19741221 TZHC Arusha

.i•; AT ARUSHA APPELLATE JURISDICTION o HIGH COURT CRIMINAL APPE4L NO. 168 OF 1973 ORIGINAL CRIMINAL CASE NO. 225 OFI 1972 OF THE DISTRICT COURT OF KOROGWE. DISTRICT AT KOROGWE • BEFORE:- T. B. MIHAYO, Esq., Resident Magistrata. • ABONIKEMWALTJ1GU ............... APPELLANT 0 (Original Accused) versus THEREPUBLIC . . . . . . . . . . .•• . • • • • • a ... . .,.., REONDENT • ' ' S (Original Prosecutor) CHAR:GE:_ 1st Count:- Personáti'ngPublic Officer, 0 - c/s 100 (2) of the Penal Code. 2nd Count:- Obtaining money by false pretence, c/s 302 of the Penal Code. 3rd Count:- Uttering false document,'c/s 342 of the Penal Code.' '0 JIJDGE?NT . MAKAIVIE, J. The final determination of this appeal was very much ';.'delayed because of the appellant alleging in his'Memoraudum of Appeal, falsely now as it turns out, that at, the time he 'is' • said to have committed the offences at Kqrogwe, in May 1970, he was 'in fact in prisOn. There had to be a lot of correspondence •. before the appellant submitted. a document purporting to set out. the various times he says he was in penitentiary confinement. in it he asserted, among other things,' t,hat he ws in, remand prison at Dodoma from April 1970 until 18th September that year • ' when hewas sentendedto'be jailed fortwo years. 'That would have, eat1y öovered''th.e relevant period, 'May 1970, but it now traiisp.ires that in fact he was not remanded in prison at Dodo.ma -until July 11th that'ëax. On. his own'account' the ws not • ........ 1êwhere iiterned before that. since his releasfrorn political detention in November 1969. It means therefore.that in May 1970. he was a free man .and.could ided have been at Korogw'e and that his untrue contention only succeeded in'deJ.aying the det'erthination of his appeal. ' .. I am cuite satisfied that the appellant is a seasoned árook and that he was indeed the person who., under the name of ASWILE ROBERT, falsely obtained several thousands of shillings from a bank atKo±ogwe after he had successfully' duped the then Area Secretary Korogwe, EVARIST MZIRAY, into authorizing his • being paid the money after he had falsely told him he was a • surveyor engagèiF: on Ujamaa village.s in Kilimanjaro and Tanga Regions, and that he was hurrying down south to Nachingwea where the Second Vice President was awaiting him.. The appellant had before that. done his 'gxound work rather welL: He had made or, caused to be made two telephone cal,1 to the Area SeOretary's Office, .Korogwe, pretending. tha 1t they were 'variously from a Mr.. Sabugo,.Assistant Principal Secretary Regional'Adrnins'tration nd Rural"Development, who was non- existent, and the Area Secretary, Moshi; both of.which urged that he be paid the' money to pay labourers who had worked with him. He cleverly' studded one of the messages with such a detail 'as that he, the appellant,.., should not worry as his wife had safely delivered, obviously so as to make his story sound more plausible. The Area Secretary who must have spent,, quite sometime with the bogus surveyor told the trial court that the appellant was that person, as did also the Area Secietá±y'sChief Clerk, LUSING-U CHAMBIIA. Thexe was' aLso eridence by In?pcto' TARIMO that the appellant was at'Lungano Lodging the preious.'night and that he heard, the appellant saying that he was Aswile. Robert and a surveyor. He also saw the appellant givin his brief—case 'to the keeper of the lodging as s'abuitr ,for'.some beer he promised to pay for the following day. That Inspector Tarimo said the appellant eaid 'is 'd 'garnished ,with details " that one might wish to take Tarimo's testimony with a pinch of salt, but Mama ROICffQ, the wife of the owner of Muungano Lodging, matëriälly suppor'ëd Tarimo... 'm satisfied it was the appellant who went to Korogwe and got the oey unlawfully. .' I am in respectful agreement wQh Mr. Osinde, learned advocate forthe Republic, that the'learned District Magistrate ought to have convicted on the first count Personating a Public Officer, contrary to Section 100 (25 ofthe Penal Code. I am of the considered view that, with respect, it waswrong on the part of the trial magistrate to assert that there was no evidence that the telephone caflerwasin fact the appellant. There was in my view enough evidence from which reasonably' tu infer that in law the appellant was responsible for both calls. That, howcve, is clearly besides the point. The chaigedid' not allege that the appellant falsely said he was Sabugo, or the Area Secretary Moshi but rather that h& saidhe was a surveyor in the'.public service..That,'iswhat.the'appellant falsely said at the Area Secretary's Office Korogwe and he went there for. the purpose .ofdoing any act '(in this :casa col.lcting money) by virtue of such e'mpl:yment'. Un'ikeunde Sub—sedtion (i). of SectionI0 under: sub—section (2) an accused prsoi does not have.., to :prsonate y person, in which the present case would be :Sabugo or the Area Secretary Mohi: 'the offence is committed by ar accus'ed person when., he falsely represents himself 'etc. I acoordin,gly convict the appellant on th. first count in substitution of the acquittal and impose a sentence of twelvemonths. The conviction on the second 'Count, Obtaining by fel'a pretences, was .decidely sound and ,the appellant has not rased any issue of weighty substance against it... The jail senteáe of three years was richly deserved. I accordixgiy dismiss the appea1 on this count. The sentence i's to run concurrently,"with the óne on the first count, ' The learned trial magistrate who otheiwise 'wrote" a good udgewent would be well advised to be less hurried in his work. I quite agree with bhe learned State Attorrey that the trial magistrate did not at all deal with the third Count,, Jt"bering false documetts.' 'He got, thoroughly mi±ed up, when he' sad Th money involved was shs.400/= and 8545/5on different cheques. This was or imprest and payment of labourers respectively. The offencewäs committed on the same day and almost similar m.tsrepresentation. I The cheques were cashed on 21/5/72. I do not know why there shoi,1d be two counts of obtaining money by false pretences preferred against the accused". There were of course No two counts a1leging)a"g money by fale ,retences. a,, The second count alleged. he Obtaining of s.894/25, 'that is the two sums, together, shs.8,545/25 and shs.400/=. count 3 charged . the Uttering of the two 6beques for the two' sums and the • appellant did certainly utter them at the bank, as Evari.st. Mziray said, and as the magistrate himself impliedly found. He presented to the bank so that they should be cashed, the two cheques which he signed in a manner which made them, false within the meaning of Section 335 (d) of the Penal Code. That count was different and distinct from the second one and the trial magistrate clearly misdirected himself. The appellant' should have' been convicted on this count as well. I find him. guilty of the Offence of Uttering and accordingly bonvict him. I sentehce him to imprisonment for three years, to be served concurrently with the two terms. Thrther evidence of the trial magistrate apparent haste is in one other matter. The public prosecutor was allowed to tender the exhibits as exhibits. He could not properly : . av h e tendered, them as exhibits for the simple reason that he was not a witness and could not therefore be cross—examined.. The most he could have done was to produce them for identification. As it is, the exhibits were not properly before the trial Court. The convictions are however sustainable without them. One last remark is, I think it would have been more elegant workmanship on the part of the Republic to make the Count of Uttering, as the second one and the one of Obtaining the third one, rather than vice versa, because quite obviously the appellant must have first uttered the cheques before he obtained the money. Appellant absent, unrepresented. OSINDE for the Republic. (L. M. MAKA1VtE) JUDGE. Delivered in Court this 21st day of October, 174. /IVITPM.