20000403 TZHC Arusha

.J IN THE HltGH COURT OF TANZANIA M:I:ee;. CRIMINAL APPEAL NOo 49 OF 1999 (ORG. NGORONGORO D/COURT AT NGORONGORO CR]}1INAL CASE NO. 7 9F 96 AMINI MARTIN MZIRAYoo•ooo•ooAPPLICANT VRS ( i' T:Fffi RE PUBLIC • ., • o • ... • • • • • • • • RESPOND::•:'.::' ( -·--- JUDGEMENT . \\ Before the District Court af Ngorongoro District, the Appellant was being charged with 7 counts. These were :- ( i) Conspira.cy to defraud c/s 306 of the Penal Code ( .. ii) Stealing by publ~c servant c/ss 270 and 265 ·of th~ Panal Code~ ( iii) Forgery c/ss 338 and 337 of the Penal Code ( lii ) Forgery c/ss 333 and 33~ of the Penal .Code (v ) Uttering a false documen~ a/s 342 of the Penal Code, •· c/s '.)42 of the Penal Code, (vi ) Uttering a false document and (vii) Fraudulent f~lse accounting by a public servant d/s 317 of the Penal Code. In the first two counts, the Appellant was being jointly charged with one John Isuja who was the second accused, who was acquitted at the conclusion of the triale The c~:·~;el ~.3l1t did deny all the chargesc However at the end of the trial he was found guilty as charged in all the counts save the 1st count of,conspirary,. He was thus convicted and sentenced to three (3) years imprisonment in all the co~~ts except on the 2nd cou~t for which he was sentenced to five (5) years jail Being aggrieved by the convictions and the sentences he is appealing against the same. In

this appeal, he is being represented by Mr., Makange learned advocate. The evidence by the pras:ecution which led to these convictions was as follows,i Prior to his arraignment the Appellant was an employee of the Ngorongoro District C uncil o~ the C,uncilQ He was the G')uncil I s Acting District en1sineer - Works (Ujenzi) ~ ·~ Departiment., Among the many other empl·oyees of the council ..\¢0 ,. were working with ~he appellant, were: PW 1 Enigenja Michael Msuya, PW 2 Jaffary Mbaraka, PW 3 Athmani _Juma, PW 4 .;c.• Qchim r1sae, PW 5 Iddi Rajabu, PW (; Fidelis ale Kashe, and PW 8 Narro Mohamedo As of December, 1995~ PWl ••o•~oo/2 .. I j ' 2 was a Registry Assistant in the council~s accounts department. PW 2 was a Store-Keeper in the Education Department. PW 3 w~ the operator and driver of the council's caterpillar tractor (or simply the tractor). P&Wa4 WD,s the Ngorongoro District Executive Director (or DED)e , PW5 was the· store-keeper of the Ujenzi department.· . PW5 was. the _c.ou,1:i-cil' s Chairman, while .PW 8 was the council's office: supervisor anu its Acting Treasurer. Among the assets owned by the council was a caterpillar tractor. The said tractor was out of order for quite some time prior to December,· 1995· f ,..i vus left lying,idle at the home of the Appellent' s co-accused at t>-1e trial, John Isuja, at Wasso village. Isuja was·the council's s Road

Foreman•/.:.9metimes in September, 1995 the council received some spare parts, being a donation by the Prince of the Arab Emirates, for their tractor •. · The· said spare parts were received at KIA, . on behlf of the council by PW 6 in th0 presence of the District 0omnf. ,sioner for Ngorengoro one Elias Goroi. The c,aicl spare parts were then t . handed to John Isuja and PW 3o These Spare parts wmi~:- ( i) 2 oil filters, ( ii)· 1 piece of -fuel filter element (iii) 2 batteries (iv) 2 pieces of caterpillar tractor air cleMer (v) I piece of gasket,. (vi) · 2 fan,.belts 1 (vii) 12 pieces of pistor rings, (viii)7 pieces of main bearings, (ix) 4 pieces of chwnbers (x ) one piec~ of chamber seal, (xi) one cup of cylinder head, and (xii) 4 pieoes of control oearingo _. These spare parts were tendered in evidence at the trial of the Appellant, without and objection from him by PW3 as Tuch., P.·8 1-12• • • • 0. 0 ./3 .,. 3 Om18/12/95, PW 4 left Loliondo (his duty station) 'for Arusha town on duty to participa.t'e in the selection of ex-std. VII pupils ·· who were ~o jo:in secondary schools in 1996. Thereafter he proceeded on (h:L3 annual) leave.. He reported back at Loli~ndo for duty 23/1/96. Du:dng his absence one Nicholaus Kombe acted· as the DoE~_D., On 19/12/95, in his capacity as acting District Engineer, the Appellant applied for special imprest for Tshs. 5 1 188,000/= for

