FRANK MNDEME VS ESTER ANATHER PALANGYO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTY OF ARUSHA AT ARUSHA PC. CRIMINAL APPEAL No. 1 OF 2024 (Arising from the Judgment and Decree of the District Court of Arumeru at Arumeru in Criminal Appeal No. 9 of 2022). FRANK MNDEME........................................................ 1st APPELLANT GERMANA BERNARD................................................. 2nd APPELLANT VERSUS ESTER ANATHE PALLAGYO.......................................... RESPONDENT JUDGMENT 6th June & 2nd July,2024. S. J. KAINDA, J.: The appellant, Germana Bernard, is appealing against the decision of the District Court of Arumeru at Arumeru dated 22nd day of August, 2023 in Criminal Appeal No. 21 of 2022 where the appellants appeal was dismissed for lack of merits. 11 P a g e For better appreciation of the sequence of events leading to this appeal, I propose to set out briefly the background of this matter. The appellant and one Frank Mndeme (accused persons) were arraigned before Maji ya Chai Primary Court in Criminal Case No. 689 of 2022 jointly and severally charged with an offence of obtaining money by false pretense Contrary to Section 304 of the Penal code, Cap 16 (R.E 2019). They were convicted and sentenced. Their first appeal against conviction and sentence, decided by the District Court of Arumeru at Arumeru bore no fruit, hence this second appeal. It was alleged at the trial that on 14th day of July, 2021 at Kiwawa Village, Arumeru District in Arusha Region, the appellant, together with Frank Mndeme, who is not part to this appeal by false pretence and with intent to defraud obtained Tanzanian shillings thirty million from (PW1) Esther Anathe. At the trial court, it was the complainant case that PW1 Esther Anathe Pallangyo entered an agreement with the appellant to buy a land exhibit Pl. It is alleged that PW1 paid Tanzanian shillings thirty which was received by the appellant and the said Frank Mndeme. 2| Page It appears that the land purported to be sold did not belong to the appellant and his co accused Frank Mndeme because they did not have exclusive right to sell. It was alleged further that the accused persons and those who participated to sell knew that the land was not genuine for sale as it had dispute as to its ownership and that the appellant knew about the dispute and still continued to sell the land this shows their bad intention to obtain the said sale proceeds. In his defense, the appellant did not object about sale agreement between the complainant PW1 and his Frank Mndeme. However, he said his role on the matter was a mere witness. The trial magistrate found that the appellant together with Frank Mndeme participated in one way or another in the fraudulent business where they managed to receive Tanzania shillings thirty million. They were convicted as charged the appellant was sentenced to six months imprisonment. At his first appeal was to no avail, he now appeals to this court, as stated earlier. 3|Page The appellant faults the first appellate court's decision on six grounds as reproduced hereunder; I. The first appellate court erred in law and fact by upholding the decision of the trial court that wrongly entertained the charge involving elements on land disputes (..kwa kumuuzia Ester Anathe shamba ambalo Una mgogoro...) without jurisdiction. And in the absence cogent evidence to proof ownership of the suit land by the court of competentjurisdiction. II. The first appellant court erred in law and fact by upholding the decision of the trial court that wrongly admitted exhibits P-1 without proof of payment of stamp duty which violates the mandatory requirement by the Stamp Duty Act (Cap. 189 R.E 2019); The trial Magistrate erred in law when he wrongly admitted exhibit P-4 which is the CCTVphotos in total violation ofElectronic Transaction Act, (Cap 442. R. E2022) thereby arriving at a substantially wrong decision. III. The first appellate court erred in law and fact by upholding the decision of the trial court that convicted the 2nd appellant on the basis unknown edition oflaw in terms ofyear ofrevision. 4 | Page IV. The first appellate court erred in law and fact by upholding the decision of the trial court that convicted 2nd appellant in the reliance of improper evidence of sale agreement (exhibit P-1) which is not genuine; for not containing the names of the 2nd Appellants thereby shifting the burden of proof from the prosecution to the appellant. And neither the actus reus nor the mens rea ofthe offence was proved beyond reasonable doubt. V. The first appellate court erred in law and fact by upholding the decision of the trial court that rejected the 2nd appellant who requested the court to order a visit ofthe status in quo ofthe disputed land subject of case; to ascertain the authenticity of the document and truth of the existence of the suit property pending determination ofcase, and rejecting the 2nd appellants) request to re call the witness for purposes ofre-examination. VI. The first appellate court erred in law and fact by upholding the decision of the trial court that convicted the 2nd appellant on the basis of the testimonies of PW1, PW2 and PW3 which was full of contradictions and unsatisfactory In terms of quality, and credibility. 