20180704 TZHC Dodoma

I

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 3 OF 2018 (Original Criminal Case No. 255 of 2016 of the District Court of Dodoma at Dodoma) GAUDENSI THOBIASCHUWA............................................APPELLANT

VERSUS THE REPUBLIC ............................................................. RESPONDENT

JUDGEMENT 161512018 & 41712018. H. H. KALOMBOLA, J.: The judgment is in respect of an appeal which was lodged by GAUDENSI THOBIAS CHUWA (appellant) having being dissatisfied by the decision of District Court of Dodoma in Criminal Case No. 255/2016. He filed the following grounds of appeal:- 1 L THAT, your honor Judge the trial court erred in law- and fact when did not consider as to whether there was sufficient evidence on record to support conviction beyond all reasonable doubts. THAT, your honour Judge the learned trial Resident Magistrate erred in law and fact for basing conviction on illegally evidence. For instance the evidence of PW9 on respect of the certificate of seizure was wrongly admitted since the requirement of section 38(3) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002 was not observed. There was no any caution statement which proved that the appellant confessed before PW9, the said witness he only said the appellant confessed to him which was not proper. There are was no evidence to prove that the amount of money which is four million (4,000,0001=) was withdrawn by the appellant so as to repay to the PW1 since there is no any evidence which prove that on the material time the appellant made such transaction as alleged by prosecution case in that particular bank. 2 THAT, the trial Court erred in law and fact when did not consider that PW1 alleged

that the monies which she used to send to the appellant was sending through two ways Bank Account and culler phone surprisingly no any print out from those company was tendered to corroborate PW1 testimony. THAT, your honor Judge the trial Court erred in law and fact when acted on the contradictory evidence due to the fact that PW1 was complaining about obtaining money by false pretense and obtaining goods by false pretense while the evidence given by PW8 his evidence is about obtaining goods by false pretense see Pg. 49 of the proceedings. THAT, your honor Judge the trial court erred in law and fact when did not fake in account that the evidence of PW2 was supposed to be corroborated with other person whom was present when the appellant sent the proposal letter for the promise to marry. (i) But again the said letter was not read loudly before the Court so that the accused person now the appellant the prosecution side and the court itself to hear what has been written on the said letter a merely admitting without to read it loudly in court was inconsistence with the law. 3 The prosecution case did not tender any document which show that appellant handled over the amount of bride price as the first installment since the prosecution case alleged that the appellant paid Tshs. 500,000/= out of 1,000,000/= as they agreed to be the total amount of bride price for instance an

acknowledge letter which show or indicate on how the money was handled over plus the signature of the participants. Again there are was no any evidence which prove that the appellant sent a proposal letter to the parents of the PW1 and the meeting of discussing that letter was held at the home of PW1 surprisingly among of the alleged person alleged to be present during that particular time was not even one among of them was summoned so as to come and proved if the said allegation was true.

6. THAT, your honor Judge the trial court erred in law and fact when did not consider that the facts of the case given by the prosecution case does not constitute the element of the offence of obtaining money by false pretense the all of facts it was more suggestive that establishing the alleged offense. 4 7. THAT, your honour judge the said Bank Statement was wrongly - admitted since the appellant objected it during the trial that could not be tendered as it appear to be forced and the court refused to work on such objection so as to ascertain as to whether the said Bank Statement was genuine not. THAT, your honor Judge when you pass through the Judgment of the trial Court imposed a condition that the sentence before to start should be confirmed by the High Court of Tanzania Dodoma, surprisingly the appellant started to execute the said punishment without conformation of the High Court as ordered by the trial as per section 170 (2) (c) of the Criminal Procedure Act, Cap. 20 [R.E. 2002]. THAT, your honour Judge the trial court erred in Law and fact when ignored my defense and relied upon the prosecution case only. THAT, your honor Judge I do pray to be present at the hearing date of this appeal. The appellant had nothing to add on the day of hearing. 5 In reply Ms. Magili State Attorney opposed the appeal and submit on the 1 ground of appeal that the trial Court did not error

in its decision as it considered prosecution evidence (see page 17, 18 and 19 of the judgment) and find the appellant guilty of committing the offence and convict him. That the trial court did not find the appellant guilty of committing the 2nd count this shows, the trial court evaluated the evidence before it and find the prosecution case was not proved beyond reasonable doubt on the 2nd count. When submitting on the 2nd ground of appeal, Ms. Magili said on item (i) that it shows exhibit was tendered according to procedure (see page 56 of the proceedings) and appellant did not challenge correctness of the same only said the money was not genuine, hence section 38 (3) of Criminal Procedure Act was complied with. As on item (ii), that through proceedings and judgment, the trial court did not consider that there was Caution Statement or not tendered,hence this point has no merit. On item (iii) she submitted that the trial court did not misdirect itself (see page 27 of the proceedings). 31 Going to the 3rd ground of appeal Ms. Magili submitted that on issue of printout (see page 29 of proceedings) NMB officer who testified before the trial court as PW3 tendered as exhibits appellants Bank Statements showing transactions of money from PW1 to appellant's account. Therefore it was proved that the money was transferred from PW1 account to that of appellant. It is submitted on the 4th

