mkandala gabriel mkandala and 3 others vs republic 2021 tzhc 5541 30 july 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

AT TABORA

TABORA DISTRICT REGISTRY (DC) CRIMINAL APPEAL No. 51 OF 2019 (Original Economic Crime Case No. 02 of 2017 of the District Court of Tabora at Tabora) 1. MKANDALA GABRIEL MKANDALA.................. 1st APPELLANT 2. PROSPER KAMILI MBACHO........................... 2nd APPELLANT 3. FRANCIS SAULO MPETA................................. 3rd APPELLANT 4. MSAFIRI SAID NGASA..................................... 4th APPELLANT

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

JUDGMENT Date of last Order: 2/7/2021 Date of Delivery : 30/7/2021 AMOUR S. KHAMIS, J.; The Appellants before this Court and three others, namely John Joseph Kusanja, Hamza Ally Kapela and Faraz Yasin Abas (who are not subject of this Appeal) were arraigned before the District Court of Tabora at Tabora in Economic Crime Case No. 2 of 2017 facing the charges of: 1. Conspiracy to commit an offence contrary to Section 384 of the Penal Code, Cap. 16 2. Forgery Contrary to Section 333, 335(a) and 337 of the Penal Code, Cap 16.

3. Abuse of Office contrary to Section 96(1) of the Penal Code, Cap 16. i 4. Performing an Act Without Consent or Approval of the Registrar, Contrary to Section 126(1) of the Cooperative Society Act, Act No. 5 of 2013, and 5. Occasioning loss to Specified Authority contrary to Paragraph 10(1) of the First Schedule read together with Section 57 and 60(1) of the Economic and Organized Crime Control Act, Cap.

200. After full trial, the Appellant were found guilty for third and fifth counts, consequently they sentenced serve two years in prison for each count. Dissatisfied with both, sentence and conviction, the Appellants gave Notice of Appeal as required by Section 361(1) (a) of the Civil Procedure Act, Cap 20 (hereinafter the CPA); and subsequently, they lodged petition of Appeal in term of Section 361(1) (b) of CPA. Their complaints hinged in the Petition that: - 1. There was misdirection on the Assessment at evidence leading injustice.

2. The presiding Magistrate did not properly interpret Section 96(1) of the Penal Code Cap 16 RE 2002, the Principle Provision Creating the Offence of Abuse of Office in third count.

3. The issue of means rea in the offence of Abuse of Office were not established by the Prosecution to the required Standard.

4. The presiding Magistrate erred for holding that there was a loss of Tshs. 229,010,000/= Occasioned to WETCU LTD by 2 Act of purchasing Motor vehicle make Toyota Land Cruiser V8 with Registration No. T181 DEN.

5. That the presiding Magistrate erred in fact to finding that the Appellants purchased one unit of motor vehicle make Toyota Land Cruiser V8 with Registration No. T181 DEN without approval of Registrar of Cooperative Societies.

6. The Presiding Magistrate erred in fact for holding that the second Appellant did not authorized the payment voucher.

7. The presiding Magistrate erred in fact for holding that the third Appellant prepared the Local purchase order LPO without Authority.

8. The principle of impartiality was not observed in the trial when Shedrack Kirnaro, senior state Attorney prosecuted the case while took party in investigation of the same.

9. There is no statement of complainant in their case and the same were not summoned in court to testify. When the matter was scheduled for mention, Mr. Hassan Kilingo, learned Advocate who was representing Second and third Appellants prayed, the appeal be heard by way of writing. First Appellant, Fourth Appellants who were not represented and Mr. Deusdedit Rwegira, Learned State Attorney for the Republic, acceded the prayer. The Court, then, prearranged for submission; and the parties submitted according to the schedule. In their respective submissions, First and Fourth Appellants submitted together ground 5, 6 and 7 as they relate to ground 1; and 3 submitted separately ground number 1, 2, 3, 4 and 8. The First and Fourth Appellants abandoned ground 9. Second and Third Appellant argued together grounds (1 and 2), (3 and 6); and they submitted separately grounds 4 and 7. Ground 5, 8 and 9 abandoned because there is no submission in respective grounds. The Respondent, submitted evasively. They submitted without referring to specific ground of Appeal. From ground of Appeal raised, and respective submissions for both parties, the issues in this appeal worth for determination are two.

