19770802 TZHC Dodoma

•.!· :.. · .· . •• •l • ' •. 'IN; .· THE/ HIGH ' . COURT OJ?' TANZANIA • • I ,: • i: ~~ • ... , '.· ...'· . n· OD_Qi\iT . ' A-T i . J. lii .. ·<.: . . ~ .•· . . . AP?'.E:LL.\..TE JURISDICTION ·. HIGH COURT CRIJVlINAL Al'PEAL No. 105 OF 1977 . CF·. CRIJ.VIINAL APPEAL No. l06 .OF 1977 ORIGINAL CRIMINl~L CA Si No. 1 36 OF 1976 OF ·THE · DISTRICT .COURT OE'· 'kONGWA -DIS'J:RICT AT KONGWA ".•:

BEFO . .. R'>'• . l:J ~- .A .M. Sli.NGA • . • . • • • • DIS'rRICT :n:~G I STRATE : -PATRIC.K .s/o IV'it:.~OLE . • . . • - • APP ELL1;.NTS . .· MBl'iTYANI. $/0 BOLLITJ.: • • · versus .. THE REPlJBL IC . • • .. . . . - . .• 0 • RESPONDENT . cw~RGE: Uttering counl;erfei t not~ c/s 360(1 )-of the ~enal Code. •. .. ·JU D G M E N T . CH I PET fl • J • . The two appellants_, Patridk M2J.9le and.· ~lbatyani ~oleti, were each charged with and convicted of an offence ·cited . in the charge she~t as "Uttering ·counterfeit note c/s "39Q(1) of the Pe~l Code, 11 and were each sentenced to two yea:r;s: im.prisonment~· fhey now _appeal, and their appeals are her'3by consolidated. · · ·· Before I proceed to deal wi-th the merits of the· app-ealJI I would. like .to dispose of two procedural- q_uestions, In the first pl.ace, the manner -in which the cm. rges were :framed left mu.ch to be desired. The charge sheet reads as follows: STATEMENT OF OFFENCE: Utterine counterfeit' hote c/s 360 (1) of the Penal ·Code • . PARTICULLRS OF OFFENCE 1st accus<:)d: That lYiba.tyani Bo1eti is charged on the 1st day · 'bf Decemb·:·:::-, 1 976, e:t; about 22 hours at Kongwa Per:: :c, shop Kone;wa Sub-District,· J.vlpwa'pwa· District, Dodoma Region, was :found in possession of one counterfeit . ··.'• (note) of shs. 100/- numbe.red L 303223 knowing the same- to be ·counterfeit-. PARTICULJ,..RS OF OF:F'ENCE ind

accused: That Patrick Malole· 13 . charged on the 1st day of December, · 1 976, at about 21 hours at Kongwa Pcr;·;..:s shop Kongwa Sub..;.District, Mpwa:pwa .District; Dodoma Region~ was found in possession of one counterfeit note of shs .. 100/- numbered L 303215 knowi:ne "the same to be_ counterfeit •· 11 . '.To· start with, scctiqn 360 of the Pena:1 Code does not· create. the- offence of "utte:r:-i.ng a· counterfeit note." That section creates· iho off_ence of uttering counterfeit coin~· Besides, section 360 of the P::.:nal Code does not have a sub- section.· · From the partioulars of the charges, the charges ought. to hG.ve been laid und~r section· 348 of the Penal Code which· creates the offence, inter alia, of being in unlawful possession of forged bank note or currency note. T~ is apparc:~t .• from the particulars of the charges, that the· learned trial rragis trate and the public prosecutor had section 348 of the Penal Code in mind. • ·••• 2. 2 Inasmuch as the charge cited the wron 5 section of the law, the charge was defE:ct~._ve. What 9 then 7 is th8 effect of such defect? Section 346 of the Criminal Procedure Cqd~ provides that :no finding~ sentence or order mado or passed by a court of competent juris dicti.on shall oe rcv~rsoc1. or altered on an appeal or revision on 2,ccount~of,sny arror 1 omis 9 ion or·irregularity in the complaint~ su.mmons 1. warrant, charge,

etc •. unless the court is saticfied that such error, omission or irregul21:·:L·~::;,- has in fact occ8siont3d a failure of justice. The question, the ref ors I is· whether this defect · in th is case in fact occasion<Jd a failure of justice. In my view, where a c.11.arge has cited a wrong section of tm law, but '½he i1articulars of the ch?~rge clearly refer to '.'..,:_ actual offence committed, and if tho accused cannot be said ·c, have been under s.ny m:'.sapprehension es to ...the---offence with vh ich he stood charged I then such defect is cµ,rable under tlv:: provisions of section . 346 of the Criminal . .. .· Procedure - . Code. In the in.Stant case' tb\n·e were two 'defects: the first was that a wrong sect:'_o:.1·of -;;he law was cited; the.second wr:-.s that it alleged "utte1·j_:::.1g cou.nterf :;it noteo". 'I.he particulars of the charges ho'\'rnver, leave no doubt that the charges alleged a 6 ainst tho a:ppellants were those of being in ~nl~;vr/ possession· of a forged ban..'lc note· or currency ncte, which is i an• Offence undef· sec ti o'n 34'8 of th-a· Penal Code. In my view, -therefore, the fact that a wrong section of tht law was citsC::. is a cUY."able defect u1~der the provisi ens of section 346 of the Criminal Proc0dure Code. The use of the words "uttering oounterfei,t 2:;"°'.::;] 1 were s iDilarly unfortunate. TJ.1e phrase tt~.t ought ·to ··ha Ye boen used

