William Festo Makune vs Republic (Criminal Appeal No. 168 of 2021) [2024] TZCA 860 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE. J.A.. KITUSL 3.A. And ISSA, 3.A.1 CRIMINAL APPEAL NO. 168 OF 2021 WILLIAM FESTO M AKUN E........................................................... APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Tiganga, J.) dated the 15th day of October, 2020 in Criminal Appeal No. 19 of 2020 JUDGMENT OF THE COURT l2 h& 21st August, 2024 MKUYE. J.A.: The appellant, William Festo Makune, was charged before the District Court for Nyamagana District for the offence of obtaining money by false pretence contrary to section 302 of the Penal Code, Cap 16 (the Penal Code). It was alleged in the particulars of offence that, the appellant on 7/10/ 2016 at Ex Lumumba Street within Nyamagana District in the City and Region of Mwanza with intent to defraud Johari Katwikilo, obtained cash money Tshs. 11,000,000/= from the said Johari Katwikilo pretending to let her the business apartment located on Plot No 202 Block

"T" Lumumba Street Mwanza City, the fact he knew was not true. Upon the conclusion of trial, the trial court observed that the transaction was purely a civil matter, hence, the appellant was acquitted. The respondent, being aggrieved, successfully appealed to the High Court where the decision of the trial court was reversed. The appellant was convicted and sentenced to pay a fine of TZS. 500,000.00 and was ordered to refund the complainant the sum of TZS. 11,000,000.00 being the amount received by him under false pretence. Aggrieved by the decision of the first appellate court, he has now appealed to this Court. The background of this matter can briefly be stated as follows: The appellant is a lawful owner of premises designed for leasing out to business owners located in Plot No. 202 Block "T" Lumumba Street in the City of Mwanza. The complainant (victim) (PW1) was among his tenants in one of the outlets since 2007. According to PW1, she occupied one of the business outlets located in the backyard of the building and had dully paid her rent. On 7/10/2016, she was approached by the appellant with a proposition that he would lease out to her, one of the business outlets located in the front part of the building as its occupant was vacating. The two negotiated the rent to be TZS. 11,000,000.00 and based on that understanding PW1 handed the appellant a total sum of TZS. 11,000,000.00. However, time passed and the appellant would not 2

honour the deed and PWl's demands to be handed over the room went unheeded. The appellant then became evasive and vanished. PW1 inquired from the tenant who was earmarked to vacate, one Mary Kweka but she disclosed that she was not vacating as she has even paid the required rent. PW1 was left with no option but to report the matter to the police which led to the arrest of the appellant He was then arraigned and matters unfolded as alluded to earlier on. Before this Court, the appellant has fronted six grounds of appeal which can be paraphrased as follows:

1. That, the High Court erred in iaw and fact in substituting the finding o f the trial court short of evidence on record.

2. That, the High Court erred in law and fact in not dismissing the appeal for tack o f proof beyond reasonable doubt

3. That, the High Court erred in iaw and fact in not holding that the presence o f a lease agreement does not necessarily prove that the amounts, therein, were paid.

4. That, the High Court erred in law and fact in not holding that the matter was o f civil nature and not criminal. 3

5. That, the High Court erred in iaw and fact in ordering compensation o f TZS. 11,000,000.00 in absence o f evidence.

6. That, the decision o f the High Court is fauity. At the hearing of the appeal, the appellant was represented by Mr. Mathew Nkanda learned counsel while the respondent was represented by Ms. Jaines Kihwelo, Senior State Attorney. Mr. Nkanda on taking the floor commenced by adopting the grounds of appeal and the appellant's self-crafted written submissions in support of the appeal that was filed on 17/5/2021. He then intimated to the Court that he will add a few things to clarify on certain matters. He also pointed out that, essentially the cumulative effect of the grounds of appeal is that the prosecution had failed to prove the case beyond reasonable doubt. Notably, in the written submissions lodged by the appellant himself, the 1s t, 2n d , 5th and 6th grounds were argued separately, while the 3r d and 4th grounds were argued together. In relation to the first ground, the appellant has submitted that the law pertaining to the substitution of the findings of lower courts by a higher court is long settled that there must be a point of law with exceptional circumstances to substantiate the substitution of the appellant's acquittal to that of conviction. In that regard, the appellant 4

