elias babu vs side ngonyani 2016 tzhc 2169 4 may 2016

IN THE HIGH COURT OF TANZANIA

AT SONGEA PC CRIMINAL APPEAL NO. 2 OF 2016 (Arising from the Judgment of the Mbinga District Court in Criminal Appeal No. 48 of 2015, originating from the Judgment of the MatiriPrimary Court in Criminal Case No. 109 of 2015) ELIAS BABU...................................................................... APPELLANT Versus SIDE NGONYANI........................................................... RESPONDENT

JUDGMENT Last Order: 25™ April, 2016 Date of Judgment: 4™ May, 2016 CHIKOYO, J. This is a second appeal. Originally, at the Matiri Primary Court, the appellant was charged and convicted with an offence of obtaining goods by false pretences .contrary to section 302 of the Penal Code [Cap. 16 R.E 2002]. Upon being convicted, he was sentenced to pay a fine of Tshs. 100,000/= or to serve three (3) months in jail in default of paying the said fine, and also the appellant’ was ordered to pay the respondent Tshs. 1,665,000/= as a compensation. The appellant upon being convicted and sentenced as stated above, he was aggrieved but he unsuccessfully appealed to the District Court, hence he has decided to appeal herein against the decision of the District Court, hence this is his appeal. The appellant has raised three grounds of appeal, however Mr. E. Ndunguru, the learned Advocate for the appellant abandoned the third of appeal and only argued the first and second ground " * of appeal. For the sake of clarity, the second ground of appeal states as follows; 1. That the appellate court erred in law and facts to uphold the •i decision o f the tria l Prim ary Court while there is no any i « valuation report tendered by the respondent to prove that the alleged sacks had the value claim ed by the respondent 2. That the appellate court erred in law and facts to held (sic) in favour o f the

respondent while the evidence*in the records proved that the respondent case had a lo t o f doubts and the prosecution case has failed to prove beyond reasonable doubts. The facts leading to this appeal are as follows;According to the testimony of the respondent (the complainant at the Primary Court) as far as the court records are concerned, alleged that in 2014, the appellant asked the respondent to send the maize for selling as he had got the chance to sell them. It was then the respondent handled 37 sacks of maize valued at Tshs. 1,850,000/= to the appellant could send to the place called BAM for selling those maize. It was alleged that, the said incident was witnessed by SAMWELI HAULE (PW2). The appellant did not give back the money upon selling* the said sacks of maize; as a result the respondent and PW2 reported the matter to the Village Chairperson one IVO WILLIAM KOMBA (PW3), and later the appellant was arrested and he was arraigned in court to face the above stated charge. On the other side, the appellant strongly dented to have committed the alleged offence; instead he insisted that, the respondent was supposed to give back his money and not otherwise. At the end of the trial, the appellant was convicted and sentenced as stated in the above. At the hearing of this appeal, Mr. E. Ndunguru the learned Advocate « • appeared for the appellant while the respondent

appeared in person. Mr. E. Ndunguru in his submissions supporting the 2nd ground of appeal argued that, the testimonies of PW1 and PW2 did not prove the alleged offence beyond reasonable doubts since their testimonies did not establish as to whether there was a mens rea, and in support this position he referred this court the cases of Jones Ndunguru Versus Republic [1984] T.L.R 284 and Msafiri Kulindwa Versus Republic [1984] T.L.R 276. Regarding to the 1st ground of appeal, Mr. E. Ndunguru argued that, the trial court ,was wrong to order the appellant to pay the respondent Tshs. 1,665,000/= being the actual value of the said sacks of maize since the 4 4 respondent claimed T$hs. 1,850,000/, and more so, there wa$ no any valuation report to prove the said fact, and also there was no proof as to whether the appellant was given the said sacks of maize. At the end, Mr. E. Ndunguru prayed this appeal to be allowed. In reply the respondent had nothing more to submit apart from insisting j j that, at the trial court he had sufficient evidence that is why the appellant was convicted and sentenced therein, and this can be seen when this court re-visit the entire court records. He then prayed this appeal to be dismissed. As I have stated earlier that this js the second appeal, basically I am alive with the legal position that, this court can interfere with the concurrent findings reached

