20130430 TZHC Dar es Salaam

IN THE HIGH COURT ·oF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM (APPELLATE JURISDICTION) HC CRIMINAL APPEAL NO. 171 OF 2014 (From Kilosa District Court Economic Case No. 1 of 2010) 1. MSAGHAA CLEMENCE NKUMBI ...... . 1 ST APPELLANT 2. AMBAKISYE MOSES MWAKABANA ..... . 2ND APPELLANT 3. RUTH JUSTINE MUHOMBA .............. . 3RD APPELLANT 4. HELLEN MARKO .............. . 4TH APPELLANT Versus THE REPUBLIC ....................................................... RESPONDENT Date of hearing: 23 rd March, 2015 Date of Judgment: 30 th April, 2013

JUDGMENT Feleshi, J.: The trial court sentenced the above named appellants to pay a fine of Tshs. 5,000,000/= (for the 2nd Appellant) and 3,750,000/= (for the rest ' appellants) or all of them serve five years in jail after convicting them with the offence of A_buse of Position: Contrary to section 31 of the Prevention and Combating of Corruption Act, No.11 of 2007 hereinafter referred to as the 'PCCA'. The offence was alleged to have been committed in different dates of September and October, 2008 at Kilosa District Council in Kilosa District within Morogoro Region. 1 Thirteen counts were initially placed against the accused persons at the trial court comprised of six counts of Use of Document with Intent to Mislead Principal: Contrary to section 22 of the PCCA (for 1st & 4th Accuseds), four counts of Abuse of Position: Contrary to section 31 of the PCCA (for 2nd , 3rd , 5th & 6th Accuseds), one count of Uttering Cancelled Document: Contrary to section 343 of the Penal Code, [Cap.16 R.E.2002] (for 3rd Accused), one count of Stealing by Public Servant: Contrary to section 270 of the Penal Code (supra) (for the 1st Accused) and one count of Occasioning Loss to a Specified Authority: Contrary to Paragraph 10 of the 1st Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap.200 R.E.2002] against all accuseds. After receiving and analyzing

the evidence adduced by eleven prosecution witnesses the trial court convicted the present appellants as aforesaid and acquitted them of the 1st, 2nd , 3rd , 4th , 5th, 6th, 12th and 13th counts. At the hearing of this appeal on 23 rd March, 2015, the above appellants argued their consolidated petitions of appeal through their advocates Messrs. Leonard Manya ma (for the 1st Appellant) and Mluge Kaloli (for 2nd -5th Appellants) respectively. On the other hand, Ms Clara Charwe, the Learned State Attorney represented the Republic, the Respondent. Mr. Manyama made his submission and mainly focused on two areas. He submitted that the trial court erred in law to convict the 1st Appellant with the offence whose key ingredients were not proved. He argued that to 2 convict on the offence of Abuse of Position the prosecution is obliged to prove the key ingredients: first, that the appellant acted with ill intent or that he intentionally acted to gain an undue advantage for himself or for another person or entity. In his opinion, those ingredients were not proved against the 1st appellant and it was wrong for the trial court to convict the first appellant with the offence of Abuse of position. On this point, he referred this Court to the decision of the Court of Appeal in the case of Hamis Rajabu Dibagula v. Rep., Cr.Appeal No.53 of 2001 (unreported). Secondly, he submitted that the court

failed to properly evaluate the evidence adduced before it as had it have done so it must have found that the prosecution case was not established beyond any reasonable doubt. He therefore urged the court to allow the 1st appellant's appeal. On his part, Mr.Mluge submitted that the trial court erred in law to convict the 2nd Appellant with the offence of Abuse of Position which he was not charged with. He argued that that offence is not a cognate offence to the offence of Use of Document with Intent to Mislead Principal of which the 2nd appellant was charged with. He cited Mwita Magore v. Rep.,[1983]TLR 173 and Stephano Ndagize and lumanne Said v. Rep.,[1994] TLR 62 to fortify his position. Secondly, like Mr. Manyama, he charged that had the trial court properly evaluated the evidence as a whole there is no doubt that it would have established that the evidence as a whole did not establish the guilty of the appellants. Therefore, he invited this Court to allow the appeal in favour of the appellants. Ms Clara Charwe supported the 1st Appellant's appeal on the account that the prosecution evidence did not prove that the 1st Appeallant's act to 3 sign the disputed cheque (Exh·p. P.5) was made intentionally to compromise the financial accounting procedures and/ or for purposes of gaining an undue advantages for himself or for another person or entity. She however resisted the

appeal filed by the rest appellants. As I do not harbour a different position and outcome to those obtained from the trial court's analysis and findings and Ms Charwe's submission in respect of the 1st appellant position I hereby allow the 1st Appellant's Appeal. In respect of the other appellants, Ms Charwe submitted that the evidence adduced adequately implicated them with the offence of Abus·e of Position and it was correct for the trial court to convict the 2nd Appellant with the offence of Abuse of Position even if he was charged with the offence of Use of Document with Intent to Mislead Principal. She argued that the later is major to the former and there was sufficient evidence to prove that the 2nd Appellant abused his position and compromised with the accounting procedures against the interest of the District Council. As I have already allowed the first appellant's appeal I will therefore deal with the remaining part of the appeal. I will first examine the basis of 2nd Appellant's conviction. The record has it that in convicting the 2nd Appellant with the offence of Abuse of Position (supra) the trial court made the following analysis at page 20 of the judgment: "however on the 1st count, the 1st accused was supposed to have been charged with the offence of abuse of position, instead of use of document to mislead the principal which I mean (sic) now find him guilty of

