20151118 TZHC Mwanza

IN THE HIGH COURT .OF TANZANIA AT M\lV,!Ji.NZA · CRIMINAL APPEAL NUMBER 81 Of 2015 (Orig1i1al Cninina/ Case Number230 of 2014 Of The Distnct Cow1 of Tarime at 7anine Before Odira Esq;· RM) lAMlA D/0 MANGU @ GIMANANYI & ANOTHER ... APPELLANTS

VERSUS THE REPllllBLIC ............ ~~ ... u . . • • . ~ . • RESPOND!ENT

JUDGMENT 11.11.2015 & 18.11.2015 Matupa, J: This is an appeal emanating from a decision of the District Court of Tarime at Tarime, which convicted the appellants of the offences of conspiracy to defraud and obtaining money by false pretences contrary to sections 306 and 304 respectively, of the Penal Code, cap 16 of 2002 Revised Edition. Before the trial court it was ?lleged that, the appellants together with another persons who were acquitted by the District Court, on the 16th of May, 2-014 at Tarime Bus stand did jointly and together conspire to defraud one Wilkister D/O Kakayo by obtaining Tshs. 35,000,000/= as the price ·of gold they purportedly sold to her. The facts of this case are as follows. After service in the public service for more than three decades, ·thirty three years to be ·precise, since 1981 up to 2014, Wilikister ·the complainant, found herself in a 1 bizarre ending. she c!aims that she was dispossessed of the whole of her terminal benefits amounting to shillings thirty five million. The· whole of the money had been deposited with NMB Ba.nk. On the fatefui dc;Jy, the co~p!ainant who had retired to Shirati, travelled to Tarime for _the purpose of.managing- her accounts. It was alleged that she intended to· transfer some cash from NMB bank to CRDB Bank. It is not apparent for what reason the transfer was desired. Be it as it may, it was .claimed by the victim

that she woke early in · . . the morning of that day and travelled to Ta.rime. By the time she arrived at Tarime, banks were not opened. She went wondering around to buy time for the Bank to open. As she_ was so wondering, she came by one . . woman, apparently the. third appellant. They greeted each other and joined company.As they were talking, it would appear, the woman asked ·her if at all she knew any place where she could buy gold or drugs. The complainant had no answer. Soon they were joined by the first appellant. The complainant .was persuaded to join them at a restaurant going by the name of Rema Bar, Hotel and Restaurant, where they had a drink. While they were at the bar,too other women joined them. These were Beatrice d/o Jovina and Safua d/o Hassan, who turn_ed out tobe 3rd and 4th accused persons at trial. When -she drank a little bit, she found herself sleepy, or rather s~upefied.The first accused rattled a bottle and the ~omplainant was . . awakened. She soon remembered her mission. She informed the others that it was time she went to the bank. It was alleged that at this juncture, Lamia d/o Mangu the first appellant herein, asked Beatrice d/o Jovine the. third acq..1sed person at trial, to accomp_any the appellant to the bank and find out_ if a certain "Whiteman" had credited money in 2 · their account. They went together to NMB Bank. She withdrew the whole .

amount of _the money that remained ·in the balance of her account. When she was finished, her companion joined her claiming that she was unable fo withdraw any money because the Whiteman had not d~p9sited any money in their account. On their way they passed another. route that took them to Moro· Mpaka Dar Bar, where they found their companions they had left at the_ former pub,seated waiting for them. They joined the party and continued with the· dr_inking spree. In th_e meantime, another customer one Cyprian Nyaboke PWS entered the pub; he sat somewhere close, ordered his food and drink and started to eat. As he looked around, he saw. two wo~en seated. According to him he came to recognise. them as Lamia Mangu @ Gimahaya the first appellant and Safu'.a d/o Hassan @ Kyobya the second appellant. A short while later,two women joined them. He later came to. recognise them as the complainant and Beatrice Jovine, who was the third accused at the trial.The women continued to drink while . chanting and laughing. After a few minutes he saw the complainant sleeping while seated.. The said Beatrice snatched her bag and together with ~he rest of the women left the place. This witness stayed at the pub for a time _long enough to see the complainant waking up. She asked for her fellows, they were nowhere to be seen_. It was at this stage that she complained that they had left with her money.

