Emmanuel s/o Kahama v Republic 1983 Tlr 81 (Hc)

EMMANUEL s/o KAHAMA v REPUBLIC 1983 TLR 81 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwaikasu J

June 16, 1983

CRIMINAL APPEAL 6 OF 1983

Flynote

Criminal Law - Obtaining credit by false pretences - Appellant stayed in hotel and enjoyed F services in course of employer's duty - Appellant failed to pay the bills for the services rendered - Whether false pretence - Section 305 (13) of the Penal Code.

-Headnote

The appellant rented a room in a hotel while in the course of employer's duty and was given services by the hotel. The appellant failed to pay the bill when it was presented to G him. He was charged with obtaining credit by false pretenses.

Held: 

(i) To constitute an offence of obtaining credit by false pretences there must be proof of some conduct on the part of the accused person whereby at the time of entering H into an agreement for obtaining credit, he purported to represent, that he was personally, or some other person, able to meet the bills on demand, when he knew such representation was false.

Case Information

Appeal allowed.

No case referred to.

Ndolezi for the respondent

[zJDz]Judgment

Mwaikasu, J. The appellant, one Emmanuel Kahama, stood charged before the lower court with the offence of obtaining credit by false pretences c/s 305 (1) of the Penal Code, the particulars being that, having rented Room No. 416 at the New Mwanza Hotel between the dates of 3rd and 7th April, 1981, he incurred a debt of shs. 7,817/40, by false pretences, in that he failed to pay the aforementioned sum of money which was the total of his unpaid bills, the property of the New Mwanza Hotel.

He pleaded not guilty to the charge, but upon his trial he was subsequently convicted of the offence charged and sentenced to three years of imprisonment. He was also ordered to pay compensation to the said New Mwanza Hotel in the sum of shs. 7,817/40 being the total value of his bills remaining unpaid.

He then preferred this appeal against both such conviction, sentence and order of compensation of the lower court on the grounds contained in his memorandum of appeal most material of which may be summarized as follows: E

(i) That he denies to have obtained credit by false pretences;

(ii) that on the material days of the incident he was an employee of the SOGESCA LARNAI ESTERO, as compensation liaison officer;

(iii) that he did not abscond from the New Mwanza Hotel but left it on his own through normal procedure;

(iv) that the prosecution failed to summon the Receptionist who provided him accommodation as well as the Receptionist who was on duty on the day of his departure, the 7th of April, 1981;

(v) that the trial magistrate failed to take into account his evidence and that of his witnesses.

He further added, on the day the appeal was first heard that the PW.1 had reason to lie because he had been threatened to have his salary deducted to cover the amount of such unpaid bills, which deductions were, in fact, also mentioned by the PW.1 in his evidence before the lower court.

This court sought the production of an admission card from the New Mwanza, which in terms of PW.1's evidence the accused had first to fill the necessary particulars, including the terms of payment, before he was given a room, but according to the testimony of the additional witness one Binito Jeremiah, an acting Receptionist supervisor, the admission card filled by the appellant on 3rd April, 1981 was found missing.

The Republic, as represented by Mr. Ndolezi learned State Attorney, declined to support the conviction on the grounds, inter alia:

(i) That the admission card which could show whether, the appellant had signed it for Company himself was missing; and

(ii) that as long as the prosecution could not challenge the appellant's allegation that he had been in Mwanza Hotel in his official capacity and the bills had to be paid by the company, his employer, the benefit of doubt must go to the appellant.

Having gone through the record of the lower court together with the appellant's memorandum of appeal and having heard the additional arguments of the appellant together with the arguments and submissions of the learned State Attorney I had no hesitation in allowing this appeal but reserved my reasons for the same which I now do hereby give.

In the first place, from the face of it, reading its particulars, the charge itself is defective. As it reads, it would appear that the appellant's alleged false pretence in obtaining the credit was evidenced by his failure to pay the bills for the services rendered to him by the hotel. If that was the case, as it clearly appeared to be, it was misconception. To disclose an offence under s.305(1) of the penal Code the charge must allege some conduct on the part of the accused person whereby at the time of entering into an agreement for obtaining the credit alleged, he purported to represent that he was personally or some other person able to meet the bills on demand, when he knew that such representation was false. That, according to the PW.1's evidence, in case of the H appellant, ought to have been extracted from the hotel's admission card in which the appellant had to fill all such information.

Had the prosecution succeeded in adducing material evidence to establish the charge, such defect could, however, have been considered curable under section 346 of the Criminal Procedure Code, Cap. 20. But as will hereinafter appear, such is not the position in the instant case.

As to the fact of the case, apparently, save for the aspect of the alleged false, pretence by the appellant, there is no dispute as regards the renting by the appellant at the New Mwanza Hotel between the material days and obtaining the goods and services amounting to a total value of shs. 7,817/40 as presented in the bills all of which have been admitted by the appellant as genuine, as he did in fact, countersign them.

On the other hand such amount has not yet been paid and it is the subject of the charge that stood against the appellant.

