19870828 TZHC Dar es Salaam

IN . THE HIGH . ... COURT OF TANZANIA AT 'OAR. 5 SALAAM APPELLATE J'URISD!CTION HIGH COURT CRIMINAL APPEAL N0.60/87 . ORIGINAL CRIMINAL CASE NO. 1186/85 (Of the District Court o:f Ilala District et Kisutu) ·· · Appellant ISSA Mf...lIDA. • • • • • • • • • • • • • • • • • • • • • • • • • • • • ) .. ( Origin3.l Accused Ver:.;uo . D t Ti.-IB UNITED REi?-"i.JBLIC •• • •. • • • • • • • • • • • • • • .• 1:..espond en , (OrigiT.J.~1 Frosccutor1 J .U D GEM ENT ~XA:lTP..9J l. • ~ -~ . ISSA MAtmA, t~e appellant~ was c"'nvicted of the offence of obtaining m~ney by false pretences els 302 of the penal Code \ by the District c"'urt nf Ilala, at Kisutu, (Kimaro RM)• It was alleged in the particulars of the offence in the charge that he, on 13th day nf N~vember, 1985, a: ab~ut 16.30(4.3Q p.mo) along Indira Gandhi street, in the city of oar es salaam, with itent to defraud ~r deceive, did.,.,ptain cash, shs. 15,000/=, from one Eliet 1 Ngendu by falsely pretending that he had eighty bags ~f cement for sale whereas in fact it was. not true. He denied the truth ~f the charge but, as already indicated, he was convicted. He was sentenced t~ tw.-, years imprisonment following his convicti.-,n. : . He was als~ ordered t("I refund Eliet I Ngendu the Shs. 15,000/c,• on c.,mpleti"'n ~f his term in jail. At the trial in the C,_,urt. bel,.,w the prosecution · called three witnesses: ., Eliet Ngendu(PWl), the c~mplainant, Hawa saidi Mbata(PW2) and D 4033 Detective constable Jackson(PW3), the arresting police .,fficer. The eppalant testified '"In affirmation in his defence. Briefly, the case f'"lr the pr...,secuti:-:in was that the appellant - and the complainant are friends. This 1a what the complainant told the trial court. He said they had known each ~ther for a period .. of five years and used t,..., v1s1t each other at their respoective offices. The appellant was an empl,.-,yee of a company called Jess company. The c.-,mplainant is empl,...,yed by the Transnand Advertising c"'mpany Ltd. He was, by the time of the I • • .trial, Acting Director of this_c-,mpany. The c~mplainant told the trjal court to.at ,-.,ne day in N,..,vember, 1985, he met the appellant. .., 2 II He said I went one day to look for a pr'"'f~ma inv.-..ice and on that day I had & pr""'blem rif cementu o It is n.-..t clear from this statement if he went f'"'r the prrif,-,ma inv"ke t,., the accused or elsewhere. Be that as it may, he c-•ntinued to tell the cnurt that the accused t'"'ld him that he had cement at his house 80 bagso He t-,ld him that the price f0r one bag was Shso 187.50.and that for 80 bags it w~uld be 15,000/=o The complainant t'"'ld the c0urt that nn the same day he met PW2, who was a friend 0f his. He explainel t0 her (PW2) his problem and asked her if she c'"'ulu help as he was expecting his cheque. PW2 gave him 15,00ll/c. The C'"'mplainant said they the.n w·ent together to the appellant's nffke. Fr,...,m a:;:>pellant•s office the appellant left with them fnr M'"'sc,.,w streeto The c~mplainant told the trial c-urt,"I gave him the money rin the wayn Hawa Rashidi Mbata was followjng behind"e He, the complainant, went on to say that &fter giving the appellant the money he(the appellant) t"'ld the complajnant t,., wait as he haC::.. called a pers.-..n wh~ he said was his frjend and the one he said would provide transp""'rt. The c~mplainant said he stayed there up to 7.00 Porn•, apparently with0ut seeing ·::he appellant again. The next day he went t"' the hppellant. The c""'mplainant said in the trial c"'urt that the appellant t0ld him that he had been arrested by the p . . lice at Msimbazi and that he had been thieatened that he w. . uld be put in remand if he did n..,t give them the m0ney. The C'"'mplainant said he then went t-, Msimbazi police stati"'n and met a priliceman whrim he knew. That policeman directed him t, 9'"' t""' the central P"'lice stati""'n• He (the complainant) said 0n the way he met the appellant and the other person whom the appellant had said W'"'Uld pr'"'vide transporto He said they were b.