19770603 TZHC Mwanza

_J -~•J.;;L Ji ~ S/>1 IN TH...:; iiIGH CJURT Oli' TAH;i:;idHA 1d1 Mi'IAiiZA APP BLL1-,.r.i1..,; JUlin:WIC·rI01~ riIGH COUHT ClUMii~,.. L .t1.Pf .8hL NO. 69 OF 1977 (CF. Cr. Appeals Nos. 77 - ao/1977) ( Original Criminal Cuse No. 868 of 197·6 of the District Court of Bukoba District ~t Bukoba - before J.E. C. Iviasanche, l!laq., Re;;ident Mal:;istrate). BADRU 111u;:;;:;a •••. • •· •••••••••••••• ·• •••••••••••••••••••• •. Ai'? ~LLANT Versus TH.t:.i REPUBLIC •••••·••••••••••o••••"•••••••••••••••••• R.ii;SPONDBNT •• C&.kGE: 1ST CQUl~'.r: Fraudurent and false accounting c/s 317 (b) of the Penal Code ~RD COUNT: Stealing c/s 265 of the Penal Code, Cap. lt Vol. I of the Laws. JU.lJG . ~,ki:.iNT: LUGAKnm;rnA, J.: The appellcrnts, Damian Kawamala, Norbert Ifotayoba 9 benedicto Mujaki, Brighton Nguiza and Badru l-'lussa, were variously convicted of fraudulent false accounting and stt:Jalin5 as will hereafter· be detailed. At their trial in the District court of lll.lkoba they were in th:::.tt order first to fifth accused. In this Judgement I will refer to them by -their first names c1s did the learned trial ma 6 istra:te. All of them, with the exception of Badru, were employeEls of BUKOP LHlITED, a coffee processing compnay in the town-ship of Bukoba. D<lmian was a gatekeeper, Norbert and Benedtc,to were weighing clerks, brighten was a pr'oduction Officer. Badru, on the other hand, was a driver of a private lorry_,_ Reg. No~ MZG 90 which aJpears to have been the property of one ri~ji J. Mussa. The uhurge consisted of three counts. In the firtit count Damian alone rlas chJrged with fraudulent false accounting c/s 317(b) / of the Penal Code. It was alleg0d t1_lat on 13/10/76, with intent to defraud, he made an entry in a Bukop's gate re6ister purporting to show . that m/v .MZG 90 had delivered 120 bab·s of coffee, 1-1hich was said to be untrue. Ho was convicted on this count. Tha second count concerned Brighton alone and was another fraudulent false accounting. It was alleged th:....t on the same day, and with similar intentj Brighton wrote on a delivery note that he had received .the 120 ba 6 s of coffee, which again was said to be untrue. He was sirnilcJ.rly convicted on this oount. It is the third count,.' one of theft, which included all the appellants .. · It was said thdt on the same.day they stole the 120 babs of coffee, valued .at shs • 43, 200/=, the property of the· Tanganyika Coffee Board. This last count had it1cluded three other persons, Baciru 's turnboys, who were acquitted. '11he trial mat'Sistra te awarded. sc:ntences of three years' imi)risonment on e3.ch of thE; counts, th.a sentcmces running concurrently where applicable. The appellants severally ap~ealed~ The five appe...1ls are consolidated in this jud 6 ement. · at the h0dring of the aJpeals Baa.ru was rei:ires0nted by Mr. !V11-J<1le, Advocate, viho also had some nice words to say in r0apect of the other ap,",ellants. The Republic was reprGsentect by Mrs :Matovu, ~tate ~ttorm;y. For brevity I will refer to Bukop Limited as "the factory" and to Tanganyika Coffee Board as "the Board." The evidence at the trial was slightly tangled and this being the first a~Jeal, I propose to make a detailed review. The story starts at Kabulala Buying Centre some sixty miles from .Bukoba town. On the morning of 13/10/1976 Badru arrived there with his m/v MZG 90 and took delivery of 120 ba~s of clean robusta coffee·. He was also given a deli- very note ( cheti cha h.usafirisha Kahawa) No. 02623, E.'xh. "A", addressed to the Board, the i;urchc.,;serso· .