19830902 TZHC Mbeya

• IN TEE HIGH COURT OF TZ.NIA

AT MBEYA j C8u11 -APPELUM JURISDICTION ' • (Mbeya Regis try) d4 CRIMINAL APPLAL NO. 77 OF 1982 ORIGINAL CRThIINAL CAS1! NO. 567 OF 1981 OF THE DISTRICT COURT OF IRINGA DISTRICT AT ThINGA Before: J. H. C. Masanche, .Esq, C.R. Magistrate JJOKATJNGA&2OTHJLRS. ......... ......AIPELLINTS

VERSUS THE REPUBLIC so, . REONDENT ____ 1st Ot: Conspiracy to Defraud c/s. 306 øf th PènI Code. 2nd Ct: Fraudulent fase accounting c/s. 317(b) of the Penal .Cøde. rd G.t; Forgery c/ss. 335 (a), and 337 of 'the, Penal Codej 4th Ct: Utteiing a false document clsb 342 of the PenaL Code. 5tk Cts obtaining by .fals'e pretences o/. 302 of the Pen2. Code. JUDLa'iT MUN YEAA , J' he three appellants and another person not in this appeal (4th accused) were charged jointly with five counts. 'Iii the i'irst bount all four were charged with conspiracy to defrand in the second count, the 2hd. and 3rd. appe1laits (as well as the 4th accused),. were charged with fridulent accounting. In the 3rd. and 4th counts the 1st appellant only ws charged with fo±'gery and uttering.- Lastly in the 5t1i count all four Were charged with obtaining money by false pretences.' It was tated that the first appellant was a contractor in 1rin.ga. The resi were workers of Ujenzi same place (two accounts and the 4th accused a tedhnician); The th.sis of the prosecution case was that the Ujenzi worker (the two appellailts, and the 4th accused) made LPO Nc4 C)L64.152 to the 1st appellant ostensibly requbing him to sup1y 650 trips of gavels to be spread over 'ItoriilMand.a road.. On strength of the LPO the 1st appellant submitted a bill for Shs.146,510/= and this was paid. to him by cheque No. D166671 dated 3/2/81. It

wa6 later discovered that ir fact no gravels were brought on that road- It was a fraud... Hence the charges. In their defence the first appellant argued that he had sent his tender for gravelling Itoni 'Manda road and he won. When he was preparing to send his tippers to the site the third - appellant, Henjewele,'cOntàcted him.• he told him he should not go to that road. Instead he was to go to Nduli - Rising. road.. So he did the work on that Nduli - Kizinga road. He delivered. .650 tri45s asper .thä i.P.0. • • .../2 • 4 (2) The second appellant argued that it was true he issued the LPO to the first appe11ant He signed it as a purchasing officer. The first appellant had to gravel Itoni - Manda road. .Ue also admitted to have signed the cheque for is.146,5101= payable to the first appellant. Re further argued that he did all this believing that the work had been done. In March, 1981 he was told that the work had not been ione. The thIrd appellant stated that i 2/2/81 the .LPO in question was sent to him for authorising payment. "lie orttnised: it and found it in order,, He authorised it.: On 3/2/81 the cheque for Shs.146,51O/ payable to the first appellant was also brought to him for signaturc He signed it. That was all he knew That is:to say he had no responsibility to know whether the gravels: were broight or"hot. The learned trial Chief 'Resident Iiiagistrate I considered the

evidenbe before him and arrived at the conclusion that the proseoution::had proved the case against ;the three appellants. iie Convicted them as charged (eèc'ept th .:3d. count of which .'e acuitted the first appellant) and entenoed them to various concurrent jail terms the highe't be.ng five years for the first appellant in the 5th count (the second and third aipellants bt four years each). The fourth acdused was acquitted of all counts. he three appellants brought this :appea.l and Mr. 'M wakflasa rep±esented +heiti,•' " '.' It is agreed that the whole prosecution case hnged on the evidence of Peter Linje (P1.7) who was the Regional Znginc6r of Ujenzi during the material time. In his evidenbe he denied that he gave the first appellant any contract to gavel Itoni I'!ianda road nor that of Nduli. - Kisinga (along Iringa - Dodoma trunk mad). That he visited these two sites and found no gravel put on them. The defence attacked this witness as a liar.. That: ±be appellant was awarded the contract and performed it as required The learned trial magistrate believed Linje (PW.7)' s evidence that no,,,wrk had. been done. This' witness, was the man responsible for seeing. that .works were done as required. If.it was true the fIrst appellant was duly awarded a contract and performed it therc was no reason why : the iitness should deny it. The first appellant 'd remarks that the Regional

Enginar (PW.7 against him because he (appellant) refused to offer what he called was .nothing more thanì the usual ".anguage of oriininals. IC t'eall,y he did.- the job he had ample 'tine to take independent people to the site and refute the claim of the Regional lngineer that no wo:rk was done. On the whole',the learned trial magistrate as right in accepting the evidence of the Regional Engineer. His finding that no work was done is fully supported. His claim that he had delivered 650 1rips of gravels were naked pretences. He was rightly convicted. As for the second and third appe11anta they admitted that they issued the LPO and the 'cheque. They knew the paree (first j. .j . . (3) appellant) had done no work. They conspired to defraud the Government. They were rightly 43onvioted., The appeal of the three appellants is dismissed in its entirety. (Sgd.) F. A. JviUNCERA, JUDGE. 2/9/83 ORDER: The sentences of four (4) years imposed on the second appe1lant Edward Muhone and the 3rd Appellant Michael Henewele were illegal becise the money involved belonged to the Government which is a speeified authority for the purpose of the M.S.A. The value exoeeded Shs.5,000/=, the minimum sentences should have been five years. I set aside the illegal sentences imposed by the trial maGistrate and subtitute thereof the sentence of five (5) years imprisonment each cij the appellant named above. At Mbeya, (Sgd.) P. i. I01RA, 2nd September, 1983 JUDG11. I certify that this is a trae copy of the original.. - "?t (Li. D2jch la) DIRlCT REGIRR IvL13E!Yh. 4