20151027 TZHC Dar es Salaam3

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 83 OF 2014 MUKHUSIN KOMBO ..................... APPELLANT

VERSUS THE REPUBLIC ........................ RESPONDENT

JUDGMENT MKASIMONGWA, J. The Appellant one MUKHUSIN KOMBO, stood before the Resident Magistrate's Court of Dar es Salaam, at Kisutu, thargect with the following I offences:- 1st : Conspiracy to commit an offence contrary to Section 384 of the Penal Code [Cap. 16 R.E 2002] 2nd : Forgery Contrary to Sections 333,· 335 (a) and 337 of the Penal code [Cap. 16 R.E 2002] ' ~> 3rd : Giving False Information to a person employed in Public service contrary to Section 122 of the Penal Code [Cap. 16 R.E 2002] 4th : Obtaining money by False Pretences contrary to Section 302 of the Penal Code [Cap.

16. R.E 2002] Of the offences, the Appellant was found guilty of Forgery c/s 333, 335(a) and 337 of the Penal Code. He was therefore convicted and sentenced to serve four ( 4) years imprisonment. He is dissatisfied with both the 1 conviction and sentence imposed, hence this appeal. He has the following grounds of appeal:- "1. That the Honourable RM's Court of Dar es Salaam at Kisutu (Hon W.E Lema - PRM) erred both in law and in fact in convicting the Appellant in respect of the 2nd count to the charge sheet in the absence of evidence proving the offence beyond reasonable doubt.

2. That the Honourable RM's Court of Dar es Salaam at Kisutu (Hon. W.E. Lema - PRM) erred both in law and in fact in admitting in evidence, and basing conviction of the appellant on Exhibit P.9 which did not have any evidential value.

3. That the Honourauble RM's Court of Dar es Salaam at Kisutu, (Hon. E.W Lema PRM) erred both in law and in fact in her failure to evaluate the evidence and thereby reach wrong conclusion. In the offence the Appellant was found guilty and therefore convicted of and accordingly sentenced, it was alleged by the prosecution that:- "Mukhusin Kombo on 25 th March, 2008 at unknown place within the Region of Dar es Salaam with intent to defraud or deceive forged a meeting minutes dated 25 th March, 2008 purporting to show that the family members of the purported late AWADH ALLY SHOO had appointed DEVOTHA SOKO an 2 ,. administratrix of the estate of the purported late AWADHI ALLY SHOO" The facts of the case are as short as that, sometime in 1979 AWADHI ALLY SHOO (PW.2) acquired a Plot No. 281/46 along Kijitonyama area in Dar es Salaam and built a house. In 1980 he sold the house to the Tanzania Peoples Defence Force [TPDF] and by then he had mortgaged it to the CRDB Bank where he secured a loan. This fact was brought to the attention of the TPDF when purchasing it. It is shown that on 25/3/2008 the family members of the late AWADHI ALLY SHOO who died on 24/8/1986 convened a meeting which was chaired by the Appellant. The meeting resolved to the effect that DEVOTA SOKO is nominated by the members that she petitions the Letters of Administration of the estate of the late AWADHI ALLY

SHOO. Armed with the minutes of that meeting (part of Exhibit P.9), DEVOTA SOKO petitioned before Manzese Primary Court for the Letters of Administration. Sometime on 24/8/1986 the court granted the petition and appointed her an administratrix of the estate of the deceased AWADHI ALLY SHOO. PW.2 (AWADHI ALLY SHOO) told the court in evidence that he does not know that DEVOTA SOKO. The facts are also to the effect that acting under the powers of the Administrator of the estate of the late AWADHI ALLY SHOO; DEVOTA SOKO managed to retrieve from the CRDB Bank the Deposited Title Deed of the house on Plot No 281/26 Kijotonyama and sold it (the house) at Tshs. 100,000,000/= to RUKIA JUMA ZIDANU (PW.3). The latter renovated 3 it and lived in it for about two months before she was thrown out by the TPDF which claimed and repossessed it. Going by the three grounds of Appeal, it is clear that they give rise to three issues to be determined by the court in this matter which are: 1. Whether on the available evidence the prosecution proved its case beyond reasonable doubt.

2. Whether Exhibit P.9 does not have any evidencial value, therefore, could not be the basis for the conviction of the Appellant.

3. Whether the trial court did not properly evaluate the evidence, hence reached at a wrong conclusion. I am in fully agreement with the counsel for the Appellant as well as the Respondent that to constitute the offence under which the appellant was convicted of there must be following elements which the prosecution must prove beyond all reasonable doubt; that is:- 1. That there was a false document 2. That the accused made such a document 3. That the accused made the false document with intent to defraud. As to whether it is the Appellant who made the document in question, Mr. Abdon Rwegasira, the learned counsel for the appellant submitted that a total of 19 witnesses were called by the prosecution to testify to the trial court. Out of them, PW.18 one E.2107 D/CPL MORIS tendered in court the alleged document. None of the witnesses ever testified and proved in court that she/he saw the appellant making minutes of the family meeting 4 as it is alleged by the prosecution. On the other hand the Respondent takes the view that let the document speaks of itself. The document shows that the Appellant was the chairman of the meeting and he signed it. I have attentively read Exhibit P.9 which partly reads as follows:- "MUHTASARI WA KIKAO

