Rashidi Sijaremba v. R. Crim. App. 450-D-71; 22/10/71; Onyiuke J.

Rashidi Sijaremba v. R. Crim. App. 450-D-71; 22/10/71; Onyiuke J.

            The accused was charged with                                  violence cases. 286 and 265 of the Penal Code. The complainant had retired with his girl friend to a room in a hotel where she lived and worked. At about 1. 00 a. m. there was a knock on the door. The girt told the person to go away because she was with her boyfriend. The person was the appellant. He told her

            to open the door or he would break it down. She opened the door. The appellant had a panga in his hand. He asked the complainant what he was doing there and the latter replied that he was with his girl friend. The appellant, brandishing the panga, told the complainant to take off all his clothes or he would stab him with the panga. The complainant stripped and handed over the clothes, which were worth over Shs. 200/-, to the appellant. The appellant then told a worker in the hotel to go with him to the police station and carry the clothes. There he told the police that he had taken the complainant’s clothes because he had found him with his girl friend, and also that if anybody came to report the theft of he clothes, hey should not believe it because it was he who had taken. He later turned up at the police station and saw the appellant there. The appellant told him to call at his house the next day if he wanted his clothes. The appellant took the clothes away, but when the complainant called next morning, the appellant was not there, and he never returned the complainant’s property. Some of the clothes were found later with other persons who were prosecuted. The appellant was charged for robbery. The district magistrate acquitted him for robbery. The district magistrate acquitted him for robbery on the ground that he had a relationship with the girl in issue. He, however, convicted him for stealing.

                        Held: (1) “The only evidence of any special relationship was the appellant’s alleged statement to the police that Amina was his girlfriend. This relationship cannot prevent what would otherwise have been a robbery. It cannot be a defence to the charge. It can neither justify the use of violence or the threat of violence to P. W. 1 nor does it entitle the appellant to seize P. W. 1’s properties. The appellant’s friendship with Amina cannot be said to give him any colour of right to do what he did.” (2) “The appellant told P. W. 1 to surrender his clothes or be stabbed with a panga. It was therefore beyond dispute that the appellant threatened P. W. 1. This would amount to robbery provided he other elements of the offence are established.” (3) “The leaned State Attorney indicated that the learned Magistrate’s conclusions could be supported on other grounds. He submitted that here was no robbery in this case because when the appellant threatened violence to P. W. and obtained the items as a result of that threat he did not intend to steal and that when he later changed his mind and fraudulently converted them he was not then using or threatening any violence. I agree that as a legal proposition the violence or threat of it must be in terms of section 285 of the Penal Code immediately before of immediately after the time of stealing and must be designed to obtain the thing stolen or to prevent or overcome any resistance to its being stolen or retained but the question is whether the facts of this case support the learned State Attorney’s contention. The appellant’s motive must not be confused with his intentions. Apparently he wanted to punish P. W. 1 for being with his girlfriend. He intended, however,

            to deprive P. W. 1 of his clothes and other items. Section 258(2) deals with the requisite intent which will make the taking or conversion of a thing stealing. It provides in so far as it is relevant to this case as follows:- Section 258(2): A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say – (a) An intent permanently to deprive the general or special owner of the thing of it; (b) an intent to use the thing as a pledge or security; (c) An intent to part with it on a condition as o its return which the person taking of converting it may be unable to perform. The taking of these items, their subsequent disappearance and the appellant’s denials at the trial showed that he intended to deprive P. W. 1 permanently of these items.” (4) “It is contended, however, the appellant’s conduct in going to the police and in publicly admitting that he removed these items and in inviting P. W. 1 to call at his house the next morning to collect them showed that he did not intend to deprive P. W. 1 permanently of those things. It appears to me that the appellant was justifying his conduct towards P. W. 1 rather than evincing an intention not to deprive him permanently of these things. He was asserting a claim of right to those things on the ground that P. W. 1 was meddling with his girlfriend, a claim which is so unreasonable that it cannot seriously be entertained. His failure to keep his appointment with P. W. 1 the very next morning and his subsequent denial that he did not even know him showed he never really meant to return those things to him.” (5) “I am driven to the conclusion that on the facts of this case the appellant stole from P. W. 1 and immediately before the time of stealing threatened serious personal violence to P. W. 1 to facilitate the stealing ad that he obtained those things as a result of this threat.” (6) Conviction for robbery substituted.