the purpose of purchasing some spare parts for the council tractoro The a;pplication was processed by PW8 and eventually" authorised by the acting D.E.D A payment voucher, No.5/12.,{ for the said amount v.''1.S then prepared and duly authoriscde This ~IV was tendered in evidence as Exh Pol.A cheque, No. J 00226134 dated 19/12/1995 Exh P.. 2 for Tshs 5,188,000/= was then issued iti the name of the Appellant by PWl, -The Appellant encashed the said cheque on 20/12/1995 at the N.BoCe Loliondo Branch. All this evidence was not disputed by the nppellant. On 21/12/95 the Appellant called on PW 2 at his officeo On that day PW 2 was in possession of and driving the council 1 s·motor vehicle (m/v) Reg .. No • .STH 5005 11 rrake Suzuki,. The Appellant requested PvJ 2 to dri vc him to Wasso Village to ferry .some spare jarts. PoW.2 t:1en drove the Appellant to the home of John Isujao The Appellant disembarked f;rom the vehicle and entered Isuja 1 s house while PW 2 remained in the vehicle, When the Appellant re-emerged from fhe house, shortly later, he requested PW 2 to drive-Lim to the home of PW 3 which was at the same vilJ.~,:c-:: They drove there and after. fetc'.:1ing P. Wo 3 the trio drove ba.ck to Isuja ts residence., icccording to P~/3 the Appellant told him that they· _\vere goine to coll"",:-.+- the . tr2~t::ir spare parts from Isuja 1 s residence and stoJre them at the

Ujenzi Store,, Once back at the residence of Isuja? the Appella'Ylt and PW 3 disembarked · l. from the vehicle ru1d the two entered the house,. The Appellant then told Is11ja that he was taking the caterpillar spare parts because they were not sufficient to be fitted onto the i;ractt,r and that he ~as going to keep t~~m at store of Ujenzj. Isuja had no objectiono They then took the spare parts in boxes an<l lo~j~d them in the Suzuki vlhicle. Thereafter they irove back to Loliondo and the Appellant handed those spare parts to PW 5 at the i.Jjenzi Store. P.W,.3 identified Exho P 8 as the very spare parts they took from Isuja 1 s residence on 19/12/95. - 4 - C ._ p., w.5 told the trial court that as a storekeeper he use:d , tu receive :,mate rials or mechanical Eiquipment by issue voucher. 11 He further testified that on receiving the same he was making.entries in the respective ledgers in respect of each and every st0re received It was tt.e evidence of PW 5 that on 21/12/95, in Le morning, .·while on c:City at his stnre, he received some ;,. caterpillor spare parts from .. the first accused (now appellant) who was in the comp~y -::if ,1'W 2 and PW 3. ir • This witness· went ·on t-_) testify that these spare parts were nut' entered in the st0res 1 ledger because the Appellant instructed him ~ not to d,) so., The:se iJpare parts were subsequently taken by PW6 on 16/1/96.. The

