19710422 TZHC Mwanza

Xz_ • IN THE HIGH COURT 107 TANANI.A AT i':iANZA. Appellate Jurisdidtion, CRIMINAL APPEALS NOS.506, 507 & 446 OF 1970. Original Criminal Casc No.115 of 1969 of the District Court of Mwanza District at Mwgnza Before E,E.Kazimoto Esa,RY. PAULO IkJZIGA, . , , , . . APPELLAUTS ELIAS DOTTO NYANKGLUNGU, (• 'iginal 1, 2 & 3rd ON. EAi\UJEL MG ANZI. versus THE REPUBLIC, . . . RESPONDENI'(Original Prosec;0 JBDGF.ENT, EL-KINDY, Ag.J 0 The appellants 9 Paulo Luziga (the first appellant), Elias Dotto (the second appell mt), and EmmanuerNganzi (the third appellant), were charged together with one Albert Thawire who did not appeal as below, On the first and third counts, the first and second appellants were jointly charged with and convicted of stealing by servant contrary to sections 271 and 265 of the Penal Code Cap.16. On each count, each appellant was sentenced to two (2) years imprisonment and twenty-four (24) strokes of corporal punishment. On the second, fourth, sixth and eighth counts,.- the first appellant alone was charged with and convicted of fraudulent fals adcounting contrary to section 317(c) of the Penal Code. On each count, he was sentenced to three (3) month imprisonment On the fifth count, t he first, second and third appellants were charged with and conicted of stealing by servant contrary to sections 271 and 265 of the Penal Code Cap0 16. Each appellant was sentenced to two (2) years and twenty-four (24) strokes of corporal punishment. And on the seventh count, the first, second and the convict Thawire were charged with and convicted of stealing by servant contrary to sections 271 and 265 of the Penal Coda C8t.16, The fh'st and second appe1lants were sentenced to two years and twenty-four strokes of c'poral punishr..-ent, but the convict Thawire was sentenced to six 7onths oily as the frial court found that there were specia.l circumstances in his case0 The sentences in counts 1, 3 & 5 were ordered to run _0 concurrently. The sentences in counts ?, 4 6 and 8 were ordered to be served consecutively so that the first appellant was to serve a total of 12 months, The sentence in count 5. were to run concurrently0 In effect the first appellant WaS to serve a total of three years, the second and third appellant wo years and the convict Thawir.e six months, Although the three appellants were ordered to undergo three sets of 24 strok the trial ragistrate directed that in effect each should under- go only one set of 24 strokes i,e, making the strokes also run concurrently. The facts in this case were mt in d ispute. The first appellant was employed by Nyanza Co-operative Union (hereinafter referred to as the U,C,U,) as a treasurer0 His duties included the collection of money on behalf of his employers the reparation of payment vouchers, payment of salaries and wages, peeparation of weekly reports to IT 0 00U. headQuarters regarding money transaction. He also issued receipts for monies paid out, and it was his duty to remit the weekly reports to the N.C.U. headcivarters. He was immediateiLy responsible to the second anpellant who was the Zonal Lisson Officer, and the head of Kasanwa Zone, The secondappellant was responsible for the overalldm ainistration and running of the zone, It was part of his duty to authorise payment voucherc. He kept one key to the safe, and the first appellant kept the other key0 The evidence disclosed that the safe, which as under. the control of the first a ppellant, could not be opened.. without the application of both keys0 One key. alone would oct open the safe. It was given in evidence that it yas the joint duty of the first and the second appellants to take out the money from. the safe, and to return the san.e.. The third appellant was the education secretary of l,CJT, stationed at that branch0 His duty was to' conduct educational programmes for the benefit of farmers in the primary societies. Apart from being stationed together with the first and. second. appellant he had nothing to do with the administration and control of the finances of Kasam.wa branch. And Yhawire was a Zonal general clerk concerned, with such thinç.,s as corres- pondence, and weighing of cotton at the ginnery. The evidence disclosed, that the appellants were earning over shs.300/- per month and,, according, to U,C,TJ, financial regulations 9 they were not entitled. to salary advances. On 12th of September, 1969, Hamisi, a co-operative inspector, inspected the first appellants accounts in the presence of the first and second appellants. He found that there was shs.3792/95 short. Hamisi alleged that he an sked the sedond appellant about the money and that the second appellant told hi-iTi that the treasurer i,e. the first a pellnit would know about. He turned and asked the first appellant 5 and that the first appellant told him that both of thenknew about the money, and that the money was borrowed by people whose names appear in a diary0 Hanisi alleged that the first appellant then showed him a piece of papr Exh 2(a). This paper was written by the first appellant and is dated the 5th of September, 1969. In it he wrote he took shs.620/- the second appellant took shs.400/-, the third appellant took shs.860/ and lhawire took shs.55/-. Hamisi further said that he asked the first appellant whether he had refunded the amount he had taken, and he replied that he had not, aid on asking again the first appellant said that the second appellant