Hamida Nuhu and Another vs Republic (Criminal Appeal No. 441 of 2022) [2024] TZCA 1287 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LILA. 3.A., MURUKE, J.A. And MDEMU, J.A.) CRIMINAL APPEAL NO. 441 OF 2022 HAMIDA NUHU ....................................................................... lST APPELLANT RAMADHANI ABDALLAH MKINA ............................................ 2 nd APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Dodoma) fKaqomba, J.l dated the 22n d day of March, 2022 in DC. Criminal Appeal No. 106 of 2019 JUDGMENT OF THE COURT 2n d & 13th December, 2024 MDEMU. 3.A.: The two appellants are husband and wife. They were arraigned in the District Court of Kondoa for three counts. The first count was in respect of conspiracy to defraud framed under section 306 of the Penal Code, Cap. 16 (the Penal Code). It is alleged in the particulars of the offence that, on unknown date in the year 2016, the couple secretly and with intent to defraud, planned to obtain money by disposing, through sale, a house situated in Plot No. 91 Block "EE" (the house) to one Ramadhani Ally, l

knowingly the encumbrances associated with to the CRDB Bank. The second count was in respect of obtaining money by false pretences contrary to section 302 of Penal Code. In this count, the couple, through false pretence coupled with an intent to defraud, obtained TZS 21,000,000.00 from Ramadhani Ally falsely pretending to sale the house, a fact knowingly to be false as the house was encumbered with CRDB Bank. The third count involved cheating contrary to section 304 of the Penal Code. These offences were committed between 1st January to 30th May, 2017 at Miningani Street in Kondoa District. The duo pleaded not guilty in all the three counts. It was stated during trial that, sometimes in December, 2016, the second appellant and one "Mgalatia" approached Adam Idd @ Kurelo (PW1) intending to sell the house. By then, PW1 was not financially sound but promised to locate another purchaser. In a two weeks' time, Hija Suru (PW2) informed PW1 that his young brother one Ramadhani Ally was interested in the purchase of a house. With this information of the interested buyer, PW1, PW2, the second appellant and one "Mgalatia" went to the house on sale and found the first appellant in. They then agreed that, PW2 should liaise with the purchaser. In a week time or so, PW1, PW2, "Mgalatia", the second appellant and the purchaser one Ramadhani Ally, went again to inspect the house. As was in the first visit, the team met again the first appellant. They were ail 2

shown the rooms and the boundaries. The second appellant informed the purchaser that the house, whose title is in the name of the first appellant, has no any encumbrance. The purchaser developed interest thereto. According to the record, the agreed purchase price was TZS 30,000,000.00. In a short while, the purchaser deposited TZS 21,000,000.00 in the account of the first appellant at CRDB Bank. Before the remaining balance was paid, PW1 found a public auction notice fixed in the house informing the public that the house is under auction by CRDB Bank. One Mama Rilly became the highest bidder; thus, the house was sold to her. PW2 then went to CRDB Bank with the title deed handed over to him by the appellants, only to be informed that, the title deed of the house sold is in the name of the second appellant while the one he had was in the name of the first appellant, with the certificate of tittle indicating Plot No. 188 Block "DD" (exhibit P2). On seeing this, PW2 informed the first appellant who readily explained the efforts of the second appellant to reimburse TZS 21,000,000.00 paid as part payment of the purchase price. Later, PW2 took the first appellant to the police station, hopeful, with a view to have the money reimbursed. It was of no success. He also arrested the second appellant. We noted above that, the duo pleaded not guilty in all counts. In their defen d the duo stated that, the agreed house for sale was in plot No. 188 Block "DD" whose title deed was given to the purchaser during sale and not 3

the house situated in Plot No. 91 Block "EE." The trial court analysed the evidence it recorded and ultimately, found the appellants not guilty for the offence of conspiracy to defraud. The duo was however found guilty in the count of obtaining money by false pretence. The learned Resident Magistrate thus convicted and sentenced the duo to a conditional discharge of six months with a direction that, they should reimburse a partially paid purchase price of TZS 21,000,000.00. The duo was not happy with the trial court's findings and thus appealed unsuccessfully to the High Court. In dismissing the duo's appeal, the first appellate court made the following observation as seen at page 136 of the record of appeal: "One can blame the buyer fo r paying money without a contract, but that would not impeach the fact that the sellers obtained money and in so doing, made false pretences and had intent to defraud. For this reason ; the appeal lacks m erits and it is dism issed accordingly" Dissatisfied further, the appellants sought this second appeal premised on the following two grounds:

