ELIUD ALEX 2025

IN THE HIGH COURT 0F THE UNITED REPUBLIC 0F TANZANIA

AT DAR ES SALAAM

DAR ES SALAAM SUB REGISTRY CRIMINAL APPEAL NO 24131 OF 2024 (Arising from c the decision of the Resident Magiatrate court of Kivukoni at Kinondoni dated 25th July 2024 in Criminal case No. 116 Of 2023) ALEX ELIUD JOSHUA .......... ............................ 1st APPELLANT GEORGE GASPER NJAU .................................... 2nd APPEALNT

VERSUS REPUBLIC...............................................................RESPONDENT

JUDGMENT MKWIZU,J: The appellants, Alex Eliud Joshua and George Gasper Njau, were jointly charged with obtaining money by false pretence contrary to section 302 of the Penal Code [RE 2019]. The particulars of the offence state that between January and April 2022, at various locations within the jurisdiction, the accused unlawfully obtained a sum of TZS 8,200,000 from Jerome Toto Kilawe using deceptive means pretending to sell him a car make, Toyota Rumio, with Registration No. T. 589 DUX the fact they knew not correct. 1 The accused pleaded not guilty to the charge. After a full trial, the trial court found the prosecution's case valid. The appellants were convicted and sentenced to two years imprisonment each, with an order for the motor vehicle, a Toyota Rumio with registration number T589 DUX, to be transferred to Adamu Hamisi Marusu (PW4), the legal purchaser. The decision aggrieved the appellants. They lodged several grounds to wit: 1. That the Honourable Magistrate erred in law and in facts for failing to find out that case before him was pure a civil transaction rather than a criminal case 2. That the honourable Magistrate erred in law and fact for failing to make a proper evaluation of the evidence before him in total disregard of the evidence of DW3 and , DW 4 and DW 5, which proved that the 4,700,000 had been reused per the instruction of the complainant PW3.

3. That the prosecution fail to prove their case beyond reasonable doubt.

4. That the honourable Magistrate erred in law and fact in convicting the accused persons while the elements of the offence were not all proved by the prosecution side 5. That the • honourable Magistrate erred in law and fact by convicting and sentencing the accused person on a charge that was not properly proved. 2 However, before the appeal hearing on 29th November 2024, the second appellant sought an order to withdraw the appeal after he was committed to community service. Thus, a withdrawal order left the first appellant’s appeal intact, rendering this decision applicable only to the first appellant’s appeal. The appeal was orally heard. Mr Adrian Mhina, an advocate, represented the 1st appellant, while Ms Mosi Kaima, the learned State Attorney, was in court for the respondent, Republic. In the appeal proceedings, Mr Adrian Mhina commenced his arguments by addressing grounds 2, contending that the trial court failed to consider the defence evidence presented during the trial adequately. He pointed out the last four sentences on page 11, paragraph 1 of the judgment as the sole instances where the defence evidence is acknowledged, noting that the appellant's defence (DW1) was entirely disregarded. To clarify further, the appellant's counsel stated that the appellant (DW1) testimony shows that, he received the sum of 3,000,000/= from the complainant to purchase a Toyota Crown,

which contradicts the complainant's allegation regarding a Toyota Remio. This transaction was purported to have occurred in an auction advertised in the "Habari Leo" newspaper on 22nd May 2022 (Exhibit DE1). Following the advertisement, he said, the management of Autnum Finance Limited instructed DW1 to halt the 3 auction because the owner had settled the loan. He informed PW3 of the auction cancellation and inquired whether the complainant desired a refund. Still, the complainant declined to accept the return of the funds. At the police station, DW1 promptly acknowledged receipt of the 3,000,000/= from the complainant. Furthermore, he stated that DW3, Ally Mohamed Claud, provided clear testimony connecting the accused with the complainant. He noted that the complainant transferred 5,000,000/= to his account for the purchase of the Toyota Remio vehicle on 22nd January 2022. DW3 corroborated that the sale of the car was later cancelled and that he received a refund from the second accused. Had the court correctly considered the defence evidence, the counsel contended, it would have been clear that the charge of obtaining money by false pretences could not have been substantiated. He relied on the decision of Abel Masikiti v. R, Criminal Appeal No. 24 of 2015, and Sudi Seif v. R, Criminal Appeal No. 521 of 2016 (CAT Tabora), ( All unreported) , where the failure to consider

