Court name
Court of Appeal of Tanzania

Kulwa Kabizi, Paulo Sindano Balele & Suleiman Mlela vs Republic () [1994] TZCA 28 (19 October 1994);

Law report citations
1994 TLR 210 (TZCA)
Media neutral citation
[1994] TZCA 28

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

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

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

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.

E
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