James Duru @ Nade vs Republic (Criminal Appeal No. 100 of 2020) [2023] TZCA 17642 (22 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: MUGASHA. J.A. MWANDAMBO. J.A. And MAIGE. 3-A.t CRIMINAL APPEAL NO. 100 OF 2020 JAMES DURU@ NADE ....................... .... ........... ..... APPELLANT VERSUS THE REPUBLIC .... ......... ..... .... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) fTwaib, J.1 dated the 10th day of December, 2019 in (PCI Criminal Appeal No. 49 of 2018 JUDGMENT OF THE COURT 18th& 22n d September, 2023 MUGASHA, 3.A.: In the District Court of Same at Same, the appellant was arraigned as hereunder: "STA TEMENT OF OFFENCE: Obtaining money by false pretences c/s 302 o f the Penal Code Cap 16 (R.E o f2002). PARTICULARS OF THE OFFENCE: JAMES S/O DURU NADE on diverse dates between April 2015 to 32rd November, 2015 at Same District within i

Kilimanjaro Region with intent to defraud or deceive, OBTAINED Tanzania shillings one Hundered and Fifty-Nine Millions and Hundred Thousands (Tshs. 159,500,000/-) from KHADIJA W/0 SHABAAN MLACHA by pretending that he will collect and transport building materials needed by the said KHADIJA W/0 SHABAAN MLACHA a fact he knew was not true." The appellant denied the charge and in order to establish its case, the prosecution paraded six witnesses and tendered three documentary exhibits namely: Cash Deposits slips (exhibit PI); Customer Account statement (exhibit P2) and the cautioned statement of the appellant (exhibit P3). From the totality of the evidence adduced by its witnesses, the prosecution case was to the effect that: The Director of Ally Kachenje Secondary School one Khadija w/o Shabaan Mlacha (PW1), on diverse dates had deposited into the appellant's account No. 5031000517 at the National Micro Finance Bank on agreement that, he would collect and deliver building materials required by PW1 at the said school. This was between September and November, 2015 as reflected in the cash deposit slips tendered at the trial as exhibit PI which was flanked by the evidence of the NMB Branch Manager at Same, Levina Mugyabuso (PW4) and G.24

DC Ramadhani (PW5) a police officer who recorded the cautioned statement of the appellant which was tendered at the trial as exhibit P3. However, the appellant neither supplied the building materials nor refunded the monies to the complainant even upon being demanded to do so. The matter was reported to the police and ultimately, the appellant was arraigned in court as earlier stated, In his defence, besides denying the charge, he contended that, there is no documentation of what was agreed in order to establish if the complainant had instructed him to supply the building materials. After a full trial, the appellant was found guilty, convicted and sentenced to a jail term of seven years and he was ordered to refund a sum of TZS. 159,500,000.00 to the complainant. Aggrieved, the appellant lodged an appeal to the High Court where the term of imprisonment was reduced to four years and six months whilst the order of compensation or refund to the complainant was not reversed. Still undaunted, the appellant seeks to impugn the decision of the High Court to demonstrate his innocence. In the memorandum of appeal, the appellant has raised eight grounds of complaint as hereunder:

1. THAT, the first appellate Court erred in law and in fact in holding that the evidence tendered by the Prosecution had sufficiently proved the case against the appellant.
2. THAT, the first appellateCourterred in law and in fact when it upheldthe conviction while the charge sheet was defective.
3. THAT, the first appellateCourterred in law and in fact when it failed to noticethe substantial discrepancies between the charge leveled against the appellant and the evidence on record.
4. THAT, the first appellate Court erred in law and in fact for upholding the admission of exhibits F.l and P.2 while there was non-compliance of the law.
5. THAT, the charge sheet was at variance with the prosecution evidence.
6. THAT, the first appellate Court miserably failed to scrutinize the prosecution evidence.
7. THAT, the trial Magistrate erred in law and in fact in that he did not consider the appellant's defence, failure by the trial magistrate to consider the case for the defence constituted a breach of the rules of natural justice.

