19870812 TZHC Dar es Salaam

IN TEE HIGH COURT OF TJJ-TZAIHA at Dlill ES 3ll,A.'.°J·~ li.PPELLATE JURISlHCTION' ITIGII COURT CRIMIN'.AL APPEAL NO, 69 OF 87 ORIGINAL CRilHHAL Cii.SE no. 235 OF 85 ( Of tl1c District Court of 1L.i,.LA Eis-trict Kisutu) NICIIOLi-'\.S ALF.RED KIYABO •• O_♦ O . O O o O O a O O O <IO O. O • 0., O O O. Cl. e O .APPELLANT versus TiiE UNITED REPUBLIC • • CJ 4 O Cl O O ~• OOue .t'I c 4 0 O 'O • 0 ♦ • C • o O O .0 V fi • • 0. RESPOlIDENT (Original Prosecutor) JUDGE-MEN T This is a..."1 appeal by Nicholaus i~lfred Kiyabo against conviction on nineteen counts of obtaining credit by false pretences for which he was sentenced to five years imprisonment on each count, to be served concurently. T'.ue appellant was an office manager employed by the lfatione.1 Housing Corporation. Among his duties wai:; to make hotel reservations for expatriate staff and other officers. In 1984, the appell::mt reserved a room in the N'ew Jii'rico. Hotel f'or some expatriate officers who ,·rcre working for tb.e Kisarawc Brick Factory which is a subsidiary company m1der the Nutional Housing Corvoro:'cion. The appellant sen·i:; the visitor to the New ..:'lfrica Jlo·tel where they were allocated Room No. 527 .. He introduced them to .,, Pt-r{ Mshinrlo &1.lu.1l, a receptionist at Gll0 hotel. The appellant used to go to the hotel ·l;o see the guests he had sent tl1cre. On various de.tos in January 19G5, the appellant obtained drinks and he siened for them in the invoices debiting_Room No.527. Tho waiters at tho hotol 1 PI-T3 Simon Mgn.ya, PW4 11amu.clhani l\fo.nga, PW5 l1lois Serna o..nd PFr, Ali Ra.mc.dhani so,id tlw:'c they served the appellant ,-ri th the drinks., 'I'he appellant instruc'Ged them to write the invoices debiting Room No. 527 and he signed the invoices on co.ch occasion, in the presence of the bar attendants. Later, PlT1 Iifshirnlo who he.cl moved to t]1e credit control section ft -- .of the hotel, found that tl1e bill for drinks for occupic:rs of the room w-as be_qoming very high,. 2 The Nati0nal Housing Corporation was responsible to pay for the room and breakfast only. There were no arrange- ments for the occupiers to i1.ave drinko on crcdi t • ;Jhen ·r,;Ishindo contactGd them,· they denied that they ordered the drinks. They also denied to have oigncd the invoices. The Kioarawe_Bricks Factcry General Manager PUB Samwel Nb-rabi Ngwano and the Net:i.onal Housing Corporation Deputy Genernl Manager, PU9 Andrew Shitindi, said that the appellant, no an office manager, had no authority to order drinks on credit for anyone in the hotel. All t1'1£l.t the expatriate officers were entitled to get was accomodaiion and breakfast pnid f'or by the Natio:.:,al Housing Corporation and l2d;er by the ICisarawe Brick Factory which became a sub- .sidiery company after August 'i$84. The bills allegelly singed by the appellant have not been p8id £or. In other words the New Africa Hotel remain unpaid up to now. The invoices werctendered in the trial court as exhibits. The appellant deni~d the ch:::rge by alleging that he did not order or receive the drinlw. He denied thc:::t h'e signed the invoices, c1.nd claims that i t isth_.responsibility of the bc:1r a ttcndants • I think the conviction wa.o basGd on credibility of the wi tncsses and 011 the docu,:1cntary evidence. Mr, Mwaka- sungula, le:arned cov..nsel :for the ap1Jellant, argued thc1. t the bar attendc'l.nts should not be believed and that there wns ;:io auf'.ficient evidence to prove the nppcllant's signature, On tho bar attendants, I have this to oay. The trial :.1ag-istrate :::;aw ther.1, ~-rs impresGed they were witnesses of truth and he believed them. They are the po:!:'son.ti who supplied the drinks to the appellant on different datea in January 1985 • They knew the appellant, as they lwd seen him on va.rio,;;s occasiono 1-rhen he Dent gt.mots to the hotel• The witnesses received the o:..~de:;_~s from the appellant and they ::mpplied him with tho drinkG. I can see no reason to din- believe ther:1, As regards the signntures on the invoices which were tendered as exhioi-ts, the witnessua saw the appellant signing on every occasion the drinlrn 'dere supplied to him. P~JJ Simon Mganga 1 :for example, said that on 1 • 1, 1985 the appellant went to the bar with his guests, not the expatriate of~icers, and he ordered drinks and the appellant signed in the presence al' the uitness. Similarly, P7.-l4 J Ramadhani said that the appellant sign0d the invoices on 1 Li.• 1 • 85 r.md on each of' th0 su~)sequont da tcs when the witness gave the app0llant driztl~S as ordered. So the evidence established that the appellant signed the invoices in the presence of the b2..r attend2.nts who supplied him with the drinks • . It was therefore not necessary to call for hand- ,vri ting expert or sor,1eon.0 acquainted ,-Ti th the appellant I s signcture. Sectior. 49 of the Zvidence Act is not relevant. 1'Tl1.at I think is relevant is section 69 of the Evidence Act, 1967 which provides a::;. f'ollo,·rs :- «If a doc~ment is alleged to be signed or to have been written wholly or in part by any person, the si€,"l.1.a ture or th0 hand.writing ' of the docur.1Emt as is alleged to be in that p0ro on I s hand1-1ri ting must be proved to oe in his hand- writing" In my opinion, the trial magistrate was perfectly right in holding thnt tho ornl evidence of the bar attendants or uo.iters who suppli0d the e.ppellant with the drinks on the vo.rious·d2tos and who Gaw him sign the invoices, proved thnt the signature was that of the appellant. The appellant's mere denial did not cast any doubt on the prosecution evidence. The co.nviction is supported by the evidence and the sentence is not by any means exceosive. The totnl sum otolen in all counts amounts to oho.• 100,4.53/=. The sentence was proper. This appeal.is dismisaed. H.J. MA.INA, JUDGJ: Dar en Salaam 12 August, 1987 Mwak2sungula for th0 Appellant!. Miss Barohomoka - State A ttorn?y 1 . for the i:tepublic •