19730720 TZHC Mwanza4

IN TI-JE hUGH COURT OF TANZANIA AT 1111T7AUZA. APPRIJIATE JURISDICTI U[ (Mwanza Registry) CRIh.'hI1TJL APPEAL NO. 434 OP 1972. ORIG-IN.PJ CRIUI1'AL CASE NO. 848 OP 1971 OF THE DISTRICT COURT OP BUKOBA DISTRICT AT BUXOBA - BIhFORE: \.R. LLRANBA ESQ., RESIDENT MAGISTRATE. EMItA.i'1J'EL KAiI.AiA . ............... ..................ORIGINAL ACCUSED. VERSUS: THEREPUBLIC .................................... ORIGINAl PROSECUTOR. •" CMARGE: 1st Count: Maldng false document c/s 335(d) of the • Penal Code Cap'. 16 of the laws. 2nd Counti Uttering false dociiment c/s 342 and 337 of the Penal Code Cap. 16 of the laws'. 3rd Count: Attempt to obtain goods by false preténces c/S 302 and 380 of the Penal Code Cap 16 of the laws. rUDGE1vIEirT. ED—haNDY, J. manuel /o Kaha was charged with and convicted of mald.ng false document, uttering false document, and attempt to obtain goods by false pretences-contrary to sections 335(d), 342, 337 and 302 of the Penal Code Cap. 16 on the first, second and third counts respectively. He was sentenced to concurrent terms of imprisonment of nine months on each count. He appealed against-convictions and sentences. The learned State Attorney, Mr. Mbilinyi, 'appeared'for the respo- ndent Republic.. The appellant was absent at the hearing of his appeal, as he indicated, in the petition for appeal, that h6 , did not wish to a:tendj but his grounds for appeal were

taken into account. The appellant was employed,as aSerzLorLab..S.ipervisor, by the Tanganyika Instant Coffee Cpany Lim1td, Bukoba, - hereinafter referred to as TANICA - at,the time of the alleged commission of these offences. Although his work was confined to laboratory analysis of quality of coffee, the appellant could go to the general offIce, where the storekeeper worked, as the general office was accessible to' anybody although instructions were issued to the effect that employees of TANICA, not concerned with the general office work, should not go ther&. Mr9 Clerk (PU5), the Manager of TANICA, said that these instrutions were' often disobeyed. The appellant employed Ernest Kanyankole (PV4) as a house servant. It appears 'that "the appellant worked in two sessions: the first. one lasting to 12.30 p.m. and the second one from 2 p.m. to 430 p.m., and the 'appellant usually retu±ned home for lunch. Onthe 15th day of December, 1971, the appellant returned for lunch as usual. Besides his servant, one Simon francis (J7) was at his house,, "francis claimed that the appellant was his brother; Soon after lunch the appellant returned to work,. and after his work, Kanyankole proceed to-the centre of the town to buy some items specified in the order, ch,'B. HeiCnt with .nq tP19 .iopxo et. pooxI VOLI ot V3tlln, JO 0 TJIO 000d at. P1 09, ap iiu 'pa uottL .'4'sxT v Tout ptz ou&u punoj put

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03 'uTe.xoLt1. poT.;oods spoo Ot. jo LtO.&1Op io; TIOUIOTrLfJ 0 1. Et tpJ P01UOS0.Id 010UOUO ptZ () TI tflE ;o dotte 0ti1. qO pa --çeo JOt '.(LLa) STOIXO.Xff ' I•' ,--.. later changed and said that it was. given to him by the appellant who instructed him to collect the goods from the said.Hussein lkirniture Mart. • As a' result y Kanyankole and Francis were arrested. And, acting on information received, police constable Masawe, who was accompanied by the two suspects and Munyagira, proceedd to the house of the appellant for the purposes of conduáting a search'0 They were armed with a search 'order, (&h. A) and the, appellant was present when the search va conducted • The said police officers recovered 10 torn pieces of papers (Jth. D)'. The torn pieces of papers were found on the outside sill of the vdndow of the room of. the appellant and/or on .the ground immediately below the said windowo The examination of these pieces shoWd that some one had been practicing to sign in similar manner as the signature Exh. B y against the words Factoir Manager. Two letters addressed or copied to the appellant, and a sick sheet, issued in the name of the appellant, were recovered from the box 'of the appellant. These contained a genuine signature of Mr. Clerk, And Mr. Clerk, subsequently, hE±ded over letters (B'xh. L - E5), to the police officers after he had received them from the

