19790717 TZHC Dar es Salaam

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SflSIOA (PflV IOUTÔTIO) 2DNOHdTI r13VHdVI •oqsT50 upsej ebg3 'pue' fkLflSIN JV JDI1LSIU WVV'WS S2 uya do LUu1OD iDiHisia 3HL IO LL61 .o 69t 0 0N SSVD TTNIWThD '1VNIDII0 6L6t JO 'Ot 0N PI2cldV T/NIWThD J1flOD HOIH NOIWDIOS PUll 2,LVTI3ddV wvvm's 921 ivu LV VINVZNVJ, do J,JflOD HOIH 2HJ NI ( /h1 2JbZ'7 -2- was in favour of one Meinrad Chale. It seems that Mejnrad Chale had a valid claim against the N,P O F. The evidence showed that his claim had been processed in accordance with the practice laid down by the N.P.F., which the witnesses described as fol1ows the claimant fills in the necessary forms and a file is opened and forwarded to the N.P.F. Headquarters. The Headquarters prepares a payment voucher and then a cheque is drawn. Any cheque for more than Shs. 5001= is crossed but it can be opened at the Regional Office at the request of the claimant. The Headquarters then sehds the cheque along with a copy of the payment voucher to the Regional Off ice which, on receipt of the same, notifies the claimant to come and collect his due. When he shows up the cheque is personally issued to him and he acknowledges that fact by'signing in the register. In the instant case, the cheque, Exhibit A, had been drawn and sent to the Regional Office accompanied by a payment voucher, Exhibit B e Both the cheque and the payment voucher vanished before any notification had been sent to the claimant. The register, Exhibit C, does not bear any acknowledgment by the claimant that it was issued to him. It was, therefore, reasonable for the court to conclude that the cheque was stolen frm the Regional Off ide. With regard to the charge of forgery, there.-was evidence.from Anthony Miranda (P.W.3), an Administrative Manager with Masdo House, that at about ii a.m. on 24/11/76 the cheque was presented for cashing at the counter and then brought to hIm for counter-signing. He perused it and found. it unsatisfactory. The cheque. purported to be a draft fôr.the sum of 9,7241=. But Miranda felt that both the numeral and word "9" had been substituted for another. He first called for the person who had presented the cheque and when that person came forward he took him to the Bank!s Operations Manager. That man was then, asked If he had any payment voucher. He.: answered yes and produced Exhibit B. As it were,,.Exhibit B tended to exacerbate his suspIcions rather than dispelling them. The witness asked the customer if he had made any alterations onthe cheque and the reply.was no. The witness was not convinced. Hecontacted John Mjindo (P,W.9) 1 .a claims officer with the N.P O F.,, who confirmed his suspicions. He told him that the cheque had been tampered with and he rushed to the bank to see Miranda.. He entered the bank and met Miranda, He then perused the cheque and the payment voucher. He reiterated that the amount had been altered without authority. The name of the payee was again called out and the man came in. Mjindo recognised him to be - the one who had been sitting in the ante-room. 0 • 0 0 0 0 0 3/ I 3- Mjindo advised the Bank Manager to refer the matter to the police and that was immediately done. The man was arrested by Constable Justine (PW 0 7) who was on guard duty at the bank. He took him to the Central Police Station. There was also the testimony of two N.P.F. officials, Victoria Kopwe (P,W.i) and Waria Mwasha (P.W.4), who the cheque purported to show that they had authorised the opening of the cheque and whose purported signatures appear on the cheque to that effect. The two witnesses denied that they had dealt with the cheque and that they had subscribed those signatures. One of them went bn to say that she was not on duty at the material period. There was no dispute that the alterations on the cheque had been made without authority and the denials of Victoria Kopwe and Waria Mwasha stood unrebutted. In those premises, the court was justified to find that the cheque carried a forgery and as the learned magistrate observed in his judgment, a clumsy piece of forgery at that. The charge of forgery was brought under section 335(1). Observing that there was no such section in the Penal Code the learned magistrate was of the opinion that on the evidence the charge sheet should have cited section 335(b) instead. All the same, the learned magistrate thought that the error was immaterial and could not have prejudiced the appellant. He convicted him under section 335(b). The appellant's initial sally on this appeal was an attack that it was wrong on the part of the magistrate to amend the charge at that stage. I am not persuaded. I think that the learned magistrate had discretion to do so and I cannot see how any injustice could have been occasioned by that exercise. Indeed, had the magistrate refrained to do so and instead proceeded to acquit the appellant on that charge, on the ground of that wrongcitation, that would have amounted to causing a failure of justice through a mere technical irregularity and the acquIttal would not have been allowed by this court to stand. The other point which has been raised with regard to this aspect of the case is that the handwriting on the cheque was not properly identified to be that of the appellant.. In his submission, the appellant has invited this äourt to accept the proposition that it was necessary in the circumstances to have a handwriting expert's opinion on the matter. I do not agree. In the first. place and as already remarked, there was no controversy that some material particulars of the cheque had been altered, 1 L. The only dispute was the question whether it was the appellant who had committed the forgery and presented the cheque to the bank in an attempt to obtain the money. I think, therefore, that on the evidence adduced by Victoria Kopwe, Wane Mwasha, Antony Miranda and John Mjindo, the court was compelled to come to the finding that those material particulars of the cheque had been fraudulently falsified and it did not detract anything material from the prosecution case that the opinion of a handwriting expert was not sought for. Next, I will consider the third and fourth counts i.e. uttering and attempting to obtain money by false pretences. As usual, these two counts are inter-related and I will take them together. I may well observe that it is here that the disputes in this case emanated. The prosecution asserted that it was the appellant Raphael Aiphonce Kayoza who, posing as Meinrad Chale, presented the false cheque to the bank officials intending thereby to obtain the money. The evidence of three witnesses is relevant and should be adverted to. These are Anthony