•.• /2 .' _J 2 He arrivad dt the offices of the Boards in town, on the same day. The arriv~l of tho coffee c1t th.e offio--;J vJas acknowled 6 ecl on £xh. "A" with the Board's rubber stc.1mp and t~1(:.; si 6 n.:.1 ture · of a person 11Jho did not t.estify. On thb t3i.lt:H:: Qccasion that same person filled 1n the .uaily Coffee Deliv3ries f1I1rm, Exh. "K'', showin 6 trut m/v MZG 90 ..had duly Qeliverad 120 ba 6 s of coffee to t~a board. From the board's offices the coffee we.cs su_l:-)posed to bG ta.ken to the factory• The prosecution alle 0 ed that i-'; nev<:.lr was. Tlie a 11pellants claimed that it was a.nu. was duly rectiiveci ther~. There wen: a numt.Jer of documents purporting to su.t:-iport the ap~ellants' cl~im. 'l'he factory has two_ gates. The entry gatl3 is known as Gate No·. 2 and the exit as Gate No.1 ■· It is not una.e·rs'tooa. wl;y this confusing m.1.m Derin6 ~-ias decided on.. I. do not think this was necessary for even fr.om the sk~tch, .&ch. "J", it appears th2.t the entry gate first comes into view as. .one .aiJproaches . the. factory. . . . . Probably there 0 is some background to it all. Be that as it may, each gate is man~ed by a keeper or keepers, and.. each has a regi,ster. Theregister at Gate No.2, Exh. 11 G'', is for incoming vehicles. .I.hair particulcJ.rs are entered including a description of their load: Similarly, the register at Gate No.l, Ex.h._ "F" is for outgoing vehicles. Again, their particulars are t:1ntered including a description of their load, if aey. Times of entry anct. exit· are also recorded. as the, case mal be. Thus, i.n this case, it was recorded in Exh. "G" that on 13/10/76 m/v l'llZG 90 entered tlJ.e factory with 120 ba 6·s of coffee at 17 .,20 hrs. It was also recorded in exh. "F" that the same vehicle 1 e'ft the factory empty at 17.56 hrs •. The antri0s i11 tne two re 6 isters ,;ere made by one _t1e.·son. de shall come to this late;r. Once a vehcile is inside the factory th1:3:i.·e is another process of documentation. In the factory thare is a representat:i,ve of the Board. In this case it was benedicto Reverian (Pw.2). I have noted that thB arrangement was not clear to the trial ma~ist.ate who got the impression that P1~.2 was at the Board's offices. The d.uty of the Board's representative is to formally co1?,sign the coffee to the factory ci,s if he were sitting in the Board's offices. · &nee he is in the factory premises the consi 0 ning is theoretical and purely documentary. I~ is affected by t •. e issue of a consi 6 runent note addressed to the factory. ~ven more awkward is that the boards• x·epresentative acts on infor- mation supplied by the factory employeE-:::s. Be does not personally s::;e the coffee.. And so it was in this case. On 13/10/76 Benedicto Reverian (PW_.2) rocGivect in his office two weight notes, Exh •. "B" and. ",h;" from Norbert and benedicto Mujaki respectively, purporting to show that they hE,d weighed coffee broue;ht in by m/v !VIZG 90 on tha.t day. The book from which exh •. "E' 1 wns wri ttGn will feature later in the judgement_. On the f:>ame day, and no· doubt on the same occasion, PW.