Selemani Tilwilizayo v Republic 1983 TLR 402 (HC).

SELEMANI TILWILIZAYO v REPUBLIC 1983 TLR 402 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

August 21, 1984

CRIMINAL APPEAL 31 OF 1983 F

Flynote

Criminal Law - Theft - Proceeds of stolen government cheque deposited in a bank account - Whether withdrawal of cash from the bank account amounts to stealing government money.

Commercial Law - Banker-customer relationship - One of debtor-creditor.

-Headnote

By using a fictitious name of the payee the appellant was able to steal government cheques, deposit them in a bank account opened in the name of the fictitious payee, and withdraw cash from the bank. The trial court convicted him on eleven counts of stealing government money. On appeal it was considered whether the money withdrawn from the bank belonged to the government so as to constitute stealing government money.

Held: 

(i) Bank customers, including the government do not own the money which is deposited in the bank;

(ii) the stolen government cheques deposited in the National Bank of Commerce, Kuu Street Branch, Dodoma, became the bank's and not the government's money; thus a conviction of stealing government money cannot be sustained;

(iii) the evidence available shows that there was theft of the government cheques by the appellant;

(iv) on the analogy that a cheque can be imported into a charge by virtue of its being money within the meaning of that term in the Penal Code the appellant was properly convicted as charged on the proven counts of theft.

Case Information

Appeal dismissed.

Cases referred to:

1. Rwebangira v R. [1975] LRT no. 26.

2. Joachimson v Swiss Bank Corporation [1921] All E.R. Rep. 92. D

3. Foley v Hill [1848] 2 H.L. Cas. 28.

4. Menzour Ahmed v R. [1957] E.A. 386.

5. R. v Keena 11 Cox CC. 13.

6. Katengele v R. [1969] E.A. 603.

D.C. Mbezi for the appellant. E

[zJDz]Judgment

Lugakingira, J.: The appellant Selemani Tilwilizayo was charged in the District Court of Dodoma on twelve counts of forgery, twelve of uttering, twelve of stealing by public servant, one of attempting to obtain money by false pretences and one of conspiracy to steal in which he was jointly charged with one Marygrace Ntomola.

He was acquitted on all the forgery and uttering counts as well as on the attempting and conspiracy counts. He was then convicted on eleven of the stealing counts, i.e.; counts 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35. The twelfth count of stealing i.e., count 36, completely escaped the attention of the trial Resident Magistrate who made no mention of it anywhere in his judgment. Following conviction the appellant was sentenced to concurrent terms of five years' imprisonment on each of the eleven counts. He then appealed against convictions and sentences through learned counsel Mr. Mbezi who also H represented him at the trial.

It is necessary to give a brief background of the case. The appellant and the second accused Ntomola were accounts assistants at the Prime Minister's Office, Dodoma. It seems that between 1977 and 1979 food reliefs were being transported by private transporters from depots of the National Milling Corporation to various villages in  Dodoma Region. The transporters were being paid by the Prime Minister's Office on presentation of relevant documents. Payment vouchers and cheques were being prepared on the strength of these documents. One such transporter was a person named Omari Saidi of Kondoa who had ceased to be a transporter in this connection, twelve cheques were prepared in his name on the strength of documents purportedly submitted by him and these cheques were banked in an account purportedly opened by him at the NBC Kuu Street Branch, Dodoma. In fact Omari Said (PW9) never submitted those documents and my examination of them reveals that the possibly true transporters' names are deleted and the name of Omari Saidi is substituted. Further, although PW9 had an account at the C Kuu Street Branch, the cheques were not banked in that account. They were banked in the account of a person who assumed the name Omari Saidi and who was advised to add another name to distinguish himself from PW 9. He added the name Mohamedi. The trial magistrate was therefore correct in saying that the holder of the account and in whose name the cheques were prepared was fictitious. It was then discovered that the appellant was the person who had opened that account. It was also discovered that the cheques had been dispatched through P.O. Box 793, Dodoma which was being rented by Omari Saidi Mohamedi and that that person was the appellant. The appellant E was arrested and charged on these grounds. But because of very poor investigations it was assumed, indeed testified, that the cheques and the supporting documents were otherwise genuine. The appellant was therefore charged with forging the cheques only in so far as he was said to have signed them as payee. He was then said to have produced them at the bank and to have stolen the proceeds thereof, which proceeds were said to be government property.

