19730921

IN THE HIGH COURT OF TIJJZANIA • . T N!NZA. . APPELLATE JURISDICTION CRIMIH1L APPEAL .NO 330. OF 1972 ORIGINAL Cr[hINIL C NO 534 OF 1971 OF THE DISTRICT COUflT OF ShINYA DIST .ICT T SHIiI 'Gi BORE: J. L. ALUSiIA, ESQ., RESIDENT N4GITflATE. MATABU BUSANDE •......... .. ... .. .. APPELLUT . .,. .. (qRGINAL Acdus) VHRSUS mu't 1DrtTrnT TO £t,CjIU.L)J4.V pOTr .J,.)_¼_' 7 Iifl ORIGINAL PROSECUTOR) • . . JUDGM.E'IT a EL-KINDY, J. - MATABU EUSANDE was convicted f attoitig to btain money by false trctenccs ccntrtry c sccticns 302 .in. 380 "f t'e Penal Cede nd he was scnt.ncod to irnprisoornLnt fmr twelve months. 1eappaled against conviction and sentence. The learned State Attcrnby, Mr, R him, -ppearcd fr the rLsondont Republic. The appellant was absent, but his grOunds for .ppeal were taken into account. . .. . The appellant was employed by Mwaijige Growers 06-6perative Society Ltd., hereinafter referred tQ as the Society, a,s.a messenger. The appellant presented, to the cashier of the Socity, two receipts, which were in the name of Ngobole s/o Jilun.çu, and he told the" bashie that he had bcOr sent by Ngobele s/ Ji'luhgu'.to co"l1ct the price of the alleged cotton sold to the Society by the alleged Ngobe.e s/o Jilungu. It was established that there waa a practice whereby It-as possible fr. one person to collect money on behalf of ."anothe,.,and, thereforc what the appellant was d..:ing was consistent . 'iith thexisting i5raptico. However, when the cashier examined the . twc receips,Pe became ousT icious and requested that Ngobele s/o . Jilungu shculd tiper bet re him .nd crnfirrn if he sole. the .illeged weight 'of cotton.....When he ....Seared, he denied that'h' sold ahything to the Society as the two receipts purported to show, and he dcnied that he had slaver sent ti;e ar.ellant to do anything for him.. It had been alleged, in an effort to convince t.be cshi,ertha the two, •'. receipts represented a true transaction, that one Su'bi, a donkcy-.cart owner, had been :the one who delivered the alleged . tton, but Sü'bi totally denied it.. As a result, the apiellant 'broke down and began to weep and alleged that ho had done it in conjunction with one Edward s/o Masunga who, hoclaimed, had tricked him into this plan. In his defence, the ap'ollant argued that as he was misused by Edward s/o Masunga he was not guilty of any offence. Not surprisingly, the learned trial magistrate held that since he 'ao. a willing party to the attempt, he was cc.ually guilty of the charge. Even in t.he.pet.ition for appeal, the appellant still argued that he was a victim of a ilan by Edward s/o Masunga, and that, as a messenger, he could not possbily have hao access to the receipt. books so that ho could write thorn. Granted that he was not, usually'., allowed to write any receipts by virtue of his appointment with the Society, the evidence showed that he htd asked Marko s/a. Ntegi, who was a co-accased but who was acquitted in the . . . . .2. . . -2-- lower court, to write the receipts y:.ix,e,ting the name of Ngobele s/o Jilungu when the receipts had just shown the weight. Even if such writing was done by Ntegi, it was still clear 'that the appellant was consciously aware of that he was doing or he was holding Edward s/o Masunga to do. He 4dLbherefore, an ctivo participant in a plan to defraud the Society of sums of money by production and presentation of false documents: that the appellant was aware of this and took part actively ih th' pldñ. macic him pa'tice. urininis. His confession hhd crying migit gcnuinely show'reconition of his folly in accepting to jci in coiünal plan, aid this as jut a rñitiating factor. It does not erase the criminal offence q'aich he took part in. It appears that the cashier was not called to giveevidence, but the ommission is not fatal, the Vidrnct hcwd th t tuccthr people, one of whom was a cbmmittc man on duty, witnessed what won't on between the appellant and the cashier. I agree with the learned State Attorney that the conviction was quite sound, and 1 ace no cuase to interfere with it. The sentence irnpcod on the ap'cllant was of 12 months imprisonment. It was perfectly legal sentenoe since the offence under which the appellant was charged was not a soieduled offence. Obviously, the practibe could hove ruined 'the. Soo.iut' if the cashier had not been extra careful and it is not difficult to notice that such frauds are, 'the' ones., that ruin money peasants' Q-op€a'tive Societies. It was, therefore, a serious rftncc. TIe ci ellnt, as an oloyeo cf the Scciety, was dutd bound b crotect the socictI against such friuds and not to actively take pa±'t in defrauding tne society. The responsbiiity for the successful operatic;n' of co-ope'ative societies is no' that of, the senior employees cf the society only p but that of everyone, including a messenger such c: the nt, to se that these economic units prodece and bLCfit the xet.l pr ccuc'er's at' won'lth. Pth' appellant was extremely lucky he got the sentences given. I see no reason the',efore, to interfere with the sentence either. ORDER: This appeal 'be and is hereby dismissed in toto. Delivered: in Court, at N.wanza, on the 21st day.oi' September, 1973. • ••• •• ' MWANZA 21st September, 1973. ' N. LI ITDY JUDGE Is Mr. Meela ' Senior StatC Attcrne 'for Reputlic. Appellant - absent.