Haruna Said vs Republic [1991] TZHC 17 (11 September 1991)


E Mwalusanya, J.: The appellant Haruna s/o Said was charged with 59 counts of stealing by a person in the public service c/ss 270 and 265 of the Penal Code Cap. 16 at Manyoni District Court in Singida Region. He was acquitted of all 59 counts. At the end of the day the learned trial magistrate decided to draft his own charge F consisting of one count for stealing by public servant Shs. 85,055/= for which the appellant was convicted. He was sentenced to five years imprisonment. He is now appealing against the conviction and sentence.
G The appellant was a station master with the Tanzania Railways Corporation (T.R.C) and was stationed at Kintinku, Among his duties was to collect revenue for his employer and remit it to the headquarters in Dar es Salaam. On 30/3/1989 a Section traffic Inspector of T.R.C. Tabora Mr Hamisi s/o Chemchem (PW.1) prepared H his report Exh. P.1 after inspecting the account books of the appellant. For November and December 1988 he found that appellant had short remittance of Shs. 85,055/=. And for March 1989 he found that appellant had hard cash short of Shs. 35,600/70. And so on 6/6/1989 appellant was sent to court and get charged with two counts - I first of stealing Shs. 85,055/= and secondly of stealing Shs. 34,600/70.

The above charge of two counts was substituted with a new charge of 59 counts on 2/12/1989 when the trial A commenced. The persecution substituted a new charge following a fresh auditing of the account books of the appellant by an Internal Auditor of T.R.C one Mr Daniel Martin Mkasu (PW.3). The said auditor conducted his audit in May 1989. He noticed that on numerous occasions (59 times) the appellant collected sums of money but B recorded loss in the main cash book which is called the Coaching Traffic Summary Book. He found in total Shs. 104,769/50 was stolen for all the 59 counts.
The appellant at the trial contended that he had a shortage and not theft at his place of work. He explained as to C how he incurred losses in his accounts which was not deliberate theft. He said that his employers understand the situation and took it as a shortage and not theft and that is why they allowed him to refund the missing money. Thus on 22/5/1989 he refunded Shs. 30,000/= vide receipt Exh. D.I. There are two letters from his employer Exh. D.2 D and Exh. D.3 which indicate that indeed appellant was allowed to refund the shortage he had incurred which was not regarded as theft. The appellant testified that the practice of requiring an employee to refund the money he or she incurred as shortage, is very prevalent in their institution. He said that he was surprised as to why he was E charged with the theft offences.
What has troubled this court is as to whether the learned trial magistrate was entitled to substitute a conviction of the theft of Shs. 85,055/= when he had acquitted him of all the 59 counts. Admittedly under s. 300 (1) of the C.F.A. F No. 9/1985 a substituted conviction may be made for a miner and cognate offence although an accused was not charged with it. Citing the cases of Ali Mohamed Hassan Mpanda v R.:[1963] E.A. 294 and Dracaku v R.: G [1963]
E.A. 363 (C.A.) Mr. Justice Chipeta in his book A Handbook for Public Prosecutors (1978) T.M.P at p. 86 stated that:
The Matters to be borne in mind are:
(i) that the offence substituted must be minor to the one with which the accused was charged and tried; H
(ii) that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by that charge, constitute the minor offence also;
(iii) that the major charge has given the accused notice of the circumstances going to constitute the minor offences of I

A which the accused is to be convicted, that is, that it must not appear that in substituting the minor offence, the accused was taken by purpose.
B Coming to the case at hand I find that the substituted offence is not a minor offence but equivalent to the offence with which appellant was charged. That is, both offences were of stealing by a person in the public service c/ss 270 and 265 of the Penal Code Cap. 16. What is more is that it appears that the appellant was taken by surprise with C this new conviction of stealing by public servant Shs. 85,055/. It will be recalled that the testimony of the auditor (PW.3) was quite different from the evidence of the Section Traffic Inspector PW.1. The basis of the evidence of PW. 1 was that appellant short remitted money to the headquarters, while PW.3 stated that appellant recorded loss D money in the cash book (Coaching Traffic Summary Book) than he had collected and pocketed the difference. The testimony of PW.1 was the basis of the charge of stealing of Shs. 85,055/= which was later substituted to conform to the testimony of PW.3. What happened is that the trial magistrate was challenging the prosecution as to E why they had substitute the new charge instead of the old charge. But the truth is that a new charge was substituted and appellant directed his efforts to challenge the new charge instead of the old charge. At no time was the appellant given a chance to challenge the old charge. Therefore the conviction for the old charge which was substituted was quite irregular and improper.
F There is another point as to whether theft or a mere shortage of money had been proved. The trial magistrate had inter alia said: "To an employer to give his employee time to refund the money is a mere privilege and it is not a G right". I think the learned trial magistrate missed the point. The issue is not whether the order of refund is a privilege or right, but as to whether the employer by conceding to the refund was suggesting that there was a mere shortage and not theft. Appellant brought evidence at the trial to the effect that he was told by his employer to refund the H missing money and that would be the end of the matter. That inferentially tends to show that the employer conceded that appellant had a mere shortage of money and had not stolen the same. It is important to note that in a charge of stealing by public servant, it is not enough to prove mere shortage, or merely that the accused person was negligent I in the performance of his duties as a public servant. There must be evidence that the accused stole the money. In other words

