Hamis Abdulahamani Mwessa vs Republic (Criminal Appeal No. 484 of 2022) [2024] TZCA 1051 (6 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: MWANDAMBO, J.A., RUMANYIKA, J.A., And KHAMIS, J.A.^ CRIMINAL APPEAL NO. 484 OF 2022 HAMIS ABDULAHAMANI M W ES S A .............................................. APPELLANT VERSUS THE R EP U B LIC .............................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Matuma, 3 .) dated the 24th day of August, 2022 in Criminal Appeal No. 16 of 2020 JUDGMENT OF THE COURT 29th October & 6th November, 2024 KHAMIS, J.A.: The appellant was arraigned before the District Court of Kahama in Criminal Case No. 151 of 2021, charged with four (4) counts of obtaining money by false pretence contrary to section 301 and 302 of the Penal Code, Cap 16 R.E 2019 (the Penal Code). The particulars of the offence in the first count were that on 24th January, 2020 at Kahama town, Kahama District, Shinyanga Region, with the intent to defraud, he obtained the sum of TZS 17,250,000.00 from the complainant, Dadrahim Abdulrahim (PW1) by falsely

pretending that he was in a position to sell him a motor vehicle for TZS 65.000.000.00 and deliver it by May 2020, a fact he knew was false. On the second count, it was alleged that, on 11th February, 2020 at the same place and for the same intention, he obtained a sum of TZS 11,655,000/= from PW1 being part of the purchase price and falsely pretended that he would deliver the motor vehicle by May 2020, a fact he knew was false. On the third count, it was alleged that, on the same date and place, with the intent to defraud, he obtained a sum of TZS 3.800.000.00 from PW1 as part payment of the purchase price for the same motor vehicle and by falsely pretending that he was in a position to deliver it May 2020, a fact he knew was false. On the last count, it was alleged that, on unknown date in March 2020 but at the same area, with the intent to defraud, the appellant obtained the sum of USD 2000 equivalent to TZS 4,645,000.00 from PW1 being part payment of the purchase price for the motor vehicle by falsely pretending that he was in a position to deliver it by May 2020, a fact he knew was false. The appellant pleaded not guilty to the charge and the case proceeded to trial with the prosecution parading a total of three witnesses after which the learned Resident Magistrate (C.L. Chovenye,

RM), entered conviction on all counts and sentenced him to three months' conditional discharge on each count. He was also ordered to refund to PW1 the sum of TZS 37,350,000.00 within three (3) months. The appellant was dissatisfied with the conviction and the sentence meted out to him and filed an appeal in the High Court at Shinyanga. When the appeal was set on for hearing, the first appellate Judge (Matuma, J) ordered personal presence of the appellant despite being represented by the learned advocate, Ms. Agnes Thobias. On the adjourned date of hearing, the appellant was present in person and represented by Ms. Thobias, learned counsel. The Judge suo m otu invited parties to address him on propriety of the sentence imposed by the trial court. Having heard the appeal, he subjected the appellant to a remand custody pending delivery of the decision. As it turned out later, the learned Judge was upbeat that the prosecution had proved its case beyond reasonable doubt and wanted 'the appellant to test the re a l fru its o f the crim e'and therefore, enhanced the sentence to an imprisonment term of five years for each count. The sentences were to run concurrently. Disgruntled by the High Court decision, the appellant preferred the instant appeal premised on four grounds, namely: one, that the

first appellate court erred in law and fact for failure to consider that the trial court had no jurisdiction to try the offences that were allegedly committed in Dar es Salaam; two, that the first appellate court erred in law and fact in shifting the burden of proof to the appellant to prove his innocence as opposed to the set position in criminal matters; three, that the first appellate court erred in law and fact to pre-judge the appellant before setting aside the decision of the trial court; four, that the first appellate court erred in law and fact in importing extraneous matters in imposing a five years custodial sentence for each count; and; five, that the first appellate court erred in law and fact in convicting and sentencing the appellant on charges that were not proved beyond reasonable doubts. The brief narration of the case leading to the appellant's arrest, arraignment, conviction and sentence is comprised in the testimony of three prosecution witnesses. PW1 gave a sworn testimony to the effect that, in November 2019 the appellant undertook to import for him a motor vehicle, Fuso make, at a price of TZS 65,000,000/= inclusive of freight charges and import duties. It was agreed that, PW1 would pay an advance sum of TZS 37,350,000.00 and the balance of TZS 27,650,000.00 was to be settled upon arrival of the vehicle. The first

