rehema stephano vs republic 2021 tzhc 6920 8 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 33 OF 2021 (Original Criminal Case No. 316/2020 of the Kibondo District Court, before Hon. S.G. Mcharo - RM)

REHEMASTEPHANO APPELLANT

VERSUS O \ /■

REPUBLIC RESPONDENT judgement; 12/8/2021 & 8/11/2021 L.M- MLACHA, J, At the District Court of'Kibondofe Criminal Case No. 316 of 2020, the appellarit/'Rehema Sfephano was charged of stealing by Servant \\ y x\ contrary to section^271 oCthe Penal Code, Cap 16 R.E.

2019. It was H x\\ xX. allegedXhat usirigXher'position as an employee of BARAKI COMPANY LIMITED she^stoVTshs. 17,530,445 between the months of July to October 2020, the property of her employer MSETI NSABI. She was found guilty, convicted and sentenced to 18 months in jail. The magistrate declined to make an order for compensation saying that "the total amount of loss was not asked or the assessment was not done by a registered i person/account". Aggrieved by the conviction and sentence, the appellant lodged an appeal to this court. The grounds upon which the appeal was lodged can be put as under; 1. That, in the light of evidence adduced by the Respondent/Repubiic, the learned trial court Resident Magistrate erred in law and in fact in finding that the offence of stealing by servant had been proved against the Appellant beyond reasonabie^doubts\x 2. That, having expunged exhibit P6 being'b^^iernal auditor^report and testimony of PW5 (Sebgiyu'mba^StevenKachenko), the trial W \ ( court grossly erred in taw and in fact ^subsequently finding that the remaining testimony was.enough to groundaconviction against \\ \\ the Appellant on fie'offence ofstealing by servant with which he was charged. s <x 3. That, having adfnittedthe Appellant's employment contract (exhibit /—\\ J P3) showing that she^was-aTmere customer service personnel who was„ ndt respbnsibie with. the activities which were performed by ( sbmeotherempioyee(s), then the trial court erred in law and fact \ \'\ \in hoiding''that theAppellant was responsible for the alleged theft. v'X $\ 4. That, thejearned trial court erred in law and in fact in the process of admitting exhibits including P4 and P5 which were relied upon to convict the Appellant.

5. That, the learned trial court magistrate erred in law and in fact in failing to put weight to the Appellant's defense which cast reasonable doubts in the Respondent's case entitling her to be given the benefits of doubts. 2 6. That, the learned trial court magistrate erred in law and in fact in basing the Appellant's conviction on the unsworn testimonies of PW1 (Nyantora Mwita) and PW2 (Mseti Chacha).

7. That, the trial court's judgment offends the mandatory provisions of law that it bears conviction without sentence. The appellant had the services of Mr. Ignatius Kagashe while the respondent Republic was represented by Mrs. Happiness Mayunga State Attorney. Hearing was done by oral submissions^ut befdre examining the submissions, a brief background may be'liseful The appellant and six others 'were .'emplo,yed by Mr. Mseti Chaha ._ ' v\ X Nsabi to work in his compahy-knowri'as BARAKI COMPANY LIMITED. The / w X\ i .I W company dealt with Joan services/It also'acted as an agent for NMB, CRDB ''w. Bank and the postal Bank (TRB).crediting and debiting people s accounts /—’Vs. on behalf of the. Bankson commission basis. The appellant was serving bank/customers. Sometimes>on 3/11/2020, PW2 Mseti Chacha Nsabi u ■ received^ call from^PWf’Nyantora Mwita who was his manager informing him that there; wasza loss of Tshs. 830,000/=. Some discussions went on between them which also involved the appellant. He in later went to the banks and picked statements. He engaged PW5 Sengiyumba Steven Kachenko to audit the operation of the company. Using the statements and the company books, PW5 who is a secondary school teacher, teaching accounts and commerce, established the loss which is the subject matter 3 of the charge sheet. The appellant was held to be responsible and sent to the police

