JOSEPH JOHN MAKUNE v THE REPUBLIC 1986 TLR 44 (CA)

 

JOSEPH JOHN MAKUNE v THE REPUBLIC 1986 TLR 44 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA, Kisanga JJA.

Flynote

F Criminal Practice and Procedure - Economic crime committed before the Economic and

Organized Crime Control Act, 1984 came into force - Case then pending with the Police -

Whether accused could properly be charged before an Economic Crimes G Court when the Act

became operational.

Economic and Organized Crime Control Act, 1984 - Interpretation - The word "ruling" in s.2 of

the Act -Whether to be given a restrictive meaning.

H Criminal Law - Evidence - Defence evidence raises serious doubts as to the guilt of the

appellant.

Evidence - Standard of proof -Prosecution evidence is not strong and defence evidence raises

serious doubts as to the guilt of the appellant.

I Sentencing - Judge alone sentencing the appellant - Whether proper - Economic and

Organized Crime Control Act, 1984, s.16.

1986 TLR p45

KISANGA JA

-Headnote

A The appellant was charged before an Economic Crimes Court. The offence with which he

was charged was committed before the Economic and Organized Crime Control Act, 1984

became effective but the case was pending with the police under the Penal Code. When Act

became operational the appellant was charged under it. Counsel for B the appellant argued that

it was not proper to charge the appellant under the Act because it had no provision for

retrospective operation. The High Court ruled that it was proper to charge the appellant under

the Act. Counsel's application to appeal against this ruling was rejected and the judge sought to

give a restricted meaning to the word "ruling". This meaning would exlude rulings which are of

interlocutory nature. C

The Court of Appeal considered the evidence adduced by both parties. It also addressed itself to

proper constitution of an Economic Crimes Court when passing sentence.

D Held: (i) There was nothing in law to prevent the Police from altering the charge, originally

under the Penal Code, and to proceed under the Act if they thought that the facts disclosed an

offence under the Act;

E (ii) the word "ruling" in section 2 of the Economic and Organized Crime Control Act,

1984, should be given plain and ordinary meaning to include interlocutory ruling;

(iii) the evidence adduced in support of the charge was not at all strong, and the

appellant's defence, properly considered, raises serious doubts as to his guilt; F

(iv) section 16 of the Economic and Organized Crime Control Act 1984 requires that the

issue of sentence be decided by majority of the members of the Court. The Judge erred in

proceeding alone to determine that issue.

Case Information

Appeal allowed. G

No case referred to.

S.A. Masati, for the appellant H

Shio, for the respondent

[zJDz]Judgment

4th July, 1986 Kisanga, J.A.: The appellant was convicted in a majority judgment under the

Economic and Organised I Crime Control Act for occasioning loss to a specified authority, and

was

1986 TLR p46

KISANGA JA

A sentenced to 3 years' imprisonment, with an order for compensation in respect of the loss

caused to the specified authority. He has now appealed against both conviction and sentence.

Very briefly the facts as found by the Economic Crimes Court were that the appellant was a

bank official who at the B material time was a signatory to the encashment of cheques of over

Shs. 10,000/=. He duly authorised the encashment of two cheques each worth Shs. 125,000/=.

He authorised this at Mahenge where the drawer of the cheques, one Isaac Jacob @ Isaack

Shinyanga had no bank account and when the cheques were later referred to Igunga where he

had an account, there were no funds to meet the payment thereof. The prosecution, therefore,

charged the appellant with C occasioning loss to the National Bank of Commerce in that he was

careless in not clearing the cheques with the Igunga branch before authorizing payment of them

at Mahenge. The appellant's defence was that he did not clear the cheques D because there was

no telephone communication between Mahenge and Igunga branches of the Bank but that he, as

branch Manager, used his discretion to authorise payment after satisfying himself that the

drawer of the cheques was creditworthy. As intimated earlier the court was divided, the

chairman and one lay member recording a verdict of guity E with the remaining lay member

dissenting.

