Leornard David Chamba v. R., Crim. App. 706-D-69, -/10/69, Mustafa J.

 Leornard David Chamba v. R., Crim. App. 706-D-69, -/10/69, Mustafa J.

The appellant was convicted on one count of attempting to obtain money by false pretences and one count of obtaining goods by false pretences. Appellant was an assistant secretary of the National Housing Corporation. Ahmed Ali Shirwa had applied to the said corporation for the allocation of a house on a tenant/purchase basis. Appellant falsely represented to Ahmed Ali Dhirwa that his application had been approved, and obtained from him a cheque for Shs. 2,000/- drawn in favour of the National Housing Corporation as a deposit. It appears it is not unusual for an intending tenant to put down a deposit at the time he makes an application for a house. After he had received the said cheque for Shs. 2,000/-, appellant took it to the National Housing Corporation and attempted to cash it. He made false representations to the accountants and other officials of the National Housing Corporation was in the process of clearing the cheque, but before appellant was paid. Ahmed Ali Shirwa made inquiries about a receipt for his cheque. It then transpired that he cheque made out by Shirwa was in favour of the National Housing Corporation, and appellant was arrested. When appellant handed the cheque to the cashier of the Housing Corporation he was in the usual course of business issued with a receipt for the said cheque for Shs. 2,00/- and it is in respect of this receipt that the second charge was preferred against him. There are two relevant grounds of appeal. Learned counsel for appellant states the conviction is bad in law, since the charge did not lay the money or the goods as the property of anyone. Secondly, the trial magistrate had admitted evidence which had the effect of establishing that the appellant was the type of person who would make false representations and is of bad character.

            Held: (1) “As regards the first ground of appeal, learned counsel for the appellant states that it has not been alleged as regards the first count whose property the sum of Shs. 2,000/- was. He relies on two old English cases, The Queen v. Martin, 112 English Reports 921 at page 923, and The Queen v. William Marsh and James Bell Lord. 169 English Reports 348 …. In my view, a charge has to specify with sufficient certainty what a person is charged with. Here appellant was charged with falsely pretending that the cheque in question which was issued in the name of the National Housing Corporation was for him although in fact the said cheque was for the said Housing Corporation. I think it is clear enough to appellant what he was being charged with. I am not persuaded in a charge of false pretences it must be stated to whom the gods belong. The authority quoted by learned counsel refers to obtaining goods by false pretences under an old statute, 7 & 8 George IV. I very much doubt if it is still good law; in any event I am not prepared to follow it. Section 302 of our Penal Code …. Is more in line with the Larceny Act, 1916, of England. I have not been able to obtain a copy of the statute of 7 & 8 George IV clause 29 section 53, but in Archbold, Criminal Pleading Evidence and Practice, 35^th Edition, in dealing with the offence of false pretences under the Larceny Act, 1916, it is stated in paragraph 1938: “Ownership of the gods need not be alleged, nor intent to defraud any particular person: Indictments Act, 1915, Sched. 1 ….” I do not think therefore this particular ground of complaint is valid these days, and as I red section 302 of the Penal Code I am of opinion that it is not fatal to omit mentioning to whom the money belongs.” (2) “As regards the second ground of appeal, that  a considerable amount of inadmissible evidence was admitted, which must have prejudiced the appellant, learned counsel draws my attention to evidence adduced which relates to false pretences or false representations made by appellant to Ahmed Ali Shirwa ….. Learned counsel states all these pieces of evidence had the effect of showing that the appellant was a person who would go about making false representations made by appellant to Ahmed Ali Shirwa ……. Learned counsel states all these pieces of evidence had the effect of showing that the appellant was a person who would go about making false representations. He sys appellant was not charged with making false representations to Ahment Ali Shirwa and all this evidence was irrelevant and inadmissible, and would be evidence of bad character and could have prejudiced the appellant …  am not persuaded this is so. In my view the evidence which has been adduced rooms part of a pattern and the evidence is a part of the same transaction resulting in the presentation of the cheque by the appellant to the Housing Corporation. It is true appellant has made false representation to Ahmed Ali Shirwa as well as to the Housing  Corporation, but in my view the false representations to both the parties are so interconnected that the false representation made by the appellant to Ahmed Ali Shirwa would be relevant and admissible; see section 8 of the Evidence act. I do not agree that the evidence objected to by appellant’s counsel was inadmissible under section 56 (1) of the Evidence Act in the circumstances. (3) “As regards the second count, that of inducing the said Corporation to deliver to appellant a receipt in his name valued at 20 cents, there is evidence that appellant had never asked for the receipt to be issued. He merely handed over the cheque to the cashier, P.W. 9 P. Mwasabwite, and P.W.9 was instructed by P.W. 5 Francis Figuereido to issue a receipt to the appellant. There is evidence to show that whenever any money or chegue is handed over to the National Housing Corporation a receipt is issued. P.W. Francis Figuereido has said he sent the receipt with a messenger to the appellant, and the appellant has not challenged that piece of evidence. The trial magistrate in his judgment said: “I find it as a fact that the accused, knowing the Corporation’s regulation. Expected to receive the receipt on the presentation of the cheque.

The appellant was a senior official of the Corporation, and although he did not demand a receipt he knew he would be issued with one. The trial magistrate said: “He therefore must have known that he would be issued with the receipt by presenting the cheque. This was therefore representations by the accused by his conduct …..” I tend to agree.”  (4) Appeal dismissed.