station hence the charges. Through PW1, the court received a book referred to as 'the daily book register', exhibit Pl and the 'NMB wakata book' exhibit P2. They were alleged to be used by the appellant. PW2 tendered her contract of employment, exhibit P3. PW3 Alphonce Nganyiwa tendered the NMB bank statement (exhibit P4) while PW4 Justine Reuben.tepdered the TPB Bank statement. They were tendered in relatfomto thVoffence'of, stealing by x X, • X\ \Z </-"•X■’x. \\ offence of stealing duringcfbss examination. The~appellant is linked to the offence through the\eyidenee,of PW.l\who was her manager, PW2 \\ \\ \\ who was her boss,^(the director), the books, the bank statements and the lS xX \\ X> rthe appeljant 4n\her defence accepted to have worked with the company-in the employment of customer service. She said that her work was to fill forms'fo'r deposit and withdraw for customers. He denied to be responsible with financial activities which were the work of Meshack Allexander and David Mtete. She agreed that all of them did the job under the supervision of PW1. She denied to work or stay with the book adding that some other books were not brought. She said that all the books 4 stayed with Mr. Laurent not her. She went on to say that David and Juma were the ones who took the money to the bank while withdrawal was done by the director (PW2) and the manager (PW1). She said that

she had a conflict with PW1 who demanded some sexual relations which she declined to accept. Problems developed leading to the case. She denied to commit the crime. The trial magistrate did not believe her and as shown above, she was found guilt and convicted. Mr. Kagashe dropped grounds X^and '7\ddfing^s,ubmlssions. . X\ \: / prove the case beyond reasonable'doubtsM-le saidlhat the evidence of PW3, PW4 and PW5 weMrendjareckuseless. Giving details, he said that <\ \ \ ’%> audit qualifications. PW3 and^PW4 tendered the bank statements but said that they~neverskheW anything about the theft. By elimination, counsel submitted, the court was' left with the evidence of PW1 and PW2 which x:x i \ was not sufficientto prove the case. Counsel proceeded to say that the evidence of PW1 was given without oath or affirmation. That is against section 198 (1) of the Criminal Procedure Act and made the evidence useless. He argued the court to expunge it from the record. He referred the court to Hamisi Chuma @ 5 Hando Mhoja and another v. Republic, CAT Criminal Appeal No. 371/2015 page 8 for reference. He went on to submit that PW2 was not dealing with the daily operations of the company. He never proved theft. In that regard, counsel submitted, the Republic did not prove the offence. Submitting on ground two, counsel told the court that in the absence of the evidence of PW5 and the exhibit,

there could not be any y-s. \\ ( X. \\ evidence to prove the case. He said that the'appellant was>supposed to be given the benefit of doubts. He went on to submit pirground three and V\ \( told the court that the district c^u^ia^f^Kejntoxa«:ount the defence of the appellant that her dutyiwasscustomer service, a person who was not involved in recording\or sending money to the bank. Those were <x \\ \\ books, he stressed.) [ f 7 X X X. \ ISubmittingxprixground 5, counsel said that the Republic did not \\ ' \\ \\ w ■ discharge'll burden, of proof. He added that the appellant was supposed to be given tlie-benefits of doubts and set free. Mrs. Happiness Mayunga, State Attorney supported the appeal. She agreed with Mr. Kagashe that the evidence of PW1 is useless because it was given without oath or affirmation contrary to section 198 (1) of the CPA. She argued the court to expunge it. She referred the court to Abasi 6 Kondo Jem be v. Republic, CAT Criminal Appeal no 472/2017 page 10 as her authority. Counsel proceeded to submit that moving through the judgment, she could not see anywhere showing that the appellant was convicted of stealing a specific amount of money. That was wrong, she stressed. She went on to say that after expunging the evidence of PW5, there is no evidence to prove stealing the amount In the charge sheet. court to Edward Lwambano v. Republic, GAT Criminal Appeal

No. \\ z'/W z— \\ \ ■'/ 190/2018 page 11-12 for reference. Like Mr/Kagashe, the state attorney said that the court was left with the^evidence ofRWZ which did not prove X \ X X. X\ ‘— r the offence. In rejoinder,J4r>l$agashe.told the/court that the magistrate had no zX-Xs \\ X mandate to expunge the evidence of PW5. He could simply discredit the X., \\ evidence?-'. i I Lod'king at the grounds of appeal and the flow of submissions, one can see that'the'controversy is on the weaknesses of the prosecution case. That, the evidence from the prosecution fell short of the standard which is required in criminal cases, that is proof beyond reasonable doubts. There is also specific reference to the evidence of PW1 which was given without oath or affirmation and the report of PW5 which was 7 prepared by a person who has no auditing qualifications. I will follow that trend but my approach will be a general discussion which will touch all the grounds generally for the grounds appear to have similarities. I will start with PW1. It is said that PW1 gave evidence without oath or affirmation. The record in page 13 support this view for it only reads C\ "PWl Nyantora, 32 years, resident of Kanyamahela, a.manager at BARAKI X\ f X. Xk Co. Ltd - at Kumwai - Kibondo Town Christiari"VThere is nowhere written \\ V<Z that he was sworn for Christians go by oath. ThaAas^correGtly'observed W ( by learned

