Yusuf Salim Mkaly v. R., (High Court of Tanzania) Crim. App. 444-D-69, 15/10/69, Georges C. J.

Yusuf Salim Mkaly v. R., (High Court of Tanzania) Crim. App. 444-D-69, 15/10/69, Georges C. J.

The appellant was charged with stealing by servant c/ss 271 and 265 of the Penal Code. it was alleged that on or about 7^th August 1968, being a person employed by the Tanganyika African National Union as a Regional Executive Secretary, he stole Shs. 695/- which came into his possession by virtue of his employment and which was the property of his employers. The appellant admitted taking the money which had been given to him to pay for repairs to a Land Rover. He had gone to Peramiho Mission with the Land Rover and the money but the father in charge of the repair shop had refused to take the money before some estimate had been prepared of the probable cost of the repairs. His evidence was that he had then returned to Songea where he had received a message from TANU Headquarters, authorizing him to travel to Morogoro as some

            Member of his family was sick. There was at the time no superior officer of TANU at Songea. He decided therefore to use part of the Shs. 695/- which he had in his possession to pay his fare home and while at home he used more of the money. On 13^th September 1968 he reported to TANU Headquarters and informed the head of the accounts division that he had used the money. This person told him that deductions would be made from his salary. He asked that no deductions be made during his period of leave – September, October and November, but that the whole amount be deducted in December 1968. This was in fact done. Nevertheless, on 14^th February 1969, the appellant was charged with stealing by servant and convicted. The magistrate held that the fact that the money had been refunded was immaterial. The appellant was guilty of fraudulent conversion by virtue of s. 258(2) (e) of the Penal Code, which provides that a fraudulent intent is established, in the case of money, by “an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to owner.” On appeal to the High Court, Georges C. J. referred to a number of English authorities. In R. v. Cockburn (1968) 1 All E.R. 466, Winn L. J. said: “If coins, half a crown, a 10 s. note, a £5 note, whatever it may be, are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or notes, albeit not only hoping but intending and expecting reasonably to be able to replace them with their equivalent, nevertheless larceny has been committed because with full appreciation of what is being done, the larcenous person, the person who commits the offence, has taken something which he was not entitled to take, had no claim of right to take, with-out the consent of the owner and is in effect trying to force on the owner a substitution to which the owner has not consented.” The Court in that case expressly disapproved of a passage attributed to Lord Goddard C. J. in R. v. Williams (1953) 2 W.L.R. 937 at 942; (1953) 1 All E. R. 1068. The passage reads: “It is one thing if a person with good credit and plenty of money uses somebody else’s money which may be in his possession and which may have been entrusted to him or which he may have and the opportunity of taking, merely intending to use those coins instead of some of his own which he has only to go to his room or to his bank to obtain. No jury would than say that there was any intent to defraud or any fraudulent taking, it is quite another matter if the person who takes the money is not in a position to replace it at the time but only has a hope or expectation that he will be able to do so in the future ……..”

            Held: (1) “In my view it must be borne in mind that theft must inevitably carry with it a connotation of fraud. S. 258 of the Penal Code defines theft thus:- “A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use for any person other than the general or special owner thereof  anything capable of being stolen, is said to steal that thing………” It is significant that in the definition of theft in R. v. Cockburn quoted above, no mention is made of the word “fraudulent”. It seems to me incredible and against all reason that a person who in the course of a journey is entrusted with a twenty shilling note to deliver to someone at the other end should be held guilty of larceny if in the course of that journey he spent that not e for his own purposes even though on his arrival he handed over a similar twenty shilling note to the person whom it had been sent to. To describe such conduct as being technical larceny appears to me to go much further than is required in order to make sure that the limits of dishonest conduct are not too widely set. Unless it was known,

for example, that the particular twenty shilling note which had been entrusted for delivery had some intrinsic worth over and above its face value, it would appear to me that the person to whom it was entrusted could reasonably assume that the owner would have no objection to its use and immediate replacement so long as the person to whom it had in fact been sent received twenty shillings. It appears to me that here could be no theft not because there was an intention to repay but because there would exist a genuine belief, reasonably held in the circumstance that the use of he particular twenty shilling not under those circumstances would not be objected to. As I have indicated the position would be otherwise if there were specific instruction to deliver a particular not or a particular coin and if such instructions were willfully ignored.” (2)”In this case, on the facts put forward by the defence it seems clear that appellant felt that he would have obtained the permission to use the money in the circumstances which had arisen. He reported to the Headquarters of TANU that he had done so. No steps were taken against him. He was allowed to remain in the employment of TANU and he was allowed to go on leave. Arrangements were made to have the money deducted from his pay at this convenience and the money was in fact deducted. I find it impossible in these circumstances to hold that there was a fraudulent taking.” (3) “Mr. Chandu argued with much force that if this was permitted then any employee using his employer’s money could put up as a defence a reasonable belief that he could have had the money as loan if there had been a prior opportunity to make the request. This possibility does not appear to me to the alarming. If there was specific instructions that money must not be used other than for the purposes for which they have been given they obviously employed will not be able successfully to advance in his defence a belief that he would subsequently have obtained authority. In this case the reasonableness of the appellant’s belief was justified and having it deducted from his salary.” (4) Appeal allowed.)