The only issue is whether the appellant did obtain such credit by false pretence. And one obvious fact is that the burden to prove the same lay upon the prosecution and they had to do so beyond any reasonable doubt. False pretence is defined under section 301 of the Penal Code as meaning:

Any representation by words, writing or conduct of a matter of fact or of intention, which representation is false and the person making it knows to be false or does not believe it to be true.

It is clear from such definition that to establish the charge against the appellant it was not enough to simply show that the appellant failed to meet the bills. It was rather, the duty of the prosecution to establish beyond any reasonable doubt that at the time the appellant entered into an agreement with the hotel for the accommodation by filling in the admission card, he did represent that either himself or some other person, was able to meet the bills for the goods and services rendered, on demand, when, in fact, he knew that such representation was false or did not believe it to be true.

Yet, according to the record of the proceedings before the lower court no evidence was adduced by the prosecution as to how the appellant did present himself at the time of his admission into the Hotel as regards the manner and person who was going to foot his bills. In fact, as stated earlier, no admission card that had been filled by the appellant on the day he entered the hotel was ever produced in evidence nor, on being ordered by this court to be produced, was it to be found anywhere: regrettably it was said to be I missing. It is, therefore, impossible, without information obtained from such admission card, to determine how the appellant did represent himself before the Hotel personnel, as to his means of meeting his hotel bills. Thus in the light of appellant's allegation as adduced in his evidence, which was not substantially challenged by the prosecution, that in this admission card he had indicated that the bills were to be met by SOGESCA LANARI ESTERO, then his employer, as he had been at Mwanza on his official duties it cannot B be said that the appellant ever represented that he would personally meet such hotel bills, when he knew he was financially incapable of doing so.

In fact, considering the evidence of the appellant as corroborated by the DW.1 one Sweetberth Kashanga Rugarabamu, together with PW. 1's answer when cross examined by the appellant, it became clear that when the appellant had left the hotel arrangements were made for the Hotel to send the bills of expenses incurred by the appellant during his stay at the Hotel on the material days. Such communication was made by telephone on 8th April, 1981. However, the hotel was slow to take action and had not done so by the time appellant was dismissed from work on 22nd May, 1981, for alleged extravagance in imprest expenditure. It was then until the PW1 felt the pinch of deductions effected on his salary to cover such unpaid bills that on 21st June, 1980, the E PW1 presented a complaint to the PW4 at Mwanza police station, which subsequently led to the charge that stood against the appellant. Clearly that falls short of a false pretence by the appellant.

Let me point out at this juncture that the dates of the record of the lower court are really confusing for whereas the charge 23rd June, 1981 and in their testimony the PW1 and F PW2 referred to the dates in April, 1981, the receipts produced before the lower court in support of the charge and the evidence of the PW3, PW4 (the arresting Police Officer) together with that of three defence witnesses make reference to the dates of April, 1980. Taking the receipts to be representing the correct dates, I would take the dates of April, in 1980, as the correct one. It follows therefore that the incident in question look place between the 3rd and 7th April, 1980, and not as represented in the charge sheet.

With such state of evidence before the lower court, the appellant ought to have had the benefit of doubt and entitled to an acquittal. Perhaps some observation about certain passages of the judgment of the learned trial magistrate will help see where the scales of justice seem to have began to turn against the I appellant, through a misdirection on point of law. Regarding burden of proof.

The passage which conspicuously manifests the thinking of the learned trial magistrate which must have influenced him in rejecting the defence case reads as follows:-

The accused person, however, tended to show during his defence that he was entitled to board and stay at the hotel and use all food and other facilities at the expense of his employer (SOGESCA LANARI ESTERO) in his official capacity as compensation liaison officer. But he has failed to prove his allegation by either producing a supporting document or calling any of the responsible officers from his company to come to court and ascertain his arguments. (Emphasis supplied). 

Certainly, from such a statement the learned trial magistrate clearly misdirected himself as to the burden of proof in the case. He did, in effect, shift the burden from the prosecution on to the appellant.

This was wrong. For the charge standing against the appellant was one of obtaining credit by false pretences; though unfortunately this did not make out what such false pretence had been. It was therefore, as rightly pointed out by Mr. Ndolezi, learned state attorney, the duty of the prosecution to call responsible officials of the appellant's former employer, the said Sogesca Lanari Estero that the appellant had no such entitlements. And this they failed to do. In fact it would not have been surprising were such company officials to be called for the prosecution, to deny such appellant's allegations for by then the appellant had been dismissed from the company and the company would naturally not accept such financial burden for someone who had been dismissed from their employment.

It is clear, therefore, that in looking at the appellant's defence as he did the learned trial magistrate misdirected himself in shifting the burden of proof from the prosecution to appellant when in law, it was, in the circumstances, upon the prosecution to prove the case against the appellant beyond all reasonable doubt.

For the above reasons I allow the appeal and set aside both conviction and sentence of the lower court together with order for compensation.

Appeal allowed.

1983 TLR p87

A