Director of Public Prosecutions vs Tusuf Abdallah Masilamba (Criminal Appeal No. 81 of 1980) [1981] TZHC 2117 (3 February 1981)

IN THE HIGH C CURT CF TANZANIA AT TAI3ORA APPELLATE JURISDICTIGN (Tabora Registry) .: CRfl'INAL APPEAL NC. 81 CF 1980 CRIGINAL CRThIN,L CASE Nc.264 CF 1979 OF THE DISTRICT COURT OF URAMBO DISTRICT AT Uhf 30 Before: J. S. 1 wami 1 ,Esq., Senior ragistrate. THE DISTRICT OF PUBLIC PROSECUTIONS' •.... APPELLANT VERSUS TUSUFtI .At3DALLAH IeASILj}BA . . ............ RESPOND ENT C}L'..RGE:.Steaiing by person iriPublic Service c/ss,27C and 265 of the Penal Code. JUDGNENT MUSHI, J. This is an appeal bytheLirector bf Public Prosocu- ticms against thedocision of the District Court Urambo in which tho respondent was acquitted on a. charge of Stealing by a person employed in public Service:c/ss.270 and. 265 of thkepal Coda. .: The 'Republic complaint is based: on three grounds.:- Which are: (1) The learned trial magistrate ws.wrorig in' • holdiiig that there was no evidence to establish tht the respondent had infect received the money awhidh was the • subject of the charge simply because the 1 anager of the. National I'iiling Corporation at Urambo foiled to follow laid down procedure. • .(2) In any case, .th€re was independent documentary evidence to. establish that the respondent actually received 'the money. The Receipt (Exhibit 5) in which th respondent acknowledged the receipt of the rneney. P..W:..2 -(Mohated.Rajabu Muzelela) knew very well the signature Of the respondent wbich he identi'ied on the receipt (Exhibit 5). (3) The learned magistrate failed to consider the e'i.'jdence of P.W.2 which was to the effect that respondent had admitted receiptof the money before several people. . . • At tho'materia3. time, the respondent was employed.a ecretary of Kaisj Ujema Villa€e in Urambo area. The. prosecution, producd eviece in the District Court to the effect that the resonJent roceiyed Shillins 5,0001= from the N0tiol Y-tilling Corporation accor1ing to the

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• - . .- .; -- ,- •'-h-,. •.,,,.&,,,,,r 'A - + -+ - - (2) to the CVidence this money was an advance to Kasisi village for buying maize which maize was to be,deliverd to the National Milling Corporation. The principa1 witnass was P..1 - Juma amu1ikn, This P.'T.1 who was a Cashier with N.M.C. Urambo, told the court that be had first been transferred to 0 rar!tho and that he did not know the respondent. The i.itiss furth,r stated that he was,jflstructed by the N.i.C. 1 anager topsy cash to the resaonc'ent, stated thF;t after the Manager had instrudtad him to pay Shs.5 3 000/ to the respondent, the respondent filled in the request for an advance Form N004552 for Shs.5, 000 1 This form was filled before the witns and signed by the respondent. Both the original and the duplicate of this request for - advance form were produced in court during the trial. 1. W.1 1 then prepared a paynent voucher for Shs.5 1 000/ as requested by 'the respondent and requaste9 the respondent to sign the vcucher.as a receiver which the respondent really -did, After that the respondent issued a cash receipt No.574951 acknowledging that Kasisi village had receved the -ieount and the respondent signed as hatibu. The witn3'-i('that-'te reporidnt Sigiied all three docunts before himin his office. The witness .dentifiod the signatures in court, the signatures on - the receipt that the village had reÔeived hs.5,000/= from thi, N.L.C-. -was identified by the village chai±-man\ as that of the respondent. The village Chairman whO was 'P.W.2 9 said that to knew the signature of the respondent - v-try well. There was,further evidence by A. .2 - Mobamdd' rajahu Muzelel who said that be had been admitted in Tabors Eospital forsomotimo. - He sziio that when be 'ent baôk to the villrgc, the h"nager of N.M.C. Uramh,o went .tc tha village and told the Cheitma- (P11.2) that he had gone -to-collect thu maize which had been bought by the - bh.-, *5,CGC/= advance paid to the vJllsge. According to the evidence of £.1,162 1 at first te responcent,said the money was in th -safe bi.tt- later the es'pondent 'admitted to have spent the money for his own airs'. The respondent was then given over two months to roplae the money, but this did not mste-riljze. The matter was raporteO--to the Poljca, The responden't denjud the charge- n.d, stated that + accordint to the proàeuro, it is neccssay for the vilige to produce minutes of 'the meeting of,the committee before theycsn dol 'lect money frOm N.M.C. 1espondent further stated that th minutes ae sent to the Ujamas

