Bwogi v. R. Crim. App. 846-M-70; 14/1/72; Kisanga Ag. J.

 

Bwogi v. R. Crim. App. 846-M-70; 14/1/72; Kisanga Ag. J.

The appellant was convicted of stealing by public servant c/s 270 of the Penal Code and was sentenced under the Minimum Sentences Act to four years’ imprisonment and 24 strokes of corporal punishment. It was established that the appellant was employed by Tanzania Electric Supply Company Ltd. as a typist and telephone operator. He demanded and received sums of money which he misappropriated from various customers of the Company purporting to be payments for electricity supplied to them by the Company. Two issues called for decision. First whether or not he offence with which the appellant was convicted fell within the ambit of the Minimum Sentences Act and secondly whether or not on the facts the charge with which the appellant was convicted was a correct one.

            Held: (1) “Although the learned trial magistrate does not give reasons for invoking the Minimum Sentences Act, he would appear to have reasoned that since TANESCO is wholly owned by the Government then the appellant was an employee of the Government then the appellant was an employee of the Government and that any money belonging to TANESCO necessarily belonged to the Government, so that the offence proved fell within the Minimum Sentences Act. With this view, however, I am unable to agree. TANESCO is a registered company and as such it has a separate legal existence of its own. As a legal person it has power to won property, power to sue and be sued and power to enter into contract with its employees, quite independently of the Government. Although P.W. 3 said that TANESCO is wholly owned by the Government and the trial magistrate accepted that evidence, this could not

Warrant the conclusion that the appellant was an employee of the Government so that the monies belonging to the Company were Government money. On the evidence before the court, the true position would be that the Government was merely a shareholder enjoying the rights of a shareholder including the right to participate in dividends and profits while the assets and the incomes accruing from various sources remain vested in the company as its property, and the company retains its power to enter into contracts with its own employees. I am therefore of the opinion that an employee of TANESCO is not a public servant for the purpose of the Minimum Sentences Act.” (2) “It is clear on the facts that the correct charge should have been one of stealing by servant. But the appellant was not charged with that offence. I am therefore unable to enter an alternative conviction for theft by servant and I think that only a conviction for simple theft would be proper.” (3) Sentence reduced to a prison term of 2¹/₂ years.