19770603 TZHC Mwanza 1

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The prosecution al1eed that it never was. The a 1 pellants claimed that it was aria was duly received there. There were a number of documents purporting to support the appellants' claim. The factory has two gates. The entry , gate is known as Gate No.2 and the exit as Gate No.1. It is not uiderstooa why this confusing numbering was decided on. Ido not think this was necessary for even from the sketch, xh. "J", it appears that the entry gate first comes into view as one approaches the factory. Probably there 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 register. The igister at Gate No42 1 E]xh. "G", is for incoming vehicles. 1 heir particulars are entered including a description of their load Similarly, the register at Gate Nà.l, Bxh. "F" is for outgoing vehiclese Again, their particulars are entered including a description of their load, if any. Times of entry and exit are also recorded as the case may be. Thus, in this case, it was recorded in Bxh. "G" that on 13/10/76 rn/V IiZG 90 entered tue factory with 120 bags of coffee at 17,20 hrs. It was also recorded in exh. "F" that the same vehicle left the factory empty at 17.50 hrs. The entries in the two reistrs were made by one pe-son. v4e shall come to this later. Once a vehoile is inside the factory there is another process of documentation. In the factory there is a representative of th Board. In this case it was benedicto Reverian (pv,2). I have noted that th arrangement was not clear to the trial magistate who got the impression that Pw.2 was at the Board's offices. The duty of the Board's representative is to formally consign the coffee to the factory ds if he were sitting in the Board's offices. SLnoe he is in the factory premises the consi g ning is theoretical and purely documentar'. It is effected by te issue of a consininent note addressed to the factory. iven more awkward is that the boards' representative acts on inf or-. mation supplied, by the factory employees. He does not personally sea the coffee.. And so it was in this case. On 13/10/76 Benedicto Reverian (Pw.2) reocivea in his office two weight notes, .Exh.. "B" and "iP' from Norbart and henedicto Mujaki respectively, purporting to show that they had weighed coffee brought in by rn/v MZG 90 on that day. The book from which exh.. "B" was written will feature later in the judgemen-t., On the same day, and no doubt on the same occasion., PW.-2 was given the delivery note, exh. "A", brought by Badru from Kabulala. P.2 did not make reference to this in his evidence but there is a signature that purports to be his own on exh. "A". On receipt of these documents he prepered a consignment note No. 26551, exh. "W' by which he 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 the factory. After the consignment, note PW.2 also prepared a Coffee Transp ort Voucher No. 05406, exh. C "", to which he attached a copy of the consignment note and sent the two docu- ments to the board's offices as authority for paying the transporter. Let me put in aain that I found no attraction in this arrangement. It seems that P4.2 is in the factory premises out of convenience. The Board does noth eighing facilities of its own. But this maies his respensibilities more imaginary than real. That aside, when it is remembered that PW.2 was not in the habit of seeing the coffee itself, it is frihtening to imaine how open he was to fraud and deceit.- And that, in fact,- was the thesis of the prosecution. It was contenaeu that the weight notes, exhs. "B" and "B", taken to P.2 were fake. vie have already seen that brighton was a production officer - an assistant proauction officer to be precise. 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'j • qx 120 eou.eoo d ;o uewesJopue 9uoq.tJ ;o eqtS ut rue tse000 stuq. u eej;oo pe3eoJ JOJ pe9fl sc sooq eou Tq T iam 914 r 'o JeT?/eJ pUC socq e.ou TeM epo [OUT Seqj •J[ElSt iJOqOE1J aq epiuc osr u i sjooq TCJCACS ee 9 ,1914 J. 4OW t100110 U(O UCW C I pTes CTY '9SCMJCT.fl.O eo;:.:oo eqq. Jo sieq eq MElS uee ei pet;tSoq TICUOSJCd a H •JOUTW 5T tt( UC41TTJa Oq. qxT )joO. OtM JCEY[O qou cc .t .peu313 pue H 'UCOIO eqSnqo J seq ot odeooi • qx jo oeq CI OJIt RTnp cu 85(10 SEq UT JCATJP otq. A'.q oqou Aeiviep 9t lT jo joeq OUT Ts iuq4JM Ul Stuq. op pifloM 9 H 'TTEflb uo uTpueciep CCJOO et —— I— -4- He neverthelece found as a fact that rn/v hZG 90 never delivercu coffee to the factory on 1/10/7 6 . he therefore pr000eac-u to convict the appeiwants as charged bat curiously acqited tao turnboys. The appeals ao not raise anything new. They roaeat mainly questions of fact, greeter emphasis bein put on the fect that the board paid for the coffee simpiyin receipt thereof); that there was no physical stock taKing at the factory aria that there was (or could be) a auplicate key for Gate No.1. The appclthts aloe onder how on the same eviaence some people era not charg'eu while others were acquitted. It goes with;ut Baying that the questions thr determination were mainly, if not wholly, q