20170816 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL No 390 OF 2016 (Original Criminal Case No 251 of 2015, of llala District Court at Samora Avenue) HUSSEIN MWISHEHE SUDI ............................................APPELLANT

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

JUDGMENT Date of last Order: 19 /7/2017 Date of Ruling: 16/8/2017 Munisi,J. Hussein Mwishehe Sudi, was arraigned before the District Court of II ala at Samora Avenue for the offence· of obtaining money by · false pretenses contrary to sections 302 of the Penal Code, Cap 16 · RE 2002. It was alleged that on 27/6/2015 at CRDB Ba.nk, Azikiwe Branch within llala District, Dar es Salaam Region, by false • pretenses and with intent to defraud, appellant obtained cash, Shs. .12,000,000/= from one Godwin Mwemezi M":"'ombe~i purporting tnat he was selling fishing nets and boat engines, a fact which he knew to be false. To prove the allegation, the prosecution called four witnesses while the appellant testified on his own behalf and did not call any witness. At the conclusion of the trial, the presiding magistrate found the prosecution had proved its case against the appellant to the required standard 1 ----= ·---- - c - - - - - : - - - - · - ~ , - -. . - . - - - c - - · - - - -·· -·· ... -~- -- -- - ---- .. ........ - ·-- .. ·-···- ~ , ~ and convicted him as charged and sentenced him to five years imprisonment. Aggrieved by the decision, the appellant through the services of Dr. Kamanija, learned counsel who also partly · represented him before the trial c'ourt has filed an appeal· comprised of 11 grounds of appeal. Having studied them carefully the raised complaints revolves around the following areas: ' 1. That the magistrate erred in failing to furnish appellant with the complainant's statement thus offending the provisions of sections 9(3) and 10(3) of the Criminal Procedure Act (CPA).

2. The magistrate failed to evaluate the defence of alibi raised by the appellant.

3. That the magistrate failed to analyze the defence evidence objectively.

4. That the magistrate erred in believing PW 1 while the same· did not tender any document from Azikiwe Branch with regard to the money credited therein and withdrawn by PWl on 27/6/2015.

5. That the testimonies of PW 1 and PW 4 were conflictirig on . the issue of which branch was the money deposited, Azikiwe or Vijana Branches.

6. That the prosecution evidence was not credible.

7. That no cautioned statement was tendered by PW3 and PW4.

8. That the evidence of PW2 and PW4 was hearsay.

9. That appellant was not properly identified . • 10. That the compensation order issued by the magistrate was wrong as there was no proof that the same was obtained .by the appellant. On 19/7/2017, when the appeal was called on for· hearing, Dr. Kamanija, learned counsel appeared for the appellant, while Miss · Rachel Magambo, learned Senior State Attorney appeared for the respondent/Republic. 2 Dr. Kamanija contended that the conviction entered by the trial - court was erroneous because the evidence by the prosecution. was too weak to support it. Submitting in support of the 1st ground of appeal, he argued that failure by the trial magistrate to furnish the appellant wit_h the complainant's statement -PWl offended the provisions of section 9 (3) and 10(3) of the CPA. On the 2nd complaint, he argued that the trial magistrate failed to evaluate the alibi advanced by the appellant in his defence. He cited the · cases of Charles Samson V R (199.0) TLR 39 and Alfeo Valentino V R, Criminal Appeal No 92 of 2006, Yusuf Nchira V the OPP, Criminal Appeal No. 174 of 2007 (both unreported) and Pia Joseph V R (1984) TLR 161 as supporting the proposition that it is the duty of the court to consider the defence of alibi whenever it is raised. On the 3rd complaint, the learned counsel attacked the judgment of the lower court on the ground that the magistrate failed to consider objectively

