19710129 TZHC Mwanza2

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LflTM po3istjO OSM 'OOOJ WTtr UCT 'UBI10d4O. °trL 2' 'WNWDcEfl$ 0 0 ' DIIfld O oso q T0ttTT1o)LNaNOdI4 HL 0 0 S • 0 • 0 0 0 • 0 • SI ° Q'3T NIHcTHHdI (pcsno0T'3TlO) JNJniTlddJ •oot['ULl uopso OtT. JO bSIirnS'f'D oIOp)a oqotñ q.s oiiqst[ sqon JO l'1O3 tOlS oL6i jo L. 9 0N1 OS) TOUTWTIO 1tttlTTlO oL6I IO 1c9 'ON: T1JddV rIflIpj3 •tIOtOtpStlT(f oIIodd!T 'Zt1II LV fINTZN:t7 L O J1If1OO HDIH 5HL N:I \/ \\ -2— ¶ Igain neither ii ho vote bcok as Lgain neither the cheque nor the voucher was entered in the vote book as roquirod by cstablislcd procedure. The first iasuc which arose during the trial, and which the ear.ncd magistrate reso1od in favour of the prosecution, was the irregularity of the charges preferred against the appellant0 The re'cvant are the particulars of counts 1 1 2 1 4 and 5. These road:- 'hTPTEMENT OF OFFENCE COUITT1. Forgery c/s 337 of Penal Code, Vol.1 of the Laws. PIRTICUL/RS OF OFFENCE The rxrson charged on the 23rd day of Docambor, 1969 at he.ional Block .st Lake R 0 gion did iith intent to defraud or deceive forgo payment voucher Fo.NC 90112 of s1ie.350/— purporting that it was subsistanco allouancc of his transfor from_Karaie to Pukoba, whilo in ::act it was not true. STLTMENT OF OFFENCE - COUl'IT2 Uttering false document c/s 342 of the lanai Code Vol 1 of the Laws. PLRTICULiRS OF OFpNCE The person charged on the 23rd of Dcconib:r 1969. at c. ;ioiial Block ost Lake Region being a person amnio:,ed in the public service did knotringly and ±raudulcntly utter a certain payment voucher No.NC 90/12 oi oho.350/— purpot.iu that it was his salary for the thnthofocembo969 while in fact it was not true. flJ1Tflh(Not relevant) - STATEMENT OF OFFENCE COUIT: Forgery c/s 337 of the Panel Code Vol.1 of the Laws0 FLRTICULRS OF OFFENCE The person charged on the 29th day of December 1969 at ?e.ional Block cst Lake Region being a parson emplo3rad in public service did wit i intent to defraud or deceive forged PU Nc.JF 133/12 of dns.227/75 purporting that it was subsistancQ a11o;ance of his transfer from Karagwe Bukoba whilo in fact it was not true. hTI TENENT OF OFFENCE Uttoring false document c/s 342 of Penal Code Vol 1 of the Laws. PLRTICULRS OF OFFbNCL The parson charged Lfl the 29th •day of Docemb r 1969 at the ho.ional Block, vk ,,st Lake Rogion, being a a-rson employed in public service did knowingly and fraudulot1y utter a certain P.V.No.iD?i 133/12 of Shc.447/75 to the Revenue Officer, purporting that it was khis salary for the month of Dcceiehtr, 1969 while in fact it was not truo. -3- Ls I havo 61 roa dy stated 9 the appellant admitted that he prepared both payment vouchers, which are alleged to have boei forged and uttered by tic appellant0 The oxathination of payment voucher.o.90/12 (Lxii B) shows clearly that the amount was alleged to he subsistancu allowance or appe ll an t o transfor.,from Karagwo to Bukoba4 The particulars in count one wore in this respect accurate, but the language would 1cvo much to be desired, as the learned State Jttorncy argued0 The underlined words wold indicate that it was the payment voucher itself which was meant to be the subsistence allowance - something which ic physically impossible as a paper cannot be the rubsistance allowance and not the areouit stated thcroia. This error, which is basically that of language, ascaped the attention of the learned Magistrate0 The same reasoning would apply in respect to the particulars in count 5 This error too, does not appear to have boon noticed by the loarnod magistrate.0 The second error visible was that 2 in count 1, the ob j act procured was alleged to he subsistence allo;ancu, but in count 2, thu object was alleged to be salary for the montic oi December 1969 The true position, as the learned magistrate correctl: found, was that the payment voucher said that the amount of siic.350/_ was subsistanco allowance, heverthelcss, the learned magistrate found that this error in conteit did not I.rejudice the defence as the appellant knew the sort of case ho was facing0 Examination of payment voucher JP 133/12 (inch c) shows that in respect of pa:mont for Salary for December 1969, and the amount was 447/750 It is therefore, inexplicable, why the particulars in count 4, in addition to the error in languagc already referred to, stated that the amount claimed was shs.227/750 It also went further and said that the eeount claimed was subsistance allowance for the alleged transfer of the appellant from Karagwo to Bukoba. The learned magistrate was aware of this grave error, but thought that the particulars did not prejudice the defence and treated the phrase as if it was for the amount of s 1-1 s.447/750 Count five is free of any error on face of it. The learned State httornay argued that the learned magistrate was mistaken in his view of the effect of the errors, and that these were int enrb1 n s the case against t.ic eppollant was not so clear as to enable the appellant to understand the nature of the case he has to answer. I agree that these numerous defects in the charge tended to obscure the nature of the case against the appellant. The case, as I have already stated, was not complex, and therefore, it should not have boon difficult to frame up charges which were sufficiently c1ear0 In the result, it is difficult to say that the appellant was not thereby prejudiced in nis defence, and I aatisfiod that these errors were curable in the circumstances. 