JUGDEMENT NO 2
IN THE RESIDENT MAGISTRATE'S 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 Project's 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 Consultant's 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 Committee's 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 Bank's 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 Bank's 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 bank's 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
