20150902 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM COURT MARTIAL CRIMINAL APPEAL NO. 3 OF 2013 CORAM. A. Shangwa, J R.A. Teemba, J J.K Mwakipesile, J MT. 64623 SGT RASHID ALLY NZIGE ........... APPELLANT V THE JUDGE ADVOCATE GE~ERAL ......... RESPONDENT A.Shangwa. J. t JUDGMENT The Appellant, MT 64623 Sgt Rashid Ally Nzige of 101 KV FES Coy was charged before the. General Court Martial, sitting at 101 KV Officers Mess --.. ______ =,Migombani, Zanzibar. He was charged with twelve ,,,✓7 Offences. Three of them were C/S. C. 61 (a) of the Code of Service Discipline - 1st Schedule part 1 of the National Defence Act, Cap 192 R.E. 2002. The rest i 2 were C/S. C. 65 of the Code of Service Discipline. He pleaded not guilty to all charges. At the end of his trial, he was found guilty on three charges C/S. C. 61 (a) of the Code of Service Discipline and not guilty on nine charges C/S. C. 65 of the Code of Service Discipline. On the three charges on which he was found guilty namely Counts 2, 5 and 8, he was convicted and sentenced to two years term of imprisonment. He was not satisfied with both conviction and sentence. Consequently, he appealed to this Court. In his Memorandum of Appeal, he raised the following grounds:- i ;; 3 1. That the trial Courl erred in law and fact by convicting and sentencing him to 2 years term of imprisonment without observing the law found on . natural justice which requires reasons for conviction and sentence. 2. That the trial Courl erred in law and fact by convicting and sentencing him for the offences which were committed under section C. 61 (a) of the Defence Force Regulation (disciplinary) without regarding that the prosecution witnesses Mt 64611 Sgt Pandu Makame Vuai, MT 63986 Sgt Ally Suleiman Haji, MT 08695 1. 4 Usu Saleh Khamis Ally and CPL Miraji Mohamed admitted before the trial Court that the statements in the documents are their own statements which they signed, got the Bank loans, their salaries deducted and without any Zoss complained of by the Banks. 3. That the trial Court erred in law and fact by convicting and sentencing him without following rules and regulations underprovision NO 112. 40 "DETERMINATION OF FINDINGS" and there is no record to show that i 5 the procedure under the above _ provision was followed. 4. That the trial Court erred in law and fact by convicting and sentencing him for the offences which were committed by other Persons who were named in the second ground of appeal. The offences with which the Appellant was charged on the 2 nd , 5 th and 8 th counts are similar in nature namely, making false entries into the loan forms. On the 2 nd Count, it was alleged by the prosecution that on 2 nd October, 2009 in Unguja, Zanzibar, he made false entries in the loan form of MT 64611 Sgt Pandu i t 6 Makame Vuai obtained from Benki ya Wananchi Dar es Salaam (DCB) purporting to show that the said loan form had been filled through office procedures of Communication Squardron 101 KV whereas it was not true. On the 5 th count, it was alleged by the prosecution that on 24 th September, 2009 at Mwanyanya Engineering Squardron 101 KV in Unguja, Zanzibar, he made false entries in the loan form of MT 68695 CPL Usu Salehe Hamis Ally obtained from Benki ya Wananchi Dar es Salaam (DCB) purporting to show that the said loan form had been obtained and filled through office Procedures of 7 Engineering Squardron 101 KV whereas it was not true. On · the 8 th count, it was alleged by the prosecution that between 1st September, 2009 and 27th September, -2009 at "Mwanyari.ya- Engin"eering - Squardron 101 KV in Unguja, Zanzibar, he made false entries in the loan form of MT 63986 Sgt Ally Suleiman Haji obtained from Benki ya Wananchi Dar es Salaam purporting to show that it had been filled through office procedures of Engineering Squardron 101 KV whereas it was not true. The prosecution called 8 witnesses to prove its allegations. 8 P.Wl MT 56608 Sgt Rajah Hussein Soko told the General Court Marshal that he is MP working with 101 KV Headquarters. That in September, 2009, he was instructed by Brigede Provost Marshal called -- Major Nyakora to investigate as to whether or not the loan forms from NMB and DCB Dar- es Salaam in the names of CPL Hamza Said Hamza of 161 KJ and CPL Ally Kombo Ally of 11 KJ were forged and if so who forged them. He said, he complied with the instructions. That he interrogated Ally Kombo Ally of 11 KJ and CPL Hamza Said Hamza of 161 Regment who informed him that they got information from their fellow soldiers that the Appellant Sgt Rashid Ally Nzige was in a position to assist them to get a loan 9 from NMB. That when they got the said information, they went to the Appellant who gave them the NMB forms, filled in their particulars, caused them to sign the loan forms and that the loan forms had no stamp and signature of the OC. That the Appellant told them that whomsoever will get a loan ofTShs 