Mugishagwe
JF-Expert Member
- Apr 28, 2006
- 300
- 58
JUGDEMENTS OF AMATUS LIYUMBA
IN THE RESIDENT MAGISTRATES COURT OF DAR ES SALAAM
AT KISUTU
CRIMINAL CASE NO 105 OF 2009
REPUBLIC
VERSUS
AMATUS JOACHIM LIYUMBA
JUDGMENT OF THE COURT
BEFORE : - L.M. MLACHA, PRM B.B. MWINGWA, SRM
AMATUS JOACHIM LIYUMBA, the accused person was referred to this court with a charge with two counts. The first count has a charge of Abuse of office c/s 96(1) of the Penal Code (Cap 16 of R.E., 2002). The second count has a charge of occasioning loss to a specified Authority c/s 284 A (1) of the Penal Code (Cap 16 RE 2002). At the closure of the prosecution case, the accused was seen as having no case to answer on the second count.
He was seen as having a case to answer on the first count and was put to his defence.The particulars attached to the first count were that, Amatus Joachim Liyumba, on diverse dates between the year 2001 and 2006, within the City and Region of Dar es Salaam, being a person employed in Public service, serving in his official capacity as Director of Personnel and Administration with the Bank of Tanzania, did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania Christened 10 Mirambo Office Extension Project and implementing the same, an act which was prejudicial to the right of the Board of Directors of the Bank of Tanzania.
The Republic called 8 witnesses while the defence summoned 2. The Republic was lead by Mr. Juma, Senior State Attorney.He was assisted by Mhangamila State Attorney, Ben Linkolin and Tabu Mzee of PCCB. The defence was lead by Mr.Mkate who was assisted by Mr.Magafu, Mr.Ndusyepo and Mr.Kyauke Advocates. We appreciate the way the counsels of both sides have presented their cases. They gave us a good challenge. On our side, we had time to hear, think Scrutinise and weigh the evidence before us carefully. The panel was in the end divided on key points thereby leading to have a dissenting judgement. This is the majority judgement and the judgement of the court. Our brother, Mr. Mkasimongwa, will read the dissenting judgement thereafter.
The summary of the evidence for the prosecution as far as the first count is concerned is as follows: - That, sometimes in 1985, the Bank of Tanzania building got burnt. The Bank engaged a firm called Design and services Ltd to examined the building and advice as to whether it could be renovated or not. Mr. Shah, the Managing Director gave the opinion that the building could be renovated. There was a second idea that renovation should go hand in hand with building other structures so as to serve for the increasing operations of the Bank now and in the future.
Correspondences with the firm continued and in 1999, the Bank made a decision to build two towers each with 14 floors. In 2000 Design and services Ltd completed the drawings. The Bill of quantities was also prepared and tenders were invited. In the tender process which involved many companies, GROUP FIVE BUILDING EAST (PTY) LTD won the tender. On 24/6/2002 the Board of Directors of Bank of Tanzania(BOT) approved the contract for extension of BOT head office known as 10 Mirambo Office extension Project. The Contract was duly signed on 25/6/2002 and the construction work started. This document was admitted in evidence as exhibit PI. The client (BOT) and the contractors were then to be guided by this document.
According to the contract, exhibit PI, the project value was USD 73,600,000. The scope of work was limited to:-
1. Construction of the North Tower to a 14 storey building.
2. Construction of the south Tower to a 14 storey building.
3. Construction of a conference Centre.
4. Construction of a car park
5. External works.
All these works were specifically specified in the Bill of Quantities which were tendered as exhibits and received without objection marked exhibits P4 A P4 F. The total cost of the bill of quantities lead to the said USD 73,600,000/=
Now, it is the evidence of P.W.7, Harrold Herbert Webb, a Quantity surveyor of WEBB URONU AND PARTNERS LTD that, the scope of work changed and costs rose from USD 73,600,000 to USD 357,675,568. It is the prosecution case that this increase was caused by the acts of the accused of abusing the authority of his office.
It was the evidence of P.W.1 SEIFU KASANGA MOHAMED, a Civil Engineer from PCCB, that investigations showed the accused making instructions to direct the Lead Consultant (Design and services Ltd or in short D & S Ltd) which changed the scope of work.
The project, was under the Directorate of Administration and personnel which was leaded by the accused person. The evidence that the project was under the coordination of the accused is supported by many other prosecution witnesses. They included, P.W.2, YUSTO ESEKO TOGOLA, the manager of Board issues, P.W.3 JULIUS RUTA ANGELO, the BOT Director of Finance and P.W.8 JUMA HASSAN RELI, the Deputy Governor.
There was a Project Manager one DEOGRATIUS KWEKA, who according to P.W.3 was reporting to the Director of Personnel and Administration, Mr. Liyumba. He was working under the accused person and reported to him.
It was the evidence of P.W.6 ANASE SHAYO, that the scope of work changed according to instructions given by the client through the accused person. He did so in writing. He signed letters, exhibit P5 - 12 They had and gave authority to change scope of work. We will reproduce them in part for easy of reference:-
Exhibit P5 dreads as follows:
18th November,2002
Ref.No.3105
Designs and Services,
P.O. BOX236,
Dar es Salaam.
Dear,
RE: CONTRACT 464/04/4
ADDITIONAL STRONG ROOMS
This has reference to your letter 464/04/4/696 dated 31/10/2002.
After due consideration of alternatives given in your above referred letter for location of Bullion and additional strong rooms, Provisional approval is hereby given to revise the design of car park and conference Facility Basement to allow for creation of double basement.
Final Proposal of this will be given after the current proposed visit to south Africa with view to crystallise the idea further.
I remain,
Yours faithfully,
BANK OF TANZANIA
Signed.
A.J.Liyumba
DIRRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P6 reads in part:
2nd September 2003
Re: 10 MIRAMBOEXTENSION PROJECT
SECURITY REINFORCEMENT OF STRONG ROOMS
IN THE CAR PARK AND CONFERENCE FACILITY AREA
....Bank Management has considered your views as contained in the above letters and approved the following:-
(1) Spirals be used as against tang bars to security reinforce the strong rooms.
(2) Spiral security reinforcement be placed on walls and roof slab.
(3) The raft slab should only be normally reinforced as against security reinforcement...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION.
Exhibit P7 reads in part;
27th July 2004
RE: 10 MIRAMBO EXTENSION PROJECT
ADDITIOAL FLOORS ON THE TOWERS
......Bank Management accepts to increase the number of floors as recommended by you through the above referenced letter.
However, please expedite the submission of the estimated costs for our guidance...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P8 reads in part.
10th November 2004
RE: ADDITIONAL 4 NO.HALF FLOORS IN THE CAR PARK
.......Approval is hereby given for construction of additional 4 No half floors in the car park so as to increase the number of parking places to around 530 No...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P 9 reads in part as follows,
30th November 2004
RE: NOTH BLOCK
...Management of the Bank gives its approval to construct North block now up to the second floor as designed...
Signed.
A.J.Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P10 reads in part:-
' 17th July 2006
RE: 10 MIRAMBO EXTENSION PROJECT
BARRISOL CEILING TO THE CONFERENCE CENTRE
...Bank Management approves the design, supply installation and commission of Barisol ceiling together with its associated by stems to the conference Centre...
Signed.
A.J .Liyumba.
DIRRECTOR OF PERSONNEL AND ADMINISTRATION
Exhibit P 11 reads in part as follows;
1st August 2006
RE: 10 MIRAMBO EXTENSION PROJECT
JOINERY INSTALATION FOR THE CONFERENCE CENTRE
...Management of the Bank approves that the joinery works for the conference centre be done by Mountinho shop fitters. The approved budget excluding the Presidential podium is USD 1,786,635.66
Signed.
A.J.Liyumba
DIRECTOR OF PERSONNEL AND ADMINISTRATION
Exhibit P12 reads in part as follows;
9th August 2004
RE: SUBCONTRACT FOR STONE CLADING FOR THE TOWERS
...Bank management gives its approval for the appointment of specialist firm M/S MINACO Stone Maraisburg Limited for the Design, manufacture, supply and install the stone cladding of towers at USD 4,471,049.43...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
It is worth saying at this stage that prosecution witnesses have their views of what Management is as opposed to the evidence for the defence and submissions from that side. It was the evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.8 that the Board of BOT was the highest organ which was responsible for policy formulation and budget approvals. It had to approve the budget of the Bank of both recurrent and capital expenditures. It was specifically stressed that capital expenditures had to have the approval of the Board before being implemented.
Below the Board, there is the Management committee. It is comprised of the Governor, Deputy Governor and 13 Directors who are appointed by the governor. It also had other officers so as to make the number of 17 peoples. The management committee have an advisory role to the Governor who is also its chairman and that all Board issues had to pass in the management committee before being referred to the Board for discussion and decision. The Board of BOT, according to the evidence of PW2, is comprised of the Governor as its Chairman, Deputy Governor, the Permanent Secretary Treasury, the permanent Secretary of Treasury of SMZ and six other members appointed by the Minister for Finance. During Board meetings according to P.W.5, other members of the management also entered for example the Director of Administration and Personnel, The Director of Finance, the Project Manager and the Bank Lawyer.
P.W.2, the Manager of Board issues, testified to the effect that he also attended Management meetings but he never happened as from 2000 to 2008 to see the project being discussed in Management meetings. That was also the evidence of P.W.8, the Deputy Governor who joined the Bank in 2005. P.W.2, P.W.3, P.W.4, and P.W.5, say that the project issues were referred to the Board in extraordinary meetings and members were requested to approve expenditures which had already been done retrospectively. P.W.4, Michael Shirima, a Board member, expressed his dissatisfaction with this bad trend and thought of resigning. P.W.5 NATU MWAMBA, a Board member ,told us that she was not happy as well .P.W.4 took initiative to see the then Finance Minister Mr. Basili Mramba over this issue and was told that the Bank was under the governor who was responsible to the one who appointed him (i.e. the President) and not him. As the time was near to the end of his appointment, P.W.4 got a counter advice not to resign and he agreed.
The accused in his evidence told the court that indeed he was the Director of Administration and Personnel of the Bank of Tanzania from 1999 up to 2008 when he retired. His employment to the Bank is way back in 1973 when he was employed as First Assistant in the Economics Department. He was answerable to the governor.
When he joined the head office from Mwanza where he had been to become the DPA, the project in question was merely in drawings. It started officially in 2002 as alleged. It was under him for purposes of Administration but it had a project Manager who was under the governor. This was Mr. Deogratius Kweka as aforesaid.
His role was to give administrative support i.e. giving personnel to the project by recruiting, training, staff welfare and Estate Management. His other role was to sign letters because Mr. Kweka was not a full time employee of the Bank and had no capacity to do so. He used to sign after seeing approval of the governor. The governor assigned him this role verbally. He proceeded to say that when he spoke of Management in the letter he meant the governor. He denied to have relation with the Board of BOT. He said that it is far from him and that he is not responsible to it. That, the project was under the project Manager who prepared papers and sent them to the Board through the Governor. He agreed to have attended Board meetings but was not the spokesman of project issues.
D.W.1, the accused, agreed that there were changes in the scope of work but he proceeded to say that they were discussed in a committee of experts at project level who were under the Project Manager. The committee had consultants namely D & S Ltd, WEBB URONU AND PARTNERS LTD, INTER CONSULT LTD and TANNCOSULT LTD. They were all advisors of the Bank to give advice to the project Manager who could in turn give a brief to the governor. When the governor needed advice, he would give directions to the technical committee which was under the Project Manager and which could advice accordingly. In cross examination he agreed that it was the Board which had mandate to authorise expenditures. He went on to say that it is the Board which have mandate to authorise changes in the scope of work or approve capital expenditures.
D.W.2, BOSCO NDIMBO KIMELA, the acting Bank Secretary from 2001 told the court that the project was under the Directorate of Administration and Personnel in structure but it was under a Project Manager who was reporting to the governor. He was the main to advisor to the governor on the project. He proceeded to say that changes in the scope of work came from the governor and his expert, the project manager. Project papers usually come from Directorates but it was not the case here. They came from the Project Manager to the Governor and then to the Board. The accused was not involved.
It is now the duty of this Court to weigh and see the involvement of the accused in the commission of the offence as changed or otherwise. Section 96(1) of the Penal code reads as follows;
96 (1)-Any person who being employed in public service does or directs to be done in abuse of the authority of his office, any arbitrary acts prejudicial to the rights of another is guilty of an offence.
Both counsels in their submissions agree that the ingredients of the offence of abuse of office are these:
(a) The accused must be employed in the public service
(b) The accused must have done or directed to be done such an act in abuse of the authority of his office and
(c) The act done must be arbitrary and prejudicial to the rights of another.
It is fully agreed that the accused was a public servant he having worked with the Bank from 1973 up to 2008 when retired. Thus the first ingredient is not at issue.
