19730720 TZHC Mwanza6

H IN THE HIG121 COURT Oi TANZANIA AT M7ATZA. APPE[LATE JuiuSDICTIa (Mwanza Registry) - CRIMIITAL APPEAL NO 434 OF 197 2 . ORIGIHATj CRILaRAI1 CASE NO. 848 OF 1971 OF THE DISTRICT COURT OP BUKOBA DISTEICT AT BUKOBA - BEFORE: VI.R. HPLAHBA ESQI, RESIDENT MAGISTRATE. EMI.iANTJEL KAELAMA .. ..................................ORIGINAL ACCUSED. VERSUS: THEREPUBLIC .............................. . . . . ORIGINAl PROSECUTOR. • CHARGE: 1st Count: IViaIdng false document c/s 335(d) of the Penal Code Cap. 16 of the laws. 2nd Couxrt: Uttering false docient c/s 342 and 337 of the Penal Code Cap 16 of the laws. - • S 3rd Count: Attempt to obtain goods by false pretènces c/s 302 and 380 of the Penal Code Cap 16 of the lows. J1JDGEI4ENT. ED—INDY, J. mue1 /o Kahema was charged with and convicted of mahing false document, uttering false document, and attempt to obtain goods by false pretences-contrary. to sections 335(d), 34, 337 and 3Q2 of the Penal Code Cap. 16 on the first, second and third countsrespectively. He was sentenced to concurrent terms of imprisment of nine months on each coynt. He appealed against-convictions and sentondes. The learned State Attorney, Mr. ivIbilinyi, appeared for the respo- ndent Republic.. The appellant was abseDt, at the haTing of his appeal, as he indicatued y in the petition for appeal, that he did not wish to attend, but his grounds for appeal were taken into

account. The appellant was employed, as a Senior Lab..Siipervisor, by the ) Tganyika Instant Coffee Cpany Limited, Bukoba, - hereinafter referred to as TANICA - at the time of the alleged commission.of these offences. Although his work was confined tolaboratoryanalysis 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 TA1\TICA, not concerned with the general office work s should not go there Mr. Clerk (P15) 9 the - Ianager of TANICA said that theve instructions were often disobeyed. • The appellant employed Ernest Kanyankole (PV4) as ahouse 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 returned home for lunch. On the 15th day of Decernber, 1971,the appellant returned for lunch as uaual. Besides his servant, one Simon Francis (PW7) was at his house. Francis claimed that the appellant was his brother Soon after lunch the appellant returned to work s and after his work, Kanyankole proceed to-the centre of the town to buy some items specified in the order, Lch. B. He*ènt with i. Francis (P;77). They called at the shop of Gulamali (P73) and Kanyankole presented Eadi. B to Gulamali for delivery of

the goods specified therein. The order is dated the 15th of December', 1971, and it is addressed to "Hussein.'urniture Mart" which is the business name of the shop, of C-ulamsj,i, The order directed that the addressed should supply:- 2 trousers crimpleno(roaciy 'made); 2 expensive long sleeved siit I Vorio matress" • And the order purportc1 to show that it vja8 signed by Upactory Manager" of TANICA. The order is numbered 001073', Upon presentation of the order, G-ulam&.i. asked Kanyankole the size width) of the matress he wanted, and hereplied that hc.wanted one of wçth of 7 feetAsrnatesses of such sizes are not made, Gu1aali becae suspicious. Kanyankole admitted that when he was asked about the size of mattress, he. could. not tell because he was not told of what size it should be; However he said that he asked Bulamali to ask Francis, who was outsIde, or he should be allowed to ask Prncis the size s but Gulamali did not allow him to go out of his shop. Guismali admitted that.that Kanyankole wanted to do so, but he would not allow him to go out, as he was suspicious already. He knew that TAITICA ordered goods frou his shop, on .uch. orders, but this was the first time he was receiving order for clothes and mattresses. Anyhow, Kanyankole remained in the shop while G1ama1i-te1ephone Mr. Clerk, and made inquiries about the alleged order. -Mr Clerk cross checked with his head

