19960605 TZHC Dar es Salaam4

IN•THE HIGH COURT OF.-TANZANIA AT DAR ES SALAAM APPELLATE JURtSDICTION HIGH COURT CRIMINAL APPEAL NO. 75 OF 1995 (ORIGINAL CRIMINAL CASE NO. 488 OF 1993 OF THE HIGH COUR"T OF MOROGORO DISTRICT AT MOROGORO BEFORE LUGAZIYA Esq. RESIDENT MAGISTRATE) VASCO MAKANGE .................................... APPELLANT VERSUS THE UNITED REPUBLIC .............................. RESPONDENT J U D G E M E N T 1 . KALEGEYA, PRM WITH EXTENDED JURISDICTION . Before the District Court of Morogoro District, the Appellant Vasco s\o Makange, was charged with 9 Counts of Forgery c\ss 333 (b), 373 and 9 counts of stealing by Public Servant c\s 271, all of the Penal Code. At the end of the trial he was duly convicted on all the 18 counts. For each of the forgery counts 3 years imprisonment was meted on him while for each of the stealing by servant counts 7 years imprisonment was imposed. The sentences were. ordered to run concurrently. Bitter about the convictions and ~entences the Appellant tried his luck with the present appeal., In his memoranda, the Appellant c,hallenges the trial Court in arriving at" the finding it did by saying that once it appreciated and condemned the rotten system existing at Mtibwa sugar Estate a~ regards payments, which system provided also a loophole for theft it should not have convicted him as nobody else but the "big authorites were concerned" and that if anything they should have been charged with negligence c\s 285 Penal Code; that the witnesses including the cashiers and suppliers of various provisions to Mtibwa Sugar estate Guest House had been tutored by the- Police to fix him; and, that the trial court misdirected itself in rece1v1ng and believing a statement purportedly made by him as a confession as he was brutalised and forced to iign _various statements which were not read to him. Miss . Mkwawa, learned State Attorney, for the Republic\Respondent, responding to these submissions insisted that save for counts 15 and 16 in which it was not proved that 2 Appellant, actually forged or uttered the documents on 19\3\93 for 180 bottles of Jik worth 88,500/=, the rest of. the counts were water-tightly proved and prayed to have the appeal on the same dismissed. Uncontroverted facts of this case are simple and run as follows: Mtibwa sugar Estate owned a Rest house which could accommodate 12·guests at a time. For the basic provisions for use by guests order~ were being pressed fr6m various suppliers. These basic provisions included, among others, JIK, tomato paste and chicken. In June, 1993, PWl (Protase Anthony), the Rest House Manager\Supervisor, going through the records on his computer discovered disparity between the monies paid out by his office and actual sums claimed by suppliers as per their supplies. The documents revealed that fake payments had been effected in that figures on the original differed from those displayed on duplicates. I should pose here and state that although the prosecution confuses the n~ture of documents used, interchangeably calling them "receipts", "memo", "Payment Voucher", for the purposes of showing the loss which occurred I will in the following paragraph resort to the word used in the charge sheet -"Receipt" (I will have an occassibn to comment on this later). For fake payments the following was discovered - the Nos are for receipts, followed by the date when it was made while the figure in bracket at the end, is the sum in excess and stolen after forging necessary documents as compared to actual order: No. 24757 dated 4\1\93 for 100 bottles of JIK worth 30,000/= instead of 10 bottles worth shs. 3000/= (shs. 27,000/= counts 1 and 2); No. 24758 dated 4\1\93 for 100 bottles of JIK worth shs. 47,500/= instead of 10 bottles of JIK worth shs. 4750/= (shs. 42,750/= - counts 3 and 4); No. 24769 dated 2\2\93 for 300 tins of tomato paste worth shs. 210,000/= instead of 30 tins worth shs. 21,000/= (shs. 189,000/= - counts 5 and 6); No. 24771 dated 4\2\93 for 220 chicken worth shs. 132,000/= instead of 22 chicken worth shs. 13,200/= (shs. 118,800/= counts 7 and 8); No. 24783 dated 22\2\93 for 100 bottles of JIK worth shs. 85,000/= instead of 18 bottles worth shs. 8,550/= (shs. 76,950 - Counts 9 and 10); No. 24793 dated 17\3\.93 for 260 chicken worth shs. 156,000/= instead of 26 chicken worth shs. 15,600/= (shs. 140,400/= - counts 11 and 12); No. 24800 dated 22\3\93 for 250 chicken worth shs. 150,000 /=· instead of 25 chicken worth shs. 15,000 / = ( shs. 135,000/= - counts 13 and 14); No. 14553 dated 29\3\93 for 180 bottles of JIK worth shs. 85, 500/= instead of 8550/= ( shs. 76j950/= - counts 15 and 16); and No. 14589 dated 25\4\93 for 180 bottles of JIK worth shs. 90,000/= instead of 18 bottles worth 9000/= (shs. 81,000/= -counts 17 and 18). The Appellant, described by PWl as the Mtibwa Sugar Estate "Rest House Clerk", (which title was supported by PW2, an Accounts Clerk; PW3 and 4, Cashier and Asst. cashier respectively all working with Mtibwa Sugar Estate) was undisputedly the said ,. ·- . / •. . 