ELIAS MATHIAS SIMBILA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 77 OF 2023 ELIAS MATHIAS SIMBILA……………............................APPELLANT VERSUS REPUBLIC……………………………………………………RESPONDENT [Appeal from the Decision of District Court of Kahama at Kahama.] (Hon. C.L. Chovenye SRM) dated the 28th day of April, 2023 in Criminal Case No. 385 of 2022 ----------- JUDGMENT 18th April & 20th June, 2024. S.M. KULITA, J. This is an appeal from the District Court of Kahama. The appellant herein above was charged for “Obtaining money by false Pretense” contrary to sections 301 and 302 of the Penal Code [Cap 16 RE 2022]. He was convicted and sentenced to 3 (three) years imprisonment. Aggrieved with both, conviction and sentence, the appellant lodged this appeal basing on 5 (five) grounds which can be summarized into 4 (four) as follows; 1 1. That, the trial court was wrong to convict him while he had pleaded not guilty to the charge. 2. That, the trial Magistrate convicted the Appellant on poor, contradictory and hearsay evidence given by the prosecution. 3. That, the defense evidence was not considered in the trial court’s judgment. 4. That, the prosecution side didn’t call as witnesses the local leaders (WEO and Chairman) of the area where the scene is located which is Busoka in Inyembe Village, and that he was not given right to be heard. The appeal was disposed of orally. While the Appellant is unrepresented, the Respondent is represented by Ms. Rose Kimaro, State Attorney. In his oral submission in support of the appeal, the Appellant sought for the grounds of appeal that he has narrated in his Petition to be adopted as the submission for his appeal. He concluded by praying for the said appeal to be allowed, and he be acquitted. In the reply thereto, the State Attorney, Ms. Kimaro submitted in respect of the 1st ground that the Accused person’s (Appellant’s) act of pleading not guilty to the charge is not an indication of innocence, that the Accused should 2 thus be acquitted. It is the evidential weight which determines the guilty or innocence of the Accused, she argued. She concluded that the said ground of appeal has no legal weight. As for the 2nd ground whose essence is that the case at the trial court was not proved beyond all reasonable doubts, the counsel stated that the evidence adduced by the prosecution side during trial is not hearsay as alleged by the Appellant. She said that it was direct as per the requirement of the law. Further submitting on that ground the counsel stated that the lower court record transpires that the real holder of the land in question, of which the appellant herein sold to the victim (Mabula Makoye - PW3), is one Salma Ulimwengu (PW1). The Counsel submitted that PW1 had purchased the said pierce of land, sized four acres on 26/11/2010, from four different persons of the same family at the tune of Tsh. 2,400,000/= in totality. She said that this is according to the testimony of PW1 herself. The State Attorney further stated that PW1, through the surveyor divided the said premise into 14 plots. According to the State Attorney, the said arguments were supported with the documents which Salma Ulimwengu (PW1) tendered to court as exhibits, to wit, Exhibits P1- P4 which prove that the said PW1 is the real owner of 3 the said farm of which she thereafter made it to be surveyed and 14 plots were found. The Counsel further submitted that, in his defense the appellant alleged to have purchased the said premise from one Shabani Mpemba and Zuhura Nicholas and that he has been using it for cultivation since 2008. However, the appellant never tendered any document to prove the said allegations, nor did he call any witness to prove the same, the counsel argued. As for the issue of defense evidence not being considered in the trial court’s judgment, Ms. Kimaro submitted that the said allegation is false. She said that page 14 of the impugned judgment transpires that the appellant’s defense was considered before he was found guilty and convicted accordingly. She said that the defense evidence according to the record was that he had purchased the premise in question from somebodies Shabani Mpemba and Zuhura Nickolas but he had no proof on that. The State Attorney argued that the trial Magistrate analyzed that the Appellant never tendered any document nor did he call any witness to prove the same. She concluded that, as the defense case was actually considered, she finds this ground of appeal unmeritorious as well. 4 Submitting on the ground that, the prosecution side didn’t call as witnesses the local leaders (WEO and Chairman) of the area where the scene is located which is Busoka in Inyembe Village, the State Attorney stated that, as the testimony of PW1 (Salma Ulimwengu) was sufficient to prove that she was the lawful owner of the premise and that the Appellant was not, there was no need of calling those other persons to prove the same thing. She averred that the law regards the credibility of the evidence, not the number of witnesses. The State Attorney also disputed the Appellant’s allegation that he was not given right to be heard. On this she submitted that pages No. 43 – 49 of the trial court’s proceedings transpire that the Appellant was heard during trial. She added that after completion of his testimony the Accused (Appellant) addressed the court that he had no witness to call, hence the defense case was accordingly closed. That was the end of submission by the State Attorney, Ms. Rose Kimaro who concluded by praying for the appeal to be dismissed for having no merits. The Appellant had no rejoinder submission. Hence hearing ended up there. 