damian g mrope vs republic 1984 tzhc 48 2 november 1984

I F T li: Hici: CJOXIV O'" T:,J' AI7IA Aft* T.- m /i X .L ! u‘3/ . HIGH COUiW? COJMTJ^ kPPtfiL NC, 16 OF 1981 O rigin al Criminal Case ~'o.55 o f 1930 o f the D is tr ic t Court o f ^on:;ca 'in t r ic t At Songea Before Ii.G.C. I-aj^ri, .'isqt> 1'iesident IiagiDtrate DAKI^F G. MROPE ............. * . ................APP3L1, .Ff Verf m s TIL.) IC SrU B jjIC ............ * ................................. .KSSPOO^ITT J'Cxm'VT MSUL7I, J. Appellant one Oamian 0. i'^ p e was sentenced to fiv e years imprisonment by the D is t r ic t Court o S o n g e a a f t e r he v/as found g u ilt y and convicted o± one count o f s te a lin g by Agent contrary to sections 273(b) and 265 o:’ tbc- Penal Code, He is appealing aga in st that dec inion. The b r i e f fa c t o f the circui.: :tances which led to th is case are as fo llo w s . A pp ell ivj employee! ir. the o f fic e o f the Regional Developmert d ire c to r .>ongea an accounts c le rk . His immediate o f f i c e r was ono Ih ilip o Joram Uitumba. I t i s in evidence that on the m aterial i’.itumbr. ap p lied fo r S a fa ri Imprest but he was rcfuced as ho had not re tir e d the imprest given to him p reviou sly . Lituuba needed the imprest so that he could uae i t while attending a seminar o f teachers which was to be held a t Magagura v i l l a g e . A ft e r h is reouest fo r the said imprest "/as refused, I-litumba convinced the ap p ellan t to apply fo r the same. Subsequently ap pellan t was given shs.6,000/= as s a fa r i imprest f o r the said seminar. I‘ut f o r some undisclosed reasons, ap p e llan t did not go liaga^ura to attend the seminar and worse s t i l l he fa ile d to account :'or the said imprest. Immediate steps were taken to recover the said imprest by monthly deductions from h is s a la ry . This went on fo r about three months before the a u d ito r one Jumanne ,\. rlareja discovered i t . The a u d ito r reported the matter to p o lic e and accordingly ap pellan t was charged. In substance, prosecution is a lle g in g tie t ap p ellan t was issued with the imprest o f shs.6,000/- on b e h a lf o f hitumba. And c o n v e r s e ly i t fo llo w s ■tha t ap p e llan t was supposed to spend the money according to the d ire c tio n s o f Ivlitumba.. 7 ith resp ect, I have found th is arguement q u ite novel; i t lacks the support o f the evidence on record. I t .is c le a r ly shown in the evidence th ...t the shs.6,000/= was issued to a p p e llan t a f t e r he had f i l l e d the appropriate imprest appl'ia. tio n fo.Ttaa. Bowhere has i t been in dicated in those forms o r i. the payment vouchers that the caine was being given to the ap p e llan t on b e h a lf o f Mitumba. Granted that i t was on the suggestion and/or pursuation o f I-itumba that the au th ority agreed to grant a p p e lla n t 's request fo r the im prest, But one thing is u m istak e: ly c le a r ; that the imprest was even tually given to the a p p e llan t porsoraly* rtartheimore, a p p e llan t was p erso n ally accountable to h is employer - the Regional Development D irecto r I'^oivea - and not to Mitumba. Suppose a p p e llan t had in fa c t attended the seminar and properly uLed the imprest, would he be required to submit the re c e ip ts and and relevan t explaA, tio n on how he spent the said imprest to Mitumba? D efin ately no. vG 7;o.0.d have r e tir e d i t to h is employer. Then how does the agency re la tio n s h ip between ap p e lla n t s and Uituraba a ris e ? ^ .\ From $iis reasoning, i t appears that the learned t r i a l .Resident M agistrate was o f the o p irio n th:j. t a p e lla r t committed the offen ce o f Dimple th e ft contrary to section '265 o f Penal Code ra th er than s te a lin g by agent* This is c le a r ly revealed when he says: M. . . . . . . His problems notwithstanding he had :ino colour o„ r i to spend money intended f o r the se'viinar io r h is own use. And that deductiors hac started being made in hifr s a la ry x does n eith er a f f e c t h is crim ii-al in ten t ( s i c ) nor p roof the o ffe r e e charged. In section 2 5 8 (2 )(e ) o f the Pe':al Code "t h e ft " is defined as in the case o f money an in tent to use i t a t the w i l l o f the person who tahes or convert i t , although he may intend aftorv/ards to repay the amount to the owner. In these circumstances p ertain in g to th is case I fin d m yself s a t is fie d that the accused committed the offe> ce charged"’. With resp ect; I think the learned m agistrate had unduly overstretched the p rovision s o f section 258(2) ( e ) o f the Penal Code ./hen he ap p lie d them to the circumstance o^ th is case. V.nen the o f f i c e o f the Regional Development .'"»irector parted v/ith the shs.6,000/= to a p p e lla n t, i t did not expect i t bach l e t alone the very currency notes o r coins issue:' c a «. ’ pp 12ant was to spend i t , a l b e i t fo r the purpose o f which w i l l be ac cep "table t.; the o f f i c e o f the R#D..D. Hence i t is not c o rrect, £2 i t v/as held by the t r i a l m agistrate, that a p p e llan t iv_:.d no colour o f r ig h t '1 over the said sh8.6,000/=. ouppose uomelody S'cole the raid money from the a p p e lla n t. I am doubtful i f jlj-.t man would h v e been charged v/ith s te a lin g the said sh s.6 ?000/= belonging to the Government. In corclusior; I am o f the opinion that the charge aga in st the a p p e llan t has not beer proved bevo:.:d reasor:ofcle^°Ulc c o r d ir ^ ly I quash the conviction unci set asid e the sentence. I f he is s t i l l in custody, ap p ellan t i s to be released immediately unless otherwise la w fu lly detained. \' j -c .\ V s i u - i Jud^e 2.11.84