19740911 TZHC Mwanza3

. -. IN THE HIGH COURT OF TANZANIA .. . •• . .. ,. . AT 1TIWANZA HIGIFCOURTORIMINALAPPEALSJqos. 194 9 . 203 AND,*304 OF 1974 . Original Criminal Case No. 181 of 1973 of the District Court of Mwanza District at.Mwànza before L.G0 Ruaimukamu,:Es, D/M: JUNA ALLY& 2 OTIS • . • o o.. . . 0 0 APPELLANTS • VEIT.S,US . TifF REPUBLIC . . . . . • • . . • . RESPONDENT -cHARGE: Stealing by servant c/as 271 and 265 of.the•Penal Code. • . IV1FALILA, J.: The three app11ants:RENATUS 5./0PIMA ? 1st.:actisedin the trial court, WANGAELI:s/o APAELI,.2n. aOcus.ed. and JUMA s/o. ALl 9 3rd: accused were convicted, in the district court ai Mvtanzà of the offence of stea1g by. srvant. con -trary to section 271 oftie:Pená1 Code.As.thet' were employees, of a . ape cified .athority that is to say. the .def unt lMwanza Town Counoil, they were .e:ach sentancd to •- years' imprionnient .uiider , • the prOvisions of the Minimum Sentences Act 1972.. For ease of efrnc I I iri11reta:in the designation of each appellant in thc'tri court. .' . At the end of the hearing of thèsc.. appeals on .4/9/74, .1. alldwed'.th'c. appeals of the third accused. Juma Au, quashed his conviction set aside the sentence .:'iPp.oSed on him and .ordere.d his.imrnadiate rcleaae:frorn. Prison. 1 reservedmy reasons whih I: .intd 'to giv. :t.dy, The 'judgment in • . repec.t. of the first ard second: accucd persons was reserved.. The

evidence as led at the trial revealc'd. that on 1/10/73 a lorry rcgistraton No MZB 587 driven by the second accused, proccededto the AGIP Depot Iwanza.. The purpose of. the. -trip was t9.collc.0t 400 litrcs of petrol a-legd1y fol' the Mwai Town CóunciLT.vido.'ocal puch.e rder (L.P0o);No....244162 dted 26th September 1973.- On- presoñtationof this L.P.O., Jgip, supplied ths, petrol, as "roquetd vidc Delivery Order No. 18586 and Loading Order No. 9536. . The pe.tol was put in two drums which were •1paded onto this :lorry.boloriging to thie Town Council. After spiying the pctrol,as, above, Agip prc.pard -thir,.±nvoice'No.,3126 and tpgthor with the LP.0. sent it to the Town'Co.nc.i1 for .paymnt. when those documents. .rached. the Town Council Offices, they were queried, for they did not appear correct. ISACK ONACH (P.W.l) tha, Works Inspector, stated that on 17/10/73 as he was on ,duty,, hc was presented with air "invoice. from Agip in respect of. two drums of super petrol. His inquiries rcvealçd that no such ,potro1 had been received • . by the Town Council., and 'on .furthcr., inforMation he .proccded to the Agip Depot with the 1st and 2nd occuzcd persons to make further inquiricp rpgard.ing the supply and delivery of the petrol invoiced. t ihc depot, nc was t1d tbet a Council lorry IIZB 587 had gone there and colic c-ted the said p trol and that it was the three accused persons

who had. travelled in tha 4 lorry and co1lotod the pqtrol. At this juncture the 2nd 'ccuzoo. roqucated Iiv. Omach that they o back to the office whore ho would make ai explanation regarding • the two drums' of jetrl. sack at th ie offic 'the 2nd. a8àused'ó1t. Mr. Omach thai i was h and the 1st. accuseft - who had takn the petrol frmythe depot and in the presence of both the Town Clerk and Totm Engineer, ?dr. Boko (PW.2) he asked 'la they be forgiven. The forgivcness akcd for was.not granted as the incident was reported to police who proceeded t o prfer changes agiinst • . them. .. :. • c,.. . .... ..... ....•.. . .. .. . Two employees a the Igip depot, gave cvid(nce iescribing how the three accused persons went to thi depot in a Council loriy on 'thu day in question and collected petrol. MAS}TAUR KITENDE (P.w.3) s ic1 that on 1/10/73 a about 2 p.m. the thr.e coiiseci.peraons .wct'.tô his off±cc I at.'theigip depot. to collect pctrol. He said that they went there in a lorry driven by the 2nd ccuscd. On arrival the 1st accused produced Town Council Local Purchaaø Order and asked to be supplied ith two drums of p'tol. Mashauri who was a petrol attc"idant at the depot supplied the petrol rcquird against his loading order.N.9536.. : .D. Iie;ide.i'tif±cd thQ.3rd c.cts.ed:by his puncturQd'eer and UT Do:) -çci. PDIUdId pi o.t DZI ci2m .T tfl. .00ucrpTf t1o. -ç aa uottb u ip otj. uo qo