3 Rest ·House's Attendant and used to press orders for 'various requirem~nts a~d_present claims fro~ the,suppllers there after. From here matters stand disputed. The prosecution contended that Appellant used to press orders to.suppliers; receive claims from them; present the same to PW1 who would sign and send them to Acountants for counter-checking. The documents would then be sent to cashier who would pay the. Appellant for onward transmission ( of the received monies) to the suppliers. The Appellant disputed being a clerk but m~rely an Attendant .to the Rest House; disputed receiving any money on behalf of suppliers let alone ever :paying them, and maintained that his duty ended at presentation of the documents to Store Keeper. In convicting the Appellant the trial Court defined what the word "Forgery" means in law {properly cited George Walter and 2 Others Vs. R (1980) TLR 313 and Mbande v R (1971) EA 553) which indeed fit the situation here, of causing documents "tell lies about themselves"; believed PWl - 8, {Supervisor, cashiers and investigator) that Appellant had been given more powers. ordinarilly not conferred on a Rest House Attendant ie. preparing document~ and receiving money on behalf of Suppliers and that actually he received the monies; concluded that the forged documents contained Appellants' signature; discarded Appellant's claim that his peers including cashiers were suspects and ended by saying that his statement given to police and in which he : .con£ essed the offence was not attained through coercision or related. The tr'ial court castigated the procedure pertaining at the said Estate as regards payments. While I will look at the first ground of complaint raised by ;the Appellant (para. 2 of this judgment} generally in accordance with the evidence tendered and the charges framed; grounds 2 and 3 have to be disposed forthwith. The Appellant's argument that PWl-7 were tutored to give evidence against him is without base as there is not a slightest pointer to this· allegation. While it does not ryhme with reason that the Guest House Supervisor (PWl), the cashiers (PW2-4) and the suppliers could all in this transaction, have a common goal, say stealing the money, otherwise PW1 would not have revealed the I • incident, nowhere in cross examination of any of the said witnesses did Appellant raise, let alone suggest, thaf he harboured this in his mind. As regards the alleged "statement 11 , · .(2nd para supra) I am really at a loss, for, though Appellant' referred to it in his defence and the trial court did the same in its judgement thus, "Lastly, I may mention the cautioned statement attributed to the accused, which he velernently sought to deny. I am far from being convinced ·that ~ame was obtained through medium of force . .. ' . . ..... .. 4 This -is ,man.if estly an ·af ter.:...thought and there was no evidence adduced to establish the claim. The .. accused had not been very wise to keep this fact ., to himself when the investigating officer was testifying. He should have put him to task on the matter. The Court does not countenance an attempt to take advantage of a witness's absence to attempt to make scores", there is no where in evidence of PW8 (investigator) where the same is referred to. It was not tendered as Exhibit; it was not read over iri Court let alone being referred to. The only part of· evidence by PW8 which can be said to give us just a flick of light that.possibly Appellant told PW1 something, in the course of investigation, lies just in the following words, "The accused admitted to have written the invoices and to have received the money". How and when was, eveft this, allegedly made by Appellant remained in the mind of the investigator. How the trial Court came about the alleged statement, and consequently the Appellant, remains a mystery to me. If evidence was given on this at all it was not recorded. I uphold the Appellant's complaint on this, not on the reasons he advan6~s, that the statement was obtained by force, but on the different ground that it never existed, at least as per proceedings. ·rt was indeed a misdirection on the trial . court's side to consider matters not produced during the trial, and it seems it had a lot of bearing on the trial magistrate's mind as he settled on conviction. Now, on the 1st ground of App~al. Indeed, as rightly commented upon by the trial court, the system of processing payments to the suppliers of various provisions at this Estate left a lot to be desired. I agree as found by the trial.Court, that the payment system here deplorably leaked: it started with the pressing for supplies; followed by •· receipt of claims from suppliers; scrutiny(!) of the relevant I documents by a ·string of officials (Rest House Manager, Accountants) up t6 the