By Faustine Kapama
THE Court of Appeal has cleared from any criminal liability three people, including a couple, who were linked with various crimes involving theft of about 1.2bn/-from External payment Areas (EPA) account of Bank of Tanzania (BoT).
Justices of the court ruled in favour of Manase Mwakale, his wife Eddah Mwakale and businessman BahatiMahenge, after dismissing the appeal lodged by prosecution to oppose their acquittal in respects of the crimes they were charged with before the Kisutu Resident Magistrate's Court in Dar es Salaam.
Having considered the evidence tendered during the trial, the Justices Sivangilwa Mwangesi, Jacobs Mwambegele and Mary Levira concluded that the charges against the three accused persons, who were respondents in the appeal, were not proved beyond reasonable doubt. "In short, this appeal is without any merit. As a result, we dismiss it in its entirety," they declared.
Initially, the respondents were tried before the lower court of various offences, including conspiracy, forgery and obtaining registration of company using a fictitious name.
The respondents were convicted of the offences and sentenced to a total of 26 years imprisonment, before being acquitted by the High Court on the first appeal. It was at that point in time when the prosecution took the matter to the Court of Appeal for further adjudications.
In their judgment delivered in Dar es Salaam recently, however, the justices of the appeals court were of the settlement view that the first appellate court rightly acquitted the respondents of all counts as the prosecution failed to prove the charges against them beyond reasonable doubt.
"... the evidence on record is not sufficient to prove forgery, false pretense or uttering false documents. We observe that the trial court did not discharge its duty to address the inconsistencies found on the prosecution eidence which eroded the substance of its case," they said.
The justices further noted that although prosecution witnesses gave contradictory evidence, the trial court did not resolve it to see whether went to the root of the matter, but relied on Mahenge's cautioned statement and writing expert report to conclude that the respondents committed offences.
Prosecution counsel had argued that the evidence contained in the cautioned statement, allegedly confessing in commission of the offences was corroborated with that of hand writing expert report.
However, the justices agreed with the submissions by counsel for the respondents.
In his submissions, the counsel for the respondents had told the court that Mahenge's statement needed corroboration because it was retracted by his client and thus, could not be acted upon to convict the co-accused persons.
"The evidence in (the cautioned statement) could not corroborate what was said by the hand writing expert and the contents of (writing expert report) to hold the respondent liable. In fact, even the expert report on hand writing needed corroboration," they said.
It was alleged by the prosecution that the respondents had forged a deed of assignment, showing that Japanese Company, Marubeni Corporation had transferred the debt of the said 1,086,534,303/27 to a local firm, Changanyikeni Residential Complex, while it was untrue.
The Justices indicated in their judgment to have had time to go through the cautioned and were at one with the High Court Judge that, Mahenge did not confess that he forged the deed of assignment.
Instead, they noted, having been satisfied that the said deed was genuine; the Bank of Tanzania (BoT) Governor authorized payment of the claimed amount, as supported by the Central Bank Director of Banking.
The testimony of the director shows that the said deed was genuine and all the correspondents with Marubeni Corporation were done between the BoT and the company without involving the respondents.
He stated that the BoT wrote a letter to Marubeni Corporation to inquire on the genuineness of the said deed and it was confirmed that the same was genuine and having finalised all the procedures, Governor of the BoT approved the payment in question.
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