-2 was given th<:: delivery note, exh. "A", brought by Badru ~rom Kabulala. P,1. 2 did. not make reference to this in his evidence but there is a signature that purports to l;e his own on exh. "A". On receipt of th8se documents he l-)i.'"3jJared a consignment note lfo. 26551, exh. "D" by which i1e consigned the coffee to the factory. There is a signature at the bottom of exh. "D" acknowledging "receipt"· of the co- ffee on behalf of tl1e factory. After the consignmant note PW. 2 also pre_!)ared. a Coffee Trc:.ns_;,.1ort Voucher No. 05406, exh. "C", to which he attached a CojJy of the consignment note and sen·t the two docu- ments to the board's offices as authority for paying the transp6rter. Let me jJUt in a~ain thut I found no dttraction in this ar~angement. It seems that Pd. 2, ~~~ in _the factory pr0misGr:; out of convsnience. 1 The Board does not~h~'v't3~ ~ei 6 hin~ f:.1cilities of its own. But this makes his r\:3s.,,;ensi bili ties more imagia:::.ry than real. That aside, when it is rem1:3mbered thet PW.2 was not in the habit of 8eeing the coffee its elf, it is fri 6 htening to irn::1 0 ine iww open he was to fraud and deceit.- And thi::tt 9 in foct, - wao the thesis of tht:: prosecution. It was contena.ect th'",t the weight notes, exhs. "B" and "E", taken to P\rl.2 were fake. ~le have alrec.id,y seem th.::tt i.:lri 6·hton was a production officer - an assistant 1Jroauction officer to lie precise. He graded coffee, among other ~hings. ~a ~oulu thdn dirdct accsytance or reJection of ..• /3 -' i - 3 - the coffee depenJing on qu3lity. He would lo this in writing 3t the back of the delivery note br,,ught by t(10 iriver. ln this c,:ise he duly wrote ;:,t the back of Exh. "A 11 : "Jkcept 120 b3gs ,:.f Robust:i cla'3n," and. signed.. 1 t i":i not clear who took ~xh. "11" to Brighton :mt th;t is minor. He personally t"'stifiel that he even saw the ba'-;s of the C'J'.:fee otherwjse, 11e said, "a man c:2n cileo.t me." There are several books in usu in5iJe tha factory itself. They inc] uJe weight note books anJ. registers. On~ ,~f tlle weight note boc.:•ks is usei fur r8jected coffee. On this o~caaioc; an~ in s~ite of Brighton's enJorsement 0f acceptance on Exh. 11 1! 11 1 the weight of ths 120 bags W3s recorJel in the "rejecteda book. This book wss .:mother exh. 11 G11 • Th.~t W'.3S the book from which .3enecticto wrote the weight note exh. "E". F,Jr 18ss confusion I will refer to this book as exh. "G.2 111 and I l11ve so m:irkeJ it 1 to listinguish it from exh. "G" thd inwarJ gate register. Wh3t is of interest j~ra, ~e shsll shortly sea, is that the use of 11 Exh. "G2 w3s not without Bri(\':i;.:as' knowlelge. Thara is finally a :c:agister, exh. "H", not very J.iff.:,rent fr:.:im -;;~,,:;; t,ste re.;istars, in which Norbert plU"f..•Orted to record the particul3rs 0f MiG 90 end its loal. With all thase jocumant3ry form~lities so elaborately complidJ with one could be excused for wondar it:.;:; '.1 c1nd why nondelivery came to be sL1s1)ected. 