Samwel Mathew Kisa vs Republic (High Court Criminal Appeal No. 115 of 1990) [1990] TZHC 291 (20 September 1990)

. <·. i._ .. . . ' ~·t,· .. .,; . :· -J:. vr ,,;\·. i" ·, ~ .. . · t . . ~ • \ l ..(r, ' .. . . IN THE HIGH C0UHT OF i:):ANZANIA Kl! HBEYA: __ .#-J .... ---.. -· . ,. HIGH COURI' CRIJJDii~ .. )fFEAL NOll~ OF 1.9.2q Origin~ Crimina.l ··case No. 1) o:f 1988. of th0 Dist riot Court of Sumbnwa.nga Dist riot at S iwonga. BEFORE s.s •. MLWALE, Esq., DISTRICT MAGISTRATE~ \ . #" •1: SAMWEL MATHEW KISA 000000••000••••·•• .APPELLANT Versus THE REPUBLIC'_! !....-.. ... .o O • o • o O o O O O •. 0 0 0. a_ RESPONDENT$ JUD'.iEMENT .. ...__..... ... The a_.ppellant, one SAMUEL llATHEJ,J KISSA, was charged oofore the lower court n,."1Ci convicted of the offences of stealing· by agent c/s ·273 (b) uni 65 on the 1st count, and the offence of ma.king fa.lse document contrary to s. 335(d)(c), 333 and 337, all under tho Penal Code. The amount of money ivov'ed was sh~., 1 61 2 57 5L2Q, which was nppo;r'entl.y the property of -.eki Primary Coop._ Society, but was wrongly taken -to be the property of the CO·u;laina.11t,' one AD.I,MC1N s/o MHl\IKlfi\IDIMA. (P.oHol). . ' • . -f . . - • • • . - -The appellant was. then sontencc"d to two ars jail on the 1st count ' and one yea;r of imprisonment on the 2ri.i count., which we·re then ord.01."'0li to l"Ul1 concurrently. "''·In fact before the appeal had. been filed with this court, a revision had been ordered by this court as it had turned out that the sentence of two years jail imposed by th0 lower court in respect of the '1st co1:1nt I was below ·hhe prescribed minimum as provid.c·d for under the M.s.A. 1972 1 for it '· bccrune n.pparcnt from the record of the lower court that the money stolen was actually that of Mseki Primary Coop Society, assuch a specified autho,rity • n was then before the revision was disposed/"of that the appclln.nt came up with his appeal. ( a) In his memo of appeal his complaints can be summarized M foll.ows: . That the prosecution had failed ~o produce the list of villagers who had.- sold crops to the ·Coop. __ .cJcty on credit ·wt had not been ... paid of· whom'w the compia.inc;int,;; {PoWol)., ·,, ...

= 2 = .hat the evidence of the P.'·J.2, and P.W.3, should not have /been taken into account in etablishing the idel'itity of his I -· . . / signature on the d11plic6.te receipt No. 7146425 which wn.s said I I ( C) ';' ( d) to have_ n.·:signed by him on the ground th.at such pe;r-sons were not experts in ha.ridwri_ting comparison as to identify his signature. ,,.That there was no 2,,udited loss report that the money. in·,. question had ~tu...