19710315 TZHC Mwanza2

_ icci 1Il'fTHE 'HIGH COURT OF TNaII , T MW.NZ. 4PPELL.ATE JURISDICTION. . - HIGH COURT CRIMINAL JPPEL NOS. 624, 625, 623 OF 1 97 0 - (Oiiginal Criminal Case No. 1077 of 196 of the District Court of Mwanza District at Mwanza, Before E. E.Kazimoto Esq., Resident Magistrate). ELLISONNTMiIBJNO (Original aed No. 1 ). Versus TH]UNITEDREPUBLIC . . . . . • • • .. . .. . . . IISP0NDENT (Origiil Prosecutor). •CH4'RtE: Lst co.int: Stealing by servant c/ss 271 and 265 of the Penal • Cose Cap. 16 Vol. I of the Laws. 2nd count:. Forgery c/s 337 of the Penal Code Cap. 16 Vol I of 7 the Laws. 3rd count: Uttering false document c/s 342 of the Penal Code Cap. 16 Vol. I of the Laws.' JUDGEMENT. MZVSG. J. This appeal was admitted because it appeared that the matter needed close examination of the evidence. It was also initially ordered that the • eals be consolidated. Consolidation of the three appeals has however been impossible because the two other appellants, (appellants No.2 and 3) hâ'd not been served with notices to appear, they having expressed their intention to be present in person during the uetermination of their appeals, , The court therefore decided to hear the appeal in respect of the first appellant - Ellison Ntamubano only because he was about to finishi ' his sentence of 1 year imprisonment and corporal punishment was still pending, awaiting the determination of his appeal

against conviction and • sentence. The appellants and two others were jointly charged with stealing by servants and forgery c/ss 271, 265 and 337 of the Penal Code. The appellant was convicted of' both counts and sentenced to 1 year imprisonment and 10 strokes corporal punishment. He is alleged to have stolen and forged two cheques leaves worth cts. =/60. The facts of this case are that . sometime in November1969 two cheque leaves - No. 060713 and No. '060714 wore found to be missing fiom a checue book ( exhibit ), the property of the Mwana Town Council. These two chqaes were on 24/11/69, presented -boa cashir (p.w 2) at the N B. C. Nyerere Branch by, (it is allegect by the rosecution), two people demanding payment of Shs. 30,000 on each cheque. .. .. ... ../2. -2- The appellant, Ellison, was at the materil time employed by Mwanza Town Council as a municipal inspector. The prosecution alleged that it is the appellant who stole and forged the two cheques which were later presented to the bank for encashment. The learned State attorney who argued the appeal was of the view that there was no sufficient evidence to implicate Ellison with the two offences of stealing by servantand forgery. He argued that from the evidence it was clear that Ellison was not normally in charge of cheque books of the council and that the only the evidence which tends to implicate the appellant with

offences is that given by Ramadhani (P.W.8) and Peter (P.W.9). Jccording to the testimony of Ramadhan who is employed by the council as a messenger; on 15/11/69 the appellant called him into his office and asked him (P.W.8) to send to him (appellant) a cheque book from the treasurer's office but he (Ramadhani) refused to send the cheque book to him. Ramadhani also told the court that on 17/11/69 the appellant repeated his request but he again turned it down. Petes testimony is to the effect that on 22/11/69 he received a report that one rubber stamp from the treasure's office was missing. A search for the rubber stamp was stated and that during the search the appellant asked Peter what was the matter and that on being told that a rubber stamp from the treasurer's office was missing the appellant told Peter to open a draw in his (Peter's) office as it was there. Peter pulled the drawer of his table and found the missing rubber - stamp there. Peter asked the appellant whether he knew who had kept the rubber stamp there and appellant is reported to have replied that he did not know. In scrutinising this evidence the learned state attorney argued that the testinony of Peter (P.W.9) could not be taken at its face value because the rubber stamps were found in his (P.W.9's) office. It was submitted that the learned resident magistrate should have carefully scrutinized Peter's evidence

before he accepted it as truthful. • In so far as the testimony of Ramadhani is concerned the Republic argued that even if, for the sake of argument, his testimony is accepted as truthful, this evidence does not by itself amount to saying that the appellant is the person who stole the cheque leaves. I have carefully and meticulously examined the totality of the evidence which tends to connect Ellison with the offences charged and I must say that there is something to be said in his favour. The only evidence tending' to condemn Ellison is the testimony of Ramadhan (P.W.8) and Peter (P.1 -4.9). Ramadhan said that the appellant twice asked him to send to him (appellant) a cheque book from the treasurer's office and that he (Ramadhani) twice refused to send the cheque book to him. Later the cheque book (exhibit .) was found' to have two leaves missing. - ' ' ........•...•..• . . . /3. • •-- -• .----- --•- ' ,- 'pequosodonm pue e zoj ezosea F DV / • il.6 //ci T JZñ N) • TZfl4N •ooueues uostjd sttj petxes pere eei mou iq PItIOM uiedde eiq. qetq. s -t 'opise .os RT,9uTPJOOOe oxo uourqsiund Iodoo sejo.iqs uoq pue quowuos iclwt to.& i jo seoueques eij •potsb P,qojeLl oje oTTqnd@U etq. gq peodcths qou oic qorqM suoTqoiAuoo CI •woiq .u-t.xoj pue SaAEOT enbeio ot otq upes euoe e/soI 'H. 'jooq anboiTo otfl. jooq. oej UI et MOTJS oq oouepio StS e. qou sç xetq. rq upswj uTsn q eot;;o S

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