19780713 TZHC Mwanza

• . IN THE HIGH COURT OF TANZANIA ATANZA APPELLATE JURISDICTI21r HLON COURT CRIMINAL. APPEAL NO. 40 OF 1977 Cf CR0 APP. NO. 51 CF 1977 ORIGINAL CRIMINAL CASE .NO. .692 OF 1975 OF THE DISTRICT COURT dF SHINYANGA DI3TRICT AT SHINYANGA BeforM.G.C. K.J1RI, Esq., RESIDCNT MAGISTRATE KITWANA KAMI.. . • • • • • . ........................ , • • • • • • . APPELLANT (Original Accused) versus . . THE REPUBLIC.... •'. . • eec a a.. •. a. •,. e . . em 0.0e•e .o.oe...o . . RES?ONDENT (Original osecutor) -060.-. .. JIJDGEMENT . .. SISYA, J. The tw aJ.LlJats, Kitwana Kambi ant AlLxander Songo, appeared in the District Court at Shinyanga to answer 'to a ch:arge cpntaihing a total number of f rty-five counts, all of offences under the Peral Code. Th case iq.ns a curious . one.' ThirJ-one of the. said counts Were against K.itwana iYmbi alne who, incidentally, appeared as first accused at the tri -.l ano I propose throughput hrc'after to'sontinue calling him so. All the rest fnirteen counts wLrL against appellant Alexander , Soncju, also alone. Alexander apperuc as second acsused and I propose to r.tain, that d'ecription Nuroly , on grounds of expeence. • Of the thirty-one counts 'against the first accused six were of. Forgery contrary to sections 333 md 335, •eight wore of Fraudulent1. false ac.counting. contrary to section 317 '(a)-'.anc seventeen were.of Stealing by a person employed in the public ervice cntrary to s.c ;tions 270' and 265. Of the 'fourteen counts zigaint the second accused seven were of Forgery contrary to Sections 33.3 nd'335 .nd the remaining seven were of Stealing by a person loyed in the. oublic service contrary to Sec.- tic;ns 270 and 265.. As of. reid, "all the Of fences charged are under the Penal Coda. Without orjudice, as if the botch-patch of accused in th?, charge were not enough 'most of the f.rqery counts are in respect of some- disputd signatures on mote than one pay roll per Count. For example, C..unt three is" in respect of twelve pay rolls• (for the '.: months of April, 1974 t March; 1975, inclusive). Likewise, the offend- ing objects in some of the faudulnt false . - cáeunting counts ran up to seven duotful zche-uer , receipts pr a sngle count, eg. Count nine. The learne. Resierit Magistrae'wh'7 tried the case entered con- victions in all the counts' exet in tW. counts, that is Count 28 and Count 40, in which he turned Vrdic.ts(-,f .h t guilty on the gr'bund of • , lack of evidence.. Br)thC)unts 28 and 40 are'f theft. Count 28 was in respect of th.. first accused whereas Count 40 was in. respt' of second accused.' On each of the forger' and ,fraurJuLnt.faise accounting count the ffrát- accuse was senterced to 'three y._-ar' imprisonment whereas on each of the theft counts he, first - accused, ws sentenced, to five years imprisonment. As regards the second accusec. he too was sentenced to a term of three years mpri'sonment-'on'e,çh of the for or ,c6ts and to five years imprisnment n each f the to.ft c unts including, not unsurprisingly, count 40 n which he was accruitted. There is an order that all the sentences 1re to run çn .ent1y. }oth accused have now appealed to€his Court. .. ' . ../2 The trial was unavcic1ib1y a loflg,.Qne .'t which thirty-five witnesses gave evidence on the Prosecutii stde Both accused gave evidence in their respective Jefences but neither called any,witnesses on his own behalf. In short evidence was led by the Pfcctitin tr. the effect that the first accusc was iing c]k. attach1 t' the Government hospital, Shinyanga from 1973 t; 214.75 when he hriJr .vcir' his duties to the soconi accuserl0 is a payiri clerk his cutiLs irc1uo cashing salary cheques obtaine frnn the. ffice of . the Rgi:: . ....1 Devolc.pment Director Shinyanga,.atth,2.harik effecting Sality pr:'r nts to hospital employces. Every employeo ., paid acknowledge receit thcro:)f by signing against his or nr mo n pay rrll fur r t rticu1r mth. It, however, s hip r1o 1 at t2- S that fcx ner s ri )r an'ther a pay would ' not be c ;l1icted by te supposed ownr/rnploy. This haperiéct. when, for exom;:L.., t1L. 011)1 yee in questi n n ne ri unpaid leave, on transfer, rusi - ncd r ven had been .disrnise from service. Itt stiCh cases the. paying clerk wuid then hand ovur the unclaimed pay to an : accoun ts clerk who was d•eling. .,itii rvenuc 0 lioction. During the rele- : Vflt etibdti the instant case such clerk was *c.n'6 Erçn Màgayane (PW8). The said revenue clrk wh , incidentally, had s lo custody of exchequer receipt books, cash bock anCi letter transfer b )kS would then islue an exchequer receil3E for thunclaimed pay. Thereofter he wnuld enter the same in the cash book hofore, finally, returning the mney to the bank and consequently tc the Gcyernmit : on a lottcr transfer. In September, 1975, as a result ofri " ài11t inspection conducted by one Wilbert Shjljnde (PW2) wh descrIbed Iirself cs an Internal Auditor attached to the office of the Regi;nal Development Djr(ctor several pay. rolls, which were subsequently produc.d as exhibits at thi], whi..werd uec1 during the succsive periods f thc accused person, were fouril h carry, arrnnc thers, some nub]. u signatures putported to te those f th.. Payecs as shown. T1er were other pay ro'ls which had no ignaturs s such ga]nt so priular ZZ payeL.s. HoWver, on the spce mant fo t pIe signature . - s so in or qted J4 xcheque eceit number, osterib1y Of that whch €hè pzyitvolved was 1a back or returne t the overnm.nt. Origin - 1 ccipIes of the sa!d echquor raceints themselves werc als ottiched to the rele.- vant pay, rolls. Lrte investigations which ire crn.ucted by a Probationary Sub-Inspect (1-r )f Pclie, Aks vi (P 1.), 'f the Fraud Sec- tion revealed that tb.e, sai lubious sintur n divers pay rolls were denied by thir supp sed owners or ritrs uho also denied receiv- ing the money as sh-wn. The investigations is revealed that sQme of the excb.quer rcceipts usccl for the purpose £ accurt1nQ for unp.ia salaries were Ir)m an exchequer receipt bok ch was, earlier on, stolen from the fficè of ma Assistant Fiell Officer at Naswa.- The mcney 'n all ..uch receits was net banked n r pr i.