two instalments were made through the bank: TZS 17,250,000.00; and; TZS 11,655,000.00 while the other two instalments: TZS 3,800,000.00 and USD 2000 were presented to the appellant by Farid Big Mohamed (PW3) and Ayoub Abdulrahim Omar (PW2) respectively. The transactions were carried out when PW1 was in Kahama and the appellant was in Dar es Salaam. PW1 said the vehicle was to be brought in March 2020 but delayed to May 2020 due to the then impending corona pandemic. Thereafter, communication was not smooth and the appellant attributed the delay to his brother who lived in Japan. Upon arrival of the vehicle at the port of Dar es Salaam, the import duties were not settled leading to its auctioning by the Tanzania Revenue Authority (TRA). On follow up, PW1 realised the vehicle was imported alongside other items which attracted unbearable high taxes. He was prompted to report the matter to the police. On cross examination, PW1 said the appellant was a family friend and they knew each other very well. Previously, PW1 ordered other goods through him. He further said, Shaaban, the appellant's brother who lived in Japan, was also known to him. It was also his testimony that, the car was imported in the name of one Majid Hamis Hilali.

PW2 Ayoub Abdulrahim Omar, a relative of the complainant, testified that, in March 2020, he presented USD 2000 to the appellant who was also in Dar es Salaam. The delivery was smooth as the two knew each other. On cross examination, he said the money was part payment of the purchase price for PW l's vehicle. PW3 Farid Big Mohamed also gave an affirmed testimony to the effect that, on 11th February, 2020 the sum of TZS 3,800,000/= was transmitted to the appellant in Dar es Salaam. The money was part payment of the purchase price for the motor vehicle ordered by PW1. The evidence of PW3 marked the end of the prosecution case after which the trial magistrate ruled that the prosecution had made a prim a facie case. The Appellant was then placed on his defence as the only defence witness (DW1). In his sworn testimony, the appellant said as a businessman and director of a private company, Sakaha Company Limited, he deals with transportation and business independent of his brother, Shaaban Hamisi, who lived in Japan. Shaaban had an agreement with PW1 for the importation of a motor vehicle and used him as a conduit for transmission of the money. On that arrangement, he received a total of USD 12,000 from PW1 which was accordingly extended to Shaaban Hamis in Japan. Upon transmission of the money

to Shaaban Hamisi, DW1 was thanked by PW1 for the kind service he had faithfully offered. The appellant said Shaaban engaged an agent who successfully exported the vehicle to Tanzania after which PW1 was accordingly informed. As preferred by PW1, the bill of lading was written in the name of Majid Hamad Hilali of Nzega. On cross examination, DW1 said, the agent was bound to clear the vehicle at the port of Dar es Salaam. At the hearing of this appeal, the appellant appeared in person and was also represented by Mr. Salim Abubakar, learned advocate. Ms. Ajuae Bilishanga Zegeli, learned Principal State Attorney, teamed up with Messrs. Jukael Reuben Jairo and Katandula Kadata Kakwesela, learned Senior State Attorney and State Attorney, respectively, to represent the respondent Republic. At the outset, Mr. Abubakar successfully prayed to abandon the first two grounds of appeal and focused on the remaining three grounds. On the third ground, he contended that, the first appellate Judge had prejudged the appellant and failed to ensure a fair trial. He referred us to pages 60 and 66 of the record and pointed out that, out of the ordinary, the Judge had directed the appellant's personal appearance at the hearing of the appeal despite his representation by

a counsel of his choice. He asserted that, on the resumed date of hearing, the Judge reserved the decision but subjected the appellant to a remand custody without setting aside the trial court's decision. The learned counsel cited the case of Francis Alex v. Republic, Criminal Appeal No. 185 of 2017 [ 2016] TZCA 822, TANZLII where we took the view that, an act of a learned Judge to find the appellant guilty before he was heard in defence, amounted to violation of the constitutional rights and rendered the trial against him flawed. In doing so, we referred to our earlier stance in MT 81071 PTE Yusuph Haji @ Hussein v. Republic, Criminal Appeal No. 168 of 2015 [2016] TZCA 229, TANZLII where an act of a trial Judge to pre-determine the mental status of the appellant before the offence was committed was found to be a fundamental flaw in the hearing of the case hence denial of a fair trial. He invited us to go along with those decisions. On the fourth ground of appeal, the learned counsel for the appellant asserted that, the first appellate Judge had imported extraneous matters that were neither stated by witnesses nor reflected in the entire proceedings of the courts below. He referred us to pages 83 and 84 of the record which carried comments on the relationship of the families of PW1 and DW1 which allegedly, had roots from their

