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REPUBLIC  ««««««««««««««««««.PROSECUTOR


It may sound odd to start a judgement with credentials of the accused
persons. However, I find it irresistible because the same is a matter of fact
which is now common knowledge. It is a fact that the accused persons are
a part of the intellectual elite of this nation. The first accused person is a
professor of law. He is called Prof. Dr. Costa Ricky Mahalu. The second
accused person is called Grace Alfred Martin. She holds a master degree in
International Relations. They now stand charged with six counts of divers
In principal it is alleged that they conspired and ultimately used documents
to mislead the principal, steal and occasion loss to a specified authority. By
so doing,  it is charged,  they violated the  provision of the Prevention of
corruption Act (herein after the PCA) [Cap.329.R.E.2002], the Penal  Code


(hereinafter the PC)  [Cap.16 R.E.2002] and the Economic and Organised
Crimes Control Act (hereinafter the EOCCA) [Cap.200.R.E.2002] 
The following are the  charges against the accused persons without
describing the offence¶s particulars. The particulars of each offence will be
stated at a later stage to avoid unnecessary repetition of similar things.
The 1st  count is conspiracy to commit an offence C/S 384 of the PC. The
charges in the 2nd, 3rd and 4th counts are similar namely, use of document
containing erroneous material particulars intended to mislead the principal.
The 5th  count  is stealing C/S 265 and  270 of the PC and the 6th  count is
occasioning loss to a specified authority contrary to paragraph 10 of the 1st
schedule to and section 57 (1) and 60, both of the EOCCA.
The Director of Public Prosecutions consented  to both the prosecution of
the accused persons and he issued a certificate of order for trial of this
case, as an economic crime case, in this court  as required under the
EOCCA. According to the consent order the two documents were signed on
25th April, 2007.
After a protracted trial which has lasted for five years and at some stages
the case went up to the Court of Appeal, finally on 8th May, 2012, the trial
was concluded. On 16th  June, 2012 the parties filed their final written
submissions. This paved way for me to determine whether the accused
person are guilty or not.  
The following are  brief  undisputed facts  of this case. I say brief facts
because at this stage I am not  going to allude to all the material facts


narrated by all witness but just  what I  consider to be undisputed facts of
the case. I have chosen to take this course in order to present this case in
a simple form so that even those who are not learned in law can easily
follow. More details about the facts as adduced in evidence by the
witnesses will be given when analyzing evidence in relation to charges in
each count.
The accused persons  were  Public  Servants  of the Government of the
United Republic of Tanzania. Therefore, in terms of section 2 of PCA they
were agents and the Government of the United Republic of Tanzania their
principal. Both accused persons worked at the Tanzania embassy in Rome,
Italy. The first accused person worked as ambassador while the second
accused worked as head of chancellery.
Sometimes in 2000 or 2001 the Government of the United Republic of
Tanzania made a decision to purchase a chancellery in Rome, Italy. By
virtue of their employment the accused persons  together with Steward
Migwano (PW3) were directly involved in the chancellery purchase process.
And in fact PW3 had been charged together with the accused persons. The
charges against him were later withdrawn and he was turned into  a
Finally,  on 1st  October, 2002 the chancellery was procured. It is premises
situated at 185 via Cortina d¶ Ampezzo of CERES S.R.L, a Limited Liability
company whose sole representative was Pagliuca Fiorella. The sale
agreement was signed between the sole representative of CERES S.R.L and


the 1st accused as ambassador on behalf of the Government of the United
Republic of Tanzania.
The decision which building should be purchased was made by the
government of the United Republic of Tanzania vide a letter Ref. No.
FAC/0.40/58/62 dated 11th September, 2001 which is marked (g) in exhibit
The purchase was done through two contracts (exhibit P1 and P6). The
two contracts were executed on the same day and they bear different
prices. The first contract was executed before a Notary Public of Italy one
Marco Papi (PW2). This contract shows that the sale price is Euro
1,032,913.80.  The second contract (exhibit P6) was executed between the
vendor and the ambassador and it is not witnessed by a notary Public. 
This contract shows that the purchase price was Euro 3,098,741.40
According to exhibit P4  which is a bank statement payments  of  the
purchase  price  were  made  on 24th  September, 2002 into two separate
accounts both for CERES S.R.L.  Exhibit P2 shows that payment for Euro
2,065,827.60 was made to account No. 106705 SWIFT CODE: CFMOMCMX
of Monaco and another payment for Euro 1,032,913.80 was deposited into
account No. 2182/51 SWIFT CODE: BROMITRDNOR of Rome.
Upon signing of the contracts and having confirmed receipt of the money,
on 1st  October, 2002, the vendor issued a payment receipt (exhibit P8)
worth Euro 3,098,741.58. Prior, on 23rd September, 2002 the embassy had
issued a payment voucher (exhibit P3)  authorizing payment of Euro


3,098.741.40 to CERES S.R.L. On the same date the embassy instructed its
banker Direzione Territoriale Italia Centrale, to effect payment by transfer
of the said amount of money into the vendor¶s above stated accounts
specifying the amount to be paid in each account. The instruction was
made through a letter (exhibit P.2) which is signed by the 1st  accused as
ambassador, 2nd  accused as Counselor and PW3 as Financial attaché. 
According to exhibit P4, the money was transferred the next date.
It is on the basis of the documents which  were used in the process of
purchasing the Embassy building the accused person now stand charged in
this court. The relevant documents to these charges are exhibits P3, P6
and P8.  Exhibit P3 is subject of the charge in the second count. Exhibit P6
is subject of the charge in the third count and exhibit P8 is subject of the
charge in the fourth count.  The difference of the purchase price in exhibits
P1 and P6 namely Euro 2,065,827.60 is subject of the charges in the fifth
and sixth counts.
The foregoing marks the end of the material evidential facts which are
undisputed.  Let me now give a general summary of the evidence as
presented by the prosecution and the defence. This summary will be
followed by issues for determination basing on the charges in each count.
The prosecution brought in court a total of seven witnesses. These are
martin Lumbanga (PW1), Marco Papi (PW2), Steward Migwano (PW3),
Simon Justin maingu (PW4), Isidory Kyando  Frances  (PW5), Edwin Pius
Mikongoti (PW6) and Abubakar Rajab (PW7). Marco Papi (PW2)  is an
Italian  national. He speaks neither English nor Kiswahili. So he testified


