20151207 TZHC Mwanza

. )~ . -~--- '!'-1, IN THIE HIGtf COURT OF TANZANIA ATMWANZA · APPELLATE JURISDICTION CRIMINAL APPEAL NO. 31· o·F 2015 (Original Criminal case no,, 176 of 20.1.Z District court of ·Nyamagana at Nyamagana} DIRECTOR Of PIUBLXC PROS!ECUTIONS .•....• APl?IEILLANT VIERSUS RAJ.ABU MAGOTJr @SUBE AND ANOTHIER. .•••.RESPONDENT JUDGMENT OF THIE COURT 26/10/2015 & 7/12/2015 Gwae, J This judgment emanates from this criminal appeal filed by the appellant, Director of Public Prosecutions (hereinafter referred to as DPP) in r€spect of a ruling of District Court of Nyamagana at Nyamagana (to be referred as trial court, hereinafter) dated 15th September 2014 In that trial court's ruling, the respondents, Rajab~ Ma.goti @ Sube and Omary Kindiba were found to have no case to answer, they were consequently acquitted pursuant to section 130 of the Criminal Procedure Act, Cap 20 R£ 20~2, of an offence of obtaining money by false pretence c/s 302 of the penal code leveled against them, the :t~t respo.ndent (~(if\t~.~ /limn~ . ~ l t 1st count) and the same (?ffence in the 2nd count against both accused . ·. persons/ respo·ndents. Dissatisfied with the trial court ruling, DPP filed his petition of appeal duly . admitted onlS.01.2015 a.nd comprised of one ground of appeal, 1. That the trial Magistrate erred in law and fact for failure to evaluate properly evidence as a result he arrived a wrong decision and acquitting the respondents on reason . of no case to while there is . . ample evidence on record which shows that prima facie case was established against the respondents to require them to enter defence At the hea_ring of this appeal, the appellant, OPP and .respondents were representeq by Mr. Mamti Sahewa and Mr. Robert Ada.m, the learned senior state attorney and learned advocate respectively, Mr. Mamti vigorously submitted that the trial court grossly erred in law and fact in acquitting the respondents as the prosecution through its seven witnesses and 2 nd respondent's cautioned statement had sufficiently . establ-ished a prima facie case against them, requiring them enter their defence. On the part of the respondents, Mr. Adam strongly objected this appeal by - submJtting that there was no sufficiently eviqence adduced by the prosecution to require the respondents to enter their defence contending that if one looks at prosecution evidence in its totality cannot agree with the Republic,. to emphasize his submission Mr. Adam cited the case of . . Ramanlah T.V R (1957) lEA at 332 where it was stated among other things, the respondents' counsel, quoting part of the judgment stated that:~- 2 ,. ''Onus is on tl')e ·prosecution to prove its case beyond reasona~le .( . . . . \. d6ubt, a prima fac~e case is not made if at the close.of prosecution, the case is merely "which on fully considera~ion might possibly be 11 thought to sustain a .conviction against Mr. Adam went further submitting that the alleged cautioned statement of ·the 2nd respondent ought to be corroborated and th~t the respondent being arrested at different places or being found in possession of valuable . . . properties do not make the respondent~ answerable as they are businessmen. Having ably gone with the trial court, record and the trial court order subject of this appeal, appellant's notice of appeal as well as petition and . . verba·1 submissions of the parties' counsels; I am now bound to ascertain and determine if the there is prima facie case sufficiently established by the p~osecution before trial court pursuant to section 230 of the Criminal Procedure Act, Cap 20 of Revised Edition, 2002. It is general principle that in a criminal trial at the close .of the case for the 1 prosecution, a trial court has a legal duty to give its ruling if ' no prima · facie case 11 has been made against an accused person or not and if it is in · ·the opinion of the trial court that no prima· facie case has been made ·sufficiently to require the accused to enter'his defence then it ~haH acquit that accused person as was the case in the present appeal, in other words the trial court has to decide at the close of the evidence in support of the charge· 'whether a case is made out against the accused person just sufficie:ntly to require him to make his defence. It may be a strong case o r ~ - - 3 it may be a weak case whose conclusive log.ic is _an order whether the ( . . ' . . accused persons h_ave a case to answer or not if we9k it shou_ld be in