-r1y accounted for any- where. The vr1tinci n all such receipts was i cptified to be tht of the first accu s 41 d by tnoso wh said that they wer f -irniliar with his, i.e., first accuso1)s, h - ' writing. In his 6.efencei,which he gave n affirmation at the trial the first accused sail that he .egarl to work in the Health Department at Shinyanga in NcvembLr, i'71. He was then doiag th.. duties f afiling cl&k. In 1973 he was changed tc the Acc unts scti n where, inter ella, he and one Alfr..ci Mebul - (PW28) wero effecting salary payments, a fiol in which he had nj.. expc ririce. Accordin tc, the first accused he coulc not refuse for fear if 1 sing his cb. h. Liabula (Pd28) who has since retired aftc.r proxirn - tly thirty ne ycrrs of service with the Government t st fi. I t the effect tht h. C acho'l the first accused on how. € pay ut s1-ariec from May, 1913 t 1974, one solid year, end then he l.ft it cnti - cly to him, i.., first accused. The first accused went a a.r his cvi 'ence in defence t say that there was no pro per allocati a f luties in the accounts s cti a. According tc. the first accused 'Juties wre being dne by any' iy." However, almost in the same hre'th the first -accused conc led that "Nugu Kaiza (PW8) was the only ne uh s ke - ing Exchequer rc' i -it b oks marl Bank pay in slips Books." O tho ii ivival counts ist him the first accused said that as r'r s th ubious signaturcs ;r the various pay rolls the säe were of the - 'ci$ents whc collct: th; pay.... He -ent .dn to 4- - 3.-.- say thatsicc. ri t1 Pr s cuti n had failed C ii a hrnwriting expert to testify rx th isDute signatures iJ r r -z ri was given for such failure then.it i - nE that i11 the .tnrnies tzer by the paye- . QS shown on thc -'ay r us The first accust that as fr, those wh- c1airj t hrve been away cn trnsf r, unui1 leave Or dismissci no letter to th.t f±ct s cvercopieI t h1n10L0, first accused; forinor.mntj6n. With recar to the receipt fr% tn th to1eri reeijt book aTh-1 which were attac -' to some of th2 nay r )lls the first accused denied any qc edge of thorn. Accordiri t. , him all the receipts w1ich he -attached to the py rolls were jenui-ne -nes issued byKaiza He-was -surprid,. thorefore to seeWilbrt Shilinde (PW2) produce the- stolen receipts..and leave ut tha-genuine ones --which he, first . accüS:i., handed over to h..m, i.e 0 , Shilitde. The...second accused in his sworn'statemont in d once insisted that all -the 'salaries agaiit the disputed, signatures were colletédby their owners, lie said that although-he was- inoxperiencc1 in accounts he was taught tlat. irY effecting •pyment of salaries he should call out the name of the ayec -n make him/her si n .x1pst his/her name on the pay roll-. According t. the second accused this is what he used to do.. At one staçe in his evide'nce-in-chief the SeCond accused said that the p3.y :0i5 ibic.h'he lianded over to PW2, apparently for - a.iditing,' had -blank spaces presumably agaiist:the unclairndal'aries. However when the saidp y r us were produced latr, tn...y bre "queer signatuies," At the same tirna the sec'n-Y accused:s aid that all thd Prosecutiôttwithes- ses who denied to hove received their.pay lie The second áccused_ also expressed surprise that he was tried jointly with the first acc.11sed When each one f them had his own charges to answer. -he...leand Resident ragistrate c - nsi - bared the issue -of joinder of accu'ed persons. in the c's before him-in -a sin:le sentence '-Which reads and I ,quote from his judqemen-t:- .........'- • •. - -: - - - 'To-.be speific there- is - not a. -single count i ,whiçh the accused are joifltly and together £harged. It is most probable that. the proecu- - -r - - . - ....tiOn had to charge them in one .fil an 1 on one charge sheet bocause of the nature 'their work -. at different times- was -very similar if not the Sme - such that tho resulting circumstances and allegdd - - -- - transactins - s- 'ne had hand the other sini-ar -, duties, the c averience of the case invitd for as le CZISt." At the h:rLng f this appeal the l....arrio' Tvc tL fjr the first accused, Mr...Rugarabamu, argued: that. -the joint trial of his itlient and - the -secr.nd accused fr roffences which were unrelated and which we -re ai:leged-ly condtted at -diffäreht times ,wo-s. hirrin1ly .prejudiäiai' t o the ,'first, accus--:L and it als'- - fened provisions -of. section 1-37(1) Of. .'the.ri-mial • P r , cro ..ur .e t e. - With t1e greatest respect to the i.earned. Co.unsel wheres it is true t. -' say that- thE: .::ffnces charged were allegedly covtnitt 1 at if fernt times I f it ifficult to agree with his statcmat that the offences ch - rge.i ore unrelated. To my iin 1 thre is some elati .-nshi in the o-ffenccs charged, not c.rily in he mode p..nd place f their cmmision-,bu-t also that the'appertain to the 5ame: type of frud perpetrated -against the sonic object, naieiy the Gc> vernment. 'Even then, it is-f true that .tlio j-inder of two dr more - accused persons in one charge is provided f' in Section 7: (i). of the C.iminal Procedure Cole. However that seCtion permits •tWe joint -- trial of, "persons' accused f the s-ame offence committed in the course of the same 'trandctinn.' . The ques :tion that naturally aisës is whe- ther the offences chargt-. 1 in the intmt. matter are the sante and--co 'S. mitted in.the dame transaction. - -- . - Section 5 of 'the PenalOCode ;.ef•ine the tL-rra '(fence' aS "an act, attempt or omission punishob:le. by law." The term 'same offence': must therfore mean the $CniL- physical act of crime, attempt or inissi-on and a differaht act c.-ntitUti-nq - a crime - called by the same -name or punishable un cr the same soctic-n4 In this connecti 'a -it is- not' c1le '-'-/4- - 4 - to-. note that .n th- instant tter there is a ,:t even a single count in which the tw ccuse p rs as were -withian offence jointly and together. tioLs the accused 11 ly committed the offences. a-re cii1'er-et. Roving said this I ia hasten to answer the -' questioi pas r.a'bve in the negative0 4-t is my consilered opi- nign that, at, all a can say with ragari t.; those twp' accused. 