Mikidadi Abdullah v. R. Crim. App. 899-M-69; 22/4/70; Seaton J.

Mikidadi Abdullah v. R. Crim. App. 899-M-69; 22/4/70; Seaton J.

The appellant is the former Officer-in-charge of the Tabor Prison. As such, he was ex-officio Chairman of the Prison Officers Staff Club. The appellant was convicted on two counts of stealing by a public servant under sections 265 and 270 of the Penal Code and obtaining money by false pretences under section 302 of the Penal Code. He was sentenced to 3 years imprisonment with 24 strokes corporal punishment on each of the two stealing counts and to 18 months and 6 months imprisonment on each of the two counts of false pretences.

            Held: (1) With respect to the first count of stealing by public servant, there is adequate evidence to show that the appellant stole Shs. 334/30 from funds of the Prison Staff Club. “As, however, the money belonged to the Prison Staff Club and not to the Government, the offence does not fall within section 270 of the Penal Code  and the Minimum Sentences Act is inapplicable. Accordingly, I quash the conviction under section 270 while upholding that of simple theft under section 265.” (2) “As regards …… the second count of stealing, the appellant did not dispute that on or about 14^th July. 1967, he took Shs. 400/- from the Club’s treasurer but he maintained that this was a loan to him which was taken in good faith. The Commissioner of Prisons (P.W.6) referred the trial court to section 305 of the Prisons Standing Orders which he said lay down that a chairman of the Prison Staff Club may authorize loans from its funds not exceeding Shs. 100/- to his subordinate staff. If, however, the chairman himself wished to borrow money, he had first to apply for a loan to the Commissioner of Prisons for approval which the appellant had not done. The Prisons Standing Orders were put in evidence …. From a perusal of these Orders, it appears that they are silent as to the procedure to be followed should the Chairman of a Staff Club require a loan. The failure to follow the procedure outlined by the Commissioner was not, therefore, ipso facto proof of theft. In my view, it was necessary to inquire further before proof of the appellant’s fraudulent intention could be found. It appears from the record that the appellant did not take the Shs. 400/- secretly or in an underhand way. He informed the Club treasurer Mr. Nondo (P.W.5) that he was taking a loan and would repay it by subsequently giving a cheque of his for this amount. He failed to do so before the present proceedings were instituted by that does not necessarily prove he never intended to do so …. The learned State Attorney, who appeared for the respondent at the hearing of this appeal, urged in support of the conviction that the law under section 258(e) of the Penal Code is very strict and referred to the case of Ali s/o Iddi, v. Republic [1967] H.C.D. n. 219. [Also reported more fully at (1969) H.C.D. n. 263]. The section reads as follows:- “(e) in the case of money, and intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount o the owner.” In the last-mentioned case, Chief Justice Georges upheld the conviction because the evidence established that the alleged borrower used the complainant’s money for his own purposes without permission to do so; thereafter the appellant kept avoiding the complainant, who finally brought the matter to the attention of the police. It seems to me that a crucial distinction between that case and the present case is the knowledge of the appellant in Ally Iddi’s case that he did not have the owner’s permission to use his money for a loan. In the present case, there is no evidence to that effect except the verbal statement of the Commissioner of Prisons (unsupported by the Prisons Standing Orders) that loan applications by chairmen of Prisons Staff Clubs had to be approved by him. The appellant

When cross-examined on this point denied that he was conversant with Standing Order 305. With respect, I would agree with learned counsel for the appellant that if there were a breach of the Prisons Standing Orders (which appears to be doubtful) the appellant may have rendered himself liable for disciplinary action. But the prosecution failed to prove that the appellant fraudulently and without a claim of right converted the Shs. 400/- to his use and the conviction on the third count cannot be sustained. Of course, this money may be recovered by the Prisons Staff Club by civil action if appellant has not by now repaid it.” (3) “The two remaining counts [of obtaining money by false pretences]…. May be dealt with together. The prosecution alleged that between the months of May and June, 1967, the appellant with intent to defraud obtained from the Prison Officers’ Staff Club, Tabora, two sums of Shs. 1,000/- and Shs. 100/-by falsely pretending that he had sufficient funds in his personal account in the bank and issued cheques for these amounts knowing well that he had not sufficient funds in his personal account in the Bank. The learned resident magistrate found that on 18^th May, 1967, the appellant issued his cheque to the treasurer of the Club, Mr. Nondo (P.W.5) and post-dated it to 31/5/67. The Club presented tit on the date shown on it and the cheque was dishonoured. When the appellant was told about this, he replied that the cheque should be kept by the club and presented to the bank again at the end of June. On 30^th June, the Club presented the cheque to the bank but again it bounced. At the time, according to Mr. Mathew (P.W.4), a supervision of the National Bank of Commerce in Tabora, the appellant had a balance of Shs. 20/75 only. When the appellant’s cheque for Shs. 1,000/- was dishonoured the second time, he went to the Bank and checked his account. Despite the small balance which was revealed, the appellant on 4^th July, 1967, issued a cheque for Shs. 100/- to the Club and against this took Shs. 100/- cash club money. When the Shs. 100/- cheque was presented it also was dishonoured. The learned resident magistrate directed himself that a post-dated cheque, in the absence of other evidence, is a promise to the future and cannot be pretence as to an existing fact. In the circumstances of the present case, however, he held that the appellant knew very well he had no funds in his account to meet the cheques and hence by obtaining cash from the Cub’s treasurer, he falsely pretended to an existing fact. Accordingly, he convicted the appellant of obtaining money by false pretences. Learned counsel for the appellant has submitted that the dishonoring of a post-dated cheque gives grounds for a civil liability, not criminal. Alternatively, he submitted that the appellant’s crime could only be that of obtaining credit by fraud, contrary to section 305 of the Penal Code. In support of his submissions, he referred to Gulamrasul Shabandin, [1934] 21 E.A. 29 and Rex vs. C.J. Heigl [1934] 1 E.A. 185. If I do not refer to those cases in detail, it is not through lack of respect for learned counsel, who has argued this appeal with clarity and restraint. I am satisfied, however, that the learned magistrate did not misdirect himself as to the law or as to the facts. The appellant used his subordinates as mere tools in making use of the staff club’s money because of his dire financial straits. The evidence amply supports the conviction on counts 5 and 6.” (4) ‘As to sentences, that on count 1 under the Minimum Sentences Act is quashed and there is substituted a sentence of 12 months imprisonment for simple theft. For the reasons stated regarding count 3, the conviction is quashed; the sentence thereon is set aside. The sentences on counts 5 and 6, i.e. of 18 months and 6 months imprisonment will remain, as also the order that all sentence will run concurrently.”

Editor’s note: The second holding in this case appears to be in conformity with Yusuf Salim Mkaly v. R., (1969) H.C.D. n. 264, with which it should be compared.