Appellant h.ad unly une questiun to put tu PW 5 cin cruss-examination whose reply was: 11 W'nen yuu handed_ me the caterpillar spare parts yo'l.l were already ~PP<'inted.Distriot Exe- Again, all this evidence was not essentially challenged. above As already shown . l., PW 4 reported back for duty ,.m 23/1/96,. Once ,back in the ·office he was informed by N. Kombe that the Appellant had been issued with a special imprest for the purchase of tractor ' j spare paJBts but was y"'t to retir:: tl" ·· same, nor bod he purchased the sparesG PW 4 then: summoned the Appellant and questioned him about the imprest. Accordin(; to PW 4 the Appellant confirmed to him that he ha.d alreBdy purchased the spare parts at Arusha from one RoE• Kimar~. The Appellant was given up to 25/1/95 to produce the cash sale recepts in respect of 'th&t transaction, as on that day he had claimed not to . ' be in possession 0f tl1e same,. On 25/1/96 the Appellant went to the office of PW 4 as agreed. PW 4 summoned Kombe, Isuja and PW 8 to his officee In the presence of these c,.fficers~ the appellEint handed to P\rJ 4 two cash sale rec'.:!ipts he claimed he was issm,d with on purchasing the tractor space parts at Arusha. When asked to name the storek~er to whom th0 said parts were •.•• 0 ••• /5 5 handed, the Appellant could not .name any,. J.suja also tuJ_d PW 4, in l the Appellant's presence, t~at he was yet to

see the said spare parts •.. Sensing some thing fishy and being sympathetic to the Appellant who WM his ;) agemate 1i,. and nearing retirement, PW 4 aci.viscd the Appellant either to produce the. spare parts he aJ.ieged to .have purc~ased or t'o return the money he was given as speci31 imprest., . advice or The Appell_ant, .. h~e~ing to this .. l . .· request, promise~ to. do• the latter axid plended with P\r-1 4 to give him seven (7) d;ws to go to 0 Mwanga District,, to look for the money and refund the s2.me. The Appfi1;i1t made thinrs more formel,. He wrote a· 1etter on the same day, afficially requesting for leave 0f absence 0f 7 days. In that letter the Appellant, unequivocally, stated that he was intending.to go to Usru1g·i (Mwanga.) t9 collect .Tshs.,5,188~OOO1. which he was paid ( as imprest for _the purchase of tracto:- spare parts which he ,n0ver deliV<:::redo Th0 relevant portion of the lotter, which is in Kisw~ili, n Ninomba ruhus;:i ya. siku Sciba (7) kwt:nda Arusha- Usangi kuchukua fE:dha shs 5, 188,O00/= ambaz-> nililihukua ma13urufu ya kummulia vifr,8 vya Grader na sikufonik.ivJa kul&ta. vi fa.a hi vyo 11 This tells it all. This letter was tendered in eviden~8, without any objection ::rorr. the i..ppellf;nt, as EYJ.1. P.

3. The Appollant was permitted by PW 4 to proceed to Usangi (vide EY..ho P.4) vs requested$ However, when the Appellant reported back on duty he never went to see PW 4. 'l'his prompted. PVJ 4 to sumeion the Appellant to his office. T~ PW 4 1 s surprise, the ~ppellant told him thd he did not secur0 the moneyQ This f6rc0d P\J 4 to rep.,rt the m3.tter to the policGo The Appellant was apprehended, . tog8th0~ with . (, others, but .wa.s eventually charged with John ,.Isuje as already shown, .. after PW '.1. Noo E. 8255 D/Sgto Athumani had r-:,mplet,-,d tr,e investige.tion:s• • • 0 •• • /6 ':i 1 - Again all this evidence stands largely undisputed. Before t~e. trial commenced the Appellant did make a cautioned statement to the police.- ~his was on 16/4/96 and the statement was made to No., D.7286 D/Sgt. Duwan. Tm.is cautioned statement was tendered in evir.fonce by PWl, with out any objection from the Appellan.t, as Exh. p'IO. In thisestatement, the was, unbelievably, gravely incriminating himself. He is admitting to have been paid Tshs. 5,188,000/= as special.imprest for the purchase of the. Council 0 s is tractor spare party. HeL,confessing that insteed of coming t6 Arusha to purchase those spare parts he did purchase them from John Isuja on 21/12/95 at Loliondo any that isuja issued him with case sale · receipt No. 401 a'ld 302 dated 19/12/95 for Tshso 2 1 128,000/= ai."ld Tshs

