19770824 TZHC Dodoma 1

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IN TBE HIGH CJCURT OF TIJZNIL

LT DODONL L.fl'LItTE JURISDICTION HIGH COURT CRIMIiT1.L No. 52 OF 1977 ORIGINL CiIIIPJ CLE No. 439 OF 1976 OF THE DISTRICT COT OF 3IJGIDL DISTRICT ..T INIDL BEFORE: H. F. JTY.LUSI .......DISTRICT JJJflTRJTE JOTHIM s/o TUJL. • ......... versus THE RIUBLIC . . . . . , , . . . RESPONDEI'T CHARGE: 1st Ct: Stealing by L.gent c/s 273 and 265 of the Pana1 Cce 2nd Ct: Obtaining money by false pr'-i;ncts c/s 302 and 265 of the P:nal C.;de

J U D G NE N T CHIPETL. J, The appellant, Jothan Tuja, was charged befOre Singida district court on two alternative counts; na'ely stealing by agent c/ss 273 and 265 of the Penal Code .nc1, in the alternative,, obtaining noney by false pretences c/s 302 of the Pon. Code. He was convicted of the latter offence, and was sentenced to three years inprisoni.ont. Ho now appoal against both conviction and cant enco. In driitting this appeal my lea med brother Ju(-',ge (Nnzavas ) j.) felt tbit this court should Oonsider whether the 7,ppel1ant s representations tallied with the dofinition of "alse Pretenc&' under section 301 of the Penal Code Having given the matter careful thought, I respectifully agree that this apeal largely turns upon that question. In order to r':irrociate the questions of law involved it is necessary for me to recapitulate the evidence on both sides at some length. The appellant is Nyak3rusa by tribe, and at all material tines one Nwakalinga (who was not called as a witness) was stationed at Sinrida as a Regional Water Engineer. Mwa1ali1_ - e:: is also Nyakyusa by tribe. The complainant, one Sioni Kaho:.oiu (Pw.1) was at the material time a foreman in Water Supply at Singida, and like the a ellant and Mwakalinga he too is Nyekyusa by tribe. On 30/9/76, the coplainant went to Nwakalina's office where he found Nwakalinga and the appellant. It would appear that

earlier the appellant had told Nwakalinga that he (the appellant) had been travelling in his own vehicle driven by himself from Shinyanga to Nbeya; that the truch had brokeL. down some nine nibs from Singida on Singida - Nbya road; and that he roquird a spare jjart which coast slis 700/ but h did not have the noney Js a fellow tribesman, Iwakalin.a felt pity for the appellant, and so gave the appellant shs 700/—. This ariounthowevor, has not boon a subject of any charge. 1 - 2 - When the complainant cnt erod. Mwakalinga' s office, Wwakolinga introdüood tho appellant to him and in the prosencu of the appoilant Mwakalingca repeated the story which the appellant had told him. Thereafter Nwakalinga and the appellmt left for the bus stand where the appellant was to take a truck to take him to the place where his own truck had broken down. It is not known whether the appellant dd in fact brd vehicle to take him to where his alleged truck was. Sometime on 1/10/76 Pw .1 was informed by MwaLalinga that the appellant had informed him by telephone that he had brought his truck from the place where it had broken down to Singida town. That afternoon the apollant went to Pw.l's house there he found one Andrea Suwi (Pw.2), Fatuna Mdimi (Pw.7), and Pw.1. The appellant told Pw.1 in th :rosence of these other witnesses that he had sent his v.hicle to a garage and that the garage owners had asked

him to pay shs. 100/— as repairing charges. The appellant went on to say th.t he had no money, and he requested Pw.1 to give him or lend him shs. 100/— so that the appellant could redom his vehicle. As Pw1 and the aapellant had earlier agreed that when the appellant' s vehicle had been repaieci the appellant would carrj Pw.l's goods to rboya, Pw..1 asked from his wife shs. ioo/- which Pw.1 gave to the appellant in the presence of Pw.2. Pw.7. The appellant then left Pw.l's house saying that he was going to the garage to redeem his vehicle. At about 6.00 p.o. Mw:alinga sentfor Pw.1. Rw.1 then wont to Mwrtkalingct' s house where he found thô a'pellant and Mwakalinp.a. In the resence of the appellant, waka1inga told Pw,1 that a:'pollant had taken his vehicle from the gara(; that it was then lying at Singida bus stand; and that the appellant would bo leaving for Nheya on the morrow. As the appellant said that if Nkalinga and Pw.1 had any goods which theywanted to send• to I'Thcya he (the appellant) would take then, the appellant, Pw. 1 and Nwakalinga arranged and agreed that 1V11wa1rr,.linga and Pw,1 would buy salt which the appellant was to take to Mbeya as it was reported that there was short'.go of salt in Nleya. It was further agreed that the appellant would leave for 1Tbeya in the afternoon of the following day. The three of -then then left f or Singida bus stand