2,·000,000/=; he had to deduct Tshs 200,000/= and give them to him. That after interrogating them, he called the Appellant and interrogated him about the matter and he admitted to have filled and processed the loan forms of CPL Ally Kombo Ally and CPL Hamza Saidi and that these forms had no stamp or signature of the I OC. That on further investigation, he interrogated Sgt Pandu Makame Vuai who told him that he obtained a loan from DCB and that the one who filled his loan 10 forms was the Appellant and that when he got a loan of Tshs 4, 500,000/= from the said bank, he gave the Appellant Tshs 50,000/= as thanks for assisting him to get the loan from DCB. That he also interrogated Sgt Ally Selemani Haji of 111 KJ who told him that the Appellant assisted him in filling the loan form of Tshs 4,000,000/= from DCB and that those forms had no stamp of OC or his signature and that when he got the loan, he gave the Appellant Tshs 200,000/=. That he interrogated CPL Usu Salehe Khamis of 101 KV REC CE COY who told him that the Appellant did fill the DCB loan form for him and that after doing so, the Appellant asked him to sign. That when he signed, there was no stamp or 11 signature of the OC on that form and that when he received a loan of Tshs 2,000,000/= he gave Tshs 200, 000/= to the Appellant. P.W.I further told the General Court Martial that after interrogating CPL Usu Salehe Khamis, he interrogated Major DB Namembe, OC Communication Squardron who told him that the signature on loan form of CPL Usu Salehe Hamisi did not belong to him and that the official stamp on the said form did not belong to Communication Squardron. That thereafter, he took the specimen signature of Major DB Namembe, the specimen of stamp of OC Communication Squardron, the specimen of the Appellant's handwriting, the loan forms, the specimen signature of major Mandago & 12 the specimen of stamp of CTC, Chukwani to Identification Bureau for expert investigation. That after investigation, ASP Aman Renatus Saada of IB for- warded a report to his office showing that the loan forms were signed by the Appellant and that the signatures on the loan forms were neither the signature of Major Namembe nor the signature of Major Mandago. P.W.2 P 6723 Major DB Namembe, OC of Coy Communication Squardron 101 told the General Court Martial that his signature and stamp appearing on the loan form of Sgt Pandu Makame Vuai is not his signature and that the stamp on it is not the stamp of Coy Communication Squardron 101 KV where he worked as OC. 13 P.W.3 MT 6411 Sgt Pandu Makame Vuai told the General Court Martial that he works at 101 KV Communication Squardron and that his QC is Major Namembe. That he needed a loan. That he heard that the Appellant could assist him to get a loan and. thaf he went to the Appellant who gave him a loan form from DCB which he filled. He said, by then, the loan form did not bear the signature of his QC and the stamp of his QC Communication Squardron Major Namembe. That later he got the loan from the said Bank. P.W4 MT 63986 Sgt Ally Suleiman Haji told the General Court Martial that he works with 11 lKJ 14 Mtoni. That he obtained a loan from DCB. That the Appellant is the one who assisted him to get a loan from the said Bank. That the Appellant filled the Bank form/ loan form for him. That he does not know how the Appellant obtained the signature of Major Mandago who was not his OC and the. stamp. of OC Chukwani where he was not stationed. P.WS MT 68695 CPL Salehe Hamisi Ally told the General Court Martial that he is stationed at Mwanyanya RECCE Coy 101 KV. That he has ever been given a loan from DCB and NMB. That one day, the Appellant who was stationed at FES COY went to him and asked him as to whether he needed a loan or not. That he replied that he needed a loan and that --- ' - -.......L 15 upon his reply the Appellant gave him a loan form which he signed and left it with· him. That the Appellant told him that he ha.s already talked to his OC captain Saidi Ally Juma concerning his request for the loan. That the loan form had the name of Major Namembe who was-not his 6c. That later:· he got the loan and gave the Appellant Tshs 200,000/=. P.W.6 CPL Miraji Mohamed Miraji told the General Court Martial that he has ever obtained a loan from DCB and that the one who assisted him to get a loan is the Appellant who filled the loan form for him. That at the time of filling the loan form for him, it did not bear the signature of his CO or his CO'S. Stamp. That he was shown the loan form and that it 16 had the name of Major Mandago and the stamp of QC Chukwani, CTC, Zanzibar. P.W. 7 P8482 Major Mandago told the General Court Martial that the signature on the loan form of Sgt Ally Suleiman Haji did not belong to him and the stamp on it did not belong to CTC, Chukwani where he worked as Principal of the institute. P.W. 8 Aman Rentus Saada told the General Court Martial that he works with 