animus furandi or fraudulent conversion must be proved - see Jackson Sumuni v R: [1967] HDC n. 152 and A Fanuel s/o Kiula v R. [1967] HCD n. 369.
In the case at hand I am not sure if the persecution had proved theft and not merely a shortage of money in the accounts of the appellant. In fact the trial magistrate that much conceded and said at p. 4 of his judgment: B
What I have noticed in this case is that the accused was not careful in his accounts. The accused failed to manage its accounts properly, that is why there was sometime an excess amount which was not known how it come about. C
That being the case, the trial magistrate should have given the appellant a benefit of doubt by holding that the persecution had not proved theft, but a mere shortage arising as a result of mismanagement of accounts. D
One last point as to whether this trial was a nullity or not for the simple reason that appellant was not granted legal aid for the preparation and conduct of his defence. Counsel for the Republic Mr Ndunguru conceded that this was E an appropriate case in which legal aid should have been granted as it contained complicated issues of law. In fact the learned trial magistrate should have forwarded the certified copies of the proceedings as well as his recommendation to the Chief Justice that appellant needed legal aid to conduct his defence. F
Under s. 3 of the Legal Aid (Criminal Proceedings) Act No. 21 of 1969 where in any proceedings it appears to the certifying authority that it is desirable, in the interests of justice that an accused should have legal aid in the preparation and conduct of his defence or appeal and that his means are insufficient to enable him to obtain such aid, G the certifying authority may certify that the accused ought to have free legal aid. For proceedings in the High Court the certifying authority is the Chief Justice of the Judge of the High Court conducting such proceeding, and in the case of a proceeding before a District or a Court of a Resident Magistrate, the certifying authority is the Chief H Justice.
In the following circumstances it will normally be procured that the interests of justice require that the accused should be legally represented at his trial.
(a) Where an accused is charged with a serious offence, I

A whereof a very lengthy prison sentence is likely to follow upon a conviction e.g. offences of robbery with violence, economic crimes under Act No. 13/1984 e.t.c.
(b) When the trial is likely to include complicated issues of law arising from concepts like alibi, possession, burden of B proof, consent, knowledge, confessions, hearsay evidence, special circumstances or special reasons e.t.c. But each case has to be decided on its merits to find out if it has complicated issues of law or not. For example in Samson v R C [1958] E.A. 681 the E.A.C.A. observed with approval what the Seychelles High Court had said that it was in the interest of justice to grant legal aid on a charge of being in possession of property suspected to have been stole. Seychelles then had a law similar to our Act No. 21/1989
D In these two instances, there is a presumption that the interests of justice require that the accused should be legally represented.
E Therefore whether these two instances present themselves the trial magistrate is enjoined to conduct an inquiry to determine the means of the accused person to see if he or she can afford to hire an advocate. After that the report of the inquiry as well as the certified copy of the proceedings be sent to the certifying authority (the Chief Justice) for F the consideration as to whether legal aid should be granted or not. As to the duty of the certifying authority, the E.A.C.A. In the case of Mohamed s/o Salim v R. [1958] E.A. 202 said at p. 203:
That in such a case the certifying authority should given the matter anxious consideration before deciding to refuse a G certificate for legal aid on the ground of sufficiency of means; that a reasonably liberal interpretation ought to be placed on the section and that in case of doubt the discretion should be exercised in the prisoner's favour. [The certifying authority] has to H exercise its own independent judgment in the matter .... instead of merely accepting the opinion expressed by the magistrate.
Therefore it is clear from the above authority that the certifying authority cannot delegate its responsibilities given out I under s. 3 of the Legal Aid (Criminal Proceedings) Act No. 21/1969, to the