The appeal has given me a great deal of difficulty. The difficulty stems from the fact that the trial magistrate wrote his judgment as if he were away from the evidence; it also stems from the fact that very important documents were either not tendered or, if they were, they could not be found when the appeal came up for hearing. It is necessary to set out fully the sorrowful state of affairs. I could not find the following:

(1) Exh. P1(B), a letter said to have been written by the appellant to the second accused bearing the address P.O. Box No. 793, Dodoma. (2) Exh. P2(A), a cheque No. 608753 in connection with count 37 of attempting. (3) Exh. P2(B), a cheque No. 608784 in connection with the same count. (4) Exh. P3(E), a cheque No. 602533 (or 602933) in connection with count 29. (5) Exh. P3(H), a cheque No. 604109 in connection with count 33. (6) Exh. P3(1), a cheque No. 603712 in connection with count 32. (7) Exh. P3(J) a cheque No. 604970 in connection with count 34. (8) Exh. P3(K), a cheque I No. 605708 in connection with count 35. (9) Exh. P3(L), a cheque No. 605854 in connection with count 36. (10) Exh. P4 which on record is described as "a transport income voucher bank statement an envelope Box 793 to Omari Saidi which the accused 2 brought to me". (11) Exh. 7(A)-(I), being nine copies of bank pay-in slips. (12) Exh. P10, Three of four Vote Receipts and Payments Cash Books which were returned to the Prime Minister's Office in the course of the trial but apparently never restored to the trial court. (13) Exh. P12, a Postal Rental Card which I gather from the list of exhibits drawn up by the trial magistrate himself was "collected" (perhaps by the Postal authorities) on 23.4.79; but I cannot understand this since it was tendered on 10.9.82. (14) Exh. P13, the Post Office Directory for 1980/81. There is the cover of the directory only, the body having disappeared. (15) Exh. P14, being payment voucher Nos. 165 (or 168)/11 and 165/89 which, however, appear to have been previously tendered as part of Exh. P4. (16) Exh. P15, an audit report. (17) Two unmarked cheques for the defence Nos. 604520 and 154315. But I do not know how it was possible to tender these since the record shows, and Mr. Mbezi confirmed, that all efforts to trace them at the bank and at the Prime Minister's Office yielded no fruits. I am certain that this was poor recording of the evidence, a feature typical throughout the record. (18) The final submissions of Mr. Mbezi at the trial which I gather from the judgment were made in writing. There were E then documents which were not tendered at all and cannot be seen. These are: (1) A letter or chit said to have been written by the appellant introducing one Bakari Iddi (PW3) to collect Exhs. P2(A) and P2(B). In fact that letter or chit does not appear to have been brought to the court at all. (2) The bank form which the appellant and his F referee (PW2) signed when the appellant opened the bank account. It was brought to the court and identified by PW2 and that was the end of the matter. (3) The bank specimen signature card which the appellant signed when opening the account. It was brought to the court and identified by a bank official (PW8) and that was the end of the G matter. To make the position worse the trial magistrate did not in his judgment refer to any document, except Exhs. P4, P13, P14 and P15 which he merely mentioned in passing and almost by accident.

I therefore find it difficult to say that he addressed his mind to any of the exhibits. That is the unfavorable situation in which I am called upon to determine the appeal. How and where do I start? I find it convenient to start from the end of the story - at the bank - going up to the beginning. I will therefore first determine whether if there was money stolen from the bank, it was government money. I am of the unfortunate view that it was not. If we assume, first, that Omari Saidi was a true person and that he was entitled to the money in the twelve cheques, then, in that case, if any money was stolen it was that of Omari Saidi. It became Omari Saidi's the moment it was collected from the bank and could no longer be said to be government property. We have seen, however, that Omari Saidi was fictitious. Now, if any money was stolen, whose was it? It was undoubtedly the banker's money. Bank customers, the government included, do not own the money which is deposited in the bank. I am indebted to Mr. Mbezi who referred me to Rwebangira v R. [1975] LRT n. 26 in which I expressed a similar view in the past. There are indeed other and older authorities to the same effect, notably, Joachimson v Swiss Bank Corporation [1921] All E.R. Rep. 92 and Foley v Hill C (1848), 2 H.L. Cas. 28. In the latter case, the leading case on this subject, Lord Cottenham, L.C. said:

Money, when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it.

These English decisions are cited with strong reliance in H.P. Sheldon's The Practice and Law of Banking (9th Ed., at p. 201) which appears to be an important work in this field. The author himself similarly says:

The banker when he receives money from a customer does not hold the money in a fiduciary F capacity. To say that money is 'deposited' with a banker is likely to cause misapprehension. What really happens is that the money is not deposited with, but lent to, the banker, and all that the banker engages to do is to discharge the debt by paying over an equal amount when called upon.