the defence evidence. He argued that what the magistrate did was only to concentrate on the prosecution's evidence; he relied on the case of Hussein lddi and another V R (1986) TLR 166 to support his stance. With regard to the complaint on the contradictions, he argued that the evidence of PWl contradicted that of PW4 in respect of which branch the money was deposited, adding that this suggested that the -evidence was fabricated. The learned counsel went on that the magistrate erred in relying on the testimonies of . PW2, PW3 and PW4 which were more of hearsay evidence as they never saw when PWl deposited the money. The learned counsel further challenged the oct of the magistrate to order payment of 12 Million shillings while the prosecution had not proved its case . beyond reasonable doubt. He thus prayed for the appeal to be . allowed. 1,· Miss Magambo, learned senior State Attorney opted to support the appeal. She contended that the 1st ground of objection lacked merit because the record is silent on whether the appellant applied for the complainant's statement. With regard to the other 3_ grounds of appeal, she argued that appellant did not file any notice of alibi prior to the closure of the prosecution case as required by section 194(4) of the CPA, she thus argued that- he is precluded from raising it now. With regard to the complaint that the defence was not considered,

Miss Magambo dismissed it as baseless on the ground that the same was considered referring to page 1 1 of the trial court's judgment where she argued the magistrate discuss.ed the defence case. Miss Magambo concluded her submission by agreeing with Dr. -· Kamanija that there were doubts in the prosecution's case in that it failed to prove the actual amount paid to the appellant by the complainant, PW 1 together with the branch from which the same was withdrawn. She thus supported the appeal and prayed for it to be allowed. I have gone through the trial court's record and given due consideration to the submission by both counsel. I have no doubt determination of this appeal rest on whether or nof, appellant with intent to defraud made representations to PWl and PW2 which resulted in him obtaining cash 12 Million shillings from PW 1. The provisions of section 301 of the Penal Code define false pretences to mean: 301. 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. The trial magistrate after analyzing all the evidence was satisfied· that the prosecution had proved its case to the required standard. On page 14 of the judgment, he reasoned, thus:- . "There is no any shadow of doubt for prosecution case

since the evidence given by PWl, PW2 and PW3 is watertight. Mere denial of the accused that he don't know the accuse (sic). and he never made arrangement with PWl and PW2 is frivolous and the court disregard it because the side proved 4 beyond reasonable doubts that the accused met with PW2 at Morogoro and he received Tsh 12,000,000/= on 27th June 2015 at Dar es Salaam by false pretences. The evidence depicts that the accused convinced PW1 and PW2 to pay Tsh 12,000,000/= and further induced them by pretending to be TRC manager the fact which PW1 and PW2 believed to be true while it is not." It is apparent from the above excerpt that the trial magistrate was impressed by the evidence of PW 1 and PW2 and rejected the defence of mere denial advanced by the appellant. The question is whether the magistrate erred in so doing. I have gone through the testimonies of PWl and PW2 to see whether the version which · was trusted by the court to ground a conviction had any serious shortfalls as argued by Dr. Kamanija. My understanding from what the two witnesses told the court is that they gave a consistent story on how they were lured through a phone by a person who purported to be calling from Dar. es Salaam and claimed to -have fishing nets and boat engines for sale. They told the court that · believing the story was genuine; they travelled to Dar es Salaam to meet the said seller.

However, mid journey they were informed to make a stopover at Morogoro where they were to meet the owner of those properties. Both witnesses gave similar details with regard to this central story and how they were lured into the deal and started the journey together. Upon meeting the appellant and his associates at Morogoro on 25/6/2015, they negotiated the deal .. from 47,0.00,000/= - . to 42,000.,000/= shs .and upon agreement, the · sellers who were now three wanted a down payment of shs.12,000,000/= so as to clear the goods from the port and the remaining balance was to be paid upon the handover of the . goods in Mwanza. According to PW1 and .PW2, following the· understanding, they agreed that one of them should proceed to Dar es Salaam to effect the payment of the said money and to travel back with the items to Mwanza. They settled for PWl to go to Dar e~-~salaam while P.W2 was t0 arrange for, the requisite money to be credited in PW l s account. As explained by PW l , 1 5 - - - - - - - - - - · · . -·· -·-·-- -- - - ------- - -- after hanging around together for two day from 25 June 2015 he· paid the money to the appellant on 27/6/2015. Having pondered over the substance of the testimonies of the two . witnesses, I clearly see that what befell them that made them part with Shs 12,000,000/= constitutes false pretences within the meaning of section 301 quoted herein above, I