1 ;·;-; The suspicious ste.rtel .,t G:t:: No. 1, the 0xit g:i te, ·. From 4-30 P•m• on 13/10/76 this gate ilas m:1naed. b;y- John Mujungu (r,v.3) and Gerald Mu{;yabuso (rw.4). They testified. thJt 1t 2b2ut 5.40 P•m• Briahtpn came ovGr to them st the gate... He order,d Gerald tc ,r.:,o snJ. collect sn office key frorr. C.'nG Leopold.· Gerald left. At that inst1nt Jnhn felt like going to the toilet. HG therefore locked -the gate :ind went to t.hi.:, toilet with his key having Bri,;-hton 3t the gate.. On his r:Jturn he found. two vehicles waiting to bJ · 1et out, none of which was MZG 90. He 3lso found th ·.t Lrighton h;ti gone anl, what was more, the gste register wJs similarly gone. B2liar 1 Gerald had come back and discovered the same state of aff~irs. The two then lookel for Brighton. He was eventu:1lly traced by John who found him in possession of tha register. He. also heli a de- livery note. There was an axchauge of words after which John took tha register and return0d to the -3ate. On opening it John anl Gerald were ast0nished to find entered tharein that m/v MZG 90 h:.:d left the factory ::it l:J.50 hrs. They detected the handwritin~ t0 be Damian's who w3s then m:1nning Gste No.2 1 which was 265 paces aw3y. Dsmi3n' s own re;3·ister also showed the entry of r,.1ZG 90 into th-3 f9ctory. He claimal i:c1 .his eviJence th:it he h.,il la,lt in the vehicle at G::ite No. 2 and later let it out 3t Gste No.l. He 3Jmitted m::kin(..; the entries in tha two registars. John and Gerald had not seen MZG 90 before they went on their short trips. In any ca::sa the t-;ate was lockei anl John olone had the key. It therafore tr~~~pired ~s baing physical;y impossibl0 that MZG 0 0 was let o~t in their sbsenca. They reported tbeir suspicious to Elias ·.:.a'ungameza (nJ.6), the factr,ry' s chief securi:ty officer. The factory, as ex~ecteJ, is well populated. ~part from Nortert 3nd Benedictor there :1re sevarsl st.:1er wei.;hin,; clerks, sampling (or br2ding) clerks and-porters ■ From the ~vidence it seems impossible that any vehicle could come into the f~ctory, cff-load, and Jep3rt without being seeu by all these people even if not all wera J:i.1·,:ctly concerned.. Yet, it was testifi,ad by Thadeo Lutema (PW.8), a wei;hin~ clerk, John K:ikooko (r~~9), an~ther weighing clerk, Jonath:;in lrungu (';:,J.10), a sampling clerk, John Lugaimu.lomll (Pvi.11), also a weighing clerk, and Emrn"lnuel ~lisa (FJ.12), a porter, all of whom were on duty on that afternoon, th::tt m/vIvlZG 90 n,~ver c3me into the factory. ln ~"let, PW.11 and 12 claimed famili"lril~ with the vehicle - which I think other witnesses also were - saying it was Jn ;rlsuzu" lorry which they h3l not se3n. There was also John Simeo (rw.5), the 7ssjztent coffee conserv3tor. He sup~rvises actual off-loadinc unl ensures physic,··l 1)r,2:i;;ence of the b,:i:._:_.s of coffee. On the maierial day he w:1s on Juty w1til 9 P•m• He iii not see MZG 90. In their Je.fences the c:1 ,;,:.:ill. nts 9 and aven the turnboys who ;,rere acquit,ted, claimed th~t the coffee was dal~veraJ to tha f3ctory. They relied he~vily · · on the documentary evidence an~ parti 0 ul3rly the fsot th1t the Doard's