5 From the above submissions, I find the issue to be determined is whether the appeal is meritorious. I find no evidential credibility on the statement made by the accused person which was tendered to the trial court and admitted as Exhibit P7, as its content does not show confession of the author to have committed the crime, but admission to have received the said Tsh. 11,000,000/= from the victim, Mabula Makoye (PW3) which was paid to him for the sale of the disputable pierce of land of which he alleges to be his property. Confession statement must comprise the Accused’s full admission that he actually committed the offence that he is alleged to have committed. The same applied to the copy of document purported to be a settlement deed (Exh. P6) purported to be the appellant’s consent to pay back the said sum of money to the victim (PW3). Had it been an evidence on confession, it could have been taken as a Caution Statement. The impugned judgment also transpires that, while at the police station the Appellant herein (DW1), the Victim (PW3) and their witnesses signed a document purported to be the agreement for the Appellant to pay back the money that he had received from PW3 amounting Tsh. 11,000,000/= by 6 15/1/2023. The Appellant challenged that, the said document was not freely and voluntarily made by him, but he did so under the compulsion of the police. I can agree with the Appellant on the validity of the said document. As it was for the exhibit P7, had that been the case, that could also be incorporated in the Accused’s (Appellant’s) caution statement, if it could be there, as a part of his confession, admitting to have committed the alleged crime. On this, I find the formal procedure of recording the statement of a person who confesses to have committed the crime was not formerly adopted. The fact that the said two documents were admitted as exhibits and the same had been wrongly considered by the trial court to convict the accused (Appellant), I expunge them from the record. Having expunged the said two documents from the record, are the remaining evidence sufficient to convict the appellant? The answer is not far to fetch. Starting with the 1st ground of appeal, as it was submitted by the State Attorney, Ms. Kimaro, that the Accused person’s (Appellant’s) act of pleading not guilty is not an indication of innocence, that the Accused should thus be acquitted. It is the evidential weight which determines the guilty or 7 innocence of the Accused person. That being the case, I find the appellant’s argument on this issue has no legal weight, hence the ground of appeal is overruled. As for the allegation that the defense evidence was not considered in the trial court’s judgment, I have the following observation; I went through the impugned judgment, particularly at page 14 and noticed that the defense evidence was considered before he appellant was found guilty and accordingly convicted. According to it, the defense evidence was that the Appellant alleged to have purchased the premise in question from somebodies Shabani Mpemba and Zuhura Nickolas, but he had no evidential proof on that. The Magistrate at the trial court made it clear that the Appellant never tendered any document nor did he call any witness to prove the said fact. In that sense, this ground of appeal is unmeritorious as well. The Appellant also alleged that, the trial court erred in law to convict him while the prosecution side didn’t call as witnesses, the local leaders (WEO and Chairman) of the area where the scene is located which is Busoka in Inyembe Village, and that he was not given right to be heard. It is a trite law that the one who alleges must prove. See section 110 of the Evidence Act. In his testimony during trial the Appellant mentioned the said local 8 leaders as the persons who witnessed the sale agreements while the premise was sold to him by Shabani Mpemba and Zuhura Nickolas on 12/08/2008, meaning thereby the property was transferred to him. If the Appellant believed that the said fact was true, it was upon him to call those persons as his witnesses. It was not duty of the court or his opponents to do so. As for the issue that he was not given right to be heard, the record is vivid at pages No. 43 – 49 of the trial court’s proceedings that the Appellant was heard during trial, and that, after completion of his testimony he himself addressed the court that he had no witness to call, thus, the defense case was accordingly closed. In that sense, there was no infringement of the Appellant’s right to be heard by the trial court. I find this ground with no legal weight as well. Back to the issue of proof of the case at the trial court. According to the records and submissions made by both parties to this