19881207 TZCA Dar es Salaam3 1

;DIT T".JE COURT OF APPEAL OF TANZANIA AT f,f.·!AWZA (CORA.Ms Nya,l.a,li 1 c.J .,· ~ • J .f:.o and Omar, J .A.) CRIMINAL APPEAL NO• 102 OF 1988 RIC.JARD YEGELLA APPELL.'lNT AND '!!:IE BEPCJBLIC • o o" .. o o o o oI o o ~ o 1> o. o o o, o o"' "., -o •Joo•••• •·•·o .... ~•..._ ..... ~ - . (Appeal from the decision of tae ~Iigh Couxt · of. Tanzania at Mwanza) ,· (Mosb.i, J .) _Dated the 4th day of March, 1988 JUDGEf'.!EiqT OP THE COURT The appellant was Oharc;ed in the District Court of Tarime with the offence of St0-:·ling by Clerks and Servant .contrary to-section -27'1_a.nd .265--.o:r. fue_Penal Code 0 'Th.e appe).lant pleaded guilty to the cn.arge and the facts o[ the case were :;:-e;:i,d by the prosecution -!jo w::iich· !1e again agreed as teing correct, that he stole the money so Jnentioned. Ile was then sentenced -!io six yea.rs' iitlprisonment--a.n.d... to pay -the National Bank _of: Commerce the money wllic:l he f:ltole. • _T'J.1e appellant then appealed to tM aigh Court and in his memorruidum of I e,ppeal he sc,.id he did not plead guilty to the char~• He wondered why if he had pleaded guilty to the charge he was t~n to the chambers of' the magistre.te c1lld .tho proceeditUfS were conducted there'i Which of the two runount-s mentioned in the f",cts tender~p. by' the pros~cution, l:Je asked, was he supposed to :.iave stolen? If he b.~d pleaded guU ty to the ch2,rge could

tho plea be said to be unequivocal· if tl10 c,Gount of r,10ne;r stolen was, no·t b.own? T'.ao· learned f~rst appel~nte ju.il.ge of the Iligh Court considered these grounds ,_ o:f o.ppefl.l n.nd dismissed 11is _appeal, lieinc; satisfied th2.t the appdl2.nt's plea was Ul'lequivocal. Th~ ap~ellrnt, tNe to his riehts, h~s now app0alod to t:.)is court ci'l:ing the s2me point of law ..wllici.l l:p~ _advanced ea:1'licr; that is, l:tis plea was t .I e@ivoca~ and tl1at it s:1ould b~ considered as a plea of not guilty. t .. ,.--/ •I ...... - .... .. . ~ r·~· ,. I ;,- I ' ... ;• 2 This being a point of law, we-shall consider it and in so doing go baolc to the IIigh Court decision. It is pertinent -t;o show, in the first plnce, what -;Lc,se fncts wer~, which were put before the c1ppel12,nt in tb.o Magistrate 1 s Cov.rt, c1.ncl -to which he is said to have agrecid• They run as follows: nAccusoc1. one Ric'..12,,rd s/o Yegella, employed o.s a clerk at the Nationd B.~_nk of Commerce, at Tarirao Branch, on 7/12/87 at noon stole cnsh shs. 436,793/70 t:.10 property of tho National Bnnlc of Commerce w:1.ich he recd vcd by virtue of his post. The S8.irl stolen money wore discovorocl. in the following vouche:rsg 1. RTC A/C 3289 - shso 31,938/- 2. TArtIME" RTC A/C 5289 - shs. 304, 752/20 · ' 3e Tarime District Council A/C 06114 - shs. 150,000/- TOTJ~L: 486,690/20.:,• T~e matter was reported to the

police. This offence was committed in Ta.rime District in Mara Region.,, This we,s discovered as less money from the above A/cs. 1 T,ie Gfficer Commanding C.I.,D., Mr. Mg'hosha, inspected the frauds. Read over n.nd :found correct. Accused: The f,:,,,cts n.re correct. 11 • T.c1is statement,of fD.ds given by the prosecution contains no ambiguity. ~ - It pb.inly stctos tllat ·i;b.e appellant stole· shs. 436, 793/70 which he received , by virtue of his employment and t!1is sv.m was discoverGd in t:1e vouchers whoso tot.al 2.mount was- .et,1"3~486,690/20, th~t is to s2.y, he stole part of it a.rid left about s~1sc 50,000/- untouched, These two figures seoi:1 to have confused also tho· lGarned first appellate juclge, according to !.::.is juclgemont W:J.ich we would quote;f "The stateDent of the facts adducecl. by the prosecution and ,;' accepted by the appellant, though adiil:i +.todly brief, was, - . in my considered view, to the poi i1t. h cont2..ined all the necessary ingredients ·of tafu offence ci12,.rged• It established ,that the appellant was, aym?-tcriD..1 tir:ie, employed by tho Tarime Franch cf the N2,tional Bank of Co61-:-:erco. 1:1.s a clerk. It further est:J.blished tho,t, in that c::--.paci ty, the 2..ppolla,nt had stolen c2.sh shs-486,690/=, which he had received on account of his employer, ancl by virtue of l1is employment, vicle three vouchers, wl.10se pnrticv.l:::rs

were given to tho trial cov.rt I ' e•ooo~•••~•••••••••oo ■ •••••••••••e••• ■ ouooooo••••••••o•••••• •.• ,............ ob c.,. ". o • • ., o. o • ~e variance between the c:iarge / and the statement of t:ie f-::.cts regardi:ng the money stolen, fuough an irregularity, was, in nzy: view, cur:l.ble and was; inf.:i,ct, cured by the statements of the fc.e.cts accoptcd by 0 ti2-e appellant, cind upon 1·1hich. tho conviction wc.s based,11• We, on the contrary, find tl12,,t the p.::i.rticul:}.rs of t::io ch:J.rgc are not nt V'.'ris.nce with tho po.rticu.lo,rs of fc,cts., Tlloy 1Jotll □ erition the .sar,10 amol.ll'lt o:f' s:.1S.-1436, 793/70 to 2..tave been stolen, mid tllo D:PPell::mt_ plo;:,..dcd guilty to the Cilm'gc 011d also ae-recd with th0 stnteoont of f2.cts put to hira. Appellant in his sixth • ~ ~ /3 ~,(. ,_.- ,• {P'.'ound o:t appeal stated tllat he wr.i.s not at t!1e tirae of ·Ms ~ s t sllo-wn tho t~2.roe vouchers in respect o:f wl{icb. ho is alleged to hnve stolen the money. vTo do'not know what to make to tl.l.is cor.iplaint in the light of his plea of ~ilty and his an.mission t~at he did steal this lo.rge sum of money frora his employer• At a.11y r,:-:.te, exllibi ts are left to be produced at t~e stage of evidence in tho trial wb.ich the ap~oll:mt hitlsolf forestalled by his ron.diness to·accept rcsponsibili ty for th.e t:-10ft. We hold, therefore, that the plea of guilty

·to th.a- -cb.arg.e-by·-the...appellant 1:ms unequivocal. In t~ie result this solitary ground o~ appeal fails a.11d the appeal is accordingly dismissed~ DATED at flJ.Wf.NZf~ tll.is 7th day of Dccombor, 1988. F o Le NYAILLI ClIIEF JUSTICE L, M. J\..UlJ{lJ.~ JUSTICE or LPPEl.L ~ Ao M. 11. ,,· 0M1'..R I JUSTICE OF tPPE.t~L copy of tho original 'I • ...........__~:.;_.·: •• ,, • - 4 ~ (Jo II MSO.t:'l:'E) 6

SENIOR DEPUTY REGISTRAR