the defence was deemed fatal. On ground No. 3, the appellant's counsel blamed the prosecution's failure to establish its case against the appellant beyond a reasonable doubt. He contended that the testimonies from PW1 and PW3 regarding a deposit 4 of 3,000,000/= made by the complainant, Mr Jerome Tito Kilawe, contain inconsistencies, particularly with PW5 suggesting a different timeline for the deposit, raising doubts about its relevance to any alleged contract. Although PW3 claimed the deposit was for a motor vehicle, neither Pw3 nor PW1 specified which vehicle was involved. Further complicating matters, PW3 acknowledged making other deposits for advertisement, but the evidence indicates these funds were not dispensed simultaneously, casting additional doubt on the transactions' legitimacy. Another significant issue is the absence of Mr. Ally Claud as a prosecution witness. The counsel believed Ally Claudi was crucial in linking the appellant and complainant but only testified for the defence, undermining the prosecution's position. He relied on the case of Longinus Komba v. R. (1973) LRT 39, insisting that the prosecution has the burden of proof, which has not been met. He called for the reconsideration of the appellant's conviction. On ground one, Mr. Mhina contends that the trial court improperly classified a civil matter as a criminal proceeding. A review of the

evidence presented at trial reveals an oral agreement for the sale of a vehicle between the complainant and the accused. This agreement was not executed due to mutual consent, as indicated by DW1, who acknowledged 5 receiving 3,000,000/= to purchase the vehicle, whose refund was refused by PW3 after failure to complete the purchase. He insisted that the appellant did not contest the receipt of 3,000,000/= in his police statements or court proceedings, demonstrating a lack of ill intent in his actions. He maintained that all evidence indicates that the transaction was civil rather than criminal. Citing section 4(3) of the Criminal Procedure Act, Cap 20 R E 2022, he stated that where a matter is civil, exhaustion of civil remedies is mandatory before initiating criminal proceedings. Given that this dispute arose from a business transaction, the complainant should have pursued civil remedies before resorting to criminal action. He contended that this procedural step was overlooked, and the trial court erred in adjudicating a matter that should have been resolved within the civil context, thus misapplying the relevant legal standards. He lastly abandoned grounds four and five and respectfully requested that this Court allow the appeal, nullify the conviction and sentence, and acquit the appellant. In response to ground two of the appeal, Ms Mosi Kaima, the Senior State Attorney,

asserted that the defence was duly considered but maintained that the prosecution's case was unequivocally sound. She referred the court to page 8 of the judgment, where the trial magistrate summarised 6 the defence evidence, noting that throughout the analysis on pages 10 and 11 of the decision, the magistrate evaluated the evidence presented by both parties, ultimately concluding that the prosecution had successfully established its case to the requisite standard. Therefore, the trial court considered the defence evidence overall. Opposing the third ground of the appeal, Ms Kaima believed that the prosecution had effectively established its case. She referred the court to section 302 of the Penal Code, Cap 16 RE 2022, and PW5's testimony regarding the payment of 4,700,000 to the second accused on 28th January 2022 after he had seen the vehicle. The transfer of TZS 3000,000 to the 1st appellant in April 2022 by PW3 was supported by the evidence of PW2, the owner of the purported vehicle, who stated that the car in question was sold to Adam Marusu on 1st February 2022. The appellant’s misleading statement to the complainant that the vehicle was en route while soliciting funds for fuel, despite knowing that the car had already been sold, illustrates this as a clear case of obtaining money by false presences. The State Attorney addressed the appellant's claim that a deposit