On the second ingredient, we appreciate the way the Republic tried to define key terms. The definition of abuse as seen in Blacks Law Dictionary 8th Edition and as correctly quoted by the Republic is Departure from legal or reasonable use or misuse. We are in agreement with this definition as well as the definition of abuse of authority given by S.L. Salwan and N. Narang Legal Dictionary 18th Ed (2008). The latter is defined this way; A statutory authority is liable if he does not conform to the procedure prescribed by Law. In simple language, a person is said to abuse the authority of his office if he does or omits to do an act contrary to the Law or proscribed procedures.
In the case at hand we have the project which was to be executed on the terms of the contract, ( Exhibit PI) and Bills of quantities (exhibits P4 A P4 F). This project was not executed as agreed. There were substantial changes of the scope of work which brought about increased costs. On the other hand, we have the BOT which have its structure of administration and ways of doing things which are provided by the Law and regulations. We have evidence which was not contradicted that the Board was the organ with final say in Policy formulation and approval of budgets.
It was stressed and not disputed that all capital expenditures were to be approved by the Board before being used. We have a situation where the scope of work is said to have changed greatly. We have added costs to higher levels. The scope of work changed and big amounts of moneys were paid without following the law and laid down procedures and that the Board was involved at a later stage. As rightly pointed by the defence in their submission, the main issue for determination on the second ingredient is whether the prosecution has proved beyond all reasonable doubt that the accused without mandatory authority of the Bank Management or Board of Directors made a complete change of the scope of work of the project, sought retrospective approvals after the change to the scope of work and executed the project in question without following the law and procedures of the Bank.
We have the evidence from the prosecution that issues of the project were never discussed in the management committee. They went straight to the Board to seek retrospective approvals. The defence in their evidence agree that project issues went straight to the Board but they argue that there was a project Manager who had direct relationship with the governor and it is this person who did it and not the accused. To them, Management meant the governor and not the management committee. They submitted that section 14(1) of THE BANK OF TANZANIA ACT 1995 vest the management of the Bank and the direction of its business affairs in the governor. To them management meant the governor. It is their argument that the accused signed exhibit P5-12 after getting authority of the governor who was the management as such he did nothing wrong. On the other side the Republic have the view that section 14(1) of the BOT Act 1995 have to be read together with S.14(2) of the Act. They argued that the powers of the Governor under subsection (2) are not absolute and they are restricted and confined on the day today Banks operations. They are also subject to the control of the Board. For easy of reference let us reproduce the sub sections as hereunder;
14 - (1) Subject to the provisions of this Act, The Management of the Bank and the direction of its business and affairs shall be vested in the governor and the governor shall, in the exercise of functions of Management and direction, conform with policy determined by the Board.
(2) The governor shall have power to exercise and perform all the functions, powers and duties of the Bank other than any function specifically conferred on the Board ,and to authorise expenditure within the budget approved by the Board.
Having read the cited law carefully ,we concur with the Republic that S.14(1) has to be ready together with s.14(2).The powers of the governor are not absolute. They are limited to the day to day activities of the Bank and are subject to control of the Board. He was rather given power to control the management structures which is provided under the regulations. Even the defence in their submission acknowledges the Management structure as provided for under the BOT financial regulations 2002.Under these regulations as pointed out by the defence, Management means the governor, Deputy governor, Directors, Deputy Director, and such other officers as appointed by the governor.
From the above we have the following findings; that the cited law does not indicate that the governor is the management himself, there was a management team which was under him as testified by prosecution witnesses. It is also our view that the interpretation that management meant one person, with respect, is misleading and practically impossible.
We are now moving to examine the role of the Project Manager. There was a Project Manager who according to the prosecution witnesses worked under the accused person. The defence have told us that he was an independent person operating under the governor. We doubt and could not believe the evidence of D.W.1 and D.W.2 that the Project manager worked as an independent person . Both D.W.1. and D.W.2 were formerly employed in the Bank and are now living together in Keko Remand Prison as suspects of offences which are very much similar. We see that what they said is merely a cooked story and we could not believe them because they appeared as having a common interest to serve. Indeed of the two, the demeanour of DW2 was even worse.
We reject the evidence. The prosecution witnesses on the other hand were straight and we had no reason to doubt them on the question of the relationship between the Project Manager and the accused. PW3 said clearly that the project manager usually initiated payments which were being approved by DPA, the accused. Other prosecution witnesses said clearly as seen above. In the like manner we also reject the evidence that the accused signed the exhibits on verbal instructions from the Governor. We see the BOT as a big and sensitive institution. It cannot give verbal instructions on those sensitive and big issues. P.W.2 spoke clearly that the governor used to give his directions in writings by minutes (dokezo). We see him as speaking the truth. We see the evidence that the accused signed exhibits P5-12 on verbal instructions from the governor as being a fake story, an afterthought (as submitted by the Republic) and we reject it.
But, suppose for sake of argument, one assumes that the governor did instruct the accused to sign those letters, which in our view was the authority which effected the change of scope of work, the situation to us could remain the same because those directives were illegal. They were illegal on two faces. First, they lacked the approval of the Board. The governor had no Mandate to change scope of work and approve capital expenditures without involving the Board .And secondly, the changes in the scope of work were being effected without a Supplementary Agreement. It is our considered view that in order for the changes of scope and additional expenditures to be legal, they were first to be sanctioned by the Board and then to be supported by a Supplementary Contract. Things as they appear to us, there was none of these and that could make all directives and payments made to be illegal whether sectioned by the governor or not.
There is the undisputed fact that the Board used to approve things retrospectively. There are arguments from the defence that retrospective approvals are allowed and legal. With respect, we dont share that idea in the circumstance of this case. We have the view that there was no approval at all. All Board members who came before us were complaining about the way retrospective approvals were granted.
PW4 expressed his serious dissatisfaction with what was going on inside the Board .He lamented inside the Board. He was not happy in seeing the degree of abuses. . He reached the stage of thinking to resign. He said at page 86 of the typed proceedings as follows;
The Board was only asked to approve the already spent amount as authorised by management. Where there was need to change capital expenditures management was obliged to seek for the Boards authorisation prior to the expenditures. As Board member I was not satisfied with the over expenditures.
PW5 said clearly on the following words and I quote from page 99 of the typed proceedings;
...capital expenditures was subject to approval by the Board. Any reallocation found in respect of capital expenditure ought to have been approved by the Board. The governor had no mandate to approve anything on capital expenditure. We approved retrospectively though that was not the procedure.
D.W.4 tendered exhibit P3 which was written by the Board as it was leaving the office entitled; Handover Notes to the In-coming Bank of Tanzania Board of Directors. Page 3 reads in part as follows:-
--- on several occasions, the Board questioned the frequent requests for additional budget approvals and expressed concern that it was being asked to retrospectively approve the increased budget. The Board expressed concern at the violation at the Banks existing internal financial regulations and Procedures...
Work is still in progress, including the completion of the conference Centre, which may attract further costs. We argue the Management of the BOT to closely follow the BOTs internal financial regulations and procedures should there be potential cost escalations
From the above summary of evidence it is clear to our minds that the Board had lost control of affairs and it was merely being bulldozed by the accused and the late governor, Mr. Daud Balali. The accused appear to have been very powerful the BOT ,otherwise he could not manage to sign Exhibit P5-P12. We find and hold that the so called retrospective approvals were not approvals at all on the eyes of the law.
The evidence does not show any documentary directive given by the governor. What we have are papers signed by the accused person. We have seen that the accused had no authority to do so. He did so contrary to the BOT Act, BOT regulations and public practice and procedures. That was a clear misuse of power which is an abuse of the authority of his office. The second issue is answered in the affirmative.
On the third ingredient, we are to examine whether the acts were done arbitrary and prejudicial. The defence in their submission have defined the word arbitrary as a decision founded on prejudice or preference rather than on reason or facts. We have also the definitions given by the Republic on the terms arbitrary and prejudice. We see the way the Republic have explained the terms as being of much assistance to us. Quoting the Blacks Law Dictionary, they have defined arbitrary to mean without cause based upon the Law or not governed by any fixed rules or standard. They have defined prejudice to mean having an adverse effect. So, to them, and correctly so to our view, arbitrary and prejudicial means doing things outside the Law and procedures and which have adverse effect to the other people.
We have discussed at length that what was done by the accused was contrary to the BOT Law which required the Board to approve things before being implemented. We have seen that the accused signed exhibits P5 12 quoting the Management which was not only having no authority to instruct him to do so but did not happen at any time to sit to discuss the project. We have dismissed the evidence that the accused had verbal instructions from the governor to sign the letters. We have dismissed the evidence that there was a project manager who had direct link to the governor who initiated the changes and that the accusers role was merely to sign. We have seen the demeanour of the accused and his witness (who appear as an accomplice in this matter) as being doubtful and their evidence highly incredible. Having done so, we remain with the evidence that the accused signed the letters, which to us contained authority to change the scope of work and added expenditures, himself outside the Law, regulations and prescribed procedures. What he did caused the BOT to spend more on the project.
The added expenditure must have adverse effect to the Board of Directors and in the operations of the Bank and the nation as a whole. We are settled in our minds that the third ingredient have been proved as well beyond reasonable doubts.We are in the final analysis find the accused guilty as changed and convict him accordingly.
........................................ .....................................................
L.M.MLACHA, PRM. B.B.MWINGWA, SRM.
Privious conviction:
Mr Mhamgamila
We have no previous conviction against the accused and leave for the court of decide.
Mitigations:
Mr.Magafu:
The defence pray for the court to look at the following before giving punishment.
1. The age of the accused. The accused is aged 62 and is retired.
2. The accused has a family, wife and children and other dependants.
3. The accused worked faithfully for 35years. He was employed from 1973 up to 2008. Looking at the circumstances of the crime, it is open that he was put to those problems by his boss the governor. He was the one giving instruction.
4. We also pray that you should look into account that he stayed in Remand for over one year.
5. His health is also bad.
6. We also pray for the court to look into section 38 (1) of the penal code .It gives discretion to the court on two ways. The court can give absolute discharge. Alternatively, can give conditional discharge under section 38 (2).
If you will see that section 38 (2) is not applicable, let you see that he was charged under section 98 (1) of the penal code Which has no punishment. if no punishment provided, the court have to go to section 35 of the penal code .It has a fine or 2 years or both.
Section 27 (2)(a) of the penal code has directives. He may be sentenced for a fine or jail or probation. Together with that, where there are alternatives, the court has to give a final first. Where he fails to do so, the second punishment comes. See Salum Shabban Vs Republic (1985)LTR 71. In this case, the High Court said where the legislature gives the option of fine a sentence of fine should first be given. The court took into account decision of the other case Republic Vs Juma Mrisho [1961]HCD 61. They also regarded Mohamed Juma versus Lex. They also examined Nyakukira Vs Republic.They are in the case and I will give to you.
That where fine is involved they should give a fine of the amount which the accused can afford to pay.Even where the offence is very big, the court should consider fine. See also Samweli Mwendareti Vs Republic. When assessing fine, the court should look into the salary of the accused. The accused is a retired officer and his pension is very small. Republic Vs Sino Mwa Vol.II Tanganyika law Report.
Order:
Short adjournment.
Sgd: L.M.Mlacha PRM
24/5/2010
Later :Coram as before.
Sentence:
We have considered the submission of the Republic and the defence .We have gone through the cases and the provisions of the law. Indeed section 96(1) of the penal code does not provide for punishment. This lead us to section 35 of the Penal Code which have a fine and or imprisonment for term not exceeding two years.We have also considered section 38 (1) as well as Section 27 (2) of the penal code.
Having done so, we are of the considered view that this is not a fit case to impose a fine .The current situation in the country calls for a much serious sentence .The nation is going through an era where public institutions are swindled and corruption is on the higher levels .we think the proper sentence is custodial sentence to make a lesson to other public officials who abuse their offices.
We have assessed and we hereby sentence the accused to suffer two (2) years in jail.
Sgd: 1. L.M.Mlacha PRM
24/5/2010
2. B.B.Mwingwa SRM
24/5/2010
END OF JUDGMENT NO:1
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JUGDEMENT NO 2
IN THE RESIDENT MAGISTRATES COURT OF DAR ES SALAAM
AT KISUTU:
CRIMINAL CASE NO. 105 0F 2009
REPUBLIC
VERSUS
ACCUSED ......AMATUS JOACHIM LIYUMBA
DISSENTING JUDGEMENT:
MKASIMONGWA SRM
This case was heard by a panel of three Magistrates. I constituted the panel together with Hon. L. M. Mlacha (PRM) and Hon. B. B. Mwingwa (SRM). After having heard the substances of the case for both parties and after a thorough study on the written final submissions filed by both parties, at the time we were deliberating, we differed. Opinions of my colleagues formed the opinions of the majority part of the court and therefore as of right they wrote the Judgment of the court. I have read the judgment and humbly thought that I should have a dissenting judgment. Hereunder is that dissenting judgement.