storekeeper, Munyaigira (}w2), whose duty it was to prepare such ordera for his siature The order book itself was exined, and it was found that the alleged order had beenpulled out of the book wl1 in advance of other pages. The book (th. c) had been used upto order number 001018, and the pages between 101018 and 001072 had not been used'- The duplicate of page 001073 was without the orinal and it,was blank The rest of the pages of the book were unused. This book was kept on the desk of the storekeeper (Pi72) on the 15th of December, 1971, and since his (PTT2 1 s) desk was in the general office, the book could be reachi by anybody who wanted to ndsuse it'. It was also ven in evidence that 5 clerks (not clear whether the number included PW2 as well) worked in that office. And it was admitted that, during that days Munyagira wont to the bank and he was. away for a long time and that, during his absence, the order book (&h'. a) was on his desk. It was, therefore, clear that whoever removed the original order, 001073 1 could have done so during the absence of. Mimyagira or even during his presence if he was not particularly watching. 0 Therefore, following what was discovered at the office LIunyara proceeded to the police station, on instructions of his general-manager, whore he reported the incident. In the meantime, Gulamali was talephoned d asked to keep the, presenter of the

order in his shop until- they arrived, and he did so. 1-lunyagira and 'police constable Masawe (F7l) .th,:rived at the shop, and found Kanyankole and Francis there; -- At first, :viher asked, - Kynicolc told the police officer that he had picked the order &h.-,', * . . . *1 _) but I • •/ 3 m 'a later chngcd and said that it was given to him by the appellant who instructed him to collect the goods from the said-Hussein Purniture Mart ks aT result, Kanyankole and Prancis were arrested. And, acting on information received, police constable Masawe, who was accompanied by the two suspects and Munyagira, proceeded to the house of the appellant for tlio 'purposes of conducting a search'. They were armed with a search • oraer, ('Thth. A) and -the appellant was present when the search was conducted. The said police officers recovered 10 torn pieces of papers (&h. D)'. The torn pieces of papers werd found on the outside sill of the window of the room of the appellant and/or on the ground immediately below the said window, The exination of these pieces showed that someone had been practicing to sign in similar manner as the signature on Exh. B y against the words Factory Manager. Two letters addrCssed or copied to the appellant, and a sick sheet, issued in the name of the appellant y were recovered from the box of the appellant. Those contained a genuine signature of Mr. Clerk, And Mr.

Clerk, subsequently, handed o+or letters (Exh. El - E5), • to the police officers after he had received them from the appellant. There was iodi'sputo that the lotte's were addressed, writtëi and signed by the appCllant after he,had been errested:for then changes. The appellant w's1dng for financial assistanco following his 'Cuspencion •fromdut,'and pending the determination of.the'criminal case which was then pending in the District Court of Bukoba, - In his judgement, the learned trial magistrate found that () the appellant \75 the one who wrote and signed on .th. B without the authority of Mr. Clerk thereby committing the offence of maldng a false document contrary to section 335 (d) of the Penal Code, (b) the aPpellant, through his 'domes'hc servant, uttered &h. B to Gulcmi, -thereby cOiitting an offence contrary to section 342 and 337 of the Penal and (c) the appellant, in presenting the document in the manner he did, attpted to obtain goods by a false representation. Thotrial court found that it was of no legel importance that thq appellant was not physidally, the one who presented the document to Gulamali for the sole pirpose of obtaining goods specified therein. In other words, the appellant was found guilty on all the three counts. The circu1nstances of this Ccse demand that I should begin considering this. appeal by the examination of the handwriting evidence led in

this base. That the appellant made issue of this, and i's still mahing an iüe of it, is beyond shadow of dought although ho Was-not specific in his languagc. And the main point was the, ailogd E*h. B itself. On this document there are at least two naers:.which falltcnsidoration: one the writing in biro pen - in the body itself and 1 two, the signature following the words 'Factory ManagerU appearing ai'the bottom of the document. And 'the question was whether the-re was any proof' that there were written and/'or signed by the appellant. On I bhis point, I:1r. Clerk said that although the signature appeared to be similar to his, it was infaCt not his signaturo, and that he did not sign it. This is conclusive pr.dof that it vCs not signed by IIr. Clerk, who is the one authoi'ised to • - • •. ' ' ••- ' - - r sigi orders on behalf-of TANICA, anCi 7 thee±'ore, since he had not authorisoci such document, whoever made it, did so v/it outhis avhority. Mr. Clerk ssid that he did not know who signed the said order. As for the handwriting in the body of. the. letter, he said that he wa not certain ii' the appellant • was the one who wrote it. On the other hand, inter alia, Munyagira. said that the handwriting' on Exh. B ws similar to that of the appellant • It was obvious to me that the evidence of Hunyagira ought to have been taken with great care because he admitted that he had not been

