mathias charle vitalis vs republic 1980 tzca 15 3 october 1980

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: N y a l a l i , C . J , , Makame, J.A. and Kisanga, J.A. ) CRIMINAL APPEAL NO. 41 OF 1979 n F, T W E E N MATHIAS CHARLE VITALIS . . . . . . . . . o . . . . . . APPELLANT AND THE REPUBLIC . . . . . . . . . . . . . . . . . . . . . . RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Sisya, J.) dated the 20th day of July, 1979, IN CRI MINAL APPEAL NO. 59 OF 1978 JUDGMENT OF THE COURT NYALALI, C.J.: The appellant Mathias Charle Vitalis was jointly charged w i t h one Yona Mremi in the court of the Resident Magistrate for W-’nnza Region in a charge sheet containing severty-one counts of which sixty concern both accused persons, one concerns the appellant an<; the remaining ten concern the other accused. At the trial in tlv.: c o u r t of the Resident Magistrate the appellant appeared as the se:orK accused whereas the other person, nnmely, Yona Mremi, appeared as uh f irs t accused. The trial court convicted the first accused on all seventy-one counts instead of convicting him on seventy counts whicli co n c e r n him; and the appellant, who was the second accused, was c o n v ic ted on counts 36 and 37 in respect of charges facing him, I acquitted on counts 1 to 35 and counts 38 to 41, including the c<-ii:i'l:n on wh ich the appellant was not charged, that is, counts 61 to 71. The app ellant was sentenced by the trial court to three years' i m p r i s o n m e n t on the two counts on which he was convicted and the sentences were directed to run concurrently. He was aggrieved by the c o n v i c t i o n s and the sentences and he appealed to the High Court aft M wa nza w h i c h allowed the appeal on count 37 but dismissed the* appeal on co unt 36. The appellant was still aggrieved .and hence this second appeal to this Court. In this appeal he was represented by Mr. Rugarabamu, learned advocate, whereas Mr. Alimwike, learned State Attorney, appeared for the Republic. Acc ording to the proceedings in the two courts below and in this Cou rt it would appear that the following primary facts are not in dispute between the parties: that is, that the appellant was at all material times employed by the Railways Corporation as a third class ticket clerk and was stationed at Mwanza; that the other p erso n with whom he was jointly charged at the trial w a s at all material times employed as a clerk by the Minist ry of Ed u c a tion and was posted at Bwiru Girls' Secondary School, at Mwanza; that on divers dates in March that other clerk employed by the M inis t r y of Edu cation issued Government Travel Warra nts w hic h were tendered at the trial as Exhibit 'A', apparently for students travelling from Mwanza to Da r es Salaam by train - and thnt these travel w a r rants are the subject of the charges in counts 1 to 5; that on other divers dates in April and May the same clerk issued another batch of Government Travel Warrants which were tendered at the trial as Exhibit 'N ’ , apparently for students travelling on sporting activities - and that these travel warrants are the subject of counts 6 to 14; that again on divers dates in March and June that same clork issued another batch of Govornmjut , Travel Wa rrants which were tendered at the trial as Exhibit 'O', apparently for students going on hol idays - and that these travel warrants are the subject of counts 15 to 19; furthermore, that on different dates in July the same clerk issued a number of Government Travel Wa rrants which were tendered at the trial as Exhibi t 1P ' , apparently for students going on holidays - and that these travel warrants are the subject of counts 20 to 27. There is also no dispute that on divers dates in August the Ministry of Education clerk issued another batch of Government Travel Warrants which were tendered at the trial as Exhibit 'Q', . . . . . ./3 apparently for students travelling to Dar es Salaam in connection with sporting activities - and that those travel wa rrants are the subject of counts 28 to 37; and that on other different dates in September the same clerk issued another batch of Government Travel W a r ra nts which were tendered at the trial as Exhibit 'R', apparently for another group of students travelling to Dar es- Salaam - and that these travel warrants are the subject of counts 38 to 46; furthermore, that in the following month of October the same clerk issued a number of G ove rnment Travel Warr ants which were tendered at the trial as Exhibit ' S ' , apparently also to enabl students to travel by train - and that these travel warrants are the subject of counts 47 to 50; and finally in the month of N o v e m b e r the same clerk issued a number of Government Travel W a r r a n t s which were tendered at the trial as Exhibit 'T' in connect ion with students travelling by train - and that these travel w a r r ants are the subject of the charges in counts 51 to GO. There is no dispute that the appellant did receive a Govern ment Travel W a rr ant No. 085223 which was tendered at the trial as pa rt of Exhibit 'Q' and did make endorsement on it to the effect that tickets numbers 5835 to 5849 had been