Mwita Ryoba Chunchurya Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LEVIRA. J.A. MASOUP, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 291 OF 2022 MWITA RYOBA CHUNCHURYA........................................... APPELLANT VERSUS THE REPUBLIC................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 29th day of April, 2022 in Criminal Appeal No. 124 of 2021 JUDGMENT OF THE COURT 21st & 26th March, 2025 LEVIRA. J.A.: The appellant, Mwita Ryoba Chunchurya was aggrieved by the decision of the High Court of Tanzania at Musoma which reversed the decision of the District Court of Tarime District at Tarime (the trial court). In that decision, the trial court found that the prosecution had failed to prove beyond reasonable doubt the offence of stealing by servant contrary to sections 258 (1) and 271 of the Penal Code, Cap 16 (the Penal Code), with which the appellant was charged. It was alleged in the particulars of offence that, on diverse dates between 1st October and 17th November, 2019, at Kewanja village within Tarime District in Mara Region, being a person employed by one Julius Marco Wambura at Nyamongo Filling Station, the appellant stole money cash TZS. 25,873,407.00 which came into his possession on the account of his employer. He denied the charge. As a result, a full trial was conducted. Having weighed the evidence adduced by prosecution, which was led by four witnesses and four exhibits against that of the appellant, a sole witness with no exhibit, the learned trial magistrate found that the prosecution had failed to prove their case against the appellant beyond reasonable doubt. Therefore, he acquitted the appellant forthwith. In order to appreciate what had transpired behind this appeal, at page 11 of the record of appeal, Julius Marco (PW1), the owner and Director of Nyamongo Filling Station, who also claimed to be the employer of the appellant discovered loss in his business. According to him, the said loss was occasioned by the appellant whom he had employed as an accountant and a manager. Among his (appellant's) duties were: to supervise all activities run in the filling station; to sale and deposit all the money from fuel sold and to receive fuel and note how many liters he received. Between 1st October and 17th November, 2019, PW1 requested bank slips and sales book from the appellant in vain. Upon pressing on him, on 17th November, 2019, the appellant supplied PW1 with the requested documents. PW1 assessed them and he discovered that the sales of fuel and bank slips did not tally. He wanted to inquire from the appellant for explanations, but he had disappeared. According to PW1, he made a call to the appellant but he was not reachable. Later, the appellant wrote him a message admitting that there were sales cash which were not in the Sale Book. PW1 engaged one Revocatus Keraryo @ Koroso (PW2) to make auditing of his business affairs from 1st October to 17th November, 2019, who as a result, discovered a loss of TZS. 25,873,403.00. The findings of PW2 prompted PW1 to report to the police and eventually, the appellant was arraigned before the trial court. The evidence of PW2 corroborated that of PW1. He explained how he conducted auditing which led him to arrive at the figure claimed by PW1. He, as well, tendered the auditing report which was admitted as exhibit P4 at the trial. Ernest Makare (PW3) was another accountant who was requested by PW1 to cross check whether there was any loss in his business from September to October, 2019. He discovered a deficit of TZS. 10,503,062.00 and communicated the same to PW1. The appellant was taken to court on 19th November, 2019 by H 3365 Dc Aludike (PW4). While the case was still pending in court, PW1, the appellant and other people had a meeting which was conducted on 27th April, 2020 for the purposes of making a reconciliation between PW1 and the appellant. The minutes of the said meeting were tendered by PW1 during trial and admitted as exhibit P3. Other exhibits tendered by PW1 during trial were, NMB Bank slips which were admitted as exhibit PI collectively and the sales book as exhibit P2. In his defence, the appellant denied to have been employed by PW1 under the capacity stated. According to him, he was just doing exercise/ practice from 1st September 2019 as was directed by PW1. He added that, on 10th September, 2019, the daughter of PW1 called Paulina Julius Marco came and taught him how to calculate and they both sent money to the bank. The appellant threw the whole blame to the said Paulina Julius Marco as the person who was responsible for the alleged loss. As we intimated earlier, at the end of the trial, the appellant was acquitted by the trial court. Aggrieved, the respondent Republic appealed successfully against the decision of the trial court via Criminal Appeal No. 124 of 2021, subject of the present appeal. The memorandum of appeal placed before us comprises three grounds as follows: 1. That the first appellate court erred in law to rely on exhibit P4 Audit Report which was not complied with the law and was not authentic. 