--:,lly "been stolen. That he did not mcke o.. false document oocause the p(n:;~on who issued the receipt to the complainant of which the duplicate copy is the subject of the charge on making a false document had been issued by the P.H.2 7 one Rose • . On, the evidence cs n, whole it was his submission that -'Ghere wns c.l!rlple evidence that 1,rent -to establish thcrt the appellant wc:.s the person who hod stolen the money in question purporting' to show tha"t the. complainant (P.N.1) had. be paid such wnount- of m(mey int"the sum. of ~~~!,.?l..s.275120 for his 25 bags ·of.beans which he hn.d. sold. to the Hseki Coop. Society on credit. This he ·-did by stgning r.s the payer on the duplica°t"e receipt::jT_.JlA6425, ·the original of which had been issued to the complainant (P.W.1) which- did not reflect such endorsem<,mt, al1d tha.t the appellant 1 s signa;turc on such. duplicate receipt was duly identified by the P. 'To2, ori.e Rose wi10 k:."lew the appellant's signature very wello Under circumstances, in 'terms of s. 49 of the Evidence Jict 1967 1 the P.H.2's evidence was relevw:rt D.l'rl therefore there was no need for c.. hr,ndwri ting expert:' compar:i.son report as demnnded by the appellant. , On perusal of the record of the triai ·.'court, I wn sat isficd -lihnt the following facts wore ;.1ot disented at. all. 1 These arc that tho appellant wns :the secretary of Mseki Primary Coop. Society, within Sum b,vrnngc. District• It is also common ground· -c.,at on 25/11/87, the complainant, :1e 1..DJ:MSON MWASIKUNDINGll: sold 25 bo,gs of benns vreighing 2{87 J<gs, 0 worth .i.3EL~~6.2,572L20 to 1i1seki Primary Cop;. Society, on credit. Tho a-ame were ·weighed and received by a clerk of the Coop •. Society; 9nc. ROSE d/o Kl.LIPESL (P.:·lc2) • .. She issued hi wit~ origi;1oJ. receipt No! 714,61?5 of even dt1.."to. Such receipt was not signed by nny body- as the: t:ieller hn.d. not bc0~ po.id for

.J = 3 = the bco.;.1S so sold. It wa.s t!1c: prtice thn.t only on payment for s'uch b0.:1.i.18 sold --i;;1n,t_ the original receipt so issued had to be produced iJ.lld signed by H is ·0.1s0 common ground·. thn.t on a rium ber of occasions t·he P.:·1.1 had prestmbod 1i.i receipt to. the appellant for p::-.y•- men-b of his money when he foulld l1im paying otl'ier pensants but the P.W.l W8.S refused. 311y payment untii sometime later when he was advanced only --~~s.o_0.0.9./2:, which was accordingly endorsed on ·the back of his origi;.1cJ. rcceip·b. 1 1 1 10 matter came to a. he Gil wl.1011 tho appellant prepared a list of pensa1rts whose crops had been sold -to r.isek-i Coop. Society. on credit bu!; had 110-t ;yet been paid. Tho nsJae of he 9ompln,i;.1ant (P.Wol) could no-; n:ppcar in such list. Thcreu:poi.1. -i;;.1.e P oWol went to complain to the Dist:rict Coop. Officer, the P.W •. / one _H.QWD M:OSEYONQOLq. That ·how0vcr, took the P.W.4 by surpris0.: For. it turned out that the du;;)lico:l;e receipt ::!o.71$425., -t;){o origncil of which had been issued ·i;o and w;;.s in the hands of the F. U. 1, sho.md that the mol'ioy cL1imed br t::w P. J .1 b.,:.d 1:een. paid to him, yut ti.10 orginal r0ce ipt showe_q,· no such . .. end.orsor.1ent. The- matter was ·i;lwn reported to the; police. 1';ccording to the P."1.2, oae R.OSJi- d/o IU.LIPESA 1 ,n.nd the P.1.3 7 oac LEOP.ULD s/o MAC1IE'l1A,, who was di;' -Lo material t imo of the incident <'.. , \ Coi, 1 J.1ittce member of Mseki Coo:t)• Socioy· dcntifiGd the signature of "J)_D,}l'A1: appearh1g on the duplicate receipt tS.