through an interpreter one Evarist John Defiyo who is a Roman Catholic
priest. On the day he gave his evidence in chief he was not cross
examined. Later, his attendance in court could not be easily procured so he
was cross examined through video conference while in Italy.   
The cumulative effect of the evidence by these prosecution witnesses,
without giving details,  is that in the process to procure the Tanzania
chancellery in Rome the accused persons used false documents to mislead
the principal and consequently, they pocketed and occasioned loss of Euro
2,065,827.60.  The basis of the allegation is the use of exhibit P6 which is
an unofficial document which  is unattested. According to exhibit D7 (a
book about sell of  real estate in Italy) such documents are referred to as
³scrittura Privata´. 
Exhibit P6 is the second purchase contract which was signed between the
vendor and the first accused person.  It is this document which shows that
the purchase price was Euro 3,098,741.40. The prosecution, therefore, is
concerned with the use of two separate contracts with different purchase
prices.  Now, despite the foregoing prosecution case¶s general summary,
the following is what, in brief, each prosecution witness said in court.
In his evidence in chief the then Chief Secretary, Martin Lumbanga (PW1)
testified that he did not remember to have authorized the purchase of the
chancellery using two different contracts. Marco Papi (PW2) is the Attorney
General of Rome. In his evidence he said he witnessed the signing of
exhibit P1 only which shows that the purchase price of the building is Euro


1,032,913.80. He denied to have witnessed  the signing of the Scrittura
Privata (exhibit P6)
Steward Migwano (PW3) was the financial attaché  when the chancellery
was purchased. He testified that he signed exhibit P2 and prepared the
payment vouchers (exhibit P3). He also tendered exhibit P4 which is a bank
statement to show that payment were affected by the bank as directed in
exhibit P2. He further testified that when he prepared the vouchers and
signed the documents authorizing payment he had not seen the sale
agreement and he did not even know the contract sum. He came to see
exhibit P1 later on.
PW4 Simon Justin Maige tendered exhibit P.5 which are exchequer issue
notification  to  show how money for purchase of the building were
transferred from Tanzania to the embassy in Rome, Italy.
PW5 is Isidori Kyando  Frances, who is a detective officer from the
Prevention and Combating of Corruption  Bureau (PCCB).  He testified that
in the course of his investigation into this case he discovered that the
chancellery was purchased using two contracts. He tendered exhibit P6
(the scurittura Privata) and  exhibit P7 which is a letter written by the 1st
accused person informing the Government of the United Republic of
Tanzania that the value of the building to be purchased was Euro
3,098,741.38. He said in Italy he met PW2 who told him that the building
was purchased at Euro 1,032,913.80 per exhibit P1. PW5 also tendered
exhibit P8 which is a payment receipt issued by the vendor upon receipt of
the purchase price. Exhibit P8 shows that the vendor was paid Euro


3,098,741.40. From his investigation PW5 concluded that the official price
of the building is that in exhibit P1 and exhibit P6 was prepared in order to
defraud the Government. However,  on cross examination PW5 admitted
that he did not interview the purchaser in order to verify how much money
was paid to her. He also admitted that all the money was transferred into
the vendor¶s  account and there is no evidence that the accused persons
either retrieved the money or withdrew the same.
The next witness is Edwin Mikongoti who gave evidence as PW6.  He
testified that when the Embassy building in Rome was purchased, he was
the Director of Administration and Personnel  (DAP)  in the Ministry of
Foreign Affairs and International Cooperation (MFAIC). He said in that
capacity he was charged with keeping records of all building and whenever
there was a need to purchase a building through the Ministry he was to be
involved.  However, he testified, he was not involved in the purchase of the
embassy  in Rome. It is his further  evidence  that  in all purchases process
where he was involved only one contract was used.  Copies  of  such
contracts are kept by the DAP at the Ministry and originals are kept at the
embassies.  He concluded that at the Ministry there was not the contract
involving the purchase of the embassy in Italy.
PW7 is Abubakar Rajab.  He testified in court that he was the supervisor of
all the building at the MFAIC since 2002. He also testified on the procedure
for purchase of embassy buildings.  He said ordinarily, the process involves
a team from the Ministry visiting  the respective country to see the
earmarked building. Then the team consults local experts who assist  to


evaluate the property in terms of its fitness and value.  After this process,
PW7 testified, his office would prepare a report to the Government. Then a
contract will be signed involving the Ministry of Constitutional and Legal
Affairs. He concluded that in the purchase of  the  embassy in Italy these
procedures were not followed.
PW7 marked the end of the Prosecution¶s case. The following is a summary
of the defence case. The first accused person testified as DW1 and he
called one witness Banjamin William Mkapa who testified as DW2.  The
second accused person testified as DW3. Therefore, the defence evidence
was adduced by three witnesses.
Generally, the evidence for the defence is to the effect that the purchase of
the chancery followed the procedure and the ambassador  obtained the
requisite permission to buy the building using two contracts. DW2 testified
that he was informed about the conditions imposed by the vendor about
being paid through two different bank accounts and he gave a go ahead
because what concerned him was the urgency to have a chancery. DW1
gave an elaborate account on the purchase process.  He said on the issue
of using two contracts he got oral permission from the Chief Secretary
Marten Lumbanga (PW1). In order to support the defence case DW1
tendered several exhibits, which are mostly correspondences letters. I shall
refer to each exhibit at a later stage where necessary.  The evidence of
DW3, as far as material facts are concerned is for all intents and purposes
similar to that of DW1.