-..th arrested. PW2 t"ld the trjal c""'urt that she and the c~mplainant knew each other well. she (PW2) teaches at the Commercjal and secr.e- tarial Institute, Sam---ra Avenue, cl0se t•""' C"mplainant• s office. she testified that . . n 13.11085 at ab·ut 4.00 p.mo the complainant told her that he wanted t--- bujld and he had f---und a person who was ready t~ sell hjm s cemento She said the c~mplainant told her that he neede6 15,000/c t, buy the cemento She said she put 15,000/= in an envel"pe and they then left t""'gether for a shop where they deal in spectacleso .. tiJ 3 ~ .o«-1t'll..a.:i.11.'llrt en~oo. -bh.at.ahop ::1J.1d tlwn oam~ -0'0.t wi-lnl. a. pOl'SOll apparently the appellant; tb.ey falkecl nncl then an Indian ci?.me and then left. Then the complainant gave the envelope given to him by PU2 to the appellan~. The nppellant t:.ion returned to the shop and the complainant went to PW2 and told her tha:t he ( the complainant) wno · waiting for transport. The no:::t day tJie complainant informed Pff2 that he he..d. neither got the cement nor was the money returned to him. Pl13 told the triG,l Court that the complainant reported to him a-t Msimbazi Police Stn,tion abou·t t~w inciclen-'c; on 14.11. 85 at about 12.00. Ile said on receipt of the report he accompanied 11.im (th complninnnt) to the person who hacl. taken the 15,000/•. They went to tl1e Ci -bJ centre and found an Arab person. PW3 then continued to testify as followsa- UTb.at Arab told us -'chc person ,ms there. The complainant left anc:l a:ftcr ( ·1ric) he came with someone whom he said ho had given tl10 money. I tool:: the 1.rab and tt.c other perHon together with the complc,inant to Ccntr2.l Police Station and I took them to the Ch::.rge-Room. Th0 person snid he had not been given any money. Re also refuted that he had agreed to sell cement to the complainant". In his defence the appellant only explained how he wa.s arrested on 14/11 /85 at about noon.. Ile testified that he h2.d. left his office to go for lunch. On the way he met the complainant. The complainant greeted him o..nd he ( the appellant) responded., ii.fter that the appellant said he was looking for him (the appellant). Ile (appellant) asked him what his problem was and they went to tb.e side of ·the rooo.. There they fotmd t·wo other people who wet-<:> not known the appellant. The complainant told those peopla that he had been loolting for the appellant. The two people greeted him, and then told J1im that he 1-ras tmcl.er arrest. He asked for what of:? ence a.nd they told '.1im that he would know at the f'olicc ~ta-'\iion. The appellant went on to testify thc..t lie lTent to the Police Station. The other two persona left ·bhem. Ifo was asked wlzy' they were at tho Police Station. '111.e complainant sc1id the appellant was selling cement and -'chat he had given S11s.15,ooo/• for cement. T",1e appellant was then· asked if he sold cement and ho denied -'Glmt. He · was asked about the 15,000/= and he denied also that he ha.cl ever talccn in.. Re was then • remanded and later ch2..rged. 4 Uncl0r cro0.:::-ex2rnin2tiori i;h.i □ i□ h::rw the appellant defended himselfi- Iara opt~cian in Jessen Optical I:nd.ustrieri, I have been there for ten year □ now. I reside at t~wcnge, I do not kn.ow b a2.da 1-foa tc1 e · Horriet Hgedu io 101-m·r.1 to r..10, He in not ::rq :friend. I only knm-, hir,1- He cc:r.1e t,,ice 8t my shop :tor specte.cl.