--1.l as that of the app-..:lln.:;:1t, bu:i; could ,1.ot tell whose sign;::-,;i;ure of tile p...syee w::::.s. According to the P.:,l.6, 0;10 l:W.B. 5799 1/G MfJ}ALftJ1ALI, it a~)pu::i,rs tho.:i; l10 is the one who invostitv:i;od th8 case. He found, affiOi'.IB; .oti.1er ·bhat while the· signo:bi.re of the P...~~E. on the dupliqp,te l~o .•. ,7,1,-4:6,4?.2 was said to bo tLd of ti1e appclla;.1t, the complainan-1; doniod the signature of tho .P.~~cy_ 'rh8 2;:)j_1ella11t was found to ~ ·0: . .t.:.:i b ' . 1 ,.__ • ;"!!:• ooks w,u.c.1 ue kept in· .• f.l.afo. . ~"',,". L1 his defence tho appollo.::ri; ,:LS o.;)poaring in the duplicate recqipt/ :.iis. '. I parson who had_ custody of all r.:.:cci:p'l; · claimed that the name of tl1e complD,i:.1r.nt (P.W.1) hod been included ii1 -;;;_J.e list of peasants wl1o' had sold produce o;:1 I ' credit to ·tho Mseki Coop. Socio·i;y 1 and denied to hvc paid the cor,1::_:>18,i::1a;;.rl; ·

r,".• . (, . J ' r ; t .{ . '\•. ....- ,.-~ ·~ - .. . ~ *' ►,· -. , = 4 = for t:10 produce.: h& had sold.· Eo 0,lso den,ied the signature· ofAayer appoo.ri;ng on the q.up];icato receipt 11fo•l~~4§425, t0,)1a:y:o. 00011:his. In :tho· light .of the. ovidonce ·tllat was· adduced on both sides boforc , .. - tho lowe,r co.utj;_, I :?Jll sat?fiocl -:1at there was sufficint c;iyidenpe to : . . . . . . . establish tat t_hc appellant, 218.(). stolon tl10 ·money .:that was due ·to bcJ po.id to the complainant, the ? "'.-1. 1, by forging the duplicat rocoipt No. 7146425 so as to make it· a;p:ponr that the Polv.l had·roccived tho.1,,olloy 'for tho 25 bags of beans sold b;y .llim. As tho P.":-v.l did not, r.oceive suc1 . . . money a;.1d was st ill in possossicm of tho original rqccipt which had been issued to him when. ho so.ld -:10 bcQ:i.1.s on credit, and according to suc:.1 receipt no payment l1,as bpori. rnacle to him, it follows that so far us !10 is oonc0r11ed 7 MSEKI, Primary Coop. Society i~ st ill indobtotl to llim for s:1.61 7 5.7,5/2_0. Tho· money stolen was -ch0,.1. that of rilseki Primary Coop. SocfotJ. T::1cro is no doubt that to ·b.E}Oxtont-the appellants signature H1S W(.;!11 b1ow1 to .Voth the P.iT.2 o:.:i.o lOSE K.ALIPESA and tl1e P.W.3, one. UJOPOLD MACI2'.i"'f}. 1 A, ·i;hat wns sufficient cvidol1CO for the purposes of the ide;.Ti; ific-i;G io.n of ·[;J.JO D,)pellnnt 's sgnaturo as "G.:G author of tho .P.<?:Y.F2 signature appoarilG. on duplicate rnceip·;; }'.'o .•. 7,l46425. _That I as submit.tad br tho leo,r;.1ed State Attorney, rne0ts ·i;:.J.-J rec;,u:.remonts of .?.!(l) Qf tho Evid::.:i1oe Act 1967 as amended by Act No. 19 of i90o. It follows th8refore -~~-i; tl10 · a,;::,/oJ..t.'