1. That, the first appellate court erred in fact and law in upholding the trial court's decision which erroneously

convicted and sentenced the appellants on the case which was not proved beyond reasonable doubt. 2. That ,■ the first appellate court erred in fact and in law in its duty o f re-evaluating the defence by failing to consider the defence case." At the hearing of the appeal before us on 2n d December, 2024, Mr. Leonard Mwanamonga Haule, learned advocate, represented the two appellants whereas Messrs. Happiness Makungu and Jofrey Mlagala, both learned Senior State Attorneys, appeared to represent the respondent/Republic. Mr. Haule began his submission in support of the appeal by inviting us to interfere with the concurrent findings of facts by the two courts below because of the misinterpretation and misapprehension of the evidence before them which, he promised, would indicate to us in the course of his submission. He therefore faulted the trial court for making a summary of the evidence of the prosecution and that of the defence without making any thorough analysis and scrutiny thereof. He also faulted the first appellate court for slipping into the same error as seen at page 135 through 136 of the record of appeal. He specifically referred us to pages 48, 49 and 52 of the record of appeal in the evidence of DW1 and DW2 which, in his argument, is indicative that, the house sold and whose title deed was handed over to the purchaser, 5

was situated in Plot No. 188 Block "DD" at Miningani Street. The said residential house, which, its title was in the name of the first appellant, had no any encumbrance. In his argument, had the courts below considered this defence evidence, would have concluded that, the house sold to the purchaser was in Plot No. 188 Block "DD" and not Plot No. 91 Block "EE." He cited to us the case of Abel Masikiti v. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (24 August 2015; TanzUI) inviting us to vitiate the entire proceedings for non-consideration of the defence evidence. Submitting in ground one of the complaints that the prosecution case was not proved, the learned counsel argued the following: one, that at page 135 of the record of appeal, the first appellate court shifted the burden of proof to the appellants by failure to disclose which house between the two had encumbrances. Two, that the respondent was duty bound to conduct an official search and that Mr. Anold Mlokozi Mombeki (PW5) should have been engaged in the conduct of such a search. Three, the prosecution should have tendered a sale agreement or even the valuation report which would have established which house was involved in the sale. In the absence of this evidence, to the learned counsel, it meant, there was no material within which the conviction would base. Four, lapses in the prosecution case noted by the first appellate court at page 136 of the record of appeal should have benefited the appellants. Five, the prosecution did not prove

beyond reasonable doubt the presence of false pretence and an intent to defraud being fundamental ingredients in the offence of obtaining money by false pretence. Six, exhibit P2 was not cleared for admission and exhibit P4 was neither cleared for admission nor read in court after being admitted. His argument in these two procedural irregularities was that, it renders such exhibits amenable to be expunged and he urged us to hold so. Seven, the evidence of PW4 that the second appellant was present when the house was visited, should not be trusted because at that time, the second appellant was in Mozambique. The court also did not properly consider the said defence of alibi. His last argument was that, this was a fit civil suit because the transaction does not portray any element of criminality. In reply, Ms. Makungu commenced by making reference to the case of Gaudence Sangu v. Republic (Criminal Appeal No. 88 of 2020) [2022] TZCA 784 (7 December 2022; TanzLII) and Hussein Mwishehe Sudi v. Republic (Criminal Appeal No. 363 of 2017) [2024] TZCA 494 (25 June 2024; TanzLII) arguing that, the prosecution did prove false pretence, an intent to defraud and obtaining a thing capable of being stolen being ingredients of the offence of obtaining money by false pretence. He submitted further that, the offence of obtaining money by false pretence was proved because; one, in the evidence of PW1, PW2, PW4 and PW5 the house sold was in Plot No. 91 Block "EE", but the appellants handed over a

title deed of house situated in Plot No. 188 Block "DD." Two, the second appellant informed the purchaser that, the house had no encumbrances, knowingly that, its title had been mortgaged at CRDB Bank. Three, the house was inspected twice in the presence of the appellants, but the appellants did not inquire the reason for so doing, if at all they were not privy to the sale transaction. Four, during trial, the appellants never cross examined the prosecution witnesses that the house on sale was on Plot No. 188 Block "DD" and not the one in Plot No. 91 Block "EE" allegedly in the prosecution case. He therefore cited the case of Issa Hassan Uki v. Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018; TanzUI) imploring us to hold that the appellants admitted that the house sold was in Plot. No. 91 Block "EE." As to an intention to defraud, it was her submission that, the appellants parted away with TZS 21,000,000.00 being part payment for sale of the encumbered house in Plot No. 91 Block "EE". He added that, the appellants informed the prosecution witnesses that, the house to be sold is on Plot No. 91 Block "EE". It is in the appellants' defence where and when matters relating to the house in Plot No. 188 Block "DD" had emerged. Regarding the complaint of the appellant that the defence case was not considered, Ms. Makungu submitted that, the appellants' defence was considered as indicated at page 98 through 99 of the record of appeal. In