-:,s • iJe hcve not met at any other place, It is :for o.::.le • I do not l-,;;;.1.c1r 1--Thy I\:;·edu tol·.::l lies Hni:.-,a II. In convictinc tb.e 2,ppollant tbe learned trial r.10:.:7,-iotrate believed the n tory na told by tho ·co,:iplninant. This i.:, }10w she reas~ned and ro2ched her ooncluoion that tho appollant W03 guilty:- 11 :C:~I1 -. e;::pl2 ineo. i;:;. lencstr... ..-rh2d; ;1c:,ppened ....,::. til he gc.ve the o.ccuood the amm..:mt of' Shs, 15,000/=, The ev:i.clenc0 o:f :£\11 ia corroborc:, ted by the, t of' FI2 a:r.d I nave no rea::;ons n, t c.,11 to doubt the credi~ility of i01, ?~I1 is e :feithfully f'ai thf,..:lly by tl1.e accused but t.::1e accuoed. tur-.c.Gd out to deceive FJ1 • The accuGGcl ttdi:,i ttec1 havir:.g 1::noui:;::g 3?111 b;;:t dc11.ied to :t:.c.vc had any grudc;0a wi t:h ?~"11 , If tbio isthc position I fail to Gee why ~W1 shoi.:.lci brine 2 ::Cclico,:12:n to arrest t:"10 eccuscd., ·:,i11.cit FJ1 told t:i.10 court is tb. e true account o:f what hnd t2.l~en pl2.c0 as b~tweon hir,1 2,nd the ::1ccuGecl, The accused I n Cei'e:nce is oolcly i:milt on lien. f.:or purposes of exonerating hi □ aelf froQ criminal liability. I find th.G accuoecl guilty nc cha.:-r;ed and convict him". The Menorandu1:, of App02l (wi:lich Ghould hc.vc co0:.:1 titled "fet:Ltion of' J,.ppc2,1 11 (See ss.:.359 and 362 o:f the Crir:1:L:nal :t=·rocedure Let, I-5.r, 112:rcndu has set cut thrGG groU;."'1.do of' nppoal, .. :....... • ••• /5. . ... 5 - 1, The J.oarned Recident 1-.llegistrete :failed to co::.wicler and decide• that the 0videnc0 given by the prosecu~ tion uitner:,oeo consisted nothin(; but a piece of a carc:fully c3.lcul2.t0d lie ag~inst the Etp~.)ellant 2.nd i!'l particul0r t::.e Learned Resident J-'.;2,gistre.te frdlcd to conGider why, i:f at all i t w2s:, true:- (a) I?.J1 G::wuld hav0 gone to the appellant f'or cl· -oro:forma invoice in ti1.o absence eviaence of' /the t -the a:;;)pellan t was tradine in conont. (b) F"'.I2 gave i~i-T1 15,000/= without 2.ny 11ri tten aclmowledc;·0ment? (c} J?"J2 acconpa:niecl :Fili to the appellant I s o:i::ficc given th2.t s.i::e hc:d no intorc::;t in the cornent to be sold? (d) P:TJ involved hi:m3el:f in the ari,ect 'of the appellant having earlier a~vised :i?~Jl t~ re:port i';.io cor.1plnint to tI:-1e 2. The l0ar:n0d i1ooident K-::.gistrate wao wrong and misdirected here elf in holding that Hl1 1 o evide:.:ico was corrobor2: -t2d by EJ2 1 o evidence deoj_:,i t0 the clear contradiction in their evidence. J. A certified copy of the judgecent was delivered on 11ti.1. r1ay, 19f37, and hence ·.:th.it. appeal within time. Arguing the c,ppeal. bef'ore GlO, Mr. Maranclu rei terc ted end elaborated on tl-:000 c;ro·1..mds of' a.pp0al. Ho. prayed tlw.t I allow tbe appenl o:f the Court below. Mr. Malabe. for the Republic alco, for -1;:-io c:::u::.1e r02.:Jon.s given by i•~r. Maro.ndu felt he could not support the conviction. I ag-ree with the two lea.med lu\·.ryers that the evidi;mce against tLe appell2nt in this case is not •such cs wo~ld n2fely .found ·0, convicti\'.r.1. I thorof'o:ce 2.liow the appeel, quaoh appellant's conviction encl set acic:e the sentence imposed on ~im, I direct that he be released froo jail i~nediately 'tillles-s he is being hold therein :fer anothe:..~ lawful cc.cuao. The orcle:.::- for the refunc1 of' Sb.s. 1.5,000/= is cloo set· cicide. " " 6 COU;.lT: Judg0r..1ent delivered today the 28th day of Au[;-ust, · 1987 i~ the preGence of ccunael for both the I • Republic and Appellont. ti fl,vjav. P.o' L. A. A. KYi:..l'JDO, ----- JlJDGE