Having summarized the gist of the evidence of each side let me proceed to
indicate points for my determination. These points  are based on the
charges in each count. They are:
1.  Whether the accused persons conspired to steal.
2.  Whether the accused person used documents containing erroneous
material particulars intended to mislead the Principal.
3.  Whether the accused person stole Euro 2,065,827.60 the property of
the United Republic of Tanzania
4.  Whether the accused persons occasioned loss to a specified authority
by their willful acts and misconduct which caused the Government of
the United Republic of Tanzania to suffer a pecuniary loss of euro
Before I proceed, let me deal with one issue concerning a decision I made
on 4th  August, 2011 without giving reasons for the  decision. On that day
DW1 tendered exhibit D.2. The prosecution objected to its admission which
objection I overruled without giving reasons. I stated that reasons shall be
given in the main judgment and here are the reasons.
Exhibit D2 is a letter written by the first accused person to the Permanent
Secretary  of the MFAIC.  It  has reference numbers  TER/A.10/1 and was
written on 4th  June 2001. The prosecution objected to its admission
because it is a photocopy. Indeed this document is a photocopy and,
therefore,  it is not admissible under section 66 of the Evidence Act
[Cap.6.R.E  2002] unless it meets one of the conditions specified under
section 67 of the same Act. In this case exhibit D2 was admitted under


section 67 (1) (a) (i) and (iii) of the Evidence Act. This part of the law
67(1) secondary evidence may be given of the existence, condition 
         or contents of a document in the following evidence cases:-
(a)  When the original is shown or appears to be in possession
or power of:-
i.  The person against who in the document is sought
to be proved.
ii.  A person legally bound to produce it, and when
after the notice specified in section 68, such person
does not produce
The first accused wrote exhibit D2 in his capacity as ambassador in the
Tanzania embassy in Rome. It follows,  therefore,  that  its  original  is  in
possession of the Republic either at the MFAIC or at the embassy in Rome. 
In that regard the first accused person is justified to tender a photocopy.
Another reason is that on 29th April, 2009 counsels for the accused persons
issued a notice to produce under section 68 of the Evidence Act which was
filed in court on 30th  April 2009. The notice indicate numerous document
including exhibit D2 which is number 1 in the list.
On 4th day of May, 2009 the Republic replied that it has not in its custody
any of the documents listed. I have no doubt in my mind that the Republic
was not upfront about its reply. It is not true that the Republic had not all
the documents listed.


Two examples suffice to support my point. In the list of documents
requested by the defence a letter Ref. No. TER/A.10/1 date 20th February,
2002 is listed at number 14. This document was tendered by the
prosecution as exhibit P7.   Another letter Ref.No.TEF/C.40/9/26 dated 05th
March, 2002 which in the list is number 16 was tendered as exhibit P9. 
Where did they come from? If the Republic wished to use them as exhibit a
polite reply that the documents will be tendered in court would have
served the day. It is my finding, and I so hold that on the issue of
documents to be  tendered  to support evidence in this case, the Republic
have been playing the children¶s game famously known as ³hide and seek´. 
I will come to this point again at a later stage.
Upon conclusion of the trial the parties made their closing speeches under
section 233 of the Criminal Procedure Act [Cap 20 R.E.2002].   This was
done by way of filing written submissions.  The submissions were filed on
the same day and both parties complied with the schedule. At this
juncture, let me comment briefly on the submissions filed, particularly the
submission filed by the defence counsels. However, since  I have not
recognized the parties¶  representation,  it is pertinent now  to introduce
lawyers who have been locking horns.  The prosecution was led by Lukosi,
learned  Principal  Stated Attorney insisted  by Haule, Senior  State  Attorney
and Benny, prosecutor from the (PCCB). The first accused person is
represented  by Marando,  learned  senior  advocate  who is lead counsel
assisted by Mgongolwa, advocate. The second accused person enjoyed the


professional service of C. Tenga, advocate as lead counsel assisted by
Malima, learned advocate. 
The  joint  submission filed by counsels for the accused persons has  given
me a good reading because it has mingled poetry in legal writing.  The
learned counsels have presented their points in a ³poetic´  way through
regular repetition of words. If I may be permitted to guess the reason, I
can surely say they aimed at emphasizing their points. For example,
counsels  have submitted that in order to convict the accused persons,  I
must be sure they (accused  persons) committed the offences charged.
Then at page 2 of the submissions they emphasize their point thus:-
³Your honour, you must be sure, sure. Not suspicion. Not suspicious.  
 Not probably.  Not probability. Sure certainty. That is the law. That  
 is the test´
If my guest that this has been done for emphasis purpose is correct, then
the learned counsels have over done it. This is because upon reading their
submission I have understood, through the above quote that  they are
emphasizing a well known principle that it is upon the prosecution to prove
the charge beyond reasonable doubts.  On this principle Justice Rutakagwa
(as he then was), in the case of Republic vs.  Kerstine Clifton
Cameron,  Criminal session No. 51/2000, High Court Arusha registry
(unreported)  held that ³this is a universally accepted principle of law which
needs no authority to prop it up´


The prosecution also has dwelt in length on the same principle. They have
cited the authority in the case of Magendo Paul & Shaban Benjamin
VS Republic, criminal Appeal No. 19 of 1993 CAT (Unreported) where it
was held that the  ³standard of proof beyond reasonable doubt  does not
extend to remote doubts and fanciful possibilities´.  It suffices to say  here
that I am grateful to both the prosecution and the defence for reminding
me about this elementary principle of criminal law. Let us move to the real
I have said each issue framed correspond with a particular count in the
charge sheet save for the second issue which cover the 2nd, 3rd  and 4th
counts. I  will deal with the issues one after another. It is on dealing with
these issues  where I will deal  with the evidence and  the submissions  in
I will start with the first issue which concerns the charge in the first count. 
I have already said that the first count is about conspiracy. The particulars
of the offence are that the accused person and others who are not before
this court, on divers dates and places within Italy and Tanzania and other
places in the world, did conspire together with intent to commit an offence
to wit, stealing from the United Republic of Tanzania.
I have indicate somewhere herein above that the charges centre  on the
use of two contracts (exhibits P1 and P6) to purchase the chancery in Italy. 
In the prosecutions  written submissions at page 15 they have submitted


³If the issue of using two set contracts could have been made for a
good purpose, the vendor could have formerly informed the accused
persons the reasons for that request or the accused persons could
have insisted for a formal request with reasons as they insisted for a
written illegal contract (exhibit P.6) as they allege, absence of such
request makes this Honourable court and any other reasonable
person not to think otherwise than  to confirm conspiracy to either
evade tax as suggested by PW2 and exhibit D.7 or to swindle  the
extra money from the Government´
In their submissions defence counsels have argued (page 5) that the facts
in evidence do not disclose a secret plan between the accused persons to
steal the sum of Euro 2,065,827.60 from their principal because common
intent purpose, agreement or thought between the accused persons  has
not been proved. To support their argument the learned counsels  have
quoted the definition of conspiracy from the Black Law Dictionary and the
Law Lexicon. The definitions from the two books suggest that conspiracy is
about agreement by two or more person to do an unlawful act. The
agreement of the two minds is what constitutes  the  ³mens  rea´ and the
agreement or plan itself constitute the ³actus reus´. If the offence is
actually committed that is mere manifestation or evidence of it.
Therefore, mere agreement to act unlawfully constitutes  an offence  of
conspiracy. It does not matter whether the mission was  accomplished or


