19730309 TZHC Mwanza2

IN THE -IIC•H OOTJT.T OF TiZANIA' T MWAITZA . HIGH. OOTJT CRII\IJfAL APPEAL NOe 195 OF 1972 , .(Ori'ii1 Criuinal Oio o. 423 of 1971 of the District . : Court of }fl1r3r District . Shinycac. Boforo:. B. H. Mbuy, Esq., RED[T zj rIsiisE) NOAH J LS CIILPKOI APPLLANT vorus r , .: '' • t.._ .-.. . THE R]P[JBLTC . . . . . . .. ,.• . EPONDL FT tQL&RE St cal ing 'QV public scrvrnu obnji nancy f10 - --. prctnces c/se 270, 265 id 3C2 o± t11qoIZ'1 Code ci_I] 4 l t ( ELKLrDY, J Noh Jruos Oliepicol T'3 chroc h a.ad corxiric±oc1 oi: sto1in lj-r public scvmnt o o'nin iJdij Dr 1io pro0nces coi'trzry to sooion 270, 265 302 of the Pon1 Cdo Cap,. 16 on the f3rst cnc t c sccon co1.1d3 resecLive1y ' Ho rs e'icciiccö to rnprisonrion for tuo e-'r risiouL uno si irbocy ocror1 21rn1J1oj.1 OX) t23 ioriir count, oi n1±o oihs 1pr1$o- nLaent, on t1ic 1t ucr coucit. 130 uh Lors of iprisoiio irere or 1 o.ced to rim conoro1y. Th oro c to 000as c the Govcrncnt of zni- uho ou oE as. 5001=, aa uc c on ue it3S Iito1u in the stir of Ehs 200/= o pc1od Lnst convictions, snLoioos cud orders. The ovidoace, uhch the 1ecriodosidoa ':s ur uc cccuod., showed h' he ep x 11e wee op1oyed, ; th nr Poilce Force, -s p0] ic coistee1e. At the releveiit uie, h wes or foro'ing clericel dut'o5 in the ffco 01 the Officer Co end:n Polic\e Dj..s cr ct Sliinyen r (lieroinof ;er referred to as ho 0 C D ) His office we next to thoofilcô of the O.:C.D.... H; we hminly cecornod with ii'- utors jsin, out of dco1in,s in rospec ocns and. auimirnition. He helped meubure of the public to, fill in a)1'c ions foros - whether fo: xch of rs o oiunjtion end issuoft receipts A cortean 1r ekkd, busos ri'n in Shinysna, uoint - incd e privoto wro hosc far er 'nd e1etiunito: es Inc e liconcoc deolcr in such ood. AJ by ar e onu with Lho O.O,D. he ellowed the police force to 'cep heir "rs ir his priv'te wrc house on p'yceht of reesoneblo ces lthoi'h the charges were often not paid. The appellant, by :TirtUe of his enployuc•n -b and dutis c*t the office of the O.C.D. , was o; regular visitor at the business croiiises of the said Iakkad. IG epe'ro thnt the ofce of the 0 0.D seized end kcpt, for safe crs body c rifle in the privto ir-ro horse of r. Yekkccl, af u r cho o me:, h-c. been inrdon, 1n'd died Tt was sup osed to be part of the ostato of the dc-ceased. One Ib:t:ata (P 5) wn ucd c lb ry rifle. o we s iom c c r flcof the doccd Ths ir - done by hocll-nt Ho suosecuoitly obui the necos o: ision to bu lu The noot1inons wore iwinJI! done by uho -pellcc L. al u'nuIi h s i icd i' uo rprior S P 1 eb (P.I..T.l) ilesscd the 'transactidn. It was aroed: that the if.le hould be sold at Sis 500/= luhorh here i-s no coneent fro the heirs of the estate of the deceased., Itwas ariagod Thif't Itakota should pay the rioney to the aspcllant, and he did in fact do so, ut hc cresulon, o he uril and on eppool 1 ro, ne whouher this ionr T-S p-seed on be A S halo or no. The leecced esident o,.s uro uo holC uh tL: ioone3r i'c1 not boon p onto .S.P,. Kahao i a1chugh the appol]ant. ciaruoe tho ho had clone so The eppcll-nt con ended uh -' c c' i finding of fct s tmtor : having rógard to thc, eyiJnco on recod He said that if he had nob brnidcc' over cho rnonor to A. S P Kehebi, cc ho cici:od, the o'llsIon wou] h-ye boor diocovoreci ocrl erd not -ftor c rcoc. Ho s zc hc - t ho n-d boon 1for 1 in et tr-t st ion twice and ho wee ..../2. -1 ' T ' o... • •. 