1B POLICE Headquarters, Dar es Salaam and that he is a hand writing expert. That he received certain exhibits from JWTZ which included documents. That he analyzed those exhibits i.e specimen signatures of officers who 17 had to sign those documents. That he received specimen of stamps from their offices. That he analyzed those documents and stamps by making comparisons of signatures of Major Mandago and Major Namembe and the stamp of OC, CTC, -- Chukwani and found that they were mere forgeries. The Appellant MT 64623 Sgt Rashid Ally Nzige did not call any witness on his behalf. He defended himself. In his defence, he told the General Court Martial that Sgt Pandu Makame Vuai followed him at Mwanyanya with a DCB's loan form to fill in his particulars which he did and that thereafter he signed the loan form and left with it. That he does not know about the stamp on the said form which shows it belongs to Communication Squardron Coy. 18 He further told the General Court Martial that CPL Salehe Hamisi Ally is his workmate at Mwanyanya. That on 1/9/2009, he went to him with a loan form and asked him to fill it which he did. He furthermore told the General Court Martial that CPL Salehe Hamisi Ally told him that he could not fill it himself and that after filling it for him, he put his signature and went away with it. That he does not know who put the signature of Major Namembe of Communication Squardron on CPL Salehe Hamisi Ally's loan form and that he does not know who stamped it. That he did not enter into any agreement with CPL Salehe Hamisi Ally when he filled his DCB loan form. That he was not caught with the stamp 19 which was put on the said form. That he does not know who forged the signature of Major Mandago, CO CTC, Chukwani on the said form. Furthermore, the Appellant told the General Court Martial that he never received Tshs 200,000/= from Stg Ally Suleiman Haji or any other person for assisting· him to fill the loan -- - forms. After going through the evidence on both sides, what follows now is to consider the grounds of appeal in which the Appellant submits that he was wrongly convicted of the offences of making false entries into the loan forms of MT 64611 Sgt Pandu Makame Vuai, MT68695 CPL Usu Salehe Hamisi Ally and Suleiman Haji. 20 On the first ground. of appeal, we find that it is not true as submitted by the Appellant that the General Court Martial did not observe the Principle of natural justice in convicting and sentencing him. This is because the charges framed against him were read over and explained to him by the General Court Marshal as indicated at pages 5 to 7 of the said Court's proceedings. Apart from that, he was given an opportunity to be heard on each step of the proceedings and to defend himself as it can clearly be seen from page 5 to 368 of the proceedings. The reasons for his conviction and sentence are non other than the evidence on record which was adduced by the prosecution witnesses to prove his criminal liability. The sentence was in accordance with S.C 61 21 (a) of the Code of Service Discipline which creates the offence of which he was found guilty on the three counts and convicted namely making false entries on loan forms of his fellow Military servicemen. The sentence which is provided for under S. C. 61 (a) of the Code of Service Discipline on conviction is · imprisonment for a term not exceeding three years or to less punishment. This disposes of the first ground of appeal which fails. We now go to the second ground of appeal. In our opinion, the second ground of appeal is misconceived. This is because the Appellant's conviction and sentence was not under S.C. 61 (a) of the Defence Force Regulations as stated by him in his second 22 ground of appeal. The Defence Force Regulations do not contain sections or create offences. They contain Regulations. The Appellant's conviction and sentence was under S.C. 61 (a) of the Code of service Discipline- 1st Schedule, Part I to the National Defence Act, Cap - 192 R.E 2002. The fact that MT 64611 Sgt Pandu Makame Vuai, MT 63986 Sgt Ally Suleiman Haji and MT 08995 Usu Salehe Hamisi Ally did admit in their testimonies that the statement on the loan forms were their own statements and that the signatures thereon were their own signatures and that their salaries were deducted for repayment of the loans and that there was no complaint from the Banks does not exculpate him. The said witnesses told the General Court Martial that the Appellant possessed the loan forms 23 from DCB and NMB which he filled for them in order to obtain the loans. That at the time of filling those forms, they did not bear their QC's Stamps and signatures. These witnesses were believed by the General Court Martial in what they said before it. The specimen signature of the Appellant and the- - specimen signatures of the QCS namely Major Namembe QC oflOl KV and Major Mandago QC of CTC, Chukwani and the