paul fredrick mzinga vs republic 2014 tzhc 2413 13 january 2014

IN THE HIGH COURT OF TANZANIA

AT MBEYA DC. CRIMINAL APPEAL NO. 69 OF 2011 (Originating from the decision ofMbeya District Court. Criminal Case No. 16/2010) PAUL FREDRICK M ZING A....................................... APPELLANT

VERSUS THE REPUBLIC.................................................... RESPONDENT

JUDGMENT Date of Last order: 16/12/2014 Date of Judgment: 13/01/2014 A. F. NGWALA, J. The Appellant and another, namely Daniel s/o Gervas Mpuya were charged before the District Court of Mbeya with three different offences in eight counts. The offences are;- conspiracy c/s 384 of the Penal Code Cap. 16 R. E. 2002, Stealing by Public Servant c/ss 258 and 270 of the Penal Code Cap. 16 R. E. 2002 and Forgery c/ss 333, 335 (a) and 337 of the Penal Code Cap.

16. R. E.

2002. The Appellant faced a total of five counts. He was a acquitted in the first count of conspiracy c/s 364 of the Penal Code Cap. 16 R. E. 2002 and convicted on the rest of the counts to wit, the second count of Stealing by Public Servant c/s 258 and 270, the 3rd, 5th and 7th counts of Forgery c/ss 333, 335 and 337 of the Penal Code Cap. 16 R. E.

2002. He was sentenced to five years imprisonment for the 2nd i count and four (4) years imprisonment for each of the 3rd, 5th and 7th counts of Forgery. Aggrieved by the conviction and sentence imposed against him, he now appeals to this court. The Appellant in his Amended Grounds of Appeal or Petition of Appeal preferred nine grounds, which are quoted in verbatim:- 1. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant on the basis o f the testimony o f PW1 (Issa Mwinyimvua), PW2 (Bryton Kalokola), PW3 (Balhina Mwaipopo) and PW6 (Janeth Deogratias) whose evidence did not prove the prosecution case beyond reasonable doubt as they were witnesses o f their own interest so as to escape liability to the same charges. The four witnesses were responsible fo r financial data entering cheque writing, signatories and endorsement o f the alleged forged cheques.

2. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant on count number two, whole the testimony o f PW4 (Ningule Mwansasu) and PW5 (Inspector Haruna) revealed that the money was paid to Israel Kifwila, Abdallah Mwanjala, Ashura Mwakitule, Boniface Mwakotifitwile and Josephat Mwakotifwile and not the Appellant.

3. That the learned trial Magistrate erred in law and fact to convict the Appellant on count number two while the prosecution had not tendered evidence during trial o f the case to prove whether any cheque had been made payable to the Appellant.

4. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant on count number three, five and seven on the basis “persons acquainted to his handwriting” whole exhibits P4, P6 and P9 (all credit slips) were not tendered and admitted in court on the same dates when the testimony o f PW1, PW2, PW3, and PW4 was heard and recorded.

5. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant on count number two without any proof by oral or documentary evidence o f the alleged conspiracy between the Appellant and the payees o f the cheque o f the alleged stolen sum o f money.

6. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant without testimony o f complainant o f the case, a key witness (withdrawn from the list o f prosecution witnesses), one Wilfred Mutashobya Kamuntu, the Head o f Sub- Treasury and authorizer o f all payments fo r Paymaster General o f the Government and the custodian o f the Bank account from which the alleged sum o f money to be stolen.

7. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant without evidence o f Auditing Report from the Controller and Auditor General (CAG) on the alleged stolen sum o f money o f the Government.

8. That the learned trial Magistrate erred point o f law and fact to convict the Appellant without evidence o f handwriting expert to prove the handwriting o f the Appellant on the alleged forged Bank credit slips.

9. That the learned trial Magistrate erred in point o f law and fact to convict the Appellant by relying his findings on scanned documents and non-existing Bank Account stated in the prosecution's charge sheet The charge sheet stated that money was from Account Number 16:43 while the prosecution witnesses and exhibits submitted that the alleged transaction was done on Account Number 16:143 When the matter came up for hearing, Mr. Komba the learned Counsel who represented the Appellant did not appear. After several adjournments the Appellant decided to proceed on his own. The Republic at different sessions of the hearing of this Appeal was represented by Mr. Namkambe Senior State Attorney, Ms. Juliana, Mr. Kihaka, Miss Mahundi and Miss Hellen, learned State Attorneys. In arguing his Appeal the Appellant prayed the Court to adopt his written Grounds of Appeal. He however on the first Ground of Appeal, referred this Court to the case of DPP Vrs. Elias Laurent Mkoba and Another [1990] (CAT) at page 115. In reply to the submission by the Appellant, Miss Hellen, learned State Attorney supported the Appeal. She agreed with the 1st Ground of Appeal that it was improper for the trial Magistrate to convict the Appellant basing on the evidence of PW1, PW2, PW3 and PW6 whose evidence in her opinion did not prove the charge beyond reasonable doubt. Miss Hellen did not oppose the grounds

