julius ngalya vs republic 2002 tzhc 2063 29 april 2002

IN THE HIGH COURT OF TANZANIA AT MJANZA HIGH COURT CRIMINAL APPEAL NO. 129 OF 2001 (Original Criminal Case Nr. 2 60 of 2000 of the District Court of Bunda District at Bunda -Before:- R*B# MAGANGA, Esq#f Distridt Magistrate) JULIUS NGALYA • APPELLANT (Original Accused) Versus THE UNITED REPUBLIC • • • ............. .. RESPONDENT (Original prosecutor) JUDGEMENT MLAY, J. JULIUS NGALYA^ the appellant st^od charged with Obtaining money by false pretences, contrary to section 302 of the Pe'oal Code before the District Court of BUNDA* He was convicted and sentenced to five years imprisonment* He has now appealed to this court against the conviction and sentence. The facts of the case as gathered fr^m the k prosecution witnesses are simple and straightforward. The Appellant obtained a loan of shs. 800,000/= from PW1 for the purpose of redeeming a lorry on the agreement that the Appellant would allow PW1 to use the lorry in her business for such period ajs would discharge the loa‘1.. The loan agreement was reduced in writing at a police station3 between the Appellant and pw2, an employee of PW1 and witnessed by a policewoman PW3 and Dl/u The Appellant did not give the lorry to PW1 or repay the loan and PVvT1 reported the matter to the police who arrested the appellant and charged him with the offence* In his defence the appellant stated that he signed the agreement with PW2 and obtained the money from PW1 on behalf of NAKATU&A SHALLO WELLS PROJECT, in his capacity as the chairman of the project. According to the agreement repayment would be after collecting the project lorryj PW1 would use it for collecting soda* The appellant testified that he paid the money including some additional amount totaling 900|000/=s to the Court broker who had seized the lorry but the court broker did not release the lorry as the costs had gone up to shs 1 ,500,000/=, including the court brokers fees. The appellant reported to District; authorities and they went back to pv/1 to ask for additional loan to redeem the lorry but PW1 did not c^me up with the additional l’oan. The Appellant was therefor surprised to be charged with the offence* DW^- the planning officer Bunda District confirmed that the Appellant was the Project Chairman of NAKATUBA SHALLO WELLS PR03ECT and that he took a loan of shs 200,000/= from PV/1 to pay a court broker who had attached the project motor vehicle. DW^ said he was the cordinator of the project and that the project motor vehicle had been seized by the court broker to satisfy a claim of shs, 352 ,000/= being costs for accomodation and as they had no money, the motor vehicle was seized and later the claim rcse to. shs 1,500,000/=. Some shs 800,000/= was raised including shs, 200,000/= from PW1B The motor vehicle is still with the court broker. The loan agreement was produced in court as Sxh. P1 and it reads in Kiswahili as follows; «»MAKUBALIAN C YA MKATARA NAKATUBA SHALLO WELLS BOX Vf KIBARA BUNDA Mimi/Mwenyekiti Makamo/JULIIIS NGalya nimechukua kiasi cha fedha taslirrru sh. laki mbili 200,000/= kutoka kwa mama Mohamed Kesi Bunda kwa makubaliano ya kulipa deni linaro (sic) daiwa na mradi hiyyo yeye atatumia gari hiro (sic) wakati tumalizapo kulikoniboa kwa iflatumizi ya kusomba soda aina ya gari ni £ong Feng TZK 9^39 ambayo ndiyo inakombolewa* Kadi ya gari italetwa kesho na meneja Jamina17/l/99»n Sahihi ya shahidi(signed) 16/1/99 fl it 51 ft ti ii On the evidence by witnesses and on the face of the l^an agreement above, there is no dispute that the appellant was the project chrximail' Nakatuba ' V/e11s project and that he obtained a loan of shs« 200t000/= from pwi to redeem a lorry TZK 9^39 from the court broker and that under the agreement, the Appellant vr'uld let PW1 use the lorry in her business as repayment in kind f~r the l^an. It is also n^t in dispute that the Appellant failed to perform his part of the agreement* The only question:• is whether the Appellant obtained to loan of shs 200,000/= from PW1, by false pretences* Before I come to that issue there is a small issue apparently raised by the Appellant which is whether, if there was an offence committed* Shallow he was personally liable while he acted a chairman o f the . wells Project*. There is n o doubt at all that where a criminal act is committed by a body— corporate, the principal officer of the b^dy corporate can be held criminally liable* The Interpretation Act is very clear on this issue. There is no evidence that the to called Nakutuba Shallo wells project is a body corporate but this -cl-•'no will not obsolve the Appellant if he obtained the money ^n behalf ^f tlie project by false pretences* If he obtained the money by false pretences, it is immaterial „ k - if he used the money f^r his own beneft or for the benefit of the project* In the present case, for the obtaining of shs 200,000/= to constitute clfalse pretence**, there must be evidence to show that at the time the appellant obtained the money, either he knew that the money was not fr^m intended for the purpose of redeeming thp.lorry £ the court broker or that he knsw that after payment to the court broker using that money from PW1 the lorry in question -would not be released and therefore he would not be able to carry out his side of the agreement. There is no evidence that the Appellant had wanted the money for his own use* The agreement is very clear on this point that the money was for the purpose of paying the court broker who had seized the lorry in question# There is no evidence that the appellant knew that the money w^uld not be. enotigh to redeem the lorry as he oily knew of the factafter the money together with an additional sum had been paid to the court broker who then informed them that the claim plus his costs amounted to she, 1,5Q0,000/=# At the hearing of this appeal the State Attorney who ijrabkialJy supported the conviction changed his mind ax ter t>eing the loan agreement Exh# P1* Unfortunately the trial District Magistrate did not consider it at all# Having given due consideration to the evidence and the law, lam satisfied that the offence of obtaining money by false pretences was not proved and therefore this appeal must be allowed* I allow the appeal, quash the conviction and set aside the sentence# The Appellant should be released from custody with immediate effect unless he is otherwise lawfully detained. As for the loan *PW1 is at liberty to persue it through civil proceesings* Delivered in open court this 29th day of April, 2002# AT MWANZA j. mlay 29/^/2002 ' ’•TTTN'^TP