[1950] EACA 558

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and and BACON, Justice of Appeal

### WILFRED TYENYI, Appellant (Original Accused)

# $\mathbf{v}$

# REGINAM, Respondent

### Criminal Appeal No. 104 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Harbord, J.)

Interpretation—"Corporation or company" in section 272 of the Tanganyika Penal Code—Not defined in Code—Must bear ordinary meaning.

The appellant had been convicted (inter alia), on counts of "stealing by a director or an officer of a company or corporation". He was an officer of the United Maize Co-operative Society. Section 265 of the Penal Code defines "theft" and prescribes a punishment of imprisonment of up to five years. Section 272 provides that if the offender is "an officer or member of a corporation or company $\ldots$ " he is liable to imprisonment for seven years.

Held (15-8-56).—As the words "corporation or company" were not defined in the Penal Code they must bear their ordinary meanings and the company concerned not being either a statutory or common law corporation nor a company within the meaning of the Companies Ordinance the sentences under section 272 were both bad in law.

Sentence under section 272 set aside and a sentence of eighteen months' imprisonment for simple theft under section 265 substituted.

No cases.

Appellant in person.

#### Davies for respondent.

JUDGMENT (prepared by Worley, President).--On 10th August, 1954, the appellant was convicted in the District Court of North Mara District on one count of forgery contrary to section 337 of the Penal Code and on two counts of "stealing by a director or an officer of a company or corporation" contrary to section 265 and section 272 of the Penal Code. For the forgery he was sentenced to four months' imprisonment and on each of the two counts of stealing, he was sentenced to two years' imprisonment, all to run consecutively. The sentences were subsequently confirmed by the High Court and were effective as from 6th November, 1954, the date of the dismissal of his appeal to the High Court. At the conclusion of the hearing of the present appeal, we quashed the conviction and sentence on the charge of forgery and also the conviction and sentence in respect of one charge of stealing. In respect of the remaining count we affirmed the conviction of stealing under section 265 but set aside the sentence under section 272 and imposed a sentence of 18 months' imprisonment for simple theft under section 265. As the appellant had already served more than this term we set him at liberty forthwith, i.e. on 24th July, 1956. We now give our reasons for this decision.

This case has had a very unfortunate history. Immediately after conviction the appellant gave notice of his intention to appeal to the High Court. He retained an advocate who filed a memorandum of appeal on 19th October, 1954; this memorandum raised two grounds of law (duplicity and misdirection on evidence) in respect of the forgery charge and three grounds of fact or mixed law and fact in respect of the stealing charges. The appeal was heard on 29th October and dismissed in a very brief judgment delivered on 6th November. 1954.

Although when this decision was communicated to the appellant he at once declared his intention to appeal to this Court he did not file his notice of appeal timeously and, owing to delays and misunderstandings, his application for extension of time to give notice was not filed until March, 1955. For reasons which are not apparent on the record before us this application did not come before the Judge at Mwanza (sitting as a Judge of this Court) until July. It was dismissed on the ground that the allegation relied on, namely, that the trial Magistrate had not heard all the defence witnesses, was incompetent as a ground for a second appeal, it not having been taken on first appeal. This was, of course, an erroneous view: the allegation raised a question of law on which an appeal lay as of right (subject to extension of time being granted) and there is no rule that in criminal proceedings a party is estopped from raising a point of law because he has not raised it at an earlier stage.

The appellant had, in fact, filed a notice of appeal in June and, still undeterred, pursued his application to this Court which finally on 26th February, 1956, granted the required extension of time. His memorandum of appeal to this Court included several allegations of irregularities and illegalities in the course of his trial and, in order to enable the appellant to substantiate these and to give the Crown an opportunity to refute them by referring to the Magistrate concerned, the hearing of the appeal was adjourned from Nairobi to Dar es Salaam and an order made that the appellant be brought there to be present at the hearing.

Before us the appellant has given evidence on oath as to these alleged acts of misconduct on the part of the trial Magistrate and counsel for the Crown respondent has laid before us an affidavit sworn by the Magistrate. The appellant's allegations were, in substance, that the Magistrate had refused to allow him to cross-examine the prosecution witnesses, to call all the witnesses he wished to call in his defence, to read over to him or his witnessess the record of their evidence, and, in respect of these and other matters, that the Magistrate had falsified the record of the trial. The appellant, on his oath, showed himself to be a person unworthy of any credit and we are satisfied that his allegations are untrue. It may well be that the Magistrate did on occasions disallow irrelevant or repetitive questions in cross-examination. That might be quite properly done but, if it has to be done to any extent, it is we think good practice to make a note to that effect on the record.