Before this Court, stands AMATUS JOACHIM LIYUMBA (later in this judgment will also be referred to as accused person). The accused person was initially charged with two counts, namely:1st Count: Abuse of office c/s 96(1) of the Penal Code.
2nd Count: Causing Loss to a Specified Authority c/s 284A (1) of the Penal Code.
Upon having heard submissions by both parties on a plea of no case to answer this court found a prima facie case not sufficiently made against the accused in respect of the 2nd count, a result of which, to that extent, the charge was dismissed and accused acquitted.
The prosecution alleges in court, as far as the remaining count is concerned, that:
AMATUS S/O JOACHIMN LIYUMBA, on diverse dates between the years 2001 and 2006, within the City and Region of Dar es Salaam being a person employed in the Public Service serving in the official capacity as the Director of Personnel and Administration with the Bank of Tanzania, did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania christened 10 Mirambo office Extension project and implementing the same an act which was prejudicial to the rights of the Board of Directors of the Bank of Tanzania.
The accused person, who is represented by Mr. Mkate, learned counsel assisted by Mr. Magafu, Mr. Ndusyepo and Mr. Kyauke, learned Advocates pleaded not guilty to the charge. With the object of proving the charge, eight (8) witnesses were called to the court and testified in favour of the prosecution. These are SEIF KASANGA MOHAMED (PW1), YUSTO ESEKO TONGOLA (PW2), JULIUS RUTA ANGELO (PW3), MICHAEL SHIRIMA (PW4), NATU MWAMBA (PW5), ANASE SHAYO (PW6), HAROLD HERBERT WEBB (PW7) and JUMA HASSAN RELI (PW8). These testified to the effect that in 1973 the accused person was employed by the Bank of Tanzania. He worked with the Bank in different capacities. In 1999 the accused person was appointed a Director of Personnel and Administration the post which he served until 2008 when he attained the retirement age and therefore retired from the Public Service.
When the Bank of Tanzania was thinking to rehabilitate its offices which were previously burnt, it found that there was a need for extension of its office facilities as there was an increase in the number of staff and the activities of the Bank. The Bank therefore sought for the advice of the Design and Service Ltd Architectural firm to that effect. The firm advised the Bank that there should be built two towers each with twelve (12) storeys. After considering the advice the Bank decided to build two towers with fourteen (14) storeys each. The Design and Services Ltd which designed the former BOT building was assigned to design and then became a Lead Consultant in the project. As a designer and lead consultant, Design and Services Ltd prepared Tender Documents which included both Bill of Quantities and Drawings. PW6 an Engineer working with the Designs and Services Ltd tendered to the court the Bill of Quantities, which are in six volumes, to be exhibits. These were admitted in evidence marked as Exhibit P4A, P4B, P4C, P4D, P4E and P4F. Bids to construct the office were invited and out of all constructions companies that did bid, GROUP FIVE BUILDING EAST (PTY) LTD became a successful bidder. The Company was therefore awarded with the Construction job sometime in 2002. Since the project was to draw funds from the Capital Expenditures type of expenditures of the Bank, it was necessary that the BOT Board of Directors should approve for the expenditures. On the 24th of June, 2002, the BOT Board of Directors approved the contract of Construction of the BOT building. The contract was eventually executed on the 25th of June, 2002 between GROUP FIVE BUILDING EAST (PTY) LIMITED and the BANK OF TANZANIA. PW1 tendered to the court as exhibit the Contract document. The same was admitted in evidence and marked as Exhibit P1.
The prosecution evidence also shows that the executed contract provided for scope of works. This includes Construction of the North Tower to a 14 storeys building, Construction of the South Tower to a 14 storeys building, Construction of a conference centre, Construction of a car park and External works at a consideration of USD 73,600,000.00 only. In the course of work, PW7 of WEBB URONU AND PARTNERS LTD, the Quantity Surveyor, told the Court that the scope of construction changed. The scope changed as a number of floors was increased to 18 on each Towers, Conference facility was amended, car park was changed, a North Block was built, Basement was constructed and external works were changed. PW7 contended that the changes were instructed by the lead consultant, Design and Services Ltd. PW6 confirmed this story and indicated that it is the client who brought about the changes. He added that the client communicated of the changes in writing. PW6 tendered to the Court as Exhibits letters that authorised for the changes. The letters were admitted in evidence and marked Exhibit P5 through P12. All the letters were signed by the accused person, AMATUS JOACHIM LIYUMBA, the Director of Administration and Personnel of the Bank of Tanzania. PW6 contended further in evidence that all correspondences with the Bank were done through the Directorate of Administration and Personnel. The accused shows in the letters that Management of the BOT has approved for the changes to be effected. However, PW2 and PW3 the Director of Finance and Deputy Governor of the BOT, respectively, who are among the members of the BOT Management Committee told the Court in evidence that the BOT 10 Mirambo Office Extension Project was never discussed in Management meetings. Management of the BOT, therefore, did not approve for changes on scope of work in the project. PW2 but, told the court in evidence that the BOT Governor Constitutes one face of Management of the BOT. The Governor may, in his own make Management decisions. The other face of Management of the BOT, PW2 told the court, is that which is comprised of the Governor, Deputy Governor and all other Directors appointed by the Governor. According to PW8 it is not possible for a Director within the BOT to make any decision without the knowledge of the Governor.
PW2 and PW8 who had also an opportunity to attend in the BOT Board Meetings contended in evidence, that normally, the Board of Directors discussed issues concerning the Project in Extra Ordinary Meetings. It is in such meetings when the Board received the Projects Progress Reports and requests for approval of the already made decisions and expenditures. PW4 and PW5 who were among the Board Members confirmed this evidence given by PW2 and PW8. PW4 and PW5 added, that always the Board was not pleased when Management sought for retrospective approvals of the decisions and expenditures already embarked in, therefore it rebuked of the practice. Showing that he was not so satisfied, PW4 complained to the then Minister of Finance but was not successful. He did not resign when he thought that, under such circumstances it would be better to do so. When handing over their activities to the incoming Members of the BOT Board of Directors, outgoing ones prepared a Hand over Note, Exhibit P3 which shows their concern on this matter. Both PW4 and PW5 stated in evidence that projects progress reports presented and requests for retrospective approval made to the Board were prepared and presented under the coordination of the Director of Administration and Personnel, that is, the accused person. It is evidently shown by PW7, who tendered to the Court the Projects Anticipated Final Account, Exhibit P13, that changes on Scope of work also changed the contractual sum from USD 73,600,000 to USD 357,675,568.
It is from this evidence, in short, the accused person was apprehended and eventually, changed with the offence he is now facing in court.
On the other hand the Accused person sought to give his evidence in defence under oath. He called one witness namely BOSCO NDIMBO KIMELA (DW1). In his defence the accused person contended that he was employed by the Bank of Tanzania, as First Assistant in the Economic Department sometime in 1973. In October, 1999, he was appointed a Director of Administration and Personnel (DAP) of the Bank. He retired in 2008 after attaining a retirement age, while serving the Bank under that capacity. As a DAP he dealt with facilitation and administration of the Bank in the estate and personnel matters. His immediate boss was the Deputy Governor one JUMA RELI (PW8) and overall was the Governor Mr. DAUD BALALI (Deceased) to whom he was answerable. The accused knows the 10 Mirambo Office Extension project, which for the purposes of administration was under his Directorate. The Project was under the Project Manger Mr. DEOGRATIUS KWEKA. The later was not a permanent employee of the Bank of Tanzania. He was employed on contract specifically for that project and was answerable to the Governor. This same story was told in court by DW1 when was testifying infavor of the accused. DW1 added that, the Project Manager was an expert in construction and was the lead adviser of the Governor on the day to day activities of the project. With the project manager there were consultants. The accused went on telling the court in evidence that, he was providing for administrative support to the project and since the project Manager was not the BOT permanent employee the Governor nominated him (accused) to sign on the letters relating to the project. He, therefore, signed on the letters from the BOT to the lead Consultant. In his absence, such letters were being signed by his assistant.
As regards to correspondences between the lead consultant and the BOT, the accused told the court that all letters from the lead consultant were brought to the Governor who sent them to the project manager for him to analyse. For those letters which were brought to him (the accused) he took them to the project manager. This was because the Project Manager was trained in Engineering and they (Governor and DAP) were not. Any advice to be given by the Project Manager was given to the Governor and he (Accused person) signed on the letters from the BOT after he had seen approvals or disapprovals of the Governor. Also the accused contended in evidence that he signed on the letters, tendered and admitted in Court as Exhibits P5, P6, P7, P8, P9, P10, P11 and P12, which were addressed to the Lead Consultant, Design and Services Ltd. These were, respectively, responding to the Consultants letters with Ref. No. 464/04/4/696, 44/04/4/146 and 46/04/1486, 464/04/4/2619, 464/04/4/2620, 464/04/4/4326. 464/04/4/4337 and 464/04/2343. The letters were written using correspondence Files Ref. No. 3105/5, Ref. No. 3173, Ref. No. 3173/2, Ref. No. 3174/VI and 3129. The Accused alleged in evidence that the correspondence files used were under the custody of the Project Manager. In all letters (Exhibit P5-P12) the accused said the BOT Management has done what is told by the letters. By the term Management, the accused meant the Governor as it is provided for by the BOT Act.
The Accused person testified further to the effect that he had no direct link with the Board of Directors of the BOT. He added that he was not appointed by the Board of Directors, therefore, was not answerable to the Board of Directors. His role to the project was to provide for administrative support and sign on the letters. Anything from the project to the Board was sent by the Governor. The Project Manager prepared Board Papers which were presented to the Board by the Governor or his Deputy. Since he had no direct link with the Board, the accused said, he could not seek for retrospective approvals from the Board.
As regards to the changes on scope of work, the accused person said, were discussed in the Executive Committee of the Project. The Committee was composed by three Bank Consultants and the Project Manager. The Consultants were Design and Services Ltd, Webb Uronu and Partners, Inter-Consultant and Tan-Consultant. These were employed by the Bank specifically to advice the Governor on the project. The advice given by the Committee was directed to the Governor through the Project Manager. As to who could direct for the changes, the accused told the court that it is the Governor. In that case, the Governor gave directives to the Project Manager who took the matter to the Project Executive Committee for analysis of the idea. The Committees advice was sent back to the Governor through the Project Manager.
When Cross examined by Mr. Juma, Learned Senior State Attorney, the accused person contended that in the Bank of Tanzania there are Recurrent and Capital Expenditures. Changes to Expenditures must be approved by the Board. As the Project fell under Capital type of Expenditures of the BOT any change on the scope of work or amount of money to be spent should have been done by the Board. The accused added that there was the Executive Committee of the Project which advised the Governor on the Project.
The Accused further responded in cross examination that as Director of Administration and Personnel he dealt with recruitment, training, staff welfare and Estate Management. The Bank of Tanzania has the Estate Department. This department did not deal with this project from the Magnitude of the project itself. The Governor verbally authorised him to sign on the letters. Upon recommendations of the project Manager derived from the advice of the Executive Committee the Governor made decisions which are clearly shown in the correspondence files. He added that there are many letters of this similar nature, which were signed by other people, but the Prosecution has not brought them to the Court. Technical issues could not be discussed in the Management Committee meetings; instead they were discussed in the Project Executive Committee. He went on telling the Court that in this project the client was the BOT and it is the Governor who decided on various issues on behalf of the BOT. The Project got a yearly budget and it is on the basis of such budgets it was implemented. Management is defined in the BOT Act and Management Committee in the BOT Financial Regulations. The Committee does not make any decision, it only advises the Governor. The Governor had mandate to change scope of work of the Project.
When re-examined by Mr. Magafu, learned Advocate, the accused person told the Court that it is the Board of Directors of the BOT that had a final say over the project. The Project Manager prepared Board Papers which were approved by the Governor and then circulated by the Secretary to the Members. He could not issue the letters, Exhibit P5-P12 if there was no approval by the Governor.
In his testimony, DW1 told the Court that he joined with the Bank of Tanzania in 1995 as a Legal Officer. From 2001 2006 he was working with the Bank as the Acting Bank Secretary and Secretary to the Board of Directors. DW1 knows the 10 Mirambo Office Extension project, which he said, going by the BOT structure was under the Directorate of Administration. Changes on scope of work of the project were under Management as defined in the BOT Act and it means the Governor. The Governor as Management, Project Manager and the Consultants discussed about changes on scope of work. Their settled decisions on the changes were taken to the Board. In taking the matter to the Board, the Project Manager prepared Board papers and took them to the Governor for his approval. If approved, the Governor gave the papers to the Secretary for him to process. In this process the Director of Personnel and Administration was not involved. In the Board, the papers were presented by the Governor or Project Manager. There was no time when the Director of Personnel and Administration (accused person) brought any matter to the Board without the approval of the Governor. This also applied to all directorates. As a Secretary to the Board, DW1 was only getting all Board papers from the Governor. The Accused had no any decision to make regarding to the project.
