[1993] UGSC 27


UGANDA :::::::::::::::::::::::::::::::::::

(Appeal from conviction of the High Court of Uganda at Kampala (Hon. Mr. Justice Ntabgoba Principal Judge) dated 10th March, 1993).

CRIMINAL . SE NO. 7 OF 1991

## JUDGMENT OF THE COURT

The "ppellant had been charged in the Chief Magistrate's Court of Buganda Road, Kampala, on two counts of obtaining money by false pretences contrary: to section 289 of the Penal Code. Mr. Mungoma a Senior Magistrate Grade One convicted the Appellant before this Court on both counts as charged, and sentenced him to three years imprisonment on each count, those terms of imprisonment being ordered to run consecutively. The Appellant was ordered to repay Shs. 1.5 million.

The Appellant appealed to the High Court where the learned Principal Judge, set aside the convictions of obtaining money by false pretences and convicted the Appellant on substituted counts of theft contrary to section 252 of the Penal Code. He reimposed the same sentences of imprisonment, and allowed the compensation order to stand.

The Appellant has not appealed against his conviction for theft and sentence of three years imprisonment on the first count. He has only appealed against his conviction for theft and sentence of three years imprisonment on the second count.

$\frac{1}{2}$

It is not entirely easy to find out what had happened. The par culars of the offence were, as the lower Courts pointed out, that on 9th February, 1990, at the Nile Bank Headquarters in Kampala, the Appellant obtained Shs. 1.500.000/= from Surnon Mutobaano, by falsely pretending that the Appellant was to give Surnon Mutobaano US\$ 50,000 which had been allocated to him by Bank of Uganda. But that does not seem to reflect the actual agreement.

Hr. Surnon Mutobaano's evidence on this particular transaction reads as follows:-

> "On 9th February, 1990 the accused told me that he is related to the Deputy Governor $\mathsf{B}_{\texttt{G}}nk$ of Uganda, and he had been allocated US.50,000 and he didn't have local cover but the Bank wonted Shs. 1.5 million to deposit and then after they release $t$ that money to him. Since he was my friend and a tribesmate I told him I would give him the money. I gave the cheque of Shs. 1.5 million to accused drawn on Nile Bank in the presence of Swaibu Musumba. I told the accused that that was a lot of money, $I$ so I should have a draft in the names of Bank of Uganda as thieves are rampant. Accused refused and said the Deputy Governor B. O. U wanted cash. The Accused said the Deputy Governor would give him a vehicle with escorts. I thought it was safe and<br>I left him to go. ................................

The accused told me he wanted to purchase a rice machine. The accused told me that he would use 20,000 US\$ dollars and US\$ 30,000 - would be sold to me.

I agreed because I believed the accused was related to Deputy Governor Bank of Uganda. We wrote an agreement for the first deposit of money."

In cross-examination the witness Surnon related:-

"After taking the tractor, accused came and told me about US\$ 50,000 dollars and that Bakumunyu wanted Shs. 1.5 million in cash.

I therefore gave the accused a cheque for<br>Shs. 1.5 million. The accused disappeared. I<br>haven't received the tractor nor the Shs. 1.5 million nor the US\$ 50,000 dollars."

$.... - 1/3$

As far as we can judge the Accused denied this transaction, or perhaps he did n-t refer to it in his defence. \*

As the Lower ^ourts found that Surnon did pay <ohs. 1.5 million at the Nile ^ank, we accept the evidence of Surnon as to what was agreed. On that basis, as this is a second appeal, we are concerned with questions of law that may arise. Clearly, the charge was defective.

I-r. Elue, for the Appellant raised ^a question whether the Courts below acted on oral evidence to contradict the terms of a written loan agreement. As far as we can judge, the written loan agreement was involved in the complicated series of transactions taken by Surnon, his wife and the present Appellant from June 1989 to February 1990 relating to the tractor, which Surnon was attempting to purchase from the Appellant. It was not relevant to the second county

The second ground was that the learned Judge had failed to appreciate the evidence on the second count, and failed to come to a proper conclusion on it. We think that that is so. It had not been agreed that the Shs 1.5 million would be returned to Surnon. Nor that *^Z* 50,000, would be given to ^urnon. It was that the Appellant would use US ^S 20,000 himself and "\$30,000 would be sold" to the complainant Surnon\*

The Appellant was called ^a "Con-man" by the trial -agistrate, so we suppose that there must have been something false about the Appellant'^s proposal. But it is difficult to see from the Magistrate'^s judgment what that was. 'Jas the Appellant not related to the Deputy Governor? Had the Appellant not procured the release of \$ 50,000? Vlas the story false at the time of the transaction? If so there would have been grounds for charging the Appellant with obtaining the Shs. 1.5 million by false pretenc

But no attempt was made to prove an existing false fact on this could

The learned Frincipal Judge, with respect, correctly concluded that there was no basis for obtaining money by false pretences, as there was merely a proviso to pay money in the future. He thought it possible, however, to convict of theft by virtue of section 151 of the Magistrates' Courts Act 1970. That section permits an accused charged with obtaining by false pretences to be convicted of theft, though he was not so charged.