authorised such payment. He said the second appellnnL then admitted that he authorised the first appellant to pay out the money, but when he asked the second appellant where he got such authority 5 he replied that he, had family problems. Upon checking he did not find any signed payment vouchers. And a further checking in a diary 9 revealed that the second appellant ha.d taken shs,1200/-. Hamisi reported his discovery to the Chief ocountant of IT,00TJ, A second check was done on 22nd of September 5 1969 when, in addition tc what Hanisi discovered on 15th of September, 1969, an envelope was found in which there was a sum of shs.1000/- and the words not counted by the inspector written on the envelope. The first appellant agreed that the amount of shs.1620/- referred to was taken out, but he said that shs.1000/- wasr efunded by the second appellant, and that the balance of shs.€20/- was advance taken by him on the authority of the second appellant. He said tha t he wanted to r efund this amount when he recovered his night allowances. As for the amounts of shs.70/-, 860/- and shs,55/-, the first appellant admitted that he paid then to the other 2 appellants and Uhawire, and that he did so under the authority of the 2nd appellant, He admitted that be did not enter the said naymenmi in the cash book because there were no payment vouchers in support of these payments. He alleged. that the second.. appellant was the one i/rho instructed him not to prepare the payment vouchars. He said that as he did. not prepare payment vouchers he did not see how he could have reported these payments to the headouarters of TT,i,Tr in his usual weekly reports. In other words, ha was well aware that he was 14 deliberately keeping his headquarters in the dark. In cross- examination he admitted that he was aware that he could not make salary advances as per Exh 9, which was the copy of N.C.U. regulations in matters of salar y . He admitted that he had worked in. a bank and therefore he knew well about accounting procedure. However, he said the money i:.ras advanced on the authority of the second appellant in spite of the fact that he did not conform to the accounting procedures which he knew very welL From his own evidence., there •vas no doubt that he paid out money to the 2nd and 3rd appellants without preparing payneit voucher, and recording such paymentS in his cash book, and reporting the same to his headauarters. But he claimed that, in spite of these irregularities, these mere proper payments as they were authorised by the second appellant who was his immediate head in the area. The second appellant admitted that in Septembei. 1969 he took shs,'-iOO/- to help him meet the medical expenses of his father, and that he was also given shs.1000/- by the first appellant to pay labourers. He also agreed that he permitted the third appellant to take shs. ioo/ to help him pay for his mother!s hospital bill. However, he alleged that he did not refuse to sign payment vouchers. He admitted doing the same in respact of yhawire. In cross-examination he alleged that at the time of first checking the amount of shs.1000/- 'was at his house, and he claimed that he informed the co-operative inspector about it, but the co-operative inspector denied0 He could not ascribe any reason for that denial as he believed that there had been no prior strained relationship between them.. He admitted that there had been no payment vouchers made and signed but, according to him, the first appellant promised that hc would write the payment vouchers on some other day. 7 He admitted that if there had been any advance made, there should have been payment vouchers 9 and he agreed that apart from him the first anpellant also knew of this procedure. He alleged that he did not understand why the advances -• he believed these were salary advances although there was no record in support of this - were not deducted, from their salaries. I think the 0.nd appellant was deliberately trying to be blind on this matter, as he . 'ought to know, if he did not know, that the headcivarters of the H.COTJ. could not have deducted these amounts for atleast two reasons. In the first place there was no report made to them that each of them had had salary advance assuming that the amounts were salary advances and assuming that such salary advances could have been advanced to employees earning over shs.00/- per month0 '4 -5- Secondly 9 it was not yet the end of September and if the money was taken n some other previous months, the first reason would apply. I think this was a mere excuse. The thirdappellant, admitted that he took a total of shs.285/- to help him pay for his grand-mothers treat ment, He said that he approached the first appellant who allowed him to take the money, and that it was the first appellant who gave him the money from his drawer. He alleged that he asked the first appellant if he could sign anywhere for the money, and the first appellant told him that it was not his work, and told him that if he was recuired to sign any thing he would be called later to do so. He said for various reasons, he could not permit the first appellant to deduct the amount at the end of July and August and first appellant obliged him0 He claimed that the amount was given as salary advance0 He bgreed that he took another salary advance of shs.285/- at the end of August 1969, and in September he took another shs.290/- so that the total