20140902 TZHC Dar es Salaam 1

1 r l , IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM COURT MARTIAL CRIMINAL APPEAL NO. 2 OF 2013 Coram. A. Shangwa, J. R.A. Teemba, J. J.K. Mwakipesile, J MT 80796 CPL RAPHAEL MUTALEMWA KATABALO ................... APPELLANT V. THE JUDGE ADVOCATE GENERAL ..................... RESPONDENT JUDGMENT Shangwa, J. I The Appellant, 'MT. 80796 CPL Raphael Mutalemwa Katabalo, was charged before the General Court Martial, sitting at Saba Saba Mess-Tau with two offences namely:- 2 1. Theft C/S C. 51 (1) of the Code of Service Discipline First Schedule to the National Defence Act, Cap. 192 R.E. 2002. 2. Causing loss of property of the Defence Forces Cl S C. 53 (a) of the Code of Service Discipline First Schedule to the National Defence Act, Cap. 192 R.E. 2002. When the charges were read over to him, he pleaded not guilty to both of them. He was then tried and found guilty. Upon being found guilty, he was convicted and sentenced to two years imprisonment ti l 3 - --- - - for both offences: He was a.ggrieved by-both c~11.~iction and sentence. He has now appealed to this court. Counsel for the Appellant raised five grounds of appeal against the Court Martial's decision and sentence. They are as follows:- 1. That the court erred in law and in fact by arriving at an Omnibus conviction without assigning any reasons for convicting the Appellant under each of the two counts. 2. That the court erred in_ law and in fact by sentencing the Appellant to an omnibus and severe I l 4 sentence of two years imprisonment without assigning any reasons to justify such a sentence or even to link it with the charges. 3. That the court erred in law and in fact by convicting the Appellant basing on mere suspicious testimonies of all prosecution witnesses. 4. That the court erred in law and in fact by convicting the Appellant basing on circumstantial evidence which was not watertight. 5 5. That the court erred in law and in fact by ignoring the defence case which raised doubts in the prosecution's case. The above listed grounds of appeal were thoroughly argued by counsel for the parties. Whereas counsel for the Appellant Mr. Rwegasira prayed this court to allow the appeal, counsel for the Respondent Major Kaaya prayed this court to dismiss it. The prosecution called eight witnesses to prove the charges that were framed against the Appellant. Before looking at the evidence given by those witnesses, let us look at the particulars of the offences as alleged by the prosecution. On the first count of 6 theft, the prosecution alleged that between 1st July, 2010 at the Headquarters of the Defence Forces at Band Coy Mwenge, the Appellant stole Tshs. 16,430,000/= from the cash office being ration allowances of 106 army trainees, the property of the Defence Forces. On the second count of causing loss of property, the prosecution alleged that between 1 st July, 2010 and 2 nd July, 2010 at the Headquarters of the Defence Forces at Mwenge, Band Coy, he lost the cash office key. Let us now look at the evidence which was given by eight prosecution witnesses to prove the charges. The first prosecution witness was No. P.W.0140 Capt. Salma Shabani Kalili. She told the Court Martial that 7 on 2 nd July, 2010, the Appellant went to her and told her that the cash office key was nowhere to be seen. The matter was reported to the OC. The office door lock was broken at the instructions of the OC and that when the Appellant went inside the office, he said that the cash box was missing. The second prosecution witness was MT 71917 CPL Athuman Abdallah Kigwadulla. He told the Court Martial that on 2 nd July, 2010, the Appellant went to his office and requested him to go and break the cash office door as the key was missing. That he went there and broke the door and that after breaking it, the Appellant went inside the office and said that money had been stolen from therein. t • 8 The third prosecution witness was MT 61055 Sgt Richard George. He told the Court Martial that on 2 nd July, 2010, he was instructed by Lt Col Mhando to investigate this case and that after being instructed to do so, he went to Band Coy where the theft took place. That he interrogated several officers including the Appellant. That when he interrogated CPL Sophia and Pte Raphael Wailesi who used to work in the same office with the Appellant, they informed him that on the date of the incident, the Appellant was left alone in the cash office with the office key and that on the following day the Appellant said that the cash office key was missing. Furthermore, this witness told the Court Martial that the cash office was not broken but that the cash box which contained Tshs. 9 16,430,000/= was found missing after breaking the lock of th·e cash office door and that the one who broke it is MT 7191 7 CPL Athuman Abdallah Kigwadulla upon being instructed by the QC to break it. The fourth prosecution witness was MTM 1676 CPL Sophia Roman. She told the Court Martial that on 30 th June, 2010, they went to the Army Headquarters to collect cash money for payment to Army officers and trainees and that out of the amount they collected, the OC instructed them to keep Tshs. 16,430,000/= for trainees which they did. That on 1 st July, 2010 when she went to the office, she was informed by her work mates that the said money had been stolen. 