1aerscns is that ti y c mmitte, similar but ccrLi - ly n't the some acts of crime r off rces. Having crme t this c xaclusi a it is open to the Court to fincl..that there was a rnisjcindeE £ 'cEused persons in this case and this I • The oustiin that ariss i is what effect des this have a th cs. as wrile? Dues it vitite the proceedings in the lower Court lLwing rdinary ruls f ietcrrtat1cn it seems clear to me that occerdiri t the wording of Sectin 137(1) of the Criminal Procedure Code the questicori whether or at there is g'ing to be a joint trial is in the discretion of the trial Court. Needless to say such discretion must he exercised judicially, with theCourt tak- ing in€ accoUn, factors: which considerati-ns of justice.and fairnes require. To my mind faiIi:ire ta exercise such discretion or- doing -so wrongly can,, again on the c nstructian of ;3ectin :137(1), only amount. to an- error or .rregularity and not an illegality.' That being -o then the answer to thu questi' as aosed lies'in Section-346 of •the Criminal Procedure Code. Applyiog the provisions '-.f that section' to the instant case all it means j , that the proceedings in the lower "ourt may not be vitiate 1 r c1rcc1 null and vcid unls it is fund that the joint trial of the accused pers"rs had in fadt accost nod a failure of justice. I The quétian that nw eises, therefore, is was there any failure of justice in this case? ." In arguing out this a'aeal before me:Rr. Rugarahamu for the first accused submitted that with,lthe ,.mas of P .cumentory exhibits which were tendered 'and admitted in eviden.at the trial coupled with," the number of Prosecutions witnesses, thirt-fiv.ein all, it is clear that the first accused cuid not possibly have def. dc, - himself properly. 1 - o, i.e, first aç cude.. was embarrassed in his cf,:nce and this occasioned a miscarriage c-f justice. 'Jith r,sp'ect the 'hao sheet 'clearly shows which count- is ia-respect of which '• Likewise the record of proceedings in the lower Curt c1erly h. --w's that ple'as of the accused were takenanly in the counts concerning that particular accused person, for examp1e, ; n Count 'ne where the charé' was against the first accused only his i.e., first acdused's,-plea alono'was r,;coded and entered. Further, evry witness who testified c'n 'the Presocuti,'n side stated clearly in--respect -of which accused he/she 'gave his/her:evidence and although there were indeo.' I thirty-five wItnesses not all testified against the first accusedp The evidence of some o-fthcm was solely in respect of'the"counts against the second accused. Furthermore, the first acused, gave a lengthy and, fairly detaile statement in - his defence; touchingoo-n o,ll individual counts against him and also commented on all the witnesses who c ncerned him and whose avi',Ience was -relevant to his case. Adrt- ittodly, the accused dc not ajaear to hoive been repre- sented by learned Counsel at the trial. Evcn ther, onny-eva1uation of the proceedings in the lower Court I 'hasten to remark- - that: the show which the :accuseCl, j particularly the first accused, put up-in defence can hardly, by any stretch 'f imagination, he said to hecr equated to 'that' of an embexraso'I '-r.corfus'ed person.' if anything and without prejidice the accuseds' st'terrients in their rasnective defences-have every' quality :'f that '-f a nerson who knd'w what to talk about. I am here, talking ut the ccuseds' statem,o1±s in Lfence in their cwn cc ntet. In view of, ,l1 this - I am far from baino ?ersuaded that the accused were prcjuc1.ceP in their respective -'It-fences by the sole reason of their' joint trial, after all there was no applicatiPn far separate trials before ih. lower Court and, at the seiie time,: there was this nexus about it, that s :mc- : f the witnesses wi-i pave evitlence in respeIt of 'counts againt the first accused- were the same as those giving - -.,evidence on the counts a'aiist the second' occued. In seyi-ng all this - I sh'lP not h-a take-n t moan - that I think that the -'5rlint trial in the nstant tthr was desir - hl • Far frm it. It is just because I de not a - - ---,•''_ - '-f', ' i- - -5-- find any groun ::. dcclsrin that by roes-n f thcjeint trial there was a failure :. ju. tice ii the case, • I now turn toc'nsi'r the individual 0unts. Startiriq with tho first accusel first, 3s 7f resaid six of the cc'unts •'gainst him, to wit counts 1, .3, 19, 31, 3.3 end 35, are of f rry The offending objects in all these cunt are s1 n'tures of suppose. ayees. The learned Resident Magistrate was s.tisfied that the sinetures in question were not of those persons as sb wn n the relevant -- .v r1ls. He came to this conclusin after seeing af hearing the witnesses ccncerned themseves and also after ccmpairi- the isputed si ­n.-_. tures with specimen signatures provided by the said witnesses at. the instance ;'f the C'u.rt. The learned Resident Magistrate reject.. I the first accusi's uxplanati:.n that the dis puted signatures were nf the payees thetnselves cml since the evidence established that the selries in c•unnacti'.n t,jjth the 'isputed signatus were stolen by `_-Jr.._-- first acci?sed he, i.e., th: trial Magistrate, found that first ac'cuse was the :ne, who forged the signatures in dispute. This Court has nt once, but often, tated th in a case where the charge has more than c, . ne count each count, in s' for as the point or poitts fore det..rminoticn, the decision there.n .nd the reasons for -the decision, must b'cated as if it were a sepr'ito'case evidence in ros- pect of each cunt must he reviewed separately. It is with this princi pie in mind couoloci oith the fact that as tha first appellate Ccurt,, the law permits me ta review the evidence an' see how much of it there i's'to support a C nvicti'n that I now turn '' c.unt The offen ía' subject cn this count 'is . sijnature on each of the three pay rolls fr the m';nths of April t Jua., 1974, inclusive,.- purport- ed to. have bec; written by :.ne Hl':1a,Pares (°''3'. I cannot forbear.' to point out, 't this stqe, that each s'icinaturc here constituted a separate act f rgery; thus a separate act 'f crime or offence. Therefore, by 'cher;in all the three acts. 