19830127 TZHC Mbeya

IN TRLJ nIGH COULiT OF TN1 L'iYA.. i.mTflj JIhLI.UI GTIui. CR3JJ.iL 202 OF 1977 tx DODOMA Cr.pp. i.2O3/77 OrtIGJJi'ao. CRLJ.±I Cb iu. 70 0.? 1977 OF T.LI.LJ .1dDJuI CoTJiif 0.? Jj flIbTiiICT i2 IiLiG 1LJ0SalH. ........... DAIMOND .CHDO Th i.J&lC .......... ...........1*fr'UN.iJb.iNT C}LRGn: Stealing by Servant c/s 271 and 265 of the PoraJ. Code.

JUJXIJNT kOS0, J.: Two appeals naucly Crinirial peal io. 202/77 in which .HFH.aL Jub±R is the appellant, hereixiafter ref rreu. to as the first pe1iaht, a.flo. Criminal pea1 hauber 203/77 in which iJal&LO..0 Cini0 is the hereinafter referred to a s the secona appellant, are cnsoUdatcd for the purpeses ui hearinL. ann this judent. The two appeliants, both bus concuctors employeu. by the J-ringa Region Transport çoa.any, hiceforth t be rferreu to simply . as IkaTC0, were each cagea seprat.e1y but on the same ch.rge sheet with theft by servant. '?hu first appeliant was chrgoa on the first count With stealing shillings 1,781/80 from Iii2CO, which money allegealy cauc to his Possession by virtue his employment as a bus c..nauctor. The second appellant was charged on the second count' with theft of shillings 7,531/50 from 111, TCo, the money having CauC to his possession by virtue of his employment with the cumpaay, also as a conuctor,, The perluLi within which both appellants were supposeatc have cemmitted their respective offencos is the same but ieither the charge sheet nor the eviu.once that was adnuced t0 the trial court aako clear, why they were charged ann trien t o gether. It is throfore apparent that there was a misjoinder of accusea persons... It was alleged thnt beth ao1aaiits cJ±uctcd b.s fares in their role as bus conuuctrs out uiL, not remit their reo ective fall

collect- ions to their cap yer It is nt ol'..r if both wor ed in the same Ous as conductors and that they j ointay shared the work of collecting fires from passengers. it i s r,,j t also clear, i1 thit was the case, whether they were to acount separaeiy or jointly for their respectiw collections.' A misjoinder of accused persons io an irreuiaxity. which is curable if it is shown that a miscarriage of. justice was not caused thereby. See .wUnihiahV. '.e•ei S.Ll eiJ 0 1977 LRT,n.29, (2) per hisanga, J. that was considered a case of misjoinder of dounts but the facts also conslituted a misjoinder of accused persons and the irregularity was considred curable • The question in the present appeal is whether either appellant was prejudiced by the misjoinder. The eviuence as given by i-.v.1 - a Cashier with L1jifCO, was that the second appellant (.Uaimond Ohando or Kyanno) returned frow Dat' es Salaam on 15/12/76 where he had gone aparent1y with the company bus as a Conductor. According to the witness Daimond did not hand over the fare collections to him as he should have done. From Daimond's icket book it was apparent that tickets had been issued to passengers who fare in the amounts shown on the duplicates of the tickets. P4.1 a claimed to have discovered that flaimona had a secret ticket 000k from hich he issued tickets to fare paying passengers. The book was a11gedly handed to the

witness by flaimond. iLcom the official ticket cook it appeared that .L)amnond had collected shillings 220 5/= which the witness said was not handed over to him. Under cross-exninat±on by the seconL appellant the witness appeared to say that hs,5,326/80 was collected by the second appelian using the secret ticket book between 12/11/7b and 14/li,(t)/76. Regarding the first appellant the witness merely said he issued a rceijpt for hs.900/= paid by his father Joseph. .blsowhere in his evidence the witness. said one iLfail LisLulsi was supposed to account to !him for shillings 17/3 0 . lt is not knovrn ii' Rafail ksausi is alo the same p. rson as haphaci Joseph, the first appellant. The company accountant, i'.2 Flician hasheshe said he received a report that !Jthe accused had not paid over fares". 1 presume he meant the two dppellants. The witness continued.:- "1 asked th(.:m aoout the aoney whien they had not 'handed over to the cashier. They said that the money was not with them out promised to lock for it and. repay .............I expected shillings 79531/05 from kyando and shillings 1,7 81 /= from the other. The total amount was hs. 90u/= they said they would pay 1 . It was said that on 24/1/77 Joseph the father of the first appellant paid hs.900/= on behalf of his son'?). A t'eceipt was issuca arid, the payment was termed apato yn bus". P.3 Iviwaiteocle who was thG coapany