appeal, there is no dispute that the Appellant herein actually sold the said premise to the victim (PW3). What the Appellant herein disputes, is that the said premise was his property. However, the said allegation by the Appellant was supposed to be supported with the evidence from him and/or his witnesses. It is a principle of law that “whoever alleges must prove”. This is the dictate of section 110 9 of the Evidence Act. It was also held in the case of HERRY MKOLONGO & HOSSANA WAMBURA V. KIKUNDI CHA TUNAWEZA, PC Civil Appeal No. 229 of 2018, HC DSM District Registry. In the matter at hand the defense evidence was that the Appellant had purchased the premise in question from somebodies Shabani Mpemba and Zuhura Nickolas. However, the trial Magistrate considered the same with no merit for lack of proof. The Magistrate also considered the fact that the appellant never tendered any document nor did he call any witness to prove that he was the holder of the disputable premise before he had sold it to PW3. In my view, I find all those observations by the trial Magistrate lawful, hence, I cannot disturb her finding. Further to that, the record transpires that PW3, the victim, testified for and tendered to the trial court exhibit P5 which comprises the Contract of Sale for the disputable land/farm headed “MKATABA WA KUUZIANA SHAMBA” dated 24/10/2022, between the Appellant herein (Elias Mathias Simbila) as the Seller and Mabula Makoye Lushishili (PW3-the victim) as the Purchaser. The said Exh. P5 also comprises the contract of sale for the said land headed “MKATABA WA KUUZIANA KIWANJA/SHAMBA” between the Appellant herein 10 as the purchaser and two persons purported to be sellers, namely, Shabani Mpemba and Zuhura Nickolas, dated 12/08/2008. As stipulated herein before, the appellant never tendered any document in that respect. As the parties to the contract, obvious the Appellant and the victim (PW3) had the copies to the contract that they had entered. However, unlike the victim (PW3), the Appellant herein never tendered any document in that respect nor did he say anything in his defense about those documents tendered by PW3. It is my considered view that the Appellant (DW1) provided to PW3 the said document dated 12/08/2008 just for the purpose of entrusting PW3, as well as the Advocate who witnessed and prepared the contract, Zena Anthony Kazimoto (PW2) from Simbangwilimi & Associates Advocate, that he was the lawful owner of the premise that he was about to sell to PW3, while in real sense it was not true. The record transpires that the victim (PW3) tried to find the Appellant herein through a mobile phone immediately after the arise of conflict in respect of the sold premise, that he (seller/appellant) was not the lawful owner of the said land. The appellant’s reply was that, he was far away, but it was not 11 true as he was then arrested by police there at Kahama. This is according to PW3 whose testimony on this fact was not disputed by the Appellant during trial, neither in the cross-examination nor during the defense hearing. The implication on this scenario is that the Appellant knew that he had done wrong, hence that was a trick of escaping the arrest. In short, apart from the prior mentioned faults in the prosecution case, which led to the expunge of the defective confession/caution statements of the Accused/appellant (Exhibits P6 and P7), I still find the remaining evidence of the prosecution case at the trial court strong. The following are the reasons; The documents which were tendered to court as exhibits; First, the Sale Contract between the purchaser one Salma Ulimwengu (PW1) on one hand and the sellers namely Gaudensia, Masumbuko, Mpemba and Issa Nickolaus (Exh.P1) on the other hand; Secondly, Identification letter for Salma Ulimwengu (PW1) to the Land Office Kahama dated 12/01/2015 (exh. P2), and the Identification letter for Salma Ulimwengu (PW1) to the Town Council Director dated 12/02/2019 (exh. P3); Thirdly, Annual Land Bills receipts by PW1 for 2019-2023 (exh. P3); are sufficient proof that the said land was the property of Salma Ulimwengu (PW1) and not the Appellant. 12 As for exhibit P5 which comprises the Contract of Sale for the disputable land/farm dated 24/10/2022, between the Appellant herein (Elias Mathias Simbila) as the Seller and Mabula Makoye Lushishili (PW3-the victim) as the Purchaser, has not been disputed by the Appellant, save for the allegation that the said farm was his (Appellant’s) property. But, the said Appellant provided no proof on that. He never tendered any exhibit nor calling any witness to prove the said allegation. This is an indication that, before he had sold the said pierce of land to PW3 the Appellant had a knowledge that the same was not his property. For the aforesaid reasons, I find the prosecution case at the trial court was successfully proved beyond all reasonable doubts. Hence, the Appellant was rightly convicted and sentenced by the said Court. In upshot, the appeal is hereby dismissed. Conviction and sentenced entered by the District Court are therefore upheld. S.M. KULITA JUDGE 20/06/2024 DATED at SHINYANGA this 20th day of June, 2024. 13 S.M. KULITA JUDGE 20/06/2024 14