People who saw her at the time, described her as being in a ·state of confusion. The attendants seemed to be familiar with. the fugitive women as the attendants claimed the women to be regulars at the pub. 3 The matter. vvas reported to the police and the appellants· were . . arrested one after the other and they were charged of the. offences .herein. At the dose_ of the prosecution case, the trial court found-that the fourth accused person had no case to answe~. Accord!~gly, she was acquitted. At the conclusion of the trial, The Court found that the third. . . accused person was not identified she was also. acquitted.The Court believed the prosecution as regards the appellants and convi_cted them as charged. · Aggrieved with that_ decision of the District Court, the appellant~ have come to this col!rt to protest their innocence. They have filed a total of nineteen grounds of appeal. However, . on scrutiny, all grounds . . . . · evolve on two issues. One, that the identification of the appellants was not properly done. Two the offence charged was not supported by the evidence. At the hearing of this appeal the appellants appeared in person, they did. not enlist the services of counsel. The Republic, the respondents herein was represented by Ms Ajuaye Bilishanga Senior State Attorney. The appellants were asked if they remembered their grounds of appeal, · they assured the court

that they did and they wished to adopt the grounds as filed.. In support of the conviction, the learned Senior State Attorney submitted that the appellants were .amply identified by PW2 and PW3, employees of the Pub who claimed that they knew the appellants very well. She submitted that the claim by these ·witnesses that the appellants were regulars at the pub is credible, and in fact it was those attendants who facilitated the apprehension of U~e appellants. She therefore submitted thc;1t since their evidence is credible, there could not arise a situation of mistaken identity. However, the counsel could not 4 demonstrate that the arrest of the appellants was a result of efforts by the said attendants. There was a claim tha·t it was the telephone number that was given to the ·complainantthat -facilitated the arrest of the appella~ts. and others.All the appellants denied to h,av~ been con_tacted by phone. The only evidence on record is to the effect that the first and s·econd appellants were arrested at themarket, and the third accused at the trial was arrested at Sirari. Starting with the second issue of whether the facts as alleged and proved consummated the offences charged, it is true that the evidence of thefour witnesses who were fielded _by the prosecution. hardly proposed the offences charged. PWl the complainant had it that she met one of the appellants as she was

buying time for her bank to open. She did not mention anything about any encounter at the· market. According . to her, she met Beatrice d/o Jovine, the third accused who was accused at the trial, while on their way to Ronsoti. Apart from that place, the other encounter on that day was at Rema Bar/Hotel/restaurant and Moro Mpaka Dar Bar. It doesn't appear anywhere on the record that there was a meeting of the_ appellants that took p_lace at the market on _the fateful day or at all. It is no where shown that the complainant had an encounter with the a_ppellants at any place that can be described as a market place. As it shall be demonstrated shortly, the only places the parties herein had an encounter was at the Rema bar, /Hotel/Restaurant and at Dar Mpaka Moro pub. The twist came as the facts unfolded. It was suggested by all witnesses that the party spent their time at Dar Mpaka Moro most of the time. There is no single witness. who overheard the talk of the parties to suggest gold business or drugs business for that matter. Even PWS who came to. the scene on his own errands, only spoke ·of a drunken woman whose white_ bag_ wa'$ snatched as she so appe·ared to be. drunk. To add · to· it,. the· only mention of the purported drugs· and gold business came from the victim herself. -According to her, . this business did not' materialise. The discussion on the business happened

