THEFT
DEFINITION OF THEFT
According to section 258(1) TPC, any person commits the offence of theft if:
Ø Fraudulently.
Ø Without claim of right.
Ø Takes/Converts.
Ø Any thing capable of being stolen.
From the above definition we see that the actus reus of theft is the taking or asportation of property, which belongs to another person. The mens rea is dishonest or fraudulent intention to deprive permanently the other person of his property.
WHAT ARE THINGS CAPABLE OF BEING STOLEN?
These are explained under section 257 TPC which include.
1) In animate things- which must be the property of another and which is movable. Even those which are immovable, but can be made movable are capable of being stolen. So thing to be capable of being stolen it must be:
a) In animate.
b) Movable.
c) The property of another person.
2) Tame animals and wild animals which are the property of another person and which are kept in a state of confinement.
3) Wild animals in the enjoyment of their natural liberty are not capable of being stolen but their dead bodies are.
4) Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen.
NB: General intangible things are not capable of being stolen example air, ideas, etc. But things like water, gas, electricity are capable of being stolen. In the case of R. V. NDESARIO [1969] E.A. 267, it was held that so long as fluids like water could be sufficiently be appropriated to the user, it could be stolen. Since the accused has no right to extract water except at the time stipulated in his agreement with the complainant, the accused was therefore taking away a movable object which didn’t belong to him with intent to deprive the owner permanently of it. Section 283 TPC expressly provides the electricity can be stolen.
THE VALUE OF THING CAPABLE OF BEING STOLEN:
To make a thing the subject, it must be of some value, yet it need not be of any coin known to the law. In the case of KYEWAWULA V. UGANDA [1974] E.A. 293, the accused was employed by the Currency Board, counting old notes. She was convicted of stealing some of these notes, which were described in the charge as cash. In this case the court allowed the appeal on the ground that the notes were no longer money and thus could not be stolen. The judge said:
“…To form a subject of larceny the thing stolen must have some value. Only economic value is taken into account. The value may be greater or smaller so long as it was actual money value for some person or persons-in this case the stolen notes had no money value for any person including the government, they could not be described as money. “there were nothing but waste paper”….”
In the case of R. V. DANIEL KAMBEGWA (1968) H.C.D. No. 333, the accused was charged with theft by public servant. A bonnet stand was missing from a motor vehicle, and the accused was seen some days later using it as a walking stick. When the charge was read over to him he said “I didn’t know that the bonnet stand was of any use”. The court held that: There is no proposition of the law that there cannot be a larceny from an owner of a property which is of no value and of which he does not make further use.
Definitely, valueless thing or abandoned articles like worn out clothes, should not be the subject matter of theft. If the accused takes such valueless articles, the taking cannot be said to be fraudulent if at the time of taking it, he honestly believes that such a thing had been abandoned and in fact uses it as the walking stick. (Therefore not even concealing of hiding it) we can safely conclude that at the time of taking it honestly believed that the bonnet stand was incapable of being stolen because it was valueless.
OWNERSHIP AND POSSESSION
Ownership is one of the most important ingredients of the offence of theft. The subject matter of the theft must be the property of some person. The taking can therefore be from the actual owner or “special owner”-Section 258(2) (e) proviso.
Since ownership is very important, it follows; thus, in drafting a charge of theft it is always necessary to mention the owner or possessor. Possession should not be a temporary nature, as where guest sleeps for only one night in a house and thereby gets temporary possession of the relevant items in the bedroom or where a customer enters a shop and takes some items in order to examine them.
In the case of SELEMAN TILWIZAYO V. R [1983] T.L.R. 402, by using a fictitious name of the payee the appellant was able to steal government checks, deposited 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.
1) Bank customers, including the government do not own the money which is deposited in the bank.
2) The stolen government checks deposited in the NBC (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.
3) The evidence available shows that there was theft of the government checks by the appellant.
4) 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.
FRAUDULENT TAKING
A person is said to take or convert anything capable of being stolen fraudulently under any circumstances explained under section 258(2) TPC. If a person is exercising a bona fide claim of right he cannot be convicted because he didn’t acted fraudulently. In the case of D.P.P. V. HENRY RWEGASHAMIRA 1973 L.R.T. No 15, the respondent was a sub-agent of====in the state lottery system. He deducted from the revenue of the tickets sold sum in excessive percentage to which he was due honest belief that he was entitled to reduce a balance owing to him from previous transactions. D.P.P appealed against acquittal.
“…The respondent had a claim of right and so was not guilty of theft, even if as a mare law he was not entitled to make the deduction…”
Once it is shown that a person is honestly asserting what he believes to be a lawful claiminghe has a lawful claim of right under section 9 TPC even though the claim asserted is unfair law and fact.