In this appeal the appellant is represented by Mr. S.A. Masati who had also acted for the defence

at the trial. Before us the learned counsel filed seven grounds of appeal but at the hearing he

abandoned ground three and argued the rest. For F convenience the first three grounds may be

taken together. He alleges before us, as indeed he had alleged before the Economic Crimes

Court, that the charge was defective in as much as it charged his client with an offence which

was committed in July, 1984 before the Economic and Organized Crime Control Act came into

operation in September that G year, and yet there was no provision in the Act for retrospective

operation. It is apparent that the case falls within the provisions of section 65(4) of the

Economic and Organized Crime Control Act which in the rest of this judgment will be referred

to simply as the Act. That sub-section says that: H

65(4). Where a case is pending with the police or before the Tribunal but it may not be

heard by the Tribunal as a result of the operation of the preceding provision of this section,

proceedings in respect of it shall be instituted before the Court, subject to this I Act.

1986 TLR p47

KISANGA JA

A Mr. Masati conceded that when the Act came into operation the case was pending with the

police, and it is clear that it could not be heard by the Tribunal because the appellant was never

charged before that Tribunal. But counsel contended that at the time of the commencement of

the Act his client was then charged under the Penal Code with the offence of stealing by public

servant. By this we understood him to say that the police should have continued the

proceedings B against his client under the Penal Code. We could see no basis for that

argument. We think that once the case was pending with the police at the commencement of

the Act, there was nothing in law to prevent the police from altering the C charge, originally

under the Penal Code, and to proceed under the Act if they thought that the facts disclosed an

offence under the Act. We are therefore satisfied that the case was properly made the subject of

a charge under the Act and we can find no merit in the complaint.

As intimated earlier, this complaint had been the subject of a preliminary objection at the trial

but the Court overruled it. D Whereupon the learned counsel sought to appeal against such

refusal but he was refused leave to do so. That refusal is now made a ground of complaint before

us. Having regard to the view which we have just expressed on this matter, we E are satisfied

that the Economic Crimes Court was quite justified to overrule the preliminary objection and we

can see no merit in this ground of complaint either.

The refusal to grant leave to appeal against that ruling, however, appears to present some

difficulty. Mr. Masati stated that in seeking to appeal against the ruling he was relying on the

provisions of section 61 of the Act. That section F provides that:

61. A person aggrieved by a decision of the Court may appeal to the Court of Appeal of

the United Republic in accordance with established law in that behalf. G

Under section 2 of the Act the word "decision" is defined to include

...a judgment, finding, acquittal, conviction, sentence or ruling.

H In over-ruling the objection the trial Court stated, inter alia, that the right conferred under

s.61 of the Act did not concern every decision of the Court during the trial, but that it applied

only to decisions which are final and not interlocutory in nature. It is to be noted that the word

"ruling" has not been defined under the Act. I

1986 TLR 48

KISANGA JA

A The Court, however, took the view that the word is to be given a restricted meaning to

exclude rulings which are of an interlocutory nature. The Court gave no reasons for so

restricting the meaning of the word, nor can we suggest any. Such a restricted meaning can

cause prejudice or injustice to an accused person in some cases, for example where his B

objection is sustained on appeal resulting in his discharge or acquittal. In such cases the accused

would have suffered unnecessarily the pain of being an accused person, with its attendant

consequences, for the whole period between the time of such refusal and the time he is let off on

appeal against the final decision. That would be undesirable, and we think C Parliament

cannot have intended it. As stated before we can find no justification for restricting the meaning

of the word "ruling". We are increasingly of the view that the word should be given plain and

ordinary meaning to include interlocutory ruling. The trial Court was therefore unjustified to

refuse the appellant's leave to appeal, but we hasten to D add that in this particular case such

refusal did not prejudice the appellant because on the view we have taken of the matter, the

intended appeal against the ruling would not have succeeded, anyway.

E Again for convenience we take together grounds five and six the gist of which is that the

prosecution did not prove the case beyond a reasonable doubt having regard to the appellant's

defence. Essentially the evidence implicating the appellant was that he authorized the two

cheques without having first cleared them with the Igunga Branch of the bank. It F was

undisputed that he had given his authority on 16.7.84 and the cheques were presented at Igunga

on 15.8.84, that is about a month later, when it was learnt that the drawer's account had no

funds to meet them. But the prosecution G adduced no evidence as to the state of the account

as at the date of authorising the cheques. Counsel for the appellant submitted that it is possible

that the account had sufficient funds on the date the cheques were authorized but that if the

funds were run down only subsequently, then the appellant could not be to blame for it. There

was one matter here H which was not quite clear from the evidence. That is the meaning of

"clearing the cheques" with the Igunga Branch. We could not be sure whether this merely

meant to ascertain whether the drawer's account at Igunga had sufficient funds, or whether it

also meant debiting the account at the same time to the extent of the value of the two cheques

or, if not so, to I take any precautions against any withdrawals from the account until presentation

and payment at a later date of the two cheques. If it meant

1986 TLR p49

KISANGA JA

A the former then counsel's submission has merit because, as he says, there might have been

enough funds in the account on the material day, but if the funds were depleted only

subsequently the appellant could not be to blame for it as there is no evidence as to what

precautions, if any, he was required to take against any withdrawals from the account pending

presentation and payment of the two cheques. In the absence of a clarification on this point, we

think that the charge B cannot safely be said to have been proved sufficiently.

