19891107 TZHC Dar es Salaam

~ w4- l-..-1 b ,~ kL--..__, IN THE HIGH OQUR'l' OF TANZANIA. AT DAR ES -SA;LµM CRIMIN.AL APPEAL NlJMBEB.·51 OF 1988

VERSUS JOSEPH VITALIS. OBERE .•• ACCUSED LUGAKINGlM..tb .The-~ppellant was before the District Court of Ilala ~· a~ }Cis~tu charged on ten count' s alleging stealing, forgery, µttering,obtaining goods.by false pretences, and attempting ,. . to obtain goods by false pretences. He was· cbnvicted on all the r • ten· e·ounts and sentenced to concurrent terms of four years' imprisonment on each count. He then appealed: There is not much to go by eithe! in the petition of appeal_ or in what the appellant stated before me but I think something could still be said in his favo_ur. In counts two, five and eight the appellant was charged with · forging cheque Nos. 095132 (Exb~P3), 095127 (Exh.PI), and 095122 (Exh.F4) reepeetively by purporting to show that they -were issued by Mis :.i.:anzania Loading & Offloading Co-operative .,_; ' .Spciety . Lim:i,.t-ed .~ of Dar es Salaam. In fact Tue cheque came from the . . SO<U.B~'S .cheque book which had previously been stolen and the purported signatures- of the Society's Chairman 1 °ecretary and _treaa-0.rer on the cheques were false. The three cheques were, therefore, undisp-utably false documents. However, it is not merely the making of a false do-cument that constitutes the offence o~ forgery under s.333 of the Penal Code. In order for an offenee to be disclosed the _charge must further-allege an intent to defraud or deceive, but this was µot

alleged in either of the counts under consideration. Ta.king into account the state of authorj_ties on the subject, which authorities the trial Principal Resident Magistrate ought surely to have made an effort to know, the conviction on the thre~ counts cannot be•sustained since it did not proceed on a charge known to the law. Conviition -~.... . and sentence are therefore quashed •. I think, on the other hand, that the appellant was properly convicted on the.remaining counts although, generally, the judgment of the trial court fell s_hort of the required standard. ~In the firs~ coun.t. the appellant was charged with stealing "four" che~ue leaves the Rroperty of· the Tanzania Loading & Offloading Q..o-operativ'i Society Limited. In fact only three cheques, ..t:Jxhs •. PI, -p3_and ·p4 ;·" ;~re p8c ~f cu~arised in the· 9harge she et and later 1 ten~ered, .· in evidence ~ · there was no comment on this discrepaney - 2 - It was in ev.idence and not disputed that M.e Society's premises were broken into on 9/10/85 when a number of items, including a cheque book, were stolen. There was also evidence which was rightly believed· that the appellant uttered ~xh.P1 to PWI of Hassan Printers Limited on 30/4/86, Exh. P3 to PW2 of Madella Limited on 16/5/86, and ~xh P~ to PW4 of Tanzania Stationers Limited also on 16/5/86. (Inaidentally, these cheques were not· · found at the appellant's

residence as stated in ~e judgment of the learned Principal Resident Magistrate but were in the custody of the victims). It was safe to believe the witnesses in their identification of 11.e appellant since in each case he called twice at the their premises. A cheque book/~~ the other hand, not a commodity which can easily change hands. It is therefore irresistible to conclude that the appellant had stolen the cheque book from which the three leaves originated. The conviction in the first cc ,mt wiJ 7 :.c-.,u.1:u.ingly stand, but for the theft of three cheque leav3s only. In counts three, six ,,,nd nine the appellant was convicted of uttering the said chequ1~ leaves. In view of what I have just said I am satisfied that the convi_ction was justified. In the fourth count the app~llant was co_nvicted of obtaining goods from Modella Limited by false pretences. He was alleged to have obtained four brief cc.ses worth 18,000/- after presenting Exh.P3. I think his denial was rightly rejected. sinc·e among other evidence, the compan:r's delivery note evidencing delivery of the brief cases was found at the appellant's- residence. His - story that this and other incriminating docu~uv.1..1.Ls ,-;ere planted on him by a one.:..night lover was cer L.:..:::..~" 1 :¥ ~- J":.:1g but wholly 1 untruthful. The conviction will stand. The seventh count al:_eged an attempt to obtain various

goods. from·Hassan Printers. I_ again think t}?.e evidence justified the _ c,onviction. After present:·.ng the cheque, ~xh.PI, to Hassan Printe_~s the appellant had gone beyond the stage of mere preparation. What saved the day was that he was told ct come in two days, after the cheque had been cleared, and collect the goods. He was not seen again and the chequE: was returned from the bank with an endorsement that the acco1 nt had be en closed. The conviction 1 was therefore justified. Finally, count ten a1leged an attempt to obtain various goods. from Tanzania ~tationers. I am again of the view that the attempt was complete the mement t1e appellant presented Exh.P4 to.the company. oo./3o•• • 3 • The same PFUdenoe saved the day. The appellant was told that the che,que had to be cleared first and he never showed up again. The ~nviction will therefore stand. To recapitulate, the appeal succeeds and is allowed on counts two, five and eight; it is dismissed on counts one, three four, six, seven, nine and ten. Under s. 348 (I) of the Criminal Proce- dure Aet the trial magistrate could have awarded compensation . to M/s Madella Limited but he did not do so and did not allude to ,. the isf;3_ue. I see no justification for· the silence or oversight. The appellant is accordingly ordered to pay to Madella Limited the amount o! 18,000/- being the value of the brief cases obtained by him. J Q l -~- ~; \. ~ \_ \ .. LstluG· • GIRA

J UDGE · DAR ES SALAAM 17TH NOVEMBER, I989 Miss Munisi for Republic.