19710514 TZCA Dar es Salaam2

IN THE HIOR COURT OF ¶IANZANZA

AT DAR ES SAIAAM Criminal Appeal io 12 of 3971 Or.1ginE1 Cz'imiial Case No. 184 of 1970 of the District Cqurt of Ulanga District at Mahenge before L K. taki Esüire, District Magistrate rDTrnflfl %JA4J.a3. tirrtcr'r .** IL4J. APPELLANT (original Accused) versus

THE REPUBLIC REISMENT ,- (Original Prosceutor) Charge: Stealing by ageit contrary to section 275(b) and section 265 of the Peial Code Cape 16 of the Lacis BXRON a, - The appellent was convicted of stealing by agent 26. 1001- 5 and he was sentenced to ipxionment for elghtnths. He is now appealing. The prosecution's case was that the complainant apparently, wishing to purchase a rifle and not havg the wbereithal to do so, borrowed 100/ from a cousin of his end haxded this money to the appel1nt in order to use it in a business enterprise in the purchase and sale of f1b4 The appellent'.s defence was a denial of having receiired ary money at all from the couplainant, which. defence was re ected by the court. The facts as found by the magistrate are fully supported and justified by the .evidencc But the position in law is not, however, so clear. As noted, the appellant was convicted of stea14n by agent contrary to sections 265 and 275(b) of the Penal Code. The first •ection is the general penalty section for theft, whilst the second provision reads as follows:- 1 273 If the. thing stolen is any of the things fol1owlng that is to say - (b) property which has been entrusted to the offender V either alone or 3oint.ly with any other person for him to retain in safe custody or to apply, pq or deliver for any purpose or to any perscm the same or any part thereof or ey roeeds thereof, the

offender is 1b1e to imprisonment for seven years" This particular offence constitutes the offence of stealing bl ageut and such offenee is more fully defined in section 201 0 vhIch reads '261. V(hen a person receives, e.tther alone or jointr vith aotbcr person, any property from another cm terms authorizing or recuirthg him to sell it or otherwise dispose of it and requiring him to pay or account for the proceeds, of the property, or any part of such proceeds, or to deliver anything received in exchange for the property to the persozi from whom it is received or some other person, then the proceeds of the property, and snything so received in exchange for it, are deemed to be the property, of the person from whom the property was so received., until they have been disposed of in accordance with the terms on which the property was received, unless it is a part of those terms that the proceeds,, ifshall form an item in a debtor and creditor account between him and the person to whom he is to pay theni or account for them and that the relation of debtor and creditor only shall exist between theta in repect thereof As conceded by learned State. ttoxey, in view, of the fact that in this case the money was entrusted to the appellant to engage in a business enterprise, in retaiaing such noxy he cannot be held, to have stolen it as an agent, as I thirk is tabundantly clear from

the wording of the sections set out. Iven so, learned State Attorney submitted that the appellant could have been convicted of sbnple theft, citing as his authority the case of Aulzet,naventura v 1987 High Court Digest at page?8 Oasei. ?2 ,n that case a superintendent of police,, who was at the material thne supervisor of the pollee canteen, Mwana, had borrowed various stuvz of money beloAgio& to the canteen, his defence beijg that he was entitled to borrow money from the canteen and that others had also received 1oans The defence was rejected, and in the course of hisS judgment on appeal Cross J. dealt with another iibmission 3'a, I made by counsel for the appellaat as follows (qioting from the jndgment, not from the report in the Digest) - There th one other iiatter in the judgient of the learned magistrate which, the advocate for the appellant has, argued, is a misdirection. The magistrates judgment states : - 1 find as a fact that the accused formed artimus fumnô.i the amounts stated in the charge sheet on the date he deposited the sum of 6682/50 in his bank account and also on Suly 20 9 1986 (when his bank account was credited with the suni 5,000) and he made no attenpt whatsoever to repay the aoimt invived in this oase, Ak On this submission I need only refer to the judgment of 0D01k I 0 3., in the case of BVVIRB vs UGANDA (165) EA,U. 608 at page 610. The learned Chief

Sustice referred to the clear difference between the wording of the 1glish Larceny Act and section 245 of the Uganda Penal Code which is similar to section 28 of the Penal Qode of Tanzania in his judgmew he states:- tin section (1) of the Larcery Act, the empbass is on animus furandi at the time of the takirg, that is to say o the offence is cénritted at the time of the taking and carrying sway of the goods concerned whereas in the Penal Code the offence can be committed not necessarily at the time of taking and carryingway but even at any, time øubseuently thereafter depending again on the cfrctmstances. This case cited can easily be distinguished from the case with which we are concerned, as even if the police officer had authority to snake loans to himself, there is no question of his using such money to engage in a bsincss enterprise as was the case here4 Likewise, the Uganda case referred to and relied on by Cross J. can also be distinguished from this instantase. There a Geyernment agent in charge of the station had borrowed money from a contractor., to whom he hinself incidentally, had awarded contracts, and had also supplied him with some cennt from the Government 8tore. iefore his transfer from the station the official had given the contractor an I.O.U. for the uoney he owed him, but had deducted therefrom the value of the cement he had supplied him, in his judgment

Sir Udo Udoma, C.J., stated at pge 610:- ±. 1 p- , On the finding of the learned trial. magistrate and on the conclusion which I have reached it is of eoure unnecessary to consider this point of law. But by way of obiter dictum, I would like to point out that this subviss ion is based on a misconception of the provisions of s.245 of the Penal Code. 3ucb a subiission may probably be soimd in Egl ish law in terms of the provisions of s.i of the 1glish Larceny Act, 1,916 2 mder idiiirah where the original taking was innocent the subse=Ing, misapproiattofl. may not amonnt to dpending, of coirse, upon the ciroumstanoes. In my view, there is a clear differenoe between the wording of is.i of the Larceny Act and of s..2415 of the Penal Code. In s1 of the Larceny Act s the emphasis Is on anims furandi at the tIme Of the takIng s that iø to say, the offence is cothrnitted at the time of the taking and carrying awayT of the goads concerned /hereas in the Penal Code the offeice lan. be cnm2tted. not necessarily at the tme of taking and caning away but even :t any time subsequently thereafter depending . again on the circumstances " As remarked, that iease can also be 'distinguished, as the Government official had no right or authority to engage in business with Government Stores, whereas in this instant case the money was givon to the appellant in order to engage in a business enterprise.

There Is no question of his having to return the iSis. 100/- given Mn by the complainant. Supposing, for argument t s sake f that in compliaxce with his agreement with the cornjlainant the appellant had purchased fish for the &s. 100/-, aM owing to, say, a glut in the market be only succeeded in selling them at a considerable loss, or even not at all and the fish rotted, would he then be held liable as a thIef for such loss? On nrview of the transaction as a whole, I am very far from. persuaded that the retention by the appaliant of the Sls. 100/- he was furnished with to engage in a fish venture constitutes a criminal offence at all, and in the absence of any authority in that behalf, I find myself tmable to uphold the conviction. The appeal is accordingly allowed, the conViction i quashed and the sentence imposed thereon is set aside*, it therefore follows that the order of compensation made by the magistrate m.st also he set aside. But it Is pointed ot ftr the benefit of the complainant that the quashing of the conviction of the appellant and the ., setting aside of the order of comnpensa.t ion made do not 'in / axiy wq, pmolude him from bzingiig a civii suit foz the reftud of the ft 100/ he adnced to the cop1aant. • • Delivered.in Court at Dar es Salaam this 14th da of M8, 197i (Sg) PHILIP BIROL

JUWL