ground of appeal that each witness was called to prove an issue he/she knows, therefore this ground lacks merit. As well she found the 51h ground of appeal without merit because PW2 evidence is corroborated by the evidences of PW1 and PW3. It is thus not true PW2's evidence was not corroborated. If is further submitted that law does not require dowry processes to be recorded. Since PW2, PW1 and PW3 testified in court they pray this court to find there was ample evidence to prove the case against the appellant. It is submitted on the 6th ground of evidence that it is clearly shown at pages 10, 11 and 12 of proceedings that appellant created love affairs with PW1, they presented themselves to PW1 parents and dowry was offered, indicating appellant would marry PW1. Later appellant deceived PW1 that they would go to live in Dar 7 es SaIadm as wife and husband. He (appellant) took from PW1Shs. 13,870,000/= for purpose of preparing their life in Dar es Salaam. After appellant received the money, he stopped PW1 from looking for him as he was having his wife and children. It is thus insisted, appellant committed the offence. In regard to the 7th ground of appeal, it is submitted that PW4 who is NBM Officer proved to court the documents at issue were genuine, they were not forged. Ms. Magili further submitted on the 8th ground of appeal that it has no merit as the trial magistrate at

page 24 of the judgment stated that the sentence was to be confirmed by the High Court and the same was confirmed. Thereafter appellant started serving the sentence. It is their submission that 9th ground of appeal has no merit as at page 20 of judgment his defense was evaluated before a decision was reached. They finally pray for dismissal of the appeal Appellant rejoined that documents from Vodacom were not taken to Court and PW1 's testimony is not trustworthy. I have considered the submissions,the petition of appeal and the record of the trial Court now I will consider the same on their merits and the law. First of all I find the trial Court erred in finding the appellant guilty of the 1st count and convict him. I start by quoting Section 302 of the Penal Code [CAP 16 R.E. 2002] which reads:- "Any person who by any false pretense and with intent to defraud, obtains from any other person anything capable of being• stolen, is guilty of an offence and is liable to imprisonment for seven years" The appellant in his petition of appeal generally challenged the prosecution evidence sayng. the evidence did not prove the prosecution case beyond all reasonable doubt. And that the facts of the case given by the prosecution side did not constitute the elements of the offence of obtaining money by false pretense hence the offence was not established. Mainly the weight of the case relied

on the evidence of PW1 who was the victim of this offence. PW1 at page 17 of the proceedings, 2nd paragraph she stated in examination in chief that; ".He used to be my fiancé He came in our home on 1211212015. He came with for marriage proposal to my family. He came with his brother and "MSHENGA".....Letter was received by my parents". From the evidence of PW1 as whole, there was love relationship between PW1 and appellant, which relationship resulted to this case because appellant did not marry PW1 after he introduced himself to PW1 parents and pay dowry as appearing in last paragraph last line of page 17 of proceedings where PW1 stated:- "They paid some of the money for Mahari...." A question is, can appellant be held liable? An answer is obviously no, as section 305 (a) of the Penal Code of Cap. 16 provides:- "S. 305 Any person who_ (a) in incurring, any debt or liability, obtains credit by any false pretense or by means of any other fraud;" Going by the wording the above provision of law, appellant had no liability and did not obtain credit by false pretense or by means of fraud because the evidence show that appellant did only promised 10 to marry PW1 but he did not and this cannot put him to face criminal liability. In order the offence of false pretence to stick, the prosecution must establish two ingredients namely false pretence and intention to defraud. As I have

explained hereinabove there is nothing in evidence to suggest that the appellant had intended to defraud PW1 by false pretence and obtain the said amount of money as shown in the charge sheet. Promise to marry and the sequence of events as was explained by PW1 cannot in any way make appellant face a Criminal Case, rather PW1 would have preferred a Civil Litigation. Having considered all the facts surrounding this case, I am therefore of the view that the appellant prosecution case was not proved beyond all reasonable doubts. In the event, I quash and set aside the conviction, sentence and orders thereto. The appellant is to be freed forthwith unless held for another lawful cause. It is so ordered. 11 - ezp k-j-

KALOMB OL

JUDGE Ve \ L 4/7/2018 T' DATED at DODOMA this 4th day of July, 2018 H. H. KALOMBO A ' S Li JUDGE 4/7/2018 12 Date - 4/7/2018: Coram - Hon. Madam H. H. Kalombola, J. Appellant - Present. Respondent - Mr. Sarara, State Attorney - Present. c/c - H. Nyuda. Court - Judgment read today 4/7/2018 in the presence of Appellant and, iffafa.:State Attorney for Respondent Republic. / ff Q / 4 . / H. ft KALOMBOLA k

JUDGE ................ 7' 4/7/2018 Court - Right of Appeal explained. kit H. H. KALOMBOLA ,4

JUDGE \ 'n\ 4/7/2018 \ 13