Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 12413 OF 2024 {Originating from the District Court of Lindi at Lindi, in Criminal Case No. 15/2023) RASHIDI MFAUME NAMIYUYA......................................APPELLANT

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

JUDGMENT 11th July, 2024 & 7th August, 2024 MPAZE, J.: In this case, Rashidi Mfaume Namiyuya was charged in the District Court of Lindi with the offence of stealing by agent, contrary to sections 258(1) and 273(b) of the Penal Code (the Penal Code) [Cap 16 R.E 2022]. The particulars of the offence alleged that; On 25th March, 2023 in the Mikumbi area within the Lindi Region, Rashidi Mfaume Namiyuya did steal a NOKIA phone valued at Tshs. forty- five thousand (Tshs. 45,000/=) and a TVS STAR motorcycle with registration number MC 104 DKT valued at Tshs. Two Million Five Hundred 1 Thousand (Tshs. 2,500,000/=), which had been entrusted to him by Mbepula Abdallah Mussa for his use and to be returned after use. The appellant pleaded not guilty to the particulars of the offence, leading the prosecution to establish their case by calling six witnesses. Their evidence, together with the exhibits tendered, convinced the trial court that the case was proved beyond a reasonable doubt. As a result, the appellant was found guilty of the offence, convicted, and sentenced accordingly. Disgruntled with the trial court's findings, the appellant appealed to this court with five grounds of appeal. Upon examination, I noted that all of them revolve around a single complaint; that the prosecution failed to prove their case beyond a reasonable doubt. During the appeal hearing, the appellant appeared

unrepresented in person, whereas the Republic/respondent was represented by Ms. Florence Mbamba, State Attorney. When invited to argue his grounds of appeal, the appellant asked the court to adopt his grounds of appeal, emphasizing that the court should consider that he had no intention of stealing and that what happened was a breach of the agreement. 2 Before I venture into the submission made by the State Attorney, who opposed the appeal, I find it necessary to pause here and address the submission by the appellant. Looking at what the appellant has submitted, it is clear that he does not deny taking the said items, but he denies having any intention to steal them. This submission prompted me to examine his defence during the trial. He had a lengthy defence, but part of it stated; V remember on 23d March, 20231 left Mabatini village for Lindi town where I met Mbepula Abdallah (PW2). He is my longtime friend. I borrowed his phone to make a call, after which I asked for his motorcycle to follow someone, but I did not tell him where I was going. He told me not to take long. I went to see the person who then told me to go to Ngongo to take a package to Madangwa where he gave me my money. I then went to my relatives. When I wanted to leave, the motorcycle was not in good condition. After it was repaired, when I wanted to go back to Lindi, I was involved in a motor accident, which

resulted in my arrest and being taken to the police...' In his defence, the only property he admitted to taking from PW2 by way of borrowing was the motorcycle, but he denied taking the phone. 3 However, during the preliminary hearing conducted on 12th May, 2023 one of the undisputed facts agreed upon by the appellant was that he borrowed PW2's NOKIA phone and promised to return it after use. I decided to pause here to closely examine the defence given during the trial before proceeding with the Republic's submission. This examination aims to elucidate the appellant's claim that he did not steal the items but borrowed them, contending that what occurred was a breach of the agreement. By doing so, I will be better positioned to determine whether the appellant's allegations amount to a breach of agreement or not. Reverting to the State Attorney's submission, she vehemently opposed the appeal because the prosecution managed to prove their case beyond a reasonable doubt. Ms. Florence argued that for the offence with which the appellant was charged, the prosecution needed to prove not only that the appellant was entrusted with the alleged items but also all elements of stealing. According to her, these elements were proven. In convincing the court that the offence was proved beyond a reasonable doubt, Ms. Florence referred to the testimony of PW2, who testified that he entrusted the

appellant with the motorcycle and his phone on 25th March, 2023 for use for a few hours, but that was not the 4 case. Instead, the appellant pawned the phone to obtain fuel from PW5 and took the motorcycle to Mtwara, where he had an accident. The motorcycle was returned on 27th March, 2023 by PW4. Based on this piece of evidence, Ms. Florence argued that the evidence proved both actus reus and fraudulent intent, as the act of pawning the phone and taking the motorcycle elsewhere than agreed upon until his arrest shows the appellant's intent to deprive the owner permanently of his motorcycle. To support her argument, Ms. Florence referred to the court cases of Meek Malegese & Another v. R, Criminal Appeal No. 128 of 2011 (unreported) on pages 8, 9, and 10, Christian Mbunda v. R, [1983] TLR 340, and Donald Dickson @Kishoka v, R, Criminal Appeal No. 81 of 2019, on page 9. The State Attorney asked the court to examine the cited authorities to determine when the offence of stealing by the agent is considered proven and the factors to be taken into account. She stated that by scrutinizing these cases and comparing them with the current case, it is evident that the evidence provided by the prosecution has successfully proven the offence facing the appellant beyond reasonable doubt. 5 Ms. Florence concluded by urging the court to dismiss the appeal, as it lacks merit. She also noted