represe- ntative, Benedicto fieverian (P''.2) 1 acknowleJgei receipt cf tha cof~,e on exh~ "Jl" 11 11 ~nd consigneJ it to the f-,ctc,ry which in turn ackn0!4ltJge rec;;;:i.pt on Exh• D ,. Badru. even called two purt0:cs whom h-.:lcallegelly :hire.i to help in off- loading. The appellants attri1utad tha accusations to fitina. Tho trial magistr~te gave consiieration t0 these points. -- I 4 He neverthehw;:; fot1nd c::;,s ;; fact th,.; t m/v hZG 90 never J.Gli vercu. coffee to the factory on lJ/10/76. :i:rn therefor,:, _.JrocGe(;.Gc.. to convict the a_p_.Jel1..1nts as charc:;ec.l bJ.t curiously .:icqu:it-ced ti,0 turnboys. The a,>f)e3ls c.i.o i-10t r:.1is·:. d.nything new. '11h8J ro~)vJ.t mninis questions of fact, 6 -rctlter em,,.iinsis b1c;in6 ;)Ut on th:;:; f:ict tlic.1t the Bo..!rd paid for the coffee 1,.im.,Jlyin6 r-;:;ccii:>t ther;;,of); tiL'.t tLi.;re ivilS no ~lzysical stock ta.l\.in 6 ut t.c1G fnctory 9 e:na th:;t ,;here was (er could be) a UU.i,->licate key for Gsitb No.l. The a_i:->_pell.nts als,: ,vonder ho,, on the same eviudnce som0 _.J00_.Jl0 wera n~t chargeu while others were acquittea.: It 6 oes wi th1:ut ::ia;y- 1.n5· ti.1-.-: t the que:..;tions · for C:1.-:.,termina tion were mainly, if not wholly, 4uestio.u.; ·-f fact. They =1lso ,1.;:; __ .c;n(;_ecl. on tho credit to ue gi V6n to ti·1~ wi tnc;s::;G&. Th1,:; ceHtro.l qu0:3ticn was whether MZG 90 delivered coffG0 tc th-3 LlC"Gt ry on 13/10/76. Tl1s trial mQt,'il;trate st ..1tc;;J. th...it i.c odi<.!VcJ. John I;1ujunGu (.f-'~i.3) ,.rn(1 UGr-alli Mugyabuso (Pw.4) to be witnesse~ of truth. He therefore founil thut the vehicle could not ilav.:: lJGenlet ou.t c...uri::.1t!.' their bri8f absence,. I have no reason to bblicve othGi.'wisa. It was im,.,rasseu. on this c,:D.rt by Mr. l'llwale that the trial court nevGr g..:tv:.. tliou 6 ht to ti.ll:: possibility of a du;:Jlicate key. I do not think it h1c: to. Damian, v1ho 211:,;__;ua to have let out the vei1icle, uitl not claim to have u8ecl a key. fa: saia tn;:J. t he found the r:,;ate open. But I beli0v0 as cHd ~h'e triu.l ma 6 istrat6 th.:1t Pli.3 had left -ch0 gi.l te clc-s0u.. It then .mean;;; that .D~.r::ian never went to gate No. 1. It also me..:ns th.::. t th1.; re 0 ist0r w::lo taken to hir,1 by i:iri 5 hton. It is net wi tn,,ut si 6 nificc111ce tlL,t jJri 6 hton never made reference to this e_l:)isoJ.~ in his ~vi~anc~. ThG n~arest thinJ he could say was th"4t hiG hanJ.v'lri tiu 0 vws ;11Jt in tii0 .r.:,.aistars. But th ..it is undorstanuaole. he wo.s at lGast sufficiently i:J.t0lligcrnt to minimise the chi.l.nces of his incrirninc.:.tion. : In thio i:,,.1u1G c0nn~ction it is equally not insignificant that th,3 coffee was .:rnter,:;u L:: the ~reJected" wei~ht note book. althou6h the evi~ence is silent as to the implica- tions of this action it w,.:s improper <lCCOJ.'u.ing ta lElias i-illfung-:::imeza (.f'l"J.6). When this witnas~, as security officer, callau en Brighton Jnd demanded to ins;iect l1is books, Hri,_;liton irwr,0a.ic1tely c-.:.L.1.(;Ci. for £ixh. "02". He iJ.:.ts ther;::fc,.L e nw.'.:!rd of th"' cl0ricul irret,;ul-1;:-·i ties al thoue;h he had passea the coffoe as acce~t21le. ~esi~es, ~ri~htun bsh~ved rather stran6 ely. w"hen investi.._,-,thns sti:irtE:d on t;:10 f'.:lluwinb c.a.y he 1)leaded with Joim Simao (Viv.5) not to rt:;; 1;ort t'.r,e m.