19720526 TZHC Dar es salaam

41 IN THE IhGH COURT OF TANZANIA AT DAR ES SALA.AJYI APPELMTE JURISDICTION CRIMINAL APPEAL NO, 597 .....,...OF 1971 ORIGINAL CRIMINAL CASE NO. 239 .....OF 1971 OF TEE DISTRICT COTJRT OF J)BEYA DISTRICT . . .. .. .AT MBEL4. BEFORE W.J. M1INA Esq., ••...... .RESIDENT MA.GISTRi.TE ABSAIOM HOL APPWANT (Origin.'I Accused) itrsus THE REPU]3L10...... a • • • • • • • • • • • • • • • . , REI'ONDNT (Original Prosecutor) -.OçO- V.... CHARGE: Steal ., by?tiblic Servant Cd'ntrary to See- tioi' 0 and 2,5 of the Penal Code. Cap. 16 of th Laws, TU DG N E N T O1JYItWE, a. — The appellant, Absalom Homel Mwakyu.sa, ha6 appealed to this Court against his conviction and sen- tence in the DitiLict Court of MbeyapresidEd over by Mr. W. J. MAINA, Iesident Nagistrate He was charged with stealin.g c/ss 265 and 270 of the Penal Code. The parti- culars of the off4nce we±'e that he, being a person employed by the Ministry of lands, Housing and Urban Development as a land Assistari.t, stole $hs. 1 98/-.. the property of East African Post and Telecommunications which came into his possession bylvirtue of his employment. He was con- victed and was sentenced to 2 years' imprisonment and to 24 strokes corporal punishment. The appellant was employed at all times material to this case as a Iand Officer in the Regional land Office Mbeya. He was assistant to the Regional land Officer Nbeya Mr. Saadi Amir Komba' (P.W,3). The facts of this case as accepted by the lerned trial Magistrate were that one Everstone Siche of Ndola in Zambia applied by letter dated the 16th November 1968 (Exhibit G) to the Regional land Officer Hbeya for a duplicate copy of his Certificate of Occupancy in respet of a plot of land held by him in Tunduina. By letter dated the 4th January 1969 (Exhibit H) the Regional land Officer asked him to remit Shs. .2/- stamp duty before a duplicate copy could be issued to him. Everstone Siche cai.sed an external money order for 20 NO-WE (Zambian Currency)lto be sent to the Regional land Officer JYTheya. The equivalent of this in Tanzanian Currency was Shs. 2/-. Uiffortuiiately the officer in the section deal- ing with Internatidnal Money orders in the Nairobi Head- quarters of the Post and Telecommunications (P.W.2) made a mistake in his ciculations and sent an East African Money Order for Sh. 200/- instead of Shs. 2/- to the Post Office I"Ibeya for p4yment to the Regional Land Officer. The appellant receIved this money order and signed it as the Regional land Officer, sashed it and retained the money. This was on the 5thMarch, 1969. On the same date the appellant issued a General Revenue Receipt of Shs. 2/- to Everstone Siche. A duplicate copy of the Certificate of Occupancy was later sent to iim. The mistaT:e came to light when P.W.2 wrote the Zambian Authorities claiming the equivalent of She. 200/- Tanzanian Cuxrency. The Zambian Authorities wrote back and pointed out that the Tanzanian equivalent of 20 NGITE was Shs. 2/-. P.W.2 realised his mistake and called on the Regional land Officer Mbeya to refund the overpayment of She. 1 98/-. The letter calling for repayment was dated the 14th September, 1970 (Exhibit D). It was wheni the Regional land Officer (P.W.3) received this letter that he realised for the first time that the money was received In his office. • He called for the relevant papers and discovered that it was the appellant who signed and cashed the money order. The appellant had left Mbeya in Nay, 1969 on transfer to Iringa. When he was ultimately contacted he stated that he did not remember to have received the money. He was shown the money order which he signed and was asked to refund the balance of Shs. 198/-. He agreed to refund but on protest. on the ground that he suspected the postal clerks to have stolen the money. He later sent two Money Orders, one for Shs. 100/- and the other for She. 98/-. (Exhibits E & F). He was subsequently charged with stealing Shs. 198/-. The appellant in his evidence stated that on the 5th March, 1969 while on duty in the Nbeya Regional land Office he received a telegram Money Order from the Post Office Mbeya. As the Regional land Officer was away he signed the money order, affixed the official stamp to it and cashed it at the post office. He did rot imow the sender so he locked the money in his office.. On the same day Everstone Siche came to the office and asked if he had received the Shs. 2/- which he claimed to have sent from Ndola. On receivin.g a negative answer Siche then paid him Sha. 2/- cash and he tarranged for him to get a G.R.R. from Revenue Office.t Siche took the original receipt. On 6/5169 he (the appellant) told the Regional land Officer (P.W.3) that he received Shs. 200/- frOm the Post Office but that he did not imow the sender. POW.3 said that inquiries would be made in the Post Office. The appellant kept the money in the office drawer. He prepared the certificate of occupancy and sent it to Siche in Ndola. In May, 1969 he proceeded on transfer to Iringa but before he left he handed the ñioney to the Regional land Officer (P.W.3). In September, 1970 he met P.W.3 in his office and he showed him (the appellant) the letter from the post office demanding the refund of Shs. 198/-. P.W.3 told him he had not seen the money and held him responsible as he had signed the money order. He refused to refund the money as it was lost in the office. After discussions he agreed to refund the money which he did in two instalments. The learned Magistrate. in his judgment rejected the defence and found as a fact that the appellant stole the money which he was later compelled to refund. He accord- iiigly convicted him of the offence with which he was charged. Mr. Raithatha, in