deo mwankemwa another vs republic 2014 tzhc 2100 15 april 2014

IN THE HIGH COURT OF TANZANIA, AT DAR ES SALAAM, CRIMINAL APPEALS No. 122 OF 2012 (Originating from the District Court of Bagamoyo District, at Bagamoyo, Criminal Case No. 344 of 2010). 1. DEO MWANKEMWA..................................... 1ST APPELLANT 2. HASSAN MWASI.............................................2 nd APPELLANT Versus; REPUBLIC............................................................. RESPONDENT JUDGEMENT 15/07/2013 & 15/04/2014 Utamwa, J. In this appeal, Deo Mwankemwa and Hassan Mwasi (first and second appellant respectively) challenge the judgement of the District Court o f Bagamoyo District, at Bagamoyo (trial court) dated 16th day of May, 2012. The Republic (respondent) objects the appeal. The appellants are represented by Mr. Kiondo learned counsel while the respondent is represented by Ms. Cecilia Mkonongo, learned State Attorney. The background of this appeal is this; before the trial court, the two appellants and one Bahati Fabian (not a party to this appeal) were charged with a single count of obtaining money by false pretences c/s 302 of the Penal Code, Cap. 16, R. E. 2002. It was alleged that on the 1st day of April, 2010 at 08; 00 hours at Kimela Matumbi Page 1 of 11 village of Bagamoyo District in Coast Region, by false pretences and with intent to defraud, the appellants and that other person did obtain Tanzania shillings (Tshs.) 8, 000. 000/= (Eight Million only) from one Benard s/o Ntelya being sale of four acres of land which was not theirs. They all pleaded not guilty and a full trial ensued. The trial court then found all of them guilty, convicted and sentenced each of them to serve in prison for five years. It also ordered them to compensate the complainant (Benard s/o Ntelya) the sum of Tshs. 8, 000, 000/= upon completing their sentence, hence this appeal against both conviction and sentence. The two appellants’ preferred three grounds of appeal as shown hereunder; 1. That the trial magistrate erred in law and fact by misdirecting herself on the question of burden of proof. 2. That the trial magistrate erred in law and fact by deciding the matter on the basis of false and insufficient evidence given by the respondent and his witnesses. 3. That the trial magistrate erred in law and fact for her failure to analyze the evidence correctly. The appellants thus urged this court to allow the appeal, quash the conviction and sentence, order the respondent to pay costs of this appeal. They also prayed this court to grant any other relief that it will deem fit. The appeal was argued by way of written submissions and the parties accordingly filed their respective submissions, hence this judgement. In his lengthy submissions regarding the first and second grounds of appeal which can be discussed simultaneously for their similarity, the learned counsel for the appellants argued to the following effect; that in criminal proceedings, the onus of proof is on the prosecution and its standard is beyond reasonable doubts. He cited Said Hemed v. Republic [1998] TLR. 117 by the Court of Appeal of Tanzania (CAT) to support the contention. 'He also argued that the weakness of the accused person’s defence does not form any base for conviction. He added that, the four prosecution witnessed in the matter at hand did not prove the case against the appellants beyond Page 2 of 11 reasonable doubts for the following reasons; that though the Prosecution witness (PW.) No. 1, Simon Benard Ntelya testified that the payment of the Ths. 8, 000, 000/= to the appellants was made at Akiba Commercial Bank at Tegeta, and he paid Tshs. 800, 000/= as village revenue, no bank pay in slip and bank withdrawal forms were produced in evidence. Again, no any village receipt was produced in evidence. Moreover, PW. 4, No. E. 3818 D/Cpl. Augustino testified that the first appellant had been involved in various offences but he did not prove the allegation. The learned counsel also argued that, the vendor’s names appearing in the alleged sale agreement (exhibit P. 1) i. e. Deogratius L. Mayunga are different from the actual names of the first appellant, Deo Mwankemwa. He also contended that, it was wrong for the trial magistrate to base the conviction on the appellants’ respective cautioned statements (alleged confessions, i. e. exhibits P. 2 and 3) because, the same were objected by the appellants but the trial court admitted them in evidence without first conducting a trial within trial to test their voluntariness. He cited s. 27 (2) and (3) of the Evidence Act, Cap. 6 R.E. 2002 to support his fight. Again, there were contradictions as to whom among PW. 3 and 4 wrote the appellants’ cautioned statements. He further argued that, the trial court erroneously found that the handwriting in the cautioned statements of the appellants belonged to PW. 4 without any proof as required by s. 69 of Cap. 6. Moreover, the learned counsel for the appellants contended that, the respondent also failed to call as witnesses, persons who witnessed the alleged fake sale, i.e the sub­ village chairman, one Lyatuu, Abdallah Shauku and Saidi Cholo. The court is thus entitled to draw an adverse inference against the respondent for this omission as per the decisions in Hemedi Said