General ,teenagLr said in his evidence tht both appellants coafcescd. that they had collected some money and tacy were ready to ay," he also said "ticket books show that accused 1. co11ctd hs.i,7bi/= end. accused 11 collected hs.7,531/05 which they did not hanu over to us". it is not known which book showed that the first appellant had collected ahs.1,7 81/= and which books showed that tne second appellant coli..cteu Shs.7,531/05, The witness further c.Laimeu to show thu first a.el.a'nt T s sIgn -(3) although he does not say how he dained that thowledge. lie purported to poi.nt out sipatures of the first appellant from some mysterious book of which it is not kno from the trial record if it was produced in eviaence as on txhibit. The appellants denid tiat they sto:Le any compnay money. The first appellant apperd to aery that any money due from him was repaid to the company. th second appellant denied that had admitted having collected the iror.ev h was aaige to have stolen. The trial madistrate aceepteci as proved that both appeliacnts •collected the amounts t1uy were said to have stolen and that they failed-to hand it over to the casilier, *i.l. lie also believed that both appellants admitted before theiauager 'having occassioned the loss and were prepared to rpay it, he therefore faund them guilty of theft as charga. rom the facts rcapitalated above it is clear that the

evidnc against the first appellant is vtry scanty and inconclusive. TFie ticket books which were p roduced in evidence and from which. apparety the amonants alleged stolen wore computed did not appear to be relant - to the case against hian The trial magistrate ho7er appears to h arC treated him as having been jointly charged. with the second applD and - that the evidence -against the occid I:-al:L2nL a1s affected him equally. As it has turned oat, it is not at all known how the prosecution and the trial court arrived at the amount of Shs.l7 8 1/ the first appellant is said to have stolen. ad the first appellant been charged and tried alone for the alleged theft imputed to him the trial magistate would have found that there was no sufficient incriminating evidence against him. TW.i - the cashier who knew which bus conductor remitted money and which did not hardly said anything incriminating against him., The misjoinder, I referred to earlier, therefore, resulted in an miscarriage of justice against the first appellant. I quash the conviction against hire for the aisjoinder and also for l8.O]C of auffiaie4t - evidence against him. - The sentance of three years imposed on him is set aside. - As hc has already completed his prison sentence, I find it unnecessary to order his releae from prison. As for the second appellant there is no doubt he had been issued with the ticket book

Lbch.. 'A' bearing serial nuubes from 55801 to 56400. The ticket books -register Exh. 'B' shows that fact. The book was used on 9/12/76 and 15/12/76 during his bus trip to and from Dar es Salaara. Total cash received on those dates for the tickets issued amounts to Shs61,205/=. The cashier - Ii.l a±:itted receiving only Shs.1,000/ thereof and a balance of shillinds 2,205/= was unaccounted for by the second appellant. The appellant did not attempt an explanation of the money in his evidence. The only inference to be drawn is that the second appellant expropriated it. - . ..... 'I- (4). As for the money allegedly collected on the supposed secret ticket book amounting to Shs.5,326/50 the evidence was not clear. If it was true that the second appellant had used that ticket book, of which there was no record that it had been issued to him, with a view to appropriate the fares collected on it, I find it most unlikely that that apellant would have given it over to Pd.l, knowing that it would incriminate him. After all no one knew that he had and used such a ticket book, if a indeed he had used it. Theevidence that he collected the money as reflected on the duplicates of issued tickets was based on the claim that his siiature was seen on those duplicates. But there was no proper evidence to prove that it was his signature. The claim that he admitted having collected the entire amount

stated on the charge sheet waL denied by the appellant and I am inclined to the v'iew that he never admitted it. l in all, I cia satisfiea that the ovidence only proved that appellant Daireond Chando stole by servant only Shs.2,205/=. I therefore dismiss his appeal against conviction, except as ogads the amount stoler. . The sentonce of I yoars inprisonient imposed on him was on the high side but cannot be termed manifestly excessive to justify interference by this court MBuYA J. A4 hRO sO, 27.183 . . JTJTJcJ )