numbered two and three filed by the Appellant. She contended that the people who were paid the money should have been arraigned before the court of law as per evidence on record. More so, she insisted that the money was not paid to the Appellant as per exhibit P12. Submitting in respect of Ground No. 4,5,6,7 and 8 of the quoted Petition of Appeal, the learned State Attorney stated that, the prosecution has no objection to the written Grounds of Appeal. She submitted further that the prosecution side was justified in not tendering the exhibits mentioned on Grounds No. 4 in order to maintain the chain of custody. In support of the 8th Ground of Appeal, Miss Hellen, referred this Court to the case of Dhiratlal Ramji Vr. Kheyani Vs. Republic EACA. EA law Reports at page 563 where it was held that although the expert evidence of handwriting proved the forgeries but the same did not relate to the Appellant, the only evidence connecting the payment with the document was wholly uncorroborated by untitled evidence. The learned State Attorney concluded her submission by saying that it was not proper for the trial Magistrate to convict the Appellant without any Audit Report to clarify that the Appellant was the one who stole the money and that he is the one who forged the said documents. In view of the aforesaid submissions it is obvious that the Grounds of Appeal are not contested by the

Republic. In my reflection of the proceedings in record and the said submissions, this court is obliged to ascertain itself on whether or not the charge against the Appellant were proved beyond reasonable doubt as required by the law. The Appellant was charged with five (5) counts. Three counts of forgery c/ss 333, 335 (a) and 337, one count of conspiracy c/s 384 and one count of stealing by servant c/ss 258 and 270, all of the Penal Code Cap. 16 R. E.

2002. He was acquitted in the conspiracy count and convicted on the rest. I shall now embark to resolve the counts regarding the charge of forgery. In arriving at a conviction, the trial Magistrate relied on the evidence adduced by PW1, PW2 and PW3 who said that they know the Appellant's handwriting and that when they saw the credit slips (Pay in Slips) number 00356603, 00356613 and 00356604; they identified the handwriting therein to be that of Appellant. The Appellant however denied to have laid his hand on those credit slips. The said vouchers were taken to the handwriting expert at Identification Bureau Police Head Quarters Dar es salaam. The report was never received in court as exhibit for the reason that PW10 the handwriting expert tendered a photocopy instead of the original without any justification. PW1, PW2, PW3 were also employees of the Government in the Treasury Department who were also responsible in making sure that the said stolen money is processed. The witnesses were responsible for entry of financial data, cheque writing, signing and endorsement of the alleged forged cheque. In the circumstances, they were accomplices, in the sense that they were in any way involved with another in the commission of the offences. It seems they had interest in the case, so that the culprit is identified or else they get out themselves. The trial magistrate ought to have

treated their evidence with caution. First, their evidence should have been corroborated by the handwriting expert (PW10) to prove that there was forgery. That was never done. Worse the said witnesses did not see the Appellant “forging” the document as it was conceded by PW1 himself. PW1 is quoted saying at page 16 of the typed Proceedings in the following words, “your duty is just to approve the PV” directing those words to the Appellant. The approved document must have been prepared before it was sent for approval. It follows therefore that the appellant was not the first person to come across the said credit slips. The question here is how could PW1, PW2 and PW3 be sure that it was the Appellant who forged?. In his judgment, the learned trial Magistrate cited the case of Josephu Mapema Vrs. R. [1986] TLR 148, which held that the author of handwriting can be identified even by the persons who are conversant with that handwriting. With due respect to the learned trial Magistrate, that case was misapplied in the circumstances of this case. The authority would have been relevant and properly applied if there were no other factors in between. Since the prosecution witnesses, PW1, PW2 and PW3 had also their own interest to serve, it was unsafe to act on their testimonies without corroboration, either from the handwriting expert or other witnesses. The evidence of PW1, PW2 and PW3

therefore could not have proved the offence beyond reasonable doubt. The case of Director of Public Prosecutions Vrs. Elias Laurent Mkoba and Another [1990] TLR at page 115 cited by the appellant in his submission comes into play; that PW1, PW2 and PW3, having their own interest to serve, could not therefore, be expected to have said anything other than that which would exculpate them from liability. In a persuasive case of Jagathsena and Others Vrs. G. D.D. Perera, Inspector Criminal Investigation Department and Mrs. Strimavo Bandaranaike, Court of Appeal, Ranasingha, J (P/CA) and Tambiali J. C. A. 365 - 370/80, M. C. Hatton, 18725 it was held:- “Although the findings o f a magistrate on questions o f fact are entitled to great weight, yet it is the duty o f the appellate court to test, both intrinsically and extrinsically, the evidence led at the trial. I f after a close and careful examination o f such evidence, the appellate court entertains a strong doubt as to the guilt o f the accused, the appellate court must give the accused the benefit o f such doubt”. (Emphasis supplied). In the case at hand the prosecution evidence entertained a lot of doubt in proving the charge of forgeiy. The testimony of PW6 which was heavily relied upon by the trial Court in convicting the Appellant also entertains a lot of doubts. PW6 Janet Deogratias told the court that while at Mbeya Sub -

