NICHOLAS ALFRED KIYABO v REPUBLIC 1987 TLR 59 (HC)

 NICHOLAS ALFRED KIYABO v REPUBLIC 1987 TLR 59 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

12 August, 1987 F

Flynote

Evidence - Credibility of witness - Documentary evidence - Signature on documents - A  person is seen writing - Whether it is necessary to call for handwriting expert or someone acquainted with the person's signature - S.69 of Evidence Act.

-Headnote

The appellant, an office manager with the National Housing Corporation, reserved room H No. 527 in New Africa Hotel for some expatriate officers who were to be accommodated and given breakfast only, paid by the corporation. The appellant obtained drinks on various dates in January 1985 and signed for them in invoices debiting room No. 527. The waiters said they served the appellant with drinks. The appellant denied the allegation saying that he did not order or receive drinks, nor did he sign invoices. He was nevertheless convicted and sentenced to 5 years imprisonment.

Held: (i) The trial Magistrate saw the attendants, he was impressed, they were witnesses of truth and he believed them. They knew the appellant

(ii) as regards the signatures in the invoices which were tendered as exhibits, the witnesses saw the appellant signing on every occasion the drinks were supplied to him;

(iii) the trial magistrate was perfectly right in holding that the oral evidence of the bar attendants or waiters who supplied the appellant with the drinks on the varies dates and who saw him sign the invoices, proved that the signature was that of the appellant - S. 69 Evidence Act, 1967.

Case Information

Appeal dismissed.

No cases referred to.

Mwakasungula for the appellant.

Judgment

Maina, J.: This is an appeal by Nicholaus Alfred Kiyabo against conviction on nineteen counts of obtaining credit by false pretences for which he was sentenced to five years imprisonment on each count, to be served concurrently.

The appellant was an office manager employed by the National Housing Corporation. Among his duties was to make hotel reservations for expatriate staff and other officers. In 1984, the appellant reserved a room in the New Africa Hotel for some expatriate officers who were working under the National Housing Corporation.

The appellant sent the visitor to the New Africa Hotel where they were allocated Room No. 527. He introduced them to P.W.7 Mshindo Salum, a receptionist at the hotel. The appellant used to go to the hotel to see the guests he had sent there. On various dates in January 1985, the appellant obtained drinks and he signed for them in the invoices debiting Room. No. 527. The waiters at the hotel, PW3 Simon Mgaya, H PW4 Ramadhani Manga, PW5 Alois Sema and PW7 Ali Ramadhani said that they served the appellant with the drinks. The appellant instructed them to write the invoices on each occasion, in the presence of the bar attendants. Later, PW1 Mshindo who had moved to the credit  control section of the hotel, found that the bill for drinks for occupier of the room was becoming very high.

The National Housing Corporation was responsible to pay for the room and breakfast only. There were no arrangements for the occupier to have drinks on credit. When Mshindo contacted them, they denied that they ordered the drinks. They also denied to have signed the invoices. The Kisarawe Bricks Factory General Manager PW8 Samwel Nkwabi Ngwano and the National Housing Corporation Deputy General Manager, PW9 Andrew Shitindi, said that the appellant, as an office manager, had no authority to order drinks on credit for anyone in the hotel. All that the expatriate officers were entitled to get was accommodation and breakfast paid for by the National Housing Corporation and later by the Kisarawe Brick Factory which became a subsidiary company after 1984. The bills allegedly signed by the appellant have not been paid for. In other words the New Africa Hotel remain unpaid up to now. The invoices were tendered in the trial court as exhibits.

The appellant denied the charge by alleging that he did not order or receive the drinks. He denied that he signed the invoices, and claims that it is the responsibility of the bar attendants. I think the conviction was based on credibility of the witnesses and on the documentary evidence. Mr. Mwakasungula, learned counsel for the appellant, argued that the bar attendants should not be believed and that there was no sufficient evidence to prove the appellant's signature. On the bar attendants, I have this to say.

The trial magistrate saw F them, was impressed they were witnesses of truth and he believed them. They are the persons who supplied the drinks to the appellant on different dates in January, 1985. They knew the appellant, as they had seen him on various occasions when he sent guests to the hotel. The witnesses received the orders from the appellant and they supplied him G with the drinks. I can see no reason to disbelieve them.

As regards the signatures on the invoices which were tendered as exhibits, the witnesses saw the appellant signing on every occasion the drinks were supplied to him. PW3 Simon Mganga, for example, said that on 1.1.1985 the appellant went to the bar with his guests, not the expatriate officers, and he ordered drinks and the appellant signed in the presence of the witnesses. Similarly, PW4 Ramadhani said that the appellant signed the invoices on 14.1.85 and on each of the subsequent dates when the witness gave the appellant drinks as ordered. So the evidence established that the appellant signed the I invoices in the presence of the bar attendants who supplied him with the drinks. It was therefore not necessary to call for handwriting A expert or someone acquainted with the appellant's signature. Section 49 of the Evidence Act is not relevant. What I think is relevant is section 69 of the Evidence Act, 1967 which provides as follows:

If a document is alleged to be signed or to have been written wholly or in part by any person, B the signature or the handwriting of the document as is alleged to be in that person's handwriting must be proved to be in his hand-writing. In my opinion, the trial magistrate was perfectly right in holding that the oral evidence of the bar attendants or waiters who supplied the appellant with the drinks on the various dates and who saw him sign the invoices, proved that the signature was that of the appellant. The appellant's mere denial did not cast any doubt on the prosecution evidence.

The conviction is supported by the evidence and the sentence is not by any means excessive. The total sum stolen in all counts amount to Shs. 100,453/=. The sentence was proper.

Appeal dismissed.

1987 TLR p62