Miranda (P.W.3) the bank official, John Mjindo (PW09) the N.P.F. official and Constable Justine (P.W.;) the resting officer. As stated above, Miranda suspected the cheque when it was brought to him for a counter-signature. He stated that he called out the name of the payee i.e. Meinrad Chale and according to the witness, it was none but the appellant who answered and came forward. After requiring him to produce the payment voucher and after a brief interview he took the appellant to his superior and later contacted Mjindo by telephone. And after Mjindo had come and seen the cheque and the appellant and confirmed that there were unauthorised alterations on the cheque, the appellant was apprehended and hustled away to the police station. Both Mjindo and Constable Justine confirmed the allegations of Miranda. Mjirido stated that he found the appellant sitting in a room adjacent the Manager's Office and that when he was called into the office by the name of Meinrad Chale, the appellant positively responded. As for Constable Justine, he stated that the man he arrested on that occasion was the appellant. The unsworn account of the appellant was different. He claimed that on that day he had met with Meinrad Chale, an old acquaintance, along Independence Avenue. After exchanging civilities the appellant reminded Chale about a small loan which the appellant had advanced to I - 5/- him and which had not been repaid. Chale then suggested, and the appellant agreed, that he should accompany him to the bank where he was going to cash a cheque. They proceeded to Masdo House where Chale presented the cheque to the Cashier and then signed it. He saw Cha].e being given a control tag and shortly thereafter he observed Chale entering the well of the bank. In another moment he saw him being led by three bank officials into an office and then being taken out of the office and the building through a back door by a police officer. At that stage one bank official came to him. Gleefully and with a tinge of contempt, the official accosted him by remarking: "1 think your friend has a problem., it is a police case." Then a police officer came and required him to follow him to the police station where he found Chale being interrogated. He was taken to another room where he was questioned about Chale and in the .course of the interrogation another police officer came in and remarked, also gleefully, that he was happy to see the appellant in the company of Chale. He was later let to go but told to report to the station on the next day. He did so and after giving a statement which was recorded down (on the next day) he was released. According to his story, nothing happened to him again until the 25/7/77 when he met with a police officer at Kivukoni Front. The police officer quipped drily that the appellant had hidden Chale and he took him to the police station and thence to the court where he was charged with the offences. The appellant led evidence through the production of the police lock-up register, Exhibit Dl, to show that a person by the name of Meinrad Chale was detained at the police station on 24/11/76 and released on 26/11/76. He wound up by telling the court that he did not commit the offences and that the police, who are out to destroy him, had deliberately and maliciously charged the wrong man. The learned magistrate posed the question, who uttered the cheque and attempted to obtain the money? He considered the evidence on both sides on the point and he came to the conclusion that it was the appellant. He based his decision on the evidence of three prosecution witnesses, as above reviewed, which he found truthful. He dismissed the appellant's account as false and observed that the fact that the relevant entry in the detention register showed the name of Meinrad Chale could not raise any reasonable doubt in the prosecution case and that it was not surprising that the register bore that name as the appellant had from the start prentended to be Meinrad Chale in order to obtain the money. 0 0 0 0 • 0 ' O 0 - - The appellant has submitted that the finding of the learned magistrate was against the weight of evidence0 Specifically, he challenged the finding by arguing (a) that the magistrate erred in taking into consideration the evidence of Anthony Miranda (P. 1 W.3) which was not given on oath; (b) that in the absence of any evidence from Meinrad Chale there was room for doubt about his gui1 and.._(c) that the defence and in particular the lock-up register Efxhibit Dl introduced a reasonable doubt in the prosecution case. Mr, Teemba has, equally briskly, supported the decision of the lower court. He argued that the evidence of the three witnesses for the prosecution was believable and safe to act on and that in the circumstances the prosecution case was not adversely affected by the absence of Meinrad Chale's evidence. He conceded the 9bt point that on the face of the record an oath was not administered to Anthony Miranda, but he submitted that the omission was inconsequential and did not invalidate his evidence. I think, in my judgement, that Mr. Teemba is right. It is true that there is no indication on the record that any oath or affirmation wqs administered to Anthony Miranda, one of the prosecution's principal witnesses. Under Section 152 of the C.P O C. every witness in such proceeding must be examined upon oath or affirmation in accordance with the provisions of the Oaths (Judicial Proceedings) and Statutory Declarations Act, 1966. As has been stated, the power to take evidence on oath is one of the characteristic tests of judicial proceedings. However, I do not think that the point can help the appellant. In the first place, though it is the usual and better practice, there is nothing in the C.P.C. which requires a court examining a witness to record the fact that the oath was administered to the witness. And the prevailing view is that where the record does not show that the oath was administered to a witness, the reasonable presumption, in the absence of any suggestion to the contrary, would be that the proper procedure was followed and the oath duly administered. Secondly, I share the opinion that an accidente4 omission to administer the oath to a witness does not, by itself, invalidate the deposition of the witness. Though there is no express provision in the Code or else where as to how the evidence given by a witness to whom the oath was inadvertently not administered should be treated, I take the stand that such omission does not, alone, render the evidence worthless, since it does not affect the obligation of the witness to state the truth. 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