Msumi, J.:In the District Court of Mtwara the appellant, one Joseph Mapema, was charged with a total of 67 counts H under the Penal Code. These consisted of 22 counts of forgery, 22 counts of fraudulent false accounting and 23 counts of stealing. He was convicted and sentenced on all counts. This appeal is against both convictions and sentences.
I First let me dispose of appellant's complaint that the learned trial District Magistrate refused him adjournment of the case so as
A to enable him to contact his advocate. In other words the appellant is submitting that the trial court deprived him of his right to be legally represented. This is a weighty and serious allegation. The importance with which courts attach on the right of an accused to be legally represented was clearly demonstrated by the High Court of Uganda in Yusufu Gitta v. R. [1957] E.A. 211 at p.213 when it said: B
Every accused has the undoubted right to be defended by counsel. Galos Hired and Anor v R. and Kingston v R. regarded as authority for the proposition that if an accused is deprived of that right through no fault of his own and through no fault of his Ccounsel and a conviction follows, the conviction will be quashed on appeal.
D This observation was quoted with approval by this court in Joshua Nkonoki v R. [1978] LRT n. 24. Going by the record, what happened in the present case is that after several adjournments which lasted for over ten months the case was fixed for hearing on 16th June 3, 1980. But when the case came up on that day appellant was absent; and for the E first time the court learnt from his wife that he had gone to Dar es Salaam to arrange for an advocate. The case was thus adjourned to 3/7/1980 for mention. On that day appellant appeared with his advocate one Mr. Putika. Then it was mutually agreed by both the learned State Attorney and the learned Defence Counsel that the case should be fixed for hearing on 1st September, 1980 - i.e. about three months later. But without even the least courtesy of communicating F with the court, the learned defence counsel unilaterally absented himself on that day. Meanwhile as on the previous hearing day, almost all prosecution witnesses, including those coming from outside Mtwara Region, had turned up. G Appellant, who was then serving a six month jail term for jumping bail asked for farther adjournment to sometime in January the following year when he would have completed his sentence and hopefully be able to arrange for legal representation. The learned trial magistrate refused that application. With respect, I would not have done otherwise. H
Whether or not to grant an adjournment of a trial is a matter within the discretion of the court; of course like all other discretions, it must be exercised judiciously. In this case, appellant had more than enough time to look for an advocate; in I fact he managed to get one. In refusing the appellant's request, the learned trial magistrate
A quite rightly pointed out the fact that no reason whatsoever had been communicated to the court why the learned defence counsel did not turn up. If I may be permitted to add that from the trend of the case, it is doubtful whether appellant would have been able to persuade Mr. Putika or any other advocate at all, to defend him even if his request for B such unreasonably long adjournment had been sustained. In the circumstances of the case I think the trial magistrate exercised his discretion quite prudently. In any case, the root cause of his failure to secure legal representation lies right within the exclusive precincts of the appellant himself and his, if I may respectfully be permitted to call him, carefree C advocate. I think I have said enough on this general complaint; let me turn my attention to the main aspect of this appeal.
The undisputed facts of the case were that the appellant was employed by Customs and Excise Department as an Accountant-Cum-Cashier. In the broad term, his work entailed the collection of sundry customs duties from various D clients. And for this, appellant constantly maintained the following books of account: Petty Cash Collectors Receipt Books, Revenue Cash Collectors Books and Bank Paying in Slip Books. The assessment of these duties were being done by other customs officials who were required to reflect the amounts due in what are called "source documents" E which included Sales Tax Entries and Import Duty Entries. Thus appellant was supposed to collect from the customers the amount of money shown in the respective source document. In acknowledgement of these payments appellant issued the customers with the original copies of the cash collectors receipts. The duplicate copies were attached (glued) to the F respective source documents; the triplicate copies were sent to the head office in Dar es Salaam, and the last copies i.e. the quadruplicates were retained in the receipt books which were kept here at Mtwara for office reference. Then at the G end of each day appellant was supposed to enter into Revenue Cash Collectors Book all the collections made on that particular day. And all the money so collected entered in the Revenue Cash Collectors Book was to be banked by the appellant by using Official Bank Paying in Slips. H
It is contended by the prosecution, and disputed by the appellant, that on various dates appellant altered the triplicate and quadruplicate copies of various cash collectors receipts by inserting in them less amount of money than what he had actually collected as reflected in the original and duplicate copies. And furthermore appellant failed to account for the I differences in these collections
A because in the respective Revenue Cash Collectors Book folios and Bank Paying in Slips he reflected the lesser amounts as inserted in the altered triplicate and quadruplicate copies. These allegations form the basis of the offences of forgery, fraudulent false accounting and stealing by public servant on which the appellant was convicted.
