20042004 TZHC Dr es Salaam

\ 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC. CRIMINAL APPEAL NO. 17 OF 2002 (Orginating from the District Court of Kilosa Criminal Case No. 33/2002) PASKAL CHAMBO .......... APPELLANT VERSUS ~RED RIC SEKWAO ............ RES PON DENT JUDGMENT Mlay, J. The appellant was charged in the Primary Court of Magele, with one count of obtaining money by false pretences , contrary to section 304 of the Penal Code. In the particulars of the offence, it was alleged that the Appellant obtained the sum of Tshs. 500,000/= from one ALBERT MBILINYI by using the name of the present Respondent, FIDELIS SEKWAO and that the Appellant promised to pay back the money by the month of May, 2001, but did not do so. The Appella_nt was convicted of the offence and sent~nced to pay a fine of Tshs. 10,000/= or six months imprisonment and also ordered to. pay the complaint the sum of Tshs. 300,000/=, The appellant unsuccessfully appealed to the District Court of Kilosa. The District Court dismissed the appeal and upheld the judgment of the Primary Court but reduced the sum of Tshs. 300,000/= to be paid back to the respondent to be Tshs. 200,000/=. . The Appellant was aggrieved and has now appealed to this court. In the memorandum of appeal, the Appellant has advanced four grounds of appeal but in substance, the 1st and 2nd grounds of appeal are the foundation of this appeal. In the first ground, the appellant has complained that both courts below were wrong in finding that the appellant had committed a criminal offence instead of a civil case. .. In the second ground of appeal, the Appellant has alleged that there was a contract between the appellant and the Respondent under which the Appellant would supply timber worth Tshs. 500,000/=. At the hearing of this appeal the appellant adopted his grounds of appeal. In reply to the grounds of appeal the Respondent narrated a long story. In short he stated that the Appellant went to ALBERT MBILINYI a businessman in Morogoro whom the Appellant knew was doing business with the Respondent . The Respondent stated that the Appellant told ALBERT MBILINYI that the Respondentt had sent him to ask for Tshs.500,000/=, which the said ALBERT .. MBILINYI gave to the Appellant. The Respondent went ·on to say that the Appellant then came to him and told him that ALBERT MBILINYI had given him Tshs.300,000/= to buy timber, and they divided the money between them, the respondent taking Tshs. 200,000/= and the Appellant retaining Tshs.100,000/= , so that back each buy timber for Mr. ALBERT MBILINYI. The Respondent went on to say that later ALBERT MBILINYI brought a lorry to collect the timber purchased by then, but the Appellant disappeared. The Respondent stated the both Mr. ALBERT MBILINYI and the driver did not testify in the trial in the Primary Court. The respondent completed the narrative by saying that he agreed to pay back the sum of Tshs. 500,000/= which the Appellant had taken from the .. businessman and he instituted the proceedings in the Primary Court against the 2 Appellant. He further stated that vyhen the Appellant was arrested he agreed to pay back the sum of Tshs. 300,000/= . Having given due consideration to the proceedings in the Primary Court, the judgment of the District Court and the representations of both parties at the hearing of this appeal, there is only one issue for consideration. The issue is whether the charge of obtaining money by false pretences was proved against, that appellant. As the first appellate court did not evaluate the evidence, this court as a second appellate court is entitled to review the evidence and reach its own conclusion on it. In the evidence in the Primary Court, which was also admitted by the Respondent in his submission at the hearing of this appeal, it is not in dispute that the Appellant was given the sum of Tsh. 500,000/= by ALBERT MBILINYI. According to Exh. "A" which is a letter written by ALBERT MBILINYI dated 21/4/2001 and addressed to the OFFICE OF MAGUHA VILLAGE, ALBERT MBILINYI categorically stated that he gave PASKALI CHAMBO the Appellant, Tshs.500,000/= in cash on the agreement that the Appellant had timber "Mkoba type" which the appellant would deliver to ALBERT MBILINYI. ALBERT MBILINYI went on to state in the letter that the event took place on 28/11/2000 but up to the time he was writing this letter he had not received the timber on heard from the appellant. It is not in dispute that the Appellant did not obtain the money from the Respondent but from ALBERT MBILINYI. From ALBERT MBILINYI'S own letter Exh. "A" the Appellant did not obtain the money from ALBERT MBILINYI in the name of the Respondent. According to Exh."A" which tally's with the Appellants defence, is that the money was given to him for the purpose of supplying timber to ALBERT MBILINYI. • If the Appellant obtained that money Tshs. 500,000/= from ALBERT MBILINYI under an oral agreement that the Appellant would supply Mr. ALBE_RT MBILINYI with timber as this appears to be the case, then clearly Mr. ALBERT MBILINYI did not part with the money because of any fraudulent trick on the part of the appellant. He parted with the money under a contract for the supply of timber which the Appellant failed to honour. This cannot amount to the criminal offence of Obtaining money by false Pretences and certainly, there was no evidence to prove any false pretences involving the respondent. If the respondent wanted to keep good business relationships with ALBERT MBILINYI by paying back the money which the Appellant obtained from ALBERT MBILINYI, he cannot rely on the criminal law to recover the money from the Appellant. It is the right of ALBERT MBILINYI to sue the Appellant for breach of contract to recover damages and the money paid to the appellant und.er the contract. If the present respondent is privy to that contract, he should sue the Appellant and not to resort to the criminal law. Both the trial court and first Appellate court failed to properly evaluate the evidence and properly direct their minds on the law relating to the charge. The charge of obtaining money by false pretences was not proved and therefore the District Court was wrong to dismiss the appeal. Accordingly the appeal is allowed, the conviction of the appellant is quashed and the sentence and compensation orders of both courts bellow are set aside. 4 6. 0 It is ordered accordingly. J.I. 4/10/2004 Right of Appeal explained. J.I. lay JUDGE 4/10/2004 Delivered in the presence of both Appellant and Respondent, this 4th day of October, 2004. l.I.Ma~ JUDG 4/10/2004 5