1. Whether there was misdirection of evidence by the trial Court leading to injustice to convict appellants in third and fifth count, and 2. Whether the principle of impartiality was not observed in this case when one Shedrack Kimaro, the state Attorney who prosecuted the case during trial was also involved in investigations; Before answering to the issue appears in this appeal, let the Court echo what the parties submitted in respect to this appeal. The First and Fourth Appellants submitted for the first ground that, misdirection of evidence for the Appellants are in three limbs. One, the finding of the facts that, First, Second and Fourth Appellants purchased one unit of light motor vehicle make Toyota Land Cruiser V8 with Registration No. T181 DEN without approval of Registrar of Cooperative Society (the Registrar) was in breach of 4 Rule 51(1) of the Cooperative Societies Rule, and as a result, abusing of authority of their offices. The Appellants, in this limb, contended that, the member resolution in their 22nd AGM held at Tabora on 1st -2nd April, 2015 endorsed the Board of WETCU ltd to purchase of unit of unspecified light motor vehicle within a price of Tshs. 40,000,000/ = The endorsement was in budget of WETCU for the financial year of 2015/2016 as per PW1, PW2, PW5, PW7, PW13, PW16, DW1, DW4, DW8 and Exhibit Pl. The Board of WETCU Ltd purchased Toyota Land Cruiser

V8 with Registration No. T181 DEN from Tanzania 4X4 Ltd of Dar es Salaam at price of Tshs. 269,010,000/=. The decision of the Board of WETCU ltd was in accordance to Rule 44(2)(e) of the Cooperative Society Rules, which empower the Board to prepare annual estimates of income and expenditure prior to presentation to the general meeting. The Appellants contended that, the Board submitted to the Registrar (PW2) estimates for the income and expenditure for financial period 2015/16 and PW2 approve the same and issued exhibit P3 on 24/04/2015. The Appellants argued that, over expenditure from Tshs. 40,000,000/= (40m) to Tshs. 269,000,000/= (269m) does not render, the approval invalid, though Rule 62(2) of the Cooperative Society Rules bar over expenditure. 5 Basing on those reasons, the Appellant sought for this Court to find there was misdirection of evidence on part of Trial Court as a result, miscarriage of justice to the Appellants. Two, the finding of the fact that the Second Appellant did not authorized the Payment Voucher (PV), as a result, payment of the contentious car was not authorized. In this limb, the Appellant contended that, the trial court held that, payment voucher Exhibit P6 was prepared and signed by the Fourth Accused Hamza Ally Kapera while in record; the evidence reveals that, Subhui Mowchwee prepared PV. The same PV was checked by Aloyce Sengerema,

assistant Chief Accountant of WETCU ltd and authorized by Chief Accountant. The Appellant conclude on this limb by praying for this court to interfere misdirection of evidence by the Trial Court. Three, the finding of the fact that the Third Appellant prepared local Purchase Order (LPO) without request from user department, acted ultra vires. The appellants submitted that, on 30th June, 2015, Second Accused (Joseph Kusanja (not party to this appeal) in his capacity of Acting General Manager of WETCU issued to Procurement and Logistic Officer (PLO), the third Appellant dokezo Sabili (exhibit P6) ordering PLO to start procuring process of purchasing motor vehicle. The Appellants contended that, Exhibit P6 was authority in itself authorizing Francis Saulo Mpeta (Third Appellant) to prepare and sign the Local Purchasing Odrer (LPO). 6 So the finding by the trial court at last paragraph of page 25 that, the Third Appellant prepared the LPO without a request from the used department was not correct because, the purchase of motor vehicle was a request of the Board. When the Board within WETCU request anything, orders the General Manager (the Secretary of the Board) to implement any resolution. Therefore, the Appellants argued that, exhibit P6 manifest request for purchase, as it was a result of the resolution of the Board. The Appellant went on submitting on Second ground that the way