3,060,000/= respectively tearing ~ubber stamp in the name of R.E. K:ih1AlttJ indicating that stamp duty had a.1ready been paid by way of a corr.pa.site Asreement vide No SD 70/64 :w;EoF. 1. 2. 86" In this statement the Appellant is admitting that those two receipts'were the very ones which he had handed _PW 4. These two -cash salP. ,,,eceipts were tendered :in evidence by the prosecution without any objection from the Appellant as Dd1. P.6 and Po7 rcspectivelyo The Appellant did not either repudiate or ~etract this cautioned statement in any way and at any stage. That being the case, Exh P.10 was voluntarily made i'LYJ.1 established beyond any rea.sonable doubts that Exh. P.6 and ' Exh. P.7 were not issued at Arusha by one R~E Kimaro, as alleged in the Appellant I E. defence • It was st.st.ed by the Appellant that he was the one who made entries in the council fuel leiger showning that, on 19/12/95 the •ouncil had received tractor spare parts. Eventually this entry in the ledger (Exh. Po14), the two cash sale, receipts, (Exh. P.6 and 7), and specimen handwritings of the Appellant and'RoEo Kimaro were sent tothe Identification Bureau, Dar es Salaam. The hand writing ••••••• /7 7 expert reported back ~hat Exh. 15.,6, and Exh. Po7 and the entries on 19/12/95 in Exh. Po14 in relation to the spare parts, werE;: authored by no other p·erson but by the AppelJ.ant. In his sworn

evidence the Appellant" told the trial court that on encashing the cheque (Exh. Po2) on 20/12/95, he proceeded to Arusha where he arrived on th8 same day and purchased th~ required spare parts on the very day from the shop of one Kimaro. While the Appellant made EYJJ.. P.10 on 16/4/96, he testified on 12/3/970 In his defence the Appellant told the trial court that the said Kimaro issued him with Exh. Po6 and Exho P.?. He then proceeded to Loliondo on 21/12/95 On arrival at Loliondo, he on 22/12/95 informed John Isuja that he had already purchased the spare parts and Isuja requested him to have them checked ·by PW 3. · The Appellant fUrther testified that Isuja informed him that he had in his possession other spare parts donated by the prince of the Arab Emirats and requested him to take them too and store them at the Ujenzi store. He ·(Appellant) took possession of the said spare parts and thereafter handed them to PW 5• He then formal-ly retired his imprest,, The hppella..nt ~dmitted in his evidence to be the one who openedti a new stores ledger, Exhibit P.14, ·and made entries of the purchased spare parts therein., He further testified that he agreed to refund the said Tshs. 5~188,000·, because the D.E.D. (PW 4) was· not Sci.tisficd with his explanation. The said Isuja denied cons1)iring with- the Appellant to commit any offence. The rest of his evidence waz as testified by

P.W.2, PW2, P.W.~- and P.W.60 On the.basis of the above evidence, the learned trial Senicr District Magistrate convicted the hppellant and acquitted Isuja as alreadY. stated. The acquited of Isuja cannot . {_be im:pugnoi::l. at all. The trial magistrate was perfectly correct in acq;itting him.LC8:1the same be said of the Appellant •s convictions? Both Mr. Makange and. Mrs Lyimo, learned Principal State Attorney are .. , , adamantly contending that the trial magistrate was wrong.· That is whg I have taken great pains to elaborate the entire _evidence. Mr. Viakange has filed four grounds of appeal, namely and shortly: (a) the trial court er~ed both in law and fact in convicting the Appellant of forgery without evidence to prove the same., (b) the tria magistrate erred in law and fact in admitting in evidence the receipts as exhibit~ without calling the handwriting expert, ••••• /8 8 (c) having found as a fact that t_he J.ppellcm.t was · given the money c1s impre_st, the. trie.l maei1:3t:r;:fte erred·.in law in holdinc; that the Appellont had fraudulently obtain::d the sc1me 1 and ·(cl.) the· rnagistra"te erred in finding the Appellant guilty of· uttering fal.se document:;; without,: proof ·of· the falsity of the alleged documents. I will. stort with the tirst ground of c.1.ppeal., What is forgery? Happily, the answer tot is question is provided.by S0333 of the Penal Code; .which

