JONES NDUNGURU v REPUBLIC 1984 TLR 284 (HC)

JONES NDUNGURU v REPUBLIC 1984 TLR 284 (HC)

Court High Court of Tanzania - Mtwara

Judge Samatta J

June 20, 1984

CRIMINAL APPEAL 80 of 1981

Flynote

Evidence - Admissibility - Telegram to establish truthfulness of contents thereof -

Whether admissible in evidence - B S.61(1) Evidence Act, 1967.

Evidence - Burden of proof - Proof whether or not appellant was away on official

duty - Burden on prosecution. C

-Headnote

The appellant was convicted by a District Court on a charge of obtaining money by

false pretences. Without informing his immediate boss in Lindi, but after sending a

telegram to the headquarters of his Corporation the appellant went to Dar es Salaam

allegedly on official duty. On going back to his station he D claimed and was paid

shs.2,542/50 being a refund of money he had used to buy a Lindi - Dar es Salaam

return ticket and for subsistence allowance. The prosecution argued that the journey

the appellant made was not official and, therefore, he obtained the money by false

pretences. To back its argument the prosecution produced a telegram allegedly from

the Corporation's headquarters the contents of which E showed that the appellant

did not go to Dar es Salaam on official duty. The telegram was admitted in evidence.

On appeal:

Held:(i) The reception in evidence of the telegram as establishing the truthfulness of

the contents thereof F sinned against the Rule against Hearsay as formulated in

s.62(1) of the Evidence Act, 1967;

(ii) there was no admissible evidence against the appellant to prove that while

he was in Dar es Salaam he did nothing official; G

(iii) the burden of proving whether or not the appellant was in Dar es Salaam

on official duty was on the prosecution.

Case Information

Appeal allowed H

Case referred to:

1. Re London and Globe Finance Corporation [1903] 1 Ch. 728.

[zJDz]Judgment

Samatta, J.: On January 29, 1981, the appellant was charged before the District Court

of Lindi district with I obtaining

1984 TLR p285

SAMATTA J

A money by false pretences, contrary to s. 302 of the Penal Code. The particulars of

offence were couched in the following language:

... Jones Ndunguru ... on the 21st day of January, 1981, at Gapex Mtama,

within the District and Region of Lindi, with B intent to defraud. .. obtained from

Betrisia Nongolo shs.2,542/50 by falsely pretending that he went on official journey to

Dar es Salaam and thus he was claiming (sic) Night Allowance, while the journey was

not official.

C The particulars were, with respect, not a model of elegance or accuracy. Be that as

it may, the prosecutor should have used the words 'entitled to' instead of the word

'claiming'. I do not think, however, that the error - for that is what it was -

materially prejudiced the appellant in his defence. It is an D error which, therefore,

is curable under s. 346 of the Criminal Procedure Code. At the end of the trial the

appellant was convicted "as charged" and was sentenced to a term of three years'

imprisonment. He thinks the decision robbed him of justice; hence the appeal now at

the Bar.

E The evidence which was laid in the scales demonstrated, I think, the following

facts. The appellant was employed by the General Agricultural Products Export

Corporation, hereinafter referred to by its acronym - GAPEX, as a depot manager and

was, at the material time, stationed at Mtama. On January 3, 1981, he sent F a

telegraph (Exh.DI) to the General Manager of the Corporation worded as follows, in

Swahili:

NAKUJA HUKO HEAD OFFICE BILA KIBALI CHA MENEJA WA TAWI LA

LINDI TUA MATATIZO YA KIKAZI.

G He received no reply to this message. Six days later he left for Dar es Salaam.

After spending some days there he came back, and on January 21, he resumed duty at

Mtama. Before leaving for Dar es Salaam the appellant did not obtain from his

immediate boss - the Regional Manager at Lindi - any permission to H make the trip.

On his return on January 21 to be more precise, the appellant claimed and was paid

the sum of shs.2,542/50 being a refund of money he had used to buy a Lindi - Dar es

Salaam return ticket, and for subsistence allowance. It was the case for the prosecutor

that the journey the appellant made was not I official and therefore, GAPEX owed

him nothing. The appellant, on the other hand, asserted that

1984 TLR p286

SAMATTA J

the journey was official. He claimed that while in Dar es Salaam he had official

transactions with the A Personnel Manager.