DOCTRINE OF IMPLIED CONSENT
Implied consent sometimes negatives fraudulent intention. Where for example a person==money entrusted to him under an honest belief that consent would have been given by the=== he may be acquitted of theft for lack a fraudulent intent.
In the case of ALLY IDDI V. R (1969) H.C.D. No. 263, the complainant gave the appellant Tshs. 580/- in old notes to change into new ones. Appellant returned with Tshs. 400/- new notes. Complainant wanted her money back, appellant agreed to repay her, but did not. He kept avoiding her. Appellant was charged and convicted of theft of Tshs. 180/-. On appeal the court said:
“…It is quite clear that there may be circumstances in which a person might use another’s money entrusted to his custody without that other’s consent where it is reasonable to assume that consent would have been given if asked. If in such circumstances the owner of the money treats the transaction as one of loan when it is reported to him that the money has been used, then he could not later seek to take criminal charges. On the other hand, if there was no ground for reasonably believing that the owner would have given consent for the user and if on the report of it the owner protests, the mere fact that he takes no immediate action and gives the offender time to put the matter right by payment could not change the character of the original unauthorised user…”
“In Tanzania a person who uses money entrusted to him by another at his will may==larceny even if he had the intention to repay”
Implied consent was said to exist in the case of YUSUPHU SALIM MKALY .V. R (1969) H.C.D. No. 260, the appellant was TANU employee (Tanganyika African National Union) at Songea was entrusted with Tshs. 695/- for the repairs to a Land Rover. He received a message from TANU Headquarters, that one member of his family was sick, and authorizing him to travel to Morogoro. He used the money for this purpose and reported to TANU Headquarters informing that deductions would be made from his salary. He asked that no deductions be made during his period of leave –(three months) but after and not in installments but in one installment. The deduction were in fact be made, but was later charged. He was convicted, the magistrate citing section 258(2) (e) TPC that fraudulent intent is established, in the case of money notwithstanding an intent to pay the money afterwards to the owner. On appeal it was held that:
1) In this case it is clear that appellant felt that he could have obtained permission to use the money in the circumstances, which had, arisen.
2) He reported to the Headquarters of TANU, no steps were taken against him. He was allowed to remain in the employment of TANU and he was allowed to go on leave. Arrangements were made to have the money deducted from his pay at this convenience and the money was in fact deducted.
3) It is impossible in these circumstances to hold that there was a fraudulent taking.
The law regarding to implied consent is not settled, as was held in the case of GEOFREY BUYOMBO V. R (1968) H.C.D. No. 373, where the accused was convicted of stealing by servant. He was a Divisional Secretary of T.A.P.A., and collected revenues on its behalf. He admitted appropriating part of it for himself, but alleged that this was partly because he had not been paid his salary by T.A.P.Afor 8 months. Without considering whether this taking could be described as fraudulent or not, MUSTAFA, J dismissed the appeal holding that.
“…Even “if an employee has not been paid his salary he has no right to use money which he has received for his employer, without authorization.” There can be no claim of right in such a case…”
It is submitted that the mere absence of a claim of right doesn’t automically mean that the taking is fraudulent. It is important to consider whether the accused acted dishonestly or not. The courts should not confine themselves to legal technicalities since the question whether the taking is fraudulent one or not is both a question of law and fact.
TAKING & ASPORTATION
For an offence of theft to be complete, there must be taking/asportation. The stolen thing must have been moved from its original place to another otherwise it may be assumed to be attempted theft. Section 258(5) TPC expressly provides that-A person shall not be deemed to take a thing unless he moves the thing or causes it to move. Thus according to this section, even slightest movement is sufficient to amount to theft. MAZENGO MAGALA V. R. (1969) H.C.D. No. 156, the accused was charged theft but was convicted of attempted cattle theft. The evidence showed that at about three o’clock in the morning two herdsmen employed by the complainant were awakened by the sound of cattle moving and they found four head of cattle outside the boma, which had been broken open. The accused attempted to escape by breaking through a hedge surrounding the compound but was apprehended. According to the magistrate the act of driving out of the boma four cows but without moving them away from the victim’s courtyard didn’t amount to is ‘taking’. On appeal:
“…There was more than sufficient asportation in this case to constitute taking within the meaning of the definition of theft…”
Another case, which is relevant, is that of SAMWEL MSIRANGALA V. R. [1981] T.L.R. 319, In this case the appellant was convicted by a primary court of attempted cattle theft. His appeal to the District Court failed. The appellant had broken into another person’s kraal and driven a bull away from it. He was seen by two people. On its own bull returned to its owner’s kraal. On a further appeal to the High Court the issue was whether the offence committed was one of the attempted cattle theft. It was held:
“….Since the appellant drove the bull from where it was to another place, asportation was proved and therefore, the offence committed was one of the cattle theft…”