On being cross-examined by Mr. Juma, learned Senior State Attorney, DW1 contended that he is under Remand custody at Keko prison for the case involving Bank Notes Preparation Tender Process and Criminal Case No. 1162/2008. The accused is also in Keko Remand Prison and they meet while in the prison. To the court they travelled together. He has been attending Board Meetings from 1992 as the Legal Services Manager. In 2000 he became an Acting Bank Secretary and Secretary to the Board. He remained so for eight (8) years. Under him there was YUSTO TONGOLA. The BOT has two types of expenditures. These are Capital and Recurrent Expenditures and the Board had powers to change on expenditures. The project in question fell under the capital expenditures of the Bank. The project was approved by the Board and he (DW1) was present when it was so approved. DW1 does not remember if there was another contract in respect of this project. In several times the Board was requested to authorise changes on scope of construction. Some were made after and some before the changes. The Bank Management according to the law means the Governor. Financial Regulations define Management as the Governor, Deputy Governor, Directors and Deputy Directors. Management had no mandate to change scope of work.
That is the whole evidence in this matter. The prosecution as well as the defence filed final submissions which will be also, regarded in this judgement. As it is pointed out in the Final Submissions of both parties the offence with which the accused person is changed is composed of three ingredients. These are:
1. That the accused must be employed in the Public Service.
2. That the accused must have done or directed to be done such an act in abuse of authority of his office, and
3. That the act done must be arbitrary and prejudicial to rights of another.
In analysing the adduced evidence, I find not disputed that in 1999 the Bank of Tanzania made a decision to extend its offices situated along Mirambo Street, Dar es Salaam. The contract to construct the office in that project, (10 Mirambo Office Extension Project) was executed on the 25th of June, 2004 between the BANK OF TANZANIA and GROUP FIVE EAST (PTY).LTD. The contract whose contractual sum was USD 73,600,000 provided for a scope of work to include:
1. Construction of the North Tower to a 14 storeys building
2. Construction of the South Tower to a 14 Storey building
3. Construction of a conference centre
4. Construction of a car park
5. External work.
Going by the evidence I also find no dispute that in the course of work scope of work changed from that which is stipulated in the contract as follows:
1. 18 floors were built on each tower
2. Conference facility was amended
3. Car Park was changed
4. A North Block was built
5. Basement was constructed
6. External works were changed.
There is ample evidence and in fact it is not disputed that the changes, which also changed the contractual sum to USD 357,675,568 were brought about by the client, Bank of Tanzania. The client communicated the changes to the Lead Consultant, Design and Services Ltd in writing as evidenced by Exhibits P5-P12. These are letters from the Bank of Tanzania to Design and Services Ltd. The letters were signed by the accused person, Director of Personnel and administration. The Directorate of Personnel and Administration was the coordinating Directorate and all correspondences with outside the Bank in respect of this project were channelled through this Directorate.
I also find no dispute that since, the project fell under, the Capital Expenditures type of expenditures of the Bank the Board of Directors was the only organ vested with powers to approve budgets or expenditures in this project. It was a normal practice, however, that Management of the BOT sought for the approvals retrospectively and that was in violation of the set internal Financial Regulations. The Board showed its concern on that practice as it evidenced by Exhibit P3, the Handing over Note. Despite of that concern, the Board did retrospectively approve the deeds of Management in the project all the times Management sought for the approval.
Coming back to the elements of the offence shown above, I find it is not disputed that during the period the alleged offence was committed the accused person was an employee working with the Bank of Tanzania which is a public institution. He was so working at a capacity of the Director of Personnel and Administration. If, therefore, one is to ask whether the accused person was employed in the public service as the first element of the offence requires, the answer will be in the affirmative. I, therefore, find and hold that the accused was employed in the public service.
The second element of the offence requires that the accused must have done or directed to be done such an act in abuse of the authority of his office. It is alleged by the prosecution that:
did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania
From this allegation if one asks as to what the accused did to fall squarely with the second element of the offence, it is my view that according to the charge sheet the answer will be arbitrarily undertook major decisions in the construction project of the Bank of Tanzania. The charge sheet does not state what were the major decisions made or undertaken by the accused in this project. The evidence, however, shows, the decisions the accused undertook were instructing the Lead Consultant for change of scope of work in the construction of the buildings as evidenced by Exhibits P5-P12. In fact, the whole prosecution case is based on these exhibits. The Exhibits, conspicuously, show that they were signed by the accused and the accused does not dispute on this fact.
As to whether he had powers to sign on them I think is material wealth to decide. The accused person contended and in essence it has been shown by some if not all prosecution witnesses that, the project had its Manager one Mr. DEOGRATIUS KWEKA. Mr. Kweka was not a permanent employee of the Bank of Tanzania. He was employed on contract basis to provide for the services of the project Manager to the Bank. According to the accused and it was not challenged in cross examination, since Mr. Kweka was not a permanent employee of the Bank, he was not the Banks signatory. The accused then contended that, he was nominated by the Governor to sign on the letters on behalf of the client.
He was so nominated or assigned verbally. When was testifying in court PW2 said that, the Governor gives instructions or decisions by issuing a minute. In this case when the Governor instructed the accused to be a signatory there is no evidence showing that he issued a minute to that effect. The question I will endeavour to answer here is whether authority to sign on letters was given or not. In my view, a written authority of the Governor here is immaterial. What is clear to me is that this project was put under the Directorate of Personnel and Administration.
That did not happen by design. The accused told the Court that within the BOT there is the Estate Department. The department is under the Directorate of Personnel and Administration, to which he was the Director. Essentially the project was to be managed by this department. However, the magnitude of the project necessitated for employment of the Project Manager. This story was confirmed by DW1 who told the court that going by the BOT structure the project was under the Directorate of Administration.
Even the prosecution evidence vividly shows that the project was under the coordination of the accused. From this evidence, I am of a settled view that the Directorate of Personnel and Administration to which the accused was a director was the project hosting directorate. Under such circumstances since the project Manager had no powers to sign on the Bank correspondences, it goes without saying that the Director of Personnel and Administration by virtue of being the overseeing Director had powers to sign on the letters after he had satisfied himself that the message he was delivering to the other side has been approved by the respective authority.
As aforesaid, the accused did sign on the letters that constitute Exhibits P5-P12. Except for Exhibit P5 and P8, the accused mentions, Management to have approved for the changes of scope of work. It is true as the prosecution submitted that PW2, PW3 and PW8 who were members of the BOT Management told the Court in evidence that there was no time during the project did management of the Bank of Tanzania discuss and approve changes on the scope of works to the project. It is important to discuss and decide at this juncture what is meant by the term Management within the BOT.
Supported by DW1, the accused contended that by the term Management he meant the Governor as it is provided for under Section 14(1) of the Bank of Tanzania Act No.1 of 1995. For easy reference I hereunder quote the section:-
14(1) Subject to the provisions of this Act, Management of the Bank and the Direction of its businesses and affairs shall be vested in the Governor and the Governor shall, in exercise those functions of Management and direction, conform with the policy determined by the Board.
In their submissions the prosecution contend that, referring Management as the Governor is not a proper construction of Section 14(1) of the Bank of Tanzania Act, 1995. The
Prosecution is silent on suggesting what would be the proper construction of the above section of the law. What is clear to me from the section is that the Governor of the Bank of Tanzania is vested with the Management of the Bank and shall exercise functions of Management and Direction. No one is possessed with powers to exercise functions of management if he himself is not management. Since the Governor of the BOT is empowered to exercise functions of management, he is Management. I agree with the prosecution that such powers are not absolute. He has to observe both the policy as determined by the Board and budget approved by the Board.
When was testifying in court PW2 stated that:-
Management Committee was composed by Members under the Chairmanship of the Governor. Other members are Deputy Governor and all other Directors who are appointed by the Governor. The BOT Management has two faces. One is that of the Governor himself. That is the Governor may give Management decision. The other face is that I have shown above.
From my interpretation of the above section of the law and the testimony of PW2, I find and hold, therefore, that the Governor constitutes Management of the Bank of Tanzania and when it comes to the Management Committee the same has several other members.
When was testifying in Court PW8 told the Court that:
Management Committee discusses all operational works. It is again an advisory committee; it does not make decision
I learn from this testimony of the Deputy Governor that, powers of the Management to discuss on issues are limited to operational works. The implementation of the project in issue in my view is not the Banks operational works. It is no wonder therefore, as the defence evidence shows, an independent Executive Committee composed by technical people was established under the Project Manager to play an advisory role on the project, advising the Governor.
The only question put by the Senior State Attorney against the accused person during cross examination regarding the Executive Committee got the answer that There was the Executive Committee of the Project. This does not suggest if there was any contradiction to the fact that there was an independent Executive Committee of the Project which gave advice to the Governor on the project. All in all there was possibility as the accused says in defence that, changes on scope of work were authorised by the Governor as management. The term possibility I have used above suggests that there is doubt.
In my opinion to clear such a doubt the Court should have been brought to the point of seeing all the letters Exhibits P5-P12 were referring and responding to. I am sure the letters and their route within the BOT office, clearly show who was the addressee, if the addressee saw them, the action taken by him, directives given by the addressee, who was to comply with the directives, whether the directives were complied with and how the directives were complied. One may think accused ought to have brought those letters to the court to clear the doubt. I am not in support with such a line of thinking, because that will amount to raising the standard of proof on the part of the accused to that of beyond all reasonable doubt. The prosecution knows the letters, which have been clearly referred to in Exhibit P5-P12. They ought to have brought them in court to show beyond reasonable doubt that Management did not take part in approving the changes, as the accused purports to show. Failure to do so the court is left to think, that it may be true or not true that Management approved for the changes. It is doubtful. Such a doubt as a rule of law is to be determined in favour of the accused person. I find and hold that the changes on the scope of work were approved by Management, particularly the Governor and the act done by the accused was of conveying the approval to the lead consultant and not undertaking major decisions in the construction project of the BOT as the prosecution alleges.
Next, I think, it is important to determine whether the Governor had mandate to approve for the changes on the scope of work. As afore said the Management powers of the Governor are subjected to the policy and budget determined and approved by the Board of Directors. I have attentively read Exhibit P3. On page 3 of the Exhibit at item (ii) Twin Towers, the outgoing members of the Board are quoted writing that:-
There is no doubt that the BOT required a purpose built facility to meet its current and future needs. There are, however, certain aspects of the facility and its fittings which could have been omitted without compromising the efficiency and practicability of the building.
Going by this verse one may learn that when this project was being implemented, the BOT policy was to have an office facility that meets its current and future needs. Aspects of the facility and its fittings should be reasonable to allow for efficiency and practicability of the building. The exhibit does not show whether the Board had concerns on violation of this policy if any. One can understand why the Board members were silent on this. It is because change on the scope of work which was done by management in order to achieve the policy was part of the implementation of the policy and this is the activity of management and not the Board. The Board had its concern on the Budget when it said:-
On several occasions the Board questioned the frequent requests for additional budget for approvals and expressed concern that it was being asked to retrospectively approve the increased budget. The Board expressed concern at the violation of the banks existing internal financial regulations and procedures
The evidence we have in this case, shows that apart from such concerns the Board approved requests for retrospective approvals of the increased budget every time they were sought by management. In, my views this was done not without justifying reasons. Therefore were justified. One may wish to ask here, what was the effect of the retrospective approvals of the increased budget by the board. Before the question is answered it is important to note here that by giving retrospective approvals the board was acknowledging that it had powers to do so. Secondly, that their minds led them to the fact that whether retrospective or not their approval remained proper approval. Coming back to the question above, once approved the increased budget, the board not only blessed the deeds of the Management, but also, it owned the process and the budget itself. Under such circumstances it can be successfully deemed that Management had properly acted. Since Management had properly acted in the process, it cannot be thought that the accused person acted upon unlawful instructions or decisions of the Governor (Management).
In the light of the above discussion, as regards to whether the accused had done an act in abuse of the authority of his office my answer is no. Although the accused was the writer and signatory of Exhibits P5-P12, by writing and signing the letters he was not in abuse of the authority of his office. Similarly my discussion above demonstrates how the writing and signing of Exhibits P5-P12 by the Accused was neither arbitrary nor prejudicial to the rights of Board of Directors of the Bank of Tanzania.
I conclusion it is my firm finding that the charge against the accused person is not proved beyond all reasonable doubt. The Accused is therefore given a benefit of doubt in which case I dismiss the charge and accordingly acquit him under Section 235(1) of the Criminal Procedure Act, 1985.
Dated at Dar es Salaam this 24th Day of May, 2010.
E. J. Mkasimongwa
Senior Resident Magistrate
24/5/2010
Order:
Judgment delivered in open court in the presence of both parties this 24th Day of May, 2010.
