19760423 TZHC Arusha

IN THE HIGH COURT OF TP'IA AT ARUSHA

APPELLATE JURISDICTION HIGP COURT CRIMINAL APPEAL N00140 OF 1974 ORIGINAL CRIMINAL APPEL NO0 470 OF 1973 OF THE DISTRICT COURT PARE DISTRICT. ATAME .. . f Before S.N. Fuhdikira Esq0., ----------- District Magistrate . . GODSON Sb KIHYA-------------- ------ -- --- ---APPELLA1T (Original Accused) versUS S TH REPUBLIC ------------------------------RESPONDENT (Original Prosecutor) . JUDGMENT .. Jonathan, J. The apl1ant was convicted under the Penal Code of fur coUnts of forgery ar'ahothe' four counts of stealing by public servant c/ss.-337 and 270 arid265, respectively. Hewas s,ntenced toa substiantive 4 years' imprisonment. He was at the relevant times the District Secrtry of Tanu Youth League (TdY0L), an affiliate of TNU for the district of Pare. It was the prosecution case that the appel],.ant forged four payriieiat vouchers and stole the sums shown in them0 There is agreement that one Mr0 Flartin, an internal auditor of Tanu on November 6, 1973 checked the accounts of the appellant in the presenca of vaious Eficials of both the Party and T0Y L0 in the region0 In the course of such ecercise Mr0 Martin çam.é across four payment voucher with a'.. . receipt attached to each of them showing that the sums shown had been pad as lodging charges for memoers of T0Y0L which hadbeen aid by the appellant to either TKilimanajro Bar and Lodging or Shengena Bar and Lodging. The payment

vouchers had not been signed by..the . S District Chairman of T Y.L. as the authoriiig officer as they should have been, and this coupled with inforiaation from the chairman that, ... . S although there had been meetings they had not taken long and the delecdtes had not stayed overnight at Sime, rouse Mr. Martnts suspicions that the sums of money may not have been spetfor the purposes of the party and T.Y.L. They accordingly visited the two Lodgings0 At r.. . both lodgings they were however told that the receipts purporting to have been issued by them wereforged0 The appellant then explained that the delegates had paid th charges from their own pockets and that' the appellant had later refunded their money0 They.had eachiss.ued him. a receint but he had lost them, so he had found it necessary to prepare substitute receipts - the relevant receipts0 The auditor then asked him to accompany him to see the people he had paid. To this the appellan said there was no need to do so0 For as he said, he had had financial problems which had driven him to forge the receipts and to stal the sums shown in them0 Plading f or forgiveness he of±ered to repay the money. That the appellant so confessed is supported by the evidence of his own witness, the Regional Accountant of the Party (DOW. 1). -2- The first count is in respect of two payments 9 one allegedly purportedly made to Kilimanaro

Baranci Lodging and the other to Shengena Bar and Lodging. As rightly argued by I'lr. Raithatha for the appellant two offences seem to have been chorqed in this. coflt and it was bad for duplicity. ThO , sum of shs, 80/- was purportedly made to Kilimanjaro Bar and Lodging. Hoever, P.W. 2, th owner in Lis evidence denied issuing that receipt or receiving the money. The other receipt was a sum of shs. 60/- purportedly paid to P.J 4 of Shengna Bar and Lodging This witness, too, in her evidence denid eVe.havincreceived any lodging charges forn the appellant whoshe said, had rever brought any guests there. Count number 2 (two) relates to a receipt of shs. 20/- atEachdto payment voucher number 149977 of 19/10/73 purportedly issued to the appellant by Kilimanjaro Bar and Lodging as lodqin charges To this pow 2 said he did not acommodate any guests o.f T.Y,L0 The receipt, he said was issued from a bcok usad in the bar and not from that used in the lodging. The 3rd count is in respect of payment voucher, number 149979 of which en was made in the cash book by the appellant showin9 tha.t on the same date - 19/10/73 - he had paid to Kilimanjoro. Bar and Lodging :the sum. of h 20/,beig lodgihg charges. The receipt appears to have been duly attached. Hoever,'here as in the providus'case Kilifranjaro'.Bar and Lodging have dënid: issuing the receipt. . The 4th count alleges that the

