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IN THE HIGH COURT OF TAJ'ITZANIA

AT DODOMA APPELLATE JDn.ISDICTION cnn'fII'JAL A:C;_'EAL NO O 126 OF 1977 OHL INAL CRilUNAL CASE NO. 61 CF 1975 Joseph Mkoma ..................... A})pellcmt r versus The Repµblic . .. . . . . ' . .. . . ...... ::1.espondent ~ /JUDGMENT / JONATHAN• J The appellants and two others were cha.reed jchintly with .several counts o:f forgery, one of uttering and another count of 3tealing. The other accused were ._.c, .J.Ui t ted al together while the appe112,rit r appellants were convicted as charged and each given a substantive sentence of three (3) years' imprisonment, Against the convicti- ons they have petitioned thts court. · The appellants, SANWELI DLIKANA Afid JOSEPH MKDr1A were employed at the Singida Regional Water Office resp0ctively as c cashier and clerk. In ~~hat office also r.10nked the 4th accused who at the relevant time was Acting Regional iilater Engineer, while the 3rd accused had previously worked there r1.s a clerk but his service had since been terminat9d. ·:e1e rc.s- ,ion had 1 several water works and among them was the She1in c:~ter su;,ply s te site where many labourers were engaged. Giving rise to the charges were the ruster Rolls of that site f m:· t 1:,e month of J 8 .nuary, 1975. These appear to have been p:t0pared by PW. 6 a clerk at that site under the superv:Lsio,, of PW .1 the foreman there, and submitted to the Regional f c:,tcr o-C"fi.c e for the

labourers to be paid their wages. Thece ,1,;:ipo,1-,'.' to have duly been r:eceived there. PW .6 appears· to l1·:;,vo subsequently isited the regional office t.o collect the 1v:-::ges cl:''d ·'.;11:::.n'e saw several ruster rolls purporting to be those of '.iheltr beie{ . .~.;.-.: . processed by JOSEPH. All the names appeared strdn e to him ,::;. ,. ~~ and he duly told the appellant those names had be::m faked up for, his st:ition did not l1ave any of those n8.mcs. His respp- nse was however to the eff oct thn,t he was bw3y and he shonld, not be disturb~d. The witness then turned to r:)"'JJJLI but he, t too, would not be moved for, he said that ins-i~ead of the witness disturbing him then he should wait till they woro through that exce:::-oiae. The apppehensi ve witnes ·,thon contuc ~ec PW .1 the foreman who happened to be in twon th,=,,.-!; morn~.ng. The report seems to have start2.cd him and he accompanied Piv .6 to the regi;.;. onal office to sec thj.ngs for h:i_mself a-rd, true enough, the r~ster rolls he saw bore completely dif~erent names from those of lhabourers employed on his station. Like PW.6, he drew the attention of S.AJq:fELI to the app~rent falsification and tho appellant• s reply U:J.S he wou.ld fj_nd out. In the mo9ntimo, J however, JOSEPH had taken the pg.yment vouch2rs prepared on the basis of the false ruster rolls to the 4th accused after whose approval he

obta ned a cheque for shs.23,985/60 from the office of the Regional Development Director and handed it over to S.AMWELI. PW.1 lat0r saw the 4th accused who in turn reported PW. 2, t 1.•e new Regional Wat Gr 'Sn::;ineer. SAJ\-r-{ElI would not tell them who had prep:3,red the false rust er rol 7 s. ~~ven so, he proceeded to cash the cheq_1w at tho bank. He ho;. revor · prese-.. rved the money in the safe! •... /2 - 2 - It then tr~ns~ir.ed that t_hc paymo.1-i.t vouc\ ·,s !1z.cd ceen prep2.red by the 3rd accttsed. His expla,'1:::-.tior .'n.s o..11 along been tho.t he had come to the offi..ce to 3.Sk for ,: ome tm'r!i:.. nal benefi t:)r uhen SPJ.f.lELI reqnested h 1.. m to metko o ,:,.:t; t.ho payment uoucher ngni.ns.t the false rust Gr rollo as ·-r)1ere ·:rcre n no clerks in tlrn . ·s ff ice. Tho appellant, in TctiJ.:cn, would see that his claim. was proce;sscd. He granted the r·11qucst and did the job but he could r>.ot in the ·end ·complete it. The defence of fil.AMWELI was that tho false mus·t;or ro:1-ls h had come to the office in the normal course ancl ho dLcl not lmow" who was responsible for the falseficationl Ho admitted P"!. 6 had drawn his attention to th.cm but deniGd t'-i :,_t ho had asked the 3rd accused to prepare the payme:h.t vo1F;hers. Th.:.i.t of JOSEPH was that SL\J'1'IELI, looking for a mGsscnger bv.t finding none, asked him to take Gome paynent vouchers. 1 :