In the case of John Paul @Shida & another Vs the Republic, criminal
Appeal No.335 of 2009 Court of Appeal, it was held that  conspiracy is an
offence in its own right. It has its own ingredients which must be proved. 
What are those ingredients? They are three namely; an agreement of more
than one person to do unlawful or a lawful act by unlawful means and the
person charged must be part of the agreement. All the three ingredients
must exist in order to prove a charge on conspiracy. It is upon the
prosecution to prove.
Before I consider whether conspiracy,  based on evidence on record, has
been proved or not let me see if the conspiracy charge can stand together
with the offence of  stealing. I have found this issue pertinent because in
the particulars of the offence it is stated that the accused persons
conspired to steal. Further, I have raised this issue because in the course
of preparing this judgment I came across the decision in John Paul¶s case
In John Paul¶s case the issue of charging conspiracy as a cognate offence
was discussed. The accused  persons had been charged with conspiracy
and armed robbery in the same charge. There was no evidence at all to
establish  that the accused persons sat, met or communicated together
somewhere and conspired to commit the offence of armed robbery. The
evidence on record related to the offence or armed robbery without more.
Since in conspiracy count it was alleged that the accused persons conspired
to commit armed robbery the Court of Appeal held that conspiracy was a
cognate offence to armed robbery and it was not proper to prefer the two


counts in the same charge. It was further held that in such a situation once
armed robbery is proved the conspiracy count ought to have died a natural
In this case it is charged that the accused persons conspired to steal. 
Therefore,  if the stealing count is proved, the  conspiracy count will die a
natural death.  It is crucial, therefore, that I have to consider the charge
relating to stealing first.
This takes me to the fifth count. In this count the particulars of the offence
alleges that on or about 1st October, 2002 at Tanzania Embassy in Rome,
Italy the accused persons did steal euro 2,065,827.60, the property of the
United Republic of Tanzania.
I have indicated somewhere,  herein  above;  that the amount alleged to
have been stolen is the deference between the purchase price mentioned
in exhibit P1 and that one mentioned in exhibit P6. I have also said that
this count concerns the third issue for my determination.
Did the accused persons steal the said money? The prosecution evidence
over the issue is not straight forward.  In Kerstine¶s case (supra) Justice
Rutakangwa (as he then was) was faced with a situation where the case
for the prosecution was based on disjointed factual story.  Addressing such
a situation he said:-
³I must confess ought right that the facts upon which the 
   prosecution case is based do not admit of easy abridgment´


I wish to borrow those words and make them mine. If it was the law that
the accused persons need to prove their innocence I would have used the
same words as far as their case is concerned. But, since that is not the law,
let me just say that in the context of the counts in the charge sheet, the
facts upon which the prosecution case is founded do not admit of easy
The  prosecution¶s  case is predicated on circumstantial evidence. There  is
no direct evidence which shows that the accused persons stole the money. 
The evidence available which is based on documents used to purchase the
chancery is evidence of that nature  which  just  suggest that the accused
person possibly stole the money. It is for this reason I say that the
evidence is circumstantial.  The principle on the applicability of
circumstantial evidence is now settled. That is that to ground a conviction
on such evidence the same must be incapable of more than one
interpretation. Hassan Fadhili V.R [1994] T.L.R 89.
Let us examine the evidence. I have said the chancery was bought using
two contracts. This is undisputed facts. It is the defence case that this was
done because it was a condition imposed by the vendor. DW1 testified that
in Italy it is a common practice that vendor would always demand
preparation of two contracts. These are  the  official one which will be
signed and registered bearing the official  price and the other one which
would bear the commercial price. The second one  is an agreement made
without use of assistance of the government and PW2 testified that such
contracts are done clandestinely.  I think this testimony of PW2 melts the


challenge posed by the prosecution in the passage I have quoted above in
their submission on the issue of conspiracy. The prosecution alleges that if
it was a condition imposed by the vendor the accused person would have
demanded for a formal request from the vendor. However, things done
clandestinely cannot be done formerly. It remains to be seen if accused
persons¶ engagement with clandestine things constitutes a criminal offence.
A document of such nature is referred to as scrittura privata. DW1
tendered a book authored by Tobias Jones entitled  ³The Dark Heart of
Italy´ which was admitted as exhibit it D7.  The book speaks of prevalence
of this practice in Italy and for purposes of this case the court was referred
to pages 139-140 of the book.
The prosecution has taken issue with the practice which forms the base of
these charges. The reasons for  the disagreement can be discerned from
the evidence of PW6, PW7 and PW5. PW6 and PW7 were officials in the
MFAIC. PW6 was DAP while PW7 was supervisor of building in MFAIC. The
cumulative effect of their evidence is that procedures were violated in the
process for purchase of the chancery in Italy. On the procedure PW6 and
PW7  said that once the building to be purchase is identified, a team of
experts would be sent to inspect the building before the principal secretary
could send the money for payment and only one contract is involved and it
is signed by involving the Ministry of constitutional and legal Affairs. At the
respective area a team of experts sent would consult their local counter
parts. They gave examples of purchase of chanceries in Lilongwe,
Kampala, London and in the USA.


