william john owenya vs republic 2021 tzhc 7574 23 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISC. CRIMINAL APPEAL NO. 40 OF 2021 , (Originating from Criminal Case No. 377 o f 2019 District Court o f Moshi a t Moshi} WILLIAM JOHN OWENYA..... ......... . APPELLANT

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

JUDGMENT MUTUNGI J. Before the District Court of Moshi at Moshi, the appellant was charged with seven counts, five counts i.e. 1st, 3rd, 4th, 5th, and 6th were of forgery contrary to sections 333, 335 (d) and 337 of the Penal Code Cap 16 R.E 2002, now R.E. 2019 (Penal Code). The other tw o i.e. 2nd and 7th were o f Uttering False Documents contrary to section 342 the Penal Code Cap 16 R.E. 2002 (R.E. 2019). Page 1 of 18 At the trial court, the respondent alleged on diverse dates of 1st January, 1984, 30th A pril and 16th September, 1985, the appellant forged a Will and a letter to Moshi Urban Primary Court showing Festo .J. Owenya, Dr. Fidelis .J, Owenya, Zakayo J. Owenya, Wecenslaus J. O wenya Elisante J. Owenya, Douglas J. Owenya and Ndeanasia Mashina had agreed for him to be the administrator of the estate of the late John Zakayo Owenya. The appellant ple a d e d not guilty to the above allegations hence, a full trial involving seven witnesses and thirteen exhibits from the prosecution side an d five d efence witnesses and one exhibit from the defence side was co n d u cte d . In the end the appella nt was not found guilty for the 1st and 4th counts but was found guilty and convicted of the 2nd, 3rd, 5th, 6th and 7th counts and accordingly sentenced one year and five months for the 2nd, 3rd and 5th counts a n d two years imprisonment for the 6th and 7th counts. The sentences

were ordered to run concurrently. Aggrieved, he has filed this appeal raising a total of three grounds as hereunder: - 1, That, the learned trial Magistrate erred in law and fa c t in convicting and sentencing the appellant on a defective Page 2 o f18 charge sheet. 2, That, the learned trial Magistrate erred in law and fa c t in failing to analyze the evidence which was tendered before the Court and eventually convicted the appellant.

3. That, the learned trial Magistrate erred in law and fa c t in convicting and sentencing the appellant with the offence of Forgery and Uttering False Documents while the same was not proved beyond reasonable doubt. During hearing of this a p p e a l the appellant was represented by Mr. G odfrey Saro, learned counsel whereas the respondent was represented by Mr. Innocent Njau, learned Senior State Attorney. In support of the appeal, Mr. Saro on the 1st grounds submitted, the appellant was charged for the offence of forgery contrary to section 335(d) of the Penal C ode which has subsections (i) to (iv) with distinctive actions of forgery. Failure of the respondent to state under which subsection the appellant was charged renders the charge sheet incurably defective. To cem ent on this argum ent the learned ad vo ca te cited the case of Mussa Ramadhani Vs. Republic, Criminal Appeal No. 368 of 2013 (CAT-Mbeva unreportecO Page 3 of 18 where the Court of-Appeal quoting the case of Abdallah All Vs. Republic, Criminal Appeal No. 253 of 2012 (unreported) observed, section 135 of Criminal Procedure A ct Cap 20, R.E. 201? (CPA) directs how the charge sheet should be drafted. The same should contain facts of the offence(s) charged together with particulars. In this case the prosecution failed to state how the appellant participated in the said forgery, which answer could have been answered if the charge sheet was drafted properly by citing the specific section of the law. In view thereof it prejudiced him as he never understood his charges. The bottom line would be, he did not receive a fair trial. Much so the same cannot be cured by section 388 of the Criminal Procedure Act, C ap 20 R.E.

