CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO J.A.. KENTE J.A and MGONYA. J.A.^1 CRIMINAL APPEAL NO. 616 OF 2021 PASTORY STEPHANO M SEM A.................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mbeya) fUtamwa, J.^ dated the 10th day of November 2021 in Criminal Appeal No. 102 of 2020 JUDGMENT OF THE COURT 19th & 27th February, 2025 KENTE, 3.A.: The appellant together with two other accused persons namely, Omary Hamis Mungi and Clemens Roman Kasongo, who are not parties to this appeal, appeared before the District Court of Kyela where they were charged as follows: In the first count, the appellant who was the first accused was charged with the offence of Forgery contrary to sections 335(a) and 337 of the Penal Code, Chapter 16, of the Revised Laws. In the second count, the appellant was charged with the offence of using documents with the intention of misleading his Principal contrary to section 22 of the Prevention and Combating of Corruption Act, No. 11 of 2007 (herein after the PCCA). In the third count, the appellant was charged with the offence of embezzlement and misappropriation contrary to section 28(1) of the PCCA. Finally, in the fourth count, the second and third accused persons were jointly charged with the offence of Abuse of position contrary to section 31 of the PCCA. The particulars of offence in support of the first count alleged that, between 21st and 30th October 2015 in the office of the Kyela District Council within the District of Kyela in Mbeya Region, with intent to deceive, the appellant made false documents namely, a paylist titled 'ZOEZI LA UCHAGUZI 2015, UKODISHAJI MAGARI' purporting to show that each of the persons listed therein was paid a sum of TZS. 900.000/= a fact which was false. With regard to the second count, it was particularised that, on diverse dates between 1st and 31st October 2015 in the office of Kyela District Council within Kyela District in Mbeya Region, being an employee of the said District Council, with intent to deceive his Principal, the appellant knowingly used the abovementioned exhibit purporting to show that each person mentioned therein was paid the sum of T7S. 900,000/=, and that each person signed against their name to acknowledge receipt. As to the third count, it was alleged that on diverse dates and at the place abovementioned, the appellant fraudulently misappropriated T7S. 30,300,000/= which was entrusted to him as a public officer. Lastly, in the fourth count, it was alleged that the second and third accused persons who, as stated earlier are not parties to this appeal, while performing their duties as Development Officer and Executive Director of Kyela District Council respectively, they intentionally abused their positions in that, they procured transportation services by hiring motor vehicles without involving the Procurement Management Unit, in violation of Section 38 of Public Procurement Act, No. 9 of 2011, for purposes of obtaining for themselves an undue advantage. The appellant and his co-accused pleaded not guilty to all the charges denying the allegations against them upon which the matter proceeded to trial. Briefly, the prosecution case was to the effect that; during the 2015 General Elections, the National Election Commission (the NEC) disbursed funds to the Kyela District Council to cater for election expenses. Accordingly, various amounts of money were deposited in the District Council's miscellaneous bank account that was under the operation and supervision of the third accused person. According to the prosecution evidence, the appellant withdrew a total of TZS. 59,400,000.00 which was intended to be used as costs for transportation of ballot boxes to and from the polling stations. However, it was alleged that, the appellant only spent a small sum of it and misappropriated the remaining amount of TZS. 30,300,000/=. He had allegedly forged documents and signatures showing that he had paid different owners of motor vehicles the information which was not true. On their part, the appellant and his co-accused denied the allegations. To be specific, the appellant essentially defended himself saying that he was neither employed by the NEC nor in any way related to any funds deposited in the Council's account by NEC for election purposes. He further asserted that, he had no access to the election funds, as that his duty was merely to withdraw the money as authorized by the persons appointed by the NEC, upon a cheque being issued by them. He thus withdrew the amount of money at issue and handed it to the Council's Treasurer who was also Assistant Returning Officer for the 2015 General Elections in Kyela District. He disputed the allegations that he had personally hired motor vehicles for election related activities and effected payments for the hire. After a full trial, all the accused persons were found not guilty and accordingly acquitted. Dissatisfied, the respondent Republic appealed to the High Court to challenge the decision of the trial court. The High Court of Tanzania (Utamwa J, - R.I.P) sitting at Mbeya, after hearing the parties, partly allowed the appeal. Consequently, the appellant was found guilty of the three counts as charged. He was sentenced in respect of the first count to three years' imprisonment. As regards the second count, he was sentenced to pay a fine of two million shillings or in default, to two years' imprisonment. As for the third count, he was sentenced to pay a fine of three million shillings or in default to four years' imprisonment. Dissatisfied with the decision of the High Court, the appellant has preferred the present appeal. When the matter was placed before us for hearing, Mr. Hassan Gyunda and Ms. Jalia Hussein, learned Advocates appeared to represent the appellant. On the other hand, Ms. Caroline Matemu, learned Senior State Attorney represented the respondent, the Republic. At the outset, Mr. Gyunda successfully prayed for the leave of the Court to abandon the original memorandum of appeal filed in Court on 25th July 2022. Moreover, he prayed to argue only one ground in the Supplementary Memorandum of appeal in which the appellant is complaining that; "The High Court erred both in law and fact to convict and sentence him relying on the exhibits which were tendered and admitted in evidence contrary to the law as the said exhibits were not read out after being admitted." In arguing this sole ground of appeal, which he considered albeit belatedly to be dispositive of this dispute, Mr. Gyunda submitted very briefly that, in convicting the appellant, the learned High Court Judge relied on the documentary exhibits, but the said exhibits were not read out after they were admitted in evidence. He pointed out that, it is only one document (Exhibit K) that was read