issued by him to passengers. Four of these tickets, that is, tickets numbers 5837 to 5840 were sold to P.W.7 on the 31st August, 1975, for a total sum of shs. 194/80. There is also no dispute that P.W.7, a man employed as a motor supervisor of a transport firm in Mwanza was not a student of Bwiru Girls' Secondary School. Furthermore, there is no dispute that in the course of business the Railways C o rpo ration billed the Mi nistry of National Education in respect of these four tickets plus others and the Ministry paid the bill to the Railways Corporation. The sum of shs. 194/80 paid by P.W.7 in r e s p e c t of the four tickets is not accounted for. Fro m the proceedings in the two courts below and in this C o u r t the only dispute between the parties in respect of count 35 _ 4 - on which the appellant remains convicted, concerns the allegation by the p rose cutio n that the appellant fraudulently issued the four tickets to P.W.7 for his own benefit and thereby induced the Ministry of Ed ucati on to pay the Railways Corporation a sum of money which it was not supposed to do. The appellant's case is that he acted entirely innocently and had no r e ason to know that the G overnment W a rran t in respect of which the appellant issued the four tickets was forged. The point arises, therefore, whether or not the appellant was acting fraudul ently in issuing the four tickets to P.W.7. Before conside ring this m atter we have to consider some irregularities which are apparent on the record. The appellant and his co-accused were apparently charged and they pleaded omnibusly to all seventy-one counts. The record f the trial c ourt on the 8th August, 1977, reads as follows: "Date: 8-8-77 CORAM: F. A. Munyera, S.R.M. Pros: Mr. Pinda Accused: Both present. (Sgd) F.A. Munyera S.R.M. Accused No.l: I deny all counts. Accused N o . 2: I deny all counts. Plea of Not Guilty. (Sgd) F. A. Munyera S.R.M.". It would appear that the charges were freshly put to the appellant and his co-accused after some amendments had been made on the 9th August, 1977, and the record reads: "Date: 9/8/77 Court as before. Mr. Pinda for prosecution. Both accused present. (Sgd) F.A. Munyera S.R.M. ..../5 (Sgd) F.A. Munyera S.R.M. Charge read over to both accused who state: Accuse d No.l: I deny all counts. Accused N o . 2’; I deny all counts. Plea of Not Guilty. (Sgd) F.A. Munyera S.R.M. The second irregularity is apparent in the judgment ~if the learned trial Senior Resident Magistr ate where he acquitted :he appellant even on charges which were not facing him. These .rregularities appear not to have been noticed by the learned judge >n the first appeal in the High Court. Mr. Rugarabamu, learned advocate, has submitted, in effect that bearing in mind the complexity >f this cas® as seen in the number of counts contained in the charge sheet, the appel lant must have been confused and therefore the irre- gularities are incurable and the proceedings must be quashed. Wc arc: aware that irregularities in a trial of a case which later comes u p on appeal are governed by section 346 of the Criminal Procedure Code. Un der that section no irregularity is fatal to the proceedings u n l e s s the court is satisfied that it resulted in a failure of justice. W e have carefully examined the record of the trial and we are satisfied that, in spite of the learned trial Senior Resident M agi st r a t e ' s failure to appreciate that the appellant was not “ ~ -f ch a r g e d on all the seventy-one counts, the appellant himself w a s f u l l y aware of the true charges facing him. His cross-ex aminat ion of the w i t n e s s e s of the prosecu tion and his own defence were directed only to the charges facing him. He defended himself accordingly. That being the position, we are satisfied that - 6 - the appellant was not confused and the irregularities in this case did not occasion any failure of justice. They are thus curable under section 346 of the Criminal Procedure Code. We must now revert to the point raised earlier on concer ning the conduct of the appellant in issuing the four tickets to P.W.7. The p rosecution proved that Exhibit 'Q ’ wer e false documents. There was evidence adduced at the trial, and which was not dispute, to the effect that the procedure required the appellant to w rite or stamp the letters "G.W." o n every ticket issued in respect of a g overnment warrant. The appellant did not stamp or write these significant letters on the four tickets issued to P.W.7. Moreover, P.W.7 did not give to the appellant any Government w a r rant at the time he was issued with the four tickets. He paid cash. There was thus evidence to support the conclusi on that the appellant must have been acting fraud ulently at the material time. The conviction on cou nt 36 can, therefore, be sustained. As to the sentence of three years' imprisonment, it is the minimum prescribed under the Minim um Sentences Act, 1972. This means that the appeal cannot succeed and we hereby d i smi ss it in its entirety. DATED at MWANZA day of 1980 F. L. NYALALI CHIEF JUSTICE L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the oriainal A ( G. A. RWELENGERA ) D E P U T Y REGIST RAR