E. J. Mkasimongwa
Senior Resident Magistrate
24/5/2010
IN THE RESIDENT MAGISTRATES COURT OF DAR ES SALAAM
AT KISUTU
CRIMINAL CASE NO 105 OF 2009
REPUBLIC
VERSUS
AMATUS JOACHIM LIYUMBA
JUDGMENT OF THE COURT
BEFORE : - L.M. MLACHA, PRM B.B. MWINGWA, SRM
AMATUS JOACHIM LIYUMBA, the accused person was referred to this court with a charge with two counts. The first count has a charge of Abuse of office c/s 96(1) of the Penal Code (Cap 16 of R.E., 2002). The second count has a charge of occasioning loss to a specified Authority c/s 284 A (1) of the Penal Code (Cap 16 RE 2002). At the closure of the prosecution case, the accused was seen as having no case to answer on the second count.
He was seen as having a case to answer on the first count and was put to his defence.The particulars attached to the first count were that, Amatus Joachim Liyumba, on diverse dates between the year 2001 and 2006, within the City and Region of Dar es Salaam, being a person employed in Public service, serving in his official capacity as Director of Personnel and Administration with the Bank of Tanzania, did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania Christened 10 Mirambo Office Extension Project and implementing the same, an act which was prejudicial to the right of the Board of Directors of the Bank of Tanzania.
The Republic called 8 witnesses while the defence summoned 2. The Republic was lead by Mr. Juma, Senior State Attorney.He was assisted by Mhangamila State Attorney, Ben Linkolin and Tabu Mzee of PCCB. The defence was lead by Mr.Mkate who was assisted by Mr.Magafu, Mr.Ndusyepo and Mr.Kyauke Advocates. We appreciate the way the counsels of both sides have presented their cases. They gave us a good challenge. On our side, we had time to hear, think Scrutinise and weigh the evidence before us carefully. The panel was in the end divided on key points thereby leading to have a dissenting judgement. This is the majority judgement and the judgement of the court. Our brother, Mr. Mkasimongwa, will read the dissenting judgement thereafter.
The summary of the evidence for the prosecution as far as the first count is concerned is as follows: - That, sometimes in 1985, the Bank of Tanzania building got burnt. The Bank engaged a firm called Design and services Ltd to examined the building and advice as to whether it could be renovated or not. Mr. Shah, the Managing Director gave the opinion that the building could be renovated. There was a second idea that renovation should go hand in hand with building other structures so as to serve for the increasing operations of the Bank now and in the future.
Correspondences with the firm continued and in 1999, the Bank made a decision to build two towers each with 14 floors. In 2000 Design and services Ltd completed the drawings. The Bill of quantities was also prepared and tenders were invited. In the tender process which involved many companies, GROUP FIVE BUILDING EAST (PTY) LTD won the tender. On 24/6/2002 the Board of Directors of Bank of Tanzania(BOT) approved the contract for extension of BOT head office known as 10 Mirambo Office extension Project. The Contract was duly signed on 25/6/2002 and the construction work started. This document was admitted in evidence as exhibit PI. The client (BOT) and the contractors were then to be guided by this document.
According to the contract, exhibit PI, the project value was USD 73,600,000. The scope of work was limited to:-
1. Construction of the North Tower to a 14 storey building.
2. Construction of the south Tower to a 14 storey building.
3. Construction of a conference Centre.
4. Construction of a car park
5. External works.
All these works were specifically specified in the Bill of Quantities which were tendered as exhibits and received without objection marked exhibits P4 A P4 F. The total cost of the bill of quantities lead to the said USD 73,600,000/=
Now, it is the evidence of P.W.7, Harrold Herbert Webb, a Quantity surveyor of WEBB URONU AND PARTNERS LTD that, the scope of work changed and costs rose from USD 73,600,000 to USD 357,675,568. It is the prosecution case that this increase was caused by the acts of the accused of abusing the authority of his office.
It was the evidence of P.W.1 SEIFU KASANGA MOHAMED, a Civil Engineer from PCCB, that investigations showed the accused making instructions to direct the Lead Consultant (Design and services Ltd or in short D & S Ltd) which changed the scope of work.
The project, was under the Directorate of Administration and personnel which was leaded by the accused person. The evidence that the project was under the coordination of the accused is supported by many other prosecution witnesses. They included, P.W.2, YUSTO ESEKO TOGOLA, the manager of Board issues, P.W.3 JULIUS RUTA ANGELO, the BOT Director of Finance and P.W.8 JUMA HASSAN RELI, the Deputy Governor.
There was a Project Manager one DEOGRATIUS KWEKA, who according to P.W.3 was reporting to the Director of Personnel and Administration, Mr. Liyumba. He was working under the accused person and reported to him.
It was the evidence of P.W.6 ANASE SHAYO, that the scope of work changed according to instructions given by the client through the accused person. He did so in writing. He signed letters, exhibit P5 - 12 They had and gave authority to change scope of work. We will reproduce them in part for easy of reference:-
Exhibit P5 dreads as follows:
18th November,2002
Ref.No.3105
Designs and Services,
P.O. BOX236,
Dar es Salaam.
Dear,
RE: CONTRACT 464/04/4
ADDITIONAL STRONG ROOMS
This has reference to your letter 464/04/4/696 dated 31/10/2002.
After due consideration of alternatives given in your above referred letter for location of Bullion and additional strong rooms, Provisional approval is hereby given to revise the design of car park and conference Facility Basement to allow for creation of double basement.
Final Proposal of this will be given after the current proposed visit to south Africa with view to crystallise the idea further.
I remain,
Yours faithfully,
BANK OF TANZANIA
Signed.
A.J.Liyumba
DIRRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P6 reads in part:
2nd September 2003
Re: 10 MIRAMBOEXTENSION PROJECT
SECURITY REINFORCEMENT OF STRONG ROOMS
IN THE CAR PARK AND CONFERENCE FACILITY AREA
....Bank Management has considered your views as contained in the above letters and approved the following:-
(1) Spirals be used as against tang bars to security reinforce the strong rooms.
(2) Spiral security reinforcement be placed on walls and roof slab.
(3) The raft slab should only be normally reinforced as against security reinforcement...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION.
Exhibit P7 reads in part;
27th July 2004
RE: 10 MIRAMBO EXTENSION PROJECT
ADDITIOAL FLOORS ON THE TOWERS
......Bank Management accepts to increase the number of floors as recommended by you through the above referenced letter.
However, please expedite the submission of the estimated costs for our guidance...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P8 reads in part.
10th November 2004
RE: ADDITIONAL 4 NO.HALF FLOORS IN THE CAR PARK
.......Approval is hereby given for construction of additional 4 No half floors in the car park so as to increase the number of parking places to around 530 No...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P 9 reads in part as follows,
30th November 2004
RE: NOTH BLOCK
...Management of the Bank gives its approval to construct North block now up to the second floor as designed...
Signed.
A.J.Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
Exhibit P10 reads in part:-
' 17th July 2006
RE: 10 MIRAMBO EXTENSION PROJECT
BARRISOL CEILING TO THE CONFERENCE CENTRE
...Bank Management approves the design, supply installation and commission of Barisol ceiling together with its associated by stems to the conference Centre...
Signed.
A.J .Liyumba.
DIRRECTOR OF PERSONNEL AND ADMINISTRATION
Exhibit P 11 reads in part as follows;
1st August 2006
RE: 10 MIRAMBO EXTENSION PROJECT
JOINERY INSTALATION FOR THE CONFERENCE CENTRE
...Management of the Bank approves that the joinery works for the conference centre be done by Mountinho shop fitters. The approved budget excluding the Presidential podium is USD 1,786,635.66
Signed.
A.J.Liyumba
DIRECTOR OF PERSONNEL AND ADMINISTRATION
Exhibit P12 reads in part as follows;
9th August 2004
RE: SUBCONTRACT FOR STONE CLADING FOR THE TOWERS
...Bank management gives its approval for the appointment of specialist firm M/S MINACO Stone Maraisburg Limited for the Design, manufacture, supply and install the stone cladding of towers at USD 4,471,049.43...
Signed .
A.J. Liyumba
DIRECTOR,PERSONNEL AND ADMINISTRATION
It is worth saying at this stage that prosecution witnesses have their views of what Management is as opposed to the evidence for the defence and submissions from that side. It was the evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.8 that the Board of BOT was the highest organ which was responsible for policy formulation and budget approvals. It had to approve the budget of the Bank of both recurrent and capital expenditures. It was specifically stressed that capital expenditures had to have the approval of the Board before being implemented.
Below the Board, there is the Management committee. It is comprised of the Governor, Deputy Governor and 13 Directors who are appointed by the governor. It also had other officers so as to make the number of 17 peoples. The management committee have an advisory role to the Governor who is also its chairman and that all Board issues had to pass in the management committee before being referred to the Board for discussion and decision. The Board of BOT, according to the evidence of PW2, is comprised of the Governor as its Chairman, Deputy Governor, the Permanent Secretary Treasury, the permanent Secretary of Treasury of SMZ and six other members appointed by the Minister for Finance. During Board meetings according to P.W.5, other members of the management also entered for example the Director of Administration and Personnel, The Director of Finance, the Project Manager and the Bank Lawyer.
P.W.2, the Manager of Board issues, testified to the effect that he also attended Management meetings but he never happened as from 2000 to 2008 to see the project being discussed in Management meetings. That was also the evidence of P.W.8, the Deputy Governor who joined the Bank in 2005. P.W.2, P.W.3, P.W.4, and P.W.5, say that the project issues were referred to the Board in extraordinary meetings and members were requested to approve expenditures which had already been done retrospectively. P.W.4, Michael Shirima, a Board member, expressed his dissatisfaction with this bad trend and thought of resigning. P.W.5 NATU MWAMBA, a Board member ,told us that she was not happy as well .P.W.4 took initiative to see the then Finance Minister Mr. Basili Mramba over this issue and was told that the Bank was under the governor who was responsible to the one who appointed him (i.e. the President) and not him. As the time was near to the end of his appointment, P.W.4 got a counter advice not to resign and he agreed.
The accused in his evidence told the court that indeed he was the Director of Administration and Personnel of the Bank of Tanzania from 1999 up to 2008 when he retired. His employment to the Bank is way back in 1973 when he was employed as First Assistant in the Economics Department. He was answerable to the governor.
When he joined the head office from Mwanza where he had been to become the DPA, the project in question was merely in drawings. It started officially in 2002 as alleged. It was under him for purposes of Administration but it had a project Manager who was under the governor. This was Mr. Deogratius Kweka as aforesaid.
His role was to give administrative support i.e. giving personnel to the project by recruiting, training, staff welfare and Estate Management. His other role was to sign letters because Mr. Kweka was not a full time employee of the Bank and had no capacity to do so. He used to sign after seeing approval of the governor. The governor assigned him this role verbally. He proceeded to say that when he spoke of Management in the letter he meant the governor. He denied to have relation with the Board of BOT. He said that it is far from him and that he is not responsible to it. That, the project was under the project Manager who prepared papers and sent them to the Board through the Governor. He agreed to have attended Board meetings but was not the spokesman of project issues.
D.W.1, the accused, agreed that there were changes in the scope of work but he proceeded to say that they were discussed in a committee of experts at project level who were under the Project Manager. The committee had consultants namely D & S Ltd, WEBB URONU AND PARTNERS LTD, INTER CONSULT LTD and TANNCOSULT LTD. They were all advisors of the Bank to give advice to the project Manager who could in turn give a brief to the governor. When the governor needed advice, he would give directions to the technical committee which was under the Project Manager and which could advice accordingly. In cross examination he agreed that it was the Board which had mandate to authorise expenditures. He went on to say that it is the Board which have mandate to authorise changes in the scope of work or approve capital expenditures.
D.W.2, BOSCO NDIMBO KIMELA, the acting Bank Secretary from 2001 told the court that the project was under the Directorate of Administration and Personnel in structure but it was under a Project Manager who was reporting to the governor. He was the main to advisor to the governor on the project. He proceeded to say that changes in the scope of work came from the governor and his expert, the project manager. Project papers usually come from Directorates but it was not the case here. They came from the Project Manager to the Governor and then to the Board. The accused was not involved.
It is now the duty of this Court to weigh and see the involvement of the accused in the commission of the offence as changed or otherwise. Section 96(1) of the Penal code reads as follows;
96 (1)-Any person who being employed in public service does or directs to be done in abuse of the authority of his office, any arbitrary acts prejudicial to the rights of another is guilty of an offence.
Both counsels in their submissions agree that the ingredients of the offence of abuse of office are these:
(a) The accused must be employed in the public service
(b) The accused must have done or directed to be done such an act in abuse of the authority of his office and
(c) The act done must be arbitrary and prejudicial to the rights of another.
It is fully agreed that the accused was a public servant he having worked with the Bank from 1973 up to 2008 when retired. Thus the first ingredient is not at issue.