In dealing with the appellant's defence the learned judge and the lay member who recorded the

conviction and whom we C shall continue to refer to simply as the two members of the Court,

rejected that part of the defence where the appellant claimed that at the material time he was

the branch manager, and that in that capacity he exercised his discretion and authorized

payment of the cheques in the circumstances. A lot of argument centered around this point.

The appellant had D asserted that he was posted from Morogoro to Mahenge as a branch

manager, adding that the letter of his posting was at Mahenge while the copy thereof remained

at Morogoro, and that if the prosecution so wished they could call the manager at Morogoro

branch to produce it. The two members of the Court rejected that claim and preferred the E

prosecution evidence which was to the effect that at the material time there was no substantive

manager, that P.W.4, the accountant, was in accordance with the banking practice, the acting

manager while the appellant was posted there simply as his number two. In rejecting that part

of the defence, the two members of the Court took the view that "... where an F accused person

relies on any defence it is his duty to prove, on a balance of probability that defence." And

consistent with that view the two members of the Court contended that the duty to produce the

letter of posting him as manager G was on the appellant and not on the prosecution. With due

respect, this was a serious misdirection in law. The cardinal principle of our criminal law is that

the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his

innocence. There are a few well known exceptions to this principle, one example being where

the accused H raises the defence of insanity in which case he must prove it on a balance of

probabilities. But the present case did not involve any defence which fell within the known

exceptions so as to require the appellant to prove it. Nor could it be said that the letter was a

matter which was specially within the appellant's knowledge so as to place on him, in terms of I

section 114(1) of the Evidence Act, the

1986 TLR p50

KISANGA JA

A duty to prove or produce it. Therefore in holding that the duty was on the appellant and not

on the prosecution to produce the letter the two members of the Court shifted the burden to the

accused person and to that extent they were in error. The duty was clearly on the prosecution.

More so especially after the appellant had expressly mentioned the B places where the letter

and its copy could be found. Had the letter been produced, we cannot say for certain that it

would have necessarily supported the Court's finding that the appellant was not the manager at

the material time.

In rejecting that part of the defence where the appellant claimed that he, in his capacity as

manager exercised his C discretion to authorize payment of the cheques, the two members of

the Court took the view that even assuming that the appellant was the manager, there was no

proof that he was vested with any such discretion. The appellant had said in his defence that his

discretion was contained in what he described as Volume 2 of the Bank Handbook at paragraph

6/21. D The provision, he said, conferred on him the authority to decide such matters. There is

no indication that the said Handbook was ever produced or put in evidence. The two members

of the Court rejected this part of the defence E because the appellant did not show or spell out

the extent of his discretion. This is what they said:

.... The accused talked of his discretion under the banking procedures but he did not say

what was the limit of his discretion. This would have helped the court to decide whether the

discretion he used was reasonable in allowing the encashment of the Shs F . 250,000/= by

defaulting the procedure.

With due respect, once again, this was a misdirection. The Court could not properly blame the

appellant for not giving G adequage information about the extent of his discretion because he

himself may have thought that the information he had given was enough. And indeed on

glancing through his cross-examination, there is no indication that he was asked anything as to

the limits of his discretion in the matter. In any event if the Court felt that it was necessary to

have further H information to enable it to decide on the precise extent of the appellant's

discretion, then it was open to the Court to call for the said Bank Handbook and to refer to the

actual text. It could have done so by requiring an official of the bank to produce the book in

evidence for the purpose. As things stand now, it cannot be said that this part of the appellant's

I defence was given adequate

1986 TLR p51

KISANGA JA

A consideration and refused on sufficient grounds. Had the Bank Handbook been produced, it

might well have supported the appellant's contention that it conferred on him the necessary

powers and discretion to act as he did, in which case the two members of the Court might have

come to a different conclusion on the matter.