uestioilb f fact. They also aoonaed on the credit to cc given to tii WitnsGO. The ceiitral question was whether MZG 90 delivered coffee to the f--c - tt ry on 13/10/76. Tue trial magistrate stated that La believed join iuuungu (.3) and Gerald Mugyabuso (PvJ.4) to be witnesses of truth. He therefore found that the vehicle could not have boenit out ciuring their brief absence. I have no reason to believe otherwise. It was inyressed on this court by Mr. Mwale that the trial court never gave thought 'to the possibility of a duplicate key. I do not think it had to. Darnian, who allgua to have let out the vehicle, id not claim to have used a key. he saici that he found the gate open. But I believe as did 14e trial maistrate that Pi'.3 had left the gate closed. it then, means that j3amian never went to gate No.1. It also means that the register 'was taken to hir1i by Brighton. It is not witilLut sinificance tiaat brighton never made refererce to this episode in his evi.ence. The naarest thing he could say was that his handwritiila was not in tne ro,isters. But that is undorstandeole. he was at ic-act sufficiently intelligent to minimise the chances of his incrimination. In this swila ocnriCction it is equally not insignificant that the coffee was entered in the !rejected" weight note book. idthough the eviuence is silent as to the implica-. tions of this action it was improper eccoruing to Elms Liufung'ameza (PI.6 When this witnese, as security officer, callea an Brighton and demanded ; to inspect his books, Briliton imoecciutely calio for "G2 11 . He was therefoe aware of tj clerical irre g ularities although he had passea the coffee as acce 2 to'ble. Besides, Bri,hton behaved rather strangely. when investiati."ns started on tne following day he pleaded with John Sirneo (p.5) not to report tue rnattr further, saying that he would otherwise be in troole and stating ta't he knew all about MZG 90. Although this cannot be clasifid as an admission of any offence it nevertheless sLo;'s that Brighton was burdened with a guilty conscience. Besides his own assertions, hadru called two porters whom he allegedly hired to off-load the coffee. But these witnesses clearly testified onsomething uifferent. Balthazar John Ngaiza sici that on 13/10/76 he only bought a banana from BacLru. He said the day he was hired to off-load coffee by dru w.s 15/10/76. And it is true that on that day Bad.cu brought coffee to the factory. Vactasto Tizanga, on the other hand, rereubered only lc-ndig money to Baithazur on 13/10/76 to buy the banana. At that moment he was engad on a ccifferent vehicle. It is also eviuent from his answers to the trial court anci the prose- cutor that he may have off-loaded Budru's coffee cnl5/1 0/7 6 . It is only ?aschal Thekiama who alleged seeing MZG 90 on 13/10/76 and helping Badru with an empty ba 5 for a torn one. The trial court, however, hu gOOd reason in rceiving his evia.noe with caution. he hua recently been dismiesee from thL f otory end had iUS own interests to serve in givin?. c-vieance. On the ccntrary, the court further believed as true the evince of th clorks P4.8, 9, 10, 11 and 12 and OVen that of P.5. I can find no grounds to believe otb.er- siwe.- It is unlikely tuat all these witnesses oLla have failed to see the vehicle or that they ganged up to testify falsely against the appellants. And when 50105 of them said they knew the vehicle well they were not en.-a 6 iii6 in ide talk.,,: I 'have noted that between 9/7/76 and 12/10/76 this vehicle visited the factory 49 times. It was indeed a familiar siht. The witnesses could not have mistaken it haci they seen it in fact, .. -j -5 - I am therefore satisfied and similarly find. that MZG 90 never delivered coffee to the factory on 13/10/7 6 . There were other phy- sical impossibilitis pointue to, mainly that no vehicle could overtne another thiii tn factory priaises. The jSat reisters purport to show tn. t ILZG 90 loft earlir th..n the vehicles which arrived before it. I have ueciueu not to place much weight on this impossibility no tha trial Lfl :: never visited the eit to see for himself. but even allowin b :cr the possibility of over- taking, Iv1ZG 90 couli not overfly th cl: ccci gate. Certain other isucs may be dispoasa cf here. It was tstifid by simon Buberwa (P.l) from kabulala tht the coffee was paid for which to him meant that it had. reached. factory. I think he was oonfuseu.. The roper explanation which I accept was that given by Gervas Lekela çw.l3), the )ioard's marKeting manager. He said in effect thot coffee is paid for in advance. The Board gives money to a buying ceubre :n loan with which money the centre buys coffee from farmers. The coffee is therefore paicc for before it is shipped from the centre. There was in the event no sianificance in the fact that this ooearred on this occasion. iihat is proably interesting is tht no stock t:i was curriecL out at the fctory. Ironically, an auuior Filbert Kilimua isha (?;J.14), was sent to kuoulala to ascertain the snipm ' nt but not to the factory to ascrtain the arrival