CRIMINAL APPEL NO 363 OF 2017 HUSSEIN MWISHEHE SUDI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A.. MASHAKA. 3.A. And MGEYEKWA. 3.A.\ CRIMINAL APPEAL NO. 363 OF 2017 HUSSEIN MWISHEHE S U D I....................................................... APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Munisi, J.) dated the 16th day of August, 2017 in Criminal Appeal No. 390 of 2016 JUDGMENT OF THE COURT n* August, 2023 & 25th June, 2024 MASHAKA, J.A.: Before the District Court of Ilala at Samora Avenue, Dar es Salaam Region, the appellant, Hussein Mwishehe Sudi was arraigned in Criminal Case No. 251 of 2015 for the offence of obtaining money by false pretence contrary to section 302 of the Penal Code, Cap 16 R.E 2002. He was convicted and sentenced to five years imprisonment and to pay compensation to the complainant to the tune of TZS. 12,000.000.00. His first appeal to the High Court was unsuccessful hence this second appeal. i A brief account of the evidence can be summarized as follows; Elisha Abel (PW2) and Godwin Mwemezi Mwombeki (PW1) both were residing at Mwanza and had a business partnership in fishing activities. On 25th June, 2015 while at Mwanza, PW2 was informed by his uncle Thadeo Raphael Likandizi that he was told by Sango Daudi Ramadhan and Hussein Mwishehe (the appellant) that they were selling fishing nets and boat engines make YAMAHA. PW2 contacted the sellers and they confirmed what Thadeo told him and their names. PW2 was given the mobile numbers of Sango Daudi Ramadhan and Hussein Mwishehe by his uncle. PW2 informed PW1 and gave him the contacts of the so-called sellers. When PW1 contacted them, the appellant introduced himself as the Manager of the Tanzania Railway Corporation (TRC) at Morogoro which made PW1 and PW2 arrange a trip to Dar es Salaam to meet the sellers and conclude the deal. Before reaching Dar es Salaam, they had a stop at Morogoro as advised by Sango so that he introduces them to the appellant who was alleged to be a manager of the TRC. PW1 and PW2 were met by Ramadhan Msemwa on 26/06/2015 who picked them and took them to the TRC offices where they met with the appellant and Sango coming out of the main door of the TRC building. PW1 and PW2 2 later met the appellant at 18 Pub in the company of Sango Daud and Ramadhani Msemwa. Also, Thadeo Raphael Likandizi and Silas Shadrack Mkumba were at the said pub. The appellant and Sango informed PW1 and PW2 that they had 1000 bundles of fishing nets and five boat engines make YAMAHA that they were selling for TZS. 47,600,000.00. They bargained and agreed on a purchase price of TZS. 42,000,000.00. The appellant requested for an advance of TZS. 12,000,000.00 to clear the goods at the Dar es Salaam port and the remaining balance to be paid after delivery of the goods at Mwanza. PW1 and PW2 agreed on the deal. PW2 remained in Morogoro. On 27/06/2015, PW2's wife deposited TZS. 12,000,000.00 in the account of PW1 at the CRDB Bank account no. 0152247810600 who withdrew and paid the appellant the advanced sum of TZS 12,000,000.00 while at the CRDB Azikiwe Branch, Dar es Salaam who was in the company of Sango Daud. PW2 received a phone call from the appellant confirming that he had received the said amount of money from PW1. The appellant kept PW1 somewhere waiting as he and Sango went to process the clearing documents and would provide feedback. After sometime, they returned and informed PW1 that the process was not successful thus they needed more time, of which they proposed to him to wait until on Monday. PW1 had no option but to wait. On Sunday 28/03/2015, Sango called PW1 requesting to meet at a bar near Morocco bus stand. PW1 went and met with Sango and Ramadhani. While there, a motor vehicle arrived, two persons alighted from it and apprehended Sango and Ramadhani. On a sharp turn of events, Sango told the purported police officers who apprehended them that PW1 was not among them, they thus released him and left him there. The said motor vehicle left with Sango and Ramadhani. It was from this time, PW1 lost contact of the sellers as they were not reachable, only to realize that he had been conned. PW1 received no fishing nets and boat engines and no refund of the TZS. 12,000,000.00. Eventually, PW1 returned to Mwanza and reported the matter at Mwanza Central Police station. Inspector Edson Magesa (PW3) was assigned to investigate the case and eventually arrested the appellant at Morogoro. The case file was transferred from Mwanza to Dar es Salaam and assigned to D/CPL Obadia (PW4) working at Central Police station, Dar es Salaam. He interrogated the appellant who denied to have committed the offence. 