PW5 who is an investigator said the accused persons have been charged in
court because they cheated to have bought the chancery at the price of
Euro 3,098,741.40 while they bought it at Euro 1,032,913.80. Therefore,
PW5 concluded they pocketed  Euro 2,065,827.60. The evidence of PW5
that the chancery was bought at Euro 1,032,913.80,  tallies  with that of
PW2, the Attorney General of Rome who attested exhibit P1. 
To fortify his argument PW5 also tendered exhibits P6,  P7 and PW9. 
Exhibit P7 is a letter with Ref. No.TER/A.10/1 dated 20/07/2002 written by
the 1st accused person to the principal secretary MFAIC.  In this letter the
1st accused person was telling the principal secretary MFAIC that the price
of the building is Euro 3,098,741.38.  Exhibit P9 is a letter with Ref. No.
TER/C.40/9/26 dated 5th  march, 2002 also written by the 1st  accused
person to the principal secretary MFAIC. In this letter the ambassador was
requesting for extension of the period of stay in Rome of one Paul Nyotoka
so that he can accomplish  the valuation report of the building. Therefore
PW5 concludes, if exhibit P9 was written after exhibit P7, then the price of
Euro 3,098,741.40 mentioned therein was false  because according to
exhibit P9 the evaluation had not been done.
On cross examination PW5 testified that the accused person in their
caution statement did say that  they were authorized to use two contracts
by the chief secretary which fact was denied by the chief secretary who
testified as PW1. He was emphatic that he never authorized the use of two
contracts. This denial was termed by the 1st accused person in his defence
as a lie under oath.  On further cross examination PW5 testified that he did


not interview the vendor to ascertain the actual payment she received. He
also admitted that according to exhibit P3 the vendor received Euro
3,098,741.40 and there is no evidence to indicate that the vendor was paid
Euro 1,032,913.80. He further admitted that payment vouchers and bank
records show that Euro 3,098,741.40 was transferred into two accounts of
the vendor and there is no evidence that the accused person did go to the
bank and retrieve the said money.
From these facts, it would seem that the prosecutions conspiracy theory is
based on the mere use of two contracts. I will not be prepared to buy their
theory unless and until I am convinced beyond reasonable doubt that the
use of two contracts to purchase the chancery  by itself constituted a
criminal offence.
I have found this issue to be germane to the facts of this case even if both
sides in their evidence have brushed it aside with the contempt it does not
deserve. The parties have concentrated on the issue whether there was
permission to use two contracts or not. I do not think this is a relevant fact
under the circumstance of this case. This is because if use of two contracts
is an offence no permission can legalise it except by change of the relevant
It is understandable why the prosecution did not pursue  or present
evidence relating to this issue. This is because, in my opinion, tackling this
case from this angle leads to an inevitable conclusion that there was not a
need to charge. However, I cannot fathom of a reasonable explanation for
the defence lawyer failure to appreciate the importance of this issue. They


also fell into a trap to think the issue is whether or not there was
permission to use two contracts. Let me remind the parties that  here we
are dealing with a criminal charge and not a civil suit. I have already held if
the use of two contracts is a criminal offence it shall so remain and no
permission to authorize criminality will ever be accepted or tolerated.
In dealing with this issue let me start with the conclusion and reasoning of
the investigator (PW5). He testified that since the price in exhibit P7, which
turned out to be the purchase price per exhibit P6, was mentioned before
exhibit P9 was written, then there was no base for the price hence the
conspiracy between the vendor and the accused persons. Well and good. 
But if the evidence on record is thoroughly analyzed  the argument
becomes self defecting. Here are the reasons. 
I will start with reverting to the hide and seek theory I have referred to
earlier as far as documents tendered are concern. The prosecution would
want us to believe that the price named in exhibit P.7 was arbitrary without
a sound base. The contrary is true. Exhibit P7 is self explanatory that it had
several annextures to support the contents therein. These are letters which
are listed as ³viambatanisho (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) and (k). 
Other annextures are listed as  ³vivuli vya ³valuation reports´ and they are
listed as (A) (B) (C). Further, the letter ends with this sentence  ³N.B´:
Valuation Report´ yetu ilikuwa ni msingi wa makubaliano (sic) ya bei ya
kulinunua jengo hilo´
For reasons not explained by the prosecution exhibit P7 was tendered
without these annextures. This was done notwithstanding that the defence


had tendered a notice to produce which was replied to that the Republic
does not have those documents. It is these annextures which the defence
tendered as exhibit D3. They were admitted despite being copies and being
objected to by the prosecution. Interestingly, during admission of exhibit
D3 the Republic made the following admission:-
³Your honour this bundle indeed contains photocopies. However, it is
not that we do not have all the originals. Some of the originals are
there. We actually cross checked and got some of the originals. I
have gone through the documents and they are okay´
It is the same Republic which in their reply to the notice to produce had
said that the Republic is not in possession of the list of document which
has been annexed to the notice to produce by counsels for the accused
persons for reason that the Republic is neither the custodian nor the author
of the list documents.
In the course of preparation of this judgment is when I realized that the
Republic  might have deliberately removed the annextures to exhibit P7
because submission of exhibit P7 in compete form would have been
tantamount  to a technical error  of  disclosing the fallacies upon which its
circumstantial evidence is based.
It is a fallacy to argue that exhibit P7 and P9 are in conflict and they do not
support each other. Indeed exhibit P7 was written before Paul Nyotoka
prepared  the valuation report  if any. This beside, the price named in


exhibit P7 had a base in the valuation reports  done by the vendor, the
embassy and the report prepared by Kimweri. This is how it started.
Vide a letter marked (a) in exhibit D3 the embassy reported that it had
started to look for a suitable building to be purchased for a chancery. The
MFAIC replied that it would send a valuer to Rome once the embassy
reported that a suitable  building has been located. This was vide a letter
marked (b)  in exhibit D3. Vide a letter marked (c) in exhibit D3 the
embassy reported that the buildings proposed for purchase has been
earmarked and the embassy was ready to receive the valuer.
On 2/7/2001 the MFAIC vide a letter marked (d) in exhibit D3 demanded
the price for the earmarked buildings so that necessary arrangements
could be done before valuers were sent. On 9/7/2001 the embassy
reported prices for three building per annexture marked (e) in exhibit D3. 
The price for the building which was finally purchased (via Cortina  d¶
Ampezzo) was said to be Italian Lira Six billions. According to DW1 by this
period Euro had not yet become the official currency of continental Europe. 
It would seem upon receipt of this letter one M.T. Kimweri was dispatched
to Rome to inspect the building.
He prepared a report which is marked (A) in exhibit D3. On 30/8/2001 vide
letter marked (F) in exhibit D3 the embassy instructed one Pasqual Giorgio
to do necessary search in respect of the building. Finally, one Augustino
Bruni presented a  valuation  report which indicated that the price of the
building could be negotiated between Euro 2,840,512/94 up to Euro
3,098,741.39. The report is marked (C) in exhibit D3. In his testimony DW1