At the hearing before us, the appellant who entered appearance in person, unrepresented, adopted the Memorandum of Appeal without more and opted to make a rejoinder to the reply submissions of the respondent Republic. For her part, Ms. Revina Tibilengwa, learned Principal State Attorney who co-appeared with Ms. Eliamanyi Njiro, learned Senior State Attorney, initialiy resisted the appeal on ground that the evidence on the record, implicated the appellant since failure to supply the building materials had the effect of deceiving the complainant who had paid the respective monies into the appellant's Bank account. We probed Ms. Tibilengwa on the propriety of the charge and the appellant's complaint in the second ground of appeal that the conviction was based on a defective charge. Upon taking the floor, on reflection, she conceded that a crucial ingredient to wit, "by false pretence" does not feature in the particulars of the offence stated in the charge upon which the appellant was arraigned, tried and convicted. She as weli submitted that, given the factual setting of the matter, it was uncalled for to commence a criminal action against the appellant and instead, the complainant should have initiated a civil action to seek specific performance in order to be supplied with the ordered items.

This being a point of law, the appellant had nothing useful to add besides supporting the submission of the [earned Principal State Attorney. After a careful scrutiny of the grounds of complaint, the submission of the parties and the record before us, we have to determine the propriety or otherwise of the criminal charge against the appellant which is a subject of this appeal. Section 302 of the Penal Code under which the appellant was charged stipulates as follows: "Any person who by any false pretence and with intent to defraud, obtains from any other person anything capable o f being stolen or induces any other person to deliver to any person anything capable o f being stolen, is guilty o f an offence and is liable to imprisonment o f seven years." [Emphasis supplied] From the bolded expression, it is glaring that the words "by any false pretence" is an essential ingredient of the offence of obtaining money by false pretence with intent to defraud. As such, the false pretence must be alleged in the particulars of the offence. Given that the charge is the foundation of the trial, in terms of section 135 of the Criminal Procedure Act CAP 20 R.E.2022, the mode in which the offences are to be charged 6

entails among other things, stating all the ingredients of the offence in the particulars. This is crucial in order to enable the accused person to understand the nature of charge preferred against him in order to make an informed plea and defence. Where a charge lacks any of the ingredients of the offence, if not remedied in the evidence adduced by the prosecution, the charge will be rendered defective. Earlier on, we deliberately extracted the charge with which the appellant was arraigned to show that, the detail of false pretence is conspicuously missing in the particulars of the offence. The "false pretence" must be stated in the particulars of the offence in order to establish the intent to defraud. This was emphasized in the case of REBEKA RASHID SAMBOYA VS REPUBLIC, Criminal Appeal No. 18 of 2015 (unreported) whereby the Court fully subscribed to the case of EDWARD OPIYO S/O ANGURO VS REPUBLIC (1968) HCD n. 55 where the court had among other things, held that, the false pretence must be set out in the charge with sufficient certainty in order to establish the intent to defraud. Thus, the missing ingredient of the offence of false pretence which is crucial to establish the intent to defraud, rendered the charge defective as it lacked sufficient details on which the appellant would

make his informed plea and defence. The omission occasioned a failure of justice. The foregoing aside, apart from the prosecution proving that, PW1 deposited monies into the appellant's bank account on agreement that he would supply the building materials which never materialised, no evidence was led to the effect that a false pretence was made by the appellant with intent to defraud the complainant. That apart, we have also seriously considered the propriety of criminal charge filed against the appellant and a subject under scrutiny. The charge and the entire evidence show that, although the appellant was paid monies through the bank account, he did not perform his obligation to collect, transport and supply building materials to Ally Kachenje Secondary School upon the instructions of PW1. Thus, in our considered view, the entire evidence on record is not in support of a criminal charge. Instead, in the circumstances, the proper course was for PW1 to commence a civil action against the appellant to seek specific performance. In view of what we have endeavoured to demonstrate, the conviction of the appellant cannot be spared as it is founded on a defective charge and secondly, the trial court embarked on nullity to invoke criminal

jurisdiction to entertain and try a civil matter. We thus find the 2n d ground of appeal merited and proceed to nullify the entire proceedings of the trial and first appellate courts, quash and set aside the conviction and sentence meted on the appellant. If the complainant so wishes, she may institute a civil case to recover the monies alleged to have been paid to the appellant. Since the determination of the 2n d ground is sufficient to dispose of the entire appeal, we shall not determine the remaining grounds of complaint. DATED at MOSHI this 21s t day of September, 2023. S.E.A. MUGASHA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL IJ. MAIGE JUSTICE OF APPEAL The Judgment delivered this 22n d day of September, 2023 in the absence of the Appellant and Ms. Revina Tibilengwa, learned Principal State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D.R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 9