12. T 9urpricc' thi thc msec h'd .aot oce±i rcisoc unt1 'ftehb rsinG&'cnd .1oP foe. his ho;xo count .ry ionya. Tho 1ernocI 8- ttorney, I'r0 rucd t1irt there rs evidence on rocoi showi he nionorhd not iDQQfl . pSSCd oil. to A.1S.P Kahzbi, cn_ t 1 oroCore, tho findin, of fo id iou1 1 0 dist'xed. t It is clo'r from h. evic cacc i-t iio zccourrtin, oicor vs A.S.P. Kct1ibi. But the pp11n ssistod in rakin. receipts JOT - -. moncys received, znd, ccordlng to the pract4.c pr.ovi1in:, the 'who propred tho-'ioc'eits, wou1d ribt sign thei1iDocuie lie was not the autlior.isod person. In stead he woule. tc'.ke the raoney and tho receipt book to IeS.P.Ka1b'i hithself, and after Jaciiding over the money, A.S.P. Ihi1i '.r.ou1d. sign the reco.ipts... Tht the ' c llnt; WS. ru(Gted to. .eign tho reoipts 'P. S . P . Thc15 i not iikhe office. If so, the '?pe11flt iiou1d,.ncorthe1oss, present the receipt book nc1 the aorey to A. S . I(}iabi upoi his return un the ofico TIle si oICioor Tot1cl t en roccive the oi'o: and couiitcrign the relevant recipt or receipts in the receipt boe.:. In both crses, A.S.P. i,4abi.:r9i4d.keop the money in his srio in his ofrice It was 11od7 iii ulft -Nd crsc ub , ThCfl Itr1c"t a )r:d the . : : 500/=, the appc]Jnt-propred ro'cc±p: for thp. añonëy. .receivo, nd he ws see.i c.'iterin the off'co of bIo 0 0 D lIe ei,ncc3 i e recoipt hocau. the said •.hbi, whT.wa.the.:Q.:C.D.:1:bhon, TT'S ciot in 0111CC. The 'pe11'uit returnet to hs oThco ith o booh but without the uOJaov, or, to be riore tctrete, TctDkc't iö .not ':no•i if the ppe11ant 11 Stil1 .in.os.es.ãiöia of. tho'roey or not sthhough no money waq ph'sca1r:visib1e. tie his receipt, nd lie oo11ccod the rJ10 md bcu]it see c 1tiefl arougi uriGuai ormit (Exh D) 'y the oe11nt L S P Iirh-bi s'i J' ho h TJQiJ hooja in 1ais OiIi,mld. Y clicrcJc o, hàwas not auaro of the roçult of the sale of .thc rifle. Soon after that he s tansf erred to another station. The cpellant • agreed that. A.S.P. Kahab..hth.boen. way, by.thc'Iaimed thn he hoc reurned be h s ofi±co on ho se , r" i he hned ove'.. the sh., OO/= to bim.ABujahodid not .SaT. whether A.S.P. K'hbi is oficc. or ne on ho enod ii s oLpliL1ee by Kn'v'h v 1 . uo cisc c,roo r't icja e Shs 500/=- vs the apellant should cansiiut the money. tQGh10 .h eir.c .oi n e-tao of the 0, o ?eas6d as. .'nstruct'od. iThc money tas ne r6.c-oiv6d by the heirs. Indeed b±io 0 C i we- s notcw?ro of 1Thct h po io' o the procoed of the solo o bi-ic rifle nil for son ci ihoecc sd hi'd be -tm to ec11re ro'oiç u1e -u-i of his it f-'u'or The ovic cc in my view, jistif led the GOaclu5ioi of thó 1rned,..tr.iai magistrate. It is clear that if , the poellcntba p ssd the r'onoy to A S I-. • Khabi, as 1-is claiiiod, t]. dupiicctorecsipt hdhk,.. o.rtho relevant ount, woulc' h-vc shown tht cluI-or lt Ub signxi or countorsizc. by A.S.P. I'. rbi Cer rccciing the ioiey. T r sgod by the A,S .F. hahbias per oSta1D,iisho practice. This gob to tpport S. P. K'ab s coacenuion ho. ho 1 - c. been cr from the off - co since. aer ing as ho had. gone to soc the Aro. Commissioner.' If so, then ±hre was nobody in the office of A,S-.P.. I&habiwion the appollan entered it as a matter of routine. Similriy what the .cppellant alleged would be inconsistent with •±nstrudtoiI's gion to him by A.S.P. l(ahaoi. He was instructed to send the money to the noirs oithe deceased as soon as the rifle was sold.. Iim'woula he expected Thot the appellant would proceed to crry ou± instructions • rather -'than attempt to Dass the money to AO S.F. Kahabi. For 'thocc reasons, therefore, I find no reason to dsturb the fiiding of the learned. Rosidcnt i'ia,- .istrato on this point. The money kias reccivod by the appellant in the course of lo duty as a 'publlc • servant Ho. ras, therefore, rightly convicted for theft by peron ompoyod •in the public service. • In resDoct of tho second count, usa'haelu wartea--toy a shoi gun. The o cllc t o] iod by holing hia to iill in ihc Musa I'hpolu was with Doto Icasiga F.W,75. •Jt was-the con±eicion of thoso two people.. b.at the appellant told usa apoiu to pay -;s advance, c sun of Shs. 200/=, s pr of pucchs for ho grn use bopolu not h-'vc hc money rcdy h. fochod. the money, end poid Shs 200/=- to the joilii ix the prcsence of Doto Iasiga .