v. Mohamed Mbilu [1984] TLR. 113 and Azizi Abdallah v. R. [1991] TLR. 71. These evidential weaknesses create doubts which must be resolved in favour of the appellants, he submitted. As to the third ground of appeal the learned counsel for the appellants argued that, the trial magistrate in her judgement just made reference to the prosecution evidence Page 3 of 11 and convicted the appellants without indicating how the evidence was correct, she did not also make the points of determination and show how the evidence supported them. This was against s. 171 of the Criminal Procedure Code (former law) and s. 312 (1) of the Criminal Procedure Act, Cap. 20 R. E. 2002 and the case of Jeremiah Shemweta v. R. [1985] TLR. 228. For this failure the trial court failed to find that the Bagamoyo District Court had no jurisdiction to try the matter because the alleged sale agreement w was executed in Kinondoni District Court as per the evidence of PW. 1 and 2. Again, for the failure to analyse the evidence the trial court failed to consider the defence evidence, to specify the section o f law under which the appellants were convicted as required by s. 312 (1) and (2) o f Cap. 20. The trial court also failed to compare the appellants’ signatures in the alleged sale agreement and that in the cautioned statements as per s. 75 (1) o f Cap. 6. In her replying submissions, the learned State Attorney for the respondent agreed with the appellants’ counsel on the onus and standard of proof in criminal trials. She also conceded that the cautioned statements were wrongly admitted in evidence since they were admitted without any prior trial within trial. She consequently prayed this court to expunge the same from the record. She however, argued that the remaining evidence by PW. 1 and 2 who also tendered the sale agreement (exhibit P. 1) was sufficient to prove the case against the two appellants beyond reasonable doubts. The two witnesses testified that they had dealt with the appellants several times and the first appellant falsely introduced to them as Deogratius Mayunga, the name that appears into the agreement. ' The learned State Attorney also maintained that, lack of bank documents is not fatal in this case as long as the PW. 1 and 2 did not testify that they deposited the money into the appellants’ bank account. What matters here is only that the two prosecution witnesses testified that PW. 1 handled the money to the appellants for purchasing the land which did not belong to them, and he did so in writing (vide the sale agreement). Page 4 of 11 This was a proof beyond reasonable doubts. The learned State Attorney also submitted that proof beyond reasonable doubt was described in the case of Magendo Paul and another v. Republic [1993] TLR. 220 as a situation where the evidence is so strong against an accused person leaving only a remote possibility in his favour which can easily be dismissed. She also argued that the issue of jurisdiction by Bagamoyo district court is an afterthought that should not be considered as it was not a ground of appeal. After all, as long as the sale agreement was made in Bagamoyo district where the land at issue is located, and the money were paid in Kinondoni district, then either Bagamoyo or Kinondoni District Court had jurisdiction to entertain the case. She again contended that, s. 143 of Cap. 16 directs that no any specific number of witnesses is required in proving a fact. It was thus not necessary for the prosecution to call all of its witnesses as submitted by the learned counsel for the appellants. In regard to the third ground of appeal the learned State Attorney argued that, the trial court complied with s. 312 of Cap. 20 as it framed the points of determination, analysed the evidence, gave reasons for the decision and further decided the case as indicated under pages 5-8 of its judgement. She also argued that, the arguments related to s. 171 (1) o f Cap. 20 are irrelevant as these provisions relate to a process where a subordinate court commits an accused person to the High Court for sentence, which is not the case in this matter. On the argument that the sentence did not specify the provisions of law, she argued that, as long as the appellant were charged with obtaining money by false pretences c/s 302 of Cap. 16, and in page 5, 7 an d ‘8 of the judgement the trial court indicated so, the omission did not occasion any injustice. In his rejoinder, the learned counsel for the appellants reiterated the arguments he had made in the submissions in chief. My adjudicating plan is that, I will consider the grounds of appeal number 1 and 2 cumulatively for their interrelationship as hinted previously and as rightly argued by Page 5 of 11 the learned State Attorney for the respondent. If need will arise, I will then test the « third ground of appeal. The main issue in respect of the first and second grounds of appeal is thus, whether or not the trial court erred in holding that the prosecution had proved the case against the two appellants, or any o f them beyond reasonable doubts. From the record, it is clear that the trial court convicted the two appellants on the basis of the evidence by- PW. 1 and PW. 2 (the complainant, Simon Benard Ntelya and his wife, Agness Nyakali Ntelya) and the respective