19771122 TZHC Dodoma

1111111)' · ~ I.N THE HIGH C.CURT OF TANZANIA

AT DODOMA

APPELLATE JURISDICTION <./\CRIMINAL : APPEA.t, N0.-226 OF 1977 ;,' • ' -, , . • I,- . . /:·. (ORIGINAL CRIMINAL CASE NO. 590 OF 1976 ,, ...: .. • OF THE DISTRICT COURT OF MBEYA). ' , ·~1-·: . . t~ ,/~ '", s/o APPELLANT ( Origina.l Accused) Verl1ue

THE REPUBLIC RESPONDENT (Original Prosecutor) .st ·. ·. Charse: l Count: Forgery C/SS 33), 335 and 337 ot the Penal Code C~p, 16 of the Laws. · nd g . . eeun t : . , ., .. . . Uttering~ t~i~e doeumen~.c/sS 342 ahd 331 ot the Pa.n,i dcide C~p.H5 ~t. ihe Lsws. _{d Count: Stea li'ng by servant. C/S 271 of the Pert•a·l Code Cap. 16 ot the Laws.

JUDGEMENT KISANGA, J • .The appellant was.convicted on three counte·of fel'gery, tittering a false document an~ stealing by servant and was sentenced to varying concurrent prison terms resulting in a substantive term ot 5 years. He has now appealed. 'Nie appellant was employed by the ·National Bank of Commerce Mbeya Brancho At the mate.rial time he. was· performing cler'ical duties one of which was t.o attend :customers at the counter .in ·the f.oreign department who had their monies tran•f'erred from foreign countries. One Julius .Mwiba had· his money amounting t·o She. 7 ,455/:.;. ·· transferred from .Zambia ,to this branch of the bank. ·on making enq_uiries at the bank, however, he was .surprised to be told tha•t the ·money was a_lre~dy paid out •. On examining the relevant documents ·it was i{oticed that the money was paid to. the holder of passport No. 123165· in the name of Jameson Mwiba and not to the right claimant, Julius·· Mwiba holding passport 1'J'o. 33007. The said Jame-ison ·Mwib! could- not be· traced and. although the records at the Immigration Off'ice confirmed· that Passport Noo 123165 was issued to Jameson Mwiba,. that 0!:tiec did 11ot. r. ·ha-,e any particulars of his, ·such as, addr·ess · or photograph. · The PaYment voucher against which the money·was paid-was made Pa,yable to j, Mwiba and was endorsed on the back with the following words, . . '

1received~ash on 19_·.2.• tr J. Mwiba. · Identification,,.: by s.howing his passport. No.123165 of Tanzania aiso . ident•ified by pho·to. 11 Evidence was adduced that this endorsement was in the appellantf s' handwriting. In his defence the appellant flatly denied the charge. He ' ' 1· appears to suggest that he was i'hexperience·d i.n 'his : j oh as a ele.rk 2 - because his substantive appointment was that of a messenger, so that whate·ver he did wati i..n accordance with the inett-uctions which were· given to him. He stre.ssed that- •he .:was. .-not in a~ .. .• ~aY connected with ·th-e ·p·aylheirt· of the money in question •. , _ The learned trial magistra~e after a careful evaluation ot the evidence came to ·the_ conclusion that it was the appellant '. :• ' I who fraudulently made the indorsement on the back of the payment voucher thus inducing hfs einployer. to pay the money t·o ·a: wrong claimant. Consequently he convicted ·-the. appellan"t as ~·h~:rged. .. -,.• . Upon a careful consfderation ot all the facts and.'oiroumstanees of. the -c·aee. I am of the view that there was a gap i~ the~ --~ros~ 6u:ti-on 1 case which was sufficiently serious to make e'onvict:U,n ~-tertabie· •. That gap lay in the faot th~t ~litne~On M1"!ba:' the hoJd.ei"' bt pa~~pdrt; No~ 123{g5 could not be traced and the_retor-e was not. -~alled_···ai'''·~:'. ·. ·_: ':::_.-.. . . witness. For, P.W.8

testified that she prepared the payment vou·i;her . ' . . . . ' in favour of J. Mwiba. Although shl:l. had received a telephone···:.·,:-:'·~: ·. message identify_ing the. said J. Mwiba, as the holder et Passport 'No.··::' .. 33007; she.. did_ not communicate this information to the ~ir,pellijrit·. . So that there is no eviden~e to show that the: appellant had .. any . :.·. :_,: ,,;· more details or information about this customer_ apart from:·his ·name J. Mwiba which was written by P~ w.B on the PaYment- voucher.· Then if Jameson Mwiba presented himself and his passport and· _clairned t-o be the_payee, the appellant_ was bound to_.. ~g~~e because_ he _had no·- means of checking such claim. Because. the surname was the same (Mwiba) and he had no_ means of discovering that J. in the p·ayment·· v·oucher stood for JµHus. and not Jameson. Nor did he have ··the ·.;'·.·. means of d{scovering that the passport and the photograph thus· presented to him were different from those of the rightful ·&l'aimant •. Thu~f even if it is acc.epted that it is the appellant who ~ide'" t'he "·.:·· endoJ•sement on the back of the payment voucher as to the id8nt~ity>: _: r,: of the ·payee, to my mind this would not be sufficient to establish his guilt because he maY have done so in pursuance Of what Jame·son M~i ba told him. In other words ii' James on Mwi ba we re called one carinot .be certain what

he would sat; he might very well have said that it is he who identified himself before the appellant and duly received the money,. which would go a long way to absolve the appellant. One cannot rule out that possibility and in the light of such a possibility the appellant's guilt on all or any· of the three counts cannot be said to have been established beyond a reasonable doubt. · For these reasons I think that it would be unsafe to allow the ;conviction to stand. Consequently the appeal is allowed, the convictiQn and sentence· on all the three counts are set aside and the, . a_ppellant is to be released unless otherwise lawfully held in cust·Ody. Dar es S,a laam·, f<Jlt/ t/~NV',. ·. (R.H. KISANGA) 22nd November, 1977 ... Appellant absent unrepresented •.

JUDGE Mrs. F.G. Mlay - State Attorney for the Republio.