DOMISIAN GENANDI RWEZAURA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 14327 OF 2024 (Originating from Criminal Case No.230/2017 of Moshi District Court at Moshi) DOMISIAN GENAND S/O RWEZAURA ………….…… APPELLANT VERSUS REPUBLIC ………………………………………………. RESPONDENT JUDGMENT 10/09/2024 & 24/09/2024 SIMFUKWE, J. The appellant, Domisian Genand Rwezaura, was arraigned before the District Court of Moshi with the offence of Obtaining money by false pretence, contrary to section 302 of the Penal Code [Cap. 16 R.E. 2002] now R.E 2022. 1 It was the prosecution’s case that on 8th July 2016 and 12th July 2016 within the Municipality of Moshi in Kilimanjaro region, with intent to defraud, the appellant obtained TZS 35,000,000 and TZS 12,000,000 respectively from one Grace Tadeus by falsely pretending to be a clearing agent of a company known as HARAKA Clearing and Forwarding Agency, while in fact it was not true. The appellant denied the charges levelled against him, as a result, a full trial ensued where the prosecution paraded four witnesses and four exhibits namely, a pay-in slip, a cautioned statement of the appellant, a bank statement and a written agreement between the appellant and PW1 (complainant). In a nutshell, the prosecution's case was that PW1, a businesswoman, wanted to import items from China to Tanzania. Thus, she hired Haraka Company as a clearing and forwarding agent; owned by the appellant. Initially, she deposited TZS 35,000,000 (Thirty-Five Million) into a CRDB TRA prepaid account. According to PW3, the said prepaid account was owned by the appellant and bore his name. However, PW1 complained that the consignment was not cleared due to the appellant's claim that the import duty was insufficient. PW1 added 2 TZS 12,000,000, which was paid to the appellant as cash. The appellant required PW1 to wait for her items. Upon follow up at Holili TRA office, she was informed that the containers were not cleared. The appellant was contacted and informed about the issue and promised to go to the bank to pay while the containers were being checked. Then, the appellant disappeared, requiring PW1 to use another clearing and forwarding agent to clear the consignments. In the meantime, PW1 made follow up, the appellant apologized and promised to repay the money. However, he did not fulfil his promise. PW1 reported the matter to the police station, and the appellant continued to make unfulfilled promises to repay the money. The appellant promised to repay the money through a written agreement made before PW4, the learned advocate. However, the appellant did not honour that agreement. PW2, the investigator, found that the appellant, through a cautioned statement, confessed to had received money from PW1. In addition, he confirmed the payment of TZS 35,000,000/=. Upon inquiry at TRA regarding the legality of the appellant’s clearing and forwarding company, TRA informed him that the company was prohibited from operating 3 throughout 2016 due to various reasons, including failure to adhere to proper procedures. The appellant denied to had committed the offence charged. In his testimony, he stated, among other things, that PW1, who was his family friend, advanced him TZS 35,000,000/= as a loan to be paid back after two months. PW1 took him to the police station where he agreed to repay the money and surrendered his house as collateral. They attempted to sell his house by auction unsuccessfully. Thus, he was charged in court. He further testified that PW1’s claim was TZS 35,000,000/= and he had already paid TZS 15,500,000, which proved that he had no evil motive and did not take the money by false pretence. After considering evidence of both parties, the trial court believed the prosecution's version of the story. As a result, the appellant was found guilty, convicted, and discharged on condition of committing no offence within six months. He was also ordered to pay compensation to the victim at the tune of TZS 47,000,000/= within three months. According to the records, an application for execution was preferred before the trial court as a result of the appellant's failure to comply to the order of compensation. The appellant's house was subjected to 4 attachment. However, objection proceedings were filed against the said execution by the appellant's wife, claiming that the house sought to be auctioned was a matrimonial property. After hearing the objection proceedings, the court granted the application and advised the decree holder to attach another property. Dissatisfied with the said ruling, the Director of Public Prosecutions lodged Criminal Appeal No. 76 of 2021 before the High Court. After hearing the appeal on merit, the court (Hon. Kilimi, J.) allowed it by nullifying the objection proceedings. Thereafter, the appellant filed the instant appeal challenging the decision of the trial court, which convicted and sentenced him. He advanced the following grounds of appeal: 1. That Honourable Trial Magistrate erred in law and facts to determine matters of civil nature under criminal jurisdiction [The trial court has no jurisdiction] 2. That, Honourable Trial Magistrate erred in law and in fact for failure to evaluate evidence properly. At the hearing of the appeal, the appellant was represented by Mr. Emmanuel Antony, learned counsel, while the Respondent/Republic was represented by Ms. Wanda Msafiri, learned State Attorney. 