casually early in the morning, even ~efore the women could be said, at lea_st on the evidence, they knew that the complainant had a mission of withdrawing · money from the bank. The next thing .that is seen on .the record is the testimony of PW5 one Cyp~ian Nyaboke, who claimed that he saw the. third appellant one Beatrice d/o Jovine snatching the appellants a· white bag. It will be appreciated later that the trial magistrate decided to disbelieve this witness. In his decision the learned trial magistrate had this to say on this piece of evidence. "To start with the first count, the evidence shows that at first PW1 met with the women whom as stated above was not identified later the second accused person joined and later the second accused person later PW.1 met them at Dar mpaka Moro Ba9 to my opinion ·these ·were very organised and they had an. agreement to commit a wrongful act, I am saying this because at last they sat with PW1, · PWS saw PW1sleeping. And one of them _not identified took bag from PW1 and also to my view that sleeping was not normal or natural sleeping· the said culprit For sure used any fraudulent or whatever to make her be so." · It will be · appreciated that this· passage· makes an · important holding· and therefore forms tl1e basis for the conviction. Unfortunately, 6 all what is said above is pure· conjecture and in some respects is belied · · by the

evidence on the record. For the· example, ·assuming that the coming to the· bar by the appellants is believed; then. the same witnesses who claimed to see. _them at the ba_r. also testified thcJt the appellants were regulars at the bar, and therefore these witnesses· claimed to easily identify them. On their evidence then there could be nothing alarming for their presence. If anything it was the sleeping of the complainant that wa·s the strange element. The trial Court forms the view that the coming of the appellants at the bar was. an organised schem~ . ostensibly . explanatory of a conspiracy. This crucial holding is not done with the evaluation of the evidence. It is only done from a belief of the trial magistrate. I may go along with the trial court for some distance. The complainant claims that· they started their supposed unplanned happy day· at Kwa Rema. If one can go by her story, a·s she went to the bank with the third appellant, they left the first and second appellants at Kwa Rema. After she supposedly withdr~w the .money while in the .company of the third appellant, the venue for the continued rendezvous changed to Dar Mpaka Moro. This second venue was not agreed to by the complainant. It is not clear from the evidence that the complainant knew about the change. The complainant seems to suggest that she was being sheepishly led from one place to another. This

conduct is suggestive of a scheme. However, in the absence of any evidence that there was a positive . . agreement. with the appellant as regards the gold business or at all, I 7 find it absolutely difficult to gauge the conduct with the conspiracy that is _subject of the charge. What remains is a mere suspidon. A susp1c1o_n without more, . . . . . . . . hovvever strong, cannot be a ground for conviction. It would appear that the .trial magistrate acted on a suspicion to convict the appellants. In convicting the appellants the learned trial magistrate had this to say ':4s aforesaid, PW1 evidence shows how the two accused persons were with her at the first time at Rema HOTEL, the same was the evidence by-PW2 and ·. PW3 and later at Dar Mpaka Moro Bar, the same v11as witnessed by P.Vlf~ {tis my opinion all these act {sic} of the accused persons of representing to PW1 that they were good friend {sic} of her while they knew it was false_ but merely loved her money or anything benefices { sic} to themselves And the offence was committed after they caused her to sleep and took her bag having Tshs 35,000,000/=" From the foregoing passage it is apparent that the learned· trial magistrate was of the view that in terms of se~ion 301 of the Penal_ Code, the conduct of association was in the present case adequate to induce the complainant to pc,:trt with her money. Nevertheless,·

the missing link in the passage is the fact of inducement. It is not true from the evidence that the compla.inant parted with the money voluntarily. That is not shown anywhere. The matter is compounded by the tr_ial magistrate to decide to disbelieve PWS in relation of the 3rd accused person. Had he believep him in that respect he would have also held that the conduct led to the appellant being dispossessed of her money. In the absence of that 8 evidence there· is no evidence implicating the appellants •with the purported loss of mon~y of the appellant. All witnesses ·speak of s~eing the party drin.king together and they left the appellant alone. This piece of evidence is· very crucial for two reasons. One it was .not definitely .established that the complainant .had the money. The crucial evidence from the victim is that, on that day she may hav:e withdrawn some money from the NMB Bank. The evidence to this effect only comes from a withdrawal form which was tendered and admitted in evidence as exhibit Pl. · If this piece of evidence is anything to go by, it proposes that the victim may have had in. her pro~ession some· money. However, the. evidence is just incomplete. One, the withdrawal form was supposedly completed by the complainant and stamped by an unidentified bank teller. The bank teller or any official· from the bank was not called to confirm that it was true that the