·reads thus:- " :forr-;ery is the rr1okin1; of a false document with intent to de fraud or dccei ve. ~, . , Not every .me.king of a false document, tl-,ere foreiiJ :is a forgery. The making must be coupled with an intention to .defrr,ud or decciveo It -is novj trite law tb.2.t to be false, a document must tell, a lie about itself, i.e it must purport to be what in actual fact it is not. · In other words, .i..~..i.~. _th_~_,2oss_m~'lt ~J-..ch must be false rnd nr· .PE_E:_:lL:1£~~.E-.fo~m..'?!,:!:_o~ i to· That false document to be. a forgery it rDust have bE:en falsified with an "intent to defraud or deceive.ti J.e t te;r,. . t ~1~cc, · I wri.,t·•e. alap1:uy1ng If f or-' 1ns -"" a JO .i:or . b requiring . . . dat e a c·anci. holding an honours degree in law and I therein purport to be holding one while I nm not, the letter is- not ;:;, forgery. But if I write c1 lGtt0r t0 my prospective_employ0r purporting to.~ome from the Dean of -a school of" law indic~-::i:,-,_: thet I had g"raduoted from · his school .with an. honours d<2;:;n::c, while I did not,. so_ as to • qualify. for tL.e job, that is a forgery Q Hence th€·, much celebrated di.ct·,,m~ :~ Telling 2: lie docs not become a forgery because it, is reduC:_cd to writing.:, In ordinar.y- langu£:ge , to :,,d_st~;, is :. to get something ;from somebody by dect;i,tion or illegally. 11 To:: deceive" is either to "misleeJi. somebody

ddiberetely or to m~e _him bel~eve something that is not true, especially- t,o ns to persuade him to _do something" or to refrain frqm doing something: see A. s. Hornb • vs OXFORD i,DViu~CED LE1.Rl'{GRS DJ.C1'IONiJH, 5th ed., (1998 impression ) at pages 306 and The Appellant herein facc-d two counts of forgery. c/ss 33·3 and 3)7 of the Penol Code in the trial court, i. e the 3rd anci. 4th counts • • • • • • • • • /9 9 The doo..1ments which ·were the sub je•ct of. these counts were cash sale reoeipts No.401 (Exh. P.6) e-\Jd 402 (Tuch. Po7) respectively ei'ch dated being 19/12/1995. In both counts he was -;--• charg(.;d with havine; forged these documents by showninc that theyhad bee~ written and/or issued by one R.E. KiilliRO of Arusfic:-, on 19/12/95 who had sold to him various spare parts worth Tshso 2, 128,000/= ( Exh. P.6) and ':'sl:.s. 3,060,000/= . , V ;,the fact he knew or had reason t-: bcli0vc to be untrue;•• On the basis of th.;; credible evidence on r(:cord. were these two documents forgeries? Both t11r. r.I.::-kan;_~e and Hrs Lyimo 2.rE:.: cont(:.:nding that they are not. Their common r8ason is thDt they cannot be so held because these.id Kimaro, (who is known to exist) nnd th& hond writing expert did not t_ostify to prove the falsity of the said documents. l[t is true that these two people never test:i.fie,d. But was this fatr.il to the prosecu- tion case, so as to

vitinte the con\.'i.ction of the appE:llant? I feel compelled to point out e.t this ju:.;:;turo that in order to· establish the falsity of the two documents we. have to look at tho !2.!}tl!.iY. of the evidence on record and not· confine ourseH:'es- to the pr6sE'cution c.s.se onlyo That wa.s the api)ro.:.ch adopted by the learned trial Senior District Magictrote before holding Exho P.6 and P.7 to be forgeries. After correctly, hqldine t;1Gt the .kppell:=mt :. WEJS ~O~i3].]-_y' i~~1:£;d with ~he imprests .ie Thso 5, 188 1 000/= on 19/12/95 \:1hich was. to be used ;,to purchase ca~erpillEJr spare parts and retire the. ~a.-ne he found it DG a conceded fact the,t the appellant had, encashed the ~heque a.t Loliondo on 20/12/95., He then well reasoned ns follows:- ;, Now tl1E: m8.in i.ssuo· i,s whether the prosecution has pro~~d its ., . cuse age.inst tr1.e accused p0r1:.;c~'ls beyond all ree.sone':'. · ·oubt. ~., •·• To start with iB whdher tr:" firs·.., cti.;1.,ust:d purc,hu.scd the spore parts by the special imprest he was issuQd with and retired the· ' · contended . . imprest,, The first accuc-'E.d _ - in his defence that he cashed I the c.heque on 20/12/1995. and -fiuuelled to Arusha the same date and arri vcd et Arusha, that 1.:,emt· day ;;,.i:.d purcn.,;lSt d the .spare parts at the shop of the said Kimaro 11h0 issued him c.sal1- · -sale receipt exhibit P.6 and P. 7 and ccime

