20001013 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA . A';l' M\-IANZA

APPELLATE JURISDICTION \--\-0 GR· A~ f ND · \ 8 8" O f- 1.qq~' C'.: · torigrnal Criminal Case· Noe 141 of i998 of the District Court of Magu District at Magu-~. LESERO JUJVIA MANGU o. o o o o o ••• ~ 0 • /... • APPELLANT :(Original Accused)

VERSUS · ·" THE REPUBLIC Q>c,000000000000000000000 RESPONDENT (Original'P:rose~utor) .

J U D G ME N T MROSO, JUDdE~ The appellant was convicted in 22 5ounts of obtaining g.oods by ' \··. . .I.. . t.· false .pretences contrary to sect ion 302 l::if the Penal Code and was sentenced to five years imprisonment on each· qf those csrurits, the sentences to run concurrentlyo He was also ordered to pay.as compensation a ..total sum o! Shill.in_gs 2,777, 295/= although the order does not indicate .. , who was to_ be paid t.hat compensat;ion. Presumably, however, the money • I .w~s t.o be paid to persons who had· delivered cotton to the appellant on dates different L but were not· pa:i.0., · ostc:nsibl;f ;)ccause on the respective dates there was no ready cash to pay out. Aggrieved by the conviction, sentence and the compensation .:order ':by the District Court. of rilagu, the appelJ;ant ·has come _to the "High. Court for redress.• -~~ . - At the trial .21 cot-ton' f~rmers:·gave evidence to say that on ·certain dates they tool~ ,cotton to the appelJ.ant who was ~ purchasing clerk-cum-· . c~hier at Nya~ato village, Magu District, .employed by ~ c:~mp~y known as Bi:rchand Oil Mill Ltd.. On the respective dates in. the man.th of August, 1998 whe? the farmers took cotton to the appellant to sell to the company they were told that money had not been received from the company. Instead they were issued with receipts which showed that sums of money for the cotton received had been

paid. Th,e receipts so issued by the appellant were tendered in evidence as exhibits. Since they had 2 not in fact been paid 1they subsequently complained for the lack of payment., The company claimed it had not received delivery of such cotton from the appellant and that led to the appellant being and prosecuted f.. eventually comricted and sentE~!1ced. The company, through its witness - Meehbson Mohamed (p,;,/22) 1 i-iho appears in the trial court record as the Supervisor of Sales and Manager, said that during the period between June, 1998 arid 20th August, 1998 the appellant had delivered to the company a total of 191,960 kilograms of cotton valued at TShsft39,292,865/=. The company gave to the appella.c"lt a total of TShs.39,550,000/= to enable him to pe,y. for that amount of cotton plus paddy worth Shs.226,000/= which the appellant had bought on credit for the Company., The app&lJ.a11t was also given TShs .. 1,209,640/= to pay for running expenses .. When the books kept by the appellant,Mer:e inspected they showed that a total of 196,115 kil6gra_ms''ofcotton valued at Shs.,40,307,390/= had been bought.. That suggested that 4,155 kilograms (not 7155 kilograms as stated in his evidence by Mr. Mohamed - P\•i22) ,supposed to have been bought by the appellant and unaccounted for, had not been paid for., The appellant said in his defence evidence that he had bought and delivered

to the company 191,960 kilograms of cotton va.J,ued at Shs.38,857,?'-,,--: but had received from,,tb.~ G,qmpany only .a t.otal of TShsc36,o8o,ooo/= for cotton boughtc The tcitc1;l qu,aritity of cott,on he claimed to have collected' .,__.· ,_,....:_ ··. from farmers; was 199,534 kilograms but since only 191,960 kilograms were paid for bythe company 7,574 kilograms were not paid for and he had to return them to the respecti,,e farmers.,· There is no clear explanation from the appellant why he had to return the-.cotton to the farmers., Did the company refuse to accept del1very of t-'be\:otton and for what reason? 3 . It seems ,·obvious the claim qy the appeUan,t that he had to return 7574 kilograms to farmers cannot be t:rueo When the -farmers were giving" evidence he never put .it ·to them that the cotton they had -delivered to him was ret,,,,.'1ecl '!;0 therri t, 0 ~aus'e the' company had r-.,. • ::,::: • •,• ' ./ r~fu~ed to pay.,t?r it • ..- :Since _the appel~anb admits to collecting :the cptton from the farmers for which -he did not pay and was riot delivered !" • .. •••• '· • to the company and since his claim that he returned it to the respective fariners is not true, ~-e mllst have dealt with tt in a manner only· known to himself. The question at iss.ue.· befor.e this e Court is whether he committed the offences of which.he was convicted .and .~entenced'l 'J!here is no

doubt the appellant had authority, and was known .... ·,.,· .:.-=:.: i ') to ha;ve the authority, to purchase. cottpn from farmers on behalf of. the: company·~ So, there was no fa?,se pretence by him 1~hen he accept€;~ . cqt:ton ·from 'the farmers. During the material period he was receiving money from the company to ::!.1able h:i..m~pay for the cotton he was buying ,. · from farmers. · T.li'1:\'re "'[as,,-t-J_-o,,~viderJ,6~ that the cotton from the witnesses · -·. .. ·of was 6onside~~'~;y' the. c,:0m~hy asfpoor or unacceptahle quality. So, there· would not. have b;en ~J' ,.:-.:;e,,..::;:;~,. :...,J. ~~-- -::ompany to refuse to pay for it if it had.been.collected by the appellant. for the compatJ.y. So, if the appellant c·o11ected the cotton from the farmers lmowing !' I that, for whatever reason or motive, he was not going to pay for it, 1t cannot be said that he obtained it by false pretenceso He obtained 1t with the intention to steal it, and probably actually stole it. It follows that the convictions for the offences charged were misconceived in law., Unfortunately, although it seems clear to me that the appellant stole the cotton he collected from the farmers, this court or even trial court, can.11.ot substitute a conviction for theft for the offences charged 0 The provisions of section 300 tc 306 of the Criminal Procedure Act 1985 on alternative verdicts ca.11.not be

called in aid because 4 theft is not a cognate minor offence to an offence- under secti9~ 302 of the Penal Codeb In fact, simple theft is of the same gravity as the offence of obtaining goods by false pretenceso They both attract a seritence of seven yec,._rs irrr:::irisonm"·"-t. The unfortunate consequence, therefore is that the convictions and sentences are quashed and set asideo The appellant will have to be set free unless he is held for some other la,~f,il cause., The remedy for the<-'·farmers i-"' to institute a civil suitagainst the appellant to recover their money,. It m$.y be pertinent t() say that the Republic did not support the convictions,, Before I end this judgment/I have to observe that the prosecuting officers must bear th~ bla.ini/ ·fo1": ·this Etventuali ty,, I cannot understand why on the facts'as were khowri tothe prosecution, theft was not charged against the appellanL The reckless decision to charge him with obtaining gSoas bf f~ise pretences, h,rs_ resulted in his walking free out of prison as if he were innoceritE .., ' ' -~ . _A,._,...>-✓--<f~71 J~· Ao MR_OSO . ."""-::"··.·· \',' JUDGE- At Mwanza, . . . 13/10/2000 ... ,•. ,.....:r., ,•····.:; . .·