5 In support of the first ground of appeal, the learned advocate for the appellant started by making reference to page 13 of the proceedings of the trial court where PW1 (victim) said that: "…. In my business I have used agent from DSM once and Haraka Clearing and Forwarding of Domisian twice. Haraka Clearing and Forwarding was owned by Domisian Rwezaura.” Also, reference was made to the same page from the 14th to 17th line where PW1 said that: "I employed Haraka Company as clearing and forwarding Agency, I deposited the money at CRDB account, he told me at first that the import duty assessed was 35,000,000/=. It was Domisian the director of Haraka Company who told me so.” From the above evidence, it was argued that there was a contractual relationship. Another piece of evidence demonstrating the same was said to be at page 34 of the trial court's typed proceedings, where PW4, an advocate, testified that on 7/6/2016 at 13:00 hrs, the appellant, accompanied by the victim Grace Meela, visited his office for the sake of 6 entering into an agreement. In the said agreement, they agreed that the appellant had breached the contract. Thus, the appellant should reimburse the amount of money which he had received from the victim. The said agreement was admitted as exhibit P4. Further reference was to page 26 of the typed proceedings of the trial court where PW3, a bank official, informed the court that their bank had an account ending with 412, which was owned by Domisian Genandi (the appellant). PW3 stated that the account was for Tanzania Revenue Authority prepaid services, issued to customers dealing with clearing and forwarding agencies. From the above noted facts, Mr. Emmanuel commented that, between the appellant and the victim there was an agreement to clear the consignment in which the appellant was a clearing and forwarding agent. Secondly, after the appellant had failed to clear the consignment for the victim, they entered into an agreement for payment of contractual money, which was witnessed by an advocate. On that basis, the learned counsel opined that the trial court had no jurisdiction to sit as a criminal court in this matter. It was concluded that the record shows that there was a civil contractual agreement. 7 On the second ground of appeal, Mr. Emmanuel criticised the trial court for improperly evaluating evidence. He was of the opinion that if the trial court had evaluated evidence properly, it could have discovered two things: One, that the offence of false pretence was not committed; and second, there was no mens rea. The learned counsel explained that PW1 paid money knowing that the payment was made to a person involved in clearing and forwarding. Moreover, PW3 testified that the account in question was owned by Domisian Genandi, and the card was issued to clients engaged in clearing and forwarding. The learned counsel asserted that the victim was not defrauded when she made the payment. The victim stated that she had worked with Haraka Clearing and Forwarding, owned by Domisian, on two occasions. On the issue of mens rea, it was stated that at page 14 of the trial court proceedings, from the 3rd line from the end up to page 15, 4th line of typed proceedings, PW1 gave the following testimony: “He asked forgiveness through phone, he said “niwie radhi nilibanwa kidogo, nilipata matatizo nitakulipa fedha zako siku si nyingi”. He did not pay me the money, I decided to 8 report the matter at police station, he asked at police that he would pay the money, he did not honour his promise from the date he promised twice. The matter was then brought before the court.” The learned counsel was of the view that looking at the above quoted piece of testimony, if it was analysed, the court could have discovered that there was neither actus reus nor mens rea. At page 8 of the judgment of the District Court, paragraph 3, the court stated that the appellant concealed the truth; however, the alleged truth was not disclosed. Based on that submission, Mr. Emmanuel prayed for the court to dismiss the trial court's decision, set it aside, and allow parties to pursue their case under civil jurisdiction. Contesting the appeal, at the outset, Ms. Wanda supported the conviction and sentence meted against the appellant. Disputing the first ground of appeal that the trial court had no jurisdiction, the learned State Attorney averred that the appellant was charged with the offence of False pretence contrary to section 302 of the Penal Code, Cap 16 R.E. 2022. Ms. Wanda contended that the offence was criminal because its elements were established. 9 The first element was said to be obtaining from a person anything capable of being stolen. The second element is false pretence and the third, element is obtaining money fraudulently. Ms Wanda cited the case of Hussein Mwinsheshe Sudi v. Republic Criminal Case No. 363 of 2017, CAT at DSM, in which the Court discussed the meaning of false pretence and quoted section 301 of the Penal Code, which defines false pretence. In the instance appeal, the learned State Attorney argued that the court which determined this matter had jurisdiction because the first element of obtaining money or anything capable of being stolen was established. To substantiate her opinion, Ms. Wanda referred to pages 13-15 of the trial court's typed proceedings where PW1 Grace Meela explained how she deposited TZS thirty-five million. At page 14, PW1 paid the appellant TZS 12,000,000 cash on agreement that the appellant was a director of Haraka Clearing and Forwarding Agent. At page 15, PW1 produced a pay slip dated 8/7/2016, which was admitted in court as Exhibit P1. Also, at page 27, PW3, a CRDB employee, testified that on the noted dates, TRA prepaid account owned by the appellant