B Starting with the forgery counts, the alleged alterations are said to have been made on both triplicate and quadruplicate copies of collectors cash receipts. However, the only copies made available to the court were the quadruplicates which were retained by the collecting office at Mtwara. For unknown reason, none of the corresponding triplicate copies which C were supposed to be at the Customs headquarters in Dar es Salaam were availed to the court. It appears prosecution is assuming that since the obvious reason behind these alterations was to enable the appellant to pocket the differences between the money shown in the original copies and the lesser sums shown in the quadruplicate copies, it necessarily D followed that similar alterations were inserted in the triplicate copies in order to smoke-screen his fraud from the eyes of the auditors at the head office where the said triplicate copies were supposed to be checked for reconciliation of the appellant's account. With respect, appealing as it may sound, such reasoning has no room in criminal law parlance. E Whereas it may reasonably be assumed that appellant made some alterations in these triplicates, it will be taking the assumption too far to hold that those alterations are similar to the ones appearing in the quadruplicate copies. For this reason it would have been prudent if the prosecution had confined their allegations to the quadruplicate copies only. F However, this irregularity notwithstanding, I am of the opinion that appellant has not been prejudiced; he sufficiently knew the nature of the offences with which he was being charged. I think this is a justifiable situation for invoking the provisions of section 346 of the Criminal Procedure Code. G
Apart from the aforementioned irregularity, it is axiomatic that appellant fraudulently altered the quadruplicate receipt copies by showing less amount of money than what he had collected and reflected in the original copies. Evidence shows H amply that it is the appellant who made these alterations. One of the grounds of appeal advanced by the appellant is that prosecution ought to have called a handwriting expert in order to prove that the handwriting and signatures in these offensive quadruplicate copies were those of the appellant. It appears that appellant is no better than the majority of I laymen in harbouring the common erroneous view that the
A authenticity of a disputable piece of handwriting can only be ascertained by professional observation of a handwriting expert. That is not the law. For the purpose of enabling a court to decide the author of any piece of handwriting in dispute, the opinion of a person who is conversant with the handwriting of the disputing author is as good as, if not B sometimes better than, that of a handwriting expert. In any case, Section 49(1) of the Evidence Act makes admissible opinion evidence of handwriting by anyone acquainted with another's handwriting. Sub-section (2) provides that for the purpose of sub-section (1) a person is said to be acquainted with the handwriting of another person when he has seen C that person write, or when he has received documents purported to be written by himself or under his authority and addressed to that person or when in the course of ordinary business, documents purported to be written by the person have been habitually submitted to him - see R. v Kundansari [1970] H.C.D. 273. Conscious of this provision, D prosecution in this case called as one of their witnesses one Fiden Hussein Rajabali (PW7) who among other things, testified that he was conversant with the handwriting of the appellant and hence identified that the handwriting and signatures in all the quadruplicate copies in issue were that of the appellant. As a basis of his acquaintance with the E handwriting of the appellant, the witness told the court that as the owner of M/S Abassi Clearing and Forwarding House he had close working relation with the appellant since 1978 when he was transferred to Mtwara. And for the whole of that period the witness had seen the appellant writing and signing various documents; and he had seen and dealt with F various documents written and signed by him. In the course of preparing this judgment I went through, leaf after leaf, all the quadruplicate receipt copies retained in the ten booklets produced to court as exhibits. Each booklet contained 50 G quadruplicate copies and for the ten booklets, I have found out that a total of about 60 receipts were issued to M/S Abbas Clearing and Forwarding House, and they covered the period between December, 1977 to September, 1979. No doubt this fact adds weight to the witness claim that he is quite conversant with the handwriting of the appellant. If I H may boldly say that in the particular facts and circumstances of this case, the opinion of this witness is more dependable than that of a handwriting expert. I am thus convinced, like the learned trial magistrate, that the handwriting and signatures in all the quadruplicate copies in question are those of the appellant. I
Let me end my discussion on these forgery counts by saying
A that all the altered quadruplicate receipts are false documents as defined by law. The effect of these alterations is, as is commonly said, to make them tell lies about themselves. On the mere look of them one gets the impression that each of them is a copy of the respective original receipt and that all what is contained in each of them is substantially the same as B that contained in the respective original copy. In other words these quadruplicate receipt copies do not merely contain some false information but they also purport to be what they are not. This is what is technically known as automendacity.
