20190513 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

MWANZA DISTRICT REGISTRY

AT MWANZA CRIMINAL APPEAL NO. 249 OF 2018 [Appeal from the Decision of Chato District Court in Criminal Case No. 208/2017 Hon. J. Kato District Resident Magistrate] payment being effected in future dates. Subjectto such agreements, on 27th May 2017, Asha Clavery (PW1) supplied the appellant with water melons worth Tshs 4,000,000/=. The appellant promised to pay in three l C• days. He failed. PW1 reported to Police at Kahama. The appellant was arrested and upon interrogation, he admitted in writing (PE1) to have received 'the melons. He promised to pay by 16th June 2017. He failed again . . With that background the appellant was arraigned at ~ r i c t coUrt of Chato and charged for Stealing by Agent contr~ct~,1the Penal Code Cap 16 RE 2002. The particul~f offense~als that.on 27th May 2017 around 14:00hrs w ~ ~ ~ \ i l l a g e in Chato District, the appellant stole_ .. a~elO~~d at Tshs 4,000,000/= ~~'\; . which were entrusted to h_im fo/':lle,pJesses of selling and remit the . Li \ ~~ . . . <~ ~""~ proceeds thereof toJhe•owneri"'Asha Olavery. Upon conclusion of the tnal, the appellan~und guilty as charged, convicted and sentenced to a 1/ · )L term of .1l(ei (5·) y·ear:sJ]f'nriserm. . . ·. ·, J~_y~ . Aggrieve~appellant who is now represented by Siraji Mussa Kwikwima, the learned advocate,. ·1odged this appeal against both conviction and sentence, advancing the following grounds: 1. That the trial Magistrate erred in law and in fact in convicting the appellant on crin7inal charges basing on breach of contract 2 2. That the trial Magistrate erred in law and in fact by convicting the appellant on the criminal offense which was not proved beyond reasonable doubt as the· standard ofproof required by law.

3. That the learned trial Magistrate erred in law and fact by ignoring the position of the law which provides.that failure to pay a debt is not an offense in law. . . ~'\ When the appeal came for hearing on 13~ay~o/~anahawa Changale, the learned State Attorney ~~~\)pondent and as noted earlier, the appellant enjoy€/4f □e 1~1-.servi~~f counsel• Kwikima. Given the chance to argur-66ppe>~~~le was ~uick to support the appeal on the roosonJthat ~offense of stealing by agent to stand, t h e r k h ~ \ ~ ~ principal-agent relationship. Ms Changale w a ~ vie~all evidence tendered by the Prosecution duri?_ -~---"e.~_d~stence of business agreement where the {{ \\"0 appellant was a purctiaser of the water melon and not an agent of PWL ~ The learned State Attorney went on to contend that the fact that the appellant having taken PW1's water melons, failed to pay as promises did not in itself constitute a criminal offense. In conclusion Ms Changale 3 ~ submitted the charge was not proved and the trial court therefore, ought not _to have convicted the appellant for stealing by agent. With the respondent supporting the appeal as. such, Counsel Kwikima's task was made easy. Ih his brief address in support o ~ 3rd ground of appeal, the learned counsel argued in line w i ~ ~ ~ ~ ~ i l a David Vs· Republic (1958) HCD 308 that the appellant,was._puQJ_stied for . . ~\V~ failure to pay a debt of which

is not a~ense-.)n~\~gardlng the first ground of appeal, counsel Kwikima' c i t ~ ~ 0 f Mtwa Michael Katusa Vs Reoublic, CriminaPA~~o. 57~f 2015 where the Court . {( A'\~ . of Appeal stated t~wher~ ~soh __ h<l_!?/failed to deliver goods, the specific p e r f ~ . · · H a a e ~was submitted by counsels from both side, I will h a s t ~ l i t h them that this appeal must succeed: All evidence that the prosecution side. tendered during trial proved nothing but existence of an agreement between the appellant and PW1. For easy of reference of what I will saying shortly, I find it pertinent that I reproduce some of the testimonies from the prosecution in this regard as hereunder: 4 PWl r I am a resident of Nyamirembe village working as a peasant of water melons and maize. I have customers from Kahama and Di!r es salaam who buy my water melon. I started this business in 2011. I know the accused person who is mvgood customer of buying mv water melons. I remember on 2Jth Mav 2017, I entrusted the accused water melons worth Tshs,4,000,000/= and he pledges to pav me after . "'"' three davs. ~The ac6used failed, topaymewithindavs, . ~ ~ P~3 ,,. ' A ,,. , / \ ~ t ~ b.: . 1-. ,I I !{now u ,e accuseu w, ,o Is o~g~n -o~~Ing:..OJ!!)WaL-er meIons. I remember on 2Jth May,.,2017 tne'accusea,came and we agreed . . /~ "\_,'\. V . with him to buv our water melons uFJclet'ilgreement that he will · pav

after three davs. ~bndefl/,(~~mtt'asis supplied] .~~ The above ex~rlm p)~d PW3 testimonies, shows the appellant was a oo.d~rnbaser~.!s:{ater melons and that in the incidence of this GQ~~ived water melons as usual, failed to pay Tshs \ )) 4,000~gireed. Apparently, taking a leaf from the Court of Appeal decision in Mtwa Michael Katusa's case which was referred to me by counsel Kwikima, this was not a criminal case, rather it was a civil matter. By failing to perform his party the agreement, the appellant committed no criminal offense and since it was alleged that having been entrusted with water melons, the appellant did not pay as promised, the only remedy 5 ti available PW1 was to recover the value of her entrusted goods through .• civil action. As correctly argued by Ms Changale, to establish a charge of stealing by agent, evidence must be tendered not only to prove existence of principal agent relationship but more so, that the complain·an~as the principal .and the appellant was in fact the said agent. S~N~fu{the appellant was good purchaser of PWl's. w a ~ ~ ~ c l i evidence was tendered to show that he was an,~W~ Fa~ure to prove these .· ~-~~-~ elements means nothing but failure t~r-0ve a~rge of stealing by agent. . I . I . li/>t. h' I n cone usIon, w1sfi(j, ire rt~ ~lo ~ d~f•.h· · t 'd. Ab.·I D "d w a was sa1 m I a avr Vs ·Republi~1'~~ding those responsible for

administration . of c&alj~~~1~reful by not crossing their lines as there is cl\~io~tween civil matters and criminal ones. To cross the line l : l y t w o in the circumstances of this case is to prejudice those who seeks justice in courts of law. That being said, I find merits in this appeal and I allow the same. The Judgment of the Chato District Court in Criminal Case No. 208 of 2017 is hereby quashing and. both the appellant's conviction and sentence is set aside accordingly. The appellant 6