On the second ingredient, we appreciate the way the Republic tried to define key terms. The definition of abuse as seen in Blacks Law Dictionary 8th Edition and as correctly quoted by the Republic is Departure from legal or reasonable use or misuse. We are in agreement with this definition as well as the definition of abuse of authority given by S.L. Salwan and N. Narang Legal Dictionary 18th Ed (2008). The latter is defined this way; A statutory authority is liable if he does not conform to the procedure prescribed by Law. In simple language, a person is said to abuse the authority of his office if he does or omits to do an act contrary to the Law or proscribed procedures.
In the case at hand we have the project which was to be executed on the terms of the contract, ( Exhibit PI) and Bills of quantities (exhibits P4 A P4 F). This project was not executed as agreed. There were substantial changes of the scope of work which brought about increased costs. On the other hand, we have the BOT which have its structure of administration and ways of doing things which are provided by the Law and regulations. We have evidence which was not contradicted that the Board was the organ with final say in Policy formulation and approval of budgets.
It was stressed and not disputed that all capital expenditures were to be approved by the Board before being used. We have a situation where the scope of work is said to have changed greatly. We have added costs to higher levels. The scope of work changed and big amounts of moneys were paid without following the law and laid down procedures and that the Board was involved at a later stage. As rightly pointed by the defence in their submission, the main issue for determination on the second ingredient is whether the prosecution has proved beyond all reasonable doubt that the accused without mandatory authority of the Bank Management or Board of Directors made a complete change of the scope of work of the project, sought retrospective approvals after the change to the scope of work and executed the project in question without following the law and procedures of the Bank.
We have the evidence from the prosecution that issues of the project were never discussed in the management committee. They went straight to the Board to seek retrospective approvals. The defence in their evidence agree that project issues went straight to the Board but they argue that there was a project Manager who had direct relationship with the governor and it is this person who did it and not the accused. To them, Management meant the governor and not the management committee. They submitted that section 14(1) of THE BANK OF TANZANIA ACT 1995 vest the management of the Bank and the direction of its business affairs in the governor. To them management meant the governor. It is their argument that the accused signed exhibit P5-12 after getting authority of the governor who was the management as such he did nothing wrong. On the other side the Republic have the view that section 14(1) of the BOT Act 1995 have to be read together with S.14(2) of the Act. They argued that the powers of the Governor under subsection (2) are not absolute and they are restricted and confined on the day today Banks operations. They are also subject to the control of the Board. For easy of reference let us reproduce the sub sections as hereunder;
14 - (1) Subject to the provisions of this Act, The Management of the Bank and the direction of its business and affairs shall be vested in the governor and the governor shall, in the exercise of functions of Management and direction, conform with policy determined by the Board.
(2) The governor shall have power to exercise and perform all the functions, powers and duties of the Bank other than any function specifically conferred on the Board ,and to authorise expenditure within the budget approved by the Board.
Having read the cited law carefully ,we concur with the Republic that S.14(1) has to be ready together with s.14(2).The powers of the governor are not absolute. They are limited to the day to day activities of the Bank and are subject to control of the Board. He was rather given power to control the management structures which is provided under the regulations. Even the defence in their submission acknowledges the Management structure as provided for under the BOT financial regulations 2002.Under these regulations as pointed out by the defence, Management means the governor, Deputy governor, Directors, Deputy Director, and such other officers as appointed by the governor.
From the above we have the following findings; that the cited law does not indicate that the governor is the management himself, there was a management team which was under him as testified by prosecution witnesses. It is also our view that the interpretation that management meant one person, with respect, is misleading and practically impossible.
We are now moving to examine the role of the Project Manager. There was a Project Manager who according to the prosecution witnesses worked under the accused person. The defence have told us that he was an independent person operating under the governor. We doubt and could not believe the evidence of D.W.1 and D.W.2 that the Project manager worked as an independent person . Both D.W.1. and D.W.2 were formerly employed in the Bank and are now living together in Keko Remand Prison as suspects of offences which are very much similar. We see that what they said is merely a cooked story and we could not believe them because they appeared as having a common interest to serve. Indeed of the two, the demeanour of DW2 was even worse.
We reject the evidence. The prosecution witnesses on the other hand were straight and we had no reason to doubt them on the question of the relationship between the Project Manager and the accused. PW3 said clearly that the project manager usually initiated payments which were being approved by DPA, the accused. Other prosecution witnesses said clearly as seen above. In the like manner we also reject the evidence that the accused signed the exhibits on verbal instructions from the Governor. We see the BOT as a big and sensitive institution. It cannot give verbal instructions on those sensitive and big issues. P.W.2 spoke clearly that the governor used to give his directions in writings by minutes (dokezo). We see him as speaking the truth. We see the evidence that the accused signed exhibits P5-12 on verbal instructions from the governor as being a fake story, an afterthought (as submitted by the Republic) and we reject it.
But, suppose for sake of argument, one assumes that the governor did instruct the accused to sign those letters, which in our view was the authority which effected the change of scope of work, the situation to us could remain the same because those directives were illegal. They were illegal on two faces. First, they lacked the approval of the Board. The governor had no Mandate to change scope of work and approve capital expenditures without involving the Board .And secondly, the changes in the scope of work were being effected without a Supplementary Agreement. It is our considered view that in order for the changes of scope and additional expenditures to be legal, they were first to be sanctioned by the Board and then to be supported by a Supplementary Contract. Things as they appear to us, there was none of these and that could make all directives and payments made to be illegal whether sectioned by the governor or not.
There is the undisputed fact that the Board used to approve things retrospectively. There are arguments from the defence that retrospective approvals are allowed and legal. With respect, we dont share that idea in the circumstance of this case. We have the view that there was no approval at all. All Board members who came before us were complaining about the way retrospective approvals were granted.
PW4 expressed his serious dissatisfaction with what was going on inside the Board .He lamented inside the Board. He was not happy in seeing the degree of abuses. . He reached the stage of thinking to resign. He said at page 86 of the typed proceedings as follows;
The Board was only asked to approve the already spent amount as authorised by management. Where there was need to change capital expenditures management was obliged to seek for the Boards authorisation prior to the expenditures. As Board member I was not satisfied with the over expenditures.
PW5 said clearly on the following words and I quote from page 99 of the typed proceedings;
...capital expenditures was subject to approval by the Board. Any reallocation found in respect of capital expenditure ought to have been approved by the Board. The governor had no mandate to approve anything on capital expenditure. We approved retrospectively though that was not the procedure.
D.W.4 tendered exhibit P3 which was written by the Board as it was leaving the office entitled; Handover Notes to the In-coming Bank of Tanzania Board of Directors. Page 3 reads in part as follows:-
--- on several occasions, the Board questioned the frequent requests for additional budget approvals and expressed concern that it was being asked to retrospectively approve the increased budget. The Board expressed concern at the violation at the Banks existing internal financial regulations and Procedures...
Work is still in progress, including the completion of the conference Centre, which may attract further costs. We argue the Management of the BOT to closely follow the BOTs internal financial regulations and procedures should there be potential cost escalations
From the above summary of evidence it is clear to our minds that the Board had lost control of affairs and it was merely being bulldozed by the accused and the late governor, Mr. Daud Balali. The accused appear to have been very powerful the BOT ,otherwise he could not manage to sign Exhibit P5-P12. We find and hold that the so called retrospective approvals were not approvals at all on the eyes of the law.
The evidence does not show any documentary directive given by the governor. What we have are papers signed by the accused person. We have seen that the accused had no authority to do so. He did so contrary to the BOT Act, BOT regulations and public practice and procedures. That was a clear misuse of power which is an abuse of the authority of his office. The second issue is answered in the affirmative.
On the third ingredient, we are to examine whether the acts were done arbitrary and prejudicial. The defence in their submission have defined the word arbitrary as a decision founded on prejudice or preference rather than on reason or facts. We have also the definitions given by the Republic on the terms arbitrary and prejudice. We see the way the Republic have explained the terms as being of much assistance to us. Quoting the Blacks Law Dictionary, they have defined arbitrary to mean without cause based upon the Law or not governed by any fixed rules or standard. They have defined prejudice to mean having an adverse effect. So, to them, and correctly so to our view, arbitrary and prejudicial means doing things outside the Law and procedures and which have adverse effect to the other people.
We have discussed at length that what was done by the accused was contrary to the BOT Law which required the Board to approve things before being implemented. We have seen that the accused signed exhibits P5 12 quoting the Management which was not only having no authority to instruct him to do so but did not happen at any time to sit to discuss the project. We have dismissed the evidence that the accused had verbal instructions from the governor to sign the letters. We have dismissed the evidence that there was a project manager who had direct link to the governor who initiated the changes and that the accusers role was merely to sign. We have seen the demeanour of the accused and his witness (who appear as an accomplice in this matter) as being doubtful and their evidence highly incredible. Having done so, we remain with the evidence that the accused signed the letters, which to us contained authority to change the scope of work and added expenditures, himself outside the Law, regulations and prescribed procedures. What he did caused the BOT to spend more on the project.
The added expenditure must have adverse effect to the Board of Directors and in the operations of the Bank and the nation as a whole. We are settled in our minds that the third ingredient have been proved as well beyond reasonable doubts.We are in the final analysis find the accused guilty as changed and convict him accordingly.
........................................ .....................................................
L.M.MLACHA, PRM. B.B.MWINGWA, SRM.
Privious conviction:
Mr Mhamgamila
We have no previous conviction against the accused and leave for the court of decide.
Mitigations:
Mr.Magafu:
The defence pray for the court to look at the following before giving punishment.
1. The age of the accused. The accused is aged 62 and is retired.
2. The accused has a family, wife and children and other dependants.
3. The accused worked faithfully for 35years. He was employed from 1973 up to 2008. Looking at the circumstances of the crime, it is open that he was put to those problems by his boss the governor. He was the one giving instruction.
4. We also pray that you should look into account that he stayed in Remand for over one year.
5. His health is also bad.
6. We also pray for the court to look into section 38 (1) of the penal code .It gives discretion to the court on two ways. The court can give absolute discharge. Alternatively, can give conditional discharge under section 38 (2).
If you will see that section 38 (2) is not applicable, let you see that he was charged under section 98 (1) of the penal code Which has no punishment. if no punishment provided, the court have to go to section 35 of the penal code .It has a fine or 2 years or both.
Section 27 (2)(a) of the penal code has directives. He may be sentenced for a fine or jail or probation. Together with that, where there are alternatives, the court has to give a final first. Where he fails to do so, the second punishment comes. See Salum Shabban Vs Republic (1985)LTR 71. In this case, the High Court said where the legislature gives the option of fine a sentence of fine should first be given. The court took into account decision of the other case Republic Vs Juma Mrisho [1961]HCD 61. They also regarded Mohamed Juma versus Lex. They also examined Nyakukira Vs Republic.They are in the case and I will give to you.
That where fine is involved they should give a fine of the amount which the accused can afford to pay.Even where the offence is very big, the court should consider fine. See also Samweli Mwendareti Vs Republic. When assessing fine, the court should look into the salary of the accused. The accused is a retired officer and his pension is very small. Republic Vs Sino Mwa Vol.II Tanganyika law Report.
Order:
Short adjournment.
Sgd: L.M.Mlacha PRM
24/5/2010
Later :Coram as before.
Sentence:
We have considered the submission of the Republic and the defence .We have gone through the cases and the provisions of the law. Indeed section 96(1) of the penal code does not provide for punishment. This lead us to section 35 of the Penal Code which have a fine and or imprisonment for term not exceeding two years.We have also considered section 38 (1) as well as Section 27 (2) of the penal code.
Having done so, we are of the considered view that this is not a fit case to impose a fine .The current situation in the country calls for a much serious sentence .The nation is going through an era where public institutions are swindled and corruption is on the higher levels .we think the proper sentence is custodial sentence to make a lesson to other public officials who abuse their offices.
We have assessed and we hereby sentence the accused to suffer two (2) years in jail.
Sgd: 1. L.M.Mlacha PRM
24/5/2010
2. B.B.Mwingwa SRM
24/5/2010
END OF JUDGMENT NO:1
**********************
JUGDEMENT NO 2
IN THE RESIDENT MAGISTRATES COURT OF DAR ES SALAAM
AT KISUTU:
CRIMINAL CASE NO. 105 0F 2009
REPUBLIC
VERSUS
ACCUSED ......AMATUS JOACHIM LIYUMBA
DISSENTING JUDGEMENT:
MKASIMONGWA SRM
This case was heard by a panel of three Magistrates. I constituted the panel together with Hon. L. M. Mlacha (PRM) and Hon. B. B. Mwingwa (SRM). After having heard the substances of the case for both parties and after a thorough study on the written final submissions filed by both parties, at the time we were deliberating, we differed. Opinions of my colleagues formed the opinions of the majority part of the court and therefore as of right they wrote the Judgment of the court. I have read the judgment and humbly thought that I should have a dissenting judgment. Hereunder is that dissenting judgement.