cautioned statements (confessions) by the two appellants. Both, the learned State Attorney and the learned counsel for appellants r agree that the two cautioned statements were erroneously admitted in evidence for the failure by the trial court to conduct a prior trial within trial. I agree with them as that is the proper position o f the law, see Twaha Ally and 5 others v. Republic, CAT Criminal Appeal No. 78 of 2004, at Dar Es Salaam (unreported) and Seleman Abdallah & 2 others v. The Republic, TCA Criminal Appeal No. 384 of 2008, at Dar es salaam (unreported). I would only make a minor correction to their arguments; i. e. in our judicial system, a trial within trial is applicable before this court only. Subordinate courts like the trial court do conduct inquiries instead of trial within trials. However, the procedure for conducting both processes is more or less the same and they are both aimed at testing the voluntariness of a disputed confession before it can be admitted in evidence. I therefore, expunge the two cautioned statements from the record. What remains on the plate is now the evidence by PW. 1 and 2 only. I must thus consider if this evidence alone sufficed as a proof of the charge beyond reasonable doubt. According to the record, the totality of the evidence by PW. 1 and 2 is that, the said Bahati Fabian introduced PW. 1 to the first appellant as the owner of the land at issue. The PW. 1 approached him for purpose o f buying the same. The first appellant acknowledged to be the owner and agreed to sale the same to PW. 1 at the price of Page 6 of 11 Tshs. Eight Millions. PW. 1 paid the money to the first appellant at the bank premises and the sale agreement was reduced into writing (exhibit P. 1). The second appellant introduced himself as the village secretary with the authority to witness the sale agreement. He received some money as village revenue to show that the sale was a genuine one. Later on, it was discovered that the first appellant was not the owner of the land and the second appellant was not the village secretary. It was also discovered that the said Bahati Fabian was a mere guard of the land at issue for another person, and he run away even'before the completion of his trial. In their respective defences, the two appellants refuted the prosecution evidence and complained against the way the cautioned statements were taken. In my view, the evidence by PW. 1 and 2 was credible because it was not shaken r in any way during the cross examination. The appellants did not also show any reason why that evidence should not be believe. The law is to the effect that every witness is entitled to credence in his testimony and must be believed unless there are good and cogent reasons for not believing him, see the case of Goodluck Kyando v. Republic, CAT Criminal Appeal No. 118 of 2003, at Mbeya, (unreported). This is also the spirit under s. 127 (1) o f Cap. 6 which provides that, every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease or any other similar cause. I thug believe the evidence by the two prosecution witnesses to be true. The provisions o f s. 302 o f Cap. 16 under which the two appellants were charged provide, and I quote the same for a readymade reference; “Any person who by any false pretence and with intent to defraud, obtains from any other person anything capable of being stolen or induces any other Page 7 of 11 person to deliver to any person anything capable of being stolen, is guilty of an offence and is liable to imprisonment for seven years.” The phrase false pretence referred to under s. 302 of Cap. 16 is defined as any representation made by words, writing or conduct of a matter of fact or of intention, which representation is false act and the person making it knows it to be false or does not believe it to be true, see s. 301 of Cap. 16. Now, as long as according to the evidence by PW. 1 and 2 the two appellants falsely and knowingly posed in their respective positions in the sale agreement leading to the PW. 1 believe them and part with his money, and as long as money is obviously a thing capable of being stolen, and as long as thereafter, the two appellants disowned the«transaction, it can be firmly concluded that the two appellants conspired to defraud the PW. 1 by false pretence and their mission actually succeeded as they actually obtained the money. The facts thus fit squally under the provisions o f ss. 301 and 302 of Cap. 16. It must be noted here that an intention of a human being to commit an offence can be detected not only from his express words, but also from his conduct, so was the intention of the two appellants, according to the circumstances of the matter at hand. The court is entitled to infer such fact under s. 122 of Cap. 6. In Hatibu Gandhi and others v. Republic [1996] TLR 12 (CAT) it was observed that what goes on in the minds of a person can reasonably be ascertained by reference to the conduct or physical appearance of that person. The argument by the learned counsel for the appellants that lack o f bank documents weakened the prosecution case is thus weightless for, the prosecution evidence was not to the effect that the money were paid through the first appellant’s bank account. The evidence is only to the effect that the payment was made