In this connection, I have also had recourse to s. 258(2) of the Penal Code and to the definition of "special owner" therein but I can find nothing in that definition which takes away from the view I am expressing. By the said definition a person may become a special owner of anything capable of being stolen if inter alia he has a proprietary interest in the thing but, in my respectful view, a bank customer does not have a proprietary interest in the money paid into a bank for the simple reason that the moment it is received by the banker the customer cannot point to any money as his property. He is only a creditor to the banker and it would be extraordinary for a creditor to say that any money held by his debtor, wherever it may be, is his property. It may of course be I inquired whether a customer does not suffer injury if, as in the instant case, his account is debited on forged or stolen cheques. Admittedly, he suffers, but the injury is merely tortious. The issue, as I apprehend it, would then be whether the banker, as is the instant case, was negligent in permitting a false account to be opened and in permitting false cheques to be banked. For these matters one has to turn to legislation dealing with cheques and bills of exchange generally but his is outside the scope of this judgment. I believe the foregoing sufficiently demonstrates that if there was theft of money in this case it was not government money.

It is not necessary but it may be desirable to know whether in fact any money was stolen. This is one of the areas where the bungling of the evidence and the ineptitude of the trial magistrate occasioned me considerable pain. There were 43 (I saw only 41) personal cheques (Exh. P8) of Omari Saidi Mohamed - the appellant's in fact - which show that a large amount of money was withdrawn from the bank. It is also irresistible to find that this money was withdrawn from the account into which the stolen cheques were banked for, apparently, there was only one account in the name of Omari Saidi Mohamedi. However, we do not know for certain that that account was credited with the money in those cheques only. There was a bank statement in Exh. P4 which, as already stated, cannot be seen. But the trial magistrate who saw it - if he did, really - E makes no mention of that document and makes no mention of the withdrawals effected through Exh. P8. In his view, there was theft merely because Omari Said was fictitious. The problem I am posing is neither academic nor a mere technicality. According to Mr. Mbezi who saw the statement, and there is no way to support the contrary, it showed a credit balance. It is therefore difficult to say that the money withdrawn was necessarily the money represented in the stolen cheques and no other. For all we know the money in those cheques might still be standing in Omari Saidi Mohamedi's account. In order for there to be theft of cash as charged, cash has to be collected. In Menzour Ahmed v R. [1957] E.A. 386. The appellant, an advocate, had received on behalf of G his client two cheques of Shs. 3,000/= and 5,000/=. He endorsed the cheque for Shs. 3,000/= and passed it on to a garage company to reduce his indebtedness with them. He paid the cheque for Shs. 5,000= into his own bank account. He did not account for any money to his client. He was charged before a resident magistrate's court on two counts of stealing by agent the cash represented in the cheques and was convicted on both counts. On appeal to the Supreme Court of Kenya the conviction on one count was quashed. On further appeal on the remaining count the Court of Appeal said (at p.388): 

In our opinion the evidence could not support a conviction for stealing the proceeds of the A cheque .... Although the appellant received credit for the amount of the cheque, he did not convert it into money by cashing it and no money, as distinct from the cheque itself, ever came into his possession. There must be an actual receipt of money before there can be a conversion of it.

The Court cited R.v Keena, 11 Cox C.C. 13 for authority. In the instant case, therefore, in the absence of evidence that the money withdrawn was necessarily the proceeds of the stolen cheques, it is difficult to sustain the convictions for stealing those proceeds. And, if I should repeat myself, I would still say that if the money withdrawn was the proceeds of those cheques, it was all the same not government money but the banker's, and the proper charges would be those of obtaining money by false pretences. It is not available at this stage to alter the charges but that could only have been done at the trial.

I am satisfied, however, that there was theft of the cheques themselves and I have been deliberately implying so. The question is whether, if there is evidence, the convictions can be sustained on that ground. I have no doubt they can and my authority for saying so is once again Menzour Ahmed (above) as well as Katengele v R. [1969] E.A. 603. The ratio decidendi of these cases is that the definition of "money" can be imported into a charge so as to make reference to a sum of money therein to embrace a cheque for that sum if by doing so there would be no prejudice to the accused. I am certain that no prejudice would arise in this case for the trilogies of forging the cheques, uttering them and stealing the proceeds thereof must have imported into the appellant's mind the theft of the cheques as well. What I have therefore to determine is whether the cheques came into his possession. I will preface this by observing that the question is made slightly difficult by the omission of the prosecution to tender the bank documents which the appellant was said to have signed when opening the account. It will therefore be necessary to rely on circumstantial evidence. This is not to say, however, that there is any doubt about the fact of the appellant's opening of the account. There was in this connection the evidence of PW8 which the trial magistrate believed and it was corroborated by PW2. I cannot agree with Mr. Mbezi in his submission that PW2 was a person to be doubted in the absence of evidence that when he acted as referee for the appellant he also knew that the appellant was engaging in fraud. Indeed, their meeting at the bank seems to have been accidental.