that even the appellant's defence supports the prosecution's case. In his rejoinder, the appellant reiterated what he had submitted earlier. Following the parties' submissions, I have discovered that there is no dispute that on 25th March, 2023 the appellant was entrusted with a motorcycle with registration No. MC 104 DKT, make TVS STAR, to follow up on his debt with someone who owed him money. I also found that there is no dispute that the said motorcycle was found on 27th March ,2023 after the appellant had an accident at Mtwara Region and was taken to the police station. Although the appellant denied taking the mobile phone from PW2, there is sufficient evidence from PW2, PW3, and PW5 that proves beyond a doubt that on the fateful day, the appellant was entrusted with the alleged mobile phone. He then left the phone with PW5 as a pawn after taking fuel to fill the motorcycle and subsequently departed. Besides, during the preliminary hearing, the appellant admitted that on the material day, he was entrusted with a NOKIA mobile phone by 6 PW2. Therefore, his denial during his defence and in this appeal regarding not taking the said mobile phone is considered an afterthought. Based on these facts, the appellant urges this court to interpret the incident as a breach of contract, arguing that he had no intention of stealing. However, the Republic refutes this claim, asserting

that it is more than a breach of contract, as the appellant intended to deprive the owner of his property permanently. The sections under which the appellant was charged are sections 258(1) and 273(b) of the Penal Code, which read as follows; Section 258 (1); M person who fraudulently and without claim of right takes anything capable ofbeing stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing.' Section 273; ' Where the thing stolen is any of the following things, that is to say- (b) property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver it or any part of it or any of 7 its proceeds for any purpose or to any persori. [Emphasis added]. Returning to the cases referred to by the State Attorney, starting with the case of Meek Maleqesi {supra), the Court of Appeal stated; ' The component ofstealing or theft is an integral part of the offence of stealing by a public servant. The component of stealing is also integral to the offence of stealing by an agent for which the appellants were tried and con victed. To pro ve against the appellants the offence of stealing by an agent, the prosecution was required to bring the case with the ingredients of the offence of theft under section

258(1) and (2)(a) of the Penal Code,' While in the case of Christian Mbunda (supra), this court had this to say; '...For the appellant to be convicted under section 273(b) the prosecution must prove, inter alia, that he came into possession of the alleged stolen property as an agent of either a real owner or special owner.' Whereas in the case of Donald Dickson @Kishoka (supra), when the court was discussing what the prosecution needed to prove for the 8 offence of stealing by agent under section 273(b), this court also underscored, inter alia, that; '...In addition to that, the prosecution was mandated to establish a principal-agent relationship in that there should be proof that PW1 's property was entrusted to the appellant for a certain purpose and that the appellant mishandled the said property contrary to the instruction by PW1.' By examining these cases, which the State Attorney has persuaded me with, I fully agree that for the offence of stealing by agent to be proven, the ingredients that establish the offence of theft as outlined in section 258(1) and (2) of the Penal Code must be proven. Apart from the ingredients of the offence of theft, when it comes to section 273(b) which encompasses the offence of stealing by an agent, it must be proven that the property was entrusted to the offender in connection with an agency relationship. Starting with examining whether the

elements that constitute the offence of theft, which are: (i) A thing capable of being stolen, (ii) Fraudulently and without claim of right takes anything capable of being stolen, (iii) Converts to the use of any person other than the general or special owner, have been proved or not, I had to look back at the evidence presented in the trial court. 9 Beginning with the first element, a thing capable of being stolen, evidence was offered that the things taken from PW2 were a mobile phone, make NOKIA, worth Tshs. 45,000/= and a motorcycle, make TVS STAR, worth Tshs. 2,500,000/=. Hence, these items are capable of being stolen as they are tangible. Secondly, fraudulently and without claim of right takes anything capable of being stolen. According to the evidence adduced reveals that the appellant initially borrowed the mobile phone and the motorcycle with permission. However, when he pawned the phone at the petrol station to PW5 and did not return the motorcycle, his action became fraudulent and without claim of right. The intent to permanently deprive the owner of his property can be inferred from his actions of pawning the phone and failing to return the motorcycle. Similarly, the act of moving with the motorcycle to the Mtwara Region, far from Lindi where the motorcycle was supposed to be, amounts to asportation. Thirdly, by pawning the mobile phone, the appellant converted

the use of the phone to someone other than the owner (PW2), who lent him the mobile phone and the motorcycle. He did not return the motorcycle as promised and continued to use it for his purpose, as shown in his 10 defence, saying that since it was the Ramadan holiday, he decided to visit his relatives in the Mtwara region. This act also constitutes conversion to his own use rather than the use intended when he borrowed it from PW2. The failure to return the motorcycle, coupled with the subsequent accident, supports the conclusion of theft. Even if the appellant claims he intended to return the said motorcycle, if believed, it does not alter that his taking constitutes theft. Based on the above explanation, it suffices to say that I do not doubt that the evidence given by the prosecution side was able to prove the ingredients of the offence of theft. Moving on to the element of agency relationship, this arises when one person (the agent) is authorized to act on behalf of another person (the principal) in dealing with third parties. In this relationship, the principal must have control over the agent's actions, and likewise, the agent must act in the best interest of the principal. In the case at hand, the facts show that the appellant borrowed the phone and the motorcycle for his purposes. There was no agreement that he was acting on behalf of the owner (PW2). Under these

