20160422 TZHC Arusha

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA. CRIMINAL APPEAL NO.28 OF 2016 {Originating from Criminal Case No.104/~014 at the District Court ofArusha. I ZACHAEUS MWANDANGALA .......... ~ ............................... APPELLANT

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VERSUS I I REPUBLIC .................................... •........................... RES PON DENT

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JUDGEMENT I Date of last Order:- 22/04/2016 / i I Date of Judgment:- 29/04/2016 I I 1 BEFORE: S.C. MOSHI, l. , I I The appellant was arraigned before the District Court of Arusha for the offence of obtaining money by false pretence c/s 302 of the Penal Code, Cap. 16 R. E. 2002, he was found guilty of the charge, convicted and sentenced to serve a term of seven years in jail and was ordered to pay back Tshs. 13,957,700/= to the complainant. Aggrieved by the' decision he preferred an appeal challenging both conviction and: sentence. The petition of appeal had three points of appeal as hereunder:- , 1. That, the trial Magistrate erred in law and fact by ignoring the appellant evidence ,which clearly and openly revealed that the claim against the appellant was purely contractual, that it arose from voluntary arrangements 1 i

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I I I ! , I between the parties, free from inducement of any kind whatsoever, that the appellant breached the contract henceforth the case was exclusive domain of civil court. i 2. That, the trial magistrate erred in law and fact by convicting the appellant based on insufficient evidence which did not constitute false pretence the key ingredient for the offence the appellant was charged with.

3. That, the trial magistrate erred in law and fact by failure to evaluate prosecution evidence, she grounded conviction on weak and incredible evidence which did not meet the standard of prove required for the offence. At the hearing· of the appeal the appellant was represented by Mr. Yoyo advocate and on the other side Ms. Adelaide Kasala State Attorney represented the respondent, the Republic. Ms. Kasala supported the appeal. She also conceded to what Mr. Yoyo had submitted in support of the appeal. I have considered the submission by Mr. Yoyo, the record and the relevant laws. Regarding the 2nd ground, I agree with Mr. Yoyo that:- the evidence produced before the trial court did not constitute the ingredients of the offence. The key ingredients for obtaining money by false pretence according to section 302 of the penal code is falsification, representing the facts which are false. While knowing it's false with intend to defraud. 2 Looking at the evidence as a whole, there is nothing on record to establish that the accused did make falsification while knowing it's false with intention to defraud before he obtained the credit. The available, evidence, especially PWl's testimony, shows that there was a voluntary arrangement to get the loan and that the loan was given to the accused and that he defaulted to service hence there was no mensrea. It is apparent that there was gross

misdirection on the side of trial Magistrate for the reasons:- One, there was no proof that the issue of luggage at Holili, was false. The case of Emmanuel s/ o Kahama vs R. [1983] TLR 81 is relevant. According to the record there was no proof at to whether the luggage Holili was there or not. Thus it is evident that, the trial court acted on suspicions, the Court of Appeal in the case of John Mgindi V.R. [1992] TLR 377 the CAT held that; ''the grave suspicion that the appellant was culprit was not sufficient enough to grant conviction'~ It is true that, there were some contradictions on the prosecution's evidence, initially PWl said that she gave him the money and he was to give back the money on the following day. It was like a bail out. However the same person contradicted himself that there was a loan agreement [exhibit P.1]. The case of leremia Shemweta V.R. [1985] TLR No.228 is relevant; in this case the court had this to day:- ''Discrepancies in various accounts of statement of witnesses give rise to reasonable doubt about the guilt of the accused" 3 ' I On the 1st ground. It is also true that, the trial Magistrate ignored the appellant's evidence; which raised Reasonable doubt. Where there's a reasonable doubt, it is the duty of court to give the accused the benefit of doubt. Trial Magistrate did not analyze what the accused said. The fact that the appellant was

business man; that he had some financial constrains, the said constrains prompted him to look for loan and that he was advanced some loan because of the same constrains he couldn't service the loan in time. The evidence as a whole shows that there was a breach of contract for loan, see the case of Republic versus Taitus Petro [1998] TLR 395 where it was underscored that:- " The money received by the accused was for the purpose of business which he failed to reimburse that gave the complainant right to sue in contract and did not amount to offence of obtaining money by false pretence// It is therefore clear that the dispute was of Civil Nature which ought to have referred to a civil Court. On third ground of appeal, having said as I did, it is obvious the case was not proved beyond a reasonable doubt. The onus of proof lies to the prosecution. See the case of Jonas Nkize V.R. [1992] 213 courts had this to say:- "The general rule in Criminal prosecution is that the onus of proving the charge against the accused is on the prosecution and the standard ofproof is beyond reasonable doubt This is a trite Law. Ignoring ,tor forgetting is unforgivable. 4 j All in all, I find that this appeal has merit, hence the appeal is allowed, conviction is quashed, sentenced is set aside, and the accused should be released unless held in jail for other lawful cause. Also the order to return the money is set aside. Right of Appeal is explained. S.C.g;;I

JUDGE 22/4/2016 5 l