magistrates. The Chief Justice himself has to make a personal decision. A
I wish to emphasize here that the exercise of sending recommendations to the certifying authority by a magistrate, does not depend on the accused having raised or applied for legal aid. The trial court has to raise it on its own motion. It is automatic so to speak, so long as these two instances mentioned above have been not. In that regard B the E.A.C.A. in the Mohamed s/o Salim v R. Case at p. 204 had the following to say:
We would add that we consider that it is the duty of the trial judge or magistrate to ascertain that the question of provision of C legal aid has been duly considered by the proper authority .... in which the accused appears before him unrepresented.
The observations of the E.A.C.A. in the Mohamed s/o Salim Case are relevant though they concerned the D provisions of s. 3 of the replaced Poor Prisoners Defence Ordinance Cap. 21 because these provisions are similar to s. 3 of the Act No. 21 of 1969 except that while Cap. 21 applied to capital offences only, the 1969 Act applies to all serious offences as herein indicated above. E
What is the fate of the case where legal aid was unreasonably refused by the certifying authority or was not considered at all? We get the answer from the judgment of Samatta J. (as he then was) in the case of A. Kalumbeta v R. [1982] T.L.R. n. 328 where at pp.300 - 332 said: F
Legal representation for an accused is a right which is almost universally recognized. In some jurisdictions the right is a constitutional right. In Tanzania the right is provided for in s. 190 of the C.P.C. (now s. 310 of C.P.A.). That right is so jealously Gguarded by the law that if an accused is deprived of it, through no fault of his own and through no fault of his advocate and he is in the end convicted, that conviction cannot be allowed to stand on appeal. It must be quashed.
I am only add by remarking that though in 1982 when that judgment was delivered, the right to legal representation H was only statutory right, right now it is Constitutional right incorporated in the Constitution Vide Act No. 15/1984. The right to a fair hearing under Art. 13 (6) (a) of our Constitution carries with it the right to a legal representation. I

A Therefore where legal aid is unreasonably refused by the certifying authority or where the trial magistrate has omitted to send the proceedings to the certifying authority for consideration of legal aid (in the two instances mentioned above) the trial will be held to be a nullity. There is no question as to whether the irregularity has B occasioned a miscarriage of justice or not; the point is that the irregularity is to fundamental that the trial is automatically a nullity. In fact that is what the Tanzania Court of Appeal had to say in the case of Laurent s/o Joseph v R. [1981] T.L.R. n. 351 where Makame J.A. said at p. 352:
C We cannot say that if he had been legally represented a different picture would not possibly have emerged.
That is the point. This is because the quality of justice we got when an accused is not legally defended is D bus-standard.
It is not every man who has the ability of defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. E He cannot examine or cross - examine witnesses intelligibly. The quality of justice, surely improves where there is legal representation.
In the case at hand I was prepared to allow the appeal on the simple ground that the trial was nullity because the F appellant was denied of his legal right to legal representation. The denial of the right to legal aid is indeed reprehensible and it boggles my mind as to why this right has not been exerted since 1969 when Act No. 21/1969 was enacted. Could it be so because there was no one to champion the rights of the poor? Under s. 190 of the C.P.C. (new s. 310 of the C.P.A.) there is a statutory right to legal representation. The courts have decided to G construe that section to the disadvantage of the poor. Various cases have held that, that section means that once a accused person has availed himself the services of an advocate (that presupposes that an accused person has means) he should not be deprived of the right to be defended by counsel through no fault of his or his counsel. H These cases championing the cause of the haves, are numerous and a few of them are: J.A. Haji v R. : [1947] 1 T.L.R. (R) 299 (Wilson J.); Mugoma v R: [1957] E.A. 555 (C.A.); Joshua Nkonoki v R.: [1978] L.T.R. n. 24 I (Mnzavas J.), D.P.P. v Rugaimukamu: [1982] T.L.R. 139 (Rubama J.) and Alimasi Kalumbeta v R.: [1982] T.L.R. n. 329; and the Jamaican case of Rebinsen v R. : [1986] L.R.C. (Const.) 405 (by Privy Council).

I looked for a decision which would held that a statutory right of legal representation has been infringed where an A accused person is deprived of the right to be defended by counsel through no fault of his or his counsel because of his poverty (in that accused could not afford to hire one) and the court did not on its own motion consider whether to grant legal aid or not, but I could not find any such decision. If anything that statutory right was interpreted in B favour of the haves and the have nots were ignored. I hope this judgment comes to the rescue of the indigent accused persons.
Be that as it may, for the reasons given herein above, the appeal succeeds. The conviction is quashed and the C sentence and compensation order are set aside. The appellant should be released forthwith, unless held for any other offence.
Order accordingly. D


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