rnind _ of the trial magistrate or judge, as the case may be, that no reasonable court can be c9lled upon to act on it as establis~ing criminal guilt to the accused person co~cerned. Beirig the first appellate court judge and in view of the complaints by the DPP via his representative, Mr. Mamti, the learned Senior State attorney, I think I am duty bound to now objectively evaluate the prosecution evidence:· adduced during trial so that I can ascertain if the respondents who never entered appearanc:e during hearing of this appeal, had a case to answerer or had nio case to answer. So to speak, the evidence of One Mary lugomoia (the victim)-who appeared qefore the trial court_ as PWl and whose testimony is on record . ( see page 6 -23 of the typed proceedings ) is briefly to the effect that she meet the respondents who introduced themselves to be witchdoctors alleging or pretending to heal_ the PWl 's granddaughter, named by one name ."Maureenn,.there is evidence of conduct of pretences to be traditional healers/ witchdoctors, act of telling the PWl that the house . . situating at Capripoint (ultimately sold due to the allegedly purported pretences) was the source of ii! hec;3lth of her granddaughter. The evidence adduced by the· PWl and on record is also to the effect that she gave the money, Tshs, 103, 000, 000/= to be withheld by the 1st respondent plus · 9 fee in the tune of 1, 500, 000/= for magical cleaning (kuzindika) of the ·earlier amount to the 1st respondent, thereafter arriving. at PWl's ·residential house, there is also evidence of putting the said money in a ~ ~ · 4 . . . briefcase, cheating or pret_ences like the said money putting _into the brief . . . st ·case would ·mu.ltiply and 1 respondent1s _act of ordering others to go out of the victim's rest room and eventually he (1 st respondent) remained inside where money wa? and was. th~ one who took_ the quest room keys unlike _to · .what the trial court stated in its _ruling that. ho" evidence that the 1~t respondent came and opened the said room, I say so for obvious reason and due to evidence on record that it was the 1st respondent who was left alone in the room and one who took the room keys (see PWl 's testimony) and thereafter the 1st respondent's departure ·while the doors were left locked and subsequent finding/impounding of various articles ln the brief case wher~ the amount of money was initially kept (see e;x.P3) like cut papers resembling to notes and other articles for ritual _or magic activities in that room (See testimony of PW3). The prosecution via its witnesses also managed to testify that it was the 1st respondent who was given 60,000 USD by the respondent ON 1, who allegedly disappeared with the same ,immediately after being given the .same, pretending to make rituals (Tambiko) till when the report was made. and his subsequent arrest The prosecution, to my considered opinion has sufficiently or ably establi_shed the direct evidence that it was th~ respondents, who pretended . . to be traditional healers, ones who looked for the purchaser (PW2) of the · plot, one who directly took their money (usd.60,000/) and by false pretences of doing acts assimilated to ritual in the quest room by ordering the PWl and ·two other to get out of the room which led him take the ~ 5 ;: mpn.ey in the bag, the alleged acts of the respo.ndents, to my view, . . ' . constitute offence of false pretences. There is also evidence of previous conduct such as telling the PW1 that they are traditional healers and. that the house previously owned by the PW1 was the source of illness of the PWf's granddaughter and its subsequent sale thereof, subsequent conducts such as absconding from their residential house, 1st respondent in particular, disappearance and subsequent conduct of buying valuable properties acquired or improved immediately after the incident in question such as. plot No. 84 at Sengerema worth tshs.120, 000,000/=(exh.exh PlO .&Pl 1-valuation reports ), (Exh PB plus Exh, P7- release· court order of the motor vehicle) regarding purchase of motor vehicles and subsequent deposits purportedly done by· the 1st respondent exh .PS, The prosecution evidence is seen to have been sufficiently corroborated by the evidence of house purchaser·(PW2- the purchaser of a house situated at Carpripoint owned by the PW1 PWS-banker who saw the PW1 with the 1st respondent, PW3, PW4, The respondents were charged with obtaining money by false pretences c/s to section 302 of the penal code (supra), Section 302 of our Penal Code reads: "302. Any person who by any false pretence, and with intent to defraud, obtain from any other person anything capable of being stolen, or induces any other person to ·deliver to any person anything·•.;.