includj_ng thooso :for the sum of tho shs. 23, 985/ 60 9 to the 4th accusod for sign J.t ure He com.plied and after. they 1·re:".'o signed he took thorn to the of.f:ic0 of tho Regional Accountant whr)re ho was given cheques, including tho relevant on8. He was working on the cheques, indict.ting the denominations of the money to be paid by tho b-mk when PW .6 came into the office and said the payment vouchers wer,~ false, •IJ'hereupon he asked hi.m to hold on until ho fj_nishod that tjob whon he would take him to the cashier who would Jr,now who had prepared the payment vouchers. Ho thereafter took tho cheques- and the payment vouchers to SAl\'fUELI to whom tho witness repeated the complaint .SAM'WELI 's rGply, he said, wts the wj_tness s.hould'- hold on until the job was completed. The l··i?.rned resident magistrate i.n a careful juc.gment r,ras inclin·,..d to the view that the 3rd and 4th o.ccus(~d l':ud been acting merely as conduct pipes in the pr-«,oessinf of t}:n.t }J,1yrnent voucher and had not otherwise be ··n aware o · <~hi~ nnderlyin{'.; f-~'-'rnd. With this I respcctif-~~7 ":;· :-:.gree. As regards rj ."'..· ., ~~I I 9 ho.,,rcver, he had no doubt whatever he was criminally implic:::i,t,.,d. 1'ii th this I would also agree. A.s tho cashier he was r··:spor:J:\ ble :for the process:Lng of all payments. Undoubtedly, he h-:Hl to ELe that only e;enuine clai::.1 s wore

:f£1.id Ba;J1ring frTud, it wD,s in explicable, tr.,8roforG, th~::.t ho gnve no imi,rndi.o.tc atto.,.;tion to the complaint the muster rolls were false. ;\ lit ';i!.: chcclt~G after receiving th, .t complaint wo1JJ.d certainly hiivo rovoaled 1 to him tho falsity of those mus~or rolls. That he would howcv:or not do. Indo,:;d, ho would not ovon ruport to the: 4th uccu- sod ancl tho lattor had to call him for qu8stJo:'inc. His chara ctcristic reply ho would fh:.d out doos not 2:::ipcar to have been followed by any '3.ction on his :p9,rt 9 for 1,rhich romovcr thcrm-r was no oxplanatj_on forthd:oming. Th~:T.c w,::i.f; thur> i;ho 3rd accused's oxpla.J.i~,, ..,_:..,n 1 w,1ich t:rie final court rightly accepted, t h;,,t ho had prepared tho pay1'1'lent vouch·~rs on tho instructionc; of this appellant. Th:).t could have loft no doubt as to h~.s guilt zi.nd I am satisfied on tho ovidGi'.lCO ho w~-1.s ri;Shtly corivictod of tho forg0rics, tho ut·:;orir{?; and of attempted stcab.ng. The sont 0ri.cc of three yo·,,rs w:,,s howcvr::r unlawful a:nd a:.lplyj_ng tho Minirmm s sentences, f:.ct it· is sub st j_tutcd wtth a sent on.co of fi vo yo-=J.rs. The case a.e:2:in st· JOGE?.H 1 .:i.s vGry f::i,irly submi ttod by tho le::i.rned state attorney is howev 'r lif·Peront. This a:npollant w was convictoc1 alon,s with S.t\.J','il!F,LI on tho promis of a pro-existing conspiracybotwcen them but as aptly

observed by r,·r. Mchora dtor tho Republic it was possj_ble for S/IJ·if1-.TELI to commit tho offe- nce alone ·without deliberate cooperation on th3 JD.rt of JOSEIB The trial court held it stron:'!;ly against him th::i. t 11_,: had not given a SRtisf,,.ctory responscJ to tho complai.nt of PJ .6 and that ho had boun actively invmlved '.irn the mcvom.<::nt of ti~c relevant documents. Ho did not respond rss1Jo:r:f,j_bl7 to ·':11.0 complaint of PW. 6 but from the more·· staternciit ·t h:·t ho ho11Jd bo Biven t:i.me to complete his assignment before ·!~he:: compl:::dnt r • · ' · could bo attended to, it could not j_n my vj_o'i,T be s·:;rm.•r,;J.y presu- med ho had bcon a party to the faloif icati on, ;r.hilc :.~~:.: Tog.-:~rds .. /3 .J his taking the payment vouchers to the 4th ace s0d 9 then to tho R 8 gionnl Accountant and back to SAIFTBLI, it ,; oulc3 scorn 1 there wc:ro no messengers then available to do th ..t jcb 9 and if is porti1,cmt to noto i;;lv.t that tho relovaiit documonts w:as among sovoral other claims i:vhich were however u:r1J.ou~Jtodly gonuirie. I am in 8-greemcmt wi ti'r .tho_ Republic 9 tJ.1oroi'orc 9 t:, t ho should lbiavo boon ·•givon the benefit of doubt. '\ccord:i.ngly, the convict5.or:.s of JOSEPH· HKOJ?A are hereby set ,s1do tog::::thor with the sentence [!;;i:l it is ordered ho_ b,o r olc2so·cl from cue, tody unles[~ ho is otherwise lawfully held.· · · · l<ftl\Ni \ ·-:l? ,.11• ' JQ1-T 'T•T .1\ '\. AT\T .1.Lll.J.\ JUDGE. ( I (