Treasury she met the appellant who requested him to help his relative who would go to his office known by the name of Israel Abel Kitwika for “Mirathf Matter. Being an accountant and without warning herself of the danger to deal with serious issues, decided to prepare a Payment Voucher (PV) worth 12,000,000/= through a “memo”. This is gross negligence and unprofessional to say the least. As if that was not enough, when it transpired that the payment was made to a wrong person, the record do not show that there were any efforts made to arrest the payee. In fact all the payees were left free. This casts another doubt to the prosecution case. In R. Vrs. Kundasari [1970] HCD 273, the High Court held:- “As to the necessary ingredients o f forgery, that is the making o f a false document and the intention to defraud or deceive, the trial Magistrate did not make such findings o f fact as is necessary”. What is stated in the above case is exactly what transpired in this case. The trial Magistrate did not make enough efforts to ensure that he analysed the evidence to satisfy himself that both of the “actus reus” and “mens rea” for forgery are established against the accused person instead he went on acting on uncorroborated evidence of PW1, PW2 and PW3 which left a lot of loopholes.lt is a trite law, that in Criminal Cases the standard of proof is beyond reasonable doubt. In the case of

Said Hemed Vrs. R [1987] TLR 117. Like in the case at hand forgery was not proved beyond reasonable doubt. On the second count of stealing by Public Servant, it was the trial courts reasoning that the thief was none but the Appellant because he was the person who was behind the forgery. At page 44 to 45 of the trial court’s judgment it reads in the last paragraph:- “..... However, the person who was behind this has been proved to be Paul Mzinga (1st accused). He is the one who had misled PW6 and caused that loss o f money. Though he used somebody else to steal those money ie. Israel Abel Kitwila who was a wrong person indentified to PW6 by that accused person he is also regarded as a thief..... * The learned trial Magistrate thereafter went on listing the other payees of the alleged money purported to have been stolen by the Appellant. It is surprising to see that, though these payees are known, they were never arrested so that the charges could have been preferred against them. The basis of the trial magistrate in convicting the Appellant on this count was the fact that he had already convicted him for forgery. The alleged 47,552,587.80/= which is said to have been stolen was never confirmed by the Controller and Auditor General (CAG) as correctly advanced by Miss Hellen. This is another lacuna in the prosecution case. Where as, the money alleged to have been stolen had been

proved to have been credited into the accounts other than the proper payees, there was no professional audit conducted to ascertain this irregularity. Though the trial Magistrate stated in his judgment that the defect in the account number from the allegedly stolen money being presented as 16:43 instead of 16:143 is a human error. However there is no enough evidence to prove that the credit slip (00356603) for the money worth Tshs.47,527,587.80 was forged by the Appellant. On that account, failure to arraign those people who were paid the money from this credit slip and failure by the handwriting expert to produce a report which could prove that credit slip with number 00356603 was forged creates a doubt that should have benefited the Appellant. In the case of Christian Mbunda Vrs. R. [1983] TLR 340 it was held that and I quote “It is an elementary rule o f law that in order to convict an accused o f theft, the prosecution must prove the existence o f actus reus which is specifically termed as asportation and mens rea or animus furandi”. The prosecution side in this case should have established the actus reus and mens rea for this offence. They should have proved the accounts from which the alleged stolen money came from, they should have audited them and arraigned the wrong beneficiaries (payees). For the said reasons it can neither be held confidently that the Appellant forged the pay in slips nor stole the money through the known persons who were paid the said amount. For the foregoing, this Appeal is allowed, the conviction is quashed and the sentence imposed is set aside. As the Appellant has already finished serving his sentence, there is no order as to his immediate release from prison. In the end this Appeal should be marked allowed. A.F. NGWALA

JUDGE 14/1/2015 li Date: 14/01/2015 Coram: Hon. A.F. Ngwala, J. Appellant - Present For the Republic - Mr. Kihaka State Attorney c/c Gibson Court: Judgment delivered incourt in the presence of the Appellant. Court: Right of Appeal to theCourt of Appeal of Tanzania explained. A.F. NGWALA

JUDGE 14/1/2015