said they requested this information as a counter proposal to the valuation
report presented by the vendor which put the price at Euro 5,741,451.34. 
The report of the vendor is marked (B) in exhibit D3. Vide a letter marked
(g) in exhibit D.3 the MFAIC informed the embassy that it had decided to
purchase the building at via Cortina d¶ Ampezzo 185-Rome. Then it ordered
the embassy to commence negotiation with the vendor about the price. It
would seem pursuant to these instructions the embassy negotiated the
price at Euro 3,098,741.40. It is this price which is mention in exhibit P.7.
Therefore, exhibit P.7 was written based on these facts.  
The bottomline is the last sentence in exhibit P.7 which I have already
quoted  saying  the valuation report commissioned by the embassy formed
basis for the negotiation of the price. DW1 testified, and it is undisputed,
that this valuation was done to counter that of the vendor.  Unlike the
report by the vendor which pegged  the price at Euro  5,741,451.34 the
same pegged it at from Euro 2,840,512.94 to 3,098,741.39. And finally the
deal was stuck at Euro 3,098,741.38. 
It would seem upon receipt of exhibit P7, the MFAIC sent one Nyotoka to
make another valuation. No evidence has been tendered as to why this
was done while M.T.  Kimweri¶s report was already there. For the sake of
argument I assume that what PW7 said about Kimweri is true. He testified
that Kimweri is architecture  and not a valuer. So I conclude that Paul
Nyotoka was sent as a professional valuer. However,  what baffles me is
that his valuation report has never been tendered in court. This report is
relevant as far as these charges are concerned. This notwithstanding I find


solace in the testimony of PW7 who said Nyotoka valued the building at
Euro 5,000,000/=. If this is true, it is my view, and I so find, that by not
producing this document, the Republic was praying again the hide and
seek game because such a report could not further their course.
Up to this juncture it is abundantly clear that exhibit P7 and P9 are not in
conflict at all. They were written for different purposes and they are not
interdependent.  In view of the foregoing the reasoning of the investigator
that Exhibit P7 and P9 are conflicting has been proved to be neither self
sustaining nor can it be substantiated by documents available. To this end
one of the theory upon which the prosecution case is founded crumbles.
Now I go back to the issue of use of two contracts. On this issue the
prosecution has tried to show that the ambassador did so without
permission. The defence side has tried to show that the ambassador had
permission of the chief secretary. The chief secretary (PW1) was
unequivocal that he never issued that permission. I have said this issue is
irrelevant. The real issue is whether the entering into two contracts formed
a criminal offence. These are the reasons. 
Exhibit D.5 contains a special power of attorney which appointed the first
accused person so that for and on behalf, in the name and interest of the
United Republic of Tanzania, he purchases from CERES-Societa a
Responsabilita Limitata (Limited Company), with registered office in Rome,
185, via Cortina d¶Ampezzo. It should be remembered that vide a letter
Ref. No. FAC/0.40/58/62 dated 11/09/2001, the embassy was ordered to
negotiate the price with the vendor. Vide exhibit P7 the embassy reported


that the price had been negotiated at Euro 3,098,741.38. According to
exhibit D5, a letter Ref. No. TER/A20/1 dated 24/3/2004 the special valuer
from the Ministry of Land and Human Settlements  Development calculate
the value at USD 5.5 Million. Reasonably, this special valuer is Paul
Nyotoka. PW7 testified that Nyotoka valued the building to be worth Euro
5,000,000. In exhibit P7 the 1st accused also requested to be given power
of attorney to purchase the building. The power of attorney was signed by
the donor on 24th September, 2002. The question which follows is at what
price the 1st  accused person was authorized to purchase the building  for
which power attorney was granted? The whole evidence suggests  no
alternative price  than that mentioned in exhibit P7. It follows,  therefore,
that MFAIC knew that the purchase price was Euro 3,098,741.38. That is
why they transferred this amount for that purpose. PW3 testified that the
money was received at the embassy in three installments that is in March,
2002, July, 2002 and August, 2002. PW4 tendered exhibit P5 which are
exchequer issue notification showing transfer of funds to the embassy. For
the foregoing I hold that the 1st  accused was authorized to purchase the
building at the price reported in exhibit P7. If this was not the case the
government would have replied to exhibit P7 in the negative and it would
not have transferred the equivalent sum for payment to the vendor. 
Up to this juncture the mystery of using two contracts is unsolved. I have
gone through the whole evidence on record and I have failed to trace a
scintilla of evidence which directed how, upon being granted the power
attorney, the 1st  accused should enter into the purchase contract. PW7


testified that the practice in the MFAIC was to use a single contract. 
Therefore,  it was wrong for the 1st  accused person to use two contracts.
Indeed it may be wrong but is that act unlawful to constitute a criminal
offence?  If yes, what is that offence in our criminal law books?  I do not
know any and that is why I have held that the 1st accused did not require
obtaining a permission to use two contracts. The use of two contracts was
just a modality towards purchasing the building depending on the market
It is my considered opinion that once the government agreed upon the
purchase price, released the funds and gave the power of attorney to the
first accused person, the modalities of payment was subjected to contract
practices which prevailed in Italy. DW1 testified that the practice in Italy in
real estate market is of negotiating two contracts. The first one containing
the official price and the second one with commercial price. The contract
with official price is for registration and transfer process. It ordinarily
carries a lesser sum than the actual price which is entered in the contract
containing actual price. These are the conditions to which the vendor
subjected the first accused person. DW2 testified that the wishes of the
vendor were such that the country could grant and that is why he
consented to payment into the vendors separate accounts. This evidence is
The prosecution has submitted  that the use of two contracts aimed either
to swindle the money or to avoid tax. I agree on the later aspect. By any
stretch of imagination this practice is always aimed at avoiding tax. Even