~_ /flll/)1Q 6 .. . . . . . capable of being stolen, is guilty of an offence, and is iiabie to ( . .· imprisonment for thr~e years.ff · . According to the Oxford Dictionary of Law 5th Editior,, the term 'false . pretence' d~notes an .act_ of.misleading someone by a false · ·representation, either by words or· conduct. The former·offence of obtaining property by false pretences is now known as obtaining property by deception. . In our instant matter,. there is evidence amply or sufficiently, to my view, · that it was 1st respondent who was with the 2nd respondent managed to defraud or cheat or make representation to the victim PWl, by both words and co~duct (look at the testimony of PW1) . . In the case of Re London & Globe financial Corporation Limited . (1), [1903] 1 Ch. 728, Buckley, J, a persuasive case, approved in Ramanlah T.'V R (1957) 1EA at 332 cited by· the respondent's counsel, it was stated among other things that: " A ruling that there is a -case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to the conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to su~tairi. a conviction." In the prosecution evidence so far adduced and the same in the record, I am confidently of the considered opinion that thirik the evidence of PW1 is sufficient ~o find the accused persons now respondents to have a -case to answer (see section 143 of Evidence Act Cap 6 of R.E OF 2002) taking i n t o / ~ 7 . . . . . account of corroboration of_ her (PVV1's evidence) testimony} be it oral _or . . . . . documenta_ry one· cannot certainly be in the opinion as that of the learned. Resident Magistrate that . there was no prima facie case sufficiently. . established_ against the re~pondents .. Moreover it is evident that the allegedly ·made cautioned statement by t~e 2nd respondent was admitted without any objection from the defence, including the 2nd respondent's counsel, when I look at the contents of the 2nd respondent's cautioned statement (Exh. P4), to my firm, at this juncture, it suffices to say that it constitutes a piece of prosecution evidence incriminatory to the respondents. Blasius v Republic [1973] 1 EA 510 (HCT), a _distinguishable·case from . . the present case, lt was held that the trick or device used must be specified however the failure to specify the trick or device was found not fatal while . . instantly devices used or trick are well established that of representation of being traditional healers and subsequent representation of being able to multiply money through magical powers.· . . . . In light of foregoing, I feel constrained to hold that the trial court did not look at the prosecution in its totality by simple but necessary evaluation of evidence on record without anticipating what the-defence would . . say. The ~uling and orders of the trial court are hereby quashed and set aside respectively. Both accused are found to have a case to answer, trial to start with defence but after compliance with section 231 of CPA but in order justice· not only to _ be done but also to be seen done the defence to commence with different~ 8 . . learned magistrate but that should be cons_idered as. taking away discretion . . . of magistrate given und_er ·section '214 of the Criminal Procedure Act, Cap 20 of R.E 2002. It is so found. and ordered accordingly. · . ·. . . . ...- M.\R.~~J c\tJJJ~-- 7/12./20.15 Right of Appeal to t ~ A_r>peal explained . . M. . , 1 a - J . 7/12/2015 Order. Since the respondents did not appear in this court despite issuance of summons and directives to their -counsel, hence if they will not attend on a date for mention to be fixed hereinafter, the trial court shall issue arrest warrant Mention on 4/1/2016 before newi ?~igned trial Resident Magistrate. .. M.~,J . 7/12/2015 9 Date: ·7; 12/2015 · Coram: . Hon._M. R. Qwae, J. _Applic~nt: Mr. Mamti S/ A .Respondent: 1st . 1 . · . . · · . 2 nd JMr. Deni oz Advocate B/C: B. France/lgnas Court: Judgment is readily · prepared for the intended ·delivery. Parties: Vv e ready for the delivery. ~ 7/l2/2tJ/S <Court: Judgment delivered in 7/12/2015 1n the presence of the parties' representatives indicated above. the Trial court to do a needful to have them appear.