Learned Magistrate interpreted Section 96(1) of the Penal Code, Cap 16, a substantive provision creating the offence of Abuse of office in the Third Count, the learned magistrate had predicted the conviction of Appellants. This was so, as the finding of the Court that, the Appellants purchased one unit of motor vehicle without approval of Registrar of Cooperative Society contravened Rule 51(1) of the Cooperative Society Rules 2004 (the Rules). The Appellants argued that, for the prosecution to prove the offence of Abuse of Office under Section 96(1) of the Penal Code, must prove that: - (a) The Person charged is public servant, (b) s/he does or direct to be done or omit to do and arbitrary act, and (c) The act, direction or omission to act was prejudicial to the right of another. 7 Basing on the imports of the cited Section, the Appellants were in the view that, the Trial Court misinterpreted Section 96(1) by relying on interpretation of given in the case of AMATUS JOACHIM LIYUMBA VS. REP, Criminal Appeal No 56 of 2010. The Appellants were in that view, as the case of AMATUS JOACHIM LIYUMBA VS. REP (supra) was not responding on issue raised for determination. So, that case cannot be said to be a ratio decidend in line of the case of TAMBUENI ABDALLAH & ANOTHER VS. NSSF, Civil Appeal No. 33 of 2000, CAT at Dar es Salaam. The Appellants contended further that, there is no

evidence to show the act of purchasing the car was an arbitrary act since the said motor vehicle was planned, approved by both AGM and Registrar of cooperative societies. In addition, it was purchased in accordance to internal procurement system within WETCU; and the car benefited WETCU. To that end, the Appellants added that, the act of purchasing the car did not prejudice WETCU as alleged in particular of offence of the third count. Since the car was registered and insured by BUMACO Insurance Co. Ltd in the name of WETCU; and, when the car involved in accident, BUMACO paid claim of Tshs. 229,010,000/= then, WETCU who is beneficiary was not prejudiced anyhow. Regarding to third ground, First and Fourth Appellants contended that, there is no evidence in record to support presumption of existence of intention to commit the offence of the 8 abuse of the office in third count as there is no indication to prove the act of purchasing the motor vehicle was for personal gain. In relation to 4th Ground, First and Fourth Appellants argued that, the loss of 229m loss was not subject to fifth count. The fifth count, indicates that, the loss occasioned to WETCU by the Act of purchasing the contention car by the Appellant was 109,000,000/=. The Appellants submitted that, the Trial Magistrate was not justified to find loss at variance with one alluded in the charge sheet, as he did at page

36 of typed judgment. Instead of finding alternative loss on basis of conjecture, the Trial Court was supposed to mark, the fifth count unproved and acquit the Accused Persons. As regard to Grounds number 5, 6 and 7 the First and Fourth Appellants submitted them together that they reiterated ground Number one that there were approval of Registrar of Cooperative Societies when the Appellant purchased the motor vehicle. The Appellants also, repeated that, Second Appellant authorized the payment voucher No. 2201 (exhibit P6) and Third Appellant prepared and signed the LPO with Authority; and Second Appellant had no obligation to advise the Board of WETCU. Concerning 8th Ground, the First and Fourth Appellants submitted that according to General Operative Principles of Basic Guideline on Prosecution in Tanzania, a prosecuting attorney is allowed in exceptional cases, to participate in investigation of the crime. However, that attorney should not be over actively in 9 investigation to the position where he could eventually become witness in the case. The prosecutor Shedrack Kimaro, learned State Attorney identified by the Appellants to have been actively involved in investigation their case by went to extract information from some of the Appellants by threat, as such, he breached the principle of impartiality. With regard to ground number 9 relating to complainant statements, the

First and fourth Appellant prayed to abandoned it. For the 1st and 2nd grounds, Second and Third Appellants who were represented by Kilingo Hassan, the Advocate, submitted that, the trial magistrate misdirected himself on the assessment of evidence because there was approval of both Annual General Meeting (AGM) and Registrar when the Board of WETCU ltd purchased contentious motor vehicle. The Board prepared a budget of financial period of 2015/2016 and table it for endorsement before the AGM of 1st and 2nd April, 2015; and within the budget there was a money to buy one unit of unspecified light motor vehicle. The Second and Third Appellants went on submitting that, the Trial Magistrate misdirected on assessment of evidence that the Second Appellant did not authorize payment of contentious car while there is evidence in record to that effect. Payment voucher (exhibit P6) was prepared by Subhui Mowchwee (trainee Accountant) and checked by PW12 Aloyce io Sengerema, the Assistant Accountant of WETCU and the same was authorized by Second Appellant in his capacity as chief Accountant. The above facts was contrary to the finding of the Court. The Court held that payment voucher was prepared and signed by 4th Accused (Hamza Ally Kapela - not party to this Appeal) Being the first Appellate Court, the Appellants entreat this court to reevaluate the evidence in line of the case of PETER

