Alli s/o Iddi v. R., Crim. App. 64-A-67, 22/6/67, Georges C. J.

Alli s/o Iddi v. R., Crim. App. 64-A-67, 22/6/67, Georges C. J.

The appellant was convicted of the theft of Shs. 180/-. The complainant swore that the appellant, whom she knew well, used to stay in her house. At one stage he asked her to give him her old Tanzania notes so that he could have them changed for the new ones. She gave the appellant Shs. 580/- in old notes. After some days appellant returned with Shs. 400/- new notes.  Complainant said she wanted her money back, appellant agreed to repay and gave a document to that effect. In fact he did not pay and kept avoiding the complainant. She eventually reported the matter to the police and the appellant was charged. At the trial appellant put it to the complainant that the Shs. 180/- was a loan. She denied that it was. Appellant when called upon remained silent and called no witnesses. The magistrate convicted.

Held: (1) “It is quite clear that there may be circumstances in which a person might use another’s money entrusted to his custody without that other’s consent where it is reasonable to assume that consent would have been given if asked. If in such circumstances the owner of the money treats the transaction as one of loan when it is reported to him that the money has been used, then he could not later seek to take criminal steps.”  (2)”On the other hand, if there was no ground for reasonably believing that the owner would have given consent for the user and if on the report of it the owner protests, the mere fact that he takes no immediate action and gives the offender time to put the matter right by payment could not change the character of the original unauthorised user.” (3) “In Tanzania a person who used money entrusted to him by another at his will may be guilty of larceny even if he had an intention to repay, but the evidence does establish that he used the complainant’s money for his own purposes. He remained silent when called upon so there was nothing to suggest that he could reasonably have though that the complainant would have agreed to his using the money if he had asked for her prior permission. The magistrate accepted the complainant’s evidence that she did no lend him the money – a not unreasonable finding in view of his silence. In those circumstances, a conviction for theft seems justified. According the appeal is dismissed and the sentence confirmed.” [Editors’ note: This case was previously digested briefly at (1967) H.C.D. n. 219. In view of its relevance to and consistency with the following case of Yusuf Salim Mkaly v. R. (1969) H.C.D. n. 264, it is here reported in full].