19870902 TZHC Tabora

•---w• - -. ----· ·-. . ----~ __. c - • ~ • - ·,.·•.. IN THE H!GH COURT CF TANZANIA .A'T Tfa..·W1'.A Ar'Fl:;LL.A'fE JURISDICTION (Tabora ~egistry) (HC) CRININAL Af-PEAL N0.59 OF 1987. CRIGINAL CRIMINAL CASE NOo 66 O}: 1987. OF THE DISTEICT CCURT GF NZ1!.GA DISTl<.IC_T

AT NZEGA ' Before P.O. AN'GUJ.C Esc- ~ S!:.NICH DISTHICT_ MAGISTRATE. JANUARY JOSEi-i-1 ••••••••••, •••••••••••• " ••••••••• Ai-PELLANT '\ Versus \ \, .THE R~PUBLICoooooooooooooooooooooooooooooooooooRESPCNOENT .,l The appelant, January Joseph, was sentenced to one year i~prisonment on being convicted of the offence of stealing by agent c/ss 265 and 273 (b) of the Penal Code. He now appeals against both the conviction and sentence. The prosecution's avidence was that on 15th April, i986~ at about 9.45 a.rn. the appellant went to the house of one Cliff· .. Jif:ushi (P •. w. 1) and toid hir· that he (the appellant) had s-ev of en;:-~ ... sacksLgroundanuta for sa·le at Shs. J, 000/ = a s·ack. As the . ~ appellant had in the past sold some groundnuts to a· sister of P.w.1, one Eva Kimario (P.w.2), P.w~1 believed the appellant, ,. .'\ and so, in the presence of two witnesse~, P.w.1 gave the appellant Shs.21,000/= being the price of seven sacks of f , '.· groundnut~·-S:'i- The appellant ~ ~ d i ~1,· to nelivet-t: the groundnu.t_s.4_. So<>no The appeJ.lnt, however, never del.ivered the groundnuts. He· · actually disappeared. . ·, It was not until in October, 1986 that Pow. 1 saw the appellant by chance. When P.w. 1 asked him about the groundnuts, the appellant said that his wife had falle·n ill and so he had spent the lliOney given to him by p.w. 1. ·As-_the ·-1;1pp~ll.ant_ had no

g:1'.'oundnuts, he :~~--.::·~~'~-)i!'· to refund P .. w.1 1 s ,,>-: t, iF.. . lfi ' ~- ·. On the agreed date, the appellant had neither the ~oney nor~ groundnuts. The appellant then told p.w.1 t.o go,'tQ•tb.e. ·; ·-:-- · appell~nt•s house the next day and take two pigs and a bicycle from the appellant as part of a refund of the money. NeX:t day !. .• • •.. • ...... /2. ·. I . - - ... f" ~ . 2 P.w.1 and his colleagues went to the appellant's house as agreed. He took two piglets from th~ appeilant's piggery and went to keep them at the home of one Sika. When P.w. 1 returned to the appellant's house to take the bicycle as agreed, the appellant had sk~pped. It was then that Pow•1 reported the matter to Police anf. the appellant was later arrested and charged accor~ink~Y- In his defence~ the a~pellant de~±idf having received any money frow P.w.1 for any purpos~ ~nd tbat hi first learnt of Shs.21,000/= at the ~olice Station. After carefully ~valuating the evidence, the learned trial magistrate was satisfied and found ~s a fact that .the appellant told P ■ w.1 that he (the appellant) had groundnuts for sale; that P.w.1 gave the appellant Shs.21,000/= being the price of seven sacks of groundnuts which the appellant promised to deliver to P.w.1 ''soon''; that the appellant never delivered the §~ffi@ for about a yeAr, and that the appellant in fact had no groundnuts at his home, nor did

the appellant at any time ·after his receipt of the money say where the groundnuts were. On his assessment of ·the evidence before him, the learned· · magistrate dismissed the appellant 1 s protestations of innocence as a hollow denial. On my own view of the evidence, I can see no reason to impugn the learned magistrate's findings of fct. The transaction was made in the presence of witnesses. The appellant suggested no reason, and none suggests itsel¾ why all those witnesses should Lie against him. However, the evidence on record reveals, as the lea~ned state attorney pointed out, that at all material times the appellant had no groundnuts, let c1lone for sale. In other \ words, the appellant' s J"El\J:>.r~l!enta t•~oJI). o~ o -~' .P.. \f ■ t h~bat.P.he (the appellant) had groundnuts for sale was false; and in view of the appellant's denial of the extstence of that transaction, it is clear that the appellant knew the representation to be false. It wns on the strength of that false representation that P.w.1 parted with his money. On the facts, therefore, it :appears to me that the offenct, committeo was not. stealing- .by agent but that of' obtaining money by false pretences c/s 302 of the Penal Code. no o o o o o • o u • • o/J. • • 'I~....... Jo-11' • . ··•·-........:..--- . 3 For those reasons, I hereby quash the conviction· for stealing by agent • and substitute therefo.:· i,;..' a conviction under section J02 of the Penal , Code, and I sentence the appellant to -one year imprisonment. The order- of c,ompesation sh~ll ~emain undisturbed. Save fort he alterI1ative conviction, -this appeal is otherwise dismissed. / Tabora 1/fJl; 1/lftid B. I:. --CHI} ETA, 2/9/87 JUrGB. • I