Godfrey Naftali v. R., Crim. App. 173-A-69, 24/10/69, Platt J.

Godfrey Naftali v. R., Crim. App. 173-A-69, 24/10/69, Platt J.

The appellant was convicted of personating a public servant c/s 100(2) of the Penal Code, and of obtaining credit by false pretences c/s 305(1) of the Penal Code. In November 1968, the appellant arrived at Mbulu where he had a friend. The appellant had the advantage of a good education and had been employed in the East African Institute for Medical Research at Mwanza. But he had admittedly ceased to be employed in research before he had come to Mbulu in 1968. as members of the East African Common Services Orgnaisation were defined as public servants, any attempt to pass himself off as still employed in the public service stood to be an offence of personating. The first count alleged that “on the 25^th November 1968 at 08.30 hours at Government Hospital Mbulu … (the appellant) did falsely represent himself to be a person employed in the Public Service; to wit introduced himself to Senior Laboratory Auxillliary Mr. James Francis that he is a Research Officer from Mwanza and came to Mbulu for lecturing the laboratory staff”. The witness Mollel (P.W. 3) employed in the X-ray Unit of Mbulu, testified that he met the appellant on the 23^rd November 196 in a bar and during the conversation that followed, the appellant represented himself as a research officer from Mwanza, temporarily transferred to Mbulu Hospital, to do research on bilharzias. On the 25^th November the appellant came to the hospital and met Mollel, and promptly asked him for Shs. 40/- to give to his driver, who had exhausted his money. He promised to return the money on Saturday. Mollel did not give him any money. The appellant then asked to be shown the laboratory and Mollel took the appellant there and introduced him to James Francis, the laboratory auxiliary. There was some talk about bilharzias and according to Mollel; the appellant said that his work would mainly e concerned with the dams in that area. The appellant then left …. Then the appellant called on James again on 27^th November 1968 ….. and this  time he asked for a report on bilharzias. James showed him all types of bilharzias, and the appellant said that at 2 p. m. he would give a lecture on how bilharzias eggs hatch out. James and Abdi [a microscopist] attended, but the appellant never came.

            Held: (1) “The offence created by s. 100(2) is laid down as follows. “100. – Any person who (2) falsely represents himself to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment, is guilty of a misdemeanour. I take it that the prosecution alleged that on the 25^th November 1968, apart from representing himself to be a Research Officer from Mwanza, he had attended at the Government Hospital Mbulu for

the purpose of lecturing the laboratory staff. It was not stated that this was an act to be done by virtue of his employment. There was no evidence whether research officers do go around lecturing the staff of smaller stations, connected with headquarters in Mwanza. But if he had represented himself as being sent to do this duty, or had let it be known that it was part of his duty, all well and good. On the other hand, if he had simply offered to give a lecture for the interest of the staff, apart from his duties, it seems that no offence was committed. The essence of the offence, as I see it, is that only when unlawful action is taken as a result of a hoax is the criminal law involved. Mere representations of being employed in the public service, without further actions as laid in the Section, are the sort of day-dreams which the public are expected to see through by themselves …. It is clear that on the 25^th November is concerned; the appellant did not make any representation that he had been sent to give lecture to the staff. The reference to a lecture occurred on the 27^th November. As far as the 25^th November is concerned, the appellant played a trick on the witnesses, without doing he act or attending at he hospital for the purpose of doing the act, complained of in the charge. It is clear that the prosecution or the trial court ought to have seen that the charge was amended to represent what fault the appellant had actually committed. Certainly he never introduced himself as a research officer who had come to Mbulu for the purpose of lecturing the laboratory staff. I would not be proper now to amend the charge completely. In the result the conviction cannot be allowed to stand, on the principle that an accused ought to know with certainty the offence alleged.”  (2) “On the second count, the particulars were that “on the 27^th November 1968 at about 22.00 hours at Madaraka Bar Mbulu District …. In incurring credit or liability obtained credit of 14 bottles of beer valued at Shs. 38/70 and one tin of fish valued at Shs. 3/50, total value at Shs. 42/20 from Mwarabu Mesewe by false pretences … the ingredients of the offence are (1) that the accused should obtain credit in incurring a debt or liability (2) by a false pretence of any existing fact with the intent to defraud; or (3) by means of any other fraud. Although the particulars given are in accordance with precedent, (See Archhold 36^th Ed. Para 3692) it would seem that the better practice is to set out the false pretence alleged, as in an ordinary case of obtaining goods or money by false pretences. It appears that R. v. PERRY 31 Criminal Appeal Report 16 is considered to be some authority in not setting out the particulars Counsel argued in that case that it was necessary to give particulars, but the English Court of Criminal Appeal considered in effect that it was not necessary and that Counsel should asked for the particulars if he had been embarrassed. However as Perry is not now generally followed, I venture to think that the prosecution should specify the false pretence alleged.” However, conviction quashed on other grounds, for inadequate evidence.