2019. To this the a p p e lla n t’s counsel referred the court to the case of AAussa Mwaikunda Vs. Republic, Criminal Appeal 120061 TLR 387 - 393. The learned counsel further argued, even the evidence tendered did not support the charge. Giving an example the counsel referred to PW1 ’s testimony who was the hand writing expert. This witness elaborated he did not examine the a p p e lla n t’s hand writing and neither did he com m ent on the participation of the appellant in making the forged docum ent. A further exam ple was PW2, (the Page 4 of 18 investigator), during cross-examination as reflected at page 37 of the trial co u rt’s typed proceedings, clearly stated he never took the a p p e lla n t’s signature samples to Arusha for examination on the reason it had not been m entioned anywhere th at he signed the alleged documents. The learned counsel a d ded , the rest of the five prosecution witnesses denied to have signed the docum ents and none of them dem onstrated who signed or published the documents and under w hat part of section 335(d), (i) - (iv) of the Penal C ode the said acts fell. Still pressing on the defective charge, Mr. Saro argued, the appellant was also charged with uttering false docum ent contrary to section 342 of the Penal Code. However, the charge sheet failed to indicate the sentencing provision thus prejudiced the appe lla n t as he failed to

understand the consequences of the offence charged. He cited the case of Mussa Nuru @ Saquti Vs. Republic, Criminal Appeal No. 83/2017, CAT at Tanaal to cem ent his argum ent. On the 2nd and 3rd grounds, the learned counsel submitted on the same simultaneously that, the evidence was not properly analyzed and the offences not proved beyond Page 5 of 18 reasonable doubt. He prayed the Court be guided by the case of James Bulolo and Another Vs. Republic, f198n TLR 283 where the Court laid down a principle that: - “The duty of the trial magistrate is to evaluate the whole evidence In light of the authority cited above, Mr. Saro argued, the trial magistrate v a c a te d from the legal duty of evaluating the evidence on record hence reached an erroneous decision. He argued, for the offence of forgery to stand, three elements must be established to wit; the accused uttered the docum ent, the docum ent is false and the accused person a cte d with intent to defraud. Short of this, the court will note that the prosecution has failed to prove their case. The same position was fortified in the case of D.P.P Vs. Shida Manvama @ Seleman? Mabuba, Criminal Appeal No. 285 of 2012, CAT at Mwanza. The learned counsel further argued that, it was not proven whether it was the appellant who authored Exhibit P2 (family meeting minutes) and Exhibit P13 (a Will). This was seen through PW1 ’s testimony,

(handwriting expert) who examined the handwriting samples of 5 different people Page 6 of 18 excluding the appellant and tendered Exhibit PI (handwriting report). The same was the case for PW2, (Investigator), apart from testifying to have discovered that the 5 signatures were forged, he never took the a p p e lla n t’s signature sample for examination. It was his firm opinion since the two witnesses are experts in criminal justice whose evidence is persuasively binding on the court, they did not establish the a p p e lla n t’s involvem ent in making the said documents. Mr. Saro further argued, PW3, PW4 and PW6 disassociated themselves and denied to have signed the family meeting minutes. In fa c t they revealed, there was no family meeting convened at all. The 3 witnesses did not bring evidence to show who m ight have signed Exhibit P2 leaving the court with doubts. As for Exhibit P I3, these witnesses only testified, the Will was different from the one which was read before them, 3 days after the death of their father. The 3 witnesses did not describe the said original will. They also did not com m ent on the w hereabout of the said original will and w ho might have authored Exhibit P I3. These doubts were left unresolved by the trial court. Page 7 of 18 On the other hand, PW5 and PW7 stated, they allow ed the appellant to put dow n their names on the minutes but was not to

sign the same on their behalf. This goes to suggest there was an agreem ent in making of the said docum ent. They also stated that Exhibit P I3 was never forged hence their testimony co n tra d icte d that of PW3, PW4 and PW6. These unresolved doubts by the prosecution should go to the appe llant’s a d va n ta g e the principle found in the case o f Joseph John Makam e Vs. Republic, Criminal Appeal fl 9861 TLR 49. Still pressing on the issue of witnesses, the learned counsel argued, the respondent opted not to summon Elisante John Owenya whose signature was also said to have been forged under the 4th count of the charge sheet. Failure to call this witness left doubts and the trial court rightly dismissed the 4th count. In that regard, failure to summon a material witness one can draw an adverse inference to the party who fails to bring a m aterial witness. The same was held in the case of Hemed Said Mbiki Vs. Republic M 9841 TLR 113. The learned counsel elaborated, the a c t of dismissing the 4th court, m eant Exhibit P2 (family minutes) was partly faulty and Page 8 of 18 partly not faulty which does not tally with the evidence on record.To'this the counsel expounded the appellant was not charged for making part of Exhibit P2 but forgery of the entire docum ent. Be as it may, he explained although the trial magistrate at p a g e 12 para 2 of the judgm ent m ade remarks that,