B The two members of the Court in considering the defence further, found that the appellant

in authorizing the cheques acted unreasonably by relying on bank documents which were in

possession of Isaac, his client, and which were sixteen months old. The said documents included

counterfoils of cheque books, bank statements and bank paying-in-slips which C showed that

Isaac's bank operation was good. But with due respect it seems that the Court was here picking

and choosing from the defence only what was convenient for the purpose of its decision.

Because the appellant said that in exercising the discretion to authorize the cheques, he took into

consideration other factors in addition to those documents D . He said that he had known Isaac

for a long time as a good customer of the bank. Isaac was a transporter and he owned a tractor.

He was also a cattle dealer and he owned houses including one he had bought at Shinyanga. On

the material day, the appellant went on, Isaac showed him Shs. 600,000/= in hard cash and told

him that he was seeking to E withdraw an additional Shs. 250,000/= to enable him to purchase

a lorry which was selling at Shs. 800,000/=. In holding that the appellant failed to exercise

reasonable care the two members of the Court did not take into account these additional factors.

To the extent of such omission they erred. They ought to have considered the defence in whole,

not F only in part, and to see whether it created any reasonable doubt in their minds. The

appellant claimed that upon considering all these factors he was convinced that his client was

creditworthy and accordingly he authorized the cheques honestly believing that they would be

honoured upon presentation for payment at Igunga. We are of the view that had the G two

members of the Court considered the appellant's defence in whole they might have found that at

least it was sufficient to cast a reasonable doubt as to his guilt. This is so especially as there was

no attempt to contradict the appellant's assertion that Isaac, the said customer, owned various

properties including the house at Shinyanga. Indeed H P.W.5, a police officer, testified that he

visited Isaac's residence at Shinyanga although he did not find him there. This would tend to

support the appellant's assertion that he believed that his client was a person who had property.

I

1986 TLR p52

KISANGA JA

A In an attempt to prove lack of care or negligence on the part of the appellant, the

prosecution had sought to rely on a circular letter allegedly issued by the Bank's headquarters

instructing its branches at Nyerere Road Mwanza, Tabora, Igunga and Shinyanga to close the

accounts operated by Isaac and to leave only one. This circular was referred to and B the

contents of it were actually read out in court by P.W.4. But for some reasons which are not

immediately apparent, it was not tendered in evidence as exhibit. However, that circular was

rightly not taken into account in considering the appellant's guilt because, among other things,

the authorship of it was not proved and there was no evidence that its C contents had been

communicated, or were known, to the appellant.

In the fourth ground of appeal Mr. Masati rightly complained that in the absence of one lay

member, and the other lay D member dissenting, the learned judge proceeded to deliver the

majority decision and further proceeded alone to sentence the appellant. This matter was

governed by the provisions of section 16 of the Act, the relevant part of which provides that:

16. All questions to be decided by the Court, including the decision whether it finds the

accused person guilty or Lnot guilty, shall E be decided by agreement of the majority of the

members....

It is quite apparent from this provision that the issue of sentence is one to be decided by majority

of the members of the F Court. The learned judge, therefore erred in proceeding alone to

determine that issue. His order of sentence was therefore invalid, and had we been minded to

uphold the conviction we would be bound to interefere with that order.

G Before we conclude the appeal we wish to observe although very briefly that the handling of

this case was not at all satisfactory. The treatment of some of the issues involved was at times

too casual and left a lot to be desired. The investigation of it was most superficial, and the

presentation of it in court was only half-hearted leaving too many loose H ends. The number

of misdirections on the part of the Court only served to aggravate that situation. We hope that

all those concerned will make the necessary efforts to overcome such situations in future.

I In the last analysis we are of the view that the evidence adduced in support of the charge was

not at all strong, and the appellant's defence, properly considered, raises serious doubts as to his

1986 TLR p53

A guilt. In the circumstances we are satisfied that there is merit in this appeal which ought to

succeed. Mr. Shio, the learned advocate who appeared for the respondent Republic at first

sought to support the conviction, but on second thoughts conceded to this view. In the result

we allow the appeal, quash the conviction and set aside the sentence with an order for the

immediate release of the appellant unless he is otherwise lawfully held in custody. B

Having quashed the conviction, we find it not necessary now to consider the last ground of

appeal which raises, in the alternative, the issue of excessiveness of the sentence and severity of

the compensation order. C

Appeal allowed.

1986 TLR p53

D