out after being admitted, which document however, was intended to implicate the then third accused person. The learned counsel stressed that, the omission to read out the exhibits denied the appellant the right to know the material contents of the said exhibits and prepare his defence. Counsel therefore urged us, in line with our decision in the case Issa Said Issa vs. Republic, Criminal Appeal No. 435 of 2020 to discard the wrongly admitted documentary exhibits. There being no any other evidence to implicate the appellant, he prayed the appeal to be allowed, the conviction quashed and the sentences imposed on the appellant to be set aside. On her part, Ms. Matemu had no qualms about Mr. Gyunda's focused submissions. The learned Senior State Attorney entirely subscribed to the appellant's counsel's argument saying that indeed, the offences against the appellant were based on the documents which were received in evidence without being read out to apprise the appellant of their material contents. She concurred with Mr. Gyunda regarding his prayer that the said documents should be expunged from the record. With regard to the way forward, likewise, Ms. Matemu submitted that, in the absence of the said documentary evidence, there was nothing to connect the appellant with the charged offences. In the like manner, Ms. Matemu implored us to allow the appeal, quash the appellant's conviction and set aside the sentences meted out on him. Having gone through the record, we agree with both Mr. Gyunda and Ms. Matemu that indeed the exhibits relied upon by the first appellate court to convict the appellant were not read out after they were admitted in evidence during the trial. It cannot be gainsaid that, as the law stands today, the requirement to read out a document after being admitted in evidence is mandatory and failure to do so renders the exhibit liable to being discarded. As rightly stated by Mr. Gyunda, the essence of reading the respective documentary exhibit is to enable the accused person to understand what is contained therein in relation to the charge against him so as to put him or her in a position of making an informed and rational defence. Thus, in the instant case, the omission to read out the documentary exhibits was a fatal irregularity as it denied the appellant an opportunity of knowing and understanding the contents of the said exhibits. In the case of Shabani Hussein @ Makora & Another vs Republic (Criminal Appeal 287 of 2019) [2020] TZCA 1897 (16 December 2020), the Court underscored the importance of reading out the contents of a documentary exhibit immediately after being admitted in evidence, in the following terms: - "It is settled law that, whenever it is intended to introduce any document in evidence, it should be admitted before it can be read out Failure to read out documentary exhibits is fatal as it denies an accused person the opportunity o f knowing or understanding the contents o f the exhibit because each party to a trial be it criminal or civil, must in principle have the opportunity to have knowledge o f and comment on all evidence adduced or observations filed or made with a view to influencing the court's decision. " According to case-law, if not read out, an exhibit ceases to have any evidential value and is liable to be expunged from the record. There are a plethora of case laws on the above position of the law including the cases of Sebastian Michael v. The DPP Criminal Appeal No. 145 of 2018 (unreported) and Issa Said Issa vs. Republic (supra) to mention but a few. That said, we entirety agree with the two counsel that indeed, after being admitted in evidence, the documentary exbibits were improperly dealt with in violation of the applicable practice. We therefore discard and expunge them from the record. Moving forward, the question to be answered here is whether or not there is any other evidence to support the charges against the appellant. As stated earlier, we are mindful of the fact that, the learned High Court Judge found the charges in the 1st, 2nd and 3rd counts to have been proved beyond reasonable doubt against the appellant based on the exhibits tendered. This is specifically reflected at page 332 of the record of appeal where the learned High Court judge reasoned that; "In my settled opinion, unlike that o f the trial court, there was ample proof by the prosecution that, the pay-list was a false document This follows the fact that, it contained false signatures to purport that some payees had signed it acknowledging that they had received money TZS. 900,000/= each. This fact was denied by such purported payees i.e. the eight prosecution witnesses listed earlier. The learned High Court Judge went on stating at page 354 of the record of appeal that; "...I also found, for the reasons assigned therein that, there was no squabble between the parties that the first respondent in fact withdrew the money at issue from the bank. I also hold that■ though he claimed to have handed over the money to the Assistant Returning Officer, there was no evidence that he in fact, did so. Now, owing to the above reasons, and considering the definitions o f the term " fraud", "misappropriation " and " dishonest7/ offered earlier, I find that, the scenario just highlighted above effectively demonstrated that, the first respondent actually, fraudulently misappropriated the money at issue." It is needless to say that, all the above taken together, the only inference to be drawn is that, since the Judge's reasoning and finding were solely based on the evidence contained in the documents which were not read out after being admitted in evidence, in the absence of the said documents, the charge against the appellant could not be said to have been proved beyond reasonable doubt as required by law. For, once that particular documentary evidence is excluded as it has been the case, there is no evidence that proved beyond reasonable doubt that the appellant committed the offences of which he was convicted. It follows therefore that the learned High Court Judges should not have relied on the documentary exhibits which were not read out to apprise the appellant of their contents after they were admitted in evidence. For that reason, we allow the appeal, quash the conviction and set aside the sentences imposed on the appellant. Needless to say, the appellant is entitled to the refund of the money which he may have paid as a fine, if any. DATED at MBEYA this 26th day of February 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of Mr. Hassan Gundya and Mr. Freus Kakulima holding brief for Ms. Jalia Hussein, learned advocates both for the appellant and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic, through virtual court, is hereby certified as a true copy of the original.