ancestors. He Invited us to find that, a comment that, the appellant had come to break down the good family relations built over years and deserved a severe punishment to serve a lesson to other family members, was misplaced and amounted to a fundamental flaw in the High Court proceedings. Further, the counsel analysed the comments by the first appellate court that; a relationship of the two families was about to break due to appellant's criminal actions; and; the family would appreciate to see the appellant in prison, and argued that, they were uncalled for and negated the principle of fair justice. Further, Mr. Abubakar questioned the sentencing power of the first appellate court and argued that, enhancement of the appellant's sentence infracted the cherished principles set out in the case of Rajabu Dausi v. Republic, Criminal Appeal No. 106 of 2012 (unreported). In that case, we stated that, sentencing is a discretionary power of the trial court and the appellate court has no automatic right to alter or vary it on the justification that had it been the court exercising the sentencing discretion, it would have imposed a different sentence.

On the fifth ground of appeal, the learned counsel for the appellant submitted that, the first appellate court misdirected itself in holding that the prosecution had proved its case to the hilt. He contended that, the impugned decision of the High Court had failed to give any findings on the ingredients of the offence of obtaining money by false pretence as set out in the Penal Code. Expounding, he asserted that, PW1 and DW1 confirmed that the motor vehicle was imported in the country as per the terms of sale but the first appellate court failed to appreciate that the complainant failed to settle the import duties leading to its auction. Further, the counsel submitted that, the appellant had successfully created doubts on the version of the prosecution case and invited us to go along our decision in Martin Jacob @ Mlila v. Republic, Criminal Appeal No. 434 of 2021 [2024] TZCA 447, TANZLII where we referred to the words of Lord Justice Benjamin Franklin that, it is better to acquit one hundred (100) guilty persons than convict one innocent individual. We were also referred to our stance in Suleiman Dago @ Swalehe v. Republic, Criminal Appeal No. 59 of 2022, [2024] TZCA 280, TANZLII where we observed that, our criminal

jurisprudence demands every doubt be resolved in favour of an accused (i dubio pro reo). On the other hand, the respondent supported the appeal. Conceding to the grounds raised, Mr. Jairo contended that, the charge against the appellant was not proved to the required standard. He submitted that, for the offence of such gravity, it was vital for the prosecution to lead evidence that the appellant obtained something capable of being stolen, that it was obtained by false pretence and with intent to defraud. The learned Senior State Attorney contended that going by the evidence of PW1, the motor vehicle in dispute was truly imported up to the port of Dar es Salaam which fact negated the alleged ill motive on part of the appellant. On the third ground of appeal, Mr. Jairo conceded that, the learned Judge had prejudged the appellant to his detriment. The learned counsel acknowledged that enhancement of the sentence by the High Court defied the legal principles restated in Martin Jacob (supra) and submitted that, the irregularities pointed out prejudiced the appellant. He moved the Court to allow the appeal, quash the conviction, set aside the sentence and order release of the appellant from prison.

We have considered the grounds of appeal, the proceedings of the courts below and submissions by the learned counsel for the appellant and the respondent. We appreciate that, the appeal is both on the conviction and the sentence meted out to the appellant which discern the following issues for determination: first, whether the first appellate judge prejudged the appellant before setting aside the trial court's decision; two, whether the first appellate court wrongly enhanced the sentence passed by the trial court; and; three; whether or not the prosecution proved its case beyond responsible doubts. In seeking to determine the three issues, we appreciate our mandate as the second appellate court that, we cannot interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence on record or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did (See: Philbert Kadahari v. Republic, Criminal Appeal No. 176 of 2005 and Makuru Jumanne v. Republic, Criminal Appeal No. 117 of 2005 (both unreported). On the first issue, we are aware that extraneous matters can negatively affect judicial decisions in a number of ways. In general, when reviewing a lower court's decision, an appellate court is bound to

ask itself whether the decision is reasonable and can be rationally supported. In Athanasia Julius v. Republic, Criminal Appeal No. 498 of 2015 (unreported) we echoed that: "The im plication here is that\ either in h is judgm ent the tria l resident m agistrate d id include extraneous m atters which d id not com pletely feature in the evidence o f the w itnesses who were called to testify, or; the tria l resident m agistrate did om it to record a num ber o f facts that were said by the w itnesses in th eir testim onies. In either case, we are inclined to jo in hands with the contention o f the learned counsel fo r both sides that\ the irregularity occasioned was fa ta l and d id vitiate the entire proceedings o f the tria l court . " In this case, the learned counsel for both sides were in agreement that the first appellate court misdirected itself in considering matters that were not supported by the record. Upon our scrutiny of the record, we were satisfied that the comments made by the first appellate court were not only foreign to the record but also unjustified in the circumstances of the case. We are also satisfied that the first appellate court prejudged the appellant by placing him in remand custody before the trial court's decision was set aside.