'f forgery in a singl:e count the charge was 'bad fp.r du' licity. With res)ect, it indeed surprises me how the learned Resi - ent Magistrate failed to see this 'at the time he read over the charge t-, the accused anl/cr at the time he wrote his judgement;glar.ng as the matter is. However, th, iilegality.,in the fom of the charge in 'thc sense that it charg"d norc than one offence in a single count ootwithst'aing, ,1, nevertheless, do not propose to quash : the conviction on this c urit n this ground becue the defect is cur- able utider Section 346 :f the Criminal Proceurc C'de The alleged - forgeries on this c'unt .rc all part r the same transaction. 'Further, I think, it is perfctiv clear that the first accused was not in fact enibarrássed or preju 1 ice in his defence. Furthermore, without pre- judice -to the .Ual result of this appeal on Wth ; 'j hC greatest respect I amcf the view that justice s.hould'not suffer orbe defeated on account of the irexperience r inefficiency nr ignor:..rtCe 'f the procedural' law 'on the part f the Public prosecut .r or the trial Magistrate or both the prosecut .r 001 the N.: oistrate. -. • in Count O:j, 'fhcre can' be n° doubt that the only material witness is Hilda Paress.. (P13' horself whose signatur' was allegedly forged. Ther? was-nc dis;ute t the trialnor is th:re'ariy rL;w cn'the fact that the hree sionatures in question on Exh. A 'if for from Hilda's known signature. lo arguing ut this appeal before me Mr. Rugarabamu for the first accused arou:.' that the first eccusel was new - in his job and he was payinr v:.ri us :. .....le from the hc.spitl and dispensaries. He - could not, therofo.., ent on to. argue Mr. Rugarabamu, know everyone of • them, by face; He, first •ccused, simply had t;" trust those who responded to the call and signed the pay roll ackn'wlgin:; receipts of their salaries. with ,cspeCt, this argument. has n' factual -background to support it. PW3 testifiad to the effect that the first 'accused and her self had been working t. 'jether from ,197e to 1975. There was a time when PW3 was the only typist end first.accused usçc'.,l to' send al'l'his drafts for typing t. her. The evIdence of Pd3 'a 'this .aspect of the cage was not seriously challenged or cc ntradiotod. In the cuinstanCoS, to me, it w'i.ill sound ri iculcus if the first acci.iscd claed that PW3 was a stranger in his .'es. As amatter ef fact the first accused did not, in his stotec.,:nt in'defence, say s c1am by Mr. Ruga.abamu . .76 in his . submissi ns It is, incidecI, true t' sci' that the first accused did try to make excuses f r hing inexperience in accounting duties 1 However, his main i T s that Hilda (P43) niçnec.1 on the pay rolls in question and collected her pay. He, first accused, coUld not querry or challenge her because he ias kept ignorant by the authorities con- cerned 'f the fact that Hi]o'e was, during the mnths of April, May and June, 1974, on an Uflpaid rrcternity leave. • New, the al1gatier b' the first accused thct the pay or salaries office where ha was workia was kept in the dark e not only Hilda's leave but her unpaid maternity 1 ave stands neither challenged nor contradic- • ad and, frankly, there is ri.. reason why it ws not a.cpted. At any . rate, until nw there is no evidence ti the c°ntrary. As aforesaid, Hilda denied puttieg d' wn the three. signoturs un or querry. She did net stdp at that. She went °n and cpiñed that the said signatures were writteri by the first ccused. PW3 èxplaiea i to the learned trial Magistrate how she had f rmed that opinion: Th.i was conversant with the writing of the first accused and the letter f.rmati ns of letters "1-I" arid "R" on the 'disputol signatures were characteristic cf his, i.e.,first accused's, hacJwritin The 1erned Resident Magistrate accepted the evidence of PW3 n this :'snect of the case. Me was porfedtly entitled to a do. so because C.ct:Ln 49(1) of the Evidence ict makes admissible opinion ev&dence of hen writine by anycre acquainted with another's handwriting. Ho.ev,er, on Count I, the evience is Hildk's wrd as against that of the first accused. That was there, one may ask, t' arevent Hilcla herself f'° gcing to collect her pay although she was a t entitled to it according tc.la?. Is her w':r.. of m'.uth iening the siga - thres, in all the circurn- . ,,tanc.es of the case, .... h to absolve her frm suspicion or even ha- -bihity. If she knew., as sh, claims that she in fact did, that she was on ..unpa4 maternity leave w uld that, ipso fact', not be. enough reason for her to .:listert her own eignature in . bid t.: enable her to get away with it later, when discovered? In looking for possible answers to these questions it must be borne in mind that the avicnce en record shows that the first accused was all along nat informed and, therefore, pre- sumably ignorant of the f ict that H1da was en three months unpaid maternity leave; there is a evidence to show that it was his duty to ascertain that there were a variatins in the payees signature; and finally the first CCUstJ never said thcit he did n:t know Hilda by face but insisted that it was.she.whc signed the relevant pay rolls. On my evaluatirin cf the evidence on rae r' I find that the possibii y of the said pay r..11s beirie signed by Hilda is r t imaginary but real. The evidence sli us . that she was an unmarried ci thor.. The evidence is silent a's to hcw she would have supported herself and the baby for three solid . months without her nay. Another p mt t. take into account is the fact that in tlic C1:'Senc... ......any evidence ti the cpntrary it seems clear that thrOughout the relev dot period she, i.e., Hlci, was in and around Shinyanga. • . T0 my miri: if the lerned Resident Magistrate had scrutinised the evidence before him on C. urit ne with judicial :bjectivity.I very much doubt it he w uld still have arrived at the same conclusion which he did. On my part I fiaT that the evidence on this C: unt (Ccunt I) leaves room for doubt, the huria,TLIt • f which first accused is entitled - acco- raft to law. In the event I allow th4 a'opeal in Count I. The c.nvicticn' is quashed and the sentence passed thereon is set aside. The evidence :n the rest of the forgery c :unts against the first accused i.e.,'counts 3, 19, 31, 33 and35, is in the same lines that all these counts may be c nsiderecl together. .ith the exception of Count Iwhich charged the first accusad with a. single act of an alleged forgery the rest charged - ore than ane in a single count, to wit, as intimated much earlier in this judgément, twelve acts of forgery in Count three, tW.: in Count.thirty-ene', fiie in Count thirty three and feu..in Count thirty-fiv.. Needless t say Counts 3, 31, 33 and 35 are bad for duplicity but for reasns alrea..v advanced in respect of Count I on this same isse of duplicity I h IT that the defect is curable in respect af th ccc Counts currenti' .n'er qurry as well. '-.