The absence of the bank documents notwithstanding it is still possible to find that the cheque came into the appellant's possession. There was other evidence from which it was possible to infer that he signed the cheques as payee. A Although the trial magistrate acquitted the appellant of forgeries, which, incidentally, was attacked by learned counsel for the Republic Mr. Senguji, the acquittal does not preclude this Court from evaluating the evidence and drawing its own inferences. There was hence evidence from PW8 that on 22.11.79 the appellant presented at the bank his personal cheque (part of Exh. P8) to collect Shs. 25,000/=. I have marked this cheque as Exh. P8 (41) at the back. The cheque had been endorsed for payment to one Joseph Mtembuzi but it seems that when Mtembuzi presented it the bankers refused to give him the money and said that the owner himself had to come because the amount was too big. The owner then came and it was the appellant. In the event even the appellant was not paid the money for, in the meantime, a telephone call had come from the Prime Minister's Office instructing the bank to dishonour the appellant's cheques. There are four identical signatures of the owner on Exh. P8(41). Since that owner was the appellant, I find irresistibly that the signatures were written by him. There are then before me six of the twelve stolen cheques and the payee's signatures thereon are absolutely identical to the signatures on Exh. P8(41). I am entitled to make that comparison by virtue of the provisions of s. 75(1) of the Evidence Act, 1967 and in doing so I do not require the assistance of an expert. In the words of Ratanlal and Thakore (The Law of Evidence, 14th ed., p. 171), commenting on the equivalent s. 73 of the Indian Evidence Act, 1872:

The Court may compare the disputed signature, writing or seal of a person with signatures, writings or seals which have been admitted or proved to the satisfaction of the Court to have been made or written by that person. A Court may rely upon its own comparison of the signature, writing, or seal, unaided by expert evidence. G

The signatures on the six cheques are simple and short and the same in all respects. They are in turn identical in every respect to the owner's signatures on Exh. P8(41). I am satisfied that the appellant signed the six cheques and therefore that they came into his possession. H

Further, there was the renting and operation of P.O. Box No. 793, Dodoma. It came from PW 12 (he should actually have been PW 11, there being no PW 10) that Box was being rented by the appellant in the name of Omari Saidi Mohamedi since 1979 or late 1978. PW12 tendered the 1980/81 Post Office Directory and pointed to the name of Omari Saidi Mohamed at page 254. As stated earlier, I have only seen the cover of I the directory (Exh. P13), but the trial magistrate who saw it stated that the name appeared there. We then have six Post Office green cards (Exhs. A P6 A - F) on which registered articles were collected through P.O. Box No. 793, Dodoma. These are in the name of Omari Saidi and they bear signatures similar to those on Exh. P8(41). Finally, there is the appellant's undisputed THB Savings Account Book (Exh. P9) and this gives the appellant's address as P.O. Box 793, Dodoma. I am satisfied that the appellant was the renter of the Box. Now, the payment vouchers available to me, except one, show that the cheques were being dispatched to Omari Saidi through P.O. Box No. 793, Dodoma. I am again satisfied from this that the cheques were being sent to the appellant and that he received them.

As already seen, however, the cheques were forgeries and the appellant had no claim of right to any of them. On the analogy that a cheque can be imported into a charge by virtue of its being money within the meaning of that term under the Penal Code, I am of the view that the appellant was properly convicted as charged on the counts of theft, but D I confine these remarks to those instances where I was able to see and examine the cheques. I did not see the cheques in counts 29, 32, 33, 34, 35 and 36 and on those counts the appellant is acquitted. I saw the cheques in counts 25 (Exh. P3A), 26(Exh. P3B), 27 (Exh. P3C), 28 (Exh. P3D), 30 (Exh. P3F) and 31 (Exh. P3G). On those counts the appeal is dismissed and the sentences are confirmed.

Appeal dismissed.

1983 TLR p410

F