•.. hlapolu- sidthat thoaprollant told him that -heiould /3 send the money to Shinyanga m.porirn, the firm of hr. Kakkad, for part payment 0± tho gun he wished to purchase. i-Jr. KoJ:kad said that he had not mckee. nor had he authorisod the appellant, to reôeivc money on his behalf or no behalf of his firm. E[mpolu produced a chit (Exh.H) which, ho said, was writ ten by the apuollant, in his presence, It is dated 31st August, 1970, and hears the stamp of the office of the O.C.D. In his evidence, the apc11ant said that it was not t::uo that he had received any cash from. 1-luso. hapolu, and denied that ho wrote Exh. H. However, the learned trial magistrate hold that the appellant received the money by falsely pretending that he had authority to receive the roonoy on behalf of the firm of Shinyanga uporiurn. On appeal, blT.o appellant said that there was no roof that he was the one who wrote Eth. H. He said that ore :I was no export evidence on this point. I have no hesi'bation in rejoc -bing this conton -bion. The appellant admitted that he was the one who wrote Exh D, which was a perreit given to Katakata to onablO him to buy amnuni -bion for the rifle he had bought. The writing on this document and that appearing on Exh. H is so similar so as to be indistinguishable. One does not need an expert to. see this. Secondly, there was ample evidence from other police officeis, who had had the advantage of working with the arpellant and had Sec:r the appollan -b write and sign several letters, who tctifiod thot Exh. H was in the handwriting andsigna -buro of the appellant. Thiruly, iJusopolu hmc.1f said u t wc ih chit uho 'mpcllrt gave him in acknowledgement of the money he- obtained from him. hitie such evidence, there was no necessity for evidence from an expert hmndwrjtine or document examiner. There is no doubt that the appellant wrote it in acknowledgement of the money paid to him ty polu. Secondly, he coetoac'ed that 1'us I olu oC Do uO Kmsga should no have boon believed. He gvos no reason oor this. Having regard to the evidence on record, I sc-c no valid ground to disbelieve I usa i•iaiJolu and Do -be Kasigo. or to hold that the learned Resident Nagistrato erred in believing -bhcir evidence. The appo- llant represented to husa .topolu that he had au -bhori -by -be receive money, on behalf of Shinyanda oporiure, when in facb ho had no such authority. The ropresenta -bion v-es false and he knew it -be be so. There is no doubt that ho did it with inbon - h to defraud I-Inca hapolu of his money, and he did so as he managod to obtain cash She. 20C/= from hire. The conviction therefore is quite sound. The sentences imposed were reasonable. The oentence of 2 yeare f or the iirs b ceun - b was the minimum sentence provided for by the repealed minimum, Sen -boncos Act, 1963, Cap. 526 but by the date of conviction, the statutory corporal punishment had already boon ropoaled by the replacin? IJinimum Sentences Act, 1972, Act ho. I of 1972. The scn'bonco of 9 months, on the second count, ware reasonable. The orders for coimonsa - hion are well founded on the evidence, The She. 500/= was paid to the office of the O.COD as trust money for bhe heirs of the deceased, and hence to that Oxtent the govern mont became a special owner. The apecllant should, therefore, compensate the government in the sm -c of She. 500/= as ordered by the trial court. Musm liapolu suffered financial loss as a result of the false representation. He was, therefore, entitled to a refund of She. 2001=, as ordered by the trial court. ORDER: As a result, this aoal is dismissed in toto. Delivered in court at Nnanza on the 9th day cf-Ihrch, 1973. -, - -. (z. N. EIU-TIiiDY) JUDGJI, 9th I'iarch, 1973. Apollant - absent. Hr. Rcehim - S. A, for Republic.