Before this Court, stands AMATUS JOACHIM LIYUMBA (later in this judgment will also be referred to as accused person). The accused person was initially charged with two counts, namely:1st Count: Abuse of office c/s 96(1) of the Penal Code.
2nd Count: Causing Loss to a Specified Authority c/s 284A (1) of the Penal Code.
Upon having heard submissions by both parties on a plea of no case to answer this court found a prima facie case not sufficiently made against the accused in respect of the 2nd count, a result of which, to that extent, the charge was dismissed and accused acquitted.
The prosecution alleges in court, as far as the remaining count is concerned, that:
AMATUS S/O JOACHIMN LIYUMBA, on diverse dates between the years 2001 and 2006, within the City and Region of Dar es Salaam being a person employed in the Public Service serving in the official capacity as the Director of Personnel and Administration with the Bank of Tanzania, did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania christened 10 Mirambo office Extension project and implementing the same an act which was prejudicial to the rights of the Board of Directors of the Bank of Tanzania.
The accused person, who is represented by Mr. Mkate, learned counsel assisted by Mr. Magafu, Mr. Ndusyepo and Mr. Kyauke, learned Advocates pleaded not guilty to the charge. With the object of proving the charge, eight (8) witnesses were called to the court and testified in favour of the prosecution. These are SEIF KASANGA MOHAMED (PW1), YUSTO ESEKO TONGOLA (PW2), JULIUS RUTA ANGELO (PW3), MICHAEL SHIRIMA (PW4), NATU MWAMBA (PW5), ANASE SHAYO (PW6), HAROLD HERBERT WEBB (PW7) and JUMA HASSAN RELI (PW8). These testified to the effect that in 1973 the accused person was employed by the Bank of Tanzania. He worked with the Bank in different capacities. In 1999 the accused person was appointed a Director of Personnel and Administration the post which he served until 2008 when he attained the retirement age and therefore retired from the Public Service.
When the Bank of Tanzania was thinking to rehabilitate its offices which were previously burnt, it found that there was a need for extension of its office facilities as there was an increase in the number of staff and the activities of the Bank. The Bank therefore sought for the advice of the Design and Service Ltd Architectural firm to that effect. The firm advised the Bank that there should be built two towers each with twelve (12) storeys. After considering the advice the Bank decided to build two towers with fourteen (14) storeys each. The Design and Services Ltd which designed the former BOT building was assigned to design and then became a Lead Consultant in the project. As a designer and lead consultant, Design and Services Ltd prepared Tender Documents which included both Bill of Quantities and Drawings. PW6 an Engineer working with the Designs and Services Ltd tendered to the court the Bill of Quantities, which are in six volumes, to be exhibits. These were admitted in evidence marked as Exhibit P4A, P4B, P4C, P4D, P4E and P4F. Bids to construct the office were invited and out of all constructions companies that did bid, GROUP FIVE BUILDING EAST (PTY) LTD became a successful bidder. The Company was therefore awarded with the Construction job sometime in 2002. Since the project was to draw funds from the Capital Expenditures type of expenditures of the Bank, it was necessary that the BOT Board of Directors should approve for the expenditures. On the 24th of June, 2002, the BOT Board of Directors approved the contract of Construction of the BOT building. The contract was eventually executed on the 25th of June, 2002 between GROUP FIVE BUILDING EAST (PTY) LIMITED and the BANK OF TANZANIA. PW1 tendered to the court as exhibit the Contract document. The same was admitted in evidence and marked as Exhibit P1.
The prosecution evidence also shows that the executed contract provided for scope of works. This includes Construction of the North Tower to a 14 storeys building, Construction of the South Tower to a 14 storeys building, Construction of a conference centre, Construction of a car park and External works at a consideration of USD 73,600,000.00 only. In the course of work, PW7 of WEBB URONU AND PARTNERS LTD, the Quantity Surveyor, told the Court that the scope of construction changed. The scope changed as a number of floors was increased to 18 on each Towers, Conference facility was amended, car park was changed, a North Block was built, Basement was constructed and external works were changed. PW7 contended that the changes were instructed by the lead consultant, Design and Services Ltd. PW6 confirmed this story and indicated that it is the client who brought about the changes. He added that the client communicated of the changes in writing. PW6 tendered to the Court as Exhibits letters that authorised for the changes. The letters were admitted in evidence and marked Exhibit P5 through P12. All the letters were signed by the accused person, AMATUS JOACHIM LIYUMBA, the Director of Administration and Personnel of the Bank of Tanzania. PW6 contended further in evidence that all correspondences with the Bank were done through the Directorate of Administration and Personnel. The accused shows in the letters that Management of the BOT has approved for the changes to be effected. However, PW2 and PW3 the Director of Finance and Deputy Governor of the BOT, respectively, who are among the members of the BOT Management Committee told the Court in evidence that the BOT 10 Mirambo Office Extension Project was never discussed in Management meetings. Management of the BOT, therefore, did not approve for changes on scope of work in the project. PW2 but, told the court in evidence that the BOT Governor Constitutes one face of Management of the BOT. The Governor may, in his own make Management decisions. The other face of Management of the BOT, PW2 told the court, is that which is comprised of the Governor, Deputy Governor and all other Directors appointed by the Governor. According to PW8 it is not possible for a Director within the BOT to make any decision without the knowledge of the Governor.
PW2 and PW8 who had also an opportunity to attend in the BOT Board Meetings contended in evidence, that normally, the Board of Directors discussed issues concerning the Project in Extra Ordinary Meetings. It is in such meetings when the Board received the Projects Progress Reports and requests for approval of the already made decisions and expenditures. PW4 and PW5 who were among the Board Members confirmed this evidence given by PW2 and PW8. PW4 and PW5 added, that always the Board was not pleased when Management sought for retrospective approvals of the decisions and expenditures already embarked in, therefore it rebuked of the practice. Showing that he was not so satisfied, PW4 complained to the then Minister of Finance but was not successful. He did not resign when he thought that, under such circumstances it would be better to do so. When handing over their activities to the incoming Members of the BOT Board of Directors, outgoing ones prepared a Hand over Note, Exhibit P3 which shows their concern on this matter. Both PW4 and PW5 stated in evidence that projects progress reports presented and requests for retrospective approval made to the Board were prepared and presented under the coordination of the Director of Administration and Personnel, that is, the accused person. It is evidently shown by PW7, who tendered to the Court the Projects Anticipated Final Account, Exhibit P13, that changes on Scope of work also changed the contractual sum from USD 73,600,000 to USD 357,675,568.
It is from this evidence, in short, the accused person was apprehended and eventually, changed with the offence he is now facing in court.
On the other hand the Accused person sought to give his evidence in defence under oath. He called one witness namely BOSCO NDIMBO KIMELA (DW1). In his defence the accused person contended that he was employed by the Bank of Tanzania, as First Assistant in the Economic Department sometime in 1973. In October, 1999, he was appointed a Director of Administration and Personnel (DAP) of the Bank. He retired in 2008 after attaining a retirement age, while serving the Bank under that capacity. As a DAP he dealt with facilitation and administration of the Bank in the estate and personnel matters. His immediate boss was the Deputy Governor one JUMA RELI (PW8) and overall was the Governor Mr. DAUD BALALI (Deceased) to whom he was answerable. The accused knows the 10 Mirambo Office Extension project, which for the purposes of administration was under his Directorate. The Project was under the Project Manger Mr. DEOGRATIUS KWEKA. The later was not a permanent employee of the Bank of Tanzania. He was employed on contract specifically for that project and was answerable to the Governor. This same story was told in court by DW1 when was testifying infavor of the accused. DW1 added that, the Project Manager was an expert in construction and was the lead adviser of the Governor on the day to day activities of the project. With the project manager there were consultants. The accused went on telling the court in evidence that, he was providing for administrative support to the project and since the project Manager was not the BOT permanent employee the Governor nominated him (accused) to sign on the letters relating to the project. He, therefore, signed on the letters from the BOT to the lead Consultant. In his absence, such letters were being signed by his assistant.
As regards to correspondences between the lead consultant and the BOT, the accused told the court that all letters from the lead consultant were brought to the Governor who sent them to the project manager for him to analyse. For those letters which were brought to him (the accused) he took them to the project manager. This was because the Project Manager was trained in Engineering and they (Governor and DAP) were not. Any advice to be given by the Project Manager was given to the Governor and he (Accused person) signed on the letters from the BOT after he had seen approvals or disapprovals of the Governor. Also the accused contended in evidence that he signed on the letters, tendered and admitted in Court as Exhibits P5, P6, P7, P8, P9, P10, P11 and P12, which were addressed to the Lead Consultant, Design and Services Ltd. These were, respectively, responding to the Consultants letters with Ref. No. 464/04/4/696, 44/04/4/146 and 46/04/1486, 464/04/4/2619, 464/04/4/2620, 464/04/4/4326. 464/04/4/4337 and 464/04/2343. The letters were written using correspondence Files Ref. No. 3105/5, Ref. No. 3173, Ref. No. 3173/2, Ref. No. 3174/VI and 3129. The Accused alleged in evidence that the correspondence files used were under the custody of the Project Manager. In all letters (Exhibit P5-P12) the accused said the BOT Management has done what is told by the letters. By the term Management, the accused meant the Governor as it is provided for by the BOT Act.
The Accused person testified further to the effect that he had no direct link with the Board of Directors of the BOT. He added that he was not appointed by the Board of Directors, therefore, was not answerable to the Board of Directors. His role to the project was to provide for administrative support and sign on the letters. Anything from the project to the Board was sent by the Governor. The Project Manager prepared Board Papers which were presented to the Board by the Governor or his Deputy. Since he had no direct link with the Board, the accused said, he could not seek for retrospective approvals from the Board.
As regards to the changes on scope of work, the accused person said, were discussed in the Executive Committee of the Project. The Committee was composed by three Bank Consultants and the Project Manager. The Consultants were Design and Services Ltd, Webb Uronu and Partners, Inter-Consultant and Tan-Consultant. These were employed by the Bank specifically to advice the Governor on the project. The advice given by the Committee was directed to the Governor through the Project Manager. As to who could direct for the changes, the accused told the court that it is the Governor. In that case, the Governor gave directives to the Project Manager who took the matter to the Project Executive Committee for analysis of the idea. The Committees advice was sent back to the Governor through the Project Manager.
When Cross examined by Mr. Juma, Learned Senior State Attorney, the accused person contended that in the Bank of Tanzania there are Recurrent and Capital Expenditures. Changes to Expenditures must be approved by the Board. As the Project fell under Capital type of Expenditures of the BOT any change on the scope of work or amount of money to be spent should have been done by the Board. The accused added that there was the Executive Committee of the Project which advised the Governor on the Project.
The Accused further responded in cross examination that as Director of Administration and Personnel he dealt with recruitment, training, staff welfare and Estate Management. The Bank of Tanzania has the Estate Department. This department did not deal with this project from the Magnitude of the project itself. The Governor verbally authorised him to sign on the letters. Upon recommendations of the project Manager derived from the advice of the Executive Committee the Governor made decisions which are clearly shown in the correspondence files. He added that there are many letters of this similar nature, which were signed by other people, but the Prosecution has not brought them to the Court. Technical issues could not be discussed in the Management Committee meetings; instead they were discussed in the Project Executive Committee. He went on telling the Court that in this project the client was the BOT and it is the Governor who decided on various issues on behalf of the BOT. The Project got a yearly budget and it is on the basis of such budgets it was implemented. Management is defined in the BOT Act and Management Committee in the BOT Financial Regulations. The Committee does not make any decision, it only advises the Governor. The Governor had mandate to change scope of work of the Project.
When re-examined by Mr. Magafu, learned Advocate, the accused person told the Court that it is the Board of Directors of the BOT that had a final say over the project. The Project Manager prepared Board Papers which were approved by the Governor and then circulated by the Secretary to the Members. He could not issue the letters, Exhibit P5-P12 if there was no approval by the Governor.
In his testimony, DW1 told the Court that he joined with the Bank of Tanzania in 1995 as a Legal Officer. From 2001 2006 he was working with the Bank as the Acting Bank Secretary and Secretary to the Board of Directors. DW1 knows the 10 Mirambo Office Extension project, which he said, going by the BOT structure was under the Directorate of Administration. Changes on scope of work of the project were under Management as defined in the BOT Act and it means the Governor. The Governor as Management, Project Manager and the Consultants discussed about changes on scope of work. Their settled decisions on the changes were taken to the Board. In taking the matter to the Board, the Project Manager prepared Board papers and took them to the Governor for his approval. If approved, the Governor gave the papers to the Secretary for him to process. In this process the Director of Personnel and Administration was not involved. In the Board, the papers were presented by the Governor or Project Manager. There was no time when the Director of Personnel and Administration (accused person) brought any matter to the Board without the approval of the Governor. This also applied to all directorates. As a Secretary to the Board, DW1 was only getting all Board papers from the Governor. The Accused had no any decision to make regarding to the project.