the appellant did not dispute possession of the docum ent and to have tendered it in the probate court, however, having possession of the docum ent is not making the docum ent. The position would have been different had the prosecution proved that, there was no m eeting convened on th at da te at all but the appellant had proceeded to m ake the said docum ent. In view thereof unfortunately, the a p p e lla n t’s conviction was not based on the strength of the prosecution evidence but on the weakness of his defence. Mr. Saro co n te n d e d while submitting on the second ingredient of the offence of Uttering False Docum ent that, the said forged docum e n t should be false. The evidence tendered was contradicting as PW3, PW4 and PW6 faulted the appointm ent of the appellant as the administrator while PW5 and PW7 adm itted the appellant was appo in te d the administrator of their late father's estate and that they Page 9 of 18 consented their names be put down on Exhibit “ P2’\ Had the appellant intended to m anipulate the appointm ent as the administrator, he w ould have done so w ithout the presence of PW5 and PW7. For all purposes and intent all the other prosecution witnesses knew of the existence of Exhibit “ P2” and its purpose hence the second ingredient was not met. Regarding the last ingredient to wit; intended to benefit out of the said offence or intended to defraud,

Mr, Saro submitted, by forging family m eeting minutes and a Will, it can be speculated that he did so in order to benefit out of the deceased estate. However, in the trial co u rt’s record there is no evidence that the appellant d e ceived anyone. In actual fa c t PW3, PW4, PW5, PW6, and PW7 were the ones in the position to defraud or deceive as they had an interest in their father's estate. The record also shows after their fa th e r’s death, one Josephat O wenya read the d e ce a se d ’s will left at the bank. The trial magistrate believed PI 3 was forged w ithout proof of the genuine Will or testimony from the one who read it to prove its authenticity. It can well be settled that there is a family feud on the distribution of the deceased estate which Page 10 of 18 ought to have been tried in a probate court. PW5 and PW7 confirmed, w h a t was read 3 days after the d e ce a se d ’s death was actually w hat the appellant executed in the said probate cause. PW3, PW4 and PW6 apart from stating the Will was forged and did not participate in the m eeting, did not mention how the appellant was benefiting out of the said acts ever since 1985. Mr. Saro finally prayed the instant appeal be allowed, the entire proceedings be nullified and the a p p e lla n t’s conviction and sentence be set aside. In reply, Mr, Njau supported the appeal on the grounds that; first, the charge sheet was

premised on section 333, 335(d) and 337 but did not cite the sub-sections of section 335(d). Thus, the a p p e lla n t was unfairly tried basing on a defective charge and such omission cannot be cured. Second, he submitted there was no evidence proving the offence of forgery against the appellant in respect of Exhibit P2 and PI 3. Worse enough, there was neither handwriting evidence nor general samples taken for phorensic examination to prove or disapprove the authenticity of the said documents. Page 11 of 18 Third, on the offence of Uttering False Documents contrary to section 342 of the Penal Code, there was no m ention'of the sentencing section. In that regard the appellant did not know the e ffe ct of the offences facing him. Mr. Njau finally submitted the defectiveness of the charge sheet and the fa ct that the prosecution had no sufficient evidence to prove the counts against the appellant, then the appeal is meritorious. There was no rejoinder thereafter. After I have gone through the trial co u rt’s proceedings, judgm ent and parties1 submissions, I as well support the appeal. Starting with the defective charge sheet/section 335 of the Penal C ode which is am ong the offences the appellant was charged and convicted of provides that; “335. Any person makes a false docu m e n t who - (a jn /a; (b) n/a; (cjn/a; (d) signs a docum enf- (i) in the nam e of any person without