10 The fifth witness was MT 69120 CPL Nyamhanga Kilalio Urasa. He told the Court Martial that when he was on duty the one who took the cash office key was Pte Raphael Wailesi and that when he left the office, he informed the Guard Commander that the cash office key had not been handed over as per the key book record. He tender~d the said book as exhibit P2. He further said that Pte Wailesi informed him that the one who was left with the cash office key is the Appellant. The Sixth witness was MT 77941 Pte Raphael Wailesi. He told the Court Martial that on 1st July, 2010, he took the cash office key from the MP's office and that when he. left the cash office where he used 11 to work, he left the key with the Appellant and that on the fallowing day, the key was nowhere to be seen and that when the cash office's door was broken, it was found that the cash box had been stolen from therein. The Seventh prosecution witness was MT 91803 Pte Athuman Habibu. He told the Court Martial that on 2 nd October, 2010, he was on guard and saw the Appellant with his visitor inside the barracks and that when they left he opened the gate for them. He said that they left with a motor cycle and that they were not carrying the cash box. We now go to the defence side. The Appellant MT 80796 CPL Raphael Mutalemwa Katabalo defended himself on oath and he called three 12 witnesses on his side. In his defence, the Appellant . who testified as D.W.1 told the Court Martial that on 1st July, 2010, he remained in the cash office to prepare the pay rolls and that when he finished to do so, he locked the office and went to the office of MT and left the key in the key box. He said, thereafter, he bid farewell to the Guard Commander and left with his visitor. He said on the following day when he went to collect the cash office key from the Guard Commander's office, he found that the key was not there. He said, thereafter, he went to report the matter to ADM Officer and that arrangements were made to break the lock of the cash office's door and that after breaking it, he entered therein together with Sophia, Merry and Kalili and found the cash box missing. He 13 said thereafter, he was put under arrest together with Sophia and Merry whose homes at Mwananyamala and Sinza respectively were searched on suspicion of theft of the cash box but neither the cash box nor the money was found with them. He said, later he was charged in the Court Martial with the offence of theft and causing loss of property of the Defence Forces. D.W.2 Athanas Patrick Bamgimba who is the Appellant's cousin told the Court Martial that one day, he went to the Army barracks at Mwenge to inform the Appellant that his mother at Bukoba was ill and that after informing him so, the Appellant left the key in the key box and that thereafter they left the Barracks. ' . 14 D.W. 3 MT 78405 Cpl Gallus Haule Lembuka told the Court Martial that he works with DFHQ Band Coy and that on 1st July, 2010 while he was going to the Mess he was stopped by Pte Saidi Mwinyiheri who asked him to give him the Appellant's telephone number and that he gave him the said number and proceeded on his way. D.W.4 MT 76175 Cpl Fadhili Amri Maulidi told the Court Martial that on 1st July, 2010 at 5.00 pm, he saw the Appellant on a motor cycle heading to the main gate and he asked him to borrow him Tshs. 20,000/= but he told him that he did not have the said amount. He said, thereafter, he went to his class room. 15 We now start to consider the Appellant's grounds of appeal in the light of evidence given by witnesses on both sides. We wish to start with grounds 3 and 4 which we find to be interrelated. On these two grounds, the Appellant faults the Court Martial for convicting him on suspicious testimonies given by the prosecution's witnesses and on circumstantial evidence which was not watertight. Upon examination of the testimonies given by the prosecution witnesses, we agree with counsel for the Appellant that none of them saw the Appellant carrying the cash box containing Tshs. 16,430,000/= which is alleged to have been stolen by him from the cash office at DFHQ Band Coy Mwenge where he was stationed prior to his arrest in connection with the charges in issue. For a -- 16 similar reason, we agree with counsel for the Appellant that the evidence given by the prosecution is circumstantial. However, as we shall soon show, although nobody saw the Appellant carrying the cash box and although the prosecution's evidence is circumstantial, it tilts to the Appellant's guilt. It is watertight. First of all, the cash office building from where the cash box containing Tshs. 16,430,000/= was stolen had not been broken into by anybody. Secondly, on 1st July, 2010, the Appellant was left alone in the cash office with the office key. Thirdly, on the following day the office key was nowhere to be seen and the cash box containingTshs. 