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n; THE HIGh COURT OF 'l'ANZANIA . AT MWANZA APPELLATE JURLiDICTION HIGH COURT CRIMINAL APPi:;AL NOo 34 7 OF 1977 ORIGINAL CRIMINAL CASE !\JO. 845 OF 1975 OF THE: DISTRICT COURT OF MWAliZA DISTRICT AT MWANZA Before Bo Bo OSIR, Esqa t )2-~~!. MAGISTRATE JANUARY PAULO KIKU;_jOoooooooooooooooodoooooooooooooooooooooooAPPELL/1.NT (Original Accused) versus THE REPUBLICocooooooooo~ooooooooooooooooooooooooooooooooon•RESPONDENT (Original Prosecutor) CHARGE: ,:3'1'E1\LING BY A PER.SON EMPLOYED IN PUBLIC SERVICE c/ss 265 and 270 of the Penal Code Cap 16 of the Laws. -OoO- J U D. GM ENT KATITI, Jo One January Paulo Kikoso, the appellant in this case, the first ·of the four accused persons, found himself convicted as charged - steal- ing by public servant c/s 265 and 270 of the Penal Code, and sentenc2d. to five years imprisonment, by Mwanza District Court. HP. was also ordered to refund shso 15 1 115/=, found stolen by him, to the Government. As is usually the case, he has appealed against conviction, and such other orders connected therewitho The 2nd, 3rd and 4th accuseds, were acquittedo . Lightning lib~,· on 29/7/1975, the Mwanza Government Regional Internal Auditor, Bernard Rwegasira, descended upon, the appellant's office - Mwanza District Natural Resources Office, for Inspection of accounts o Th.;~ appe1 lant, who was the District Fisheries officer in charge of District, with accuseds No. 2, Noo 3 and Noo 4 working under him, did on demand, surrender the following licence books - 07101 - 07150 29501 - 29550, 13,601 - 13650, 13751 - 13,800, 2150 - 21550, 26,850 26,900, 13651 - 13700, 13701 - 13,750, General Revenue Receipts - 849001 - 849200 9 D 848801 - D 84900, Exchequer Receipts Vouchers Nao 406401 - ~06600, Revenue Collectors Book Noo Do 068401 - D 068550, and such other relevant documentary accessorieso Subsequent ransacking of the office:, that on the evidence appcears to have been shabbily maintained, revealed the following licence books:- Nos. 28451 - 2n,500, 11601 - 11650, 21545 - 21,500, and 29601 - 29650 that were surrendered by the aopellant on 7/8/1975 to PW1 for inspection. ·The inspectioD by P\J1, which demonstrates more of disproportionate enthusiasm, at a devastating expense of thoroughness, came up with a report, that the amount found stolen, was shso 15,115/=, and stolen by the appellant, and h(~nce the charge and the conviction, that. the appellant is vigorously fighting againsto The appellant contends:- (a) Tr1at P~i1 did not satisfy the Court, that the Licence R,2ceipts, he depended on for his accounts, were used or issued by him, in view of the fact, that other accusads were using th," same Licence bookso (b) That, had PW1 examined payment vouchers, he would have nob~d that some mon,~y was spent o~ Government proj2ctso J: 2 - Cc) That PW1's accounts, do not necessarily add up to the figure of 15,115/=o The Republic, represented by the lcarn,?d State Attorney Mr l1wecl1ungura, 0 subrni tted that th-:: case as a whole-~, was such a jumbled up, confused assemblage of facts, as though with no din~ction in mind, that supporting conviction in th;~ circumstances, would amount to an abuse of justice 0 As the cas~, tasted no analysis at the hands of the trial Court, reviewing th0 evic1ence is necessary The appellant was working with a accuseds, Noo 2, 3 and 4, in the District Office for Natural Resources Ih·1anza. Their dutL:s, included issuing of diffe:rent lice;-iccs, for which th,~y received fees 1 which the other three, were supposed to hand over to th2 appellant, who would bank the money, as required a These Licence:? book:s, were being colL)cted from the Regional Fishe!ries ()ffice Mwanza, where, whoever colL:cted the same 7 h::1d to sign related issue voucherso It sta,·1ds out, as cl2ar as a sunny day, that the auditor, did not inspect all tl18 Licence books, or all the accounts books, ~she himself found, that some books could not be traced though received, and that, even some that could be found, had receipts or copies thereof missing, or torn, and as P 117 B.4702 D/Sgt. Anatoli, who visited the offic~ observed, some books, and fil8s were scatterGd on the flooro This can only m<=an, that th,2 office, had been in th2 hunds of a very incompetent and reckless pP.rson. And since it stands out clGarly, that some books, or receipts were missing, WG must C be pushed into a position, where we have to be guardedly cautious, about PW1's figures, and final findingso C I have o.bov--:! shown, the Licence books th2t the appellant surrei1dc:rcd ,_\ to PW1, for Insp-:;ction, again, th(;Se could cot have been spared from r having receipts missing or torn~. It is from th2 same, that P1\J1 extract(1d the amount, thnt the Republic maintained in.the lower Court, that the appellant stole. Nowherr::, has it b,~en t0stificd, that the appellcmt, personally co11,. ~cted the said books, from th<2 Itegional Fisheries Office, for his own use in the office, and in fact nobody knows who did, and who was keeping them, and as such, the sa_.d books stood accessible, evec to other accused persons, if not to all and sundry, so that it was a must, that the identification of the handwriting on the receipts, to be thn.t of the appellant, should have b02n undcrtak,,~no But in ascertaining, whether or not, it wus the appellnnt who r,:c0ived the amounts reflected by the books that P~,1 inspected, the; prosecution, relied on the evir;.:,;;1C8 by PW1, who testified as follows: "I took for:___.sJ_;:_~_rited that all s_!.9.P.::..8:.-Sll..1?.'.:..~. bearing 'f_OU..J?.._.~.:~-~-L~ "Kiko so" to be _y~_~n:Lnot forged, when _:!:_:.').~.2~sc.!}:E~9. the accounts books 11 • Indeed he must have taken things for granted, us he C (PW1) ins1;~ct'ZZ"the rel,!vant books alon,~o But in criminal prosecutions' we do not take things for granted, although surprisingly, the prosecution ,,--" was in this c<1sc satisfied with this sort oi' thinao The conclusion, that V since the appellant's name "Kikoso" appean.:d on tl~e receipts, thr.;!re:for.c~ the appellant, must have been the author of the snm1e;, and, therefor(! received the amount related to the same, suffers critically, from ovur- simplication, so that swallowing it, in th,::) mass as it is, as est2bLi.shi:·1g the identity of tbc app•2llant's handwriting on them, would render us accused, of b<::?ing incompetent trustees, of th,, principles of law, rc~·:arcl- ing identification of handwriting, that must be applied in this case. Section 69 of the Evidence kCt 1967 provides as follows:- "If a document is alleged to be signl!d or to have been written wholly or in part by any person, the signature or the h2.ndwriting of so much of the document as is all2ged to be in that p(~rson' s handwriting, must be proved to b,:·a in his handwritingo" The obvious principle her,~, being that whoevclr makes an allegation, must prove it, nncl reading ~ections 69 and 2(a) of the Evidence Act 1967 together, unless statutorily oth0rwise provid .. ~d, a fact is said, to be proved, in criminal proceedings, if the Court believes i t to exist, b<~yoncl reasonable doubto Ther;.!fore, what th8 proso.:::cution was required to c1o 1 was to mak2 th,~ Court bcJ.iev'"'~ th~t the r(~Ceipts w-.2r0 written and is~;uC:!d by the ClD')C:ll:.:.nt, :>2y, l.1:l :c,.::::sc·:'._, ,'J~.<'! jol~bto ,:,nc1 de;pending on the evidC.:!ll.CC 0 •. . . oo/3