4 In the defence case, the appellant completely disassociated himself with the commission of the offence charged. He asserted that on the material date he was at his home and he did not conduct a business of selling fishnets and boat engine. He vehemently denied to have been at the CRDB Bank Azikiwe Branch to collect money from PW1. He even denied to know PW1 and PW2 stating that they did not know his mobile number as he has never contacted them. Even so, the appellant's defence did not cast doubt on the prosecution evidence, thus the trial court convicted him based on the prosecution evidence. His appeal to the first appellate court was found meritless and dismissed. Hence, this is his final appeal. Before the Court, the appellant has presented three grounds of appeal, namely; one, that the learned judge erred in analyzing the evidence which resulted into a wrong decision; two, the failure of the first appellate court to consider his defence of alibi; three, the learned judge failed to consider the contradictions conceded too by the Republic on the amount paid to the appellant. At the hearing of the appeal, the appellant appeared in person without representation, whereas the respondent, Republic was represented by Ms. Beata Alois Kittau assisted by Ms. Mwasiti Athuman Ally, both learned Senior State Attorneys. When given an opportunity to argue his appeal, the appellant adopted the grounds of appeal and prayed to the Court to consider them, allow the appeal and to set aside the order of compensation. In response, Ms. Ally who addressed the Court opposed the appeal and supported the sentence. Commencing with ground one, Ms. Ally challenged the appellant's complaint arguing that the first appellate court analyzed the evidence of both the prosecution and the defence as shown at page 86 of the record of appeal and found the defence evidence did not shake up the prosecution evidence. She further argued that, the first appellate court considered the direct evidence of PW1 and PW2 at pages 11 to 12 of the record of appeal and the appellant did not challenge the evidence of PW1, hence ground one has no merit Going to ground two that the defence of alibi was not considered in its decision, Ms. Ally contended that the appellant failed to comply with the requirements of section 194(4) of the Criminal Procedure Act [Cap 20 R.E 2019] (the CPA) to file a notice so that he could rely on the defence of alibi. Notwithstanding that, the first appellate court did consider the appellant's defence of alibi and rejected it. She argued that the appellant did not deny the fact that he received the money from PW1, thus ground two lacks merit. Regarding contradictions in the prosecution evidence, it is Ms. Ally's argument that there is no contradiction on the evidence of the prosecution concerning the amount paid to the appellant. The appellant had said that PW1 whose evidence is direct, deposited TZS. 12,000,000.00 and that the evidence of PW2 was hearsay evidence. Regarding the exact amount deposited, Ms. Ally invites the Court to consider the amount of TZS. 12,500,000.00 stated by PW2 at page 16 of the record of appeal and not TZS. 17,500,000.00 which is stated at page 19 of the record as that is a typing error. She further submitted that PW2 was not present when PW1 handed over the money to the appellant. In conclusion, Ms. Ally prayed the appeal to be dismissed. In a brief rejoinder, the appellant had nothing to but just urged us to consider his grounds of appeal, allow the appeal and set aside the compensation order. 7 Having carefully considered the oral submissions made by the parties for and against and the record of appeal, we will first determine grounds two then three and conclude with ground one. This being the second appeal, the Court rarely interferes with concurrent findings of fact made by the courts below. The exception to the rule is when the findings are perverse or demonstrably wrong occasioning miscarriage of justice. See: Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149; Mussa Mwaikunda v. Republic [2006] TLR 387; Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 and Frank John Libanga @ Lampard and Another v. Republic, Criminal Appeal No. 55 of 2019 (both unreported). The complaint in ground two is whether the first appellate court failed to consider the defence of alibi which was relied upon by the appellant before the trial court. It is the appellant's compliant that the first appellate court failed to analyze and consider the said defence, while the learned State Attorney subscribed to the finding of the High Court. The first appellate court held that, admittedly the appellant has no duty of proving his innocence but he owes a duty to provide a plausible explanation where he opts to defend himself. It is notable from the judgment of the trial court that the trial magistrate considered the evidence and rejected it on the ground that it did not cast any doubt on the strong evidence of the prosecution. It is our considered view, with that holding, the first appellate court was impressed with the observation made by the trial court in respect of the defence of alibi. Further, it is evident that the appellant did not furnish due notice of his intention to rely on the defence of alibi in terms of section 194 (4) of the CPA. Nevertheless, the trial court considered the defence of alibi and was of the finding that it did not exclude the possibility of the appellant being at CRDB Azikiwe branch to meet PW1. In the circumstance, we find no reason to fault the finding of the two subordinate courts. We find this ground is without merit. Concerning contradictions of the prosecution evidence in respect to ground three, it is the appellant's contention that the said contradiction of the amount paid was ignored by the first appellate court, whereas Ms. Ally contends that it was a mere typing error and not a contradiction. In our considered finding, we agree with Ms. Ally