her view, the fact that the appellants maintain that the house sold was in Plot No. 188 Block "DD" and that the second appellant was in Mozambique by then, it is the appellants' defence which, do not, in itself, connote that their defence was not considered. Replying on irregularities in the course of tendering exhibits P2 and P4, the learned State Attorney conceded, and as Mr. Haule did, she also urged us to expunge the said documents from the record. She further faulted Mr. Haule's concern that, the case before us is a civil suit. He argued so on account that, the prosecution was able to prove false pretence and the intention to defraud and that, the appellants did not adduce any evidence to discredit the prosecution version that the house sold was in Plot No. 91 Block "EE" and not the one in Plot No. 188 Block "DD." Mr. Haule's rejoinder was simply a reiteration of what he submitted in chief. We are delighted to begin our discussion by highlighting what Mr. Haule began in his submission in chief that, this being a second appeal, the Court rarely interferes with concurrent findings of facts, save on misdirection leading to miscarriage of justice. See Hussein Mwishehe Sudi v. Republic (supra). Having said so, it is on record that, the two appellants received TZS 21,000,000.00 from Ramadhani Ally being part payment for the sale of a house of the appellants. It is also clear that, neither the appellants nor the respondent/Republic tendered any documentary evidence

to prove the sale. The evidence regarding the sale of the house is absolutely oral. It is also settled in the record of appeal that, exhibit P2, which is the certificate of title, was handed over to the purchaser following part payment of the purchase price. The record further reveals that, the remaining balance of TZS 9,000,000.00 was not paid following the dispute which arose regarding which house between the one situated in Plot No. 91 Block "EE" and that one in Plot No. 188 Block "DD" was involved in the sale. Importantly, we note in the record of appeal that, both houses were the properties of the appellants at the time. Given the above sequence of events, what we are tasked upon to resolve is which house between the one situated in Plot No. 91 Block "EE" and that one in Plot No. 188 Block "DD" the appellants sold. If they sold the one in Plot No. 91 Block "EE", certainly, the offence of obtaining money by false pretence would prevail because that house had some encumbrances. If, on the other hand, the house sold was in Plot No. 188 Block "DD" as maintained by the appellants consistently, then the allegation that the evidence on record perverse criminality may hold. The question we raise now is whether, the offence of obtaining money by false pretence was proven beyond reasonable doubt by the prosecution. This essentially, is the crux of the matter and in particular, calls upon us to reevaluate the evidence,

which Mr. Haule, said the two courts below did not pay a thorough attention. In essence, that is the main complaint in the grounds of appeal. The law as stated in Gaudence Sangu v. Republic (supra) at page 18 of the judgment is clear that, for the offence of obtaining money by false pretence to stand, false representation and an intent to defraud, are two essential ingredients which must exist. Before reaching that end, we need first to resolve one important component, that is, which house between the two was sold. We said above that, neither the appellants nor the respondent Republic herein produced in court any written agreement to establish that transaction. We must say that, since there is no dispute that the appellants are the proprietors of the two houses and, since there is no dispute that the appellants received TZS 21,000,000.00 being part payment for sale of the house, we think the fact as to which house was sold, may be proved by oral evidence. We do not therefore agree with Mr. Haule that, this is a fit case to be proved by the production of a written agreement. In that sense, our evaluation of the entire evidence in the record of appeal revealed the following. First, it is the second appellant who initiated the transaction to PW1 that he has a house to sale. By that time, the second appellant did not have any documentation but when they visited the scene, both appellants told the visiting team that, the house on sale is in Plot No.

91 Block "EE." The record of appeal at page 21 is a revelation to this fact as follows: "Yes, before that, I knew that house. We asked them number o f that house and told us that its number is No. 91 Block "EE/' But, on the other hand, the second appellant seem to maintain his stance in his evidence that, the house negotiated for sale is in Plot No. 188 Block "DD" and that, he did not take the purchaser and his companion in house situated in Plot No. 91 Block "EE." He also stated to have left for Mozambique leaving his wife, the first appellant, to proceed with the sale transactions. However, reading the evidence of DW1 critically, nowhere she acknowledged to have been entrusted by the second appellant to proceed negotiating with PW1 and PW2 regarding sale of any house. She appeared to have dealt with the prosecution witnesses independent of any instruction from the second appellant. At page 48 of the record of appeal, the first appellant, testifying as DW1, stated that, we quote: "I am a resident o f Kondoa a t Miningani street In 2017,1 made business o f a house with Hija Bakari, Adam Iddi representing the buyer one Ramadhani Aliy. I agreed by Hija Bakari and Adam Iddi... to se ll house in Block "DD" Plot 188, to them situated at Miningani Street I agreed with them to buy that house a t the value o f Tshs 30,000,000/=" 12