We now come to the questions of law raised on this appeal. In October, 1953, the appellant was the treasurer of an association called the United Maize Cooperative Society at Tarime. This was not a registered society but its function was to act as selling agent for its members which were small registered co-<br>operative societies of local African maize growers. The member societies all delivered their maize to one Hasham Kassam, who bought at an agreed price per bag. Payment was made by Kassam's clerk to the accused or one of the other two clerks of the United Society in the presence of elders of the member society concerned. The United Society deducted a cess of Sh. 1 a bag. Receipts for cash payments were made out by the accused or other clerk receiving payment and it was the duty of the appellant to enter these receipts in the United Society's cash book.

The charge of forgery (count 1) alleged that the appellant with intent to defraud forged a duplicate copy of receipt No. 4518A in the United Society's receipt

book and also forged that Society's cash book. No further particulars were given in the charge but it was proved that, whereas the original of receipt No. 4518A was issued by the appellant for Sh. 5.430 he made various alterations in the amount in figures on the duplicate and triplicate copies (but not it seems in the amount written in words) and finally struck out the figures entirely. In the cash book he entered the amount as Sh. 3,620 only. The difference Sh. 1,810 represented the price of 50 bags of maize and count 2 charged the appellant with stealing that sum. He was, however, acquitted on that charge, the Magistrate accepting, though with some hesitation, the defence that the Sh. 1,810 was paid for 50 bags which were the appellant's own property. On that finding there was no evidence of any intent to defraud and Mr. Davies for the Crown properly conceded that the conviction for forgery could not stand.

The next point of law relates to the sentences under section 272 of the Penal Code, Sections 265 and 272 read as follows: —

"265. Any person who steals anything capable of being stolen is guilty of the felony termed 'theft' and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen, some other punishment is provided, to imprisonment for five years."

"272. If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company, he is liable to imprisonment for seven years."

It is clear that section 272 does not create an offence, but in the prescribed circumstances of aggravation, permits the infliction of a heavier penalty than is lawful under the substantive section 265. But it is equally clear that the appellant could not lawfully be sentenced under section 272. The expressions "company" and "corporation" are not defined in the Code and they must be given their ordinary meanings. The United Maize Co-operative Society, being unregistered, was neither a statutory nor a common law corporation nor was it a company within the meaning of the Companies Ordinance. Both the sentences under section 272 (the third and fourth counts on the charge sheet) were therefore bad in law.

There were other fatal objections to the conviction on count 3 which charged the theft of Sh. 3,970. This sum was received in payment for 100 bags of maize delivered by the Nyabiri member society. The appellant issued the receipt for this amount but made no entry in the United Society's cash book. His defence was that the money had been paid direct to the Nyabiri Society and that, at the worst, he was only guilty of bad book-keeping. This defence was supported by the oral evidence of a member of that society and of its secretary as well as by the production of two extracts from that society's books (exhibits H and I) recording the receipt of the money. Both these witnesses swore to the correctness of those extracts and the secretary testified that the chairman and council of the society had refused to permit him to bring the books to Court. It was apparent that the appellant himself had done all that he could to obtain production of the books. Nevertheless the learned Magistrate disbelieved these witnesses and held that the two extracts were undoubted fabrications. With respect, there was no evidence to support this finding. If the Magistrate was suspicious of the genuineness of the exhibits he could and should have enforced production of the originals. He refers to the "mysterious way in which the books could not be produced" and appears to have held the appellant or his witness responsible for this: he does not consider the possibility that someone else in the Nyabiri Society may have had an interest in keeping the books out of Court. This was a serious misdirection which vitiated the conviction on this count.

Count 4 alleged the theft of Sh. 3,970 received in respect of a delivery of 100 bags by the Pemba Society. It is not necessary to go into the facts of this charge: there was evidence that the appellant had tampered with the duplicate and triplicate copies of the relevant receipt and had produced a false receipt purporting to have been given him by the Pemba Society. This evidence supported the learned Magistrate's finding that the appellant had stolen this money and, in this case, there was no misdirection. For the reason already given, however, the sentence under section 272 could not stand and we therefore affirmed the conviction but set aside the sentence imposed and substituted a sentence of 18 months' imprisonment for simple theft under section 265.