argued that the substitution of his acquittal with conviction had no lawful justification. In addition, Mr, Nkanda submitted that Exh. PI (Lease Agreement) which was tendered by PW1 was a deed governed by civil law and that it ought not to have been tendered because it was not witnessed by any of the authorized officers prescribed by the Land Registration Rules, GN No. 117 of 1954, (the Land Registration Rules). As regards the second ground challenging the proof of the case, the appellant has submitted that it is a fundamental principle that criminal liability must be proved beyond reasonable doubt, which, duty does not shift to the accused. In support of his argument, he referred us to the case of John s/o Makolobelo Kulwa & Another v. Republic, [2002] T.L.R 296. He was of the view that, in this case, the issue of proof beyond doubt was not achieved due to failure by the prosecution to call one, Mary Kweka to testify in court. The appellant's complaint in the third and fourth grounds is that the lease agreement did not prove payment of money to him; and that the matter was of civil nature. It is the appellant's submission that the alleged amount of TZS. 11,000,000.00 was never received by him and that it was not enough to allege false pretence. It was argued that any indictment must contain necessary facts to constitute the criminal charge and intent must be established. He further submitted that in a matter of this nature

any allegation of criminal liability should come into consideration after the civil elements have been cleared. In addition, Mr. Nkanda submitted that much as the amount of TZS. 11,000,000.00 is shown in the agreement, there was no proof that it was, indeed, received by the appellant. He argued that, although PW1 had stated in evidence that when she handed over the money to the appellant while the latter was in the company of one, Luhanga, yet, the said Luhanga was not called to testify. Mr. Nkanda then implored the Court to find that the decision in the case of Adam Yusuph v. Republic, Criminal Appeal No. 75 of 2004 [2005] TZCA 3 (12 January 2005), relied by the trial court was wrongly applied as it was distinguishable from the circumstances of this case. He also contended that, the case of Hussein Mwishehe Sudi v. Republic, Criminal Appeal No. 363 of 2017 [2024] TZCA 494 (25 June 2024), is distinguishable as in that case the money was actually paid through a bank account. In winding up his submissions, Mr. Nkanda assailed the Forensic Handwriting Report (Exhibit P.5) arguing that, since its analysis emanated from an Agreement (Exhibit P.l) which, in his view, was not proper, then, the report cannot be conclusively credible. While relying on the case of Agnes Doris Liundi v. Republic, [1980] T.L.R. 38, he contended that, expert evidence is not conclusive and courts are not bound by it.

The complaint in the fifth ground is on compensation. The appellant submitted that the payment of compensation is a matter of law and that it was not shown how the trial Judge arrived at the figure of TZS. 11,000,000,00. In addition, Mr. Nkanda submitted that the compensation order has no basis because the payment of TZS. 11,000,000.00 to the appellant had not been proved. He then climaxed with a prayer for the Court to allow the appeal. In his response, Ms. Kihwelo prefaced by declaring her stance that she was resisting the appeal. Beginning with the first ground of appeal she argued that it was proper for the High Court to reverse the verdict of the trial court. She pointed out that, since the High Court sat as a first appellate court on the matter, it had a mandate to revisit the entire evidence and come up with its conclusion. She placed her argument on the case of DPP v. Mussa Hatibu Sembe, Criminal Appeal No. 130 of 2021 [2022] TZCA 238 (6 May 2022). On the second and third grounds of appeal, she submitted that the definition of false pretence is as was observed in the case of Hussein Mwishehe Sudi (supra), that it is 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. 7

She stressed that the prosecution was able to establish the offence as PW1 explained how the appellant confided to her that a tenant, one, Mary Kweka was vacating the frontage room and he was willing to rent it to her at TZS. 11,000,000.00. And the amount was paid to the appellant but PW1 was not handed the room only to be informed by Mary Kweka that, she too, had already paid for continued occupation of the room. Ms. Kihwelo insisted that that amounted to false pretence as the appellant knew that there was no room to give to PW1 but still obtained the money from her. She elaborated further that PW2 corroborated the evidence of PW1 and that the two were competent and credible witnesses whose evidence was coherent. Ms. Kihwelo added that there was further corroboration from PW3 who interrogated Mary Kweka who informed her that she was not vacating. Ms. Kihwelo maintained that with all that evidence, the ingredients of false pretence under section 302 of the Penal Code were met and proved. On the fourth ground of appeal, it was Ms. Kihwelo's submission that the matter was not of a civil nature because there was false mis representation which reduced it to criminality, even though, there was a written agreement. She added that the contract had clear elements of false pretence. 8

Concerning the fifth ground of appeal on compensation, Ms. Kihwelo submitted that the appellant is not entitled to benefit from his own wrong. Since he had obtained the money by false pretence, the first appellate court was justified in ordering the appellant to compensate PW1 by refunding the value of money received by him. Ms. Kihwelo referred us to our decision in Fatuma Said Mahanyu v. Republic, Criminal Appeal No. 323 of 2019 [2022] TZCA 628 (12 October 2022). She submitted further that the appellants defence that he was exercising a set off was an afterthought much as he did not cross examine PW1 on that issue. Responding on the appellant's contention that Exh. P.l ought not to have been tendered, the learned Senior State Attorney maintained that, it was properly tendered with no objection from the appellant. On the issue of the forensic report being expert evidence, which does not bind the court, she was quick to point out that the case of Agness Doris Liundi (supra), is distinguishable from this case and, in any case, the forensic report was not relied upon by the first appellate court in convicting the appellant. In response to the contention that one, Luhanga was not called to testify, she argued that no specific number of witnesses was required to prove an offence and that PW1 and PW2 were sufficient to prove that which Luhanga could have testified. In the end, she urged the Court to find that the appeal is not merited and dismiss it. 9