his authority, whether such nam e is or is not the same as that of the person signing; Page 12 of 18 fii) in the nam e of any fictitious person alleged to exist whether the fictitious person is or is not alleged to be of the same nam e as the person signing; (in)in the nam e represented as being the nam e of a different person from that of the person signing it and intended to be mistaken for the nam e of that person; (iv)in the nam e of a person personated by the person signing the d o c u m e n t provided that the effect of the instrument depends upon the identify between the person signing the d o cu m e n t and the person whom he professes to b e .” Having carefully read the charge reproduced above and the cited section, I am of the settled view that the charge is incurably d efective as the offence of forgery as per this section did not clearly stipulate which subsection did the appellant offend. For a charge of any kind to be proper, it must contain or indicate the actual offence and its particulars. This requirem ent is provided for under Section 132 of the Criminal Procedure A ct C ap 20 R.E. 2019 so as to Page 13 of 18 enable the accused person to know the nature of the offence he is facing. The section provides:- “ 132. Every charge or information shall contain, an d shall be sufficient if it contains, a statem ent of the specific offence or offences with which the

accused person is ch a rg e d , together with such particulars as m ay be necessary for giving reasonable information as to the nature o f the offence ch a rge d In Mussa Mwaikunda Vs. Republic [2004] TLR 387 the Court, observed, inter alia:- “ The principle has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge discloses the essential element of an offence I am further inspired by the case of Isidori Patrice Vs. Republic Criminal Appeal No. 224 of 2007 (unreported) as cited in the case of Kashima Mnadi, Criminal Appeal No. 78 of 2011 CAT at Dodoma funreported) where the Court stated; Page 14 of 18 “It is a m andatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged b u t such particulars as m ay be necessary for giving reasonable information as to the nature o f the offence charged. It is now trite law that the particulars of the charge shall disclose the essential elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law an d evidence to the effect th a t the prosecution has to prove that the accused com m itted the actus reus o f the offence with the necessary mens rea. Accordingly, the particulars, in order to give the accused a fair trial in enabling him to prepare

his d e fe n c e , must allege the essential facts o f the offence an d any intent specifically required by la w /’ in the appeal at hand, the charge does not disclose the exact offence under forgery and the same cannot be salvaged under Section 388 of the CPA. (See also Page 15 of 18 Mwaikunda case (supra) and Uganda Vs. Hadi Jamal P 9641 EA 294). In th at regard, as c o n c e d e d by the respondent's Senior State Attorney, the appellant was prejudiced as he did not know the im p a ct of the charges leveled against him. As regards the applicability of section 342 of the Penal Code, the court is in all fours that the sentencing section was not mentioned or indicated hence the charge sheet was defective. This is because the charged offence is one of uttering a false docu m e n t hence the charge ought to have shown the punishment a tta c h e d to it by citing section 333 of the Penal Code. The court is settled as was held in the case of Zarau Issa Vs. Republic, Criminal Appeal No. 189 of 2010 lunreported) the same lays a foundation of the criminal proceedings, enables the accused to understand the nature of offence and its seriousness. In due thereof the court is of a settled mind by falling to cite the sentencing provision might have led the ap pellan t not to ap p re cia te the seriousness of the offence and more so to prepare his d efence as held in the case of Simba

Nvanaura Vs. Republic. Criminal Appeal No. 144 of 2008 funreported). The end result is that he was prejudiced. Page 16 of 18 Be as if may, there is no clear evidence showing how the appellant forged the docum ents in question and since the prosecution witnesses con tra d icte d themselves the court is settled the case against him was never proved beyond reasonable doubt. To be precise PW3, PW4 and PW6 testified the Will as well as the family minutes were forged while PW5 and PW7 alleged the said Will and even the minutes were genuine. These contradictions go to the root of the case hence tears apart the whole of the prosecution case. In light of the a b o ve analysis, and as I stated earlier, I find this appeal meritorious and hence allows the same. The trial court’s proceedings, conviction and judgm ent entered by the trial court are quashed and sentence set aside. The appellant is ordered to be released forthwith unless held in custody for other lawful reasons. It is so ordered. ---- y B. R. MUTUNGI

JUDGE 23/11/2021 Page 17 of 18 Judgm ent read this da y o f 23/11/2021 in presence of the a p p e lla n t Mr. Oscar Malya holding Mr. G odfrey Saro’s brief for the appellant and Mr. Innocent Njau (S.S.A) for the respondent. __ * B. R. MUTUNGI

JUDGE 23/11/2021 RIGHT OF APPEAL EXPLAINED. ]-, ... B. R. MUTUNGI

JUDGE 23/11/2021 Page 18 of 18