Edwin Maro v. R. Crim. App. 175-A-69, 31/10/69, Platt J.

 

Edwin Maro v. R. Crim. App. 175-A-69, 31/10/69, Platt J.

The appellant was convicted of attempting to obtain money by false pretences c/ss 302 and 281, Penal Code.

The offence alleged was that the appellant, a Court Bailiff at the District Court Moshi, attempted to obtain from one Modest s/o Ndamalya the sum of Shs. 80/- with the intent to defraud by falsely pretending that he (the appellant) had been sent by the Senior Resident Magistrate Mr. Umezurumba to collect the said money which was needed in a civil case filed in court by one Mr. Mkumbo against Modest. This representation was said to be false as the appellant knew because Mr. Umezurumba had never sent the appellant to collect the money. Modest, a Bank official, was the tenant of Mkumbo and they had a dispute over the tenancy. The rent was Shs. 80/- per month and Modest had been given notice to vacate the premises. On his part he had paid one month’s rent by a cheque on which he had stopped payment. On the 4^th March 1969 Mkumbo came to court to institute a civil suit against Modest. The appellant offered to get the matter finalized by the next day if Mkumbo would not institute proceedings. The appellant and Mkumbo left Mushi’s office and Mkumbo give the appellant the cheque. The appellant then met Modest and explained that he had been sent to collect the money. The appellant showed Modest the cheque. According to Modest, he did not realise that the appellant had come on behalf of Mkumbo, but he was given to understand that Mr. Umezurumba had sent the

Appellant to get the money or else he would have been arrested. Of course Mr. Umezurumba had given the appellant no such commission.

            Held: “On the basis then that the appellant had falsely stated that he had been instructed by Mr. Umezurumba to collect the money on the strength of a civil suit instituted against Modest, did the appellant act with the intent to defraud? It is clear that Modest had not paid Mkumbo, and even if the rent dispute had been put before the Rent Tribunal, Modest still owed Mkumbo rent as his writing the cheque showed, and Mkumbo was entitled to sue for it. The appellant knew Modest, and as both Mkumbo and Mushi acknowledged, the appellant, from the beginning was trying to save a suit being filed by Mkumbo. It was obvious that when the appellant approached Modest with the cheque, that the basis of the demand was to get the rent paid. Although Modest dismissed the suggestion that the appellant would not have simply wanted to collect the rent, it may be doubted whether that was not really true. To begin with the pretence was so palpably false that it could hardly have been believed in by either Modest or any one else. In fact Modest did not believe it. Magistrates do not chase people like bank officials with orders for payment. It is even more absurd to represent Magistrates as threatening arrest if payment is not made before trial. That exaggeration of Modest seems relevant to the question as to whether he was not making more of the situation than was warranted. Then there was the cheque. How could the appellant have got the cheque. It seems difficult to believe that Modest did not know that all that the appellant intended was to persuade him to pay the rent to Mkumbo. Certainly if the rent had been paid, Modest would not have been defrauded on that account. On the other hand, there was no suggestion at any stage of the trial that the appellant was trying to get the money for himself. The only other possibility was that in a limited sense the appellant had tried to force Modest to pay the rent against this will because of the Magistrate’s orders. But it seems to me that Modest really knew that what was intended was that the appellant was trying to exhort him to pay the rent and had added some unwarranted nonsense about the Magistrate’s reaction to the suit. Of course Modest’s annoyance is understandable and the appellant’s officiousness brought a certain amount of righteous retribution upon him. But I was not persuaded that even in the most limited sense the appellant had intended to defraud Modest; at least there seemed a doubt.” Appeal allowed.