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drums.. .This pa -trol:was there-fore never delivered to the Town.Coi.nci1.. The apprehension of. P.41,41 was thus.j.ustified a.d he rightly querrid invoice . No. 3126.. : For all the-sc rosons, I a m atisficd as was -ti~ learned trial magistrate that on 1/10/73, the 1st accused wits. an L.P.O. Fx.i proceeded to igip.depot in a Council lorry MZB 587 drive n by the 2nd accd use and on the strength of this L.P.O., he. collected two.:drums 'of. super petrol worth shs. 644/ and it to destination ot'icr thcn te Council ' rd. This prtrol as not received by the .'C.ouncil,'.it.must.have bc-cn..put..to.thc 1st accused's own use-., ht this stage the-ri there is tic. problem of. identi'yixg the offe-noc. committed by the appellants. They were charged with stealing by servants and .thi1y'convctecj. I' think ,the%..tiis charge wasmisconceived. .The:two drums of ;PQtQ1 never bocan3c,tho popety of the Nwanza. Town Ce-uncil in thc cirbumst.- ancas of this case. what happened was that.,the- lst.accuscd ...brandishjag a Council purchase order falsely pretended that he was buying petrol for the Counci1whon he knw in f actl that he was not. He th&refore obtainad this pe -Lrolby false pretences, he did not steal it because ownership was in fact passed. For these reasons the accused should have been. charged with Obtaining Goods by False Protcnccs contrary to section 302 of the- Penal Code and

con- soquontly under the powers conferred in section 187 of the Criminal Procedure Code-, the powers which should haVC bce-n exercised by the trial magistrate, I acquit the 1st accused from the offence originally charged and substitute a conviction for the offence ,undc S. 302 of the Penal Code. Subjcct to this variation, the appeal of theIst accused is dismissed. " ,.. .. ... The case against the 2nd accused indicated that ?b was the driver of the lorry which was used to transport the petrol from the depot to its intcn,ed destination, It was for these reasons that he complained tht he- did net know that the 1st accused was committing an offence-, for he simply obeyed his instructions to drive- him to the Jgip depot and.coll-ct the drums of petrol which on further instructions he tool: to Nyan -ianoro whore he left' ti'ie 1st accused, his relative and the two drums of petrol. This may be so, but the circumstances in which this petrol was collected were such that if he- did not know or was not a party to the original plan,, his suspicions should hvc bean aroused. By his own admission, h Imew that Council petrol is collected in Council drums taken from CouncilDremises, On this particular occaSion he was asked to go and collect :rums Trom non-Council premises, they then procoàded to the petrol depot where the drums were filled with petrol on the strength of Council L.P.Os, after

so filling the dxums, he was instructed to proceed to Nyamanoro where he deposited the drums and left the 1st accused there. He himself drove back to the Council yard. These incidents would have arousedthc suspicion of any man, and prompted him to ask a question or two. But the second accused, not only failed to entertain any suspicibns, but he went farther and tried to cover the nature of his mission to the depot. Contrary to normal practice- he deliberately refrincd from stating in his log book Ex.E the purpose- of his trip to the i'gip depot. Thercosons can,only be- that he wanted to cover whet the let accused hd done with his assistance. He knew the illegal nature of the activities of the let accused, he nevrthe- less assisted him in carrying the-rn out and helped him further to cover them by entering incomplete- information in the log book. Therefore if the 2nd accused was not part of the scheme worked out by the lst accused, he t least aided and abetted the o'fcnce committed by him. He was thc'efore liable and c:posed himself to be convicted as a principal offende-r under section 22 (b) of the Penal Code, and.fer the reasons given bcv he is also convicted under S. 302 of the Penal Code-. E'xccpt for this variation, the appeal of the 2nd accused is also dismisscd. I will now consider the sentence-s imposed. The trial magistrate scntcnccd the accused persons to three years'

imprisonment under the Minimum Sentance- ict because on the charge before him, the property stole-n belonged to a spccifid authority. I have- already shown that the charge as laid was mis- conceived and subtitutod, a conviction under S. 3Q2 the-re-by re-moving the -4; - S. offence from the purview of the Minimum Sentonces. .Ict, .or. it was not shown that LGIP (.Tanzania) Ltd. from whom the accused irsons..otaned poro. frauciu]cntiy is, a pecificd authority. But apart ±rora the fact the sentences of three. ycas now require tho oonfirmatio of this Court, . I cannot: say that thcywere o. excessive that this.. Cu't should intervene. . On ho conTtr.az'y the maximum sentence for offenccs under S. 302 has been increased to seven .:yars. The scntncos wore thcrcforeproper evcn.outside the Minimum Sentences Let.: They are accordingly confirmed. The oic r for corpensation made against the accused p-rsons i favour .;of the pfficp o the District Development Director is set aside as they stole no -thing fIr om. th defunct Town Council of whicl ..ne officc of the istrict Devclepmcnt Director is.. -the successor. :. In the rroult, apart from the variations indicated in the body of the . the appeals of the let accused RENLTUS FIML, and the 2nd accused z...I'GAELIAPAELI arc. dismissed, .. Dc]4v0:rcd in Court at Mwanza this 11th. clay of September 1 974- M iJZL L. 11th September, 1974- . . . JUDGE ....