mentioned form was authored by an· official of the bank or the account indeed belonged to the complainant. And assuming for· the moment we hold that it was true, still there is no evidence to show that the purported account was debited as such on the ~aterial day. Investigation was not done i.n pursuit of this lin~ of evidence to its logical conclusion. This observation would be pertinent· given.that the withdrawal of such colossal amount is always suspect. . The second reason is that all attendants of the pub, PW2 and PW3 agree that they saw the complainant sleeping. They also claimed that they saw the appellants leaving. To add to it PWS, claimed to have seen the third accused at the trial snatching "a white handbag" from the ~omplainant. . Neither the complainant nqr this particufar witness described the hand bag. Still, neither of them raised alarm. When the complainant woke up, there remained at the bar, the two attendants and 9 P.VVS. Assuming that it is true that· she had the money, the three witnesses could also be suspected for the _loss. They had every interest in finding a person to pass the·bfame. These witnesses had an interest to . serve·. Under these circumstances their evidence has to be treated with caution. For all these reasons, I find that the learned trial magistrate was not correct to infer that tt]e association of the appellants and the complainant, if at

all it was, in itself was a_conduct that could amount to pretetice in terms of se"ction· 301 of the Penal Code. Two,· assuming that he was right, which we hold he was not, the learned trial magistrate did not hold anywhere in his judgment that the complainant yielded a_ny m·oney to the appellants. He could not do so because there was no evidence to that effect. The only evidence there was, was to the effect that the money was snatched from the appellant by Beatrice, which evidence was dismissed by the court. Having dismissed this evidence, anyone present at the pub coul_d be a suspect. In the result, there was no false pretence that was proved nor_ was there any obtaining that was established. I am satisfied therefore that, the evidence on record neither disclosed a charge of conspiracy nor that of obtaining money by false pretences. This holding ·alone is.enough to dispose of the apP,eal. But before .r u, conclude, let ~e remind the trial court that the trial,~this _case was _in ,X. relation to false pretences as· regards the sale of gold and drugs. The case ended up in a mess. There was no mention of. discussion on the sale of the said gold or the drugs, and yet the cour:t proceeded to convict on allegedly a false pretence as ~egards an association which was not the subject of the charge. This conviction was conspicuously illegal. Had the magistrate wished to proceed the way

he did, he would have 10 substituted the-cha1°ge ih terms of settion 234 of the Criminal Procedure Act. rn so doing he was enjoined to invite the accused persons to plead . 1 . to the new charge. This was not done, he ended up in. convicting the appellants with offences they were not charge~ with. In· the upshot, this appeal is allowed, the conviction is hereby ·quashed and the sentence is set aside. The appellants shall forthwith be released from custody unless they ar~ otherwise. lawfully held. 11 Date: 18.11.2015 Coram: Hon. S.B.M.G. Matupa,_ J Appellant: 1st preseht . 2 nd present · Respondent: M/S Ajuaye Bilishanga (Senior. State Attorney) for the · Republic B/C: Shida M/S Ajuaye Bilishanga Se_~ior State Attorney: This appeal is set for judgment. The appellants an present. We are ready for judgment. S.B.M.G. Matupa Judge 18.11.2015 Court: This appeal is read· in chambers in the presence of the appellants and M/S Ajuaye Bilishanga (Senior State Attorney) this 18th day of i . November, 2015. ;{J 1 - ~--a/J~-r~ S.B."'1;.-G~a 1 Judge A{~~:t:1r ·. ·18l11.2015 .. '··:,._ .\)ft>:~/~-·/.:··,-·.,.·;••·· 12