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fl ¶NN ifIGH c0URT OP TANZANIA AT TA70RA APPILTE JURISDICTION (Tabora Registry) CIINTNAL ' PPEAL UO. 106 F '-1 979 ORIGINAL CRIMINL CASE NO. 451 OF 1978 OF TE DTh3TRICT CC)UFT OF TO.Ri Dl5TRICT AT TABORA Before N.J. I"Tkat'e, Esq., S.R. Nagistrate. NrW NANGE. -. • . . . . . . . . . .. '.• . . . . Ø APP.IJLANT' versus TE REPUBLIC .,. . . . , .•.. . , . . . ••. . . .•. .. . . . . RSPONDENT CT-TTRr Stealing by neson employed in the Pti1lic Service c.ontrary to sectiQn 270 and 26,of the Penal Code.. J U D G N E IT T CNI'T& J.. The anpellantNATHDW AIdTC was charged with and Ôonvicted of the offence of stealin by person employed in the public service c/as 70 and 265, and was sentenced to five (5) years imprisanment, He now appeals. The facts as revealed by the evidence are hardly in dispute, In brief, the prosecution's evidence was as follows. At the material tixie, that is, Nay, 1978, the appellant was an employee of the Tanza- ia Railways Corporation, and was stationed at TahorE where he was Chief Booking Clerk. As such Chief Booking Clerk, the appellant was resomeihle forreceiving money from booking clerks, train ticket exa . minersi and Tabora Hotel. On receipt 'of the rhone*, the appellant i• ld.ei'iter he s8ne in the relevant hooks, among which were coaching summary hooks, 'ndDaily Cash Remittance Book. The appellant would tlen reere a pay-in-slip for all the money received the previous dy and.then hand it to the Station Master who used to.do the actual bankin, 0 Between 24th May, 1978, an. t8th;May, 1978, the appellant reOei'ved monies in cash and ohenues, but no banking was done during that period,4' ecords, which the 'appellant himself prepared, showed that durin those dates he eceived Shs. 1 3,576/55. The appellant paid out cash to the . nyees in the chenues. Thus, as on 28th Nay, 1978, the aoused ought have had ShS, g 42 9 153/40 less Shs. 13,,576t5. in cash, that is, Shs 28,576/8, The apoellant showed in the Coaching Traffic Summary (zh. P.6) that he received that amount, • • Having thus entered the amount he r?ceived, the appellant also entered the same in the cash Remmittance Note I\To, 1681 (Exh. P.9). On 29th May, 1Q7, the appellant preared a paying in sup. In ayinin elip the appellant oughttô have shown that total cash .2/ -10 d.y 0 to be banked on that/for'the period 24th May to 28th May was &hs, 1 28,576/85, nd total amount Th cheues'ws Sh. 13,576/55, making a total remittance of Sh s ,.42i,t3/40. : Thé appeflant however.,. s1pwed on the payirg-in slip that the total cash to he reiited, and which wasin fact remitted was S's. 10,663/10.ridotal in cheques was'7'. Shs. 31,490/30; thus making acorrect total of , 8hs -2 9 153/40. This tallied, on the fac. of it, with the other suppotirdoment. But the truth was ferfroin it. Actual cash receiedy -the arpe- liant asSh.s. 4 2 9 153/40 Chëues received amouited to Shs. 13,576/55. There were cheone io. 0726 dated /5/78 for Shs. 6 1 764/90 whh. he received on 24/5/76 for navTllent to one Kul ele, cheque NQ, 106648 dated 17/4/78 for Shs. 389/15 forpayment to DflO Rashid which he received on the same date, cheque No. 107200 for 3hs. 500/0 for, payment to the igtrict Traffic T4anager Tabora cheqte No,. 1Q64417 for Shs 0 2094/90 for payment to o'ie Salum Tusaka which 1 received on 26/5/78 and chrie No. 106887 for Shs 0 9101= which 1 rceived on t samedae:orp7nent to ie Kakwezi3 O T 1 e appellant paid out oashy.. to the ,naees ji these cheques and retained the ceqne or banking. n..25/5/78, the eppellant received a •chequ.e. No. 0515772 for Shs, 891 /..rom Tab.ora HoteI cr4 on 2Y5/78 he rec.ived cheque No. 9699341 f' Sbs 202Y60 from Tehora ee Ieepnrs Cooperctiv ociety. These cheruas, then,amounted to S 1,-s. 13,576/55. A11 thest cheque oght ; to have 'p so,_he paying-in slip for th' reiod 24th to 27th Nay, 9?Q:I.