was "being in possessj_on of forged . Bu,:,G be tha·c as :Lt may, in my opinion t~1e language 11 . •.• H e o used oam ot ho.ve so m7_sJ.ecl the appellants as to ba ve occasic: .•'cl any failurG_of justice. The particulars of the charges, c.1,s I hav;e said~ CO\Jl.d have J.of·c no doubt in the mind of any of th·.) appe_lla)lts. Indeed.; I wo1.1:ld go so far as to say that a f cr ged bank-note is· ~ n fact· a countE3rfei t bank-note .. in tba t to coun~~.s;rf_0·i·c a banJ<::---note EB ans the same thing as to forge it. On these grounds, therrfore, I hold that those two def,_c·c3 are ·not fatal t~ ·th.e convicJ.:;lons as they are curable under . the provisions of section 346 0:f the Criminal Procedure Codo. . .· The second prcceclr:.ral i:rregulari ty in the charge sheet is that tht.) charge sh8et cites as one count what were really two ·separate.counts - one against each ap)ellant. This was wrong.· It h,0,,s been poin.ted out on r.10re occasions tha.n one -that whcro more tba.n one count is charged in one charge or informationr the counts r.1us·c be set out separately and each count must conca:tn tlHJ stattn:nent of offence and the particulars the l"':Of t-:;caus e each count constitutes a dis tr~.c t R. . ·.. '..· of·fence,, (J'fl:!_~itic~ v,, (1961) E.L~ 470),, · How,3ver, this :·-··· -- ~rregulari. cy ca: .:,,.:·G7Se-·so.id to h2;Ve oc casi.on8d ahy failure cf Justic~ 1 and so

,, c2.nnot vitiate th0: convictions. Having- dee.lt wi·s:1 the. rirocedura 1 aspects of the matt;ff, ,·I will now t1Jrn to tho merits of the a;)pealo Tho prosecutii-c•~ evidence was th Rt dti':".:'j_ng the Bate:i·ial night the two appellaY :;s went to ~ongwa pombci sacp togetl1:;r, and on arrival there, the second a:1pelln:J.t r Mbatyani Boleti, asked th.e' complainar_·c. (Pw .1) to give them shs. 97- worth of pombe, which Pw. 1 die.. The second . @:i-:,pellant.th;:n gave the complaina..rit what lookE:d like a genuihe shs .. 1 00/- bank-note, 2.J1 d Pw. 1 gave him shs,, 91 {~- a·-; d 02--.c0 ~ ••• 3 3 Later, the first appellant, Patrick Malole also asked the complainant to give ther.1 shs. 9/- worth of pombe, which the a.omplainant did. The first a]Jpella11t in tum gave her 2notllcr note which looked like a genuine shs. 100/- bank-note. When the compLdnant said that she had. no change, tl.1.e first api:e llant told her to keep the money and give her change trn next de.,y ii These two notes wsre l,der found to be forged. Each cf the a:cpellants denied having given the notes tc: the ccmplainsnt. The l·sarned trial district raagistrate accepted the evidonc E.J of the complainant which was SUilported l·y that of Pw. 2 , and Pw.

3. Having pe rus,,~d the entire record, and bearing in mind that the learned magistrate had the c.:;dvantage of seeing and hearinc the wi tncsses, I am far fron persuaded that his findinc;s of fact OU@J. t to be impugned. In my view, the findings are fully, mpported by tlH3 evidence. There 11as further anple expert evidence to. the effect that the tiw notes, fairly clever forgeries, were not genuine b211k-notes, and the appelL::nts gave no explanation as to how they crune to possess the so.De~ let alone evidence to discharge th2 burden that lay on them by statute that they · were in lawful possession of thG forged notes. In the circumstances, the conv:L ct ions under section 348 of the PencJ. Code were inevitable. However, in order to keep the recorcl straight, section 360(1) of the P8nal Code shown in the chc·T< :is substituted with section 348 of the Penal Code. On the quest ion 0:f sentences, I note that an offence under section 348 of the P0nal Code attracts, as co:crectly pointed out by the learned magistrate, a maximum sentence of s~1ven years imprisonment. The art of forgery tba t went into the making of the forged note..:, had b9en developed to near perfGction. Although the a~1pellants were first offenders, t:, , circm-;istam E""S clearly called for deterrent sentences. BesicLa, there is the duty on everyone to protect our national cu::crency. For these reasons I de not propose to interfere with the sEmt snc es. They are to s tG.nd. As the se,r1e require confirnation by this court, they 2,re hereby confirmed. ·.; . In the result, save as.indic2ted herein, the a_preals 2.J:c hereby dismissed. (!_c!/lf! 111/(I~ r , , I/ . . ,,( B .D. CHIP-STL

JUDGE Delivered in Court tlJ,,is 2nd day of August, 1977. IJj I If /.>~if t.1/i·~:1: ti {,V-J~=5-!_1 · B .D. CHIPET;\

JUDGE