Jama s/o Daule v. R. Crim. App. 366-D-71; 25/8/71; Mwakasendo Ag. J.

Jama s/o Daule v. R. Crim. App. 366-D-71; 25/8/71; Mwakasendo Ag. J.

The appellant was convicted on seven counts of false accounting c/s 317 (c) of the Penal Code. The main ground of appeal was that the Magistrate erred in law in holding that the appellant was a clerk or servant to Messrs. Tanganyika Bus Co. Ltd. as alleged in the charge.

            Held: (1) “The crux of the case is …….. Whether or not the appellant was a clerk or servant of the Tanganyika Bus Co. it is clear from the evidence on record that the appellant was the Tanganyika Bus company’s agent for the Singida area. His duty was to canvass fro business on behalf of the Bus co. and depending on the volume of business canvassed he was paid a commission at seven per centum. If he canvassed no business he got no commission and that was that. The working relationship between the Bus Company and the appellant was governed by an Agency Agreement. The learned resident Magistrate appears not to have considered the Agency agreement at all.” (2) (“After quoting Archbold’s Criminal Pleadings and Practice 15^th Edition p. 691 ……… ‘ a commission agent who is not under order to go here and there, and who is not bound to devote and portion of his time to the service of his principal, but who may get or abstain from getting business for his principal as he chooses, is not a clerk or servant or a person employed for the purpose or in the capacity of clerk or servant …….”) With the benefit of this quotation …… it should have been easy  for the learned Resident Magistrate to find, as I believe he should have done, that the appellant was neither a clerk or servant or  person employed for

the purpose or in the capacity of a clerk or servant.” (3) “I accordingly find that the appellant is not a person or one of a class of persons falling within the ambit of Section 317 (c) of the Penal Code.” (4) Appeal allowed.