2. That the first appellate court erred in law to grant the order for payment of stolen money contrary to the principle of criminaljustice as if the court sat as a civil court at the same time as criminal court. 3. That the first appellate court erred in law and fact to convict and sentence the appellant while the respondent did not prove its case beyond reasonable doubt. At the hearing of the appeal, the appellant was represented by Mr. Innocent John Kisigiro, learned advocate, whereas the respondent Republic had the services of Mr. Isihaka Ibrahim Mohamed and Ms. Agma Agrey Haule, both learned State Attorneys. It is not insignificant to note, at the outset, that the appeal is not contested. Mr. Kisigiro argued in respect of the first ground of appeal to the effect that, the High Court erred to convict the appellant by relying on exhibit P4 the audit report. According to him, the appellant was charged with stealing money, but it is not known who was the complainant; whether Nyamongo Company or Julius Marko (PW1). He added that, PW1 stated in his evidence that he had employed the appellant as a manager but did not produce any document/contract to prove so. Another thing which Mr. Kisigirio argued that was not proved, was the complaint by PW1 that, the appellant caused him a loss of TZS. 25,873,403.00. He referred us to page 14 of the record of appeal where PW1 claimed that, he requested the appellant to give him bank slips and sales book and upon cross checking, they did not tally. He demanded explanation from the appellant in vain. As a result, PW1, found his accountant one Revocatus Keraryo @ Koroso (PW2) who audited the books from 1st October, 2019 to 17th November, 2019 and discovered the claimed loss. Thereafter, PW2 prepared the audit report which was admitted as exhibit P4. Mr. Kisigiro argued that, having examined exhibit P4, he found that it was not a financial audit report worthy the name due to the reasons that, it does not have a title, auditor's qualifications and a stamp. Besides, he said, the signature appearing on the said exhibit is not known who appended it. As such, he said, the purported audit report (exhibit P4) could not be relied upon by the court to give its decision that, indeed the loss claimed existed. To buttress his argument, he cited the case of Azimio Machibya Matonge v. Republic (Criminal Appeal No. 35 of 2016) [1918] TZCA 700 (12 February 2018). The counsel for the appellant urged us to expunge exhibit P4 from the record, as he insisted that the bank statement was not tendered to cross check the amount claimed. Submitting in respect of the second ground of appeal, Mr. Kisigiro faulted the order by the High Court which required the appellant to settle the loss by paying the charged amount within six months or failure of which, to be liable for a custodial sentence of two years. According to the learned counsel, the punishment given by the High Court was not proper because, in terms of section 271 of the Penal Code, punishment for stealing is 10 years imprisonment. He argued further that, even section 265 of the Penal Code does not provide for compensation. He wondered as to where the Judge got such sentence and how the court could order the appellant to pay the amount of money which was not proved. Besides, he said, it was not known who was to be compensated, whether Nyamongo Filling Station, the Company or PW1 himself. In the circumstances, Mr. Kisigirio urged us to set aside the appellant's sentence because it was not imposed in accordance with the law. Regarding the third ground of appeal, Mr. Kisigiro submitted that, the case against the appellant was not proved beyond reasonable doubt. The reasons being that, PW1 claimed that, when he discovered loss, he went to report to Nyamwaga Police Station with all his documents relating to his business and left them there. To the contrary, at page 21 of the record of appeal, PW4 testified that, on 23rd November, 2019 he was assigned by SP. Epimark to deal with PWl's case. On 25th November, 2019 he went to Nyamongo Filling Station and took witnesses statements and exhibits. Among the exhibits there were handling fuel book, deposit slips and delivery note. The learned counsel questioned the chain of handling those exhibits, if PW4 was the one who took them. According to him, it was not stated chronologically how the exhibits traded from the appellant up to the time of tendering them before the court. Therefore, it was his firm argument that, those exhibits could not be relied upon by the court to ground the appellant's conviction. In support of his argument, he cited the case of Simon Edson @ Makundi v Republic (Criminal Appeal No. 5 of 2017) [2020] TZCA 1730 (18 August 2020). Mr. Kisigiro urged us to expunge exhibits PI, P2 and P3 as well. He took us through exhibit PI, specifically to NMB bank slips of 5th October, 2019, where TZS 4,163,000.00 were deposited by one Paulina Julius; on 12th November, 2019 she deposited TZS. 5,992,000.00; and on 4th October, 2019, she deposited TZS. 4,204,000.00. Therefore, he argued