19710519 TZHC Mwanza

IN TF LtGH COuT P OF Tjf AM I A AT LTTfJMA App oil ate Jurisdiction CAI1TIFAL AFFELL MO. 315 OP 1970 (Oridinal Crininal Cs No. 16 of 1969 of the district court of Keacna before E. Kr[iti Esq., resident uoistrate). ABMED 1IIIJ3A 16ZA1-FAM • . . (thIa-INAL AC1C5CiEL'; versus EEPUIIIC . • . . , . • . • . , • • . . • . • • 1IdSPOFDiINT(ORIGINAL PhOS:.JCL- ToE). CHAjIGE:- 3 counts of stealind by servant c/ss 271 end 265 of the FonJ Coec. JUD-MEF1' MIS AN C-A, A; .J The appellant bmcd Llusa Mzaliam was convicted on three COlUTS of stealirn by servant coiitroiy to sections 271 and 265 of the Penal Code nd was sentenced to two yar3 mprisoioeent on each count to run concurrently. As he es over 45 years of ce, no order for corporal punioboont wee He now oppc-els. The appellant was aaployed by TANU as the diatrict executive secretory • attached to Kasulu district and later transferred to Kahraa district, end while he wee steticricd at Kahena, he was also perforainp the duties 0± a trees'or to the party in that cli.strict In the first count it was elicod that the appellant stole 9.531/- the property of TAINJ, his employer. Evidence was adduced t0 show that on 16.5 .68 the appellant paid to hii:o1f from TALE funds .531J- beind advance salary for the month of May, 1968. P.W. 4, an accountant with the TANU Headquarters in Dar es Snlaan, te. tii:L ccl: that accordind to TANU Financial Refulations, if the appellant wanted an ac1ronco off salary he had to applyto TANtJ headquarters u.f.s. his officer- in-chare in thØ'distrit who was either the Area Commissioner ot , the District Chairman. If TATE headquarters approved the applipation, then a reply woi.ld be sent to the appellant, u.f.s. the officer-in-charac of the district, authorisinN payment of the advance The appellant would then pay the money to biuseif ay'inst a paymant voucher whibh must bear references to the warrart from the TANtJ headquarters authori amp: such payment. After payinC hinseif thus, the appellant should then send the payment vouch -isa to the hcadqua.rters who would arrenie to recover the loan from him. In cases of emergency, the appellant had to apply to the district financial viorkinp: committee which had powers to approve the application for the loan end thom to rcporb the approval to the heqdquartcrs The appellant however paid the 531/- to himself without the authority from the TAME headquarters or from the district financial workinp: committee; he si nod himself as botu the payer and, the authorisir officer'. After thus payin himself, 110 Joupt tlmi relevant payment voucher in his personal file and never sent it to the headquartcra in Dar esSalassa. . . .2 In llfS defence on oóth, the appellant sid tht payuont vouchers for advances of salary wore iiever iped It is no -b quite clear what the appellant neant by tuis But if he neant that the paTaent of advance of salary need not be authorised by any one. then the question is, why did he sifn tho payaant voucher hjiesc;lf an authosin; of fic or? Furthornore, P.P.4, when invcstihatin the siatior, asked the appellant about this irreu1aiity of sinind both as a payer end authorisin officer end the appellant said that it was a mistake. Then, if ouch payment did not require any euthorisation, there would be no reason why appellant should admit to P.h. 4 theb his signing as authorising officer and payer was irrcgLttcr. Again, if the appellant paid the nancy to himself in good fith, why did he not send the payment voucher to the headquarters in Bar as Salami but instead l'c kept it in his aersonal file? Phat is more the appellant ;j lh€ 19S Ltdü the payment to himso n +I CD*'1S(. 4 on 16.5.68 and accoiding to P ,7 .4,Athc apoellant ought to kayo started repang thc 1 in June, 1968, by monthly instalments of .ioo/- Yet, until February, 19699 when the matter alas discovered, the alDpell.ant was receiving his salary iact athout any deductions in respect of this loan. If he had taken the nancy in good faith, one would expect that during these 9 to 10 months, he would have advised the headquarters or anyone on authority about the money he had paid to himself so thLt arrangements be ude to recover the 1oan Indeed, when P.T. 4 asked him why he had not taken stepsto repay the nancy for such a long time, he replied that he forgot to do so ol in all the circumstances, I an of theview thrt the appellant took the nancy without the consent of his employer with an intent either to deprive TANTJ permanently thereof, or with on intention to refund it sometime at his convenience. In either case, this anounted to theft and consequently I cm of the view that considering all the circumstances, there was sufficient evidence on which the lear-ned trial magistrate could have canvictcd the appellant on thi count as he did On the next count, the appellant was charged with stealing h.507/- being the total of various unauthorised travelling expenses which he paid to hinso]i There was evidence that the - appellant left Kahana, hi station, and y:ent on leave in June, 1968. He authorised and paid to himself 8.35/- being travelling expenses in respect of himself, v7ife and child ±±on Kahanc, to Tabora Nothing turned on this because it apeorcCi that the appellant had his residence in Tabora, and there±'c'e he seas entitled to travel to Tabora at TANU expense However, the appellant authoriced and paid to hirsseJi S.90/- in respect of a retu'n ticket for himself and child from Tabora to Kigona, and another s.60/- being nir.ht al1oWancu±n respect of himself during this trip which took bin as imP as Kesulu Thc prosecution con -bonded that appellant waS not ent icd to thoso payments. Again, he authorisod and paid -to himself 2,317/- in SS .3 respect of a rturn ticket for hiuself, wifo and child from Tahora to Dar cc Sda:n, and a further sun of .40/- boin{ niht allowanc: for himself cluriap this trjp P.h. 4 said