appellant. There was no dispute that the letters were addressed, written and signed by the appellant after he had been arrested 'for then changes. The appellant was asking for financial assistance following his suspenciori from duty, and pending the determination of the criminal cane which was then pending in the District Court' of Bukoba. In his judgemont, the learned trial magistrate found that (a) the appellant was the one who wrote and signed on Exli. 'B without the authority of Mr. Clerk thereby committing the offence of making a false document contrary to section 335 (d) of the Penal Code, (b) the appeliant,,.through his domestic servant, uttered Exh. B to Gulamali, tho±'cby committing an offence contrary to section 342 and 337 of the Penal Code,'. and (c) the appellant, in presenting the document in the manner 'he did, attpted to obtain goods by a fase representation. The trial court found that it was of no legal importance that 'tha appellant was not physic&4y, the one who presented the document to Gulamali for the scle purpose of obtaining goods specified therein. In other words, the appellant was found guilty on all the three counts. The circunstances of this cass demand that I should begin considering this. appeal by the examination of the 'handwriting evidence led in this ease. That the appellant made issue of this, and is still making an issue of it, is.bcyond

shadow 'of doughty although he was.not specific in his languagc. And the main point was'the"al1cged Exh. B itself. On this doeument :here are at least two' mattrs which fallconsideration: on'ethe writing in biro pen - in the body 'itself 'and 1 two, the signature following the words 'Factory ManagerU aPpe'ing at the bottom of the,, document. And the question was whethe' there was any proof that, there were written and/or signed by the appellant. On this point, Mr. Cler1 'said that although the signature 'appeared to bb similar to his, it was infac't not his, signature,,: and' that he did 'not aign it. This is conclusive proof t1at it was not, signed' by 1-,Ir 1 ::Clerk, :who is the 'one authorised to ' ' sii orders on'behthlf, of TAICA, and, therefore, since he had not.authorisod sueh.documélTt, whoever made' it', aid so'vdt out his au'thorIt" Mr. Clerk said that he did' not know who sigied 'the oaid orders As for the handwriting in the body of the letter, he said that he was: not certain if the appellant was the one who wrote it. On the othc± hand, inter alia, Mtmyagira.said that thZD handwriting on &h. B was similar to that of the appellant • It was obvious to me that the evidence of Munyaira oughtto have been taken with great care because he admitted that he had not been in good terms with the ppllant althoughke claiiec1 that this did not affect his impartiality.in

his.evidence.'This.may be so, but a court of lacy cannot be. certain of this. A' human mind is capable of strange feats. Unlike • the larned trial magistrate, I would need ôorroboration before I could accept his word on his mere assurance that he was being fai3r nevertheless. • I 'find this corroboration in the letters which were admitted in court and which were accepted as having beon.written by the appellO.nt after he 'had been suspended from duty following tho allegations of this case. The 5 letters shcved that the handwriting on themis so similar with the handwriting in the body of Eth. B so as to make the said handwiitiings indistinguishable. This confirms the evidence of Munyagira when he said that the handwriting on Ebrh. B is similar to that of the appellant. He was filiar with appellant as he had seen him write on sircral, occasions during the two years period they had worked in the same company. Kanycikolo too said that the handwriting on Exh. B was that of tho.appellant although 'he had, worked for the appellant for a short period of six months only. I find, therefore, that in the circumstances, the trial court .vas.ontitled to hold that it, was the appellant who wrote the order Exh. B. ' As to the signature, Kanyankolo, like other witnesses, was not able to toll who signed it, but he testified that one, day, prior,to.±he date of the arrest of the appellant, he had

secn the appellant practicing signing on pieces of paper which he. toro,'theroaftcr, threw them out of the window and he identified those pieces at:&h. Dwhjch were recovered by police constable Macawe. This .evid once showed that the appellant had been practicing hard to sign as Lr. Clerk would, and this would not have been without a purpose. It 'goes to add to the evidence led by the prosecution. Kanyankole was the one who was found In possession of Thth. B and who was the one who presented it to th shopkeeper (Th73). The learned trial magistrate this matter into account when weighing the evidence of Kanyankole as there was a possibility . that Kanyankoie could 'have been a person with his own interest to servc Nevertheless, I agree with the learned trial magistrate that Kanyankole was a truthful witness and his evidence ought to be accepted and, even if one felt that he could have'his own interest he serve, there was' sufficient corroboration on hi • evidence in the form of handwriting evidence. He said that th document was given to him, by. the appellant, already written and',signed as he presented it to Gulamali, with instructions that he should collect the namcd goods from the said. shop. He said that 1 1rancis (i7) rieswith him, but Prancis denied this. however, the trial court found. that Frcjacjs was a j _io - •• '' .bt...e/ 'usq13 - L/L/o 7 oiqndo-i .xo; •y• - .V.n .

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