In a short rejoinder, Mr. Nkanda submitted that an order for compensation ought to be certain but in the present matter, that was lacking. That, the amount to be compensated had not been indicated. He, then, reiterated his prayer to the Court to allow the appeal, quash the conviction, set aside the sentence and that the compensation order be vacated. Having heard both parties, we are now in a position to address the appeal deservingly. In doing so, we will adhere to the formation in which the grounds of appeal were argued by the parties. Starting with the first ground, what we gather from the appellant's submission is that the first appellate court was not justified in substituting the acquittal with conviction. In dealing with this issue, we wish to revisit the provisions of section 382 of the Criminal Procedure Act, Cap 20, (the CPA) which in essence provides for the powers of the High Court in appeals by the Director of Public Prosecutions (the DPP). It reads as follows: "At the hearing o f an appeal under section 378, the Director o f Public Prosecutions may address the court in support o f the particulars set out in the petition o f appeal and the respondent or his advocate may then address the court and thereafter the court may invite the Director o f 10

Public Prosecutions to reply upon any matter o f iaw or fact raised by the respondent or his advocate and the court may then ; if it considers there is no sufficient ground for interfering, dismiss the appeal or may - (a) in an appeal from acquittal - (i) reverse the finding, convict the respondent of the offence with which he could have been convicted by the subordinate court, and either proceed to sentence him or remit the case to the subordinate court for passing the sentence; (ii) order the respondent to be tried by a court o f competentjurisdiction; or (Hi) direct the subordinate court to hold committal proceedings; (b) in an appeal against sentence, increase or reduce the sentence or alter the nature o f the sentence; or (c) in an appeal from any other order, alter or reverse such order and, in any case, may make any amendment or any consequential or incidental order that may appear just and proper. "[Emphasis added] Our understanding of the above provision is that, the High Court is vested with among other powers, in appeals by the DPP, to reverse the 11

finding of the subordinate court, convict the respondent of the offence with which he could have been convicted by that subordinate court and to either sentence such respondent or remit the case to the subordinate court for passing the sentence. In the circumstances, we are in agreement with Ms. Kihwelo that the High Court had such powers of substituting an acquittal for conviction. The issue whether the evidence on record justified the findings of the High Court will be dealt with, at a later stage. We are mindful of Mr. Nkanda's argument that the Lease Agreement (Exh. PI) ought not to have been tendered because, it was not attested by any of the authorised persons listed in the Land Registration Rules. We have had opportunity to glance at the said Rules and we have observed that it, indeed, provides for persons who may attest documents intended for registration, entry or filing in the Land Registry. However, we do not think that it is applicable to the circumstances of this case. We say so because, Exh. PI in this case is not a document that was meant for any of the purposes envisaged by the Land Registration Rules. To be specific, it was not intended for registration, entry or filing in the Land Registry in respect of any disposition of registered land, rather, it was witnessing a lease arrangement between PW1 and the appellant. We are of the view that the said Exh. PI having passed the admissibility test, was properly 12

tendered. In the circumstances, we are not persuaded by Mr. Nkanda's proposition. The appellant's complaints in the third and fourth grounds of appeal, according to both appellant's written and Mr. Nkanda's oral submissions, are three-fold. One, that there was no proof that the amount of TZS. 11.000.000.00 was received by the appellant. Two, that, one, Luhanga was not called to testify. Three, that, the Forensic Handwriting Report (Exh. P5) was merely expert evidence, for which the first appellate court was not bound by it. Beginning with the first limb, in our view, there was ample evidence from Sakisa Hassan (PW2) who was a witness to the agreement. PW2 testified to have observed the appellant receiving the sum of TZS. 11.000.000.00 from PW1 on 7/10/2016, which is the date when Exh. PI was entered and signed by all of them. In the circumstances, we go along with Ms. Kihwelo's submission that PW2 corroborated the evidence of PW1 on that material aspect. With regard to the prosecution's failure to call one, Luhanga who was alleged to have been present as a witness for the appellant when the later received the money, we think, as was rightly submitted by Ms. Kihwelo, PW1 and PW2 were sufficient to prove what the said Luhanga 13

