KULWA KABIZI, PAULO SINDANO BALELE & SULEIMAN MLELA v REPUBLIC 1994 TLR 210 (CA)

KULWA KABIZI, PAULO SINDANO BALELE & SULEIMAN MLELA v REPUBLIC 1994 TLR 210 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

D CRIMINAL APPEAL NO. 38 OF 1993

19 October, 1994

(From the decision of the High Court of Tanzania at Tabora, Lugakingira, J) E

Flynote

Criminal Practice and Procedure - Admission and evaluation of evidence - Evidence

wrongly rejected by trial court - Duty of the Appellate Court.

-Headnote

F The appellants were charged with conspiracy, fraudulent false accounting, and

stealing by public servant before the Shinyanga District Court. They were acquitted

on all counts. The Republic appealed to the High Court which, after restoring and reevaluating

numerous pieces of evidence which had been rejected by the trial court,

allowed the appeal and convicted the appellants on all counts. They G appealed to

the Court of Appeal arguing that the High Court was wrong to restore some evidence

which had been rejected by the trial court and to rely on some evidence which

needed corroboration, and further that the High Court exceeded its powers in that it

acted in a manner which amounted to recording additional evidence. H

Held:

(i) The High Court was right to evaluate the evidence on record and to act

on some crucial evidence which the trial court had wrongly and deliberately

disbelieved;

(ii) Where a trial court wrongly rejects certain evidence it is the duty of

the appellate court to arrive at its conclusions upon a consideration of the whole of

the evidence properly admissible and available on record; I

1994 TLR p211

(iii) The High Court in this case rightly arrived at its own conclusion after

A restoring evidence in support of the prosecution which had been wrongly rejected

by the trial court.

Case Information

Appeal dismissed.

Cases referred to: B

(1) Williamson Diamonds Ltd and Another v Brown [1970] EA 1.

(2) Trevor Price and Another v Raymond Kelsall, [1957] EA 752.

(3) R v Hamis bin Said and Another [1942] 9 EACA 50.

Maira, for the first appellant.

Mtaki, for the second appellant. C

Matata, for the third appellant.

Kaduri, for the respondent.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the Court. D

The appellants, Kulwa Kabizi, Paulo Sindano Balele and Suleiman Mlela to whom we

will hereinafter be referring to as first, second and third appellants respectively, were

charged before the District Court of Shinyanga of three counts of conspiracy, three

counts of fraudulent false accounting and three counts of stealing by public servant. E

After a full trial the District Court acquitted the appellants on all the counts.

Dissatisfied with the decision of the District Court the Republic appealed to the High

Court which, after evaluating the evidence tendered in the court of first instance, was

satisfied that there was ample evidence in support of the charges F against the

appellants. The learned judge accordingly upheld the appeal by the Republic,

convicted the appellants on all the counts and sentenced each of the appellants to

seven years imprisonment in respect of counts one, four and seven. In counts two,

five and eight each appellant was sentenced to seven years imprisonment on each

count; and in counts three, six and nine (that is stealing by public servants) each

appellant was sentenced to ten years imprisonment on each count. All the sentences

were made to run concurrently. Aggrieved by the decision G of the High Court the

appellants have appealed to this court.

Before us Mr Maira, learned counsel, advocated for the first appellant. Mr Mtaki,

learned counsel appeared for the second appellant and Mr Matata, learned counsel

argued the appeal in respect of the third appellant. H

Mr Maira argued that the first appellate court erred in convicting the first appellant

on the evidence of PW3, PW5 and PW6 who like I

1994 TLR p212

MNZAVAS JA

A the appellants were employees of Shinyanga Region Co-operative Union. It was

the learned counsel's submission that these witnesses were accomplices whose

evidence needed corroboration before being acted upon to the detriment of the first

appellant.

B Mr Maira, learned defence counsel also argued that it was wrong and improper for

the learned judge to rely on exhibits P1, P2 and P3 to convict his client, the first

appellant; when the evidence showed that some of the documents were tampered

with.

