20180425 TZHC Mwanza

... ( · IN THE HIGH COURT OF TANZANIA .· IN THE DISTRICT REGISTRY AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 90 Of 2017 (Originating from the District Court of Sengerema at Sengerema in Criminal Case No. 09 of 2015) . ' ',....._ TIBANYENDEZA S/ 0 SALUM .................................... APPELLANT', VERSUS THE REPUBLIC ..................................................·... RESPONDENT JUDGMENT f!UKUKU, J._: The appellant, Tibanyendeza s/o Salum was charged with and convicted of obtaining money by false pretence contrary to section 302 of the Penal Code, Cap 16 R.E. 2002. A~cording to the charge sheet dated 14th /. January 2015, the appellant was charged wi({t eleven (11) counts of -1• '- • 9btaining money by false preten~e from -different people between November 2013, and 15th August, 2014, ·at Kijiweni village within Sengerema District in Mwanza Region. · It' was alleged ·that, the appellant, with intent to defraud, did obtain the said monies from those people, claiming that, he was in a position to ( secure employment to the youths at the vicinity·, from the Tanzania Police Force, for a consideration. ·The matter was heard by- the trial court and in the end, ~he appellant · was found guilty. He was convicted and sentenced to serve a jail term of two years in respect of the 1st, 3 rd , 6th , and 9th counts, which sentences were to run differently. Aggrieved by the decision of the trial· court, the appellant has now appealed to this court: In his Petition of Appeal, the appellant has fronted seven grounds of appeal as follows:- 1. That, the trial magistrate erred in a point of law by failure to consider the contradictory evidence of the prosecution witnesses; thus unsaFe conviction. 2. That, the presiding trial magi?trate erred in law to convict the appellant when he relied on uncorroborated evidence. 3. That, the trial magistrate erred in law to convict the appellant where he relied on the testimony (evidence) of PW1 and PW2 who were not the credible witnesses. 4; That, there was no any written docu.ment that brought (sic) in court as exhibit which rink/connect the appellant with the_ alleged offence. 5. That, the trial magistrate erred in law to convict the appellant relied . (sic) on the Elizabeth Delaude claims whose evidence was notadduced in court. 6. That, the trial court erred in law to impose conviction upon. the . appellant relied (sic) on the evidence which was not supported by even the Local Government leader e.g. VEO. 7. That, the trial magistrate erred in law and fact by relied (sic) on the prosecution case which was not proved beyond the reasonable doubt. The appeal was argued orally. The appellant appeared in person unrepresented. The Respondent Republic was represented by Mr. Juma Sarige, learned Senior State Attorney, who out righty, supported the appeal. Submitting on his part, the appellant averred on his first ground of appeal that,_ the trial court· convicted him based on the evidence of PW1 which was not corroborated·. PW1 claimed that he sent him to an M-jJesa agent, but there was no evidence tendered to pro.ve that. On the second ground, he submitted that, PW1 and other witnesses claimed that they gave 3 ~- · him monies amounting to T.shs. one mi!iion pius at different dates, but their evidence was not corroborated: On the third ground he submitted PWl and PW2 were not credible witnesses, since there was n_o evidence tendered in . court. He further submitted that, the M-pesa person-was not called to testify. On the fourth ground of appeal he _submitted that there was no any written document tendered in court as exhibit to link him with the crime. On the fifth ground he submitted that the magistrate erred in law in relying on the evidence of Elizabeth Delaunde whose evidence was not adduced in court. The person who came to court was Elizabeth Misiri who testified that sh_e also gave him some money, one million plus. Her testimony was not corroborated even by her brother who was his friend. On the sixth ground of appeal, the appellant submitted that the testimonies of the prosecution witnesses were not even corroborated by the Village Executive Officer who did not testify in court. On the seventh ground of appeal, the .appellant submitted that, the magistrate erred in relying on the prosecution case which was not proved beyond reasonable doubt. I.) . . In response, Mr·. Sarige out rightly supported the appeal. The reasons being that, the appellant was charged with the offence oftheft, by obtaining money by false pretence. To prove this offence,_ one has to prove asportation . . (moving the property from one place to the other). According to Mr. Sarige, it has to be proved that the appellant was given the said monies by _the complainants, but this was not proved by the prosecution. He further averred that, according to the testimonies of PW1, PW2 and PWS, they gave the appellant monies in order for him to secure jobs in the PoHce Force for their relatives.· Some said they gave him cash and some through M-pesa. ~nfqrtunately, there is no-proof of such· payment through- M-pesa, rior was-- there any evidence of cash payment to the appellant. Mr. Sarige further averred that, the testimonies of the prosecution is marred with contradictions in that, PW1, PW2, PW3 and PWS told the court that, they gave the appellant monies in order to secure jobs for their relatives. But these. relatives named, were not called to testify. As to PW2, he told the court that, having paid the appellant, he was promised that, his relative would be calledto join the Police Academy in April, and that, when he was given t_hat promise by the appellant, he was with. one Vincent, who was also not called to testify. PW3, PW4 and PWS all told the court that, 5 ~ they reported the matter to the· Village Executive Officer, who told them to take the appellant to his office, but that, the appella·nt refused. For that matter, there was a need for the Village Executive Offic~r to be called as a witness. Mr. Sarige further submitted that,· much as it is alleged that all the prosecution. witnesses said. they reported the matter to