<by the lower courts only if there has been a misapprehension of the evidence in a such manner as to make it clear that the conclusions of facts arrived at were based on incorrect premises or there is been a miscarriage of justice etc. See; Samola Theobard Versus Republic, Criminal Appeal No. 234 of 2014 (CAT-BK) 4 * (Unreported). Thus, the issue here is whether this appeal has merit or not. Considering the above stated legal position, I had to go through the entire court records and submissions from both parties, where I find this appeal has merits, that is the concurrent conclusions arrived by the lower courts were based on incorrect premises, thus I must fault the lower courts 4 findings. I say so because as far as the 1st and 2nd grounds of appeal are concerned, I full agree with Mr. E.‘ Ndunguru that the prosecution side failed to prove the alleged offence beyond reasonable doubts. The testimony of PW1 and PW2 merely suggested that the respondent handled the said 37 sacks of maize to the appellant, but there was no documentary evidence to prove the alleged handling of those maize, and the reason advanced by the respondent for lack of any documentary evidence was that, he merely trusted the appellant, however I find this defense is not justified at all. More so it is uncertain on how the respondent came to be aware that BAM Ltd had already sold the respondent's sacks of

maize, if really the appellant took those maize. I could have expected the respondent to call in court a witness from BAM Ltd to confirm or corroborate what PW1 and PW2 had testified. Under the instant circumstance I find it appropriate to draw an adverse inference against the prosecution side, and the benefits must be • 4 resolved into the appellant's favour. In line to the above, in its totality the testimonies of the respondent and PW2 suggested that, when they sent the appellant to PW3, he admitted on « » * the said allegations and he was ready to pay the amount of money 4 6 obtained from 37 sacks of maize, hbwever the testimony of PW3 does not corroborate that account instead the PW3's testimony suggests that, even though the appellant admitted to have taken the said sacks of maize but the appellant was owing the respondent some money but he did not state * i how much. Under those circumstances, ! find it inappropriate to rule out as to whether the appellant committed the alleged offence since an element of m ens rea in .this case as argued by Mr. E. Ndunguru was not established and proved accordingly, thus the instant charge cannot also stand at all. I could end up here, but since I am alive with the cardinal principle in criminal cases that the burden of proving any offence is vested into the prosecution side beyond reasonable doubts, if that is the law in the

instant appeal, as correctly argued by Mr. E. Ndunguru there is no any exhibit tendered by the respondent to prove that the said maize was sold at BAM Ltd and in the absence of that evidence, considering the fact that, there » •« was no witness brought by the respondent from BAM Ltd as I have stated earlier, thus at this juncture I find it inappropriate to agree with the concurrent findings from the lower courts that the appellant to pay Tshs. 1,665,000/= to the respondent as a compensation, because there is no ♦ * basis for that an order. See; section 110 (1) and (2) of the Evidence Act [Cap.6 R.E 2002]. In the foregoing stated reasons, I find this appeal has merit since the prosecution side failed to prove the alleged offence beyond reasonable doubts. However for the sake of clarity in relation to the circumstances of the instant appeal, I find this matter could have been well dealt in a civil case as opposed to a criminal case. In the event, I hereby interfere the concurrent findings arrived by the lower courts by quashing and setting aside the decision of Mbinga District Court in Criminal Appeal No. 48 of 2015 which confirmed the above stated conviction, sentence and order of compensation imposed by Matiri Primary Court in Criminal Case No. 109 of 2015 against the appellant as far as the offence of obtaining money by false pretences under section 302 of the Penal Code (supra) is concerned. This appeal is allowed, and ELIAS BABU, the appellant is hereby set free ■ ■» and the paid fine of Tshs. 100,000/= and compensation of Tstis. 1,000,000/= be refunded to him. It is so ordered.

JUDGE 04/05/2016 Judgment delivered in chambers in presence of Mr. B. Mapunda Learned Advocate for the appellant who was also present in person, the respondent in person and Mr. Komba Court Clerk, this 4th day of May, 2016. COURT: Right of appeal explained. :-f V;.'. /

JUDGE 04/ 05/2016