On being cross-examined by Mr. Juma, learned Senior State Attorney, DW1 contended that he is under Remand custody at Keko prison for the case involving Bank Notes Preparation Tender Process and Criminal Case No. 1162/2008. The accused is also in Keko Remand Prison and they meet while in the prison. To the court they travelled together. He has been attending Board Meetings from 1992 as the Legal Services Manager. In 2000 he became an Acting Bank Secretary and Secretary to the Board. He remained so for eight (8) years. Under him there was YUSTO TONGOLA. The BOT has two types of expenditures. These are Capital and Recurrent Expenditures and the Board had powers to change on expenditures. The project in question fell under the capital expenditures of the Bank. The project was approved by the Board and he (DW1) was present when it was so approved. DW1 does not remember if there was another contract in respect of this project. In several times the Board was requested to authorise changes on scope of construction. Some were made after and some before the changes. The Bank Management according to the law means the Governor. Financial Regulations define Management as the Governor, Deputy Governor, Directors and Deputy Directors. Management had no mandate to change scope of work.
That is the whole evidence in this matter. The prosecution as well as the defence filed final submissions which will be also, regarded in this judgement. As it is pointed out in the Final Submissions of both parties the offence with which the accused person is changed is composed of three ingredients. These are:
1. That the accused must be employed in the Public Service.
2. That the accused must have done or directed to be done such an act in abuse of authority of his office, and
3. That the act done must be arbitrary and prejudicial to rights of another.
In analysing the adduced evidence, I find not disputed that in 1999 the Bank of Tanzania made a decision to extend its offices situated along Mirambo Street, Dar es Salaam. The contract to construct the office in that project, (10 Mirambo Office Extension Project) was executed on the 25th of June, 2004 between the BANK OF TANZANIA and GROUP FIVE EAST (PTY).LTD. The contract whose contractual sum was USD 73,600,000 provided for a scope of work to include:
1. Construction of the North Tower to a 14 storeys building
2. Construction of the South Tower to a 14 Storey building
3. Construction of a conference centre
4. Construction of a car park
5. External work.
Going by the evidence I also find no dispute that in the course of work scope of work changed from that which is stipulated in the contract as follows:
1. 18 floors were built on each tower
2. Conference facility was amended
3. Car Park was changed
4. A North Block was built
5. Basement was constructed
6. External works were changed.
There is ample evidence and in fact it is not disputed that the changes, which also changed the contractual sum to USD 357,675,568 were brought about by the client, Bank of Tanzania. The client communicated the changes to the Lead Consultant, Design and Services Ltd in writing as evidenced by Exhibits P5-P12. These are letters from the Bank of Tanzania to Design and Services Ltd. The letters were signed by the accused person, Director of Personnel and administration. The Directorate of Personnel and Administration was the coordinating Directorate and all correspondences with outside the Bank in respect of this project were channelled through this Directorate.
I also find no dispute that since, the project fell under, the Capital Expenditures type of expenditures of the Bank the Board of Directors was the only organ vested with powers to approve budgets or expenditures in this project. It was a normal practice, however, that Management of the BOT sought for the approvals retrospectively and that was in violation of the set internal Financial Regulations. The Board showed its concern on that practice as it evidenced by Exhibit P3, the Handing over Note. Despite of that concern, the Board did retrospectively approve the deeds of Management in the project all the times Management sought for the approval.
Coming back to the elements of the offence shown above, I find it is not disputed that during the period the alleged offence was committed the accused person was an employee working with the Bank of Tanzania which is a public institution. He was so working at a capacity of the Director of Personnel and Administration. If, therefore, one is to ask whether the accused person was employed in the public service as the first element of the offence requires, the answer will be in the affirmative. I, therefore, find and hold that the accused was employed in the public service.
The second element of the offence requires that the accused must have done or directed to be done such an act in abuse of the authority of his office. It is alleged by the prosecution that:
did abuse the authority of his office by arbitrarily undertaking major decisions in the construction project of the Bank of Tanzania
From this allegation if one asks as to what the accused did to fall squarely with the second element of the offence, it is my view that according to the charge sheet the answer will be arbitrarily undertook major decisions in the construction project of the Bank of Tanzania. The charge sheet does not state what were the major decisions made or undertaken by the accused in this project. The evidence, however, shows, the decisions the accused undertook were instructing the Lead Consultant for change of scope of work in the construction of the buildings as evidenced by Exhibits P5-P12. In fact, the whole prosecution case is based on these exhibits. The Exhibits, conspicuously, show that they were signed by the accused and the accused does not dispute on this fact.
As to whether he had powers to sign on them I think is material wealth to decide. The accused person contended and in essence it has been shown by some if not all prosecution witnesses that, the project had its Manager one Mr. DEOGRATIUS KWEKA. Mr. Kweka was not a permanent employee of the Bank of Tanzania. He was employed on contract basis to provide for the services of the project Manager to the Bank. According to the accused and it was not challenged in cross examination, since Mr. Kweka was not a permanent employee of the Bank, he was not the Banks signatory. The accused then contended that, he was nominated by the Governor to sign on the letters on behalf of the client.
He was so nominated or assigned verbally. When was testifying in court PW2 said that, the Governor gives instructions or decisions by issuing a minute. In this case when the Governor instructed the accused to be a signatory there is no evidence showing that he issued a minute to that effect. The question I will endeavour to answer here is whether authority to sign on letters was given or not. In my view, a written authority of the Governor here is immaterial. What is clear to me is that this project was put under the Directorate of Personnel and Administration.
That did not happen by design. The accused told the Court that within the BOT there is the Estate Department. The department is under the Directorate of Personnel and Administration, to which he was the Director. Essentially the project was to be managed by this department. However, the magnitude of the project necessitated for employment of the Project Manager. This story was confirmed by DW1 who told the court that going by the BOT structure the project was under the Directorate of Administration.
Even the prosecution evidence vividly shows that the project was under the coordination of the accused. From this evidence, I am of a settled view that the Directorate of Personnel and Administration to which the accused was a director was the project hosting directorate. Under such circumstances since the project Manager had no powers to sign on the Bank correspondences, it goes without saying that the Director of Personnel and Administration by virtue of being the overseeing Director had powers to sign on the letters after he had satisfied himself that the message he was delivering to the other side has been approved by the respective authority.
As aforesaid, the accused did sign on the letters that constitute Exhibits P5-P12. Except for Exhibit P5 and P8, the accused mentions, Management to have approved for the changes of scope of work. It is true as the prosecution submitted that PW2, PW3 and PW8 who were members of the BOT Management told the Court in evidence that there was no time during the project did management of the Bank of Tanzania discuss and approve changes on the scope of works to the project. It is important to discuss and decide at this juncture what is meant by the term Management within the BOT.
Supported by DW1, the accused contended that by the term Management he meant the Governor as it is provided for under Section 14(1) of the Bank of Tanzania Act No.1 of 1995. For easy reference I hereunder quote the section:-
14(1) Subject to the provisions of this Act, Management of the Bank and the Direction of its businesses and affairs shall be vested in the Governor and the Governor shall, in exercise those functions of Management and direction, conform with the policy determined by the Board.
In their submissions the prosecution contend that, referring Management as the Governor is not a proper construction of Section 14(1) of the Bank of Tanzania Act, 1995. The
Prosecution is silent on suggesting what would be the proper construction of the above section of the law. What is clear to me from the section is that the Governor of the Bank of Tanzania is vested with the Management of the Bank and shall exercise functions of Management and Direction. No one is possessed with powers to exercise functions of management if he himself is not management. Since the Governor of the BOT is empowered to exercise functions of management, he is Management. I agree with the prosecution that such powers are not absolute. He has to observe both the policy as determined by the Board and budget approved by the Board.
When was testifying in court PW2 stated that:-
Management Committee was composed by Members under the Chairmanship of the Governor. Other members are Deputy Governor and all other Directors who are appointed by the Governor. The BOT Management has two faces. One is that of the Governor himself. That is the Governor may give Management decision. The other face is that I have shown above.
From my interpretation of the above section of the law and the testimony of PW2, I find and hold, therefore, that the Governor constitutes Management of the Bank of Tanzania and when it comes to the Management Committee the same has several other members.
When was testifying in Court PW8 told the Court that:
Management Committee discusses all operational works. It is again an advisory committee; it does not make decision
I learn from this testimony of the Deputy Governor that, powers of the Management to discuss on issues are limited to operational works. The implementation of the project in issue in my view is not the Banks operational works. It is no wonder therefore, as the defence evidence shows, an independent Executive Committee composed by technical people was established under the Project Manager to play an advisory role on the project, advising the Governor.
The only question put by the Senior State Attorney against the accused person during cross examination regarding the Executive Committee got the answer that There was the Executive Committee of the Project. This does not suggest if there was any contradiction to the fact that there was an independent Executive Committee of the Project which gave advice to the Governor on the project. All in all there was possibility as the accused says in defence that, changes on scope of work were authorised by the Governor as management. The term possibility I have used above suggests that there is doubt.
In my opinion to clear such a doubt the Court should have been brought to the point of seeing all the letters Exhibits P5-P12 were referring and responding to. I am sure the letters and their route within the BOT office, clearly show who was the addressee, if the addressee saw them, the action taken by him, directives given by the addressee, who was to comply with the directives, whether the directives were complied with and how the directives were complied. One may think accused ought to have brought those letters to the court to clear the doubt. I am not in support with such a line of thinking, because that will amount to raising the standard of proof on the part of the accused to that of beyond all reasonable doubt. The prosecution knows the letters, which have been clearly referred to in Exhibit P5-P12. They ought to have brought them in court to show beyond reasonable doubt that Management did not take part in approving the changes, as the accused purports to show. Failure to do so the court is left to think, that it may be true or not true that Management approved for the changes. It is doubtful. Such a doubt as a rule of law is to be determined in favour of the accused person. I find and hold that the changes on the scope of work were approved by Management, particularly the Governor and the act done by the accused was of conveying the approval to the lead consultant and not undertaking major decisions in the construction project of the BOT as the prosecution alleges.
Next, I think, it is important to determine whether the Governor had mandate to approve for the changes on the scope of work. As afore said the Management powers of the Governor are subjected to the policy and budget determined and approved by the Board of Directors. I have attentively read Exhibit P3. On page 3 of the Exhibit at item (ii) Twin Towers, the outgoing members of the Board are quoted writing that:-
There is no doubt that the BOT required a purpose built facility to meet its current and future needs. There are, however, certain aspects of the facility and its fittings which could have been omitted without compromising the efficiency and practicability of the building.
Going by this verse one may learn that when this project was being implemented, the BOT policy was to have an office facility that meets its current and future needs. Aspects of the facility and its fittings should be reasonable to allow for efficiency and practicability of the building. The exhibit does not show whether the Board had concerns on violation of this policy if any. One can understand why the Board members were silent on this. It is because change on the scope of work which was done by management in order to achieve the policy was part of the implementation of the policy and this is the activity of management and not the Board. The Board had its concern on the Budget when it said:-
On several occasions the Board questioned the frequent requests for additional budget for approvals and expressed concern that it was being asked to retrospectively approve the increased budget. The Board expressed concern at the violation of the banks existing internal financial regulations and procedures
The evidence we have in this case, shows that apart from such concerns the Board approved requests for retrospective approvals of the increased budget every time they were sought by management. In, my views this was done not without justifying reasons. Therefore were justified. One may wish to ask here, what was the effect of the retrospective approvals of the increased budget by the board. Before the question is answered it is important to note here that by giving retrospective approvals the board was acknowledging that it had powers to do so. Secondly, that their minds led them to the fact that whether retrospective or not their approval remained proper approval. Coming back to the question above, once approved the increased budget, the board not only blessed the deeds of the Management, but also, it owned the process and the budget itself. Under such circumstances it can be successfully deemed that Management had properly acted. Since Management had properly acted in the process, it cannot be thought that the accused person acted upon unlawful instructions or decisions of the Governor (Management).
In the light of the above discussion, as regards to whether the accused had done an act in abuse of the authority of his office my answer is no. Although the accused was the writer and signatory of Exhibits P5-P12, by writing and signing the letters he was not in abuse of the authority of his office. Similarly my discussion above demonstrates how the writing and signing of Exhibits P5-P12 by the Accused was neither arbitrary nor prejudicial to the rights of Board of Directors of the Bank of Tanzania.
I conclusion it is my firm finding that the charge against the accused person is not proved beyond all reasonable doubt. The Accused is therefore given a benefit of doubt in which case I dismiss the charge and accordingly acquit him under Section 235(1) of the Criminal Procedure Act, 1985.
Dated at Dar es Salaam this 24th Day of May, 2010.
E. J. Mkasimongwa
Senior Resident Magistrate
24/5/2010
Order:
Judgment delivered in open court in the presence of both parties this 24th Day of May, 2010.
E. J. Mkasimongwa
Senior Resident Magistrate
24/5/2010