- .. t. -7 Common to all. t rcery C :unts the offon in' subject is a signature denied by its su'p sct1 '.jriter. For example, in C 'unt 3 the offend- ing subject is '. si nature .stensib.ly signoi ';y 'ne Lucy Joseph: (PW16) on each of' the ''! rolls f r the months of April, 1974 to March., 1975 inclusive; in C unt 19 it is a signature :stenily written by one Helen K(-.kusiumila (PW19) n pay roll fr th. ri' oth of February, 1975; in Count 31 it is a sionr'ture ostensibly written Py one Margare±. Kwishimhila (P24) n each c'f the pay rolls f r the months of January and .Febrary, 1975; in C:unt three it"is five siaturcs'ostenihly written by one i)amca Martin (PW10) on pay r us f.:r the months: ofJi.xne to October, 1974, inclusiv'; and in Count 35 it is a signature. ostensibly wiittert by .-)ne. Rehema Kantombula (PW11) on ch of the pay rolls for the months of June to September, 197, iaclusivu. Each one of:the wit- nesses, i.e., P14I6 on Count 3, PW19 on Count 19, PVJ24 n Cci4nt 31, : PWI'O 'on Count 33 and PW1I. 'n Cunt 35 denied writing the disputed natures on the pay rolls in question. ;The Prosecution, somewhat strangely, sought to confirm and estIish the denials of PW16ancl PWI9'by.callinç5 thejr respective infant sisters., PW17 anti PW30 1 whose evidence; the learned. Resident Macjistrat': redëived on oath. At this st - je I may onuse to state that whore a child or a, young person is to give evidence hut the trial Magistrate would like.to nake enquiries on his/her intelligende. from the witness himself Or herself' and also to ascertain whether he 'or she appreciates the piety on an oath or not it is most undesirable, in the circumstances, for the Court to admi- nister the oath ...n the sai'child or young pors' n prior to conducting a voire dire as thJ loerned Resident Magistrate appears to have done in this case. Be it as it may, as efaresaid it 4os. not disauted at the trial no is it being dis:utoci now n appeal that the dis uteui signatures are dif- ferent, from the usual sioriatures of their resective writers. If this was all, and in iOU it orosumably was, that P17 and PW30 were trying to establish with re: - r t' the.eviclence of PW16 ari' PW30 respectively then their evidence is most irrelevant. However, in support of their denials to have written the dispud signatures P16 siil that she resigned from duty at the end of March, 1974; .PW19 and P24 sai' that they were on unpaid maternity leave 'luring the relevant period; P 1,410 said that he was away at Maswa attending j nursing course whores Pull said that he was attached to Kthamn Government hospital at the material time. Previously all these witnesses were attached to the Government hospitaL, Shinyanga, and were being Paid by the 'first accuse..i Ar;' in, the defence. of the first accused is 'èht all the (lisputecl sijnatures were written by their T.respective owners and since he was, not aware that th':sc who claim to have • been on unpai.' maternity leave Were ,1nC'eed ' n unpaid maternity 'leave and 'those were aw..y '.r± transfe or on resignati n were indeed away he CoUld "not quarry them when they turned up to c:11oct their pay. ' It' is common knowledge that 'the said names, including that 'f the one who cl.med to have resigned a solid year previcsusly(P.W16) were included in the pay rolls. The learn..d Rosident Magistrate, by his verdict, aceptedthe evi- dence of PW10, PtT'l, PW16, PW17 and P142' with ut resorvti ns. He docs net appear tc h:'.v,_ subjected the Cvidence 'f these witnesses'to the scrutir4.which the first eccused must havo''x ected him to do. For Oxafnple, in the liçht 'f what the first Cccus,: said in his defence, what' could have prevented these witnesses fr.'m going to collect their salaries and' in the pr. Cess distort . their •'.wn signatures?. PWI6 said that she resigned in March., 1.974 but she remaino' 1 in Shinyanga until some- tIme in, 1975, the ninth wasnc't disclosed, when she wthit to Dar es.Salaam. PW17, whr:.s'e evidence the the learned Resident Magistrate inreservedly eccepthd, i 'entifled the si'nature n the Janua±'y 1975 pay roll as bein. that ;f her sister, PW160. She lcnicdthe other 'signatures. It must be recal.cd that the said signatureras 'ne"of the' disputed signatures and PW16 herself sai' 1 that she had ceased.' to: sign on' jay rolls as far hack as March, 1-974 In Cu*19 it is also 'PW19's word as against that of the first accused.. 'The same is true ('f.the other Counts, 31, 33 and 35. In short, on my Cvaluatin,f Lhc evidence I find that it cannot he said with rn.' tal certainty andl t' the exclusi'n of every shad IMUM of doubt that th•.. first ccused is indeed th . ' - s'n who wrote the disputëdsiqnaturs in Cunts 3, 19, 31, 3. 