VS. SUNDAY POST LIMITED (1958) EA 424. The Second and Third Appellant submitted on third and six grounds that, the issue of means rea in the offence of abuse of office was not established by the prosecution to the required standard because Second Appellant was not at the meeting on the day of 30/06/2015, so he was not in the position to advise on purchased motor vehicle. Regarding to ground 4, the Second and Third Appellant submitted that there is no evidence to show the act of purchasing a motor vehicle was an arbitrary act because the purchase of the motor vehicle was planned and approved by both AGM and Registrar of Cooperative Societies. The vehicle was purchased in accordance with internal procurement system within WETCU; and it was fair since it was intended to be used by, and actually benefited WETCU. Concerning to 7th Ground of Appeal, the Second and Third Appellant contended that, the Third Appellant prepared the local purchase order (LPO) without authority. In this regard, the Appellant u submitted that, the Trial Magistrate erred in law to hold that exhibit D8 not dated 30/06/2015. The Appellant contended further that the prosecution failed to prove the issue of means rea against them. On other side of the case, the Respondent submitted that, there were no misdirection on assessment of evidence leading to injustice because the trial Magistrate properly evaluated the

entire evidence in record and finally reached to a fair conclusion. Further, the Respondent submitted in response to 2nd Ground of Appeal that, the Trial Magistrate properly did interpret Section 96(1) of the Penal Code after satisfied himself that the ingredients of the offence had been met. The Respondent went on submitting that, the Trial Magistrate did not err on holding that there were loss of Tshs. 229,010,000 occasioned to WETCU by an act of purchasing a motor vehicle make Toyota Land Cruiser V8 with Reg. No. T181 DEN. The Respondent adding that, the Appellant submissions, entreat this Court to re-hear the Appeal by bringing facts and evidence, which were not canvassed during trial. The Respondent make reference to a case of Deemay Daat and Two Others vs. Rep, 2005 [TLR] that, the Appellate Court has matter of practice has to exercise power to review evidence by Trial Court with caution. With regard to ground 8, the Respondent submitted that, the Prosecutor one Shadrack Kimaro prosecuted the case and took active 12 part on investigation was baseless as there is no evidence in record to that regard. The Respondent surmised their submission by contended that, assuming the prosecutor took part on investigation, yet, there is no injustice occasioned because in criminal justice, the Accused is entitled nothing but fair justice. The Respondent referred an English case of

National Coal Board (1957) 2QB 55. Having reverberated the submission of the parties, let the Court determine the issue raised in this appeal. Starting with first issue, that, whether there was misdirection of evidence by the trial Court leading to injustice to convict appellants in third and fifth count. Perhaps, at this juncture, I wish to observe, and actual I associate with preambles in both parties’ submissions that, as the first appellate Court, I am entitled to re-evaluate the evidence on record and come to my own conclusion where necessary. See cases of KATONA RASHID @ MITANO VS. R, Criminal Appeal 487 of 2016 and Reuben Mhangwa and Kija Reuben vs. R, Criminal Appeal No. 99 of 2007. As it can be discerned from record of this appeal and backdrop in this judgment, the conviction of the appellants was based on two counts (3rd and 5th count). The 3rd Count is to abuse of office contrary to Section 96(1) of the Penal Code, Cap. 16; and 5th Count is occasioned loss to specified authority contrary to Paragraph 10(1) of the First 13 Schedule and Sections 57(1) and 60(1) of the Economic and organized Crime Control Act, Cap.