0 . * I, -4- On the substance of the case, the learned State Lttornoy argued that it was not safe to ieliove the evidence of F.W.6, who might well be trying to avoid the blame after ho or his representative had already authorised payment. This is what the appellant is in fact se.ying. Ho was saying that it was physically impossible for him 1 a. minor clerk in the accounts section of that department, to prepare payment vouchers, obtaining signatures and payments without tho3e being discovered in advance by the accounts clerk whose work was to check the documents to see if the claims wore accurately calculated0 Ho maintained that P.y;.6 had in fact told him that ho was oing ° transfer from Karagwc but he had not fixed the date 1 and therefore it was not unusual for people on transfer to take those allowances in advance. P.1.6 said that the appellant was never transferred as he claimed. Lnd for the alleged December salary ? 110 said that P1.6 had agreed to hi request to an advance of salary. Lnd that Exhibit C was his salary and advance salary although the document itself simply stated that it was December salary. lie maintained that he. has worked for this section for three years 1 with the same officers who gave evidence 9 and therefore, it was impossible for them to authorise payment of that amount of shs.447/75 as December salary, when they know that his salary was shs.22O/— only per month. The learned State Lttorney said that if the evidence of F.W.6 had boon carefully scrutinised, it would not have been easy for the lcarnd magistrate to convict the appellant as he did. Js I have already stated that both payment vouchers wore duly authorisod and paid, and one of the authorising officer for hxhibig C was P..6. P.W.6 said that ho authorised it blindly because, duo to pressure of work, ho could not check each and everything, but there was no explanation of the circumstances leading to the signing and authorisation of xhibit B by 1Ucinde. Having gone through the evidence, I find it almost impossible to believe t].lot those two vouchers could have boon prepared and paid without the notice of anybody. There is no evidence of the accounts clerk, who was in char(o of checking vouchers to show under what circumstances ho believed that the appellant :31.,.tjtld to the two amounts. There is no evidence that the appellant nüsrepresentod facts to this clerk. It is common knowledge that civil servants on transfer, often collect their allowance before leaving their station to their new station. There was tharcfore notiing unusual for the appellant to collect in aivancc his allowance. The learned magistrate did not appear to be entirely satisfied with P.1.6's kiiowlcdgo. Ho believed that, in the rash of duty, P.h.6 could have signed the documents blindly. This was a valid possibility, But if he was busy nd this the learned ma,istrate accepted, I find it difficult to follow when the same reason was not found to apply to the appellant, wh is alleod to hvo failed to enter a —5-- the details in the vote book when he said he was busy. It is not clear, from the evidence, who was responsible for makin. the entries in the vote book. The appellant allocd that this ae the work of the accounts clorh, althou;h he did not make it clear w1ico this accoun±s clerk would be. i:s the learned Sttc Lttornay correctly said the appellant was convicted simply because he was allc;-od to have told lies. If this as the apprcca, then the defence has not boon properly approached. hhan a person tell lies that does not mean that he hd comatittad criminal offencos, althoucii lies could be told to cover unpleasant facts, including thefts. The proper approach would have been for the learned meistrato to consider whether in the circumstances of this case the explanation -ivon by the appellant was not a probable one. It is impossible to say, at this sta;e, that had he done so he would still have come to the conclusion that the appollant'e' eplanation was unrcasonable. For those reasons, th3 convictions and sentences cannot be supported. OFDER:Convictiono quashed. Sentences sat aside. AppOlant be released forthwith unles's held on some other lawful pui'poso. Delivered in Court on 29th January, 1 97 1 - (z.N.'L.-KnL7() S ctin Jud:c. 11