19750915 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA, ;. HIGH COURT CRIMINAL APPEAL N01.341 QF 1974 ORIGtNP1L CRINIAL CASE O. 1451 OF 1973 OFTHE 'IISTRICT COURT O' MWANZA DISTRICT AT MWANZA Before L.G. Rugaimukamu Esq, District Magistrate MENRAD MAHONA oe . 000 . 000' ooeo ...:. 'Appe1Iah verus. : THE REPUBLIC •,.e...o...,...,... Respondent • CHARGE: .Obtaining.rnoney byfalse:pretence c/s -'3f2,'of the.Penal Code.: •i .... • : •••,•. • 4• !,. JUDGMEN.T........ •••, ••.' ............................................... MANG, '•.• :': •: • The appellant who was charged w,th obtaining money by faZs&pretences. p. as.cónvicted aid,.sentenced to : ipay a:$ihe of. Shs,.4QQ/=. ,..He:s •appeal±ng against both convcton and sentence. Th fact$ are briefi y..a§ fqllow... The. appellant •;' w %j: çqt1esSe9gX NwanzaUrbncourt. . Qne day the appllnt told the complainant, who was an accused pers.n., in the. Mwanza Urban Criminal Ce No. . 579 of 1973 to hand over to hin a sum f Sh. 300/XE iç respect ofa 'Sh ç3eposit for) 1l,W stiT'?qt was no order for a ch dpQsX. The mpThin], who w as..t thattine.accompnid 3y ; iiswife,, :hd . .ónly Shs, 295/= hence the appellant asced him to hand over tq him suh money... He,. hówver# .pply . .Shs. 200/= and handed 95/ back'to t1...cQMplatnax1t whom he asked to bring Shs. 100/= in order to secure' lhirelesefr'cUstbdy, While the cimpiainant's •wif emainediththe appellant atthe•óit premises, the dömplàinantwent hoie-hdcmebädk " 'aftet.a few thOments, bringing with himSh4O/=, . wl-u,çh he. handed over to the appellant. After èCeivingthe money., . theáppeilant' ned a bond, exhibit "A", resulting the rei.of'thê complainant onbail. At the completidnof.the ornláinañt's case, the: appellant had: disappeard from duty (by abrupt termistión.' of his plymet) The complainant • tried to trace th appellant, wh YHlater caught withthe h'61 6f 1 'the Police, who: arrs€ed.iim at the . marketareaard.ther thy took him to •€he:?oIie Station, where.the 'was chaied with the 'offence 'äd detained in custody. • The conplairiátts wife £4ari'ä Paulo(P.W.4) supported th cdmplaina'nts stbry.. '46`reover, Sheikh ." : AtFmarMOhaed'.('P.W.5)' Cdurt 'Asessor 'also'süpported • the bml'aititt:cas:e'and'he.fu±ther testified to the effect •hat e- a' pfe'ézt :Whe'fl the compiifi'a't handed ásJ cash á±ltb -the appellant'' At the trial the appellant denied ever receiving money from the com1 1ainant and r. he' al.led Mr. .4±chael Ndliiwe .(D.W.1.), a Pr±ma.' Court Magistrate to testify oru his behalE.11e.('D.tuJ'.1), informed the cpurt that the appel1ant,..cpu1d not stand • as a surety in a Criminal Case ;.4thout .firs.taining the perthission of the Court and that such pemission ;had: to,.'.behrd.otsed. in Thgn;ie: •recO of heproceedings'. • • In this case there was no such endoreme* exhibit "B".. /' • -2- Moreover, he estifie'd to the effect 'that even if the appellant had been given prm.ission to stand as a suret in a Criminal Case, the bail bond, ExhiBt NA" had to be countersigrédb èithe± 'a Magistrat oby'..a tout Clerk but ag.n, there is no signature of a• Magistrate or.Court Clerk. The trial •magisrte beliwed the procution 'witness and convicted the appellant for the ôffne of obtaining money by false pretences. ... In his memoranduz of. appeal the appellant again ei denies ever having recved the money from the crñpliñät (P;W.1) ..........- - The 1eárnedSa€d Attorney nd'dedthàt the charge as framed was 'deedtive'beu it did not specify that the transaction was for cash bail whereas in actual fact it was ,a bail bond, not requiring the payment' of antorie.y. Howeverj he concluded that the failure to specify in the particulars of the offence, some elementà" of the offence should not automatically be, fatai in the subsent roceedings. The test is whethet sich omipsion has resulted in the failure of jItic t -the tejudice of the accused. If from the proceedings it is clear that the accused knew the substance of the charge he had to answerand he does.answer, it cannot in such circumstances be said that the omission of the element in the particulars of the charge has prejudi.ced the accused. Therefore, suáh a defect should easily be cured under section 346 of the Criminal Procedure Code - se Blasius Ndambalilo v. Republic - Dar es Salaam Criminal Appeal No. 136 o 197g. In the instant case, no failure of 5ustice can be detected from the proceedings because the nature of false pretence was amply disclosed by the evidence and the appellant fully answered it. Hence the said defect is cured Under section 346 of the Criminal Procedure Code. • '• In cases of !flse" - pretences :tfl: ord?r ',to succeed the;' trick, device or stratagem - must be accompanied by 'false description of i't"which,.t'herefore - i.- - a false • statement, 'leading to the o'ffence of obtain±ng'.:whatever that is obtained" - see:"Blasius"Nd'athbalilo ys,:'Republic ,above reported. ' In this 'case the'.appellant obtained ..'moneyby falsily pretending thathe could grant the 'complainant,a-cash bail. He made aifalse statement of the' existing fact' since the appellant was already .granted' a bai 'bond by the 'ma.gistrate0 The appell ant had frauduletitly. induc'e4 .Lthe:complai'nant (P.W.4) to pay over the money'.,to hirt '(the' appellant)" on,:the strength • :•, qf a false statement th't";the'magistrate had, ordered a cash bail. The complainant., accepted' that fact and ,.,pid',t'he money to'theappellant'as the representative of the department' of Governnent, 'with which he was dealing0 The property in money as intende.d topass ;with payment through the appellant's 'h'and:s:to'the Government. How,ever,.the appellant 'had n authority 'to call ;foracashpayment since the magistra'be"gave order o bi,l,'bond+ wt-h one surety. ,Hence' as between the appelnt d the :compain'ant. .(P.:W.1), he. 'had. obtained ,itioney. by ,f'als,e:pretences. As regards the sentence, there is nohi'ng to suggest that it is excessive. In the in:;its • -enti'rety. DAR ES S,ALAAN / 15th "September, 1975. J.C. MANNING JUDGE