C Now turning to the 22 counts of the fraudulent false accounting; it has come to my notice that the allegation in support of all of them is the same as that on which the forgery counts are founded. For just as in the forgery counts, the particulars of the offence for all these counts are that appellant fraudulently altered the quadruplicate copies of various cash collectors receipts by showing less amount of money than that which has been collected and reflected in the original D copies. What the prosecution is trying to do here is to charge the appellant with two separate offences but both of which are based on the same set of facts. This is wrong; it offends the well settled rule of principle against double E jeopardy as entrenched in section 48 of Interpretation of Laws and General Clauses Act, Cap. 1. The section provides:
48. Where any act constitutes an offence under two or more acts, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of such Acts, but shall not be liable to be punished more than once for F the same offence.
Provision similar to this is embodied in the Kenyan Interpratation and General Provisions Act, Cap.2 as section 63. The G High Court of Kenya, whose decisions are of high pursuasive value to this court, had an occasion to consider this provision in Muiruri v Rep. [1973] E.A.86. In that case Trevelyan, J. was of the opinion that the provision did not only prohibit double punishment, but also double conviction. In other words where a person has been convicted and H sentenced on two or more offences all of which arise from the same set of facts, an appellate court is bound to quash both conviction and sentence on the superfluous count. With respect, this view is consistent with both law and common sense. Confusing as section 48 may seemingly appear, it would amount to compounding this I
A apparent confusion if courts were to hold that the section prohibits only double punishment and tolerated double conviction. Such absurd interpretation cannot be imputed into the sober minds of our legislators.
Thus reverting to the present case, it was wrong for the trial Court to convict and sentence the appellant on both forgery B and fraudulent false accounting. In fact I have been unable to think of any situation in which a person may conjunctively be charged with forgery and fraudulent false accounting. Just as it is not proper to charge a person conjunctively with obtaining by false pretences and cheating; or receiving stolen property and being found in possession of property C suspected to have been stolen, the same applies to forgery and fraudulent false accounting. The common practice in such situation is to charge the accused in alternative counts. Of course once accused has been convicted on either of the alternative count, no finding should be made on the remaining one. D
It is obvious that in this case the convictions and sentences on the forgery and fraudulent false accounting counts cannot legally coexist with each other; either forgery or fraudulent false accounting has to be quashed. The question then is which one is to give way to the other. It appears that the normal practice is to uphold conviction and sentence on the E graver count. For the following two reasons I am of the opinion that fraudulent false accounting is more serious than forgery. Firstly, whereas the maximum penalty for forgery is imprisonment for seven years, it is fourteen years in the case of fraudulent false accounting. And secondly to constitute fraudulent false accounting, it must be proved, among other F things, that the perpetrator did the alleged offensive act with intent to defraud; whereas in forgery an intent to deceive is enough. These two terms i.e. an intent to defraud and an intent to deceive have different meaning; the former importing G graver criminal sentiment than the latter. Thus in Re London and Globe Finance Corporation [1903] 1 Ch.728, Buckley, J., defined these terms as:
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit H knows and believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his own injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action. I
A Hence guided by the general principle that the more serious offence outlives the lesser one, it follows that in this case the 22 counts of fraudulent false accounting must be sustained at the expense of the forgery counts.