received the amount stated by PW1. He also produced a bank statement which was admitted as Exhibit P3. Moreover, at page 23, PW2 explained how he interrogated the appellant, 10 who admitted to had received that amount of money. On the same page, PW2 produced a cautioned statement of the appellant, the appellant did not object it. It was admitted as Exhibit P2. Furthermore, Ms. Wanda made reference to page 42, where the appellant entered his defence. He admitted to had received TZS thirty-five million from the complainant. The learned State Attorney contended that all that show that the appellant received something capable of being stolen. Thus, the first element of the offence of obtaining money by false pretence was proved. Concerning the second element, Ms. Wanda explained that PW1 paid money to the appellant, believing that he was a clearing and forwarding agent who could clear her consignments at Holili. PW1 said that she had used Haraka Clearing and Forwarding Agent twice. PW1 paid the appellant, believing that he could perform the agreed duty. It was explained that at page 22, PW2, the investigator of this case, stated that during the investigation, he authorized a letter to CRDB Bank requesting a bank statement for July 2017 for the account held by the appellant. CRDB Bank responded and attached the bank statement showing that TZS thirty-five million was deposited by Thadeus Meela into the account owned by Domisian Rwezaura. PW2 stated further that, on 11 the same date, he inquired from TRA about Haraka Clearing and Forwarding Agent. He was informed that the company was banned from operating due to various reasons, including failure to comply proper procedures. Haraka Agent was not operational for the entire period of 2016. Based on that evidence, Ms. Wanda formed an opinion that when the appellant entered into an agreement with PW1, he could not execute the agreed duties. However, he continued to assure the complainant that he could execute the same. The learned State Attorney referred at pages 42-44, where in his defence, the appellant stated that he was a petty businessman who owned a grocery store. He claimed to had borrowed the money from the complainant, PW1. Also, he admitted to had received the money but not for clearing and forwarding services. Furthermore, he acknowledged that the money was deposited into TRA prepaid account but asserted that the account was not for clearing and forwarding purposes. According to Ms. Wanda, the appellant's testimony amounts to obtaining money by false pretence with intent to defraud the complainant. 12 Countering Mr. Emmanuel’s argument that their agreement was purely contractual and that the trial court had no jurisdiction; the learned State Attorney contended that such an assertion was an afterthought, as it was not raised in the appellant’s defence. He did not say that they had contractual relationship nor cross-examine the prosecution witnesses regarding that evidence. The learned State Attorney cited the case of Robert Kadaso Mageni vs. Republic, Criminal Appeal No. 52 of 2023 (HC), which at page 8 outlined procedures for admitting cases. She concluded that in our case, the court properly admitted and determined the case to its finality. She also cited the case of Severina Exavery vs. Republic, Criminal Appeal No. 9 of 2019 (HC), which stated that all elements of the offence must be proved to determine whether the matter is civil or criminal. Ms. Wanda insisted that in the instant appeal, all elements of obtaining money by false pretence were proved beyond reasonable doubt. In response to the second ground, that the trial court failed to evaluate evidence properly and that the complainant knew the appellant as a clearing and forwarding agent; the learned State Attorney submitted that false pretence was revealed when PW2 said that Haraka Clearing and Forwarding Agent was banned and prohibited from working in 2016. Thus, 13 the argument that false pretence was not proved is not true since the appellant introduced himself as an agent of clearing and forwarding while knowing that he was prohibited from conducting such activities. Responding to the argument that mens rea was not proved; it was Ms. Wanda’s reply that the appellant's conduct of making a false representation and denying in his defence that he was not an agent of clearing and forwarding, shows that he intended to obtain money by false pretence. Regarding the argument that the concealment of the truth was not specified, the learned state attorney asserted that, based on all the evidence and findings of the court, the appellant had evil intention and thus, there was mens rea. The learned State Attorney concluded her submission by imploring this court to dismiss this appeal, uphold the conviction and sentence of the trial court. In rejoinder, Mr. Emmanuel submitted that the case of Hussein Mwinshehe (supra) is distinguishable from the present case in respect of the third ingredient of the offence of obtaining money by false pretence, 14 as evidence does not show how the money was received fraudulently or by false pretence. Regarding the testimony of the appellant at page 42, last paragraph to page 43, it was averred that the same was not contradicted. Also, it was submitted that PW1 was not convinced to believe the appellant as she said that she had previously used Haraka Clearing and Forwarding Agent, which was owned by Domisian Rwezaura. Further, Mr. Emmanuel contended that the issue is not whether the appellant received money by false pretence, rather, whether the money was paid to the appellant and whether he was conducting that business. In response to the allegations that PW2's evidence proved false pretence, the learned counsel for the appellant submitted that PW2 said that the appellant’s company was banned for the entire year of 2016. If the trial court had evaluated the evidence properly, it could have asked the following questions: 1. First, if evidence of PW2 and PW3 was credible, why the account issued to the appellant was not ceased if the company of the appellant was banned? 