where Nwa1linga booked a room for the appellant in a guest house. Then they all went to a bar for soft drinks,. :.nd l:.tor the appellant asked Nwakalinga for shs. 10/— which ho said was far his turnboys. Mwakalinga gave the appellant shs. 10/— as requested. 1.11 this 'ci:ie 1?w.1 and Mwakalinga believed that appellant did in fact have a vehicle although they did not see it. At about 9.30 a.m. the next day, the appellant net Pw.1 at National Bank of Co:erce, Singida branch. Pw.1 withdre.w some money. Then P17,1, the appellant,, and one Robert Biseko (Pw,3) left the bank for -the bus stand. Pw.1 and the ape llant had agreed that Pw1 would travel in the appellam.t a vehicle to Mbeya. At the market Pw.1 gave the appellant she.. 400/— thich era.'i for the purpose of buying diessol for the truck. This roncp was given to the aapelluit in the presence of 1'u.3 and one Or2ari Rajabu (Pw.4). Thereafter Pw.1 bought salt at the marl: and left it with his relatives there. Pw.1 then left for his place of work. / - 3 - 1hile Pw.1 was at his place of work, the a:ellant sent a ge to hire end Mwakalinga that they should leave for /a. So Mwakalinga and Pw. 1 went to the Market where they left the salt. They found the aepellant there. The jpellant asked I • 1 and Nwakalinga which road he should use n bringing the vehicle to where the salt was. They directed him as to what road he should use. The

apellant then told then that he had sc-un salt at Nwenyekule* s place T. was being sold at a lower price than that at the r.arkot, and that if Pw. 1 and 1'iwakalin(;a wanted more salt he could go and buy it for then. ThoreuponPw..1 gave the appellant hs. 2001- in the presence of Pw.4, nd Mwakalinga gave the apellont shs. 100/— so that he could go and buy the afloged salt. The appellant then left the place and never return:;d. It transpired that t1a said Mwenyekule had long loft Singida and was in D'Salaeea. So Pw.1 and Nwakalinga started tv suspect that the appellant had cheated then. They started looking f or the appellant end later found him in a bar drinking. Mwakalinga then instructed a. driver (Pw.5) to tedte the a'oilant to where the apellent' s alleged vehicle was. Pw-.5 then drove the aapellant via the market whore the appellant told him to stop. Both of then cane out of the vehicle and the appellant and. a young brothcr of Mwakalinga (not called as a *ithess) exchanged angry words in Kinyak3rusa. Then the appellant started walking away saying that he would walk to where his alleged vehicle was. ?w.5 decided to drive after the appellant. After some distance, the a'pellant took to his heels. There upon Pw.5 and tlwklinna? s young brother raised an alarm iouting tthief thief People chased the appellant and later caught him. They then tnck him to where Hwakalinga was. When

Pw. 1 and Nwakalinga asked the aapellant to give then their money, the ai, ellant said he had no non:y. So they teok him to police station. On being searched, shs. 475/- was found on the person of the appellant. In his defence theappellant admitted to have received a total of she. 700/— from the complainant. His story was that he arrived at Sinpida to buy fish from a place called Kiteta and that Mwakalinga was the only person ho knew at Singida. Then PIwakalinga introduced him to the cc plainant and they agreed that the appellant and th e complainant would go to Kiteta to buy fish. Later the appellant entrusted the complainant with shs. 1 ,270/— for fear that it uiht be stolme. Out of that axaount the complainant handed to th appellant shs. 100/—, then shs. 400/— and then shs. 200/—. On 2/10/76, the complainant told a driver to take the appellant to whore complainantt s wife was as she had. the reat of the money for the appellant. When they got to the market, the driver and another carson asked the appellant to produce the complainant's money. Then they started to assault him and he had to run away to take cover. But they caught hire and. took hire to Nwakalinga. and. thence to the police station. After carefully reviewing the evidence, the learned trial district magistrate found no difficulty in accepting the prcsecution!s evidence and rejecting the appellant's story. He

therefore found as a fact that the complainant gave the money to the appellant on the strength of the appellant' a. representation that he had a vehicle which they would use for transporting the complainant' s and Mwakalinga s salt to Mbeya. On those facts, the learned magistrate convicted the appellant of the offence of obtaining money by false pretences. Further, Gh e evidence leaves no doubt that the false represent ations made by the a:.pellant with intend to defraud the complainant actually operated on the mind of the complainant and so induced him to give the money to the ap chant. In all the circumstances, therefore, I respectfully areo with the learned state attorney tht the conviction for obtaining money by false pr.tences was well founded. As the charges were preferred in the alterntive, the learned district magistrate, correctly, made no finding in respect of the alternative charge of stealing by agent. On the question of sentence I incline to the view that all things 1einr equal;. a sentence of three years imprisonment as severe for a first offender. However, the quetion of sentencing is at the discretion of the trial court,and this court will only interfere with the exercise of that discretion where it is llain that the trial court acted UOfl some wrong principle, or overlooked a material factor, or wherc in all the circu:'stances, the sentence inanifestly

Lao excessive or inadequate as to warrant intorfereie. In the instant case, the learned uaistrate gave sound reasons for imposing the sentence. Since the offence under secticn 302 of the renal Code attracts a maxieun of sevem years inprisonrent, 'th 0 sent eric e was quite lawful. ]3csides, the appellant is, in my view and in the view of the learned sentencing napistrato a dangerous refined 'inpositor. In the o'irc'xistances in whia he committed the' offence I see no reason for interfering with the sentence. It is to stand. As the saxe requires confiation by this court, it is hereby confirmed. In fine, the appeal is, dismissed in its ontiroty. / B. Ch&peta Judge Delivered in open court at Dodona this 24th clay of August, 1977. B. D. Chipeta Tudge