-;:ttsr further, saying thsit he would oti1erwise be in trG ..,ble :rnd statin6 t.,!~.t he knew all ubout Iv'lZG 90. Al though ti.1is cdnaot b.:: cl<H,8ificd JS .:;:n c:.:u.mis..1ion of any off .3nce it n;;vertllGlcss s:.1!Y,~s th:..1t brighton 1v,tS burdened with a guilty co1rncience. Besiu.es his own ;;..ssc:rtiti.'.1s 9 hudru cullt:H.i two porters whom he all0gedly hired to off-load the coffse. But these witnaBses clearly testified onsomethin~ differ~nt. Balth~zar John NgaizJ s~ia th~t on 13/10/76 he only bou 6 ht a banana from Bad.ru. He s.:1id t.:1(; clay he we.IS hired to off-lo=1d coffoe by .ci...:clru Wc..s 15/10/76. Arni it is true tnat on that cL:y B-ld1·u brou 6 ht coffGe to ti."1c factory. Voe.taste Tizan~a, on the other hand, rer.,er;",bcred. onls1 lGnJ.ir;.0 money to .i3.1l thazur on 13/10/76 to buy the ba.ncina. At th2t momt:int he Wils eni:>a.:s~C::. on a a.ifferent vehicle. It is also eviu.ent from lii2 2.nswors to the tria.l court ana. the prose- cutor that he may have off-lo&deJ. R.1J.ru 's coffee c-n15/10/76. It is only ?asc;~1 TLekiama ~he alla~ed seein~ MZG 90 on 13/10/76 and .hel_t->ing Bau.ru with an Gm"Jty bt.. 6 for a torn one. rl1116 trial court, ho~Evar, h...iu boo~ ra3son in r~c~ivin~ LiB avi~-~ce with caution. he h...i.:.. rec,;,:atly ucen J.ismi<:JSG(.. from th~ L:.c ior;/ E:nd had l1is o,vn intarests to serve i11 i;i vii1b GVi\....cDC8• On ti:tG c,·-11trary, the court furtht;r believc:c.i as trua tL.e ovi-cnce of tlL cl..rk.s h'i.8, 9, 10, 11 and 12 and. uVe11 thc:.t of .r?d.5. I cun find no GI't.:•unL~S to oeliuve otb.er- shie.-. It is llnli.Kc;ly t~u-t ail tiiese ,vi tnGsso., c, ~'.le... h.:.1ve f:.1ilacl to see the vehicl;;, or tl1...; t -they 6 '""na·e(l u 11 to testify falsely ac;;ainst the tl.iJi)elL.mts. and. when Sci,.e of ti1em said th"',Y kne,v the vehicle well t.ney wera not en6 ·a 0 L1 0 in ic;.le talk.,.. · I ·11avG noted. th:.it between 9/7 /76 and 12/10/76 ti,is VG~iicle visi teu. the foctory 49 timos. It was in~e&J a fclmiliur si~ht. The witn~sses ccull not h~ve mistaken it haa they sotJn it in fact. _j • 5 I am therefore satisfied und similJrly finti that MZG 90 n0ver 6 delivered ooffc;e tc the L,ctory on 13/10/76. Th0re ,1er::; othGr .Jhy- siccil imJossibili ti"'s J?OLit0~ to, mJ.inl,y th::;t no vehicle coulu. overt~d.1;; anoti1Gr ,~i thin t11c f;.;ctor;y .1r::.i":,ioes. Tho g:.itc re 0 isters ~urJort to shori t~~t ~lG 90 left earli-r th~n the vehicl~b ~hich arriveJ. 00f0r0 it. I have u.0ciueu not ·i;o ,.Jiuce 1.mch wei6ht on this im.i,>ossibilit,y 2_;_, the tl·ial m.., 0 ist. :.·c.:.. never visit6d. the si"ta to sele'l for him8elf. but evt.::n nllo,~in 0 :c,:r the possibility of over- taki11b, M~G 90 ccuh:.. not overfly th-., cl•: r.,c:1 6 ate. Certain other i~suas may be disjoss~ of h&re. It was testified by Sirnon Bu·berwa (.i..:i'.1.l) from k.abuLtla ·cite t tht:: ccffee was lJaid for which to him rn13ant ti12t it h(l:l r,:,,:1cii.:::d. ·c:. . c.