35 and not their res- pective owners. if the 1. tter is true, and on the evidence I find that. it is at least eossnahly - .rnbable, thenvri.ti apr dist';rtion of one's own sinature i: n.t I h i, forgery. Suffice it t: say that for these reas as c avidtinns in Countss 3, 19, 31, 33 end 35 cannot he al:lowed t stan nd the same are hereby quashed.. Th sentences pssed therecn..aru - cc rdiagly set aside. Having cdme t this c . nclusi:n it is 'en that the convictions in Counts 2, 4,20 1 32, 34 36, all :f.which wLre .f Stoalino by a person employed in the iub1ic service against the first accused, cannot stand. This is as by res n of the finding of this Caurt in the for. .grCourts against first :ccused. There is a mc real dauht on the. identification of the actual recipients :5 the m fey in these theft counts. In the result c•. nvictions in Counts 2, 4 7 20 7 32, 34 and 36 are quashed and the sentences passed thereon are set aside. I now turn ta conihr the appeal on th fraudulent false account- ing counts, nansly Counts 7, 9 1, 13, 15, 17, 21, 23 and 26. On these the learned Resident Magistrate had this to sy and I quote from his judgement - "There is an' uch evidence by the Prosecution that ch.?rq as f ftaüdulent false ccc 'unting are :roved. Pd8 was the only 'ne expected to receive any unclaimed salaries ­_n, than write out an exchequer receipt bef: re he sent to the BanJ: such pr' coeds. PW8 denie writing any of suc receints which are attached a the relevant ehihits. P8, PW3. and 2W21 "di s:'.i that they are acguainted with the first acausa handwriting said that ho is the writer of mast f the receipts. On te' af this the receipts wre the subject of theft, ia that they had been reo - rted by PW9 and 'PW35 stollen from Maswa. The accuscl to this said tht these receipts had been att'ched ' by PW2. I am satisfied th t the accused 'falsifie1" thse receipts s's as to qiv an impression that they ha. ,. banked that money while in fact they had ri t." I think I have circa dy somewhere in this judgement pointed out the desirability t: consier each count as if it were a separate case and determine it a its own nerits.' From the pssage queted above it is clear that the learned Resident Magistrate considered all the fraudulent false ccount'ing counts, eight in all., collectively. - This was most undesirable. As, a matter of fact even :the languag, used dv the learned Resident Nagistrte when he said that PW8 1 PW3 Ofi 21. i1ocified the handwriting in most of the receipts ..s being that of the first accused is not. appropriate. It j not the sort of langunno which bears any meaning in a criminal CaC '.:h.re the finding of facts ;ught to be specific and tip to the hilt. More so when it Is tha in ividual receipts which form the hais :f the ch.'.rges or are the offending objects in the Counts trnde dIscussi.h. is Be it as it may as itLnow notoriously comman in the case this batch of ounts to.: has its share of counts which ore irregular in that they charge more thari a single offence. For 'exarrc - 1,a Counts 7 and 9 are in respect of five receipts each and Count 2 -1 is in respect of three exchequer receipts. I h--ive,o hc:wevor, c:qsil`ereL the 'irregularity in all these counts and I have come ta the cnc]usian that in no count was the first accused pcu liced or embarrasse d in his defence and the irregularity is cur'&e on appeal. There was n." dispute at the trial, nor is there any now, that the relevant exchequer receipts, viz., Exh. HE? in Count 7, Exhs.. UFI . . /9 to 'tF5", inclusIv in Count ), EXhe "H" in Count 13, £xh. "2" In Count 15, Exh. "K" in C unt '17,. Exh. "Li". in C int 21, Exh. flJI! in Count 23 and Exh. "M" in C unt 26, were stolen frrn :w - It is in eidenräe to the effect th'- .b thse receipts purportc t: s]: that the salaries of the followin'eo1:lo in rospect of the foil .?ing mcnths which were not claimed and/ r collect by their respects ye wners had been returd to the Government, that is t; say Jumanne 0. A: 1 a11a for the months of August to Decarnur, 1974, inclusIve, i.n CLunt 7;. Sifaeli Mpemba (PW18) for the months .f Septemb-;r, 1974, to Janurv, 75, inclusivej in Count 9; Thereza Msonja (2W7) for the month f Cct her, 1974, in count 13; John Kunese (PW29) for the month of December, 1974, in Count 1.5; Helen Kckushibila (PWI9) for the month of Janury, 1975, in Count 17; Martha Mackenzie (PW12) fcr the month of January, 1975, in Count 21; Ester Salu (PW22) for the a nth of January, 1975, in Count. 23; a.d Nicholas Peter (PW23) for the m' nth, of January, 1975, in Count 26. Apart from Jumarné 0. Abdr.l who was sold to hv left employment and could nat, threfere, be traced all the other p ; rS ns 'gave evi.ence at the trial and explained why their salaries in question remained unclaimed or uncollected by them. In short,.. some of the wItnesses said that it was because they were on urr aid maternitj leav. wheres others Said that it was because their names appeared. twice on the same pay roll for the sa'me month. They c'llecte and signed for only one salary and left the other as it was inclu:e:. by error r mist'ko. There can be no doubt, on the evidence, that ll these exchequer rocuipts Exhs. E,' Fl 'to F5, H, , K, Li, J and H, were n - t genuine receipts: They we fals'e•receipts. As a matter of fact the first accused, does n t dispute this in his defence. However, all.he says in his efence'which,incientally, is ua]: pronged, is that when hL :nI' 'v':r all the r1eVsnt y rolls to PW2, i.e., those to which the receipts un :r querry are 'ott che'., they had attached to" them' genuine 'oxci'iequer receints, duly issue Py ?8, on which the unclaimed salaries were c;'ilcted. In other wods, accsr.ing t.' the first accused PW2 .must have the aenuine 'ecéipts fr rn the pay rolls which,, incidentally, ar als6 'pert of the exhibits, E, Fl to F5, H, I,K, Li, J and M. ,ecly, in the 7ihsence of the cvi CflCU ':f a handwriting ep.rt there wa n c.niciusjve or f that the.writa 'a the 'exchuer e'cei4S in. question was hi On the first lee 'f the first accused's .fence it is clear. on. the evidence on record that P;2 was independent witnes in the case with nothing to gain or lose out of the case. B y his 'verdict the •Iearne1 Resident Magistrate was not impressed by this line .f the first 'accused's defence. I think there is every justificiti. n f r that attitude 'adopted br the learned Resident 1':3istrate. Nc thing wos established nor did"any fact establish its.clf t" sh'w why PW2 shoul:1 hove substituted false reáeipts for gonuine'nes :nd involve the first accused. ., On the sec:and leg the first accused a; .. ....rs to have talked .s thsucjh a hanciwriti'ng expert is s.moae infalliale in his., field. I can do not better "hdn to quote to him a passage fr m the smming—u. of Lord Hewart in. th trial of William Henry Podm:re, referred to by Sary J. in the case of Hassán'Salum v. pu1ic (1964) E.A. 126. it reads:—' 'Lot md say a word about handwrit±nc; experts. Lot every;nc be treated with ro.' .r respect, but the cvi ence of handwriting experts is sometirnas rther misunderst . handwriting exoert is nt - person who tells 'y u, this is the handwritin: of such and such ': rn - n. He is. rson wh, habituated to the amination of haad'.ritir;, 'ractised in the task of making minute examination '.f handwriting, lircts the attention of ',thers -E things which h su' - •sts are similarities. Th --E, : n. rnre than that, is his legitimate provinôe." To my'minl this c';ncise descri,ptiari of the status .f a handwriting expert in th branch ' the law of evidence is P. correct one. In.adidlitiofl to this I think I have 1rady pointed out s' mewhere earliCr in this judgement that S,'ctIon 9(1) of the Evi"icnce .ct makes 'admissible opinion cvi 'enco of hon 'writing by anyone acquainted with another's ./1O -10.