arguing this appeal, made a number of submissions which can be briefly stated. He submitted that the Shs. 1 98/ belongea either to the .tast African. Postal Authority or to the Zambian Authorities but not to the Regional Land Officer, is to say, the Ministry of lands. A - 3 - The issue was therefore between the Zambian Authorities or the Postal Authority and the appellant. There was no fraud on the part of the appellant in receiving the money. He did not receive it either, by trick or by any false representation or fraud. The Postal Authority voluntarily paid the amount o the appellan as the payee. There was no mistake as to the identity of the payee or as to the amount to be paid. The only remedy available to the Postal Authority was an action against the appellant for money had and received to the use of the Postal Authority as paid under a mistake of facts The appellant's legal liability was that he was bound to return the money or to repay it if he had spent it either in quasi-contract or under a statutory duty under Section 72 of the Contracts Act Cap. 433. Section 72 of the Act provides that "a pe±son to whom money has been paid or anrthing delivered, by mistake as to a matter of fact which, if true; would give rise to a legal obligation or under coercion, must repay or return jt.Lt He cited MOThES V. COOPER (1956) I Q.B.D. 439 in support of this submission. Continuing his argument, Mr. Raithatha submitted that if the appellant appropriated S the money he was only bound to repay it. The fact of appropriation howeer could not be a ground for a charge of stealing since the Postal Authority voluntarily paid the money and the appellant did not induce it to pay either by fraud or by any false misrepresentation. Finally, he submitted that 'a person' as used in Section 72 of the Contracts Act includes a servant or agent. I an not persuaded by this submission. The first question is how the appellant came into the picture in the first place. The money order was made out in the name of the Regional land Of'icèr which strctly speak- ing means the Ministry of lands, Housing and Urban Development. It was neither made in the name of -. Absalom Homel ]Yfwakyusa nor was it ever intended for a person by that name. The appellant's connection with the money order was that in the absence of the Regional land Officer he acted for him and dealt with the money order. He signed it as the Regional land Officer Mbeya and cashed it in that capacity. The money order ws meant for and was intended for the Regional land Officer by the East African Postal Authority. The question of overpayment and refund was a matter between the Postal Authority and the Regional land Officer or as I indicated earlier on the Ministry of lands, Housing and Urban Development0 By appropriating the proceeds of the money order to his own use he had fraudulently converted it and this was steal- ing under Section 258 and 262of the Penal Code, Even if one were to regard the excess, that is to say, Shs. 198/- as the property of the Postal Authority it was still stealing under the Penal Code irrespective of the fact that the Postal Authority could have sued the appellant in a civil action under Section 72 of the Contracts Act. In the analogous case of R. V. HENRICK (1843) 5 Q.B.D. 49 it was decided that the existence of and/or the execution of a contract between the same parties did not secure from punishment the obtaining of money under false pretence in conformity with the cont'act. The fact that in such a case the aggreived party could bring an action to sot aside the contract and claim back his money did not save the false and fraudulent representor from being charged with and convicted of ootaining money by false pretences. Wi (See alsd JAE & OTHERS V. R. (1 970) HO]) No. 291) Kr. Rait1a tha 'a abmission was on the burden p of proof. The a ppeilant stated that he handed the ;oney to P.W.3, the Re glonal land Officer. Mr. Raithatha con-- ±ended that thus assertion 1ad not been disrioved by the prosecution and that repayment of the money under protest did not, amount it o admission of criminal liability. I accept the arguin ent that payment under protest may not be an admission of stealing. The learned Magistrate however rejeOted the appellant' s assertion that he handed the money to P. .3 and there was considerable evidence to justify the 1 earned Magistrate's conclusions. P6W.3 gave evidence bit. t the appellant did not put this defence to him. Further more P,W,3 stated without being challenged by the appellani that whenhe received the letter from the Post Office demanding the i'efthid of the overpayment he asked the ap chant about the 200/- dollected on the money ordi erarid the latter stated that he did hot remember receivi g. it and when he was shown the money order which he a igned he stated that the money might have been storlen by t he Postal Clerks. I hold, that dh the cvi- dence on record 1the'r'osecution had established beyond any S reasonable doubt •that the app'ellant stole the money, the subject matter o the charge. I will therefore diiss the appeal again st. conviction. No argument has been advanced agauiist e±enco'. The offence was a scheduled offence under ±h e Minimum Sentences Act Cap. 526 and the sentence imposed! .,was the-minimum prescribed by that Act. I will therefore dismiss the appeal against sentence but the corporal pun shment imposed .cannot now be executed in view of Section of the Minimum Sentences Act No. 1 of 1 972 which 'has a 1ohished corporal punishment under the Minimum Sentence s, Act.' ORDER: Appeal age t conviction'and sentence is hereby. dismissed. Delivered in open 3ourt this 26th day of May, 1972: G.C.M. ONFILUM JUDGE