. . ~'... ··/·.·_·: . . ·.: . ' .. ,: -.•.. -. .. . . 'I. • •• . . . . '' • • this court-while fronting thre:~ gr.oµnds:o{ appeal as folld'.ws: , . __ . ·,, -~ _. _. . . . ·,.: :: ~._'\:. ~::: · "':-,:.\·: . ·.· •, .. ')-----: . i: ... ·.·,...·._.· .• . . . ... :. ·_:.' '-';.,..~., . _.:.).) ~That the tri~I court having acq~itt~d the appellant ori the :·.-.. · ·• ., ' ,·,.. . offence. of ~onspiracy, ·_ inisditkcted itself to rely on the '• ...• •·.- ;t_ i~a,;.,e·::ra.cts to colr,ict>him of the bffen~es of forgery and stealing. ·which were not adequt3tely {Jrbved on the required standard . . -2) The defence case was not adequately considered.

3) The trial court -misc/irettecJ itSelf to rely on the evidence of _. ·._ co~accused . to foul/cf (si~Jthe :'c;nviction of the appellant. . .. . . · The· brief facts of the case can be briefly stated: The appellant Kandidus Chalamila was employed together with others including Edress Philemon Mlomo (PWl) by MUVIKIMA SACCOS as clerk and Assistant Loan Officer respectively . . On 29/3/2006 when Pastory Benard Lyandala (PW4), a member of MUVIKIMA went to withdraw his money, he was unable to do so as his account was found to be over credited while in fact he did not deposit such an amount. He did not have even the paying in slips. It was later revealed by PW4 that the appellant allegedly induced him to inflate the amount with a promise/consideration to be given a certain amount of money. On cross checking other members' accounts it was discovered that twelve other members' accounts had similar 2 . ,, problem '(over. credfting};. · Those _:m-~rnbers·r·al,s·o ·;_ ali~g\~d-iy • • /·· .: ,:: ~ •• • • • • • • • • •• ·, -· • • • • • • • • : • .. + • _' • • ·, • • • 1,•:. mentio'ned ''the appellant to . spea:rhI2ad.: .. the evi_f" _ act_. . The . .handwriti_n~; use.ct :to changi:thefitjure~:·w~s :all~gedl;·ideritifi~d tq_·. be::\ of appellant by PW_l: who": d~ffned · to know· it~.,_: The_ rti~t.t,er was reported to'the pone~ antj_ hence ~he case at hand . . . '. . . ' ~ .. The

·appellant_ in his deteflce::deni'e·~· to have ·committ~d the< offence. more so when:: taking .irito account that the offence:. ls , · alleged to have - committed- from. 2004 when he was· ,yet to_ be employed. He said he was·em;loyed; in 2005. • . . ,. -~; . '' The appeal ·was argued by way of wdtten submissions as per order· of this court b~ted _J:3 th _: ALl:g~:st · 2012 which .. was complied with. Arguing for the appeal, learned counsel.· for appellant submitted that though the appellant was accused of forging the members' pass books which enabled him · to steal shs. 1,000,000/=, only one pass book No. 156 was produced in court as Exh. Pl and no SACCOSS ledger books were produced in court in order to make a comparison in entries. Two, Pastori Lyandala who testified as PW4 was an accomplice as he did allow the appellant to enter false entries in his account and did not report - such unusual transaction to relevant authority. Three, the twelve (12) other SACCOSS members whose passbooks were allegedly forged by the appellant were not called to testify and at any rate the evidence relating to forgery in their accounts was a hearsay evidence which had no weight. Four, the appellants' handwriting was not properly identified. Five, the amount 3 .' . -- . _,_ . ,..;...- 0 . claimed tb be ·Stolen by appellant. was_·:contradictory·~;s PWl said shs. 1,-000,000, PW2