the offence of abuse of position, as he was the one who pioneered in not following the required procedure of letting Grace Mbena be paid the cash 4 in dispute, but instead he performed the whole transaction on her back. This makes me wonder on what exactly was his interest? Definitely he must be benefiting something out of that act. Then it appears that he purchased the equipments after a query was established in their office, this also brings doubt on what his intentions were. He may have squandered the cash but seeing that the issue was hot he then decided to buy the equipments (sic). This then makes me find the 1st accused guilty of the offence of abuse of position and so I hereby convicted (sic) him of the stated offence." The offence of Abuse of Position is created by section 31 of the PCCA which provide: "any person who intentionally abuses his position in the performance or failure to perform an act, in violation of the law, on the discharge of his functions or use of position for the purpose of obtaining an undue advantages for himself or for another person or entity, commits an offence and shall be liable on conviction to a fine not exceeding five million · shillings or to imprisonment for a term not exceeding three years or to both." In the first place, I must state that the trial court, as per its analysis in the excerpt above, wholly depended on circumstantial

evidence. One of the issues I have to tackle therefore is whether the circumstantial evidence relied upon by the trial court to convict the 2nd appellant and his co- appellants proved the offence of Abuse of Position beyond any reasonable doubt. The Court of Appeal in Simon Msoke V.R [1958] E.A 715 and ,Hamidu Mussa Thimotheo and Majidi Mussa Thimotheo v. Rep. [1993] TLR 125 underlined that the level of circumstantial evidence needed to predicate conviction makes it obligatory to the trial to satisfy itself that the circumstantial evidence deposed by the prosecution is in all aspects incapable of giving more than one interpretation and that the facts from 5 which an· inference of guilty or adverse to the accused is sought to be drawn, must be proved beyond reasonable doubt and must clearly be connected with the facts from which the inference is drawn or inferred. In our case, there are patches of evidence adduced by prosecution's witnesses that pose serious antagonism against each other. The first group of evidence is that informed the trial court that the equipment for which Tshs. 3,750,000/= had been requested for were never bought at all despite that money being disbursed through Exh.P.5 (see: PW1, PW4 and PWll). Then we have the band of evidence from PW5, PW7 and PW10 that informed the trial court that the equipment were bought, received and subsequently issued to the user

Department led by PW5. Although the trial court subsequently convicted the appellants the record does not show that it took a trouble to analyse those conflicting . pieces of prosecution evidence and try to resolve them. In the case of Mohamed Said Matula v Rep. [1995] TLR 3 the Court of Appeal underlined that: "Whenever the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the rood of the matter." Yet there are other areas that were not resolved. First, there is the issue of which money was used to buy the equipment. Whereas it is in evidence that the NMB refunded the Tshs.3, 750,000/= the District Executive Director (PW3) on his part told the court that they used another fund to buy the equipment the money that was subsequently retired using 6 ·- the imprest retirement forms. Second, PW6 absolved the 6th accused from the liability saying that 'the 6 th accused had nothing to do with cheque (Exh.PS) because whatever she did was in compliance with her directives'. It will be noted that the 6th accused was subsequently convicted along with other appellants (see pp.22 & 23 of the trial court's judgment). The 1st Accused also further absolved the rest accuseds

by saying that he was the only one who supervised the whole process and that the equipment were bought. The evidence also depicts that the 1st Accused, like PW 3, PW7, and the 5th accused formed as the senior officials of the Kilosa District Council's Management. The record is clear that all these areas pointed herein above were not analysed and resolved by the trial court. As it is a trite law that "every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing such witness" (see: Yasin Rashid Maige v Rep., Cr.Appeal No. 461 of 2007 and Goodluck Kyc1ndo v R, Cr. Appeal No. 118 of 2003 (all CAT unreported decisions) and yet the trial court didn't take trouble to analyse those pieces of evidence, it is therefore difficult to hold with precision and certainty that the circumstantial evidence it relied upon had proved the prosecution case beyond any reasonable doubt. Under those circumstances and based on the above exposition, I decline to uphold the trial court's decision and therefore allow their respective appeals. It is important however to underscore that in order to establish the offence of Abuse of Position (supra) the evidence must be led to satisfy the 7 key ingredients which are: first, the offender is holding a position; two, the offender acted with intent to abuse his position; three, the

offender acted in pursuit of his official and violated the law; and four, that the offender acted with intent for purp<?s~s of obtaining an undue advantage for himself or for another perso_n . or entity.. ~ .... •. ' Therefore, "1 ~'-~ o( respectful opinion that had this case been well ·r • • handled by qoth ''th'e .investigation and the prosecution on the one hand, . . and by the trial court on the other, I believe the trial court's consequent judgment could hardly be faulted as it has happened in this case. In the upshot, as aforesaid, I am therefore inclined to accede to the grounds of appeal as submitted by the learned advocates and the learned State Attorney to the extent explained above. I accordingly allow the appellants respective appeals quash their respective convictions and set aside their sentences. In revision, this decision will cover Eva Cleopa Mushi (3 rd accused) who was convicted but was not sentenced. The above said, I will not deal with the rest grounds of appeal. As the record shows that all appellants were subsequently released upon payment of their respective fine sentences, the appellants should be refunded their respective moneys unless if the same is otherwise lawfully held. DATED at DAR ES SALAAM this 30th day of April, 2015. '

ESHI

JUDGE 8 Delivered in Court Chambers in the presence or Ms. Neema Taji, the learned State Attorney for the Republic Respondent and in the absence of the appellants. A right of Appeal is exRlained. 0.4.015 ' . 9