It was also Mr Maira's submission that on the evidence tendered in the district C

court the most that could be said about his client, first appellant, is that he was

negligent in his work. It was argued that there was no evidence implicating the first

appellant with the offences charged. Finally Mr Maira complained that his client's

conviction was based on the weakness of his defence and not on the strength of the

prosecution case and asked this court to allow his appeal. D

Mr Mtaki, learned counsel for the second appellant argued that the High Court

exceeded its powers in that it heard the appeal in a manner which amounted to

recording additional evidence. Like Mr Maira, Mr Mtaki also complained that the

learned judge erred in acting on the evidence of PW3, PW5 and PW6 which E

evidence, it was argued, needed corroboration before being relied upon to the

detriment of the appellant. Mr Mtaki further argued that the judge readily

accommodated prosecution irregularities but that he did not do so in respect of his

client, second appellant.

F Mr Matata appearing for the third appellant complained that the learned judge

should not have relied on the payment vouchers - exhibit P4 in convicting the third

appellant because the said payment voucher was found in third appellant's cupboard

at the time he had already been interdicted. It was submitted that the document (P4),

could have been `planted' in his office cupboard during his G absence. The learned

defence counsel also argued that the learned judge should not have believed the

evidence of PW2 and PW12 which was to the effect that exhibit P4 was found in

third appellant's cupboard.

H In conclusion Mr Matata submitted that the third appellant's office was merely a

clearing house and that as such he could not have committed the offences charged.

In rebuttal Mr Kaduri, learned Senior State Attorney, submitted that the High Court

was right in not treating PW1, PW2, PW3, PW5 and PW6 as accomplices whose

evidence needed corroboration because they were all employees of the Co-operative

Society I

1994 TLR p213

MNZAVAS JA

working in different capacities from the appellants - and those witnesses mainly A

touched on the daily routine regarding financial transactions in the Co-operative

Society.

As for the High Court's decision to rehear the case Mr Kaduri argued that as a first

appellate court the High Court was not bound by the facts found by the court of first

instance. In support of his argument we were referred to the decision in Williamson

Diamonds Ltd and Another v Brown (1). B

It was also submitted that the High Court had power to evaluate evidence tendered in

the District Court and draw its own inferences. In support of this submission the

decision in Trevor Price and Another v Raymond Kelsall (2) was quoted. C

We have minutely examined the evidence tendered in the court of first instance and

the High Court's evaluation of that evidence and we are fully satisfied in our own

minds that the learned judge was perfectly right in coming to the conclusion that the

Trial Senior Resident Magistrate was from the word go bent to acquit the D

appellants. In order to do so he deliberately disbelieved crucial prosecution witnesses

- PW3, PW4, PW5 and PW6 on the ground that they were accomplices and that their

evidence lacked corroboration. E

The Trial Magistrate even rejected the audit report tendered by the prosecution on

the ground that the auditor (PW2), was not a competent auditor. That the Trial

Magistrate found PW2 to be incompetent to audit business accounts despite the

evidence that he was a holder of Advanced Diploma in Accountancy is, to say the

least, beyond our comprehension. F

The learned judge was also right in restoring the evidence of one, Alphonce Dutta,

(PW14), whose evidence the court of first instance struck out as inadmissible. This

witness used to prepare weekly returns and was called to supplement the G

prosecution case taking into account that original copies of returns from accused's

societies could not be traced. Apparently the trial magistrate had earlier refused to

admit copies of the original returns in total disregard of the provisions of s 67(1)(c) of

the Law of Evidence Act 1967 which allows admission of such evidence. This again

clearly demonstrates his bias against the prosecution case. H

`Where a Trial Magistrate wrongly rejects certain evidence (as it was in this case) it is

the duty of the appellate court in the circumstances of the case, to arrive at its

conclusions upon a consideration of the whole of the evidence properly admissible

and available on record' - R v Hamis bin Said and Another (3). I

1994 TLR p214

A In this case the learned judge arrived at his conclusion after finding that the trial

court wrongly rejected evidence which supported the prosecution case. We see no

good reason to differ with the learned judge's finding that on the evidence the

appellants were guilty of the nine counts of conspiracy, fraudulent false accounting

and stealing by public servant as charged. B

In conclusion we would like to mention, if only in passing, that had this appeal been

placed before us for admission or otherwise we would not have had the slightest

hesitation in dismissing it summarily under s 4 of the Appellate Jurisdiction Act, 1979

as amended by Act 16 of 1984. C

In the event this appeal fails and it is accordingly dismissed in its entirety.

1994 TLR p214

E