Marcel Mpembee v. R., (PC) Crim. App. 30-D-69, 9/5/69, Hamlyn J.

Marcel Mpembee v. R., (PC) Crim. App. 30-D-69, 9/5/69, Hamlyn J.

The accused was convicted in the Primary Court of cattle-stealing, from which he appealed to the District Court, which dismissed the appeal. Thereupon, he appealed to the High Court. From the start of the case, the appellant had contended that the cattle which he was alleged to have stolen belonged to or at least partly belonged to him. He maintained this claim throughout the proceedings from the Primary Court upwards. The lower courts found that the cow did not belong to the appellant, and convicted him of cattle-stealing.

Held: “With respect, I think that the District Magistrate has failed to appreciate what the law is in regard to theft. If he had read through second 258(1) of the Penal Code he would have seen that one of the ingredients of this offence is that the object taken must be taken “fraudulently and without claim of right.” Section 1 of the English Larceny Act, 1916 embodies this phrase but makes it even clearer by stating that the taking must be “fraudulently and without a claim of right made in good faith.” The two courts below have found that the cow did not belong to the appellant. But they stopped there and failed to consider whether, despite this, the accused man himself maintained genuinely (though perhaps erroneously) that the cow belonged to him and that he had a real and honest claim to it. A person has a claim of right where he honestly asserts what he believes to be a lawful claim, even though it may be unfounded in law or fact. From the record it is clear that right from the start of the proceedings, the appellant has asserted this claim in no uncertain language …… it would be quite unjust to dismiss this appeal in view of the fact that neither of the courts below has seen fit to consider what was in the accused’s mind at the material time. A mere finding of fact as to ownership in cases of this nature is only a part of the answer to the question, “Did he steal the cow?” that he may have taken it is one thing, but the prosecution have further to show that the taking was done without that claim of right made in good faith which, if present, absolves on accused. It matters not whether that claim is right or wrong; it matters not whether, in the eyes of the court, the claim may amount even to a fantasy. If the accused at the time of the taking thought genuinely that he was taking his own property, then however incorrect his claim might be, whatever the unreasonableness of his arguments, he cannot be convicted of theft.” Appeal allowed.