shs.,:·2,'o45,00C:l/. . . .. · a~d PW3 sa;id·\f ~a; more . .•· . . . .' ; ·, ' ~ ' ., than sh.s<· ·1;000 ,000/ =that :waS a stolen·. Six, .that the defence evld~hce ~~s .::n;ot corisicfered .. ::th~ learned couns~I ·. ~ltirnat:ely · :'lJr.ge9 .that .. it· was unsafe:: t~::j~~{y. on PWl.; PW2 and PW3s' evidence.·./·. · ., . ,. . lri reply; Mr. · Msuya learned state attorney did ·not support · the conviction or rather. he supported the appeal on grounds /that: one· amqng the · witnesses who testified • for prosecution r •. I · were formerly .. accused . . . ' persons (co- accused/accomplices) . eg · PW4. Two,. the audit report mentioned· during the preliminary hearing was not produced in court> ·Three, the purported auditor ' ' in his te~timony did not explain: the time when the offences were committed. ·. Four, ~hat it:• w~s not shown how appellant forged · and stole shs. 1,100,000 while only.one pass book of DW2 was tendered in court and the conviction based on· other pass books which were not produced in court. Five, there is a contradiction on the amount alleged to · be forged and stolen between shs. 1,100,000/= shown in the charge sheet, and shs. 2,045,000 as per PW2's evidence. Six, that the evidence of appellant was not considered. As to the argument that the appellant was not yet _employed in 2004, the learned state attorney thought it was immaterial since in 2005 he was

an employee of MUVIKIMA. The issue to be determined is whether the prosecution managed to. prove the offences against the appellant beyond reasonable doubt. 4 .,, . 0. '. .. ). As :rightly pointed 'ouf by· ~~e.le~rri:ed,.~t'ate attorney ,it is the: ,.._ . ~ ! . • . ._ . . . • . duty'of ·t:he"pr~~ecution side-._to: prcive:·H:i: case beyonq·re.a~onaple d~~bt ... (S~e.;onas Nkin_ze''1.R:•.(199~),TLR··2:1'3)f.Mo.ham,ect K~~i11rli-:& A~other V R(198~) -TL,R:·134)~·· . , .._. . . .. . '.: > ... . _. ;- ~ ... · It is undisputed that the app~ll~.nt w_as :.acquitted.-. on the offence of consp:iracy and ·was convicted o·f the offen¢es. of . . . forgery and stealing. . The trial cou,rt .•·. found that the app·ellant .. . had· . forged the MUVIKIMA SACCO'S .-members'·. accounts including\,:_::_;., ...., -: PW4 and DW2 accou17ts basing.· on handwriting thatwa? · found ' · <·- to be proV?d by prosecution witness PW1 · to be thaf of the appellant.· .It found that th~·-t1eed Qf handwriting expert· was not necessary while basing in the decision .of~Joseph Ma1iem~ V R {1986) TLR 148. Both learned counsel are of the view that the purported handwriting of the appellant was not properly identified. I think, I am inline with them that the handwriting identification by PW1 who was alleged to be acquinted with it as a co-employee was unreliable for one, the handwriting could be imitated by

another person. Two, the appellant was implicated in forgery done even in 2004 while he wa-s yet to be employed by MUVIKIMA and no indication has been shown as· to who could have done that. Three, even the passbooks of 12 other members alleged to have been forged were not produced in court so as to have a wide comparison of handwritings in question. Four, PWl being a co - worker of appellant had an interest to serve to ensure that 5 0 J -s.omeo-ne -ls.: ·hetd · responsible·· -_for th·e .·- loss occassiohed in the MUVIKI:MASACCOSS(emplpYer for-th~t- matter)> .. , ': .·_'.::/•. . . . '. . :. ~ . : . . . . .. ·' .. . . : . _- ~ .· ' ; . , ' ·: : _,' .:. . :-.· ~:. . . .\\'•'• .,But ag,a_iJl, the ot"her.: evidence with r~gard to-· sam~: fdrgery_ 9nd stE;qlin~ is .from.: .P,WL-·. pw2 a~d :P'{'l/3 who talked: about' their . ·_ ·-disco.very,_: :of twelve ( 12) pass_bo~ks/accounts -of MUVIKAMA - '< · SACCOSS .m$.mbers whith ·were. overcr~dited while: tt,ey did not . ·.? '· d~posit such amounts of rnoney .. _· PW2 tenc:lered Accountant No : .i56 beloriging to DW2 in ~ourt --~h~ oth~r {2 forged pass books .. -~ ... , ... . _ :were not._ produced.· :fn court. · Neither were the alleged 12 . .· ··, . members . called to testify in court. as . to how . the appellant induced the·m to overcredit their.· ac:co_unts for corisideration of getting a cut out of. iL No explaination was :given for