slip lacked the vehicle's name, stating that an oral agreement had been reached to purchase a Toyota Rumio, with witnesses from both sides 7 corroborating this. The appellant was aware that the vehicle had already been sold to someone else, yet they deliberately misled the complainant into a transaction for a non-existent asset. Addressing the appellant's counsel's assertion that Ally Claud was a crucial witness who should have been called to testify for the prosecution, Ms Kaima contended that Claud was not a material witness. She indicated that while he connected the two parties, he could not substantiate the claim of false pretence in this case. She relied on the case of Julius John Shalu v. R, Criminal Appeal No. 35 of 2001, stating that the failure to call a witness does not inherently weaken the prosecution's case unless it is shown that the witness’s testimony would have influenced the outcome. She believes all elements necessary for obtaining money by false presences were addressed and exhibited; the prosecution managed to establish that the appellant had fraudulent intentions and obtained valuables from the complainant that could have been stolen. She urged that the third ground of the appeal should be dismissed. In her argument, Ms Kaima contended that the case was not purely civil due to deceitful agreements involving nonexistent properties. To her, the appellant and

his accomplice knowingly took money from the complainant while aware that the vehicle had already been sold. They continued to 8 solicit additional funds, collecting 3,000,000/=. Moreover, they misled the complainant about the vehicle's status, claiming it had broken down on its way to Arusha. She characterised their actions as blatant lies, asserting that this made the entire transaction criminal rather than civil. As a result, she requested the dismissal of the appeal. Rejoining, Mr Mhina insists that the appellant acknowledged receiving 3,000,000/= and requests an additional 500,000/= for advertising purposes. He further highlighted inconsistencies in the witness testimonies regarding the vehicle's breakdown, which, in the advocates' view, undermined the credibility of the prosecution's case. The prosecution's failure to demonstrate any ill intent on the part of the appellant was emphasised while criticising the trial court for not properly evaluating the defence evidence presented during the trial. He lastly reiterated the appellant's lack of ill intent and his willingness to refund the 3,000,000/= urging d the court to grant the appeal and release the appellant. I have evaluated the parties' submissions. In the first ground, the appellants asserted that the matter brought to the trial court was purely a civil transaction, not a criminal case. I have revisited the record.

As indicated earlier, the appellant was charged and convicted for false 9 pretence C/S 302 of the penal Code. The particulars of the offence and evidence by the prosecution exhibit accusations of deception surrounding the sale and delivery of the vehicle, forming the basis for the charges against the accused. I agree with the learned State Attorney that the charge is not civil in nature. The allegations levelled against the appellant are based on a transaction involving non-existent or misrepresented property, constituting the essence of false pretence, and the accused’s misrepresentation of their ability to deliver a vehicle already sold, engaged in ongoing deceptive practices to extract additional funds, and failed to provide the promised item. On the second ground, the trial court is liable for failing to assess the defence. According to the record, it is true that after summarising the evidence of both parties, the trial court did not refer to the defence evidence. This failure, however, is curable. Being the first appellate court, this court has the power to step into the trial court's shoes and re-evaluate the entire evidence to determine whether the conviction is justified. I will perform this duty while resolving ground three of the appeal, where the prosecution is faulted for failure to establish the case beyond reasonable doubt. 10 I have evaluated all the evidence

from both sides. The timing and circumstances of the payments, coupled with the lack of delivery of the vehicle, lend weight to the prosecution's argument of deception. In the prosecution case, PW3 directed his servant, PW5, to travel to Dar es Salaam to collect a Mark X vehicle purchased from the first accused, Alex Eliud Joshua. Upon arrival, PW5 learned from Ally Claud about the auction of a Toyota Rumion with an asking price of Tshs 8,200,000. On 28/1/2022, PW5, acting on PW3’s instructions, handed over Tshs 4,700,000 to the 2nd accused, George Gasper Njau, after deducting Tshs 300,000 as a condolence donation to the 2nd accused . Immediately after receiving PW3's money for the said vehicle, the first accused informed PW4 of the sale of the said vehicle, the Toyota Rumio, on 1/2/2022, just three days after they received PW3’s money for the purchase of the said vehicle,1st appellant was involved in the sale of the said vehicle between the owner, PW2 and PW4. Still, knowing that the car is no longer available, the appellant requested additional funds in April 2022 from PW3. It is undisputed that on April 26, 2022, the appellant, Alex Eliud Joshua, requested a further payment of Tshs 500,000 as advertising costs, which PW3 promptly sent. The following day, April 27, 2022, PW3 transferred Tshs 3,000,000 to the 1st 11 appellant's bank account as part of the payment for the