& that f .2/5/78throgh which the re to 27th was cnked. But that is not what the appellan -t did. On 25/5/78, the appellant prpard a paving-in slip on account of revenue of 22nd and 23rd Nay, 1978 as shown on Cash Transnit ITote No, 16850 dated 25/5/78 in xhibit P. 9 and entered theroin all the aoove cheques (except that Shs, 910/= and that for Sh.s 69764/90) end banked them L 26/5/78 as if it wa.s revenue, for . 22nd,nd..23rd May,. 1978, iñth'äd äf aukin" them as revenue Ior 24 - 2 7 t h lay,1978 as pert of the sum o Shs, 42 9 15310. The cheaue for Shs. 6,764/90 ws banked on 24/5/78 as if it was revenue olJ.ected:on 20/5/78, ihsed.f b anking it aspart of the She. 42 9 153/40. As poirted out earlier, on 29 /5/78, the apllant ugh to lye banked .in cas S1 s. 42 1 153/40 minL - s. 13,576/55 In chequea That he.oght tohave banked in hard cash the sumofSh, 28,576/85 and Shs. 13,576/55 in eheriucs. Instead he hanke. Sha. .10 1 663/101in hard cash, and Shs. 31,490/30 in checiues This is what happened, the apnellant entered n the bank paying- in sli of 2/5/78 cheques which dii not corre'a-poid witn the relevant chec'usfd"the perio. He attached to the' cash transmit No. 16851 on Exh. 9 the following cheques whià.h'he showed as received from Tabora Hotel: '-3-. No Amount . Date received Shs. 1,387,50 285.78 640882 Shs.. .44880 . - d' - J.055702 Shs, 1400 . d o,- B.72567 Shs. 180.00 - do - 1o67 . . Shs. 910,00 26.5.78. .•. A,00589. . Shs.1,950.00 . '-do - A.o.O591 .. Shs.1.3490.30 27.5.78 Totl ...... 1'490.30 All these cheues,, except two, were actuaflrrecéive.d by Thhora Hotel. Those which Tabora Hotel did not receive were çhe'riues' No. A00589 for Shs. 14,950.00 and A 00591 for Shs. 13,490/30 (E'-h, P. 1 and P,2) ThQse two cheques were personal cheques of the ptellanf which he drew from his own. cheqtbook (Exh. P.4) ostensibly in favour of. Tahora Hotel, but Tabora Hotel never received those c1 ues, This the appellant did in order to co'er .a loss in cash ' ' amounting to Shs....2.8,410/= (the total in those'two 'peronal cheques As it turned out those twocheques were d1shonouredby the bank, and \ that for two reasons the dignatures on those cheques differed from that held by the Bank, and secondly, there were ins.- uffiolent funds in the appellant's bank account to meet those, cheques: there was .ahalance of only Shs.,1,783/70 (ith.P.,i'6), So the Bank debited the Corporation Shs.. 281,410/. . .. The matter was then: referred to police and appellant was arrested.. and charged accordingly. . . . . .. In his defence, the appellnt told the trial court that at, the material time,' he was acting Chif Booking Clerk, a job whidh.wa.s. new to him as his substantive pot was that of Controller.. He actedas.. (R f Booking Clerk for a.bout six. m6nths by the time he was arrested,. He wnt on to say that the sytem he found at Ta.hora had someth- ing missing in tat. they did not have a, Daily TransitCa.sh Book which.; shows a summery of all the cash, vouchers and warrants. As. a .result, the Chief Booking Clerk has to sort out cash, warrants and vouchers before giving them to the 8ttibn Master for signature. The, appellant claimed that it was owing to lack of following the correct procedure that the deficieny or loss was occasioned because it was not easy to ,detét'th:.aly loss untll at the end of the week. He added ....' that henad nc adding machine at the time. The he said was not overt the four days period but was an accumulted loss of a longer, periods On the substantive qiiesti'on. the appellant said that. be eventu- ally discovered that there was a difference '5etween the revenue which he got from the ookinr" clerks and the actual amount he had to remit. As a. result he failed to effect banking for four days. He .....'.....4/ - . - H. .-. -... 