- ... . handwriting. A.: in, fr the benefit of the s- ccusel subsection (2),. of the same Secti a 49 pr vi es as fn1lows- 11 (2) -.ibr the aurose of subsecti a (1) a person i: a aj; t:. h ..cquainted with th handwriting cf other . rs .n when he has s: . ia that ners.nn r whoa he has receiv :1 cuce nts purp rting . ~ t P . c'rittc.. z that pers .la ascr to documents writt..n.by himself or under 1:ia uthrity and a 'rsr . t. that person or boa i the course of or lin:ry business, documents pur, rthd t.. he written by that oers•fl have boon b itially sub- PW8 who id.c.t±':io' th writing on all the l•.vant exchequer receipts, .: Exhs. E, Fl. to F5 1 h, I, X, Li, J and M in all the fraudulent false accounting counts, a s. 7, 9, 13, 15, 17, 2, 23 and 26 7 told the trial Court that he and. tb3 first 'accuse ,-_1 workO'l t :g 'thor for four years dur- ing which he, PP9,usd. to seefrst accuse, write in his presence. PW8 went on to say that he was particularly canvers' at with the way the first accused wrotp the letter "P" and figures 3, 5 noT 7.. He, i.e., PW8, added that he was also contrsant with thosionature of the first accuec1 and he ientifi21 the si n ture on the exchequer receipt, Exh. E, to he -iis, i.e., '.fir arcused's. The lèrnCd .Resthent Magistrate accepted the evidence of PW8 an this :' ct of the.:c.aso. On my. evaluation of the evidence I am sa 4.is.fje. tht the learned trial Magistrate was fully ' justified to ct. .s : The c nc1iti'an laid bwo lay Subsection (2) of Se tion 49 of the vi.1cnce oct were, in my view folly satisfied by PW8. In. addition t. PW8, 2W3 and PW21 both f wham described themselves as typists at the Government hosital', Shiny. a' a an- 1 who also said . that they used t type ".rafts" written by tho first c&used also idOnti- fled the excheouor rocei'ts', Exh. Fl to F5 inclusive to be in the hand- Writing ofh first accuse None of thesa tw. witicsses, e.,PW3 arid. PW21, made any monti: n f the writing on the therrec'eipts. It'is, never - theless, clear dr m the r.c rd. that this ws Ia c:.use, unlike Exh. Fl to F5, they acre act sh wn the other raced ts. W4y they were. not showrr'and asked if they als identified th" writing an the other exche- quer receipts is riot immo iotely clear. Hcw'::v.r, I have already pointed out that justice sb ula at he permittec.1 t il reven to suffer on account of the inc.': ra etency cf a public ptJsocut . a, As aforesaid the first acused. conceded that he was the sole custo- dian of pay rolls whereas exchequer receipts, cash book and pay-in-slip book were being kept by Pdi9. TheEe was, t.r thoeviclence on record, no opportunity for PWC to have acss th the *ay rolls kept by the fiEst accused and first accused to the aceuntable ocuments kept by P48. No wonder therefore that the first accused hims.lf .:locs not even lallege that the relevant exchqu':r receints in this case wore written, and attached to the pay rolls by PU8. .11 in all, en my evaluation of the evidence I am satisfied that the :.:lavant exchequer rocedpts, Ehs. E, Fl to F5 9 H, I, K, LI, J and N, wera written by the first accused.. As pointed out esriler these rccei.ts aro net genuine for the aijrosc they were meant to he;. they aro ....lse. Th particulars :.f.ofdoce in all the fraudulent false accountin'. C unts, Ia wever, allege th the first accused falsified -: the respective exchenuer receipts purpertinp t show that the amount shown thereon had boon booked whereas in fact it hacl n;t been banked. However,, there is not oven a grain nf Ovi Icrc. t ' show that the unclaimed salaries, or avon any .. thor monies fc that matter, were being banked on an exchequer receipt. The eVid.é e :n rac al shows that money was being banked a a pay-in--slip and in the in toot cas there was none in respect of the rn nios un :er querry. fcier 1 003 nrc amendment of the charge rn this ... oct f the case. The :' a cuti ri is hound by the particulars, s Lamoc1c Puridala v .R. (1968) h.C.D. 54. Failure to do so is fatal, to its case. If I may say so this ....... ..t c,ase i.e., on the frauulent d fcl:e acc unting counts, but ah down the drain. At any rate ther_ ab. ul I hove bean alternativ a uoas of uttering false documents to P 2. . .,'l.l. In the event thL appeal Counts 7, 9, 13, 15 0 17 9 21, 23 and 26 is allowed. The, Convictir ns rn , these counts or äushec1., and sentences passed thereon or sot aside. Now I turn to the remaininq theft counts which.are the last batch of counts against.the first ccuei i0c., C unts 8, 10, 14, 16 1 18 1 22 1 : 24, 25 9 27 and 45 The cvi ence on Counts 3, 1', 14, 16, 18 1 22, 24 and 27 is similar. The omunts said to hov. b..:n st ion by first accused on these counts rerasen€ th:o unclaimed soiirie: of na Jumanne .0. Abda11al in Count 8, Sjfcij iv$m5a (W18) in Count 10, Theresa Masanja (PW7) in Count 14, John i<u:se (PW2) in Count 16 9 clo. PZ;kushimhila (PWI9)' in Count 18, Martha Eockenz.ie (PW12) in Count 22, :tor Saiu (PW22) in Ccut 24 and Njcb.ls 'otér PW23) in Count 27 rJ f.r whichthe first accused issuoi ;xCheqUer receipts, Exhs, E, Fl to F5, H, I, K, Li, J and N. T-1 e first ccuse1ts defence on t1r c:urits is that the money was return'. .t the O:vernment and, ther: :re9,. properly accounted for. Without bcatin ob ut the bush there is sufficint evidence establish- ing, in fact, tht the anies involved