200. Finding of Trial Court on first count is reflected from pages 23 - 32 of typed judgment; and the finding of fifth count is at pages 34 - 38. In his finding, the trial court observed for 3rd Count that: - “... All in all, AGMpassed resolution ofpurchasing of a small car valuing Tshs. 40,000,000/= but the car which the Board alleged to have approved and passed was of Tshs. 269,000,000/= ... ... the permit was not only for purchase the car but also the use of money ....” In fifth count, the Trial magistrate partly observed thus:- " ... if the AGM’s resolution would have been implemented only forty millions (Tshs. 40,000,000/=) out of269,000,000 would have been spend into purchase of the van and sum of Tshs 229,000,000/= would have been topped up on the amount used to pay the farmers and eventually reduce liability of the society at the tune of229,000,000/= ...” These portions of holding reflects key elements of the Appellants charges. I say so because, all 16 prosecution witnesses, and 8 defence witnesses were revolving on the subject. The basis of the Appellant charges of abusing of office Contrary to Section 96 of the Penal Code and 5th Count of occasioned loss 14 to specified authority contrary to Paragraph 10(1) of the First Schedule was a result of buying motor vehicle make Toyota Land Cruiser V8 with Registration No. 181 DEN. It was said, the said car was bought without

approval of AGM and Registrar of Cooperative Societies. From the record, the evidence of General Manager one Amiri Mawazo, PW1 at pages 113, 115 and 117 of typed proceedings testified that, AGM of WETCU approved on Tshs. 40m for Board of WETCU to buy small van. That amount of money, i.e. Tshs. 40m was within the planed budget of 2015. The evidence of PW1 corroborated with other prosecution witnesses including of PW2, Enkwabi Stepahano (page 130); PW3, Isaack Jacob page 133 and Rajabu Hamis Msengesysi. The Appellant instead of buying a motor vehicle within the specified budget of 2015, they bought a motor vehicle make Toyota Land Cruiser V8 with Registration No. 181 DEN for consideration of Tshs. 269,000,000/ = . The payment of purchasing the vehicle obtained after selling 6,000,000 WETCO shares. Proceeds of 6,000,000 shares, i.e. Tshs. 407, 738,520/= was intended to set-off WETCU’s members and farmers debts. In other words, Tshs. 407,000,000/= was neither intended nor allocated to purchase a vehicle by AGM. The Appellants, alleged to have obtained approval of both AGM; and Registrar of Cooperative Societies pursuant to exhibit D6. 15 Upon scrutiny of entire record of appeal, there is no evidence, which suggested that the AGM approved for the Board to buy one unit of motor vehicle more than Tshs. 40m. Again, the decision of buying motor vehicle make Toyota Land Cruiser was made

prior to the Registrar of Cooperative Society approval. In record of appeal, the evidences of Deogratias Byebalilo, Registrar, PW7 (pages 201-202); Denis Mjuni Mbalongo, the auditor of COASCO, PW13 (page 305) and Charles Makunja, the investigator, PW16 (pages 343-345) bears so. Another witness for the prosecution, Aloyce Sengerema, the Accountant, PW12 said, the purchasing of the motor vehicle, obtained before the permit was issued (page 291). PW13 Mjuni Mbalongo, the auditor testified at page 305 of the typed record of appeal that, the Board conducted a meeting on 30/06/2015 to resolve to purchase a motor vehicle in question but quotation started on 25/06/2015 (four days before). After the meeting of 30/06/2015, one day later on 01/07/2015 contract between WETCO 4X4 Co. ltd was signed; and payment was made on 08/07/2015 before issuance of invoice or claim. Aside from the foregoing, there is PW4 one Rajabu Hamis Msengesyi. This witness who was appointed to represent interest of member of WETCU. The witness said at page 153 of typed proceedings, was left at Bondeni hotel by fellow delegates who were send to Dar-es-Salaam to purchase a motor vehicle. 16 The other delegates, parted away from hotel, before agreed time. When PW4 asked them, there was no plausible reason that the Apology made by DW1. Back to Section 96(1) of the Penal Code, the Section created offence against the Appellant in count three, the prosecution is required to prove the following elements against each accused on a charge of abuse of office to wit; 1. Employment in a public body, 2. (Willfully) doing or directing an arbitrary act to be done in abuse of his/her authority.