Except for the last count, the evidence in support of the remaining 22 counts of stealing by Public Servant is grave and B weighty. The pattern of the appellant's device in all of them is consistent. On various occasions, appellant collected some money from customers and issued them with official cash receipts. But on each occasion he accounted for, and hence banked, less amount than what he had actually collected. He failed to account for the differences of which he was C charged with stealing. The allegation has been supported by the relevant collectors cash receipts, revenue collectors cash book folios, Government Paying in Slips and some "source documents," namely Sales Tax Entries and Import Duty Entries. But it is different with count 67.
D The allegation in this count is that between 29th day of May, 1979 and 24th day of September, 1979 appellant is alleged to have stolen a total sum of Shs.18,404/25 the property of the Government. The only evidence available in support of this allegation is that of one Simon Mukoma (PW14). It has transpired in his evidence that he is employed by E Customs Department and at that time holding the post of Senior Accountant and stationed at the head office in Dar es Salaam. Consequent to the report which led to this case, the witness came to Mtwara and audited the books of account which were being maintained by the appellant. He specifically checked the period from 25/5/79 to 24/9/79. After F totalling all the collections on one side and the amount of money which was either banked by the appellant or by the customers themselves, plus cash and cheques found inpossession, the witness found out that Shs.18,404/25 had not been accounted for. This is the sum of money which appellant is alleged to have stolen. But apart from showing that there was G such a shortage of shs.18,404/25, there is no evidence whatsoever which suggests that this amount was fraudulently converted by the appellant. In a charge of stealing, like the present one, it is not enough for the prosecution just to prove general shortage. All the four customs officials who gave evidence on this count viz. Mathew Kihio (PW1), Analius Mpili H(PW2), Nicetus Mrema (PW4) and Simon Mukoma (PW14) complained that the appellant's books of account were not kept clean and up to date. For example some of the collections were not entered in the Revenue Cash Collectors I book. When on 24/8/79 appellant was ordered to hand over all the
A money he had, he was found with about Shs.9,000/= cash and cheques. But four days later i.e. on 28/79 when PW2 checked him farther, a total of Shs.1,020,615/= both in cash and cheques were recovered from him. There could have been no clearer evidence than this to confirm that appellant's books were really in shambles. In such situation it is likely that the alleged shortage of Shs.18,404/25 might have been more apparent than real. In any case, it is hard to say with B any amount of certainty that appellant stole this sum; if anything I think it is just a shortage arising out of unsatisfactory manner in which appellant maintained his accounts.
C Bearing in mind that the total amount of money alleged to have been stolen is well over 60,000/=, as a whole I think the sentences imposed are but extremely fair. The substantive jail term of six years is well merited in the circumstances of the case. But after sentencing the appellant to the various terms of imprisonment which ranged from one year to the maximum of six years, the learned trial magistrate made the following order: D
Order:
The Republic to recover loss of money from the accused through a Civil Suit". E
Judging from the ranges of jail terms imposed on the 23 counts of stealing by public servant one is left with no doubt that the learned trial magistrate was aware that he was dealing with a case which fell under the Minimum Sentences Act. It is F thus surprising that the clear provision of section 7 of the Act escaped the magistrate's mind. The learned trial magistrate ought to have known that under the Minimum Sentences Act it was mandatory for him to order the appellant compensate the Government the total sums of money which he had stolen - see Republic v Ruth Mgitu [1975] LRT G n.14. Hence his order which purported to advise the Government to institute civil proceedings in order to cover this money is glaringly illegal. It cannot be sustained. Excluding count 67, the total amount of money which appellant stole is shs.60,128/50. Since this money belongs to a specified authority as defined under the Minimum Sentences Act, H compensation order for the same is but mandatory.
In the final analysis therefore, appeal on all the 22 counts of forgery and count number 67 of stealing by public servant is allowed and thus convictions and sentences on all of them are quashed. On the other hand appeal on all the 22 counts of I fraudulent false accounting and the remaining 22 counts of stealing by public servant
A is dismissed and thus appellant is to serve the substantive jail term of six years. The order advising the complainant to resort to civil proceedings in order to recover the money stolen is set aside and instead it is hereby ordered that appellant to compensate the Government of United Republic of Tanzania a total of Shs 60,128/50 being the amount of money which he had embezzled. B
Order accordingly
D