beck to Lob.or.do with the spare parts on 21/12/1995. He made retirernent of the imprest by form exhibit Po18c The first accused's c.efencE: to this extent cannot hold water 8.S the cosh sale !eceipt Ho. 1+01 echibit. Po6 indicates that he purchased :,pare parts value::d at Tshs. 2, 128,060/= and receipt No. Lr02 exhib{t P. 7 indicates f· that bE: purchasE.:d. sp;;.re parts ·v!.'ilucd at Tshs. 3,060~0'.)0/=·• The first a.ccus,:~d in his dc:fence claimG:d th2t he purchased the .spare parts on 20/12/1995 and was issuE-d with the receipts. ThE: f:osh saJ.2 raccipts issued to him eY.hibit •P;,6 •and P. 7 are datE.d 19/12/1995. '.rhis mcru1s ••••• /10 10 , he parchascd the sp.s.re parts on 19/12/1995 before he ceshed.t.the ~heque and of course it also means that on this day he was still in Loli'brtdo as he cashed. tl1e chc~ue on 20/12/19950 In other ,,ords the accused · could not purchase the caterpillar space parts before ca.sliing the ch8que putting 2-n o:msideration th:t Loliondo is 410 KiJ0 •· 4: .,rs from Jirusha•••• · Furthermore, the first accus,:cd &lmitted ih his dofonce that whe~ he came back from .Arusho with tlrn sp;:.re parts on 21/12/1995 he entered ,, ~ac.h spare part in a store ledger book exhibit Po 14. The date in the ledger was on 19/12/1995. rnrn dote in the ledger when the entries wen, made should have been on 21/12/1995 or thereafter. Entries in·thtJ , ledger

could no( be on 19/12/1995 as the spare paxts ,.rere not at that date purchased ..... e • 1 The leorned trial mogistrate then referred to the evidence of PW 2 J>W3 and PW5 to the effect that on 21/12/1995, the Appellant was still nt LoJ.ionclo and it was th€ day he took Exh. P.8 1 -12 from Isujais 1 n;idenc~. He acco~din~ly disbelieved t~1e ii.ppellant ·, s claim that he travelled to Arusha on 19/12/95.' And of course, believing th0ae three witnessr;;s to be truthfu:- as th~t:fi~al magistrate didi;-: it would be preposterous, to imagine, let · ·{ to believe,;,:: that the human Amini Martin Mziray, could. :phyically have been at Arusha c;;-~d Loliondo ru1 the morning of 21/12/95 at the .srnne time ·• The learned triol magistrate also t.Jok into account the largely un•~allenged evidence of PW 4 and Exho P.3 The contents of Exh~ P.3 and the admissions and conduct of the Appellant before P.W.4 on 23/1i96 and 25/1/96 end o.fter his ;,returnu from Usangi, amo-.;urc to a confession in terms of s. 3(l)(a) ~- and (d) of the Evidence Act, 1967, as omended by . Act No., 19 of 1980. He e:dmitted to have been issued with Tshe5~188tOOO/= · f~r the sole purpose of purchasing some caterpillor tractor spare parts which not only he never purchc1s,.;d but ree;rettably too~ never accounted for the said money. There is the cautioned statement(_Exh. P.10) which the Appellant; never retracted or