wa. neIer brought to account. It was not banke°0 ',Ohn, first accuse] went "n t,. soy in his defence that he was very .ncw in occ unting duties0 In oil, the circumstances of the case this s.unds a lame'S excuse and rio w'fl:ier the . learned Resident Magistrate dismissed it with - ut any consid::rati:n. To my mind even if it were tn' be aSsUmLd that what the first ccue'. said on this point is true then at least the money ught t. have 5un tre, It was not, even at the time' he dendod . ver to the second accused as confirmed by their handing over statooent. . In short the canclusi' n arrived at by the ierirnecl Resident Magistrate at least on Counts 8 1 10, 14 1 16, 18 9 22, 24 and 27 that the first accused st-ic thc.im-ney. 1s the only reas:nable inference in the light o the evidence before him. In the event the appeal .. ni these counts fails and the c' nvictions are, accordingly, uhelr1. This leaves us'with.0 unts 25 and 45. 'Ih Cut 25 the. first accused is said to have 'st.'leñ cash Sh. 1731/65 beingsalary f'.:r .Febriary. and March, 1975 for three pers nis, narely. one S. hoi3teohen: Mbeke. (PW6), T. Haule Sudi, i(iLeri yumba and Simon Mnyaani (PW5), The charge on this Couiit is ),:d for uncertainty as ltd es nt show the amount tc,r which each one of •the• a erscns mentioied was entitle . Further, only two of the four persons nenti;ne cave evidence, -n .:vm these two it was each individual witnessot s evidence as agaInst that of .the first accused. 'For these, reas':-ns I not think that it was safe: t à-,nvict.: Accordingly the appeal on thio. C-.unt is allowed and the sentence is set aside. As regards C:unt 45 I have failed to ir any evidence to support the charge. The, c nvicticn is therefore quahc .. However, since no sen- tence was passe:: tn this Cunt there is riothinc! t. set aside. Now turning t the second accused, th c'.nvictions against him en Counts 5, 11 9 29, 37, 39, 41 and 43 are of f.rtjory. It was established in evidence that the secand accused took over as a paying clerk from the first accus...d "a 21.4.75, The Prcsecuti"n case is that the second accused forged the signatures of various pers.ns, to wit Lucy Joseph (PW16) in Count 5, Sifoeli :MpembE (PW18) in Count 11, Nicholas Peter (PW23) in Count 29, IsarahRuanzibwa (PW13) in Count 37, Mary Gofre (P1426) in Count 39, Alfred Mahula (P1'28) in Count 41 and Anna Masawe (PW14) in Count 43 an pay rolls far various months • It was established in evi.ieCc that the disputed signatüras do in fact differ from the known and usual signatures of their suppose -i 'wners. However adopting the reasoning in the forgery Counts agains t the first accused and on the evidence avail- able it cannot be said with moral certainty and to the exclusion of every peradventure oE ,ieubt that the disputed signatures in these Counts were indeed written y the sec..nd accuse'i. In view of this it was not, there- f ore, safe for the learned Resident Magistr':te to convict. There was not even a single witness wh claimed to hove been conversant with the way the sec'.nd accua,,d forms an'3/ar curves his i..tters. In the event the appeal on all th f'rgery C-unts against the socnd accused are allowed. The convictions ore quasho and the sentences assed thereon are set aside. .../12 - 12 - -ø Having come to this C nclusitn it is oj; n.t the C',urt to find that the convictions on the theft counts against the secend accused, i.o., Counts 6, 12, 30, 38, 42 an' 44, which, inci'entollv, were as it were, fcundedeon the forqery c• unts cann - t als he l..ft to stand. If the identification .. f the auth rs of the disautoJ si natures was not està- bushed or is dutfu1 and in the absence f any evidence ofothplicity between the .soc. a accus nc the auth.rs 'f th di's 'uted signatures then certainly, in rcy view, it will be contrary t. oil norms or prindi pies of justice tc oint a finger at the secn - ccusec and say that he is the person wh" st le the money. In theatI.will also allow 'the appeal in Counts 6, 12, 30, 38, 42 and 44e. The cunvitions are quashed and thesentences ar set asile,. As regards Count 40 in which the ieered Psident Magistrate ' imposed a fivo.yars im:ris'nment on an• • cuitt1 I exercise my powers - in revision and set th sai - sentne asid..0 Turning to soitnce, n each of Count..8,1.O, 14 9 16, 18, 22, 4 24 and 27 the learned Resident Magistrateimoc.sedo term of five year imprisonment. Th ffences are scheduled Uner the Minimum Sentencs. Act, 1972. However in none f the counts did thc amount charged eXcoci Sh. 5,0007=. Nuvetheless the cffencs cisc1osc a eliberate abuse" of trust and involv emeditation. The maximum .n -.lty for the offence of stealing by a person em;1yed in the public service is fourteen yeorS. imprisonment. The first accused was said t. be a first offender. Tb my mind, in all the circumstances of the case thesontence f five years i'mprishnment, though harsh, was well earner1 and it is by no means illegal. However, the sentence requires confirmat.irn by this Court and it is accordingly confirme.1. T0 sumu', beginnino with the first accused first, in the Counts against him convictions hove been quashed and. sn'Eunces set aside in the follr5wig counts, that is Counts 1, 2, 3 1 -1, 7 2 9, 13 9 15, 17 1 19, 20, 21, 23,. 25, 2, 31, 32, 33,34 2 35, 36 nd 45. Cnvictions and'seri- tences. have beçri u;hel'. in Counts 8, °10, 14, 16, 18, 22, 24 and 27. Turning t• the sec ri accused convictins in all the Counts ag-inst him have beenquashed anl the sentences set asie. Therefore, savèt the extent indicate : the a:peal by first ccus is hereby dismised. A regards the. soc .accuse.. his appeal i3 all.ed in toto. It is, accordingly, directed that unless he, i.e., secrd accused, is being held on son- other lawful charges he shrul. , be st at liberty forthcith. The order fr c..mnensation is also quashe° an] set aside and is sub- stituted'therufor an r.er that the first •accuse nays a total sum of Sh. 7 1 406/= t, tho Gevcrnment as compensation. For the avidance cf -'oubt it is hr•by 'cited out that the order that the :seflteflcCs are t run concurrently is left undisturbed. Delivered at Mwanza this 13th July, 1978. H O E.DS •. JUDGE . .. .-