KIKAO CHA WANAFAMILIA WA MAREHEMU AWADHI ALLY SHOO KILICHOFANYIKA TAREHE 25/3/2008 SINZA NYUMBANI KWA MAREHEMU:- A. WALIOHUDHURIA 1. Muhusin Kombe Mjomba 2. Devotha Sako Mjomba 3. Fatuma Shoo Dada 4. Juma Shoo Mtoto 5. Asha Shoo Mtoto 6. Shabani Karwani Mjomba 7. Hanta Fuime Kaka B. Wajumbe kwa kauli moja walimchagua kuwa mwenyekiti Bwana Muhsin Kombe. Mwenyekiti alifungua kikao na kueleza kuwa agenda kuu ya kikao hicho kuwa ni kumchagua mtu atakayekuwa msimamizi wa mirathi ya Marehemu Awadhi Ally Shoo, aliyefariki tarehe 24 Agosti 1986. Baada ya majadiliano ya muda mrefu wajumbe kwa kauli moja walimchagua na kumthibitisha DEVOTA SOKO, kuwa 5 msimamizi wa mirathi ya Marehemu Awadhi Ally Shoo. Wajumbe walimtaka aende Mahakamani kuomba uteuzi kuwa msimamizi wa hiyo mirathi. C. Vile vile hapakuwa na agenda nyingine zaidi ya hiyo mirathi kikao kilifungwa mnamo saa 12.40 jioni. Sgd Mwenyekiti" When PW.18 intended to tender the minutes along with the Judgment and the Letter of Administration of the estate of the late Awadhi Ally Shoo, Mr. Mluge, the learned Advocate for the 2nd Accused (the Appellant) did not object. He is recorded to have stated that "I have no objection''. The Exhibit P.9 was, therefore, admitted unobjected by the defence counsel. I have considered also the questions put by Mr. Mluge against the PW.18 during cross examination. I find nothing from the answers given

by the witness on being cross examined suggesting that the Appellant was not the author of the document (The minutes) part of Exhibit P.9. In its decision the trial court had the following to say in this regard:- "Again when this document was tendered as Exhibit P.9 or ... there was no objection something which connotes that 2nd Accused was aware of that document. As a matter of practice he tried to dispute it during defence. Having a glance on Exhibit P.9 it suffices to conclude that 2nd Accused is the maker 6 and he had knowledge on the whereabouts of AWADHI ALLY SHOO" I concur and therefore, the Appellant, through his hand advocate, cannot be heard at this stage challenging the fact that he made the document. I am satisfied from the above that the Appellant made the document in question. Next is whether the document was false. The minutes of the family members meeting (part of Exhibit P.9) purport to show that AWADHI ALLY SHOO is dead and that he died on 24/8/1986. It purports, also, to show that the Appellant and Devotha Sako are the uncles to that AWADHI ALLY SHOO. The document, again, purports to show that Juma Shoo and Asha Shoo are a son and daughter of Awadhi Ally Shoo, respectively. One AWADHI ALLY SHOO came to the court and testified as PW.2. I have no doubt that he is the person referred to as the deceased in the minutes (Part of Exhibit P.9). Why? It is because he

managed to show that he was the owner the house on Plot No. 28/26 at Kijitonyama which house he sold to the TPDF. It is that house DEVOTA SOKO, acting as the Administratrix of the late AWADHI ALLY SHOO, had sold to PW.3. PW.2 is alive. He told the court that he is not related to the 1st Accused (DEVOTA SOKO) and the Appellant. He also told the court that she does not have a son named JUMA and a daughter named ASHA. This testimony of PW.2 was not eroded in any way by the defence. It is my considered opinion therefore that the witness (PW.2) was telling nothing but the truth and his testimony clearly shows that the document made by the Appellant was a false one. 7 Lastly is whether the Appellant made the false document with intent to deceit. It is in the evidence that the 1st Accused and the Appellant were related and were regarded as husband and wife. He sought for advice from PW.11 as to how he can personally retrieve a Title Deed in respect of the house in question, while he was well aware that the house belongs to the TPDF and that he was allocated to live in it as one of the TPDF soldiers. He therefore was aware of the fact that, the house does not belong to AWADHI ALLY SHOO and that the latter could not legally pass ownership of the same from him to any other person. Being aware of that still, he authored a document which was intended to enable DEVOTA SOKO illegally acquire

powers to dispose of the house by selling it. The Appellant had in mind the intention of depriving the TPDF from owing the house. This is not expected from the person who has not intended to deceive. I find therefore that the Appellant architected the document with intent to deceive. From the above, I find the lower court had properly evaluated the evidence that was before it and that it was proper when it accorded Exhibit P.9 with a requisite evidencial value hence satisfied that the prosecution case was proved beyond doubt against the Appellant. Having been of such views, I find no merit in the appeal against the conviction in which case, I uphold the conviction. As regards to the sentence imposed, section 337 of the Penal code, provides for a sentence of seven years imprisonment to a person convicted of an offence under this section. The trial court had imposed the period of four ( 4) years term in jail. The court considered the fact that the appellant 8 r was a first offender and the nature of the offence. In the circumstances of this matter I am of the view that the sentence imposed was reasonable and I find no reason why it should be disturbed. As well, I uphold the sentence. This Appeal is hereby dismissed in its entirety. Dated at Dar es Salaam; this 2ih of October, 2015. 0~ E. J. Mkasimongwa

JUDGE 27/10/2015 9 ,) " Date: 27/10/2015 Coram: Mkasimongwa,J Appellant: Presented Respondent: Absent C.C. Judith Mr. Rwegasira (Advocate): My lord, I am for the Appellant. The matter is coming up for Judgment and we are prepared to receive it. Court: Judgment delivered in Chambers this 27th of October, 2015 in the presence of Mr. Rwegasira, learned counsel for the Appellant and in the absence of the Respondent. Right of Appeal is explained. ~~ E. J. Mkasimo~g:;a

JUDGE 27/10/2015 10