upon revisiting the original record of appeal. We gleaned through the said record which clearly shows that the amount was TZS. 12,000,000.00 and not TZS. 12,500,000.00 as contended by PW2 or TZS. 9 17,000,000.00 as gathered at page 19 of the record of appeal. In the circumstances, we find no contradictions in respect of the amount alleged to have been obtained by the appellant. Ground three also fails. On ground one, the issue is whether the learned judge erred to analyze the evidence which resulted into a wrong decision or the prosecution had proved the charge beyond reasonable doubt. The appellant was charged under section 302 of Cap. 16 and one of the essential elements of the offence is to obtain from another person anything capable of being stolen by false pretence. The provision provides: "Any person who by false pretence and with intent to defraud, obtains from any other person anything capable o f being stolen or induces any other person to deliver to any person anything capable o f being stolen, is guilty o f an offence and is liable to imprisonment for seven years. " The phrase "false pretence" is defined under section 301 of the Penal Code to mean: "Any representation made by words, writing or conduct o f a matter o f fact or o f intention which representation is false act and the person making 10 it knows it to be false or does not believe it to be true, is false pretences." In this case, the contention by the prosecution was that the appellant presented himself as the Manager of TRC stationed at Morogoro and had 1000 fishing nets and five boat engines which were at the Dar es Salaam port awaiting clearance and therefore required TZS. 12,000.000.00 to pay for the said goods. PW1 believed the appellant that he had the fishing nets and boat engines for sale and he informed PW2 who sent the money which he gave it to the appellant. There is no other witness who corroborated the evidence of PW1 seeing him giving the said money to the appellant. In that regard there is only evidence of PW1 against the appellant who in his defence has denied to have obtained the money. We are aware that, assessment of the credibility of a witness is the monopoly of the trial court but only in so far as the demeanor is concerned. The credibility of a witness can be determined in two other ways. One, when assessing the coherence of the testimony of that witness, two when the testimony is considered in relation to the evidence of other witnesses, including that of the accused person. See: 11 Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2001 (un reported). In Goodluck Kyando v. Republic [2006J H R 363, the Court laid down the following principle: "Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness." Also, good reasons for not believing a witness include the fact that the witness has given improbable or implausible evidence, or the evidence has been materially contradicted by another witness or witnesses. See: Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported). In the present case, the trial court relied on the evidence of PW1, PW2, PW3 and PW4 in finding that the offence of obtaining money by false pretenses had been proved. According to PWl's evidence there is no doubt cast by the appellant as he gave a credible testimony which was believed by the subordinate courts and we have no reason not to believe it. 12 The record is clear that PW1 withdrew TZS. 12,000,000.00 which was sent to him through his bank account at the CRDB Bank Azikiwe branch by PW2 a business partner in fishing business. The evidence of obtaining money adduced by the prosecution is by PW1 which was credible, consistent and with similar details to the evidence of PW2. It was corroborated by exhibit PI - the bank statements from CRDB Bank Vijana Branch, evidence of PW2 who travelled to Morogoro, met the appellant and his cronies also had the mobile numbers of the appellant and his cronies, numbers 0685 004 841 and 0762 909 577 in which PW3 and PW4 were able to trace, track, find and arrest the appellant through the said numbers which he had used to communicate with PW2 and his cronies. Though the evidence may show that it is only the word of PW1 against that of the appellant that by false pretences he obtained the said amount, however, PW2's evidence, shows that he received a call that same fateful day at 11:30 hours from the appellant confirming that he had received the said money from PW1. Also, PW1 had called him later to inform him that he had given the appellant TZS. 12,000,000.00. We dismiss ground one. Consequently, we are satisfied that the prosecution evidence adduced by PW1, PW2, PW3, PW4 point to the guilt of the appellant 13 having obtained the amount of T7S. 12,000,000.00 from PW1 by false pretences. For the foregoing reasons, we find the first appellate court correctly properly analyzed the evidence which resulted in confirming the conviction and sentence. The above said and done, we find this appeal is without merit and dismiss it. DATED at DAR ES SALAAM this 20th day of June, 2024 S. A. LILA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 25th day of June, 2024 in the presence of the Appellant in person and Mr. Leonard Chalo, Senior State Attorney for the Republic/Respondent, is hereby certified as a true copy of the original.