appellanLmede a false paympnt vouèh purporting to show that he had paid shs. 180/- to Shengena Bar and ' Lodging. It is not sugested that the payment voucher itself was forged and it is only ih the evidence where at is shown the document w 1-iich is the subject matter of the ebrge to be the receipt otte<hed to the payment voucher. This does not however appear to have embarrassed Or prejudiced the appellant. Accbrdinq to P.v' 3, the owner of th t lodging, the appellant who was a resident at that longing had had oLcoslon to ask him to prepare a receipt of sh5 180/- in rspect of somo guests of T Y L who had put up there. The witness asked for taeir n mes but the appellant would not give them, promisihg to supply thorn later The witness wrote ot area±pt but upon the appellant failing to pay him such money, he did not. Sign it and the receipt remained intact in the book, He admitted the 'exhibit receipt shown him was the one, but denied the signature of payee shown on it was his, He would not know how it had rCachedthe appellant. P,W 4 a girl working intha.t'lodgIng ing/ fo her part, denied er/rceived any guests of the apeflant and any money from him in that respect.. .. . . . . . The appellint in his defenc,e said he had paid the sums to the tw lodgings aft.er he had taken the, receipt from them sometime in advance and written th'em out himself, tis in order, to avoid over charging

oh'the'. prt of the lodginos0 He claimed to have qiven this explanation to the auditor at the time of checking, wheref or he had as 1zed for forgiveness if it had appeared that he had been wrong in adopting such procedure. He also claimed to have told pow 1 that D.J. 1 knew of such method of affecting payment. The thre - witnesses he calle. were tiltogethr unhelpful to the defence vLrslon, two of them b€cause they 4new nothing about the matter while, as already statd, the Regional Taru \ccountcint said the appellant had conf- essed using the money for personal purpose. It is also notwcrthy, he would not have his witness to bear out his claim that. he knew of the method of payment being used by the appellant. Mr. Raithatha has howCvr ..... argued that D.W. 1 may not have been called by the appellant after all this because the record s"hàws he was cross-examined by'.the appellant. 0 0 0/3 13 -3- Indeed, the appellant appears to have been invited o eross-exmine his two other witnesses as well0 As the leirned trial magistrite ought to have known, save where a witness is shown tà ohotile, the partyt whose instance a witness is calld is not al]owLd to cross-examine him. I am however not porsuadd that D.W.I was not c1Ld by the appellant. The record 'does not show if the provision of Lct1on 206 of the Cri mi na l Proced.ur'Code were explained to'him 'ut'it1srècOrded atthe end of the

prosecution evidence thus: . "Hearing on 14/1/74. Accused's witnesses to be summoned" From,, this I can only infer the appellant said he had witnesses to call and he gave their names, DW. 1 being one of them,.and.it.,i not,. irrelevant that the petition of appeal does not dispute thiâ.. The dispute is whether the receipts were genuine and the sums had inf act been paid to the two lodgings. The learned advocate has very rightly pointed out that the chairman of T.Y.L. Who the prosecution ay was required to authorize all payments before they could be made was not called. As conceded by the Republic, he should have been called to say if there should have been no neces:ity for the delegates to stay overnight at Same,.which statement Mr. Martin had attributed to him. While his evidence would have thrown more..light on the matter, it is to be noted that the appellant does not appear to have sought to call him either. That was in any case a peripherl point, the main point being whether he had authorized the particular payments. There is some confusion whether P.W. 2 and P.W. 3 said on the relevant occasions the appellaht had brought in guests to the two lodgings. Mr0 Raithatha has suggested the witnesses answered this in the affirmative. If that was true then the appellant must have paid the money to them. Now, P.W. 2 in relation to Kilimanjaro Bar and Lodging said, in reply to a

question by the appellant that the appellant md brought in guests and paid for their accommodation. Similarly, P.W 3, in reference to the ether lodging, said the appellant had brought him guests. Mr. Mlay, for the Republic, submits that the witnesses were referring to previous occasions and not to the instaces relating to the vexed receipts. As vcry justifiably complained by Mr. Raithatha, the entire proceedings were-conducted so lackadaisically, hence the absence of any clear indication on the record exactly as to what the questions asked by the appellant were or whether the witnesses were referring to previous occasions. It however seems clear to me that the witnesses were not referring to the particular occasions; they had previous occasions in mind. They had clearly said the appellant had not signed in any guests on the particular occasions and he had not 'received the payments he claimed to have made. Could thv th'. in the circumstances, have suddenly and in succession turned full circle? I think not. The denials of P.W 2, P.W 3 and P.W 4 that they received purported payments.are well supported by the accounts of P.W. 1 and D.W. 1 whe,n they said the appellant confessed he had consumed the money. It is, however, submitted that,, that is not what, the appellant had told them, and ,that he had only said that, if in their view he had been at fault in adopting that method of payment he was asking for forgiveness. They could not possibly have misunderstood him and the trial court was entitled to findhe had confessed to forging the receipts and stealing the monies, ... /4 V