that such travelling expenses uut be authoriscd by the district secrotary q district chairman or,in tho absence of those two, by a mombor of th district workinh cormittee The epp:.11ent, in his hcne:LLl defence, said that he did not irnow that there was a finm'cil ro(3ulat ion which ro cuir ed authorisa tion of such paymants before the pey:zeilt was actually made. The learned district naistrate rejected this dcicnce and I am unable to say that he erred in so doini ii?.h. 4 said tha there was such a reculation and ho produced in evidence the book COlT di:ind such reFulations, and the trial acistrate believed him'. Rur±hepaoro, there was a payment voucher which wan tendered in evidence as Ethibit-A which shows that the appellant sourht end obtained the authority of P.;7 the district chairman, before he could be paid certain travellind: expenses, and this would o to show that he was aware of the rolulation reiirin payments of travellinl expenses to be authorised Again, the appellant wnt on to ay that these payments could not be authorised because there were :iisua:dcr- standin,':s between the district chairman and the district secretary. This would -o to show that he was aware of the need to have the pay: onto aixthorisod and the only defence is that they were not thus authorised because of sisundere±anc1iis between the district clnirmn and the district secretary, but if there,aisundcrstrndings between these two officials, as alleged, there was nothii to prevent the appellant approaching any -. member of the district worhirg coenittoe for authorisation of the paymcnta For all those reasons, I cue of the view that the appellant deliberately authorised these payments and paid the same to himself. In respect of the return trip from Tabora to Dar es Sa.la:u, the appellant said that he was going hone because althoueh his parents arc residing at Tahora, this is just because they are world.ng there but their actual home is in Dar es Sdaor This contention appears to be supported by the appellant t s Personal R(,, cord Porn (iciaibit A4) which shows that appellant is Mzarauo by tribe so that it is possible that the appellant resides at Tabora only because his parents are resident there while working but they maintain their hone in Dar Cs Salaaci in which case the appellant would be entitled to go on leave to their home in Dar cc Salami at ihO party s expense, I cue, therefore, of the view that as regards the travoling expenses from Tahora to Dna cs Salnon and back, amounting to S. 357/- the charge of stealing was not proved beyond reasonable donbt because for the ransom given above, it would appear that the appellant had a claim of right to such payment 'As regards the tri. to Kigona and Kasu.lu, however, the appellant gave no arplantion for it' It is true that the appellant war at Kasulu before ho wont on transfer to Kehana but there was evidence that ho was - j___ ----- - . . . duly paid his transfer allowances. Thus there is nothinr, tosu;ust tht he andhia child were entitled to a trip to Kasulu or from Kasulu beck to Taborc In his memorandum of appeal, the appellant contends that he went to Kasulu to fetch some of his be1onfjn(s which were left behind vihon he wont on transier from that station to Kahona. This issue, elthou3h it was avaIl-- able, was not raised at the trial and therefore I on of the view that-it cannot be considered on opnecl beccusc it is not part of the evidonco. Even if it were raised at the trial, one would find it difficult to explain vthy the appellant should have d;one to Kasulu with his child for this purpose Thus, I am stisficd that -there was sficiont evidence to prove theft of th-. money thich the appellant authorised and paid to himself in respect Of o travellin1 expenses, for his.isclf end child from Taboro to KiComa end Kasulu amountind to .150/-. Consequently, I would uphold the, conviction on this count, not for stealing S5O7/- but f or stoalin G'150/ only. - On the last count, the appellant was convicted of stealin 0107/50 being total collections he received on behalf of TAITtJ from various indivi6uals The appellant admitted receivinG this money but contended that ho handed it to one Lwaka, his assistant, and the said Lwcka did not re-turn it to bin. The lceoncd ucgis'trate Consi dared this. defence but rej eciod it end -it would seen that he was justified in doinG so' P..:ol, the police officer- , id t]ic in the course of his investiction, he csked the appellant about this uwa and the appellant merely said that he would produce it P..l further eked bin whether the money was in the office but the appellant said that it yes not, addinG tht he would produce it. It would seem that if the appellant- had handed the money to Lweka as he claims, he would have said so to P...1 especially when it was clear to him that the police were openin;a charc of ste-a-lilaC cCTinst hiu' ACein, the appellant, in an attempt to substantiate his defence, called a number of witnesses who however did not support him and D.1..3 spccifc ally said that he did not see the appellant hand to tine s:id Lwedca .ioo/-. The issue involvinf this count Was therefore purely one of credibility; The learned trial iaa'istrate who had the opportunity of seeinr and heaxin the witnesses, believed the prosecution witnesses and there is nothinG in the evidence or in- the memorandum of appeal which would woxrant interference v -th thctfindin In the result, the convictions on the first and last counts e'xo,upheld, but on the second count, I substitute a corvietacri for stealinrjS.l5O/- instead of as.507/-. The sentence imposed is the LiJmaau. prescribed by lavi - In view of the substituted conviction,. the compensation order is end the appellant is to pay compensation of S76('./50 to TJ-UW. Save to tb1 limited extent, therefore, the appeal is dismissed. Delivered in Court at Mwanza on this the 19th My, 1971 Kisanr;ct) 'V