4. - R then repQrt.ed to the Station Hester (2.r 2) who advised him to $e cleernessr intelligence (maarifa,H o quote the accused's Swahili word), tho'..tht they could close the balance sheet 'or the month. On 2//78,--he shorëd the Station IIasr the deficiency, and he and the Staion Master eed that the l.bsot deficiency should be shown on the sidebf shorremittanccs Eut the deficiency was too big to he shown as a short remit -tance So the appellant claimed, he and the Stat.ibn Mater agrd that the- appellant shou'd use a cheque which would ho nend then the.auditors would find- out where the fault lay and it would then be decided as to who s} ould. make good the loss by salary deductions or by - instalments. So he issued the two cheques, 1hen the cheoues bounced, he was surprised to see that the station Master denied having agreed with him to use his cheque. It was the appellant's case that the shortages were from his hookinF clerks. He denied having stolen thoney. On that evidence, the trial magistrate.halieved the prosecution's evidenc.e and rejected the appellant's story,.-- -:Hè came to the conclu- - siön, on the evidence, that the appellant had t6lei the money and o oniOted him as charged. . -:-- Thiring the hering of this appeal, Mr. Tta.baye for the appellant submitted that the±'e'wa.s no evidence that the. apellant received the money. With respectj I cnnot-.accept that. Therh,a.s ample oral and' curnentary evidence to.show that the appellan.; did receive the money in question. indeed the a-ppilant himself epliiy admitted havig eeeived the money and then prapared Exhibit P. On the cuestion of the two cheques,. Mr. NtaTayesumited that the learned magistrate put too:'. much reliance on thm and made no reference to the appellant's explanatior that his intention was merely that everitaiiy aadiroia would conduct a thorough check and find the culprit. The answer to that question, in the final analysis, bis down to credibility 0 The trial magistrate dismissed the appellant's story - as incdible. -On-my ovm view of the evidence I:arnunab1e to say that the learned magistrae ered----in this regard.. If his intention was asinnocert as. lerned counsel suggested, surely the appellant had no reason to manipulate the cheques, sign a wrong signature on his cheques and lie abbut the reoipiet of those cheques On the eviden- I think the learned Sènior Resident Magistrate ( as he ,;thon was) was--entitled to reject, the appellant's explanation on this point- as - incredible. I cannot, myself, accept - the appellaht 's explanation that.he shortage having been caused by other people .., he should hve been that gratuitous to cover them. -.,.- - - -, .-- - Learned counsel next submitted tha t the learned iastrate shifted the burden of proof on to the appellant. For this he refers this Court to a phrase used by the learned magistrate which 1s The accused cannot convince this Court -- -: - that he was so generous to hs 1)ookin- 0 — — 5 — clerks as to assume the burden of the loss they caused so gratuitously as he alleges in his eidence, I agree that taking that passage as it stands, one is tEmpted to think that the learned magistrate was shifting the burden of proof on to the appellant. Howevër, before an appellate court can come to a conclusion that a trial court has misdirected itself on the question of burden of proof,I think the entire judgment must be read together rather than taking out sentences or phraes out of their context, After going. through the judgment of the learned trial magistrate, I am not persuaded that the trial magistrate in the instant case shifted the burden on to the accused. His judgment taken as a whole shows that he was fully s,tisfied with the pros.ec*t.iotb oral and documentar'r evidence and so did notootict the appellant on the weakness of the defence. The lat part of his judgment clearly shows at he was alive to the fact that the burden was on the prosecution to prove, its case beyond reasonable doubt, Finally, learned counsel submitted that the trial magistrate was biased. Learned counsel claimed that the trial started despite the fact that the apnellant was not feeling well. Learned counsel went on to say that the appellaflt had strong reasoa for objecting to the trial magistrate and so the tria.l magistrate ought not to have sat and tried the case. In learned Counsel's submission, an indepe-. ndent observer, having heard the reasons advanced by the appellant, and the rulihg by the trial court would have said that the magistra'e