cashier BUT by the time th~y reached the _paying point only 6ne document, original, and nothing more would be the basis for payment! I should .hasten to add,· however, that the existence, of.this weakness in the system notwithstanding, contrary to the Appella_nt 's contention, if evidence proves that he used this as a loop-hole to steal he can't rely on this per seas a defence. All the forged documents indicate that jusi one digit was 1. being added as between the actual claim and a fake one - thus "10" would be "100", "3000" would be "30,000", "2100" would be "21000", "4750" would be "47500", "30" would be "200"; "22" would be "220", "13200". would be "132,000"; "8500" would be "85000"; "15,000" would be :"150,000" and so, on. It would seem additions 5 would be inserted after all the necessary signatures had been secured - when the documents would be ready for payment. It is obvious also that the documents would contain enough space to accommodate one more digit (fake)!. This could be by author's design or accidental, and this is where the Appellant argues of negligence by all those concerned with approval and payment, for diligent involvement would not have allowed this "hole" unless they are accomplices, nor, as the trial Court rightly wondered, could payment be made on the basis of just one document, original, without duplicates. Thus we have three possible theories as to how forgery and theft were perpetrated:- (a) One, the Appellant, accidentaly left the "one digit space", and the cash office discovering this just filled up the difference, after paying Appellant the actual sum as per order and which he duly paid to suppliers. or, (b) TWO, the Appellant, by design during preparation, left the space in his documents, filled them up after securing all the necessary signatures, and Cashiers paid him on the face value of the originals upon which he paid the suppliers their dues and pocketed the difference. or, ( c) Thirdly, it was conspiracy between Appellant and others, but obviously including the cash office, and they shared the loot. Now, whicQ one has been established by the evidence? Before going further f should at this point, comment on the description of the documents used and who was preparing what, for we have to esta~lish who was making the forgeries. PWl in his testimony said, "After the goods are received by Juma Mahamba, the accused prepar~s the payments on getting a note from me. Then I cross-check and the bill is also checked by the head of administration. From there it goes to the Accountant before it is sent to the cashier for payment. The accused brings the money and pay out to the claimants. I retain a duplicate of the PV". Juma Mahamba was said to be a store keeper who simply received various supplies. He did not testify. PWl ~oes not end there - at another stage he says; "I scrutinised the following memos ........ . ........ (1) No. 24757 ........ . 6 (2) Receipt No. 24756 The receipts were by the accused th~t is his handwriting which I got used through.my long working relationship with them". · From this witness it is not clear what "note", "memo", "bill", "receipt" or "PV" means. Indeed it. does not disclose, apart from the "note", which dodument was being prepared by Appellant and whether "Receipt" and "PV" are synonymous! The situation is not salvaged by the cashiers ( PW2-3) either. PW2, an Accounts Clerk- says, "I prepare payments to the workers and other. iuppliers ................................ . I paid him (Appellant) after I saw a memo from the Rest House which was endorsed by my Seniors in the Accounts section. I saw his voucher which I had no reason to doubt. This chits come to me. One was No.24757 and ·the other was 24758. I paid him:though PV 9526. I prepare the PV after: I get the memo_._ ~he memo he brought sought Tshs. 30,000/= although the copy reads 3,000/=,- The Clerk ortly brings the original and I dont see the copy". I This witness confuses us further. Was he ~he one preparing PV or Appellant.? He is not definite. What PW1 called "receipts" he calls them iichits" (24757 and 24758) and there are the ones treated as receipts in the charge sheet and tendered by PW1 as Exhibits. PW3, another cashier, falls in the same chaos. He testified, "He (Appellant) presents a memo,_ one which has been endorsed by the Accountant . . . .............................. ....... . ' ,-,. After that I prepare a payment voucher. i .......................................... On 17th March .......... The accused came aqain with a voucher No. 24793". It needs an angel's gµidance to know from this evidence who prepared what between Appellant and PW3. 7 PW4's testimony does not take us further for she said, "He brings a voucher which is endorsed by ,, _ ~eniors. I prepare a PV. . . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . He brought receipt No. 14589 of 25\4\93 for 90,000/= ..... I paid him the money and he . s1gne d ... _. II • Apart from the vivid mix up as exemplified-by the quotes above the prosecution closed its case without making it clear which documents are lodged by suppliers to prove their claims although at one point PW5 said "on 4\1\93 I wrote the invoice", and PW7 in a short single sentence said, "I give them a delivery note". Although on some documents, the suppliers (PWS 7} Y testified figure wise on what they supplied none referred to his own document ie. invoice or delivery note. They were all testifying on ·,receipts', which from the above evidence the author was different. But for the Appellants' statement in cross • examination thus, "I wrote the vouchers and then I used to take them to the Guest House Manager. After that I take it back to the store Keeper who arranges for payment. I never went to the cash office ...... . I used to write voucher but I had never received any money apart from what is my salary" (and conviction stands on the strength of the prosecution evidence not weakness of the defence} the prosecution closes its case without pr·oving which document was being prepared· by who. In the present case the prosecution had to prove that Appellant was the author of the forgeries (inse~ting additional 'figures in the documents) and con~equently theft of all sums in excess of what was actually due. This duty was: supposed to be done on each cot.int as each forms a distinct of fence. In such cases of forgeries and thefts, which may form numerous counts, the prosecution should not rely on general proposition that the accused has been indicated to have been the c'ulprit. However strenous, evidence has to be established and led beyond doubt on, each count. Here the prosecution fell victim of the negative proposition (that possibly proving some of them or one count suffices) and the Court went head on tail with this current. The Court had the duty to analyse evidence count by count and satisfy itself that each· count was proved up to the standard required. Had this been done, it could not, in convicting, have drawn a wild conclusion "It is on the basis of a,11 these facts· that I find the charges against the accused satisfactorily proved". ( emphasis mine) . 8 As I already sai~, to prove its case, the prosecution should have proved that Appellant made the forgeries on the documents; presented the same for payment, and received money; paid the suppliers for their actual supply and pocketed the difference on each respective count. The prosecution sought to do this in the evidence of PWl, PW2 - 4 (cashiers) and suppliers (PW5 - 7). Unfortunately, as intimated earlier, this was not done and on some counts no evidence was led at all like counts 15 and 16 on which even the State Attorney did not support conviction. Let me demonstrate how. PWl as a Rest House Supervisor did strive to prove that Appellant was ·the author of the forged documents exh. Pl - 8 enumarated in para 6 of this judgement but as I have shown above he is not clear on which documents were prepared by Appellant. His evidence on this is there, clearly put, in the quotes above. Neither would his (PW1) statement in his testimony thus, "The accused would leave a big gap between the actual number ordered and the item described, so that after every payment was due, he would add some figures", and that the receipts (Exh.Pl-8) were in his own handwriting, suffice in themselves to establish authorship of the forgeries. For, even if we:believed that Appellant was the author of Exh. Pl-8, which pass~d all the scrutiny of PWl and Accountants it has to be water-tightly proved that no other person effected the "additions" thus inflating the sum to be paid, and of course, subsequent theft of the difference. The prosecution sought to prove the latter by calling in the cashiers (PW2 - 4). And these alone would not suffice either for apart from them being suspects it has to be proved on each item that the money was not received by suppliers. With this then we have to scrutinise evidence at hand for each count. PW2's evidence relates to only 4 counts: 1 - 4. He deposed that he paid Appellant shs. 30,000/= as per receipt No. 24757 (count one and 2·) and shs. 47,500/= as per receipt 24758 (count 3 and 4). Both ~eceipts were tendered as Exh. Pl cumulativelly. PW5, (Msuya), one of the suppliers deposed that he only received shs. 3000/= for 10 bottles of JIK as per Receipt No. 24757. The other receipt he testified upon - 24750 did not form any part of the charge! He was silent on receipt No. 24757. Thus on count 3 and 4, even if we believed PW2, conviction would not stand in the absence of any supplier to establish that he received less sum at the hands of the Appellant. I will return later to counts 1 and 2. The 2nd cashier, PW3, testified to have paid the sums of money as per Receipt No. 24769, Exh. P2 (count 5 and 6) 24783, Exh.P4 (Counts 9 and 10); 24796 Exh. P5 which is not subject of