3. The arbitrary act must be prejudicial to the interests of his/her employer. This offense, in my view, is none controversial in itself; what amounts to an arbitrary act is a question of law, which does not depend on the circumstances of the case. Arbitrary acts/conduct includes such misconduct as negligence (breach of duty), unreasonable conduct, illegal conduct, breach of rules, guidelines, and accepted practices. In a persuasive cases from Uganda, arbitrary, was defined, in Uganda vs. Atugonza ACD CR CS 37 of 2010 and Uganda vs. Kazinda ACD CR SC 138 of 2012 as ‘An action, decision or rule not seemingly to be based on reason, system or plan and at times seems unfair or break the law’. 17 On the other hand willfully was said, in Uganda vs. Hudson Jackson Andrua and Angol Michael, High Court Anti-corruption Division Criminal Session Case No. 0054 OF 2012 as: ‘Deliberately doing something which is wrong knowing it to be wrong or with wreck less indifference as to whether it is wrong or not. ’ Concerning loss, the Prosecution must prove government/public prejudicial interest. Prejudicial in its ordinaiy meaning means harmful to someone or something detrimental, damaging, injurious, harmful or disadvantageous. Government interests is like public interest, which was not defined by our statutes. However, in the Case of Attorney General vs. Sisi Enterprises, [2006] TLR 9. The Court

of Appeal, as time to discuss the subject. The Court held as follows: - "... In the light of the above definitions, it is clear to us that "public interest" or "public purpose" must include a purpose, that is to say an aim or object in which the general interest of the community is concerned or involved, as opposed to the particular interest of individuals or institutions. ” Despite of the fact that, Public/Government interest is not defined, but, such interests are many, and in this context, inter alia, they extend to property interests, interests in good governance, development, rule of law, protection of public resources, national security, good international relations, fairness and transparency. 18 To that, end therefore, any prejudice to legitimate government interests or any act that is detrimental, damaging, harmful, disadvantageous, and injurious, or unfavorable to any of those legitimate government interests is prejudicial to it as an employer and therefore can amount to abuse of office under Section 96(1) of the Penal Code. Apart from Section 96(1), there is, Paragraph 10(1) of the Economic and Organized Crime Control Act, Cap. 200 subject of count 5 in charges laid against the Appellants. Unlike, Section 96(1) (supra), Paragraph 10(1), extend the arms of abuse of office to even to none employee of specified authority. Nevertheless, Paragraph 10(1), like Section 96(1)

(supra) create an offence to any person who willful act or omit to, or by his negligence or misconduct, or by reason of his failure to take reasonable care or to discharge his duties in a reasonable manner, causes any specified authority to suffer a pecuniary loss. The evidence in totality reveals that, the Appellants breached rules, guidelines, and accepted practices of purchasing the motor vehicle, as such, they abused authority of the office of WETCU by arbitrary exceeding their power authorized by AGM to purchase a vehicle; and to use proceeds of selling of 6,000,000 shares intended to settle members debts. Chain of events, as demonstrated by evidence in record, raise unquestionable circumstances that, the Appellants were unaware of what was going on. 19 Calculation made, to evade AGM to be aware of purchasing a vehicle for amount more than, 40M; arrangement made to pay for the vehicle before issuance of invoice and approval of Registrar of Cooperative Society and the action to segregate other delegates in purchasing process are clear evidence that something fishy was going on. Turning to the last issue on, whether the principle of impartiality was not observed in this case when one Shedrack. Kimaro, the state Attorney who prosecuted the case during trial was also involved in investigations; This issue should not detain this Court because the learned Senior State Attorney’s

submission has articulated the law and put the issue in its proper perspective. As rightly argued that, this question was not raised during trial; so it is an afterthought to raise it in this appeal. As a matter of general principle, an appellate Court cannot allow matters not taken or pleaded and decided in the court below to be raised on appeal (See Kennedy Owino Onyango and Others vs. Rep, Criminal Appeal No. 48 of 2006 (Court of Appeal, unreported). Apart from above observation, the record of appeal is silent on whether prosecutor took participation in investigation. Indeed, there is no any iota of evidence to justify this allegation. In the event, I arrive to the point that, both offences were proved beyond reasonable doubt. The conviction of the appellants cannot be assailed. The appeal is devoid of merit; and therefore, dismissed in its entirety. 20 It is so order LMOUR S. KHAMIS > JUDGE y 30/07/2021 Judgment ^^ivered in chambers in presence of the first, second and 4th appellan absence of the third appellant and the 21