16,430,000/= was nowhere to be seen as well. The Appellant did not deny the fact that on 1 st July, 2010, he remained in l • , ' 17 the cash office alone when his workmates left the office for home. ~lso, he did not deny that the cash office key was left with him. In his testimony, he said that when he left the cash office, he locked the door and took the key to the office of the MT and put it in the key box and bid farewell to the Guard Commander whom he did not mention his or her name. His denial of having left the Band Coy with the cash office key was supported by D.W.2 Athanas Patrick Bamgimba who is his cousin but it was contradicted by MT 69120 CPL Nyamhanga Kilalio Urasa (P.W.5) who tendered the key book exhibit P2 to show that it was not recorded therein that the cash office key was returned by the Appellant. His denial of having J • . j • 18 left with the cash office key was also contradicted by MT M. 9575 CPL Mwamvita Ally (P.W.6) who was the Guard Commander on the date of the incident and who told the Court Martial that when the MP on duty handed over the key book to her, he told her that the cash office key had not been returned. The courts in this country have already established the circumstances under which an accused may be convicted on circumstantial evidence. In the case of August Mahiyo V. R. (1993) TLR 117 (CA) it was held as follows:- 1. That the force of suspicious . circumstances IS augmented wherever the person accused attempts no explanation of facts 19 which he may reasonably be expected to be able or interested to explain; false; incredible or contradictory statements given by way of explanation if disapproved, become of substantive inculpatory effect. 2.Looking at the totality of the evidence, the circumstantial evidence pointed irresistibly to the guilt of the Appellant. In the above cited case, the accused had been convicted on circumstantial evidence which was watertight and his appeal against the decision of the 20 High Court which found him guilty on circumstantial evidence. was dismissed by the Court of Appeal of Tanzania. In that case the accused was found guilty of murder of his wife. In this case as the cash office situated in the Army barracks at band Coy Mwenge was not broken by anybody, we agree with the Court Martial's decision that the Appellant who had the said office's key which he did not return to the office is the one who stole the cash box containing Tshs. 16,430,000/= the property of the Defence Forces of Tanzania. This disposes of the 3 rd and 4 th grounds of appeal. 21 We now resort to the first and second grounds of appeal which are also interrelated. On these two grounds, we agree with Mr. Rwegasira for the Appellant that the Court Martial imposed an Omnibus Conviction and Sentence of two years term of imprisonment on the Appellant with respect to both offences. However, the omnibus conviction and sentence imposed on the Appellant did not occasion any miscarriage or failure of justice. The sentence was not severe as argued by the defence. Taking into consideration the gravity of the offence with which he was charged, the sentence imposed on him by the Court Martial was little and quite lenient. Thus, he should count himself lucky. On the average, he was sentenced to one year term of imprisonment on each - -~-- -----------------------~-- - 22 count which was rather small. This disposes of the 1st and 2 nd grounds of appeal. The last ground of appeal to be considered is the fifth ground on which counsel for the Appellant faults the Court Martial for ignoring the defence case which he says raised reasonable doubt in the prosecution's case. The Court Martial record shows clearly that the Appellant's defence was not at all ignored by the Court Martial. The Court Martial recorded the testimonies of three witnesses who testified on his behalf. The testimonies of the said witnesses were considered by the Court Martial. We have gone through their testimonies and found that they did not create any reasonable doubt in the prosecution's case. i.t r1 .£; 23 As already mentioned, the circumstantial evidence on the Court Martial's record tilts to the Appellant's guilt that he is the one who stole the cash box containing Tshs. 16,430,000/= as he was the last person to leave the cash office from where the said cash box was lying and that when he left the cash office, he locked the door and he did not record in the key book to show that he handed over the cash office key either to the MP's office or the Guard Commander's office whatever the case may be. His defence that he left the key in the key box was a mere afterthought. The Court Martial took time to consider his defence and disbelieved his attempts to show that the ones who stole the money are the OC, or his workmates namely MTM 1676 CPL Sophia, MT 77941 24 Pte Raphael Wailesi and Merry Kasambala who knew the existence of the money which was stolen from the cash office or the MP and the Guard Commander who were on duty on the date of the incident. The Court Martial correctly disbelieved his defence. For these reasons, we dismiss this appeal in its entirety. ~ R.A.Teemba JUDGE 2/9/2015 ~---- --------- 25 'I I - - - - - - ~ G.K. Mw~kipesile- - JUDGE 2/9/2015 of the Appellant and his Advocate and in the presence of Cap C.A. Zamungu legal officer. ~ JUDGE 2/9/2014 •