repudiatc,J. in any mnnner,. The voiuntnriness and/ or genuineness ~f EY..h. Pe10 has not been doubted or challenged ever in this appeol. As it stands it· renders the defence of the appellant before the trial court a complete poppycocky and leave the prosecution evedence in crj,minat:i.ng as it is, intacto_ After taking 3ll this evidence into consideration, the, learned trial magistrote e-;)ncludod thct:= • • o o • o·• ./11 11 ... 1 '•u the first accused after being issued with the imprest took the donat0d spare parts from ·the s·econd e.ccused (io o. John Isuj'a) ; ' . and .entered them in a. store ledger: to indicate tlwt ho purch0scd them from RoE• Kimaro - Arushoe In this reg£,r<;l. the receipts exhibit Po6 and P.7 are false documents and t;-iat ·:the first a~cusc:d made the recipts false documon t with intent to • QV defraud end thus to steal the money~ . We cannot fault the:: tricl magistrote in believing the prosecution witnesses and rejocting the Ap.12ellants d~fence!.o _ In view cif. this fact I entirely agree with the magistrateJs_ c;onclusiono v- J . [· J • '·· .• Exhibits IP.6 and P.7 c.;;.;.,, · of were not issued by R.. Ee Kimaroon 19/12/95 to evidence the · -pureh,~e Jractor spare parts shown thereon by tho appellant. They are telling a lie· about themselves. They were written by no other person- o i;hcr .• thnn the ;.ppellant, otherwise he would all along

have pecn_forthrigh~ on who issued them if they were ·genuine. All these mendacitiG:;, on the partv of the Appell-::int taken together with the credible . evidence •· of the Prosecution wi tnessE· prove beyond fu'1Y. reaso. nable doubts th<'lt Exh P.6 and E>cho P.7 are false documonts·made by the A:rpellant., He hcd ibhe criminal. .i.nt-ent. in his mind while doing: to ~efraud his employer, Ui.e council, of its T~hs. 5,188 ,000/= which be.eventually did by converting it to his own unauthorised use. They are both f~rgeries. The trfrl District court therefore cp,nnnt be faulted in. convicting the Appclla;;1t in cou~ts 2,3 and 4 I accordingly dismiGs his appeal. .against ~he conyictions for stealing by public serva;nt (2nd count) and forgery (3rd and 4th counts)e Ir: view of the above analysis and findings, I find no merits in grounds of Dppeal 1, 2 and 3e The evidence. of Kimario &'1d/or that . -~ of the handwri tine; expert, in the. circumstances of this case was. not Moreove;r, essential. l_ • .. , thE: report of the handwriting expert was admitted in evidence without nny objection from the Appellant (and this is •n r record) nor did the Appell.snt impu6 n it in his defence. I have found prove nothing in the record to suggest, ai.et alone to · j , that the provisions of s.205 · of the criminal.·Procedure Act, 1985.were violated as courageously submitted by Mr~ Me.k.:mge in thi~

appeal. NGedless to overstate is the nnked. lnct th'7,t the best witness against the Appellant was the Appellant himself•.. ·· •••ut<o•••/12 I ... --- Following my holding thai;,, Exlila?.6 ru~ P. 7 were forgeries, I find ground 4 of the petition of appeal to be ·no longer relevant. The appellant did u.cter Exh. P. 6 and Exh.. P. 7 to P\'1. 4 knowing them to be false documents~ He was_ accordingly properly convicted under s •. :31+2 of the-: Penal code in cou.nts 5 and 6 No ground of complaint has been raj_sc;-d in respect of the conviction for fr9u,'.nL.nt' false. accounting by public scrvcnt c/s· 317 o'f the/ Penal code. i:J.l the same I am satisfied that on the credible evidence from the prosecution witnesses, the conviction is sound. · In the light of the above I find no merits in this appeal against the corivictions of the Appellant on n.11 the counts. · I accordingly · .dismiss it in its entirety. Reparding the sentences meted out which were ordered lo run concurrently I find them to be not even a daytoolon.~s. Toking the · position of public trust the Appellant was holdinc, which without shame and/or remorse/g~ossly abused, the Appellant □uct count himself very luck_;r to have , esca:r;i0d with such a light sentence,-. Those who abuse their positions of trust in the public service or misoi:propriate the tax payers' prope.rties · should n;t ~xpect lenieny from the courts. All said and done this ·appeel is dismissed in its entiretyo Delivered in court 'in the presence of IV'.ir. Makange, advocate and :tl.irs Lyimo learned Principal State Attorney for the Respondent I this 3rd day of April, 2000 at Arusha. EoM.K~J~GWI:.

JUDGE • 3/4/2000 copy of ori~"inalo 1l DISTRICn~ .AR1J.:.\Y:t( /mm