the failure to call them and prod.~ce. the alleged passbooks. What is revealed in :the coµrt:record)s that it was decided by the Board • • I • .,• • < not to prosecute· them since they cooperated. By this cooperation, in fact, some repaid the stolen money. The act of repaying the stolen money, in my view, can be construed differently in that they realized that they stole it. PW1, for example, dur_ing_ cross examination said they paid the money because they knew they were thieves. With this type of evidence which came from three witnesses, it cannot be ascertained as to whether or not the alleged twelve members' accounts were forged by the appellant as the purported complainants did not give their testimony in court and their passbooks were not tendered in court to support the allegation. On top of that even the twelve members names 6 ...... ' ... ' ' • . ' . • . . . • .t" . . . . were not:.mentioned _in. courL The-Jedger books presumably kept by MUV_tk;MA SACCOS.S Office. were":r1.o~ p~oduce_d ~o ·'as·- to enable . _ comparis~tj to be· made.· Sin~-e- th~·::12-.m~rnbers did.- not.. testify I -: . .: : ·: . .. . . : \. '.:. · . . ·• -·. . . ·.·, .. :· .·._ . . . . · ... .... · - ·: ... -: .· .··. ,,.\~:·~·.. \,'..: 'a'm in agreem;ent.:with the learned .couosel Jot -iitppel_lant:that the .,' :·':~ · ,_ · ' ' : evidence regarding. forgery-_-qf-tw¢1ve . members a~counts

rern:~f\rfs:,·-- -_-_- ,,:·>, . . . . ' . a hearsay eviderice with 110·--:e·vidential value .. on·the qtti:e:t hand>·_ . . . .·· . ·, ,,. . .'.. . : ·: :- .. ,. •.. : •. ... ·;. ; -.. · ..... ':: ., . ;. '.: . .'· ., ;~ . '•. . ' ,:·. :·' ·, ' even if they'testif.ied they could-a_t·mo$t·oe-'accom-plices be·ca(Jse.•· · .. · they did no~ rep~~{--~he>:~vjl a_ct ;c6rtimitted. b;· ap:pellant {if at' alf:ft··::< - .· .- is true) until the authority>discovered it. Also they _could have R• > ••• cooperated in repaying, the money· because they knew they were/·'·.·) thieves as well. DW2's passbook No i56(Ekh-/J:>r} was produced in court in an endeavour to prove forgery an~ stealfng of shs. i,100,000 by appellant. But DW2 infact denied th:~/;a}l~ged·forgety 'in his pass ' ' ~. . book. At any rate, in my considered view, even if such passbook was produced in court, it does not prove without any shadow of doubt that it was forged because that alone could not be sufficient in the absence of a ledger book to make a comparison with a view of detecting such· anomaly. On top of that, it did not show how it enabled the appellant to steal the alleged amount of money which is even uncertain as shown in the charge sheet and the evidence adduced by PWl, PW2 a·nd PW3. Whereas the charge sheet shows shs 1,100,000/= was stolen, PW2 said shs. 2,045,000/= was stolen and PW3 said more than shs. 1,000,000/=