- factory. I think he wds confw,,eu. ifi1G .:r0)8r .expl:.1nation w:1j_ch I -1ccept ,vas thi.:lt i;iven by Gervas Lekela (_h·v.lJ), the board's 1ni.,rketin.; m.:ln..:t 6 er. He suiu. in effect th;_. t coffes is "')aid for in c1dv:.,,nce. The Board gives money to a buyin.; ceutre ,:;1 loan with which monsy the centre buys coffee from farmers. Tha coffee is thsrefore ;aiu for before it is shi~ped from the centre. Tiere was in the ev0nt no sibnificance in the fact tiwt this ocu.,.r:celi. ou this occ ... sion. :faat is 11ro):lably interesting is t}1.... t no i:;tock t::KiL 15 was c..J.r1:iec.t out at the f,...lctory. I-ronically, an auu.ii;or F'ilbert l~iliinu 6 islm (P;i~14), wns sent to lrnoulo.la to ascert3.in th0 sL1i_;;;rn•,mt but not to tn.:; fr:ctory to asc;;;rtaii.1 ti,e arriv.;il of the coffee. It c.oes not occur to ,ns, though, t:1dt ti:1e O,J_t->OSi te would i·,ave rnac.;.e an;y e,;,ifference. hcc~rC.in6 to ,t;;lii:!S nufun;;"meza (P,i. 6) no cirnch.. ,vas H,aue bGc:.:.use th6y 1Jc:...::: convinced th:.. t no coffee hau been d.eliversd. .ii.nc.!. it sounc..o froLi i.,08t 111er.10s of a1-1_..;eal that coffee moves very fast 011ce irn,iucl ti.1'" :L:ctory and a ci'1ec.k. ~1oula. have Jroc...uced nothing. I t:1.ink ti1G exercise W<lS rightly avoL... eu even if it i·1oul<l have fu:r: ther stren 6 thencJ. -ci1.:; case for the ,:irosecution. rlevertin6 to tl1- cLi..r 6 es, ·,rn iuvci s:,cn tiic..t Damian was ..1lone chdr 6 ed with frauc!ulent f::1lse :1ccou11tLi~, in the firt3t count. It rl:31<.i.teu to ti .. e J,1trJ tG mo.u.e in the in;-;. :.:'Ci. ~ate re 6 ister ..8xh. 1_1G11 • He purported to Sat\:·•:J th..1 t l'iZG 90 entorGi. tho;;, factory with 120 bags of coffee • .:,ecti.n ::n7 (b) unu.c;r wliic., the cllarb·e ~Jc.ts laid m,:,1.kes it an off1:mce for a cl,jrk or serve.int, wit:,.1 L1tcnt to aefrauJ, to make or be _i)rivy to m:;tking any !'ulse c,ncr;}'" L1 ~book, a.ocuinant or account. I havG f•~nd with the tri~l m~~istrate th_t tZG 90 never enter8J. ihe f:.1cto:i:'J on lJ/10/76. TnG :..mtry in Exh. 11 G11 was therefore false. He also m~~& it dith intent tc ctcfr~ud for· he did so with full kno,vl8c.t.;e of its fal::;i ty., .dti wa.J ·i;_i~en prc-,1Grly convicted and I sustain his conviction. The same is tiue in count ~o in res~0ct of bri 0 hton. iie i,, c.e an entry in Exho 0 ,li. 11 which was fdlse. In his evidencG he assGrt(;:,c,;_ to inve actually s -:,c:,n thb baGs of coffee, saying otherwise II a man c::in che...tt me. 11 .but in l-...is r.16n1or..:ina.um of a.,;iec:il, Jround I (c), h·-3 turns around anu says lrn only saw coffeG on a tr3y ana. "thu t .,e uiu not 1...i.eal in visuC1li::;i11...., v611icl es-. he is in other words saying th"t ht:i lL,:;. to the, trial court. In those circumstances he muBt Ik1ve ffi.idt;; ·cl;., ;:;ntry with an inta.rit to ci.efr:..iud for he was aware of its falsity. I 1Jill likcvJise UJiwlc, :-,is conviction on count two. In the last count I e:w so.tisfiecl t.wyo./1 r-G,.,ticm,l,le G.oubt that the cof'f -Je never r0.:c •• ,JC:.. tLc fnctory. ·l1i1"" cl_._ 1;611 ints who .::llegeu seeing it kno1·1 b0::ttar ,Jh;,;:.: c; it can be found. Tl-...c oniy r;.;.1sorubla inference is tnat they stole it. I u_;_)holu. tlwir cuwictions on thc::t count. Th6 ap~ellants com~lained about thu exclusion of certain ~eo0le from the ci:i.,U(5'8S. I do not know who t;-i;;:;:c;e ;,e;o,Jle dr-3 and th:y did not narne any. .t'rvSL,m:;. bly th"y ht1;,,i. in mi:..i(l ec,;ch and· ,:;Very one who signea some a.ocu.;;:cnt. Be tho.t ...is it rn .. ,11 the compla1,int is of course academic.. .l!ivcin if more JeO_t->le were c,;, __ :i.'