vehicle. Emmanuel Hauli Chaburuma (PW6) corroborated the timeline through the bank statement (exhibit PE5) showing the Tshs 3,000,000 deposit on April 27, 2022. Despite the Appellant’s assurances regarding the vehicle's delivery, it was never delivered. When PW3 sought answers, Alex Eliud Joshua told him the car had broken down. The evidence shows that the police report was made after several failed attempts to contact the accused. Charles Timothy Tadei (PW2) and Adam Hamisi Marusu (PW4) provided details supporting the vehicle's existence and prior sale, confirming that it was already sold to PW4 before transactions involving PW3 occurred. In his evidence, for instance, PW4 informed the court that after the purchase on 1 February 2022, he collected the contract, assisted by Alex Eliud Joshua, followed up with Platinum Credit for the payment of the loan by Pw2, and was lastly handed the vehicle after three days. Meaning that on 4th February 2022, the car was already out of the appellant's control. So, the series of events explained above proves that by the time PW3 engaged with the appellant regarding the additional payments, the Toyota Rumio was no longer available for auction as it had already been sold to a third party. This is a proven pattern of deceptive behaviour, indicating 12 that the appellant and his fellow knew they could not fulfil their obligations to deliver the

Toyota Rumio while still soliciting significant sums of money from PW3. Despite repeated assurances and payment requests, the failure to provide the vehicle underscores an intention to defraud, establishing the prosecution's case of false pretence. The defence evidence also lent support to the prosecution case. They both do not dispute knowing the complainant and that they are the ones who notified him of the available Rumio car for purchase. They also admitted receiving money from the complainant to purchase the vehicle. The appellant's assertion that the money paid was later returned to PW3 doesn’t find support from the evidence adduced. Ally Mohamed Claudi’s testimony(DW3) speaks of the transaction connected to Mark X's car sold to PW3 on 23/1/2022. It should be remembered that the issue of the previous transactions between PW3 and the 1st appellant regarding Toyota Mark X on 23/1/2022 is not in dispute. This sale gains support from both sides, including DW3, DW5, and PW3. According to DW3, the only amount that changed several hands is 3200,000, which was lastly paid to the 1st appellant on 23/1/2022 for the purchase of the Mark X by DW3 on behalf of PW3 and not the payment made thereafter for the purchase of the 13 Toyota Rumio vehicle. And nothing shows that the paid 4700,000 was ever returned to PW3 at any point, as alleged by the defence . In addition to the above, the

appellant's assertion that the paid 3000,000 through his accounts on 27/4/2022 was for the purchase of the car Toyota Crown through an auction advertised in the Habari Leo newspaper dated 22/5/2022 lacks credence because his evidence is silent on why they had to accept payment for a vehicle still to be auctioned. I say so because, generally, it is considered unethical to receive the purchase price of a property to be auctioned before the auction itself, as it undermines the core principle of an auction, which is open competition among potential buyers to determine the highest price. The absence of a clear explanation from the 1st appellant regarding why such a payment was acceptable casts further doubt on the legitimacy of the transaction and the integrity of the entire dealings. Therefore, it is reasonable to conclude that the appellant’s actions were misleading, and the failure to adhere to ethical auction practices strengthens the prosecution's case for false presence. Thus, based on the gathered evidence, the prosecution sufficiently established the elements of false pretence against the appellants, and the defence's evidence failed to raise any reasonable doubt. The third ground of appeal also fails. 14 As the fourth and fifth grounds of appeal have been abandoned, there is nothing further for me to determine. The appeal is without merit and is therefore dismissed in its entirety. Dated at Dar es Saalam, this 3rd Day of February 2025 E. Y Mkwizu Judge 3/02/2025 15