could have testified. If, we may add, PW2 being present at the conclusion of the agreement was versed with what transpired from both sides to the agreement. After all, under section 143 of the Evidence Act, Cap 6 there is no specific number of witnesses which is required to prove an offence. What is required is the credibility attached to such witness. (See: Keneth Owino Ogachi and 2 Others v. Republic, Criminal Appeal No. 48 of 2006 [2009] TZCA 48 (22 December 2009) and Alhaji Ayubu @Msumari v. Republic, Criminal Appeal No. 136 of 2009 [2010] TZCA 20 (18 March 2010). On the third limb of the complaint relating to the Forensic Handwriting Report (Exh. P5), we hasten to say that it lacks basis. This is so because, the decision of the first appellate court did not rely on it for conviction. In any case, as was rightly viewed by Mr. Nkanda, the same was a mere expert evidence to which the first appellate court was not bound. In the circumstances, we find that the third and fourth grounds of appeal have no merit and we dismiss them. As regards the fifth ground challenging the order for compensation of TZS 11,000,000.00, we are in agreement with the submissions by Ms. Kihwelo that having proved the commission of the offence against the appellant, he should not benefit from his own wrong. It is our considered opinion, that the compensation order was justified in view of the credible 14

evidence of PW1 and PW2 that the appellant received the money from PW1 and, therefore, we have no reason to interfere with it. We now turn to the second ground in which the appellant's complaint is that the case was not proved beyond reasonable doubt. It would appear that the appellant asserts that one, Mary Kweka was a material witness for the prosecution who ought to have been called to testify. According to the appellant, the failure to call her renders the charge not to have been proved beyond reasonable doubt. It is true that Mary Kweka was not called to testify in court. However, the record bears it out that there is a first-hand information from PW1 who was told by Mary Kweka that she too had paid rent for the room. Apart from that, there is also evidence of E. 8225 D/Sgt Alid (PW3) who investigated the case that, apart from visiting the disputed room, he interrogated Mary Kweka, and she informed him that she had already paid rent for it. This was also a first-hand information which PW3 obtained from Mary Kweka. We are, therefore, of the view that even if Mary Kweka was to be called to testify, her substance of evidence would not be far from what had already been testified by PW1 and PW3. In other words, she was not a material witness as the appellant may wish to suggest. In the case of Bashiri John v. Republic, Criminal Appeal No. 486 of 2016 [2019] TZCA 89 (16 May 2019), it was observed that drawing of adverse 15

inference for failure to call a material witness only arises where no other witness(es) have given identical evidence on the matter. In this case, as hinted above, there were other witnesses who testified on that aspect. As such, this ground also fails. We now wish to move to the issue whether the case was proved beyond reasonable doubt which is also the gist of the second ground. The appellant was charged with the offence of receiving money by false pretence contrary to section 302 of the Penal Code which provides 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 fan offence and is liable to imprisonment for seven years." For purpose of the underlying discussion, section 301 of the Penal Code also comes into play where it defines the term "false pretence" as follows: "301. Any representation made by words, writing or conduct o f a matter o f fact or o f intention, which representation is false act and the person

making it knows it to be faise or does not believe it to be true, is faise pretence." [ See also: Hussein Mwishehe Sudi (supra)]. In the present matter, there is evidence from PW1 that the appellant approached her and convinced her that a room was available at the frontage part which the appellant wanted to lease out to her. The appellant knew from the beginning that the room was not vacant, much as he had already received rent from the existing lessee, one Mary Kweka. If not for the appellant's mis-representation knowing the same to have been false, PW1 would not have parted with her money. In our view, PW1 was duped into the transaction on the strength of the appellant's mis representation. This Court in the case of Elias Melami Kivuyo v. The Republic, Criminal Appeal No. 40 of 2014 [2014] TZCA 2148 (3 July 2014) while quoting Smith & Hogan's Criminal Law, 9th Edition by J.C. Smith at Page 552 illustratively defined obtaining by false pretences thus; "The obtaining must be by deception. It must be proved that D's faise representation actuaiiy deceived P and caused him to do whatever act is appropriate to the offence charged. The deception mustprecede the relevant act." 17

It is clear that in the mind of the appellant, he was aware that vacant possession of the room was impossible based on the existing fact that Mary Kweka had paid rent for continued occupation and was not vacating any time soon. Based on the foregoing, we go along with Ms. Kihwelo's submission that despite there being a written agreement, there are clear elements of false pretence in obtaining the money received by the appellant. In the upshot, we find that the prosecution case was proved to the standard required in criminal cases. In the final analysis, we find that the appeal is devoid of merit and we accordingly dismiss it in its entirety. DATED at MWANZA this 21s t day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the Absence of the Appellant, and Ms. Jaines Kihwelo learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. A/uiai A. S. CHliGULU DEPUTY REGISTRAR COURT OF APPEAL 18