circumstances, I cannot confidently say that there was an agency relationship. 11 Therefore, the prosecution's failure to prove an agency relationship between PW2 and the appellant means that the charge of stealing by the agent cannot stand. In other words, there cannot be a charge of stealing by an agent where there is no agency relationship. The agency relationship is the foundation of the offence of stealing by an agent. However, upon analyzing the elements of this offence, starting with those of theft, I have determined that they have been proven. Despite the establishment of these elements, the offence of stealing by an agent has failed to be proven due to the lack of an agency relationship. Thus, the question arises whether the available evidence can support the existence of a minor offence that is cognate to the offence of stealing by an agent. The existence of section 300 (1) & (2) of the Criminal Procedure Act (the CPA) [Cap 20 R.E 2022] prompted me to ask this question, as the section provides; (1) Where a person is charged with an offence consisting ofseveral particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. 12 (2) Where a person is charged with an offence and facts are

proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.' I understand that certain criteria must be considered when substituting a major offence with a minor offence. First, it is essential to determine whether the circumstances outlined in the major charge meet the elements of the minor offence. Second, the particulars of the major charge must adequately inform the accused of all the circumstances that constitute the minor offence for which is being substituted. I reviewed the charge sheet under which the appellant was being prosecuted and compared it with the evidence presented by both parties. I found that the evidence provided successfully established a minor offence, specifically obtaining goods by false pretence, contrary to section 302 of the Penal Code. The said section provides as follows; 'Any person who by any false pretence and with intent to defraud, obtains from any other person anything capable ofbeing stolen or induces any other person to deliver to any person anything capable of being stolen, is guilty of an offence and is liable to imprisonment for seven years.' 13 This offence, like stealing by an agent, requires the elements of theft to be proven, which, as explained above, have been established in this case. In addition to the elements of theft, it is necessary to demonstrate that the goods

were obtained through false pretence with the intent to defraud. In the case at hand, the evidence that shows the mobile phone and the motorcycle were obtained by false pretence and with intent to defraud are; One, the appellant borrowed a mobile phone and a motorcycle under the pretence of using them to communicate with a friend to collect the money he was owed. This statement was false because the appellant intended to use the phone and the motorcycle for other purposes, such as pawning the phone and leaving with the motorcycle from Lindi Region to Mtwara Region. Two, the appellant acquired possession of the mobile phone and a motorcycle based on the false representation of intent to return them after use but failed to return the same until arrested following the accident he incurred. Three, the action taken by the appellant, filling the fuel, pawning the mobile phone, and leaving with the motorcycle, demonstrates an intention 14 to deceive the owner (PW2). The fact that the appellant did not return the goods as promised and left the jurisdiction supports this. Fourth, PW2 was deprived of his properties due to the false pretence. The recovery of the mobile phone from PW5 after PW2 paid off the debt for the fuel does not negate the initial act of obtaining the phone under false pretence. Therefore, these facts collectively demonstrate how the appellant obtained the mobile

phone, a NOKIA, and a motorcycle, a TVS STAR, by making a false representation with intent to deceive and defraud the owner, resulting in PW2 being permanently deprived of his property. Had PW2 not redeemed the pawned phone, and had the appellant not been arrested after the accident, it is possible that the motorcycle would not have been recovered either. Considering this, I feel compelled to state that the appellant's defence that what occurred was a breach of the agreement cannot hold, as I take the view that he had no option but to defend himself in this manner to escape the charge against him. However, the truth remains that when he took the mobile phone and motorcycle from PW2, he did so fraudulently. This fraud is evident from the fact that he pawned the phone, which shows he did not take it to communicate with the person he claimed owed 15 him money. Additionally, taking the motorcycle from Lindi to Mtwara demonstrates further deceit, as he used fraudulent means to obtain the motorcycle. Obtaining goods by false pretence, being a minor and cognate offence of stealing by an agent, leads me to conclude that while the charge of stealing by an agent against the accused has not been proven, which leads me to acquit the appellant from the charge of stealing by an agent. Nevertheless, for the reasons I have endeavoured above, lam hereby inclined to substitute, under section 300

(1) of the CPA, a conviction for the offence of obtaining goods by false pretence contrary to section 302 of the Penal Code, and I proceed to convict him of this offence and sentence him to serve two years imprisonment, effective from the date of his conviction on 27/09/2023 by the trial court. The order for compensation remains intact. It is so ordered. Dated at Mtwara this 7th August, 2024. 16 Court: Judgment delivered today in the presence of Mr. Jagadi Jilala, State Attorney and the appellant. 17