adronicuas rwebugisa vs joyce elias 2007 tzhc 277 25 october 2007

IN THE HIGH COURT OF TANZANIA

AT BUKOBA

APPELLATE JURISDICTION (PC) CRIMINAL APPEAL NO. 5/2003 (Criminal Appeal No. 13/2002 & Original Case No. 203/2000 of Nshamba Primary Court - Before: D. Augustine., PCM) ADRONICUAS RWEBUGISA....................................................... APPLICANT V/S JOYCE ELIAS......................................................................... RESPONDENTS 23/08 & 25/10/2007 LYIMO, J. JUDGMENT, The appellant was charged before Nshamba Primary Court in Criminal Case No. 203/2000 with the offence of obtaining money by false pretences contrary to section 302 of the Penal Code. After a full trial, the Court found that the offence had not been i proved. Also that the matter rested on contract and directed the Respondent to proceed by way of Civil litigation. Dissatisfied with that Judgment the Respondent filed her appeal to the District Court, vide Muleba District Court Criminal Appeal No. 13 of 2002. After going through the record of the trial Court, the learned appellant magistrate held that the Respondent/Accused should have been charged with cheating c/s. 304 of the Penal Code rather than obtaining money by False Pretences Contrary to Section 302 of the Penal code. As a result, the learned appellate district Magistrate quashed the order of the trial Court and ordered a retrial before the District Court. Before the order of retrial could be implemented the appellant filed this

appeal, challenging the order of retrial and effectively stalling any action by the Respondent. The facts of this case are very brief and can be stated as follows:- The complainant one Joyce Elias and the Appellant reside at Nshamba, Muleba District. They were both business persons, each with a retrial shop at Nshamba market. In the course of their respective activities, they met and discussed about the appellant travelling to Mwanza to buy various goods for sale at Nshamba. The Respondent then told the appellant that she would like him to buy for her some ladies materials, especially prints which were selling hotly at Nshamba. On 17th April, 2002, the appellant visited the Respondent at her shop. Also present at the time was Pw2 - one Mudricat Abubakari who witnessed PW1 handing over 50,000/= being value of nine (9) pairs of prints/boutique (vichumbano). That was on Monday. According to Pw1, the appellant was then expected to travel to Mwanza that night and would be back the following Wednesday. On that Wednesday, Pw1 went to the appellant to collect the materials but received none as the appellant told her that he did not travel as earlier agreed. He then told her (Pw1) that he would travel by steamer that same evening and would be back on Friday just before Easter holidays. Pw1 went to state that after the appellant had returned from Mwanza that Friday, he only brought two

(2) pairs of print each at Shs. 7,500/= and measuring just about 2 Vi metres. Pw1 refused to accept them because as she asserted, the going or real price of those prints was Shs. 3,800/=. After Pw1 had refused to take the materials, appellant promised to send them back to Mwanza and to refund her the money. From that time the Appellant kept changing his story until on one occasion appellant categorically denied to have taken any moneys from the Respondent and threatened to beat her up if she insisted. It was at that point that Pw1 filed charges at Nshamba Primary Court. As already indicated, the trial Court analysed the evidence and finally held that the offence of obtaining by false pretences had not been proved; and further required the complainant to proceed by way of Civil litigation. As correctly observed by the appellate District Court, there was more than ample evidence to show that indeed the appellant had received from PW1 total Shs. 50,000/=. The evidence by PW1 was supported by that of Pw2 who was at the shop at the time PW1 was handing over the money to the appellant. The appellant has all along denied to have taken shs. 50,000/= from the Respondent. He has maintained that he was given only shs. 21,000/=. During the appeal, he did not appear to bulge an inch. He could not explain why on at least four occasions as contained in the evidence of Pw1, he kept changing

the story about when he would deliver the materials. Further, when this Court addressed his mind to the evidence of Pw2, he kept silent and retorted to have received shs. 21,000/= only. For the foregoing it is clear that at the time the appellant was receiving the money from Pw1 merely pretended that he would travel to Mwanza to buy her the materials while in fact he had no intention of doing so. That was cheating per se and the order by the appellant District Court is hereby upheld. The case should proceed by way of retrial by District Court. In the end the appeal is dismissed in its entirety. Order accordingly. 25/10/2007 Judgment delivered in the presence of both parties 25/10/2007 Right of Appeal Explained. •/ '" 25/10/2007 £ AT BUKOBA V 25/10/2007 8