<:;ec.. t.i1at ~rnuld not have excus~ci. or reuuc.;:.i. ·i;l,._; a,J~Jellants' O,'m criminality. I am satisfied, though, thc:1t thc8e ot~1.:::r j)GO.i,)le werE;; mir:;l&d by the a.,;_t->ellants. They acted blindlj'o It seems, in f,rnt, · tLat the a;? 1Jdlants :vere exhilarated by tI1e rampant ne 6 lii::;enc,3 e.rn. . took advanta.;e of the situation. _j 6 However, I a.o share the a 1),JGllants' woncler tlut the, sixth, seventh and eighth accused., thG turnboysj iv(;;re acquitted.. It is these who, along with Bc.1dru, convey 0d thG coffee to an unkr10;,m .,;luce. ThEi:y were in the event equally GU.11 ty of th0ft. 'rhe trial me 6 i:.;;trc.1te stated that he was acc;.ui tting -them because lw d.iu. not bdiev(. that :they shai:ecl in the loot. That is just stn:n 6 e. li"'or the _purpose of crimi,_~l liability the offen.... er .:...oos nc:t have to 6 c11n froc the crime. 'Other- wise courts would. find it n0~:t to im_r>osi,ible to :r·0Gi&ter any convictions. It is unfortunate ti1u.t this court has no power of itsovm to substitut·e convictions abainst thGtie turnboys. · It is even more unfortun_d te that·· the Reflublic has nut fou11d it fit to a_p;,Gal a aii1st th0 ... ct1uittals~ 0 As I have observed on e~rl~~r o~c~sions it·sas~b that the Repubiic goes for· trivial Ci.is es only o iH, ce."n only. ho:i,:ie for the better. To sumu1arise ·the forei.:;oiag~ I ha.ve not founu an,y merit in the ap1Jeals as reb<:.riis convictions o They are dismissed on all counts. The sentencing on the tLird. count attracts the in:eerference of this court. It d.oes not a_,;>;_Jear tl1c:t the 1--:.trned re..;iJ.ellt ma 6 i::;lrate wc1s mindful of the Minimum tientencEJs Act, 1972. At loast he did not say so. Th1:: T<1n 6 any iki:1 Coffee Boaard ( nov1 re.i)l.::tc~d or to b0 reJ:lluced by the Coffee authority of tanz:.:ti1ia) -whose coifes ,,ws stol'3n wds a_ spe- cified autiio..tty. By reason of item '3 in t'he First Schedul8 to the saia act, thersfore, tiiis off8i1Ce 1tms punishaols thereuncier. And by redson of Section 5 (d) t~1eroof · the minimum sentence would be five year~ im~risonmeut for the v~lue of thu coffee stolen exceeded shs. 5, 000/ =. Thus the- sentencin 0 on the third. count was illegal.. I am obliged. to correct the error an~ must obser~e th-.t were the appellants invited to show cause I. would have considured f'i ttin 5 sentences nl:lo_ve the min"imum. F'.or these reascns I will, 3.S I hereb;y Eio, set a:,;ide the sentences of tlirGe years on thethird count anC:,. substitute a . sentence of five ·(5) years' imprisonment on ench of the appebnts. This sent.nee will run from th€ date of committal, 12/3/1977, and concurrently with St':nt,rnces in counts one anJ. t\·1:. wpe.i.·;;;;· applicable. In the final result the d_pJsals fail in their entirety. They ·.are so dismissed. The new sentences will bed·ct:rtifieJ. to ti1e rison autho- ritie~ without de~lay. 1 ·• I . I ~----~~ -~--i(. S. K. LUGAKH~GIRA, J U D G. E~ _,. Mi1al~ .'.6A _3/6/1977.