of the coffee. It does not occur •to iflC though, that the opposite would have maue any ciiff'erence. hcoard.ing to lias Piufungameza (P4.6) no check was 1iiae because they wee convinced that no coffee had been ueliverad. and it sounus froi 1ct tnecos of appeal that coffee moves very fast once insiue the fctory and a check woulci have prouuced nothing. I t_iink the exercise was rightly avoiaed even if it would have fuither strengthened the case for the prosecution. Heverting to th, chares, we have s:en tit Damian was alone charged with fraucLulont false accouritin :, in the first count. It reloteu to the entry he maue in the in;: id gate register £xh. "G' 1 , Be purported to s.t,.w that iiZG 90 entereh th factory with 120 bags of coffee. ecti a 317 (b) unuer which the charge was laid makes it an offence for a clerk or servant, with intent to ciefraud, to make or be privy to making any tube encry in any book, aocument or account. I have ff anti with the trial maistrate -th.t 1ZG 90 never entered the factory on 13/10/76. The entry in Exh. 11 Q 11 was therefore false. He also mcd.o it with iiitent to defraud for he did so with full knowleuge of its falsity. As wee the-n properly convicted and I sustain his coilviction. The same is tiuc in count to in respect of Brighton. He mdc an entry in Exh, "A" which was false. In his evidence ho assertaci to have actually seen the bas of coffee, sdying otherwise " a man can cheat me." but ira his riemoranccum of dilP 6 C 1 ground I (c), he turns around and says he only saw coffee on a tray anci that e dici not ul in visuolisiAi., vehicles, he is in other words saying that ne lied. to the trial court. In those circumstances he must have made ch entry with an intent to defraud for he was aware of its falsity. I will likewise uphold his conviction on count two. In the last count I am satisfied uoyo.d rc son le doubt that the coifee never re ce the factory. '.L'n a pall .nts who allege-u seeing it know better whe o it can be found. Th­u oniy reasonable inference is that they stole it. I uphold their convictions on that count. The appellants complained about tia exclusion of certain people from thtz charges. I do not know who these people are and they did not name any. Pr.sumably they hea in mina each andeveryone who signeci some aocu;:ont. Be that as it m..;, the complaint is of course academic.... tiven if more people were cn.reec. that would not have excused or reaucaci he appellnts' own criminality. I am satisfied, though, that these other people were misled by tile appellants. They acted blindly. It seems, in fact, -that the appellants were exhilarated by tiie- rampant ne a ligenoc anci took advantage of the situation. -J - p - 6 - However, I ao share the appellants' wonder that the sixth, seventh and eighth accused, the turnboys, were acquitted. It is these who, along with Bedru, conveyed the coffee to an unknown pluce. ThCy were in the event equally guilty of theft. The trial maiutrte stated that he was acçuitting them because he diu not believc, that they shaxed in the loot. That is just strange. For the purp080 of crimisl liability the offener aocs not have to gain from the crime. Other- wise courts would find it noat to imposible to reister any convictions. It is uhfortunate that this court has no power of itown to substitute convictions a b airist these turboys. It is even more unfortun.te that the Republic has net found it fit to appeal aaiist the accuittals, As I have observed on ear1ir occosipns itsecs that the Republic goes for trivial casea only0 io can only hope for the better. To suminarise the foreoiag I have not found any merit in the appeals as re wards convictions0 They are dismiasod on all counts. The sentencing on the third count attracts the interference of this court. It ctoes not appear t1t the lerned re..ident maisrate was mindful of the Minimum bentences Act, 1972e At least he did not say so. The Tananyi1a Coffee Board (now replaced or to be replaced by the Coffee Authority of fanzania) -whose coffee was stoln was aspe- cifieci autaoEty. By reason of item 3 in the First Schedule to the said Act, therefore, this offence was punihaole thereunder. And by reason of Section.5 (d) theroofthe minimum sentence would be five years imprisonment for the value of thu coffee stolen exceededshs. 5 9 000/=. Thus the- sentencin 5 on the third count was illegal.. I am obliged to correct theerror and must observe that were the appellants invited to show cause I would have considered fitti-na sentences aove the minimum. For these reasons I will, as I hereby do, set aside the sentences of three years on thethird count and substitute a 8entenceOf five (5) years' imprisonment on each of the appeiants. This sent nce will run from the date of committal, 12/3/1977,. and concurrently with sentences in counts one and tw. wieie applicable. In the final result the appeals fail in their entirety. They - are so dismissed. The new sentences will beicurtified to the rison autho- :TitieS without delay. - 4 • ' K. S. K. LUGAKThGIRA, J U D GE.. M whZA 3/611977.