19890206 TZHC Dar es Salaam

Dr TTIE IIIGH COURT OF TANZANIA ;. AT DAR :SS s;~Li,.Al\I APPELLATE JURISDICTION ' . filGI1 COURT CRIMINAL APPEAL H0 .96 OF 1987 ORIGINAL CRIMINAL CASE NO. 47 OF 1986 OF TI-IE DISTRICT COURT OF UTETE DIS'rRICT AT RUFIJI _ Before Kingaru. Esqo, District Magistrate JORDAN TIIOBIAS NWING IRA oooooooooooooooooeoooeooo Appellant · Versus TTIE UNITED REPUBLIC 0 • • 0 • • • • 0 • 0 0 0 0 0 0 ~ 0 0 0 0 • • • 0 • 0 0 0 Respondent JUDGEMENT i\'.iNZAVAS J .Ko On 22.,6087 the appellant was convic~ed of obtaining goods by false pretences. c/s 302 of t}1e Penal Code and sentenced to two years-imprisonment. He is appealing against both the conviction and the·sentenceo In his prolific memorandum of appeal he argued that the evidence against him did not prove the offence beyond reasonable doubt, that he did not obtain the goods by false pretences, tl"..a.t he was not given sufficient . . time to defend himself and . •,y:~ .r: •. that he was not given opportunate to advance factors which could •.. ~ve amounted to ' •/ . mitigation of sentenceo ' The appeal came up for hearing on 16/1/89 and the appellant appeared in person. When asked whether he had anything to say in addition to his memorandum of appeal he answered in the negativeo Mr. Komeye, learn1d state attorney who advocated for the Republic/respondent argued that there was sufficient .Jvidence in support of the charge of obtaining goods by false pretences. In support of his argument the Court wa,s referred to the evidence of . . PWl , PW2 , PW3 and DW2 o 2 ~ AE for the sentence of two years imprisonment-it was the - learned counsel's submiss~on that it was not so manifestly excessive as to, call for·reduction by this ·Courto After the leai"ned state attorney had closed his submission tlc.e appeliant_ changed his mind &a. 'ai:iked the Court to allow h~m to comtrient on what tl1e learned state attortiey had toltl the cot.irt., Ort being allowed to address the Court the appella.Ylt said~ "t preserved tho fish for three days but the complainant I , did not appear so I decided to sell the fish,. I was entJ.cecl by Jchc -_~'_if""-~ii~iilii,w· to compensate him.,. I did not at the time have· exche-- , -· · ?:.-/\ ···receipt books., I sold the fish for thirty shillings :/''o T1.ue facts leading to the arraignment and conviction of the accused-were not seriously in disputeo On 15/8/86 one~ r-1IV.ssa Muhomwe, (PWl), the complainant 9 l.--..ad his load of fish conf'iscated. by ti.le accused beca1.tse he had no permit authorizing him to fish in the areao Tlie accused was apparently at the material time Assistant Fisheries Officer at Kibi tic One of his duties was to see to it that people did not fish in the area unless they l:ad permit authorizil'ig them to do so., It was also not disputed that after the accused had taken the fish he ordered.the complainant to see him at his off'iceo The complainant went to accused Vs office where he remained up ·i;o 6pom · but the accused was no where to be seeno It was after the complainant had failed to trace the accused that he decided to report the matter to the police., In his defence the appellant said that he kept the fish-for three days but the complainant did not turn_ up so he decided to sell it for sl1So30/=o T11e evidence of the complainant (PWJ.) that he went to appellants office and waited in vain for him up to 6 Pom is fuliy supported. by Ibrahim :Mjueni (PW3) 9 Divisional fisheries officero In his evidence the Divisional fisheries officer said inter aliag - -11 T11e accused was supposed, to bring the. said fish - to the Natural .Resources office if the same were unlicenced ~·-· The accused did not follow - procedure - witnesses such as cell- i - 3 leader and other elders sllould have been called to witness i.. tile incide:µt 11 o If the evidence of t:ie complainant and that ·of the Divisional Fisheries Offi~er (PWl a.Yld PW3 respectively) is anything to go by· the appellant's defence that he wai tea. .:'or the complain8l'1t for three days but did not appear cannot be trueo Andj what is more~ tLe appellant who has been working wi tl: the Ministry of Natural Resou.rces for twenty year~ did not find it necessary to call witnesses such as a cell-leader or any local elders to witness his confisication of the fish from the complainanto· Nor did he tell the court why he did not issue an ordinary receipt to the complainant aclmowledging that he had taken his fisho llis argument before this Court that he had no e.xah~que receipt books iri, clearly an afterthought as he could have issued an ordinary reoeipto The evidence amply demonstrated that the appellant falsely pretended that ho was confiscating the_ fish (because the o,mor had no permit authorizing him to fish in the aroa) with the clear •;•¥_• intention to defraud the complaina:,....~B On the evidence before the trial court I agree with the learned state attorney that the appellant was properly corNictqd of the offence of obtaining goods by :f'alse pretence c/s 302 of the Penal Codoo_ As for the sentence of two years imprisonment it could be argued that the sentence is rather on the·hi 6 h side bearing in . mind that the appellant was, but for this offence, a first offer., However this court will normally not interfere in a matter of sentence unless the sentence imposed is so excessive as to be un- 1 ;-17)~~~~..-\/~J.;j,0 That this is th<;:i law is evident from the decision of this very Court in RV RONATilA.1.1\JI CID....,_T\'"1.A}Jl)E (1968) H.C.D. 237,, Furti1.er more offences of dishon;.:\\f~t/ among civil servants are alarmingly on ·cl:e increase.. Courts would be failing in tl:eir duty if they did not impose deterrent sentences. I agree wit.b. the learned state atto:i;ney tl1at the sentence should be allowed to stand., In the event-this appeal is dismissed in its entirety., ~-£·~- N.s. 11 2,vas JAJI K · GOZio Dar es Salaam 6/2/89