thus see nothing wrong to fault the trial magistrate finding. Both witnesses were categorical that on 25/6/2015, the travelled to Morogoro where they met the appellant and his associates and they spent time together at a certain pub negotiating the deal before agreeing · on the price. Following the agreement PWl travelled with the trio to Dar es Salaam while PW2 travelled back to Mwanza and arranged for the money to be credited by his wife to PWl 's account. Further PWl is categorical that he handed the said money, 12,000,000/= Shs. to appellant on 27/6/2015. The evidence above was not challenged much in cross examination. The cross examination of PW 1 by the appellant went on as follows: "I never gave false witness in court; I didn't see fishing nets, I didn't made (sic) any business with yOu before. We met outside Railway officer, (sic) you created the environment as if you were coming outside TRC Offices. I gave you and received by your hands. We believed you due to the ta/king's (sic) we made I'm speaking truth and the court shall believe on the truth statem,~nt I made, you received T shs 12,000,000/= I· didn't know that you had intention to make framed" (sic) From the above answers it is clear, appellant did not challenge the central story put forward by PWl, it thus means that PWl 's evidence sailed unchallenged. Similarly, appellant did not challenge much PW2's evidence,

the cross examination went as follows: 6 l "I saw the event, you called me and informed me that you received Tshs 12,500,000/= I never conducted any business before with you called yourself the manager of TRC Morogoro. When we parked there you were passing through TRC main door coming out of the offices . ..... You told me through your mobile phone that you received that money. Through your mpbile number it helped us to identify your location at Morogoro where you were located, found and arrested your mobile number help us to locate identity found and arrest you, (sic) ... ..... you said your name is Hussein Mwinshehe." From the extract of the appellant's cross examination of PWl and PW2, it is glaring that he did not manage· to challenge the prosecution's main story of false pretences he was alleged to have committed, by necessary implications, it meant that he admitted the unchallenged facts as per the authority in Cyprian Kibogoyo V R. Criminal Appeal No 88 of 1992, (unreported).· I have wondered whether on the basis of the reasoning of the trial magistrate which shows that he believed PW l and PW2 to be witnesses of truth taken together with what was uncovered by the detecti~s who investigated the case i.e. PW3 and PW4 and the eventual arrest of the appellar1t through his mobile phone, one can factually fault the trial magistrate's finding. It is trite law that where a

decision is based on the credibility of witnesses courts on appeal are discouraged from interfering with such finding unless there are good reasons for so doing. This court in the case of Ibrahim Ahmed V Halima Guleti (1968) HCD 76 while discussing issues of credibility in the determination of appeals had the following to say: ": ... The District Court erred. The question for a court on appeal is whether the decision below is reasonable and can. · 7 -::.- - - · - . be rationally supported; if so the lower court decision should be affirmed. The appeal judge may not in effect try the case de novo, and decide for the party he thinks should win. "Surely, when the issue is entirely one of credibility of witnesses, the weight of evidence is best judged by the court before whom that evidence is given and not by a tribunal which merely reads a transcript of the evidence." I_ do subscribe to the above pertinent observations. Turning now to the complaints raised by Dr. Kamanija and the responses by Miss Magambo, I do not think there is much to be said. On the 1st ground of appeal on the failure to obtain the complainant's statement, I do not see any merit in the complaint because the same was not applied nor was it raised as an issue before the trial court. At any rate even if it had been raised as an issue, the learned counsel did not say how it occasioned injustice to the appellsmt who