would he biased. As.to the claim that the appellant was not well when"the trial started, I wish merely to say that that claim, with respect, is not rne out by the.reàDrd Q The record shows that when P.W.1 started to give evidence, the appellant did not indicate to the court that he was ill. It was only at the close of F.W.1 '5 exination-in-chief that he asked for an adjournment becatië he was feeling very bad", and the court readily granted his application. Hearing was then adjourned to the next day. On resumption the flext dayi the appellant again said he was indisposedand asked for an adjournment4 Again his application was granted. fl'ien the case resumed six days later, the appellant never told the court that he was unwell. Besidesi the court took the trouble to remind him of the evidence of 7.W. 1, pnd then: gave him opportunity to cross-examine the witness, It was at that juncture that the appellant told the trial cqurt that he had no faith in the trial magistrate and said that another magistrate, or the High Court, should try the case, He made the application° T.two grounds: (1 ) that the Station Master, who was one of the key witness, was a friend of the brial magistrate as they went to school together and so, he believed, the station master must nave briefed the magistrate about the case. I tOaot a,.. 0 - (2) In his opinion,, the Station Master ought to have been jointly charged with him. The appellant added that he had noticed that the trial magistrate had dealt with that case on more than three occas±ons As learned counsel will apprecia.ts all those allegations about friendhip and schooling were not true Up to that point, the trial magistrate had flone nothing to leave a. suspicion that he was biased. en assuming, for the sake of argument, that P,W 2 and the trial maistra -be were people from the same region or that they went to school together, would that alone suffice to cea,te a reasonable uspicion that the trial magistrate would he 'biased? I do not think 50 4 The law on judicial bias is quite clear and it is this: bias o t, lik6lihood of bias on the part of a. magistrate in a particular proceeding disqualifies him from sitting in.such pro-ceedingi, and if • dea sit, his decision will he qua.shd. And what is judicial bias? To constitute judicial bias, it must be shown that, in the circumstances of the particular case, right-minded people would think that therewas raI likelihood of bias on the part of the learned magistrate. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the magistrate or Judge would or did favour one side unfairly at theexpense of the other. . Co. 0 (,f :G 0.,) Ltd v. ..Lannen(196) IQ,]3.577-Per Lord Denning,.M.R.). The question, then, is whether in the iztant cas'ea reasonable or richt-thinking man would have said: The trial magistrâte 'will be or was sedll From what appears on the record, which I accept to he a fa±thful ount of what happened, I em far from persuaded that a reasonable man would have gone away thinking that the trial magistrate would be L or ias biase'd 4 I think he would have gone away thinking that the apnellant wa endulging in mere conjectures;: If this Court were to la.y down a rule that there is real likelihood of bias in every case In which a magistrate and a, witness have been to school together or come from the same area,.it would he setting a. dangerous and totally erroneous principle whose effect would be to distort the law and at the same time incapacitate subordinate courts, because many magistrates work in their hoffie areas or.kn .ow and are ±own by may people in their local areas of jurisdiction.: .4 In short, I am not persuaded that the trial magistrate was biased nor that there was real likelihood of bias. From the foregoing, and on my own view of the evidence on record,, I am of the settled view.that the conviction was justiied and so must he left to stand. As to the sentence, it was the statutory minirrnim and adenuate in the circumstances, In fine, this appeal fails and is accordingly dismissed in its entirety. .. ......