that, it is not true as claimed by PW1 that the appellant was the only one managing his finances. He argued further that, if any loss occurred as claimed by PW1 and shown in exhibit P4, the appellant was not to be blamed. He pointed out that, in those dates in which the said Paulina Julius deposited money, there were deficits according to exhibit P4, but for unknown reasons, they were included to make a total of the amount of the loss the appellant was charged with. He wondered why Paulina Julius was not taken to court. According to him, the prosecution failed to prove the charge against the appellant because even the exhibits they brought to establish the amount claimed, could not establish the alleged loss. In respect of exhibit P3 minutes / agreement between the appellant and PW1 which was relied upon by the learned Judge to convict the appellant, Mr. Kisigiro argued that, the same could not be relied upon to ground the conviction because it was a meeting of many people which was held while the case had already been instituted and the same was brought to the court as exhibit. For clarity, the appellant was arraigned on 29th January, 2020 while the meeting was held on 27th April, 2020. Besides, he said, the purported agreement "makubaliano" does not fit under section 10 of the Law of Contract Act, Cap 345. The learned counsel added that, the appellant stated in his defence that, he was forced to sign the said agreement. According to him, even if it could be taken that, the said agreement was an admission as considered by the learned Judge, then, it was incumbent upon the prosecution to withdraw the charge and execute that agreement. He insisted that, exhibit P3 deserves to be expunged from the record as the purported agreement was procured under coercion, since the appellant did not consent. In support of his argument, he cited the case of Amos Njile Lili v. Nyanza Cooperative Union (1994) Ltd & Others (Civil Appeal No. 126 of 2020) [2024] TZCA 13 (31 January 2024). Finally, Mr. Kisigiro submitted that the prosecution failed to prove the case against the appellant beyond reasonable doubt and he urged us to find so. In reply, although initially Mr. Mohamed registered his stance against the appeal, he changed his mind in the midway while making his submission and concurred in full with the submission by the counsel for the appellant. He thus supported the appeal without reservations. In addition, he said, having admitted exhibit P3 which changed the amount claimed by PW1, it was obligatory for the prosecution to substitute the charge so as to reflect the amount of TZS. 15,000,000.00 agreed there in, but that was not the case. He urged us to allow the appeal. Following the position taken by Mr. Mohamed, there was no further clarifications made by Mr. Kisigiro in rejoinder. He reiterated his submission in chief and urged us to allow the appeal. We commend the counsel for the parties for the brilliant submissions in respect of this case. Having heard the parties and reviewing the entire record of appeal, the determination of this appeal hinges on the crucial aspect of proof. In this sense, the question is whether the prosecution proved the case against the appellant beyond reasonable doubt. As correctly submitted by Mr. Kisigiro, PW1 at page 13 of the record of appeal introduced himself as the owner of Nyamongo Filling station, a director of that company and employer of the appellant. However, the record does not show clearly under which capacity did he lodge his complaint against the appellant. The particulars of the offence as per the charge sheet reads: "Mwita Ryoba Chunchurya on diverse dates between 1st October and I7 h November, 2019, at Kewanja village within Tarime District in Mara Region, being a person employed by one Julius Marco Wambura as Manager at Nyamongo Filling Station stole money cash TZS. 25,873,407.00 which came into his possession on the account o f his employer." On the face of it, the particulars suggest that he complained as the employer. However, in his defence, the appellant denied to have been employed by PW1. According to him, he was just doing exercises / practice at the PWl's petrol station. We have perused the record of appeal but we could not find further evidence proving that, indeed, the appellant was employed as a manager with responsibilities of supervising all the activities run in the filling station, that he was also an accountant of the filling station and other responsibilities stated at page 14 of the record of appeal. In the circumstances, we agree that proof of the appellant's employment was necessary to justify PWl's claim, which is not the case herein. In establishing the loss which PW1 alleged that it was occasioned by the appellant, the prosecution relied on the evidence of PW2 who audited Nyamongo Filling Station accounts. According to him, the loss occasioned was TZS. 25,873,403.00 and he tendered auditing report which was admitted as exhibit P4. We had an opportunity of perusing the record of appeal and located exhibit P4 at page 37 of the record of