Ally Ismail Napanja vs Republic (CRIMINAL APPEAL NO. 11 OF 1997) [1999] TZHC 192 (28 June 1999)

IN THE HIGH COURT OF TANZANIA AT MTWARA .APPELLATE JURISDICTION CRIMINAL APPEAL NO. 11 OF 1997 ORIGINAL··cRIMINAL CASE NO. 97 OF 1996 . .. OF THE DISTRICT COURT OF LINP~_AT LINDI BEF'ORE: Holl. l•'J.ANDAWA, ESQ., RESIDENT MAGISTRATE ALLY ISMAIL NANJA ••••••• APPELL.ANT versus: THE REPUBLICi ••••••••••••• RESPONDENT JUDGMENT KAJI, .J. The appellant ALLY ISMAEL NAPANJA was charged with and convicted of three counts of stealing b public servant c/s 265 and 270 of the Penal Code Cap 16i He as sentenced to 8 years imprisonment on the first count; five years on the 2nd count and thre·e years imprisonment on the third count. Ail 3 sentences were ordered to run cuncurrently. He was also ordered t_o compensate Lindi District Council shs. 154 1 875/- which he was· alleged to have misappropriated. He was aggrieved with the convictions, senteces and the compensation order. It is corninon ground tht the appellant was employed by Lindi District Council as a Village Executive Officeri One of his duties· was :· ..• to IOlle·ct revenue for Lindi District' Councilo In so doing he was issued with various receipt books. He was supposed to remit to· the said Distr1.ct Council the collections. From 25,?J°94 till on 15,6,95 he collected a total of shs~· 127;4?5/.'- on ERV No. 01914 to 61950J But he did not remit that amount or part thereof -to his employer the said Lindi District Council~- From 4,.12.95 to 12.12.96 he collected a total of shs, 25/000/~· on ERV No. 030701 to 030750. He did not remit that money or part thereof to his employer the said Lindi District Council. Between 8.12.95 and 1.1.96 he collected a total of shs. 2400/- on ERV No. 27941 to 27950. He did not remit that money or part thereof to .his employer Lindi District Council. When one day in 1996 the Lindi District Council Treasurer PW1 SALUMU SELEMAN NG'ITU inspected his books of accounts expecting to find him with shs. 127,475 + 25,000 + 240o = shs 154,875/- 1 he found him with nothing. • ••• '/2 •••

• 2: In asking him as to where that money was the appellant did n9~ giy~ a satisfactory explanation. He was consequently charged with stealing that moner• In his defence the appellant admitted to have collected that money by virtue of his employment, and to have used it for his own affairs· without consent by the owner, the said Lindi District Council. However he put up a defence that; since when he was employed in 1993 1 he was not paid his salary. For that reason he used that money for his surviv.al hoping to pay it back from the arrears of his salary when he wo\lld be paid, or to b~ deducted from his salary~ The trial Court was not satisfied with \hat defence. !t convicted him as charged nnd sentenced him as above. He was· ag·grieved~ In his grouds of appeal he insisted that he hn.d a. right to use that money for his survival as his employer had not paid hitn his salary for 11 . months. He went on stating that on 51.595 a meeting 'of Full Council discussed the matter and passed a resolution that ·he should pay that moey by being deducted from his arrears of salary. His salary as deducted by shs 10,000/ wheleby he was .issued with a receipt No1, 66546 of 27/3/96 (Exh b C) ~ He blamed his employer for being the cause for h-ls misappropriating that money for failing to pay him his salary for 11 months~ The learned Stat~ Attorney Mr. Mtinangi who represented.the-Republic at the hearing of this appeal did not support the conviction on the ground . ., that there was no Audit· Report which was tendered as exh.ibit( Also since the appellant was claimihg his arrears of salary, he had a riht of claim in good faith especialiy tht t4e Ful~ Council had decided to treat it as I :"• a ctvi debt whereby the process of deducting his salary had started as wtnessed by receipt Exh DC ! have carefully considered the evidence on record, the appellant's grounds of appeal the learned·state Attorney's reply and the overall 6ircuinstahces surrouhdng this case. There is no dispute that the appellant was a public serv.ant and: that that money had come into his possession by vil?tue of. his employment as,_ inter alia, a revenue collector· There is also no dispute that the appellant used that money for hi'.~ own affairs without the consent of the owner the said Lindt District Council~ There is equally no dispute th_at when the appellant used that money for his own affairs without the consent of the owner he was caimi;ng an 11 months arrears of salary from. the ovmer (Lindi District Cocil), anq. .that he had hoped to refund that mon:ey from those arrears of salary ·or to. be · · dedμcted from his salary. Further that ~ater the Meeting of .F\111 Council discussed the matter and passed a resolution that he should refund it . ·····

• ..• .j 3 through deductions of his salary ·whereby that process was implimented for the first time in March 1996 as witnessed by the receipt Exh D C 0 The only crucial issue is whether under those circumstances the appellant committed the offence of theft. In considering this.issue the learned trial Residet Magist~~tJ. considered a chain of dcided cases and different provisions of the iaw~ He then came to the concusion that the appellant stole that money! With respect, I concur with the learned trial Magitrate 1 s finding on this, The definition of theft includes misappropriation·ofthis 11ature~ ft is izrimaterial whether the user intended tb repey afte:rwafds. Th.is ban be found. under s. 258(1) (2) (e) of the Fencl Code Cap 16 wh:i.ch sayss~ s, 258( 1) A person ~ho fraudulently and ~,ithout claim of right takes anthing capable of being stolen, or fraudulently converts t6 the use of any person other than the general or special owner thereof of anything capable of being stolen, is said to steal that thingl (2) ~ person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so v1ith any of the following iritentsl that is to say (e) in the case of money, an intent to use it at the will o:f the person whb truces or coriVerts it, although he a,y intend afterwards to repcy the amount to the owner 11 The spirit of these provisions of the law were emphMized 1n the case of . ANTHONY ERNEST DE 1":ELLO Rs R ( 1 TLR) (R) 2.?i• The question of claim of right does not arise where an employee uses his employer's money without leave of his employer under the pretext that his employer has not paid him his salary; and that he will refund it by way of being deducted from his salary. In fact if the law would have allowed an employee to use his employer's money without his consent where that employee has not been paid his salary, this would lead to serious consequences especially where the owner (employer) is a public body and that money is public money. It is upon the above reasons that I dismiss the appeal against convictions. As far as sentences are concerned, it would appear the sentence of 8 years imprisonment on the first count is on the higher side. In that count the appellant stole a total of shs_. 127,475/- in piece meals within a period of about a year. Within that period he had not been paid his salary. He had seven children who were schooling. His old parents ••• /4 •••

4 were also depending on him. When all these a.re considered together, a sentence of 8 years imprisonment is definitely on the high side. It is hereby reduced to 5 years imprisonment. The sentences on the 2nd and 3rd counts and the compensation order are left undisturbed. Save for reduction of sentence on the 1st count, this appeal is otherwise dismissed~ /\ / t So N. KAJI JUDGE 28.6.99. s. N. KAJI JUDGE 28.6.99