15 2. Second, since PW2 communicated with TRA, why he did not tender any evidence to that effect? 3. Lastly, why there was no proof that the banning was communicated to the appellant? Concerning the defence of the appellant, the learned advocate elaborated that one cannot be convicted based on a weak defence; rather, one can be convicted on the strength of the prosecution's case. Where possible, defence evidence can be used to convict an accused person where such evidence corroborates the prosecution's evidence. Mr. Emmanuel was of the view that the defence of the appellant did not corroborate prosecution’s evidence. There is no statement showing that the appellant was asked when he stopped doing clearing and forwarding business. That could prove that he was making false pretence. Moreover, it was pointed out that the testimony of the victim was not corroborated by importation documents to show that the money paid to the appellant was for clearing and forwarding and not borrowed as alleged by the appellant. Even a business license of the victim was not tendered. Concerning the case of Robert Kadaso (supra), the learned counsel contended that at the stage of the High Court, they were dealing with the 16 jurisdiction of the court at preliminary stages. It was his argument that the issue of jurisdiction can be dealt with at the judgment or appeal stage. That marked the end of oral submissions of both parties. I have carefully considered the rival submissions for and against this appeal. This being a criminal case, I will be guided by two established principles of law: One, the prosecution has a burden to prove the case beyond reasonable doubt. Two, this court, being the first appellate court, is enjoined to re-evaluate the entire evidence adduced at the trial, subject it to critical scrutiny, and arrive at its independent decision. I will address the two grounds of appeal jointly as they are intermingled. In his submissions, Mr. Emmanuel argued that the trial court had no jurisdiction because there was a contractual relationship between PW1 and the appellant to clear the consignment, as the appellant was a clearing and forwarding agent. Moreover, the relationship continued after the failure to clear the consignment, as the two entered into another agreement for repayment of the said money. Regarding the elements of the offence; the learned counsel for the appellant argued that there was no false pretence. He said that the victim was not defrauded and there 17 was no mens rea as the appellant apologized and promised to repay the money. This argument was vehemently disputed by Ms. Wanda, who submitted that the first element of obtaining money was proven through the prosecution's evidence and exhibits. False pretence was said to have been established through the testimony of PW2. Regarding the existence of a contractual relationship, the learned State Attorney submitted that this fact was neither raised nor cross-examined by the appellant during the trial. It is undisputed fact that the appellant was charged with the offence of obtaining money by false pretence, contrary to section 302 of the Penal Code, Revised Edition of 2002 (now Revised Edition 2022). As a matter of reference, the provision reads: “302. 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 person to deliver to any person anything capable of being stolen, commits an offence and is liable to imprisonment for seven years.” 18 From the above quoted provision there are two necessary elements which must be proved in order to convict the accused of the charged offence. The prosecution must prove beyond doubt: First, obtaining from any person anything capable of being stolen; and second, that the thing obtained under the first element was obtained by false pretence and with intent to defraud. Starting with the first element of obtaining anything capable of being stolen, I don’t think I will waste much time discussing this element. According to the testimony of prosecution witnesses and that of the appellant, it is undisputed fact that the appellant obtained money from the victim amounting to TZS 47,000,000/=. This is reflected through the evidence of PW1, who testified that he deposited TZS 35,000,000/= into the account bearing the name of the appellant. After few days, she paid TZS 12,000,000 cash to the appellant. That evidence was corroborated by PW2's testimony, who tendered a cautioned statement in which the appellant admitted to had received a total of TZS 47,000,000/= from the victim (PW1). The next issue is whether the said money was obtained by false pretence. This is the area of contention between the parties. The learned counsel 19 for the appellant was of the view that, there was no false pretence, and therefore, the trial court had no jurisdiction to entertain the case as criminal while it was a civil case. On the other hand, Ms. Wanda submitted that false pretence was established by the prosecution. The term “False pretence” is defined under section 301 of the Penal Code to mean: “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, is