was stolen. The uncertainty of amount stolen also raises doubts. But again, Exh. Pl alone could not prove that such amount was stolen out of the alleged forgery. 7 ··:,••· .. • I .. - ()' ·.. . ,:--. . . .' . . . -, ·-:- - , -- Q o. - PW4, ·'pa.story Lyand:~da ·also· te?ttf1ed. as a p~rJ~n ··.arnong · " those whose pas~_book was' forged :by' appellant.· But-·T·find hiS: ·· , evidence to: -b~ ~a: susp¢ct. and dubious- . beta use he did n~( cooperate when ., for'g-~ry _: was. di_scovered by the MUVIKIMA SACCOS-S e~ployees.:·· He did:.:notrnenticYn . . - . the . appe;iant straight. . . . . , •, : ~way to ':be respo·nsiblEf instead' he:·r~qlJested -·the ·appellant to be . ·-••, . :: . •· . . . .first caUed before t~sporiding ·to 'the officers. He did not report '. . onlhe al'leged forgery.·. It shows that he knew what was going on · and as such he was· an• accomplice> I am ·aware that under :::se.ctipn 142 of th·e Evidence Act, Cap 6 R. E. 2002, an accomplice · is - a competent witness but as correctly stated - by the· learned .counsel for appellant·. it is unsafe. -to · rely on· it to mount conviction without corroboration: .(See Aziz Abdallah . ' . . V R (1971) TLR 71J . . . '·.- .. · . But again during preliminary" hearing the audit report was listed to be among the exhibits to be tendered by .the prosecution in court but it was not tendered. I think tendering it in court

was cruc_ial as it would have unvailed some hidden facts in this case. Hence, failure to produce it in court has weakened the prosecution case. In the upshot I find that grounds Nol and 3 have merits. With regard to ground Na. 2 of the appeal both learned counsel are of the argument that the trial court did not accord consideration the defence evidence of which I am in total agreement. It appears the trial court reproduced the appellants' evidence and did not show how and the reasons which 8 .. . ~. . . ..... was held.:i·-~-- . ', . :: . '· '"It was a serious misdirection .bh ·.-·the .of the trial '··.:.,. ' judge· to d_eal ·with. the, pros·e,c'!.iion ··evjder1ce on· its-< :_ · . . ' ·~ : ,. ' ,' . own and arrive· at>th·e·condusion- . . •' ihat:ft:; was,true •. ·/ ~ . and credible without.;: .·considering the defence :: , '. :.· . · evidence". Even in thj.5 case, failure·bV the trial court to consider the::::·. defence evidence was a ?etious misdirection as it prejUdiced the • . . -· appellant. Ground No. 2 ist~erefore sustained. Having discussed the · whole . appeal, I ..• am· ...· in total agreement with both learned counsel that the· prosecution failed to prove its case beyond reasonable doubt as the evidence left glaring doubts as to the guiltness of the appellant which basically have to be resolved in favour of the appellant.(See Zakaria Japhet @ Jumanne and 2 Others V R Crim. Appeal No. 37 of 2003 (CA) Arusha (Unreported).). In the final analysis, I allow the appeal, quash the conviction and set aside the sentences imposed against the appellant with an order that he be released from custody forthwith unless held for other lawful reasons. ~~--'<-- R. K. M KUYE

JUDGE 4/3/2013 9 . ' . .. /. ~~- c'l, • . " :,, • . . Date: 4/3/2013 Coram: . Hon . .R;K.MKuye, . ·Jud9e · . - ~ .. • Appellant: Mr. Onesmo . Francis _holding , · brief for Mr. ... ·. ·/··· . Musho~orwa for .appellant. . . . . . . . for: Respondent: Ms. Nichombe for respondent·· •.•.·. C/C: ./ ·•· Mf. Charles . . .' ,, ~ . . ..__ . .. ... .. th D~livered on this 4 day df March 2013 in the presence of .· •.. appellant, Mr. Onesmo advocate for appellant and Ms Nichombe .·• Aearned state attorney. . ·- ~\fl:-j·e_ __ R.K.MKUYE

JUDGE . 4/3/2013