specimen of their official stamps were taken by P.W.1 MT 56608 Sgt Rajah Hussein Soko to 1B for analysis after he was instructed by the Brigede Provost Marshal Major Nyakora to investigate as to whether the loan forms contained any forged entries. -l • I I 24 Upon analysis by P.W8 Aman Rentus Saada, a handwriting expert working with 1B Dar es Salaam, it was found that the signatures and the stamps on those forms differed with the signatures of Major Namembe and Major Mandago and their official stamps which signifies that they were forged. The said - - - - officers told the General Court Marshal in their respective testimonies that they never signed and stamped those forms. The Appellant is the one who processed those forms from the beginning to the end. This means that he is the one who entered false signatures and stamps on those forms. The persons to whom those forms belonged namely P.W3, P.W 4 and P.W.5 testified that the Appellant used to be given some money for his 25 assistance in filling them and processing them and that the amount of money he used to be given · depended on the amount of the loan obtained by each of them. In his defence, the Appellant attempted -to say- - - - that the persons to whom those forms belonged are the ones who entered on those forms the signatures of Major Namembe and Major Mandago and false stamps of OCS of Communication Squardron and CTC, Chukwani respectively. We think that his attempts to say so is what we can call an afterthought. This disposes of the second ground of appeal which fails. 26 We now proceed to the third ground of appeal. On this ground, the Appellant faults the General Court Marshal that he was convicted and sentenced without following the Defence Force Rules and Regulations. It was contended by counsel for the Appellant Mr. - Rwegasira that in convicting- and sentencing the - Appellant, the provisions of Regulation 112. 05 (21) (f) and (g) (ii) of the Defence Forces (Disciplinary) Regulations were not complied with by the General Court Martial. He said, the said provisions require that where the case for the defence has been closed and any further witnesses called by the Court have been heard, the Court shall close to determine its finding under the provision of Regulation 112. 40 of 27 the Defence Forces Regulations and then reopen to - pronounce to the.accused the finding on· each charge. With respect to counsel for the Appellant, it is not _true as s_ubmitted by him_ that in convicting and sentencing the Appellant, the General Court Martial did not comply with the provisions of Regulation 112. 05 (21) (f) and (g) (ii) of the Defence Forces (Disciplinary) Regulations. In fact, it did so. We think that Mr. Rwegasira did not read the General Court Martial's proceedings at page 364 to 365 where it is crystal clear that the aforesaid provisions were complied with by the General Court Martial. Had he done so, he would not have faulted it as he did on his third ground of appeal. 28 At page 364 of the proceedings, it is recorded by the General Court Martial as follows and we quote:- "Mahakama imefungwa kwa muda ili kufikia uamuzi wa fru~kumu {finding). (Mahakama inatoka nje ya chumba cha Mahakama)". At page 365 of the proceedings, it is shown that in compliance with the Regulations, the General Court Martial re-assembled at 14.15 hours on 5/10/2012 and the finding of the Court was pronounced to the accused on each charge (There were 12 charges). This disposes of the third ground of appeal which fails. 29 We now resort to the fourth ground of appeal. On this ground, the Appellant also faults the General Court Martial that it convicted him and sentenced him for the offences which were committed by other persons -who were named in the --Second _ground_ 9X appeal who were punished for their wrong acts. In our opinion, the General Court Martial was as well wrongly faulted on this ground. This is because the Appellant was convicted of and sentenced for the offences which were committed by him and not for the offences which were committed by other persons who are named in the 2 nd ground of appeal. The offences which were committed by him are the offences with which he was charged, convicted and sentenced on three counts namely making false entries into the 30 loan forms of his fellow Military Servicemen mentioned in the second ground of appeal. The persons who are mentioned in the second ground of appeal w~re not charged such as he was charged with the offences of making false entries in the loan forms in issue. This disposes of the fourth ground of appeal which fails as well. In the final analysis, we dismiss this appeal. 31 ~ R.A.Teemba JUDGE 2/9/2015 G.K.~akiP~~ie JUDGE 2/9/2015 Delivered in open Court this 2 nd day of September, 2015 in the presence of Capt. B.S. Kanju, legal officer for Respondent and in the absence of the Appellant and his Advocate and in the presence of Capt. C.A. Zamungu legal officer.