Nizar Yusuf Giga v. R., Crim. App. 801-D-69, 14/1/70, Georges C. J.

Nizar Yusuf Giga v. R., Crim. App. 801-D-69, 14/1/70, Georges C. J.

The appellant was charged with stealing c/s 265 of the Penal Code. It was alleged that he had stolen 31/2 bags of millet valued at Shs. 287/- the property of Omari Kanduro. He was acquitted on the charge of stealing but convicted instead of obtaining goods by false pretences c/s 302 of the Penal Code. the appellant was a businessman using a lorry to cover the countryside purchasing produce. The complainant is a farmer. On the day in question he had 3 ½ bags of finger millet for sale. According to the complainant the appellant examined his 31/2 bags of finger millet and complained that they had not been properly filled. Complainant insisted that they were full enough and asked appellant to   pay Shs. 288/- if he wanted them. Thereupon the appellant took some money from his pocket and asked whether the complainant had changes. Complainant said he had none. Thereupon the appellant ordered his helpers to place the bags on his lorry though the complainant kept insisting that he would not part with the bags unless he had his money. Over his objections the bags were loaded and he too got on the lorry having received the appellant’s assurance that he would have his money when they reached the next house and got change. When they reached the next house the complainant said that he got off the lorry. Some more talk followed and to his surprise the appellant went back on to the lorry and drove off leaving him without his money and without his goods. The complainant reported the matter to the police who eventually arrested the appellant. Abdallah Mohamed, the appellant’s turnboy who gave evidence for him told a story which differed somewhat. He testified that after the quarrel as to price the appellant drove off saying “if you don’t want Shs. 80/- that we had agreed is hall go with your bags and you shall come at my shop yourself to collect your money”. The trial magistrate held, disbelieving the complainant that the complainant had agreed to the bags being put in the lorry. There was no taking therefore, and no stealing. He held, however, that the appellant had obtained the goods by false pretences. What exactly was the false pretence the trial magistrate did not find.

            Held: “It is important when substituting a conviction for obtaining goods by false pretences on an original charge of stealing that the false pretence found proved should be specifically set out …. The appellant was clearly not pretending that he had the means to pay for the millet when in fact he had not. He did have the means to pay. Indeed I am satisfied that if any charge could be proved against the appellant it was the original charge of stealing. Even if the complainant had agreed to have his bags of millet put on the lorry he had not relinquished control over them. He was there with them intending to complete the sale when he had been paid. But though he agreed to be paid later when change was available he was also retaining control of the goods until such time as payment had been made. The driving off of the lorry while the complainant was on the road amounted to a taking away of the complainant’s goods against his will sufficient to support the charge of stealing. I am satisfied that the conviction for obtaining goods by false pretences is misconceived. Accordingly it is set aside and a conviction for stealing substituted.”