in good terms with 'the appellant although he claimed that this did not affect his s impartiality in his. evidence. This may be, so . , but a court of law cannot be certain of this. A human mind is capable of strange feats. Unlike the learned trial maistrate, I would need corroboration baioro I could accept his word on his mere assurance tht he v/as being fair nvertheless. I find this corroboration in th letters which were admitthd in court and which were accepted as having beon written by the appellant after he had been suspended from duty following the allegations of this case. The 5 letters sbovied that the handwriting on them is so similar with the handwriting in the body of &h. B so as to make the said handwriti4ngs indistinguishable. This con±'inus the evidence of Munyagira when he said that the handwriting on 1ith. B is similar to that of the appellant. He was familiar with appellant as he had seen him write on several occasions during the two years period they had worked in tias semo compy. kanyesnkolo too said that the handwriting on Thth. B was that of the 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 v/as.cntitled to hold that it was the appellant who wrote the order Exh. B. As to the signature, Kanyankole, like o'thcr witnesses, was not able-to tell who sitied

it, but he testified that one day, prior to the date of 6he arrest of the appellant, he had seen the appellant practicing signing on pieces • of pepor which he tore,thereaftor, threw them out of the windaw and he identified those pieces at th. D which were recovered by police constable Macawe. This. evidence showed that the appellant had been practicing hard to sign as Hr. Clerk viould, 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 ith. B and who was the one who presented it to the shopkeeper (P73). The learned trial magistrate te this matter into account when weighing the evidence of Kanyankoic - as there was cv possibility that Kanyankole could have been a person with his ovn interest to serve. Nevertheless I ag'ee with the learned trial magistrate that I(anyankole was a triithful witness and his evidence ought to be accepted and y even if one felt that he could have his own interest he serve, there was sufficient corroboration on his • • evidence in the forn of handwriting evtdonce, lie said that the document • was given to him, by the appellant, already written and signed as he presented it to Gulatmali, with instructions that he should collect the naacd goods from the said.shop. He said 'that Francis (i'J7) \7C5 with Jsini, but Francis denied thi5. However, the

'trial court found that Frncjs was a j • •.øø/ .1* !._.) •- hostile witness and therefore rejected his evidence. Having regard to the cross exanination of 'Francis, it was clear that Francis was being hostile because of filial relationship with the appellant. In my view, the trial court had no option but to reject such evidence. The ±al court found that the appellant was the one who hded over the document to Kanyankole, at lunch break on to 15th day of December, 1971, with instructions that he should collect the said goods from the shop'. On the evidence, the fi- nding is justified, and I see no reason to disturb this on the appellant argued. In the circumstances, the appellant would not have acted, as he did, if he had not been the one wrote and signed the document (h. B) well lrnov;ing that it was false as it was not written with the authority of the manager of TAHICA. And it could not be done with intent to commit criminal oifences. The interest Was clear: to obtcin goods under the false pretence that they were required by WTICA when infant they were required for his own personal use'. The fact that fiae document was uttered by Kanyankole and that he Was the one to fetch the alleged goods is irrelevant. Kanyankole was a more conduit of his criminal offences. It seins to me that the appellant was tahing advantage of the honest trust of his servant who had no cause to think

that what he was being asked to do was or were criminal ofiences. Before that he had fetched goods, on bebZ'alf of the appellant, on orders given to him, in writing. The fact that Kanyankole said one thing and then changed to the other can be explained by the fact that he was shocked by the arrest he suffered and, probably, his immediate reaction, which is not unnatural, is to be confused as to what to say. Therefore, having regard to the evidence on record, I find that the convictions are sound and are accordingly upheld. The learned State Attorney argued as to the accuracy of the charge on the first count. I reserved my views on this point. I do not think, in the circumstances of this case, it Was a necessary issue to resolve. The appellant was not prejudiced at all as to the charge4 1 cm grateful to his views on this point, but I hope he will not take this no—resolution as any indication of contempt for his able argent. The sentences imposed were reasonable although the appellant was a first offender and his age was 20 years. The three offences are sophisticated. It is not a case where one could say that the appellant slipped into commission of criminal offences by temptation. The offences called for thinhing and planning and this is rather serious for a young man e such the appellant, who was just be nning to earn his living after coming out of school. This point cannot

beiiored, and weighed heavily in the mind of the learned trial magistrate. He was, therefore, entitled to reject the submission of the Probation Officer who appeared to plead on behalf of the appellant and who pleaded that he fell into a trap.' çerj As a result, this appeal is dismissed in toto. Delivered in Court, at Mvianza on the 20th dy of Ju1y, 19734 N.A. Ntabaye - S.A. for Republic. (zT d) Appellant - absent. Judge. 20/7/73. .4..