It was argued that this was a false conclusion. Certainly there was no analysis why theft had been committed. The High Court appears to have followed the populist sentiments of Allen J. (as he then was) in Uganda vs. Efulaina Baratonda (1978) HCB 225 at p. 226 and convicted the Appellant on the alternative count of theft. We have not been able to study that Judgment. The question remains why the alternative of theft was open in law, apart from the procedural power to convict on the alternative count, which of course, can only be exercised if the facts of the case support theft.

It is necessary in this case to review the situation for ourselves, in the absence of any sound analysis by the lower Courts. First we must turn to the definition of theft in section 245 (1) of the $P_{\text{onal}}$ Code:-

> "A person who fraudulently and without claim of right takes anything capable of being stolen or<br>fraudulently converts to the use of any person<br>other than the general or special owner thereof anything capable of being stolen is said to steal<br>that thing."

The definition comprises two different sets of circumstances. The first is the taking, a tresspass to the thing stolen. The fundamental difference between this traditional type of theft, and obtaining by false pretences, is that the property in the thirg stolen does not pass in trespass, whereas

$...$ /5

it passes to the false pretender as a necessary part of the fraud.

$\mathsf{S}$

In the English experience, this "taking" had to be implied in several cases, not least in larceny by a trick which was not far from obtaining by false pretfices But the real trouble lay when a person came into possession without any false pretence or trick. For this situation, the offence of fraudulent conversion was enacted. It is part now of the definition of theft in Uganda. Section 245(3) (a) explains that/is impaterial whether the thing is taken for the purpose of conversion, or whether it is at time of the conversion in the possession of the person who converts it. In Uganda therefore there may be a theft by "taking", or without any taking by conversion. In conversion, the property in the thing converted passes to the person who converts it. But it has not passed because of a false pretence. A good example would be where A gives a $10/-$ note for B to retain half the proceeds for himself and pay half to C, but B does not pay C and converts the money to his own use.

Applying these principles to the present case, the Appellant was permitted to pay himself \$ 20,000, but to sell to the Complainant \$ 30,000. Did he steal the \$30,000? He has not offered this money to the Complainant even in Court. He has not defended himself on this part of the transaction. The conclusion could be that he converted the \$30,000 to his own use. Of course he might have used the whole of the Shs. 1.5 million if he hever went to the Bank of Uganda at all. But that was not explained in evidence. All that can be said is that if the contract went through the Complainant did not expect to receive back the Shs. 1.5 million, nor the \$50,000; but Apperently the complainant did not receive the \$30,000; only \$20.000;/but then, no time limit was explained at to when the Appellant should pay the Complainant this sum. It is clear that the Complainant was entering into a very risky contract, which may have been of doubtful validity having regard to the rules for the purchase of foreign currency at that time. Indeed on both counts, there is an element of a

dubious transaction, in the case <-f the purchase of the tractor as we™ as the acquisition of foreign currency\*

<1

Would it be fair in these circumstances to infer theft as an alternate charge? ?he situation at the trial was that the particulars of the false pretence did not reflect the possible theft of conversion. It is one thing to have obtained 1\*5 million by a false pretence. It was quite a different thing to steal what was converted - &j50,000. If the alternate charge was not formally charged as an alternative charge on the charge sheet, how would the accused kn^w what he was to defend? If the ^ourt is minded to use its powers to convict of a crime not charged,which the accused could not be clear about, the Court ought to draw attention to it. Suppose the accused had said to himself, 'My lawyer tells me that no case of false pretences has been made cut, so ^I shall say nothing ⁿbout Count II', would it be fair to suddontly spring th. theft of \$30,000 upon him? The whole purpose of a criminal trial with its charge and particulars is to avoid such ^a surprise. Suppose again the Appellant had said that thetime for payment of the dollars had not yet come, because he had not yet bought the rice mill when he was arrested, would it really have been ^a case of conversion of the balance? This case shews very clearly that if false pretences on one basas is ^a possible charge, and theft on ^a different basis altogether is another possible charge, the proper procedure should be to add the theft charge formally as an alterative to the charge of false pretences. If the prosecution has not done so, the Court ought to make clear what the /.caused is liable to face before he enters on his defence.

The conclusion we have- reached is that there was not ^a proper trial on the issues pertaining to the alleged theft. agree that no proper

/7

analysis of the evidence in relation to the charge was made in either of the lower Courts, ner that the Appellant had a proper chance to defend himself on a possible charge of the conversion of part of the money. Accordingly we quash the convistion on the second count and set aside' the sentence, and order for compensation. The Complainant may bring a Civil Suit for the return of such money as is due to him. The Appellant will serve his sentence on Count I.

Delivered at "engo this ....................................

(signed) S. T. MANYINDO DEPUTY CHIEF JUSTICE

(signed) J. B. Odoki JUSTICE OF THE SUFREME COURT

(signed)

## H. G. PLATT

## JUSTICE OF THE SUPREME COURT

I CURTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL A. L: KYEYUNE, AG. ASST. REGISTRAR/SUPREME COURT. 9th Nevember, 1994.