19730111 TZHC Tanga

LPFELLJTE dURISDICTIiN • : HIGH C:UET CRIMTNJL iPPEiL IO. 423 OF 197? Original Criminal Criminal Case 1368/72 Of the District Court of Tanga District at Tanga Before: E. D. Chipeta, Esq., Senr. Res. Magistrate JOAQUIMs/o FEENAI\1 DES ......•.,.....•.. • (LPPELLLNT (Original Lccused) eHLRGE: Conspiracy to steal, False accounting, Obtainirg money by false pretences c/ss 384, 265, 31..nd 302 of the Penal Code. JUDCMEN T ' - L • Bramble, J. The appellant was charged jointli with c.thers and convicted on three counts namely:- (F Conspiracy to steal contrary to section 384 and 265 of the.Penal Code; False account.ngby public officer contrary to section 318 of the Penal Code; Obt-ining mone' by false pretences contrary to section 302 of the Penal Code. He was given different terms of imprisonment and has appealed against conviction and sentence in each case. The facts relied on by the prosecution were that the appellant was the Book-keeper and cashier of the Ki-baranga Sisal Estate. He maintaiped the accounts and was responsible for the preparation of the National Provident Fund contributi-:ns and could make individul.payments süch;.as compensation and severance allowance. Lccording t the Divisional Manager, P.W.10, the procedure for the payment of severance allowance was that the clerks checked the records and took them to the cashier and assured him that those were the records. If the casIer trusted the clerks he took the prepared cards to the Manager for his signature. The Manager trusted the cashierWhiri turn trusted his clerks. No payment was made without the signatures of the Manager and the Cashier.- On the 10th Iovember, 1970 the auditor checke.a the Kibaranga Estate. PW1 found that a person by the name of Charles Ndeguenlaya had been dismissed in January 1970 and in Lugust, 1970 he was paid sbs 412/50 as severance allowan. The computation was with respect to 7 years and 3 months. il.fl employee who was dismissed was not entitled to severance allowance and the particular employee testified that he never received any money. It was pioved that the thumb-print on the relevant receipt was that of a clerk who was one of the accused. The second case was that of a man called Majengo Balenga. The records showed that he had worked for 7 years and 11 months when the severance allowance pay form showed P years and 7 months. The salary at the time of leaving was put fts 40/= higher than it actually was and he was alleged to have been paid shs--608/65. This employe was. not entitled to severance pay aiid claimed that he never received any. The fingerpriht On the form was that of another of the accused. Next there was Pondamali 7/injandege who was alleged to have received hs 1193/15 where there was nothing die to him. Heclaimed that he received shs so/= only. I - - a There were many differences between the statements on the severance pay form and the record of the employee. The appellant gave an unsworn statement to the effect that he was given, responsibility for three Estates 9 one of which was Kibaranga. There were about 3,000 to 4,000 labourers. It was the muster-roll clerk who prepared the records and gave them to the clerk typist to prepare all vouchers for se3rerancë allowande. The G'oup Manager used to check the records and sign the vouchers. The appellant would then make calculations at the bottom and sent the payment vouchers back to the Group Manager for him to check. It was then the duty of the Group Manager to come with an askari and the payee. The appellant was not in a position to identify each worker. After examining the whole evidencethe learned Magistrate found the two co-accused, whose thurnbprint had been found on two documents falsely ackoWJ.edging the receipt of severance allowance by other parties, guilty of the offences charged. With respect to the appellant he said:- It cannot be denied that accused Io. 1 was responsible for payment of severance allo\eance. He was not new to the job. He is the person, as he says, who used to train the clerks which must include the records and master roll clerks. In normal circumstances he would be expected to check the records brought to him by his clerks and I am satisfied that he used to check them. If he did, as I think he did, then surely he ought to have discovered, and quite easily that Majengo and Charles were not entitled to severance allowance. These papers must have pased through the hands of the Lccused. I am satisfied that he is the person who made payments on the two severance allowance forms which are falsified as they do not bear the signatures of the payees mentioned therein. If accused 2 and accused 3 had been strangers to accused 1, I would have entertained some suspicion that accused I was fooled ............. The fact that the Manager' had to authorize payment before he paid out the severance allowance in no way absolved Accused 1 of the responsibility of checking the records of payment. en On this note the learned Magistrate proceeded to convicu the appellant. There is an asumption that the two other accused had presented themeelvés to the appellant for payment on the forged' vouchers. There was no proof or suggestion of this in the evidn.ce. Apart from what the appellant said there wos no evidance as to how payment used to be made to employees.. The posibility that some other people presented themselves as the persons named in the vouchers was not excluded and there is certainly a misdirection. Phere was no positive finding that the appellant had checked the relevant papers. If he made payment without doing èo it would have been negligence not amounting to a criminal offence. It must he remembered that he said that the Group Manager used to check the severance allowance ae'ainst the record and then it would be sent to him for calculating the figures. In such a case the appellant would not necessarily refer to the record as he world rely on the clerk and the Group Manager who would know the employee. It is normalr,.to delegate authority in large administrations and while responsibility remained in the appellant he cuuld not be blamed for relying in his subordinates. The facts on which the appellait was held, to be a. party to'the offences was that heicnew the two co-accused and that he was unier a responsibility to check the relevant papers. Ieither one nor both could. be - 1 • conclusive proof that the app(iilan;t was implicated and it will be quite unsafe to uphold the conviction. As a result I allow the appeals, quash the convictions, set aside the sentences and order tht the aupellant be immediately release unless othervise lawfuliy detained. Delivered in court at Tanga this 11th day of January, 1973. &- z. E. Bramble) 3 U D GE. /cwm. t