at the bank premises. Again, the contention that the names into the sale agreement differ from the actual name o f the first appellant is helpless for, it is clear from the prosecution evidence that the first appellant falsely represented himself as Deogratius L. Mayunga instead of his actual name of Deo Mwankemwa. Moreover, the assertion that no Page 8 of 11 receipt for payment of village revenue was produced in evidence has little force because, one could not expect such a receipt from the second appellant who received the money for that purposes because, he was also a falservillage secretary having a role to play in the illicit mission of defrauding the PW. 1. I therefore, agree with the learned State Attorney for respondent that the evidence by PW. 1 and 2 sufficed as a proof of the offence beyond reasonable doubts. This, in my view is the true meaning of proof beyond reasonable doubts as described in the case of Magendo Paul and another v. Republic cited above by the learned State Attorney for the respondent. The argument by the learned counsel for the appellants that some key witnesses were not called does not thus hold water for, in law evidence is not countable but it is only weighed, hence there is no any specific number *of witnesses is required in proving a fact as per s. 143 of Cap. 6 and as rightly argued by the learned State Attorney for the respondent. I would add here that, in criminal proceedings not every doubt has to be resolved in favour of the accused person and result into his acquittal. Only reasonable doubts can afford the result. Otherwise, wide loopholes would be created and this country would never have piece for, true crime perpetrators would walk out o f court rooms unpunished, courts would be turned into theatre platforms and the law would be rendered into a toothless dog. I thus determine the main issue posed above negatively. I consequently overrule the first and second grounds of appeal. As to the third ground of appeal the issue is whether or not the trial magistrate failed to comply with the provisions o f s. 312 (1) o f Cap. 20. In the first place, it was unnecessary for the learned counsel to cite s. 171 of the Criminal Procedure Code (former law) that was repealed. These provisions correspond to s. 312 (1) of the current, Cap. 20. Once a law is repealed and a new law is enacted in lieu thereof, it suffices to cite the law which is currently in force unless there are specific purposes for Page 9 of 11 comparing the two laws, which was not the case under the circumstances of this case. In essence, s. 312 (1) provides for the requirements that must be met by a judgement in every trial in any criminal court. It provides that such a judgement shall be in writing and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court. In my view, and as rightly argued by the learned State Attorney, the judgement by the lower court met the requirements o f these provisions for, it was in writing, it set three points for determination (issues) at page 5, and it has the decision convicting the appellants as charged, see at page 7. The reasons for the conviction were that, the prosecution had proved the charge against the appellants beyond reasonable doubts. This decision was reached into upon the trial court considering the evidence by both the prosecution and the defence (page 5-7). The trial court judgement cannot thus be faulted for violating these provisions, save for partly relying upon the evidence of the cautioned statement which I have expunged from the record. The argument by the prosecution that the trial court failed to properly analyse the evidence cannot thus be of any weight. I consequently determine the issue posed above negatively and I accordingly overrule the third ground of appeal. 9 At this juncture, I must make it clear that I will not consider the other arguments made by the learned counsel for the appellants (narrated above), because they are not useful in this matter as long as I have made the above findings in respect of the three grounds of appeal. Such other arguments will not change my findings as they are related to complaints that did not cause any injustice. After all, most of those other arguments came as an after though since they were not part o f the grounds of appeal as rightly argued by the learned State Attorney. The law directs that in appeals, parties are limited to their grounds o f appeal. To allow a free practice against this principle is to render the procedure set for appeals useless, which this court will not do. The Page 10 of 11 procedure for appeals of this nature requires inter alia, a petition of appeal to contain particulars o f the matters of law or of fact in regard to which the subordinate court appealed from is alleged to have erred, see s. 362 (2) of Cap. 20. t Having held as above, I hereby find that this appeal has no merits, I accordingly dismiss it entirely. JHK. UTAMWA JUDGE 15/04/2014. 15/04/2014. CORAM; Hon. Utamwa, J. For Appellants: both present in persons. For Respondent; M/s Haika Temu (State Attorney). BC; Mrs. Chema H. Omary. Court; Judgment delivered in the presence o f both appellants and M/s. Haika Temu, State Attorney for the respondent, in court this 15 day of April, 2014. JHK. UTAMWA JUDGE 15/04/2014. Page 11 of 11