amount came to shs.860/-. He said that he did not know how the first appellant kept his books of accounts 9 but he clairneed that as he was a junior staff he was entitled to salary advance. He admitted that when he was a co-operative inspector he c o.nsidered it offensive if he discoverddthat payrrLents had been made out without payment vouchers being signed. He agreed also that if he took money in the circumstances he did., that would not be salary advance 9 but he did not say what such payments would be. On the evidence, the learned, magistrate held that as the 2nd appellant was prohibited by IOOOU. regulations(Lxh 9) from giving salary advances to N000UO eaployees 9 the 2nd ampellant had no authority to give advances to N.C.U. em.ployces who were earning over shs.00/- and therefore the taking by all was unlawful. He rejected the appellant s claim that the payments were salary advances on the grc.und. also that there was no evidence supporting that these payments were salary advances. He took into account the fact that these payments were made without sicd payment vcuchers that the payments were not reported to headauarters of lT.00U that the appel1nnt: were not entitled to salary advances and knew of this fact, and the fact that such payments were not entered in cash bock. He did not c onsider the fact that the payments were recorded in diary on purported authority of the second arpellant was of any importance. . - --.- . —- ,:, .. ) In his petition of appeal 9 t he first appellant said that he was not aware that NC0U6 had prohibited its oipioyces earning over shs500/- per month from getting salary advancs He did not think that the fact that no payment vouchers were mada meant that there was no authority. However, he says that he did not prepare payment vouchers as this was in a coordance with the orders of the nd appellant. The answer to this seems to mc to be clear. Is the order of the 2nd appellant was unlawful, if he made it at all as the second a ppellant did not agree that he (Jiselloweci thef irst appellant from making pcymen vouchers 9 the first appellant was not boundobey it as he was bound by the regulations which clearly stipulated 9 a s be well knew himself, th't any payment made was to he supported by a payment voucher.. "The first appellant 9 therefore 9 cannot she lter behind this end in greeing a to follow the unlawful practice he was a conscious party to the commission of these offences,, He must havc known that what he was doing was unlaw- ful and theref'e he cannot blame this on the second appellant.. this was only 9 one of the points held against him, nd in respect of fraudulent false accounting 9 he said that there was no proof that there was any fraudulent intent. In my view, fraudulent intent is deduceable from s urrounding facts and circunistances. It nay well be that the first arpellant recorded these pay. ents on a piede of paper attached to a diary, but this was not the proper document where such payments should be recorded. The fact that the entries were made as they were is a point against him rather than in his favour. Taking, this point, together with the fact that he "ade no payment vouchers he made no entries in the cash book and failed to show, in his weekly report to N000U. headcivarters, left no reasonable doubt that the omission to record such payment in the cash book was done with fraudulent intent0 I am not persuaded by the argu mont that authity existed in the absence of authorised iay- ment vouchers0 In the circumstances of this case, the absence of authorised payment voucher aided in the learned magistrate.s finding that there was no authority. If there was authority vested in the second appellant, there was no reason for hi' not to authorise such payni.ont in vouchers. I an satisfied that none of these reasons advanced by the first appeJ.iant raised. any reasonable doubt as to his guilt as charged. The, first appellant was experienced in financialiattcrs and therefore, if he did..that is shown to have been done, he must have da.L so well knowing that what he was doing was unlawful. There is no evidence that he 1ras forced to do what he did. In my view 9 he was active party with the 2nd appellant in respect of theft of money. Thre was no evidence to show that the 2nd a1DDe.lant - ---.-.- . -.7- ordered him to omit entering such payments in the cash book. I see no merit in his appeal against convictions. In his short petition of appeal, the second appellant said that the prosecution failed to establish the ingredients of FRAUDULT INTENTION whether I had intned to deprive my (second appellant s) employer. I take it by this paragraph, the second appellant means that intent to steal was not Woved. Unlike English law, it is not necessary to prove that the person who took property of his employer intended to deprive his employer of the property permanently0 Section 258(2)(e) provides that fraudulent intent will be inferred if the money taken is intended for the use at the will of the person who takes it or converts 9 although he may afterwards intend to repay the amount to the ownore In this case 9 the appellant took the money with intent to repay it by way of deduction from his salary. This is enough to lead to inference of fraudulent intent within the definition of theft Lection 258(2)(e)7, He said that if he intended to steal 9 he would not have shown the names and signatures of the persons who took money (includ- ing his own) to the ce--operative inspector0 The evidence showed that the 2nd appellant, asked Hamisi to ask the 1st appellant to account for the money and the first appellant then said that both of them knew of the money0 Therefore, it may well be that in the end. the second anpellant showed the names as he claimed, but this was after the first appellant, as it were, had thrown the ball back to him. This shows that the list of names was not given freely but j.iven after the 2nd appellant had found himself in a fix. He cannot, therefore, legitimately claim that his act of handing over the list lwas evidence of lack of intent to steal. He then clairnedat there was no evidence to show that he attended the accountanoeting or that he knew of the zona 1 accounting procedure as shown in Eh 9, But the evidence of Hilliarcl, the Chief Acccuntant showed that these instructions were distributed to every zone, including Kasamwa zone, whore the 2nd appellant work And he made it clear that both the zonal liason officer i,e, the 2nd appellant and. the treasurer (i.e. the first apdflant signed for copies of these instnictions. Therefore, it was not important for the prosecution to prove that the 2nd appellant attended the meeting in ay 1969 when the alleged regulations were made, The evidence of Hilliard w5 suffi- cient and left no reasonable doubt both the 1st and 2nd. -8- appellants wore aware of these raguiation. The learned magistrate was entitled to hold that both the first and 2nd appellants were aware of these regulations and did deii'oera- tely take and a liowed to be taken 11T000U. money well knowing that these regulations did not permit them to do so. I find, therefore, the evidence on record leaves no reasonable doubt. as to theui1t of the second arpellant. he third appellant was represented by the learned counsel r, Rugarabamu He argued that the learned magis- trate erred when he implicated the , third appellant in the contraventions of regulations by the 1st and 2nd appellants. He said there was no evidence that the third appellant knew of these regulations, as he was a mere education secretary, and had nothing to do with the administration of finances in the office occupied by the 1st and 2nd arpellants. He argued that there was no evidence showing that the 3rd appellant was made aware of these regulations. The learned State Attorney, ir0 hamatta, did not wish to support this conviction as he agreed with the submissions waue by the 3rd appel1ants counsel0 As I have a]ready said the third appellent was a. mere education secretary. There was no evidence led to show that he was aware that he could not get money from the T Eearing in mind that these fresh regulations were issued on 14th of June 1969, it is not unreasonable to think that it was possible that the 3rd apeJiant wasnotaware of them6 This nay explain his stand when he said that he was entitled to take advance as a junior staff, The fact that he asked the 1st appellant if there was anywhere he could sign for the money, would indicate that he expected that he cu1d. sign for the money, Therefore, it cannot be said that by not signing on a voucher, he was consciously doing unlawful act.. He was assured, by the first anpellant that if he was required to sign anywhere he would be called upon to do so later. In the circumstances, it cannot be said that the taking, by this appellant, was done with fraudulent intent within the reaning of section 2584 y)(e) of the Penal Code. It is not, therefore, safe to this conviction. It is accordingly quashed, and the sentence imposed set aside. I will now briefly deal with the appeals against sentences. As it was noted, at the beginning of this judgment, for each count of theft by servant each of the two appellants were awarded 24 strokes of corporal runishn..ent. This, is not legal. . Section 10 of Cor oral P,nishrnent Ordinance, Ca.p.l7 provides that where a person is ccnvicted at one triaL of ±wrn or wore distinct offence, any two or more of which are legall punishable with corporal punishment, only one sentence of of a II the offences The learned magistrate could not, therefore, do what he did in this case These corporal punishment awards are acc'dingly set aside 9 and therefor passed one sentence of corporal punishment of 24 strokes on each appellant. The learned magistrate said that each appellant should suffer only one set of corporal punishment: this in effect is making the corporal punishments run concurrently. As the learned magistrat6 is well aware, he cannot dc this. The strokes cannot be made concurrent. The sentences in counts 2,4 9 6 a nd 8 were made concurrent but consecutive with the rest of count s in this charge. I see no reason to interfere with this order since there was no e vidence to show that the commission of the offences in counts 2, 4, 6 and 8 were committed at the sam.e time with the ret of the offences in other counts. T sentences of first and second appellant are reasonable and I uphold them. ORDER: Appeal against conviction and sentence against the 3rd appellant is allowed, and ordered that the 3rd appellant be released forthwith unless he is held on some other lawful purposes. The appeals of the first and second arDeilants are dismissed in their entirety. Delivered in Court on 22nd April, 1971. ---'7 (z.N. ET.-KII$Y.) .CrING JUDGE. Mr. Ntabaye for the Republic. Mr. Rugarabanni for 3rd Anpellant. 2nd and 1st Appellants absent. a