5 | Page At the hearing, the appellant, who was represented by Mr. Emmanuel Ole Kokan, learned advocate, abandoned first, second, third, fourth and fifth ground. He opted to argue sixth ground of appeal. His primary argument was that the prosecution did not prove the case to the required standard which is beyond reasonable doubt. He complained that there is no cogent evidence to prove that said money Tanzanian shillings thirty million were received by the appellant. He contends further that there is no proof if the alleged money were deposited in appellants bank account. In regard to exhibit Pl a sale agreement and basis of the charge sheet, he contended that the appellant's name is not in the said exhibit and that if at all, any money was deposited in appellants bank account, then failure to tender bank statement created serious doubt as to the involvement of the appellant in the alleged transaction. He finally prayed this court to find the appeal with merit and allow it. Replying on behalf of the respondent, Mr. Fortunatus learned counsel submitted that the case was proved and the finding of the two courts below should not be faulted. He submitted that the appellant received the alleged 6| Page money Tanzanian shillings thirty million through his bank account as shown at page three of the typed judgment of the trial court. Frank Mndeme stated during defense case that cash money Tanzanian shillings thirty Million were deposited into appellant's bank account the fact which the appellant did not cross examine so the court should treat it admitted. He cited the case of Nyerere Nyaghue Vs. Republic, Criminal Appeal No. 67 of 2010. Mr. Fortunatus submitted further that the sale transaction which was reported to be done was fraudulent with intention to illegally obtain money. The fact that the appellant witnessed the transaction is enough to prove his involvement. He finally asked this court to find that the case was proved beyond reasonable doubt and that the finding of two court's below should not be disturbed. Both courts below found that the evidence on record shows that Frank Mndeme, while knowing that he did not have exclusive right to sell the land he represented to the respondent about the plot in issue. The appellant by conduct stood as a witness and a sum of money was deposited to her account. According to exhibit Pl (Sale agreement), Frank Mndeme appears as a seller while the appellant stood as a witness of the seller, this shows that both two had knowledge of the said agreement. 7| Page The two courts below concluded that both appellant and Frank Mndeme had knowledge of the said agreement and it proved their ill intention. I have keenly gone through the evidence on record along with the submission by counsels with due respect to the learned first appellate Magistrate, I am unable to glean from the evidence supporting the conclusion that a sum of money was deposited to appellant's bank account or that because the appellant stood as a witness of the seller then it proved his ill intention. There is nowhere in the evidence to show that an amount of money subject of sale agreement exhibit Pl was deposited in appellants account but on the contrary, the testimony of PW4 H. 732 PC Saidi, the Police who investigated this case testified that it is one Frank Mndeme who received money Tanzanian Shillings thirty million from the respondent. Sale agreement exhibit Pl which is a foundation of this matter is clear. The appellant, together with others who are not part to this matter signed as witness. It is indicated thus, witnesses on the part of the buyer as Isumail 8 | Page R. Msangi, Andrew John Walden (PW3) and the appellant Gerumana Bernard. Those who witnessed sale for the buyer are Anate Pallangyo, William Lezenea and Omary R. Killey. The appellant was charged and then convicted for being a witness. However, the rest of those who witnessed the sale were not charged. Before I embark on merit of the appeal. I wish to make it clear that this being the first appellate court, its first role will be to re-evaluate the entire evidence on record and subject it to critical scrutiny and if warranted to arrive at my own conclusion of fact. See case of Idd Shaban @ Amasi v. Republic. Criminal Appeal No 111 of 2006, D.R Pandya v. Republic (1957) E.A 336, Vuyo Jack v. The DPP Criminal Appeal No. 334 of 2016. In charges under Section 304 of the penal code, it is clear that for a person to be charged and convicted of the offence of obtaining money by false pretense there should be evidence showing that the accused person made false misrepresentation and on strength of that misrepresentation he/she obtained money. 9| Page In the instant appeal, there is no any kind of misrepresentation made by the appellant to the respondent. The complainant evidence and other witnesses are crystal clear that what happened was sale agreement of a piece of land between Frenk Mrema I Eliakunda P. Pallangyo and one Estar Anathe Pallangyo other than the appellant. The findings of the two courts below based on the fact that the appellant participated on the sale agreement as a witness. There is no such evidence on record to support an allegation that the proceeds of sale thirty million Tanzanian Shillings were deposited in appellant's bank account. There is no such evidence on record to support this finding. From my foregoing re-evaluation of evidence, I do not share the conclusion reached by two courts below. In the final analysis, I am fortified that the offence of obtaining money by false pretense was not proved beyond reasonable doubt as required by the law. Consequently, I allow the appeal. I quash the conviction and set aside the sentence of six months imprisonment. It is so ordered. SJ, KAINDA JUDGE 10 I P age 2.7.2024 Judgement delivered in Chambers this 2nd day of July, 2024, in the presence of Mr. Emmanuel Kokan, learned counsel for the appellant and Mr. George Mrosso, learned Counsel holding brief for Mr. Fortunatus Mhalila, also learned Counsel. S.J. KAINDA ~ JUDGE 2.7.2024 Right of appeal to the Court of Appeal fully explained. 11 I P a g e