any count; 24800 Exh. P6 (Counts 13 and 14); 24771, Exh. P3 ·(counts 7 and 8). None of the suppliers (PW5 - 7) did testify on the said receipts. Only PW7 did testify of having supplied 22 • 9 chicken worth shs. 13,200/= and not shs. 132,000/= but he didn 1 t refer to any receipt. He gave the date as 30\1\93. These figures correspond with those in count 7 and 8 but the receipt referred to therein is 24771 dated 4\2\93 hence can't be said to refer to the .same thing. Again, clearly for the same reason, convictions on counts 5,6,7,8,9,10,13 and 14 can't stand. The prosecution had the armanents at its disposal but failed to use them! The next cashier was PW4 (Dibora Kijole). This one referred to only Receipt No. 14589 forming subject of counts 17and 18. She deposed to have paid 90,000/= to Appellant - the duplicates show that the actual claim was for shs. 9000/=. Again, as was the case with the counts indicated in preceding paragraph no supplier testified on 'this. Mr. Msuya (PW5) testified "on 25\4\93 I supplied nothing. Receipt No. 14589 shows that I supplied 180 JIK bottles. I don'~ - remember as there is no invoice 1' . Conviction on this count can't stand as well for the obvious reason. As for Receipt No. 24793 forming subject of counts 11 and 12, none of the witnesses testified on it, not even PW1. It doAs not form part of Exh. Pl - P8. It is not known how it came to be lumped in the charges. Naturally no conviction can stand on counts 11 - 12. ~ I have regretably to say that this case was poorly prosecuted - as demonstrated, the prosecution seems not to have grasped what it sought to prove and how. It is not surprising that even the investigator, PW8, of all the counts lie specifically referred to only 1 and 2 - of all the Exhibits (Exh.Pl-8) he r:eferred to only one, No. 24758 (Part of Exh.Pl). He talked generally on accused's guilt but, how, he didn't botber to inform the Court. This picture of non-committal on the side of the prosecution in the case can also be seen in the act of calling upon, the supplier, PW6, to testify on something not forming part of the charge - he deposed to have supplied steak but there is no count involving that kind of provision. Why call him in the first place! It has also buffled me that no supplier was called upon to testify on receipts forming subject matter of all counts save. 1 and 2: Even PW5, supplier, substantially was left to rumble .·in supplies not forming part of the charge! Without being ~inical the prosecution was as loose as was the payment system at the Estate! I indicated earlier on that I would return to counts 1 Rn<l 2. These are the counts, and the only counts, where the supplier, PW5, deposed to have received shs. 3000/= instead of 3000/=. Can we say that even this was proved beyond doubt? I showed above that there are three alternatives in which forgery and theft could have been perpetrated -Appellant alone; the cashiers acting on the loophole left by accused, and jointly - conspiracy. It is not of insignificance that the trial court was not sure over the cash office's· genuiness, for it stated, ifter convicting Appellant on all counts, "The matter of the possibility that the cash office had b~en in the conspiracy, and were not prosecuted, clearly falls outside the province of this judgement''. 10 Considering all that I have discussed above, ie. confussion in the description of the documents used; unclear revelation of what actually was being prepared by ~ppellant; existence of a possibility of cashiers committing the forgeries by themselves or jointly with others, all emanating from the prosecution's flop in its duty, it stands out clearly dangerous to justice to find a conviction on even the 1st and 2nd counts as the evidence at hand does not ~rove the offences charged thereunder beyond all reasonable doubts. I am settled in my mind that had the trial court analysed the evidence count by count, properly directed itself on the standard required in a criminal case, disregarded matters not given as evidence at the trial ie. alleged confessional statement by Appellant it would not have arrived at the finding it did. However suspicious the accused\Appellant was in the whole episode, the evidence tendered having fell short of the standard required, that is, proof beyond all reasonable doubts he was entitled to acquittal. On these premises the appeal is allowed. Conviction is quashed, sentence set aside and Appellant is to be released forthwith unless otherwise lawfully held . • AT DAR ES SALAAM (L. B. Kalegeya) PRINCIPAL RESIDENT MAGISTRATE. WITH EXTENDED JURISDICTION 20TH MAY, 1996 : r- . ·. 5:tl Jur.JE 1'1°1 (, Delivered today the ........................ . in the presence 'M.R. i M..v ,e. u /l.. £ -/· ........... State Attorney for of ............................ Republic\Respon~ent and presence\absence of Appellant. ) . PRINCIPAL RESIDENT MAGISTRATE WITH EXTENDED JURISDICTION {:/rv(96