William s/o Simon @ Mmari v. R., Crim. App. 178-A-68, 15/1/69, Platt J.

 

William s/o Simon @ Mmari v. R., Crim. App. 178-A-68, 15/1/69, Platt J.

The appellant was convicted of stealing Shs. 130/- as a public servant contrary to section 270 and 265 of the Penal Code and sentenced to the minimum sentence. At the material time between December, 1967, and March 1968, the appellant was employed as a Forest Guard at the Masama Lukani Forest, and his duties included supervising the proper use of timber. The procedure was that a person whishing to fell and cut timber, had to get a Part 1 or A licence on payment of Shs. 30/- fees. He would then approach the Forest Guard and the tree having been felled, the guard would measure it in order that the Part 11 or B licence could be issued. On the strength of the measurements, the necessary fees would be calculated, and on payment of them, the Part 11 or B licence would be issued. The tree would then be stamped, allowing the licencee to cut it into timber. In the event of the procedure not being followed, there was provision for stamping the tree, so prohibiting it being made into timer. In December, 1967, the main witness Shelekino approached the appellant and asked what he had to do to be able to cut timber. The appellant is alleged to have replied that no new licenses were being issued but that a Part I licence, which had been issued to one Phillemon, had not been used. It is not disputed that Phillemon’s licence had expired in November, 1967, and that although a tree had been felled, Phillemon had not cut it into timber. The appellant said that he would transfer Phillemon’s licence to Shelekiro and took Shselekiro to the site and showed him the tree. Shelekiro agreed to pay the fee for the licence and did so in the presence of the witnesses. He then received Phillemon’s Part I licence. The appellant then took measurements of the tree and told Shelekiro that he would have to pay a further Shs. 100/- for the Part 11 licence. Shelekiro again paid this money to the appellant. The appellant told Shelekiro that he would go to the Forest Office in Moshi and get the Part 11 licence for him and for this purpose Shelekiro gave him the Part I licence to which the appellant attached the measurements of the tree. This occurred in January, 1968, and sometime later, the appellant informed Shelekiro that due to the pressure of work in the Forest Office, he had been unable to get the licence. But he said that he was the responsible officer for permitting Shelekiro to cut up the timber. Shelekiro and his employees then proceeded to do so. But on the 18^th March, 1968, Mr. Kuru Salim, the Forest Project Officer, stopped the work as he found the tree unstamped. 

Held: (1) The question is whether the accused’s actions amounted to theft by a public servant. “The two payments were not of identical character. From Shelekiro’s evidence it appears that he purchased the Part I licence from the appellant thinking that he was the authorized agent of the Forest Office, and paid the fees direct to him. Whereas in the case of the Part 111 licence, he understood that the appellant would take the fees paid together with the documents and obtain the licence for him. As far as I can see, the appellant was to act as Shelekiro’s agent in getting the Part 11 licence. There is no doubt that on the evidence of Mr. Shelekiro and the period of the licence extended without the authority of the licence issuing officer

at the Forest Office ….. It seems clear that the appellant had no right to act as he did and that he must have known this. What happened was that Shelekiro honestly thought that he had purchased the licence from the Forest Department, and that he had paid the necessary fees to its authorized agent. He discovered however that he had no licence at all and that the money had never reached the proper recipient. The question then is whether the appellant stole the money by virtue of his employment or obtained the money by false pretences. There is no doubt that the transaction was completed as far as Shelekiro was concerned and that he had parted with the property in the money to the appellant as the agent of the Forest Department. It is also clear that as the appellant had not issued a valid licence at all, that the Department could not claim the money. Nor had the appellant been authorized to issue the licence. It follows then that the appellant was engaged on a frolic of his own and that he had obtained the money falsely pretending that he was entitled to transfer the licence and receive the fees. He was not the Department’s authorized agent in these matters. Therefore in my opinion the appellant could not be properly convicted of theft by public servant as far as the payment of the Shs. 30/- is concerned.” (2) “Turning then to the second payment, Shelekiro appears to me to have understood that the appellant was not in a position to issue the licence Part 11, but that by entrusting him with the Part I licence, the measurements, and the estimated fees, that the appellant would obtain the licence for him. Nothing was said that it was the appellant’s duty to obtain the licence, which in fact, it was not. It was a promise by the appellant to do a future act on behalf of Shelekiro. It seems to m that as again the appellant was not acting in the course of his employment, that for this transaction he was not the agent of the Department but the agent of Shelekiro. Therefore he was not acting as a public servant and the money in his hands was not the property of the Department but the property of Shelekiro. Having falsely denied receiving it, it is clear that he must have converted it to his own use. Accordingly he was guilty of theft from Shelekiro.” (3) “The difficulty remains that the appellant was charged with stealing the aggregate sum of Shs. 130/-, and so convicted, whereas in my view, he ought to have been convicted of obtaining Shs. 30/- by false pretences and the theft of Shs. 100/-. I know of no authority for converting part of a sum alleged to have been stolen into a conviction for false pretences and substituting a conviction for the remainder into a lesser type is to substitute a conviction of theft of Shs. 100/, and acquit  the accused as to the balance of Shs. 30/-.