.:Ti; 1 s complaint that suc'. .. l idi.l:..ri;tfica.tion ought =to have bee;,;_ don.0 by only o.. :.1:md.writing· exp':rt is :<10t founcl.ed in law It is' acoo-rd.ingly rejected,. '1 1 10 complaint that thq list of :r .. amcs of tupid peasants in w;1ic;:1 -;.i.e no;no of the complainant had oou:, i:.1clded was not produced before tl!.O trial court hru!l' 110 woigllt a.t 2,il i;,1 v:.ow of the evidoncc of both t'.1e P.:tl.l 8.i'!.d PH.4. For it h: cleo;r froi,1 ·i;'..liJil;' evidence that it was upon fi:i1clLtg t1at , I his .:1amo had· not been included i::, such alleged list that tllc P. J .1 'NO:rli to conrolain to tho P.H.4. . \ ~ served no purpose. 'l'):m,J ·i/.\O product ion of such list would >.-:.vo 't· _.·, ; ;-'-1,:; · 1 1 1 :w, fact that _thoro had bocu ;:1q '.loss comp_lnined of; 1y Mscki Coo;;,. Socic:-y oofore the appollant e;·ot c:at>god witll the. offence in quest io1 is no oxouso for a clear fraudul01r dco,l a.rising from an obvious for5or,-. ·-·•'' '. •. . - ' •-' .. , .. , ...... ,ie,, .. · .: . .,,, ... { : ~ ~ .;;,,:. "'J;·· ~ -- ·" -✓. ,,· ' f :-;; lμ• t. ,.,~ i :,1 ' ~ ~),· . ·; .. j ~ .. . ,,· ·-11 !J 1\ iii I ;}

.,.,..}"'i;.:; ,. r{~I';- - \ ~! A 'I#>, ·" . ,j .. i· ,· ' :t. 1\ l: ~~:;'· 14. ·· r,,.. f. ~,.,,, ,,. (·• {::,. ;,' ){,-:!. iiAc • > :t·. t .t):, ;,·. !.. ·,. ~ .- ' t•h-~ · iL '<Jt ~ f l .., H. ~ ,; ~ i:r .. , .. ;-;, j . ' ::· .,:-,; I' '!,' ' ·~ ;,.r··· f~'. .t~~...- ·-t:~. ·-· ... ·½::··•.,.; \ = 5 = 'I'hc money could have been stole,:1. but repln..ced lu:tcr, c.."'lli yet thift coulcl still lrnvo c1mounted to thcf't, In the final a..'i"lalysis ,:,,s submitted by the learned stn:tc Attoraey, w)::-.ilo thG conviction of stoc,lint; by rgcnt cannot stn..'1d as tho money stolon w2a t:12,t of the appeJ.12).r~. 1 s employer, the Nseki Primary Coop. Society, such conviction io L0rob;r substituted with one of steali1ig by servant of c/s. 265 and 271 of t:·.:c Pcno.l Code. As tho money bGl011e-cd ·~o a specified autl10rity @d more tha.11 P,h,s,,5_q9_q/:.,, the scmtcnco of tHo yo2Xs jail on tllu first count is also substit1..rtcd with one of .!.1!:\J.,Y.O.i.'-;l':s,j~~~, with an order that tho CT,:-)!>CJ.li.:Zrii shall compensate Nsoki Prim;iry- Coop. Society tho sum of Sf1?..• . .9.l.,,.5.7.5/2 .2.nd. not tho, P.N.l as ordered by t~.1~ trial court. • On t~Hj other hand the P. W. 1 is u,- H led to pursue his, o lCJim for s_l}.s.~S_l, 1 .5...7,5J20 for l:is beans, from tho said :iisoki Coop., Socidyo rro this end, his ori,~L1.:J. rocoipt No.7146425 E:6i"bit P.,'... . · ' ~ .. . .,,. ........ ~ ..... sl10uld re returned to ldm to SU.j;>I)orl; b.is C loim, • 1 :Pb.0 conviction on 2nd cou::.tt is also hor0by upheld., ordingly tl1is ~:=~i;.. .. ORT -~ • .. o~,A, "/ ,~ ''\ ,' . '" > \ , fi.j \ Q,. . ' ? . ,¾'. 'fi' ·:r_' - ' "i ·. ;1/;:"•A I 1, ;· , · ;.- · t·• , D.J.tod ·2~/9 /99 i •· .. ,,', • .,, ·.,' .:·: \ / < J'-'- C..., ··, ~,.•. <•,•·:1 I'"'"

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• . '- . ..,..-----, .,;:,. ."' ,,,. -~ BJ .AN/ICIU,i. appocl must be dismissr:id in its entirety. . -lfl!t 1 r! 1h R.J .A. MWAI6u JUDGE ,.,._ __ __ ,;;)'. ·l-• -· i / t \ . '·-.·t .. -, . · :.i,,11tt-¥ri -.',,, ;·,;.;; i.,wi,' . - .,.. ·, .• :,,.{1, -·:·w.'" 'L , 1 ~•,·· . :i,,,tiJ.tff•°i.yt . . ~-tr'.d-· ·, · 1 ' rf: · · ,, :