false pretence.” In other words, false pretence is the act of deliberately misrepresenting a fact with intent to deceive someone for the sake of obtaining something capable of being stolen. Due to such misrepresentation, the victim acts or makes a decision which he could have not otherwise made had he known the truth. In the case of James Duru @ Nade vs Republic (Criminal Appeal No. 100 of 2020) [2023] TZCA 17642 (22 September 2023) Tanzlii, at page 6 the Court of Appeal observed that: 20 “…it is glaring that the words "by any false pretence" is an essential ingredient of the offence of obtaining money by false pretence with intent to defraud…” In the case at hand, it is prudent to scrutinize the prosecution's evidence vis-à-vis the above definition of false pretence to determine whether the prosecution proved this crucial element. I have thoroughly analysed the entire evidence; at page 22 of the typed proceedings, PW2 testified that: “...on the same date I outfoxed to TRA Moshi requesting for the legality of Haraka Agency which Domisian Rwezaura said he is working with, TRA replied that Haraka Agency was banned/prohibited from working due to various reasons including working without following proper procedure. For the whole period of 2016 the Company (Haraka Agency) was not working...” The above piece of evidence, if analysed properly, will irresistibly point to the fact that the element of false pretence was established beyond doubt because of the following explanations: First, at the time when the money was advanced to the appellant for clearing the consignments, the company was not operational as per the quoted evidence above. That 21 means the appellant received the money while knowing that his company was already prohibited from working. The fact that the appellant failed to clear the consignment proves that his company was barred by TRA from working. Second, the evidence that the appellant company was banned from working for the entire period of 2016 was never cross-examined by the appellant's counsel. It is a well-established principle of law that failure to cross-examine on an important issue implies acceptance of such fact. Cross-examination is the primary method for testing the accuracy and truthfulness of the evidence presented. The effect of failure to cross examine some aspects was discussed in the case of Boay s/o Bura vs Republic (Criminal Appeal No. 570 of 2021) [2024] TZCA 717 (13 August 2024) Tanzlii, in which the Court of Appeal emphasized that: “…the omission or neglect to challenge the evidence-in- chief of a witness on a material or essential point through cross-examination would imply an acceptance of that evidence as truthful, subject to its being challenged as inherently implausible or probably untrue…” 22 In the present matter, since the appellant did not challenge the fact that his company was prohibited from working for the whole period of 2016, I am convinced that raising it at this stage is an afterthought. This aligns with Mr. Emmanuel's complaint regarding evidence of PW2. The learned counsel emphasised that if the evidence had been properly analysed, the court would have discovered that PW2's evidence was not credible as he did not tender any supporting documents. With due respect to the learned counsel, the appellant failed to challenge the important aspect of PW2's evidence. Moreover, it is an established principle of law that every witness is entitled to credence and his evidence must be believed unless there is a plausible reason for not doing so. See the case of Boay Bura (supra) at page 17. Thus, since PW2 testified that Haraka Company was banned from working, he is entitled to credence. The learned counsel for the appellant insisted that there was a contractual relationship for clearing and forwarding the consignment. That, after the appellant had failed to clear the same, they entered into another agreement for re-payment of the paid amount of money. According to Mr. Emmanuel, the case ought to be treated as civil case and not a criminal case. 23 Respectfully to Mr. Emmanuel, the existence of an agreement is not sufficient to establish that the case was of civil nature where the element of false pretence has been sufficiently proved. It is the strong observation of this court that intention plays a crucial role. The offender must have intended to deceive, knowing that what he/she presents is false, and the victim must have relied on those misrepresentations when entering into the transaction, as it was in this case. Mr. Emmanuel invited the court to find that the prosecution evidence did not prove false pretence just because the victim testified that he communicated with the appellant, who promised to repay the money as he encountered problems (page 14 of the proceedings). The agreement to repay the money or any subsequent agreement does not negate the fact that the money was fraudulently obtained by the appellant. I am aware that it is illegal to charge people on non-existent offences or matters which are purely civil in nature. However, in the present case, the elements of obtaining money by false pretence as provided under section 302 of the Penal Code were met beyond any shadow of doubt. 24 Having decided the grievances raised in the grounds of appeal negatively, it goes without saying that the grounds of appeal lack merit. For the foregoing reasons, the appeal is hereby dismissed in its entirety. It is so ordered. Dated and delivered at Moshi this 24th day of September 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 24/09/2024 25