Edward Dick Mwakamela vs Republic [1987] TZHC 36 (14 October 1987)


Mroso, J.:  The appellant was charged in the District Court of Iringa with a total of twenty five counts.  Ten of them were on fraudulent false accounting, contrary to section D 317 (c) of the Penal Code, eleven counts were on stealing by Public Servant, contrary to sections 265 and 270 of the Penal Code and the remaining four counts were on forgery, contrary to sections 333, 335 (c) and 337 of the Penal Code.  Although he disputed all the counts the trial District Court found him guilty on nine counts of E fraudulent false accounting, for which he was sentenced to two years imprisonment on each count; on ten counts of theft by public servant he was sentenced, on some, to six years imprisonment on each count and, on others, to four years imprisonment on each count.  On the forgery counts he was found guilty and convicted on three counts and F was sentenced to two years imprisonment on each count.  The sentences were ordered to run concurrently.  He left dissatisfied with the convictions and sentences, hence his appeal to this court.
During the period between July, 1982 and August, 1983 the appellant worked as an G accounts assistant in the office of the Officer Commanding District, Iringa (O.C.D) and had two accounts clerks working under him.  among his duties, he collected government revenue, issued Exchequer Receipts to those making payments to him and eventually banked the collections.  It would appear (as no direct evidence was given) that before H taking collections to the bank he had first enter the total amount into a Bank Pay-in-slip, also known as a letter transfer.  It would also appear (again, because no evidence on procedure to be followed was given at the trial) that serial numbers of Exchequer Receipt which had been issued when collections were being made were quoted on the I Pay-in-slips.  It

may also be inferred from the recorded evidence that the Pay-in-slips were prepared in A several copies.
It was alleged before the trial court that the appellant wrote on the Pay-in-Slips amounts which were less than the actual collections which related to the Exchequer receipt that were quoted on the relevant Pay-in-Slips.  It was further impliedly alleged that the B appellant banked only the amounts shown on the pay-in-slips and misappropriated the difference in the collections.
On the whole the case was prosecuted in an unsatisfactory manner and the evidence as well as the judgement were generally not as good as they should have been.  As it is C already apparent, certain important evidence was not given but was merely assumed.  For example, no evidence was led regarding what ought to have been the proper procedure to be followed by the appellant in taking custody of various accounts books, in receipting payments; or in what other books or documents revenue so received was to D be entered; the procedure leading to banking of revenue; if there was any practice of bank reconciliation, et cetera, et cetera.  No bank employees gave evidence on the value or importance of Pay-in-slips, whether the amounts shown on the face of the originals of the pay in slips were actually received by the bank, what could be the explanation for the E difference in the amounts shown on the originals of the pay-in-slips and those shown on the copies thereof, all of which were rubber-stamped by bank staff.  Also, although the appellant is said to have stolen a large part of the revenue he used to collect, no Bank statements for the relevant period were produced in evidence to show the actual F amounts which were credited on the days the appellant banked revenue collections.
The case was tried by two magistrates in succession.  The first trial magistrate was apparently transferred from Iringa District Court before completing the trial.  The G succeeding magistrate properly informed the appellant of his rights under Section 214 of the Criminal Procedure Act, 1985.  The appellant requested that two witnesses, namely PW2 and PW4 be recalled go give evidence afresh because, as he later made it very clear, he wished the succeeding magistrate himself to hear the evidence of those H witnesses, and not to act on their evidence which the first trial magistrate heard and recorded.  The wish of the appellant, which was granted, was sanctioned by section 214 (2) (a) of the Criminal Procedure Act, 1985.  Unfortunately, however, this second trial magistrate in his judgement also considered the evidence of PW2 and PW4 which his I predecessor had heard and recorded as well as

their evidence which he (the succeeding magistrate) heard and recorded.  In some cases, A the magistrate preferred to believe the version of those witnesses' evidence which they had given to the first magistrate rather than the evidence they gave before him (the accused).  Once the accused indicates his choice, the trial court is not entitled to circumvent it. B
In this judgement I shall not go into all the unsatisfactory features of the trial court judgement, which are not very few. However, I have carefully gone through all the evidence, including the exhibits which are produced at the trial.  It is glaringly clear that the appellant committed some fraudulent false accounting offences and stole government C revenue.  In his defence to the trial court he admitted that the originals of Pay-in-Slips which were tendered in evidence were written by him and bore his signature.  He said the amounts of money shown on them were correct.  That can only mean that those D were the amounts he took to the bank for banking.  However, the total collections according to the Exchequer Receipts quoted on pay-in-slips, and the appellant gave no explanation at all for the discrepancies.  The irresistible inference is that the accused stole the difference in those amounts of money.
The evidence to prove the offences of forgery was questionable.  The documents alleged E to have been forged are triplicates of letter transfers (pay- in-slips).  I have looked at those copies and they are all shown to have been overwritten with superimposed figures.  There was no conclusive evidence that it was the appellant who did so.  In effect, the F convictions on the forgery counts are quashed and sentences imposed in respect of them set aside.
Although the trial court convicted the appellant on count 18 relating to the theft of Shs. 9,795/=, there does not appear to be clear evidence to proved the charge.  PW1 who G was giving evidence to prove the various counts told the trial court "I am confused on the 18th count.  I request the court (sic) to continue with the 19th count".  The witness did not again advert to that count so, the conviction on that count is unsupportable.  It is quashed and the sentence of six years imposed for it is set aside. H
As for counts 22, 23 and 25, there was no firm evidence to prove them.  The trial magistrate said of count 22 - "there was no evidence that this amount (of shillings 11,088/15) was banked".  "The presumption is that the accused stole this money".  But I the prosecution had to positively prove that the money was not banked or in any other way accounted for, and to convict on that kind of

presumption is a novel standard of proof.  An accused person can only be convicted on A proof beyond a reasonable doubt.  Convictions on counts 23 and 25 were partly based on secondary evidence (a) buff-copy of a pay-in-slip) which did not satisfy the provisions of section 67 of the Evidence Act, 1967 on the admissibility of secondary evidence, and partly on omitted evidence.  The trial magistrate excused the Bnon-adduction of necessary evidence by reasoning thus:
   However, I am mindful, that the practice is to summon bank officials to testify on the banking of C the money in question.  But, perhaps, this omission on the part of the Police Investigator or Public Prosecutor, is not fatal to this case.
With respect to the learned resident magistrate, that omission was fatal to the charges and the convictions, therefore, cannot be allowed to stand.  They are quashed and the D sentences imposed in respect of them set aside.
In effect the appeal is dismissed on counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16.  The sentences imposed on those counts are not excessive and are upheld.  The E appeal is allowed on counts 18, 22, 23, 24 and 25.
F Appeal partly allowed.


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