appeal. Unexpectedly, just like what the counsel for the appellant said, the purported report does not have qualities worthy a name and the authenticity of the same is questionable. We say so because the said document does not bear any title, the author is not disclosed in the document, it has no stamp of the author but it has the stamp of Nyamongo Filling Station and the signature of unknown person. We agree with the counsel for the appellant that, this document could not be relied upon by the High Court to ground the appellant's conviction. We are increasingly of this view because the amount claimed included deposits made by one Paulina Julius on the dates indicated in exhibit PI collectively and the said report as per our assessment of the record of appeal. Apart from that, as rightly submitted by the counsel for the appellant, the bank statement was not tendered for comparison purposes. In the circumstances, we hereby proceed to expunged exhibit P4 from the record. Having expunged it, it follows therefore that, the amount claimed in the charge was not established. Turning to exhibit P3 - "MUHUTASARI WA KIKAO CHA USULUHISHIKATI YA JULIUS MARKO NA MWITA RYOBA CHA TAREHE 27/4/2020, ENEO LA SHEU."\Ne have read this exhibit which was tendered by PW1 with a view of showing that the appellant admitted the loss. We wish to state at the outset that, at any rate, the same cannot be equated to an admission by the appellant. Just as argued by Mr. Kisigiro, the said document involved other people who are not parties to this case, the negotiations were entered while the case was pending before the trial court, and the amount agreed upon was TZS. 15,000,000.00, allegedly, reduced from the initial amount claimed. Besides, the said document does not establish the alleged initial amount. We agree with Mr. Kisigiro that, upon new development where parties entered agreement on the new amount to be paid and the new mode of enforcing payment, the prosecution ought to have withdrawn the charge against the appellant; in order to allow execution of the terms of the purported agreement. To appreciate what had been agreed, we take liberty to reproduce the relevant parts of exhibit P3 hereunder: "3. Makubaliano ya kiasi cha kulipa, katika mazungumzo haya kwa pande mbili ni Tsh. 15,000,000/= kiasi hiki kimepungua kutoka Tsh. 25,873,407na pande mbilizote zimekubaiiana. 4. Utaratibu wa maiipo, Mwita (miaiamikiwa) ameomba apewe siku mbili (29/4/2020) Hi ajue namna ya kulipa." With respect, even if one has to consider that there was payment agreement entered between the parties, the excerpts above speak loud and clear that the appellant did not agree in any kind of payment as per paragraph 4. He only requested to be given two days to figure out how he would pay the amount mentioned in the minutes, which its source was not established. In any case, exhibit P3 could not be relied upon to ground the appellant's conviction as the same did not portray the 14 alleged admission by the appellant. If we may add, that exhibit was not supposed to be admitted in the first place as it was procured while the case was pending and it came out with a new amount to be paid which was different from the amount stated in the charge. Therefore, if it was brought for the purpose of proving admission as alleged by the learned State Attorney, what then was the admitted amount? Certainly! It was not an admission of the claimed amount as per the charge. Consequently, we expunge exhibit P3 from the record. We note at page 75 of the record of appeal that the first appellate Judge made his decision on the strength of, among others, the evidence of PW1, PW2, exhibits P3 and P4 as he stated: "In my considered view, and upon evaluation of the said prosecution's evidence and the defence evidence that the respondent (appellant herein) did not steal but shifts burden to Paulina, I am satisfied that on the strength of testimony of PW1, PW2 and PW3 together with exhibit PI, P2, P3 and P4 the prosecution case has been proved beyond reasonable doubt and that the respondent is responsible of stealing the said money as charged." Again, with due respect, we are not convinced at all, that the learned Judge evaluated the evidence thoroughly. Had it been that he did so, as per his observation above, he could have realised the shortfalls of the prosecution evidence and certainly concur with the findings of the trial court. For the foregoing reasons, we find and hold that the case against the appellant was not proved beyond reasonable doubt. As a result, we allow the appeal, quash conviction and set aside the sentence imposed on the appellant together with the payment order. DATED at MUSOMA this 25th day of March, 2025. M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2025 in the presence of Mr. Victor Kisaka, learned counsel holding brief for Mr. Innocent John Kisigiro, learned counsel for the Appellant and Mr. Jonas Samwel Kivuyo, learned State Attorney for the respondent/Republic is here by certified as a true copy of the ordinal. L E. G. MRANGl" R DEPUTY REGISTRAR COURT OF APPEAL