This takes us to the second issue on whether the High Court wrongly enhanced the sentence passed by the trial court against the appellant. It is trite law that, sentencing is a discretionary power of the trial court. The sentencing court, depending on a range of factors, such as the circumstances of the case and the offender, the aggravating and the mitigating factors, has discretion to impose a sentence, save where there is a statutory minimum limitation. In Faruku Mushenga v. Republic, Criminal Appeal No. 356 of 2014 (unreported), we pronounced ourselves that, for this Court to interfere with a sentence passed by the lower courts, there has to be a good ground(s) to do so and not on a mere ground that if this Court was sitting as a trial court it would have imposed a different sentence. In DPP v. Pyarali Kanji, Criminal Appeal No. 8 of 1981 (unreported) we also restated the law on sentencing that, an appellate court can interfere with the sentence imposed by a trial court where the sentence is illegal, manifestly excessive or based on improper factors. Section 302 of the Penal Code provides that any person convicted of a charge of false pretence is liable to imprisonment for seven years. In this case, the trial magistrate sentenced the appellant to three (3) months' conditional discharge and ordered him to refund the sum of

TZS 37,350,000.00 within three (3) months. In so doing, the aggravating and mitigating factors were considered. On the other hand, the first appellate court enhanced the sentence on the ground that, the trial magistrate did not consider the nature of the families' relationship. It reasoned that, the appellant disturbed the families' good relations built and developed over the years and formed an opinion that he deserved a severe punishment to deter other family members to behave in the same manner. On that note, it insisted that, a conditional discharge was in no way harmonizing the two families but "the appellant should test the re a l fru its o f the crim es to the effect that crim es do not p ay." Since the trial magistrate acted within his powers, the sentence passed, in our view, assuming the conviction was proper, was merited in the circumstances. Regrettably, the first appellate Judge enhanced it for unsubstantiated causes. On account of those errors on the face of the record which occasioned an injustice to the appellant, we are justified to make a fresh assessment of the evidence on record as we shall hereby do in the course of tackling the next issue. On the last issue, we are required to determine whether the courts below erred to find the prosecution had proved its case beyond

reasonable doubt. For the prosecution to achieve a conviction on a charge of obtaining money by false pretence under sections 301 and 302 of the Penal Code, it has to prove beyond reasonable doubt, that the accused committed an act or acts leading to obtaining something capable of being stolen, by advancing to a victim a false pretence with the ultimate goal of defrauding him. In Musa Ngusa v. Republic [1981] TLR 345, persuasively, the High Court held that, an appellant who used deceptive tricks to exchange an envelope belonging to the complainant which contained money, with his envelope which contained empty packets of sportsman cigarettes packed with a thick sheet of paper, was guilty of simple theft and not obtaining money by false pretence. Therefore, in order for the offence of obtaining money by false pretence to stand, the complainant must have voluntarily parted with the money as a result of the deception practised on the complainant by the appellant. As rightly submitted by the learned counsel for the appellant and the respondent, the evidence on record unveil that on the request of PW1, the appellant or his brother Shaaban, agreed to import a motor vehicle for him at the price of TZS 65,000,000.00 payable in instalments. The sum of TZS 37,350,000.00 was paid in advance. The

question is whether in receiving the said money the appellant had made false pretences to PW1 and had the intention of defrauding him. False pretence is defined under section 301 of the Penal Code to mean any representation made by words, writing or conduct of a matter of fact or of intention, which representation is false and the person making it knows it to be false or does not believe it to be true. In this case, PW1 testified on the oral terms of agreement for the importation of a motor vehicle and said that the motor vehicle was indeed imported around May 2020 but owing to lack of consensus on who was to clear it, it was auctioned by the TRA at the port of Dar es Salaam. This evidence was undisputedly corroborated by DW1. Having confirmed that the appellant imported the motor vehicle in the country but it was auctioned at the port of Dar es Salaam for failure to clear the import duties, we find this fact negates the prosecution version that the money was obtained by false pretence. This means that there was no manifestation of any false pretence. At the end, we find and hold that the appellant's conviction was against the weight of evidence. Having resolved the three grounds of appeal in the affirmative, we find the appeal meritorious and accordingly allow it, quash the

conviction and set aside the sentence meted out to the appellant. Finally, we order the appellant's immediate release from the custody unless held for other lawful cause. DATED at SHINYANGA this 6th day of November, 2024. L. 1 S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 6th day of November, 2024 in the presence of Mr. Augustino Michael Ijani, holding brief of Mr. Salim Abubakari learned counsel for the Appellant and Mr. Goodluck Saguya, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.