the police, but no policeman ever testified in court. Another contradiction is that, all witnesses said the incident occurred in 2014 but PW3 told the court that the incident occurred in 2016 which creates doubts. It is for these r<;=asons Mr. Sarige avers_ that, there are a lo_t of doubts and contradictions in the prosecution's case which was not proved as required. He thus prays that, such doubts be resolved in favour of the appellant, and the appeal be allowed. I have carefully gone through the proceedings at the trial court and submissions during the heari.ng of the appeal. As already intimate~, the learned Senior State Attorney, Mr. Sarige, declined to support conviction, submitting as he did, that there was no evidence sufficient enough·to sustain conviction. The genetic starting point here is that, in any criminal charge, the trial magistrate has the duty to look at the whole evidence, in answering G .. ---··' I / ~ .,..-....-- ~ / the issue of guiity; Such evidence must be there first, including evidence against the accused, adduced by the prosecution, which is supposed to prove the case beyond reasonable doubt. Here, . . it is a question of burden of proof, and ·upon whom it lies. The general rule in criminal prosecution is that, the onus of proving the chqrge against the accused,· beyond reasonable doubt, lies on· the prosecution. This is part of our law, and cann_ot be ignored (See: Wool mington V. OPP [1935] 25 Criminal Appeal R. 72). There is no such burden laid on the accused to prove his innocence, no ·matter what the charge is. All what the accused person is required to do is to raise a doubt as to his guilt, and is not bound to satisfy the court of his innocence. . In his judgment, the learned trial magistrate found the evidence of the prosecution case (PW1 to PW5) to be credible. This is what he briefly said at page 5 .of his typed judgment:- "There is no way all the people say PW.1. - PWS can lie against the accused· who is their village mate and some of them call him relative. Accused defence that he was arrested and denied to have 7 collected the money fron7 these people is a story · which anyone can hear but in realtty there is no truth in it ............... /~ With greatest respect to the learned trial magistrate, I fully subscribe to Mr. Sarige's submissions. The reason is not far fetched. The appellant was · charged with and convicted of .obtaining nioney by false pretence c/s 302 .of the Penal Code. Some of the witnesses who testified, told the court that they gave the appellant money through M-pesa, through an M-pesa agent called Raheli M_kama. Unfortunately,· none of these witnesses produced in court th~ __ M-pesa number which they used in paying the appellant, nor did they bother to call this Raheli Mkama: I am given to understand that, this Raheli Mkama was an important witness in proving that indeed, she did the money transactions, and that, the appellant had received the alleged monies through M-pesa. For reasons best known to the prosecution, this person was not called to testify. · There are also other witnesses who told the court that, having realized that they have been swindled by the appellant, they reported the matter to the village offices where the appellant was summoned to appear but did not do so, hence reporting the matter to the police. Neither the Village Executive Officer nor the Police Officer testified before the trial court to indicate what was reported to them, by· whom and when. Equally, according to PW1, - PW2, P\fl/3 and PW5, they told the court that, they paid the appellant in · order to secure jobs for their relatives. None of the relatives named were called to testify. It is on record· that; neither Rachel Mkama who allegedly sent the monies to the appellant through M-pesa, the Village Executive Officer, nor the police, have failed to testify. Failure to call essential witnesses leads to . . only one irresistible inference. Had they testified,- they would have belied these five prosecution witnesses. There is also a contradiction as to when the appellant received the monies. While some prosecution witnesses told the court that they gave the appellant the monies between January and February 2014, PW3 told the · _court that the incident occurred in 2016, something which creates doubts. · There are those who told the court that, they gave the appellant cash money, - PW3 Elizabeth Misili and PW4 Jacob Matali. One wonders, how can one part with sue~ an amount of money without there being a witness or an agreement of any sort? All these are doubts which the prosecution ought to . . have eliminated. Since these doubts ren1ain unresolved, they were supposed to be resolved in favour of the appellant herein. _ I have noted with regret and sorrow tha·t, the learned trial magistrate did not bother much to examine the evidence of both the prosecution and the defence, before concludfng that the testimonies of PW1 to PW5, have proved on how the compl_ainants actually paid monies to the appellant. As demonstrated herein, the conviction of the appellant was not based on watertight evidence. In other words, the trial magistrate discharged his duty-:- to analyse the evidence of the prosecution ve_ry slovenly. It was, with due respect, not subjected to any objective evaluation at all. Having given a summary of the evidence, the learned trial magistrate concluded thus:- '~ ......... a// witnesses cannot Just stand to lie against only one person nor an offence which did . t.......... . // no t ex1s It is obvious_ from the above that, the learned trial magistrate had · already formed his opinion. He never had the time to consider the appellant's defence. 10 .. . . ·All $aid and done, I allow this appeal _ln its entirety. The prosecution has failed to prove its case as required by law. As such, the appellant's conviction is hereby quashed and set aside as well as the sentence imposed on him. The appellant is to" be released forth with from prison, where.he has been languishing since December, 2016, unless he is otherwise lawfully held. Ordered accordingly. JUDGE Delivered at Mwanza, This 25 th April, 2018. 11