MSAFIRI s/o KULINDWA v REPUBLIC 1984 TLR 276 (HC)

MSAFIRI s/o KULINDWA v REPUBLIC 1984 TLR 276 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

May 4, 1984

CRIMINAL APPEAL 125 OF 1983

Flynote

Criminal Practice and Procedure - Charges - Obtaining goods by false pretences - No

averment that the pretence was made with intent to defraud - Effect of absence of

such averment. E

-Headnote

The appellant was convicted on four counts of obtaining goods by false pretences.

The charges did not aver that the pretences were made with intent to defraud. On

appeal it was argued whether or F not absence of words "with intent to defraud" in a

charge are fatal to conviction.

Held: (i) An intent to defraud is an essential ingredient of the offence of obtaining by

false pretences and it is therefore essential that such intent to defraud must be alleged

in the particulars of the G offence;

(ii) a charge of obtaining by false pretences which does not include an

averment that the pretence was made with intent to defraud is a charge which

discloses no offence at law. H

Case Information

Appeal allowed.

Cases referred to:

1. Terrah Mukindia v.R. [1966] E.A. 425 I

2. Edward Opiyo s/o Anguro v R. [1968] HCD No. 55

1984 TLR p277

KATITI J

A W.K. Butambala, for the appellant

Swai, for the Republic

[zJDz]Judgment

Katiti, J.: Msafiri s/o Kulindwa, herein the appellant, who was charged severally on

counts (1) (2), with 4th B accused on count No. 3, on 4th count with 3rd accused,

and on 5th count with 2nd accused, as first accused, was his own witness to his

conviction as charged. The appellant, to his chagrin saw his co-accuseds walk out of

the court scot-free on acquittal. Aggrieved, the appellant has appealed against

conviction.

C Representing the appellant was a Mwanza based advocate Mr. Butambala, while

the Republic was represented by a learned State Attorney Mr. Swai. The two counsels

demonstrated their professional mettle in their arguments whether or not, the

appellant, who was alleged to have uttered the alleged false D routing slips to RTC

shop managers, falsely pretending the same had come from the Sales Managers, but

paid for the goods listed thereon, committed the offence under the provisions of

section 302 of the Penal Code Cap. 16 of the Laws. The two counsels argued with

volcanic force of assumption that, intent to E defraud, as an element of the offence

under section 302 of the Penal Code Cap. 16 was incorporated, as it should have been

in the charges, the appellant who was unrepresented, was facing at his trial.

I have with unmitigated anxiety first scrutinised the charged counts - all the countswhose

sample F representative phraseology of their particulars of offence, runs thus,

inter alia, and I quote:

... did present a false Routing Slip to the Shop Manager RTC Shop No. 12,

pretending that the routing slip was issued G to him by RTC District Sales Manager

to buy I bag of sugar, (Ilula soap, khangas) whereas infact, it was not true.

The above particulars juxtaposed with the wording of section 302 of the Penal Code,

will show or reveal, that, the words "with intent to defraud", that virtually control

section 302 of the Penal Code, are H significantly absent in the particulars of

offences charged, and above reproduced.

What then, is the effect of this omission? I would imagine that no conjurations or

incantations need be resorted to, to realise that the offence under the provisions of

section 302 of the Penal Code Cap. 16 - "an I intent to defraud" is an essential

ingredient of the offence of obtaining by false pretences, and it is therefore essential

1984 TLR p278

KATITI J

that such intent to defraud must be alleged, or averred in the particulars of offence in

a count charging that A very offence. It follows therefore, that where the charge

falls under section 302 of the Penal Code Cap. 16 an omission to incorporate, or allege

an intent to defraud in the particulars of that offence, renders the said charge

defective. B

Whether or not such defect is curable, which is a question on heels I can do no better

than apply the wisdom in the holding in a similar case, Terrah Mukindia v R. [1966]

E.A. 425 at page 429, where it was held thus:

Our view is that a charge of false pretences which does not include an

averment that, the pretence was made with C intent to defraud is a charge, which

discloses no offence at law, and is not merely an irregular or defective charge, which

can be put right by application of section 382 of the Criminal Procedure Code. D

While I make necessary concession that, the above case did obtain in Kenya, and has

persuasive value, our legal position on the same is not different. I derive comfort in

so boldly saying from the case - Edward E Opiyo s/o Anguro v. R. [1968] H.C.D. No.

55, in which the High Court quashing the relevant conviction, had this to hold, and I

quote:

... and absence of the words "with intent to defraud" are fatal to conviction,

since the accused may not have F understood the charge against him. The false

pretence must be set out in the charge with sufficient certainty.

From the above, it is very clear that, the charges did not contain averment that, there

was intent to defraud, G and as such, no offences, or offence known to section 302,

or any other section in the Penal Code were charged. That means, the convictions

were unfortunately misconvieved. The same said convictions are hereby and

therefore quashed, and sentences set aside. The appellant to be set free, unless he has

H otherwise offended the law.

Appeal allowed. I

1984 TLR p279

A