The learned trial magistrate, having reviewed the evidence before him, was of the

settled view that the prosecutor's assertion was correct and the appellant's was

unfounded. He accordingly convicted the appellant. Mr. Sengwaji, counsel for the

Republic, declined to support the conviction. He conceded that it B was not

conclusively established by the prosecution that the journey in question was not

official. In this connection he drew my attention to the meaning given to the word

'official' in the CHAMBER'S TWENTIETH CENTURY DICTIONARY (Revised

Edition). There the word is defined as meaning C pertaining to an office; depending

on the proper office or authority; done by authority; issued or authorised by a public

authority or office; recognised in the pharmacopoeia. With respect, I approve the

learned state attorney's concession. It is a noble and well-established principle of law,

the change of D which can be affected only through legislation, that, as a general

rule, in a criminal case the accused bears no burden to satisfy the court of his

innocence, it being the duty of the prosecution to establish his guilt, if any. In the

instant case, therefore, the appellant bore no burden to convince the learned trial

magistrate E that the journey was official. It was for the prosecution to satisfy him,

beyond reasonable doubt, that it was not. To discharge that task the prosecutor put in

evidence - through PW2, the Regional Manager - a telegraph, purporting to have

been sent to him by the GAPEX headquarters, worded as follows, in Swahili: F

GAPEX MENIJIMENT DAR ES SALAAM WATHIBITISHA SAFARI YAKE

NDUGURU [YAANI MWOMBA RUFAA SASA] KUJA DAR ES SALAAM NA

KURUDI MTAMA SIYO YA KIKAZI TUA HAKURUHUSIWA KUJILIPA

GHARAMA ZA SAFARI G SHILINGI ELFU MBILI MIA TANO ARUBAINI NA

MBILI TUA.

With unfeigned respect to the learned trial magistrate, the reception in evidence of

this telegram sinned H against the Rule against Hearsay, as formulated in s. 62(1) of

the Evidence Act, 1967. The telegram was hearsay - and therefore inadmissible -

because it was relied on testimonially, that is to say, as establishing the truthfulness of

the contents thereof. The telegram, the law says, I

1984 TLR p287

SAMATTA J

A should have been shut out of the case. An officer from the GAPEX headquarters

who could state as facts the contents of it should have been called as a witness at the

trial. Excluding the telegram from the case, one is left with the evidence of the

Regional Manager and the appellant himself (only) on the B question. It was asserted

by the prosecutor, and admitted by the appellant, that the latter had not obtained the

Regional Manager's permission to make the journey to Dar es Salaam. But would that

by itself be sufficient to make the claim which was made by the appellant fraudulent?

I think not. To prove the charge laid at the appellant's door it had to be conclusively

established that, in making the claim the appellant had C the intent to defraud the

GAPEX. How can it be said that he had such an intent if he honestly believed that

the headquarters of the corporation had no objection to his making the journey? If

the telegram the appellant produced as an exhibit at the trial was in fact never

transmitted, what was the difficulty, I ask, D calling a postal official to prove, in

rebuttal, that fact? The record of the case provides no answer to this not unimportant

question. The prosecutor could have sought the trial court's leave under s.207 of the

Criminal Procedure Code to adduce evidence in reply. He did not do so and this

court is bound, in the E circumstances, to assume that he accepted the telegram (the

appellant produced as an exhibit) as being genuine. The intent to defraud is one of

the ingredients of the offence of obtaining money by false pretences, the offence

which the appellant was charged with. The Penal Code, which creates the offence,

F does not define the term 'to defraud,' but the term was given what has come to be

regarded as a classic definition eighty years ago by BUCKLEY, J., (later he became

LORD WRENBURY) in Re London and Globe Finance Corporation, [1903] 1 Ch. 728.

This is what the learned judge said:

G To deceive is, I apprehend, to induce a man to believe that a thing is true

which is false, and which the person practising the deceit knows or believes to be

false. To defraud is to deprive by deceit: it is by deceit to induce a man H to act to

his injury. More tersely it may be put, that to deceive is by falsehood to induce a state

of mind; to defraud is by deceit to induce a course of action.

Upon the evidence on record in the instant case, I cannot see how it can correctly be

asserted that the I appellant knew or believed that the journey he had made to Dar

es Salaam was unofficial. There was enough (reasonable) doubt in this case to entitle

the appellant

1984 TLR p288

SAMATTA J

to an acquittal. It was certainly not proved beyond sane doubt that the journey the

appellant made did not A pertain to his office. There was no admissible evidence in

the scale against him which proved that, while he was in Dar es Salaam, he did

nothing (substantially) official. The case against the appellant could not possibly be

established without an officer from the GAPEX headquarters testifying before the

court to B that effect.

The appellant according to the charge laid at his door obtained the shs.2,542/50 by

false pretences. The term 'false pretence' is given a definition in the Penal Code: s.

301, as amended by s. 13 of the Penal Code (Amendment) Act, 1980. The section

reads as follows: C

Any representation made 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 to be true, is false pretence. D

It was for the prosecutor to satisfy the trial court that the appellant knew that his

journey was not official or that he did not believe that his assertion that the journey

was official was true. I have no hesitation in E stating, as I do, that the prosecutor

failed to discharge that duty.

I have sufficiently demonstrated, I hope, why I am of the view that the great axe

could not rightly be let to fall on the appellant. The appeal is allowed, the conviction

is quashed and the sentence imposed thereon F is set aside. Any consequential order

made by the lower court which is inconsistent with the decision I have arrived in this

judgment is hereby set aside. Unless his personal liberty is otherwise assailed, the

appellant - if he has not already finished serving the sentence I have just set aside - be

released from G custody forthwith.

Appeal allowed. H

1984 TLR p289

A