PW2 said that Italians are reluctant to pay taxes. For that matter it is the
vendor who avoided  tax because the embassy had obtained a tax
exemption. So in strict terms by signing two contracts, the embassy
facilitated the vendor to avoid tax. However, as argued by DW2, matters of
tax avoidance are a problem of the Italian government. The interest  of
Tanzania was to obtain the building at the agreed price.  On the issue of
swindling the money there is no evidence to show that the money came
back into possession of the accused persons.
I would have ended here but I shall proceed for the sake of completeness
and to quench  the prosecution¶s thirsty. PW6 and PW7 testified on the
practice for purchasing buildings in the MFAIC. I have referred to these
practices when I summarized the evidence of these witnesses. However, I
cannot avoid repeating them here.  These are that the embassy identifies
the building and sends  the request for  purchase to the MFAIC.  The
management would sit to approve the request and form a team under an
official  team  from the Ministry to go and inspect the building, evaluate it
and then present a report to the government.  Based on this report the
government  enters into contract involving the Ministry of Constitution and
Legal Affairs. According to PW6 and PW7 these procedures were not
With respect I am surprised these words came from mouths of very senior
government officials.  How were the accused persons who were in Rome,
Italy concerned with practices and procedures which had to be complied
with at the MFAIC?  Who did not follow these procedures if not official at


the MFAIC including PW6 and PW7? Again let me remind everyone that this
is a criminal charge and if the said practices and procedures are laws they
were not breached by the accused persons in this court.
In light of the evidence on record for an official of the MFAIC to say that in
the process to purchase the chancery in Rome procedures were not
followed is like pulling the trigger of a cocked pistol with a barrel pointing
at your chest. Follow me on this:-
One of the procedures  was for embassy to send a request to the MFAIC. 
There is uncontradicted evidence of DW1 that he reported the need to
have chancery to the permanent secretary MFAIC one Kibelo.  There is also
uncontradicted evidence of DW1 that in December, 2001 the then Minister
for the MFAIC his excellence Jakaya Mrisho Kikwete visited the embassy in
Rome and appreciated the fact there was a need to get a building which
could reflect the face of Tanzania in Italy. The same matter was discussed
in Brussels between  the  ambassador  (DW1)  and DW2. In my view these
three incidences involving two top leaders of the MFAIC and the President
of country constitute enough requests.
The other procedure is that the request would be discussed by the
Management. There is no evidence if this was done. This gap in evidence
leads to one important question; that if this process was not followed who
appointed and sent M.T. Kimweri to Italy? I wish he was not sent by error!
How about Paul Nyotoka? It may sound good if I assume he was sent on a
tour in Rome and that is why it is unknown he prepared a report thereof or
not. The bottom  line is PW4 came to testify  on how the money for


purchasing the chancery was transferred to Italy. He however, failed to tell
us who authorized such payments. He also failed to tell the court,  if the
lawful payment was per exhibit P1 in exclusion of exhibit P6 why the
transferred money was equivalent to exhibit P6? The list of questions may
be long but I rest it there to turn to another more practical issue.
This time I assume that all the procedures at the MFAIC were violated. 
According to PW6 and PW7 the  procedures are  complied with at the
Ministry. The accused persons were at the embassy in Italy. There is no
evidence that they  interfered with the compliance with the procedures at
the Ministry. On cross examination PW7 categorically stated:-
³In our findings the procedure of procurement was not complied
with.  This was because the relevant persons were not involved for
instance up to now there are no any Minutes concerning the process
for the purchase of the said building´
This  evidence is highly controversial. Firstly,  it does not underscore the
procurement  procedures which were to be complied with. Secondly,  two
entities were involved in the procurement process  if any. These are the
embassy and the MFAIC. The evidence of PW7 does not state which entity
did not comply with the procedures. If compliance was to be done at the
embassy, I wonder if Tanzania¶s procurement laws could apply in Italy. If
compliance was at the MFAIC the accused persons are not the responsible
officers. To say the least, with all the deserving respect, the evidence of
PW4, PW6 and PW7 as far as the procurement processes are concerned
does not further the prosecution¶s case. Mind you, the accused persons are


neither charged of abuse of office nor violation of procurement laws. So I
hold that by signing two contracts the first accused person did not violate
any law. He did it to meet the agreement between the vendor and our
country per the circumstances prevailing in Italy.
I think I have not answered the issue whether the accused stole the
money. I have held that mere use of two contracts did not constitute a
criminal offence unless it is proved beyond reasonable doubts that such act
led to stealing. To prove stealing in this case two things must be
established. The first one is that the account into which the allegedly stolen
money was paid into belongs to the accused persons. Secondly,  that the
accused person did use that money for their personal gain.
Let me say outright that there is no evidence at all to substantiate the
second issue. What I find in the prosecution¶s evidence is an admission by
PW5 that after the Euro 2,065,827.59 was transferred into the account in
Monaco, there is no evidence that the accused person retrieved the same.
What about ownership of the account into which the money was
According to PW3 the Euro 2,065,827.59 was deposited into account No.
106705 of SOC.CERES S.R.L. It is not in dispute that this account is in
Monaco and in their written submissions the Republic has submitted that
Monaco is a safe haven for tax evaders. This may be true but words
spoken from the bar are not evidence.


PW3 testified that the owner of the building is CERES S.R.L. Since the
money was paid to SOC.CERES S.R.L then it was paid to a different person. 
What makes PW3 to feel the account belongs to a different person is the
word SOC. In his evidence DW1 countered this argument in the following
³Yes, according to exhibit P2 the money was sent into two different
accounts.  These are accounts for the same company. The difference
in names appears at paragraph (A) where it is written SOC.CERES
S.R.L. SOC is an abbreviation for society which in French represents a
company.  The account in paragraph (A) on exhibit P2 is in Monaco
where they speak French. So the abbreviation SOC is used to stand
for the word company´.
While the evidence of PW3 over the issue seems to be based on
assumption, the evidence of DW1 is based on knowledge. It is a credible
explanation. The evidence of DW1 was not countered and I find the same
reliable.  I therefore,  hold that the account where Euro 2,065,827.60 was
credited belongs to the vendor. The prosecution never interviewed the
vendor to know if  she  received the same or not. All PW3, DW1 and DW3
testified that the money reached the intended destination. So, since there
is no evidence that the accused person retrieved the money, the offence of
stealing cannot be proved. The third issue is answered in the negative.
This takes me to the fourth  issue which concerns the 6th  count. I have
decided to deal with this issue immediately after the third issue because
the same are interrelated. The fifth count is about occasioning  loss to a


specified authority. The relevant offence under paragraph 10 of the first
schedule to the EOCCA states that ³any person who whether or not he is
an employee of a specified authority by any willful act or omission or by his
negligence or misconduct or by reason of his failure to take reasonable
care or to discharge his duties in a reasonable manner, causes  any
specified authority to suffer a pecuniary loss ... is guilty of an offence ...´
The pecuniary loss alleged to have been occasioned is Euro 2,065,827.60. I
have already said this amount is the difference between the amount
started in exhibit P1 and that which is stated in exhibit P6. The issue is did
the accused person in executing exhibit P6 act negligently and occasioned
the loss?   Let us go to evidence. All along DW1 and DW3  has asserted
their innocence.  DW1 testified that when he acted he had the countries
interest at his heart. In a letter to one Pasqual Giorgio which is marked (f)
in exhibit D3, DW1 addressed this lawyer in Rome in the following words:-
³While following instructions from the government of the Government
of the United Republic of Tanzania I am confident that you as a
friend of Tanzania, will have the interest of the United Republic at
heart, during the entire transaction.´
DW2 described DW1 as a diligent worker, a fair leader and an educated
man with impeccable integrity. On cross examination it was put to him that
DW1 benefited from the chancery purchase process.  His reply was that he
was surprised to hear that because he has no doubt about DW1¶s integrity.