Second, the evidence of the first appellant is silent as to whether the prosecution witnesses visited a house in Plot No. 188 Block "DD." We are perplexed as to where the negotiation was conducted and concluded. Since the first appellant is silent, and since it is not disputed that, the prosecution witnesses purchased the house they visited, then it is obvious that the second appellant took the prosecution witnesses to a house in Plot No. 91 Block "EE" where the first appellant was. It was also the first appellant who opened the door and led the purchaser team to see how the house looks like, the boundaries inclusive. We add further that, the forestated evidence of the appellants on how the transaction came into being differs materially. They seem to hide or conceal some vital information on the house sold. This, in our view, is also evidence relevant to prove the offence of obtaining money by false pretence. It was observed in Fatuma Said Mahanyu v. Republic (Criminal Appeal No. 323 of 2019) [2022] TZCA 628 (12 October 2022; TanzLII) that: "The act o f concealing vita! information in a land purchase, was obtaining money by false pretence. That said, if the appellant had good intentions, they ought to have notified the purchasers o f the predicaments o f the said plot. Also see Tambwe vs R [1971] HCD No. 284. " Third, the house was known to PW1 prior to the visit made by him, the second appellant, PW2 and one "Mgalatia". Fourth, PW1, PW2, the

second appellant and one "Mgalatia", made a first visit to the house to be sold. The first appellant was present in that first visit. In fact, she was also present in subsequent visits to the house. It is therefore not correct as argued by Mr. Haule that, the second appellant was not present. The two courts below therefore rightly rejected the second appellant's alibi. Let the record of appeal speak for itself at page 20 as hereunder: "Thereafter another date I, RamadhaniAbdaHah, Hija Soruf Mgalatia went to see that house. A fter arrived there, we found Hamida Nuhu who is the accused's wife lives in that house. She opened the door o f that house and entered inside and see the way it is bu ilt...A fter one week, he came and I, Hija Suru, Mgalatia, Ramadhani AbdaHah and Ramadhani A lly Mataka-the buyer, went together up to that house and first accused person was there. Thereafter, as usual, she opened the door o f that house and entered in that house and see in every room . Also, we checked a ll boarders o f that house, "[emphasis added] It is now settled, in our view that, the house sold by the appellant is in Plot No. 91 Block "EE" and not the one situated in Plot No. 188 Block "DD" as alleged by the appellants in their evidence. Next is whether there was false pretence in the course of selling that house as to entitle the appellants to part away with TZS 21,000,000.00, thus

constitutes criminality. If we understood well Mr. Haule, false representation and an intent to defraud was unproven because the appellants sold the house which had no any encumbrance, that is, Plot No. 188 Block "DD." Now that the house sold was in Plot No. 91 Block "EE", was false representation and an intent to defraud proven by the prosecution beyond reasonable doubt? We have the following observation: First, the certificate of title was mortgaged by the second appellant to CRDB Bank. That means, the house was not free from encumbrances and the appellants knew the truth of those facts, yet made a representation to PW1 that all was well, while in fact it was not. Second, the appellants issued a different certificate of title (exhibit P2) as they had full knowledge that the certificate of title of the house, they were selling, that is Plot No. 91 Block "EE," was with the CRDB Bank. Third, the appellants planned to initiate a transfer of title deed on completion of last and final instalment of TZS 9,000,000.00. At page 48 through 49, the record of appeal reads that: Thereafter they paid Tsh 21,000,000/=. Ramadhani A lly was the one paid that amount Thereafter, I gave them a title deed o f house Plot No. 188 Block DD situated a t Miningani. We agreed that after paying Tsh 9,000,000.00 we w ill make transfer o f that house Plot No. 91 Block 1 1 EE" situated at Miningani, a house was a living house."

Fourth, the title of the house did not pass to the purchaser one Ramadhan Ally and further, the purchaser did not repossess because it was purchased by another person who bided the highest when the said house was auctioned by CRDB Bank. Fifth, the second appellant made a firm commitment to reimburse the partly paid purchase price. We think, this commitment was unnecessary to the appellant if at all the house they sold was available, as submitted by Mr. Haule. PW2 testified on this commitment at page 26 of the record of appeal that: "Thereafter I went to the first accused person and told him that the house you intend to se ll us has already been sold, what is the way forward. She told, it is true, my husband is in the process of finding money to return back to me, "[emphasis supplied]. Having re-evaluated the evidence on record and after having given a due consideration on the manner the two courts below considered the evidence in arriving at the concurrent findings, we could not find anything wrong done in their assessment of that evidence which occasioned miscarriage of justice. We thus decline the invitation by Mr. Haule to interfere with such a concurrent finding of facts of both courts below. For that matter, the prosecution case was proved beyond reasonable doubt. The sentence and the resultant orders meted out were legal and justified.

The end of this all, makes the appeal unmeritorious, accordingly, it stands to be dismissed. DATED at DODOMA this 13thday of December, 2024. S, A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence Mr. Leonard Mwanamonga Haule, counsel for the Appellants via visual court and Ms. Rose Ishabakaki, State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.