R. v. Selemani s/o Yasini, H.C. Crim. Rev. 50-DSM-72, 11/9/72

R. v. Selemani s/o Yasini, H.C. Crim. Rev. 50-DSM-72, 11/9/72

Held:   (1) Where goods are stolen from a special owner who was in lawful possession of the goods with the approval of the owner himself, a compensation order made in favour of the special owner rather than the actual owner is not improper, as the latter is not deprived of any claim he may have against the special owner.

            (2) Where a purchaser of stolen goods is in bad faith, he is not entitled to compensation for any loss suffered.

            MNZAVAS, J. – In this case the accused was charged with and convicted of sealing by servant c/ss 271 and 265 of the Penal Code. There was abundant evidence in support of the conviction. The case was only brought up for argument regarding the order of compensation ….. The following were the facts of this case: On 23/11/71 one, Bisher Humwel (PW 3), sent his driver, the accused, to Mikumi where he was to collect 500 bags of cement and send them to the Railways Administration in Mbeya. The accused drove his lorry to Mikumi and loaded 500 bags of cement as ordered by his employer (PW.3) but instead of delivering them to the Mbeya Railways Administrations instructed by his employer, he sold them to one Noor Mohamed (PW.2) for Shs. 7,500/= and pocketed the money. He then drove back to Iringa, left the lorry at his employer’s premises and absconded. Next morning the complainant (PW.3) found his lorry safely parked outside his house but he could not trace his driver. He was suspicious and reported the matter to the police. Investigations were instituted and the accused was arrested on 26/11/71 in a bar at Igawa Village in Mbeya. Further investigations led the police to the house of Noor Mohamed (PW.2) who admitted buying 500 bags of cement fro  the accused for Shs. 7,500/=. At this time Mohamed had already sold 300 bags. The remainder, 200 bags were seized by the police. As I have already mentioned there can be no doubt that the conviction is in harmony with the evidence. After conviction the learned resident magistrate sentenced the accused to 2 years’ imprisonment and ordered him to pay Shs. 7,500/= to his employer as compensation.

                        In his admission note my learned brother judge minuted: (1)”Sentence does not warrant interference. (2) Compensation order doubtful. Cement was the property of E.A.R. Cop …… Complainant was mere carrier. Loss was occasioned to E.A.R. Corporation and Noor, the person who bought the contraband. Question 1: Who should the accused compensate? Question 2: Should the compensation be in terms of cement or in cash? The price of a bag varies with time and place.”

                        The learned State Attorney argued that the learned trial magistrate was right in ordering compensation in favour of the complainant (PW.3). The Republic further argued that the evidence showed that the price of cement at the material time was Shs. 15/= per bag and that he order of Shs. 7,500/= compensation to the complainant for the loss of 500 bags was proper.

                        There can be no doubt at all that on the facts of this case the complainant was more entitled to compensation that the Railways Administration or Mr. Noor Mohamed who bought the cement from the accused. He was sub-contractor of the railways and his duty was to carry the Railways Administration’s cement from Mikumi to Mbeya. The cement was in the possession of the complainant when his driver stole it. I with respect agree with the learned judge that ownership of the cement was with the Railways when it was stolen, but with even greater respect to the learned judge I do not think that this fact makes the order of compensation to the complainant “doubtful”. Though the Railways was the general owner of the cement at the time it was stolen, the complainant was also a special owner of the cement at the time it was stolen. In coming to this conclusion I am fortified by the clear language of section 258(e) of the Penal Code which says inter alia: “The term special owner includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.” The compensation order in favour of the complainant was there – fore proper as he was a special owner of the cement at the time. The fact that he compensation order was made in favour of the complainant does not rob the Railways Administration its rights to claim for the cement from the sub-contractor (complainant). The Administration can if necessary file a suit against the complainant claiming 500 bags of cement.  

            As for Noor Mohamed (PW.2), the person who bought the cement from the accused; the circumstances under which he bought the cement tare extremely suspect. I would say that he was very lucky not to be charged with receiving stolen property.

            One more point before I conclude; it is not clear from the judgment as well as the order of the learned resident magistrate how the 200 bags found with Noor were disposed of. If they were handed to the complainant, then the order of Shs. 7,500/= should be reduced by 200 bags whose value at the time was Shs. 3,000/= i.e. Shs. 15/= per bag. For the above reasons I tend to agree with the Republic that the magistrate’s compensation order was proper. The sentence of 2 years’ imprisonment needs confirmation by this Court and is hereby confirmed.

Ed. Note: Unfortunately it is not clear, as is noted in the judgment, how the trial court disposed of the 200 bags of cement found with Noor (PW.2). In principle, where goods have been stolen and the thief convicted, the goods, if recovered, should in all cases be restored to the original owner (or his representative) and the court must make a restitution order to this effect (Sale of Goods Ordinance, Cap. 214, s. 26(1); Criminal Procedure Code, s. 180). So the 200 bags of cement should have been restored to the complainant, or to the Railways Administration. In such a case, what are the rights of Noor (PW.2)? In situations where an innocent purchaser is deprived of stolen goods by a restitution order, the court may 9 and normally should) order the thief to compensate him for his loss (Criminal Procedure Code, s. 176(1) and (2)). Therefore the trial court should have made a finding as to whether or not Noor (PW.2) was an innocent buyer. If he were found to be in good faith, he would be entitled to compensation as regards the 200 bags of cement, of which he would be deprived by the restitution order.