from the record, he cross examined all the prosecution witnesses extensively. Whether or not the defence of alibi or the appellant's defence in general was considered by the trial magistrate, it is answered by the judgment which shows that it was indeed considered and rejected. The learned counsel for the appellant and the learned Senior State Attorney joined hands on · what they called visible discrepancies with regard to; 1. the amount of money alleged to have been paid to the appellant i.e. 12,000,000/ or 12,500,000/= Shs. and 2. The account from which the money was withdrawn, saying witnesses mentioned two different branches, namely; Azikiwe and Vijana. Having studied thoroughly PWl 's evidence, it answers the two questions exhaustively; he told the court, thus: ,, . 11 .They wanted to 9ive them Tsh~: 1,2,000,000/:=: so •• • as they can clear the documents at the port. We agreed that after payment of Tshs. 12,000,000/= we should travel to Mwanzo with goods and when we will reach there we will finalize payments. I gave them Tshs 12,000,000/= 8 ----------- . ------ - - ---- ---- - ... ·.-·· ·i '. on 27/6/2015 I gave them to Hussein Mwinshehe, when we were at CRDB Azikiwe Dar es salaam. He was with Sango .... took Tshs. 12,000,000/= from my account on 27/6/2015 .. ...... which is A/C no. 0152247810600 .... " From the above extract, I do not think there is an issue with

regard to the amount and where the money was withdrawn from · because, what PWl is saying above is that he gave appellant money while they were at Azikiwe and not that he withdrew the said money from there. At any rate, this issue was not challenged in cross examination. Further, it does not go to the root of the prosecution's central story of obtaining money by false pretences which from the charge sheet was the representation that the .· appellant had fish nets· and boat engines for sale consequent of which he obtained money from PW 1 and not the alleged being officer of TRC as observed by the magistrate .. I also have scrutinized the Bank Statement tended in court and admitted as exhibit P1, the same reveal that it was issued by CRDB Kahama Branch on 3/3/2016 and not from the disputed branches of Azikiwe · or Vijana branches claimed by the learned counsel. In my view the relevance of the statement as far as the proceedings are concerned is limited to lending credence to PWl 's account that 12,000,000/= Shs was credited in his account on 27 June 2015 and the same debited on 27 June 2015 as he alleges. In my view, th.e raised complaints on the issue are minor and they do not negate the fact that PW2 directed his wife to credit the said money in PW l's account and the latter withdrew the same on 27/6/2015 and handed it to appellant. From the proceedings, !he appellant's defence

comprised· of· a I . ,. ,., mere denial of the allegations claiming that on the material dciy he was at his home and he did not obtain any money as alleged. Admittedly appellant has no duty of proving his innocence, in my view, where confronted with serious allegations such as the one at hand, he owes the court a · duty of providing a plausible explanation where he opts to defend himself. It is notable from the 9 .. . ,. ~, '!" - - - -·-- ·-.···.-:==:::::---- --_·:::-_'\' .- -:~=------- . judgment that the trial magistrate considered the defence and rejected it on the main ground that it did not cast any doubt on the strong evidence advanced by the prosecution. In that regard, I see nothing to warrant faulting the reasoning of the magistrate as there was nothing to suggest that PWl and PW2 had reasons to tell lies against the appellant. Also from the time they spent together in. Morogoro and Dar es Salaam, the issue of mistaken identity is incomprehensible when taken together with the fact appellant was arrested through the assistance of his mobile number which is the same that he used to communicate with PWl and PW2 in execufing the deal. Suffice it to say that I disagree with Dr. Kamanija and Miss Magambo on the assessment of the evidence consequently find that from the reasoning adopted by the trial magistrate, the conviction entered is supported by ample . evidence and the sentence imposed was within the trial magistrate's powers. 10 , .,. ··------~ _,..,..., .,_ -- - . Zr ~- ---·-·· . -·~:-~ ...... --,~-~- - - . ·- ~--·· ~:::-: - - .. ~ . ..::- ···. . -- .