Let me say something about PW2 before I proceed with other issues. Upon
assessing his evidence I have reached a conclusion that PW2 was very
honest in his testimony. I can dare to say he knew why he had to come to
court. He had to come to tell the truth and he spoke the truth. In his
evidence in chief and on cross examination he maintained that he knew
nothing about the two contracts. He said what he was informed about  is
payment into two accounts.  In their submission the prosecution has
submitted that the testimony of DW1 and DW2 is evidence of desperate
men who deliberately try to evade justice. With respect this is not true. If
DW2 was a desperate man he would have just danced to the wrong tune
of thinking that the issue was permission to use two contracts and he
would have, ³out of desperation´ simply said that. However, he just spoke
what he knows and I can  dare to say this comment against him is unfair.
In this case the issue of paying into two accounts is critical.
Let us proceed. In their written submissions the Republic has submitted
that character evidence is admissible substantially only on a  ³pertinent´
(sick) character trait.  They  have  submitted further that general character
for being a law abiding person is not pertinent. I agree with this
submission as far as relevance of character evidence is concern. However,
I do not agree that evidence of character is not pertinent in this case.
These are my reasons.
According to exhibit D5  the special valuer estimated the value of the
building at Euro 5.5  million. I believe this special valuer  is Paul Nyotoka
who is referred to in exhibit P9. I have already indicated that his report


was not produced in court. PW7 testified that according to Nyotoka¶s report
the estimated value was Euro 5,000,000/-
The vendor¶s  valuation report pegged the price at Euro 5,741,451.34. 
Finally the building was purchased at Euro 3,098,741.40 per exhibit P6 and
P8. The prosecution disputes this fact  for the only reason that the official
contractual document exhibit P1 indicates  a lesser value. They ignore the
testimony of DW1 that they were forced by circumstances to execute
exhibit P6 in order to buy the building at a cheaper price. Brushing aside
the argument as to why exhibit P6 was executed with the contempt it does
not deserve is being indifferent to  the accused person.  If the 1st  accused
person¶s integrity was questionable he would have signed the contract per
the valuation by Nyotoka and shared the benefits with whoever is privy to
the deal. He never did that and that is why I find evidence as to  his
character relevant.
I have assessed the evidence on record and I am satisfied that in Italy
transactions in real estate are dominated by black market conditions. This
is a fact from the testimony of DW1 which I find to be credible. Exhibit D7
supports  this position. This is a book, as DW1  put it, which is none
fictional.  It is a factual book which tells the situation on the ground. Now,
where even the valuation by a government valuer who was sent specifically
for that purpose put the price higher  than that at which it was bought,
higher for almost Euro 2,000,000,  what loss did the accused persons
occasion? I find their only sin to be the use of two contracts. However, not
only they did so for a good cause but also  that act in itself did not


constitute a criminal offence. It would have formed a criminal offence if the
price in exhibit P6 was above the valuation report or evidence is tendered
that the money did not reach the vendor or was paid to another person
other than the vendor. Neither of the two is true.  The forth issue is
answered in the negative.
This takes me to the second issue which concerns the 2nd, 3rd  and 4th
counts.  In these counts it is alleged that the accused persons used
documents containing erroneous material particulars intended to mislead
the principal. These documents are exhibit P.3 (payment vouchers) exhibit
P6 (the scrittura privata) and exhibit P8 (the payment receipt). I will be
very brief at this stage.
These  documents  are what support the payment of Euro 3,098,741.40 to
the vendor. My finding in respect of these payments is that they are the
actual payments which went to the vendor. For that matter these
documents does not contain any misleading particulars. The charges based
on these documents would have been relevant if any or both charges in
the 5th  and  6th  counts  were proved. Lack of such proof renders the
document genuine and the transactions involved proper. The 2nd  issue is
therefore answered in the negative too.
It should be remembered I have not decided on the first issue. I have
found and held that where conspiracy is charged together with another
offence and, therefore, a cognate offence it dies a natural death if the main
offence is proved. In this case the main offence is stealing which has not
been proved hence the need to assess if conspiracy has been established. 


I have gone through the whole evidence and I have failed to notice a
scintilla of evidence that the accused person did sit anywhere in the world
and agreed to commit an offence. For this reason the first issue is also
answered in the negative. 
Finally, let me say I have failed to appreciate why the second accused was
charged and that is why, throughout in this judgement,  I have refrained
from touching on her evidence in defence. In conclusion, I hold that the
prosecution has failed to prove the charge beyond reasonable doubts in all
counts and both accused persons are hereby acquitted  of  charges in all


Coram:  Hon. I.C. Mugeta ± SRM
S/A: Vicent Haule SSA assisted by Rizy Kiria from PCCB
Accused:  1st accused ± Present
    2nd accused ± Present
CC:    Caroline


Advocates:  Marando and Mgongolwa for the 1st accused person and
Malima and Tausi for the 2nd accused person.

Court:  Judgment delivered.
Sgd:  I.C. Mugeta ± SRM
ORDER: Right of appeal fully explained
Sgd:  I.C. Mugeta ± SRM

Chanzo:www.katabazihappy.blogspot.com ;Agosti 9 mwaka 2012


Anonymous said...

Thank you Happiness for this judgment.

I notice a few grammatical errors in the judgment. I am sure if the Magistrate had been a little bit more attentive about the use of language, these errors would not have made their way to the final judgment. This could simply include proofreading the judgment before it was released.

Save for this anomaly, I find the judgment well reasoned.

S. Materu

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Anonymous said...

The judgment is well reasoned, and also prosecution side did not prepare well on this case.

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