counsel is against sectionX98j;(l^oKthe,Criminal Procedure ■\\ \\ \ \\ \ Act which provides that"Every'.witness in a criminal cause or matter shall, /Z XX I( "x x) subject to the provisions ’of any other written law to the contrary, be \x \\ \\ examined upon,oath oraffirmation ip'accordance with the provisions of \\ ( \\ \\ the Oaths and. Statutory Declarations Act". Section 4 of the Oaths and /XT'- x Statutory DeclarationvAcY'Gap 34 R.E. 2019 is the Law referred to in \\ \\ section. 9.8 (1) of the Act. It has a proviso which states that 'where any \\ i person who^isrequired to make an oath professes any faith other than the Christian faith or objects to be sworn, stating as the ground of such objection either that he has no religious belief or that the making of an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead of making an oath and such affirmation shall be of the same effect as if he has made an oath'. This is 8 the scenario under the law, in my view, where an adult person can give evidence without an oath. He gives it on affirmation something which is equal to an oath. I wonder why PW1 did not take an oath. The record is silent. If he had no religious beliefs or was prevented by his religious belief to take an oath, the magistrate could act on the proviso to secfion 4 of the Oaths Next for considerationjs

th&evidence'of PW5 who audited the books _ _ v \ S- ' i and the statementsof accounts?Admittedly, this witness is not an auditor ( / \'\ XX \\ ) J xx and does_n.pt possess, any auditing qualifications. He is a mere secondary school > teacherCwhoxteach accounts and commerce. Like the learned counselxi. agree that his evidence lacked evidential value because he audited the affairs of the company without any auditing qualifications. Like the evidence of PW1, his evidence is useless and is ignored. PW3 and PW4 who tendered the Bank Statements of Accounts declined to relate them with the appellant or any theft. Their evidence was thus, as correctly observed by learned counsel, useless. The statements cannot speak for 9 themselves. Someone was supposed relate their contents to the appellant and charges which faced her. There was no such a person. We are left with PW2 but as rightly observed by the counsel, the evidence of PW2 could not support any conviction because he was not the one who was dealing with the day to day activities of the company. Further to that, he was supposed to engage professibna( auditors to assist x him but he could not do so. In total therefore,\coupled witlfahe fahure to discuss the defence case which is seen inXthe judgmentfLagr;ee with the z^^ \?x \" Z ' XX^ v\ submission of the learned counsel tnatxthis'-appeal must succeed for there X\ X\xx\v was no

evidence to prove/the'caseXx XX But, before going tojthe endfl.wisft to make some observations for _ \x Xx future guidancO^eadihg' thfough-the/fecords, it is clear that, the case '\X X \\ ' ' was poorlyjnvestigated.Jf this^case was a true case (something which I/ \\ may not be true)xarid^if the police needed to assist the complainant, the \\ \\ \> investigator shouldAhave looked for professional auditors to audit the transactions. It was not correct to build the case on PW5 who was a mere teacher. The work was supposed to be done by professional auditors. That is one. Secondly, I fail to understand the way the appellant (who was only aged 20 years by then) could be trusted to receive money and send them to the bank without being cross checked by PW1 and PW2 from July 2020 10 to October 2020. That is a long period and many businessmen could not accept that. The practice is that, much as she could be trusted to receive the money, but the cross checking is usually done on daily basis. It is usually done by the director, his v/ife or close relative. They are also the one who could do the banking operations. It is out of logic to say that the girl was the one who received all the money and banked them for all the months, on daily basis, stealing h bits, without being noticed up to 17 Million! That is out of imagination. It is likely that the girl was merely fixed. Why? May be the sexual approach! But God knows better. That said, the appeal is allowed. I vacate and set aside the conviction and sentence. Let the appellant be set free unless otherwise lawfully held for some other reasons. It is ordered so. L.M. Mlacha

JUDGE 8/11/2021 li Court: Judgment delivered through virtual court services to the accused who is in Bangwe Prison and Mr. Clement Masua, State Attorney who is in his office. Right of Appeal Explained. L.M. Mlacha

JUDGE 8/11/2021 12