19860929 TZHC Dar es Salaam

:; •·::: IN TIIE HIGH COURT OF TANZA.l.'JIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 52 OF 1984 ORlGINAL CRIMINAL CASE NO 30 OF 1982 OF THE DISTRICT COURT OF MORffiORO DISTRICT M MOROGORO Before C.M. SHILOl\lIE, Esq., District Magistrate IBRAHIMU 1\IIAKATTA ••••.••••••••••••••••••••••••••• Appellant versus , THE UNITED R.J!,"'"f'UJ3LIC ·., ••••••••••••••••••••••••••.•• RESPONDEl\JT JUDGEMENT MNZAVAS J .K. In this case the convict, Ibrahimu Makattq.,(and another person who was acquitted) were cha~ged with eight counts of stealing by person in public service. He was convicted and sentenced to eight yea:rs imprisonment in respect of the 2nd and 4th Counts and to 5 yea:rs imprisonment in respect of the 6th and 8th counts. The sentences were made to run concurrently. Dissatisfied by the decision of the lower court he has appealed to this Court. Miss Mtabuzi, lea:rned counsel for the appellant attacked the lower court's judgement on the ground that the trial magistrate based his decision on evidence which was not before tho .;)urti, as, it was submitted, the rubber stamps.used in the theft were not produced in court as exbit. It was the lea:rned counsel's submission that there was no evidence to show that it was the appellant who used the rubber stamp on the paying in slips. It was submitted that although the learned trial magistrate had rejected the handwriting expert report as exbit he relied on the report in convicting the appellant. The learned defence counsel argued that the lower court erred in not c,,<.:,ai tting the handwriting ~xpert' s report which showed that the rubber stamps and the signatures on the paying in slips were similar to the ones used by th.e 1st accused who was acquitted. • .•• /2 I I - 2 - In rebuttal L'.ir. Chiza, learhed state attorney, · supported the conviction. It was his argument that there was ample evidence that the appellant did not remit to the bank the money he collected on ' behalf of his employer, the National Milling Corporation, and that he forged to show that he had banked the money whereas he had not. In support of his argument the Court was referred to the evidence of Mohamed and Rafael (PW4 and P\172) resepecti vely. There was no dispute in this case that the appellant was, during the material time, employed by the National Milling Corporation and was based in Morogoro. Junong his duties was to collect and remit monies to the bank on behalf of the N.M.C., his employer. Equally it was not in dispute that on 8/6/81, in August 1981, on 27/8/81 and on 7/9/81 the appellant collected a total of ShsQ219,819/50 on behalf of his employer. This money was shown by way of paying-in- slips by the accused as having been remi ttcd to the bank. ·According to the evidence of the accountant, (PVi2), he one day asked the appellant as to why he was late in sending to him his reconciliation bank statement and that the appellant replied that he had not received bank statement. He discovered that a total of Shs.219,819/50 shown on dublicate copies of paying in slips as having been paid to the bank was not reflected in the bank statements as having been received by the bank. There was the evidence of Edson, (PW3), which was to the effect that when he asked the appellant as to why the amounts were not shown in the bank statement as having been received the appellant replied that the money had not reached the bank! When the discrepancy was being investigated the appellant disappeared to Burundi but was, fortunately, later arrested and charged with the offences. The lower court having accepted the 1st accused's defence that he did not receive the money from the appellant (and therefore he could I not have put such money in the bank statement as having been received it) the only reasonable inference was that the appellant did not remit the money to the bank. And as the money was no where to be seen nor did the appellant account for it apart from insisting that he had remitted it to the bank, the learned trial magistrate, having accepted 1st accused's defence that he did not receive the money, had no alternative but to.find the appellant guilty of ste.aling the money. . ... /3 As for the axgurnent by the learned defence counsel that the trial magistrate erred in rejecting the handwriting expert's report I would like to remind the learned counsel that a court is not bound by an expert 1 s evidence. · ii The most that an expert on hanjwriting can properly say, in an appropriate case 1 is~that he . does not believe particular writing was by a particular person or, positively, that two writings are so similar as to be indistinguishable". See the decision in .lli@2.41]_1?:liiUl'LiJ:~-4l._E,A, 12q_. Lo9king at the totality of tho evidence I am far from being persuaded by the learned defence counsel's argument that the learned trial magistrate erred. As far the argwnent that the trial magistrate relied on evidence which he had rejected in convicting the accused I do not think that the iearned magistrate did so. I agree that the judgement of the learned trial magistrate could have been clearer. I am ~nclined to think that it was really a difficulty of language than anything else. The fact that the monies were not banked and the further fact that the appellant absconded when he was being investigated is clear indication that he had reason to abscond; and in the circumstances he must have run away because he could not lawfully accow1t for the monies not bankede As for the sentence of eight years imprisonment in respect of counts two and four it is severe taking into account the fact that the accused was a first offender but bearing in mind that the appellant stole over Shs.200 1 000/-= the sentence cannot by any stretch of imagination be said to be so excessive as to warrant interference by this Court. Offences of this nature are alarmingly on the increase and as such condign sentences are indicated" In the event this appeal is dismissed in its entirety. Dar es Salaam 29/10/8$