(3) Cocperativo: : Ofjcer who counter signs before payment

• ild bb coilcced. The responentclñimed that the', docuaents produced in court had not been signed by the Ujaiaa and Cooperative C'ficer as required.. The learned trial magistrate in his judgment stated and I uote;- "According to the evidence of nW.i (the respon(lent) if follows that if even the accused Ws handed the money Shs.5,000/ it was illegal for to do so as he should have chocked first if oven such a request Was approved by the Ujdmaa and Cooperative Cfficer. These documeits exhibits 1, 2 anO 3 were not approved by the Cooperative ufficer and they bear no stamp of the Cooperative and Ujamaa fficer and they are not signed by the Co-operative and Ujarnaa Officer. • The accused denied signing these documents and denies receiving the money Shs.5,000/=. No specimen of accused signature and hand- writ'ing.were sent to the hendwriting expert for verf;ications. ; So no one cn. say vividly that it was the accused signature and hand- writingon these documents. The case has"not been proved. The accused is qcquitted and releasec". It is against,, this find that the D.P.P. is appealiig agctinst The main complainant as would appea' from the il grounds of ape1'•is that the 1'earned 'trial.magistrate did not conside,r the evidence of '.W.l and PW2 a make.. a findings rquiredy law. It would appear thet D.F.P.'s compla.inSñths substance. Reading.t'irou'h the. judgment of the le.axned trial magistrate it is'cleaT .tht the learned trial mgistrate did hot subject the while 'evidence jn•'o scrutiny ahd nalys1.,before coring for the conclusion. The trial magistrete just belie4.rcd the resionnt's•statQment without even stating any reasons for such coclusicn. Sectjor'.171 bf Criminal Procedure Code clearJycomrionts'thate'Very judgment should contain, and I quote the relevant pOrtion: •...'...."tind shall contain the point or point's for deterti'ination, the 1 ec i s ion there on and the reasons 'or .' (tinderlinjng mid:e). And the reasons mustb arrived at from the scrutiny and the aaa1rsis of 'the who.e evi .ence adduced by both the prosecutXon and the dcf ence. In this case, the learned magistrate' er'ed in not considering the whole evidence he'fcre •rriving at a ("eciSiOfl. In ttiq learned magistrate's' judgment, he accepted the defence 5.cause, the monoy was paid without following the estc,h1is1ed prcccdur'e which the trial magistrte said' was ; j • • •

Ji) (4) illegal. With respot, it is.notivorrectto. saly tb.t because mone.y was paid without fllowing the set prOcedu such transaction is illeaal. Illegality reiates to breaches of statutues. A mere bteach of procedures is not illegal ad certainly it does not render the transaction illegal to make it not enforceable in a court of law as the learned trial magistrate would seem to simply. Secondly the trial magistrate accepted the defence because the alleged signeturos were not sent for exaaination by a. handwriting expert for verficatien and without such handwriting expert report no body could say with certainity the Signatures on the exhibits were those of the respondent. I think with great respect., that the.learned magistrate misdirected himself on the none of handwriting expert opinion and the weight it carries with expert to the docurients under examination. The haiidwriting expert gives an opinion regarding the disputed writing. The court may aCcept his opinion or reject it with good reasons. Even where the court accepts such an opinion, the court uses such opinion to come to its own bonclusion of fact regarding the disputed writing. ecause as it was sttos in the case ofHassan Salumv.1epublic,(194) E.A.L.i. 126 and 1 .quote:- "The Imost that an expert on handwriting can properly say, in an.approprite case, is that he does not believe a particular writing was by •a iiarticular or, positively, that the••two writings are so similar to beindistinguishable".J.... This is in my coüsidereci 'view the roll of the handwriting expert. s in other areas of evidence, the best evidence is that of an eye witness. In this case P.P.1 stated that it was the respork0En who signed the documents produced as exhib'its incourt. PW.1 stated that the respondent signed the documents in his presence and soo.e of the copies remained with the ;itness while the other remained with the respondent anel both were produced in court, On this aspect of the signature P.J.2 also sttad that he recognized the signatures to be those of the respondent. P..2 was familiar with the signature of the resnondent because they were workirg together and he had seen him sIgn. PU.1 further sted that he paidhim Shs.5,000/= fo which the respondent acknowledged by signing on the voucher. i'uite clearly this witneso - PW.l could not have reista1en that the said docucecnts were the ones signed by theL respondent. Similarly, tated that. the respondent admitted before the

CERTIFIED TRUE C(TY OF THE CTINAL. ( (5) oittoo that he had infact collected the money from the National Iilling CorporatioL Urambo. From what I have said ai::'ove, it is clear that, had the learned tr$al meistrate sc::utinizeri and analysed the whole evidence, he would have fouad that Pb.l - Juma Kamulika was a truthful witness and that PW.l was able to identify and did identify the sLgnatures on the documents as that of the resr;ondents, consequenty the court would have found that the responcen -c coiiccd Sns ,OLO/=. That he had not supplied maize was unquestionable. Similarly the trial court should have found 1-'W.2 a truthful witness. As I have said it is abundantly clear that this appeal must be and it is hereby allowed. The acquittal order is set aside. This record is accordingly remitted to the District Court with a direction to convict the respondent as charged and deal iith the matter :ln accordance with the law. It is so ordered. Judgment read today in chamb:rs in the presence of lir. Chail * State ;ttorny.this 3rd day of February, 19 8 1. (Sgd.) 'N. M' hushi, Judge. 3.2.81