Rev Abraham Mwakibinga vs Republic (Criminal Appeal No. 131 of 1997) [1999] TZHC 239 (5 November 1999)

IN THr TH TANZMA TMBEYA CRIMINAL AP)EAL NO0 131 OF 1997 (In the District Court of Mbeya at Mbeya Original. cr±minal Case No.349 of 1998 S L\iv Before: M.S. Lwabutiti - District Magistrate) REV. ABRAIFAN MWAKIBINGA ..,.......... APPElLANT Versus THE REPU.BJIC • 0 0 0 0 0 0 0,0 0 0 I •I 0 0 0 00 0 1'ONDENT 1iJ.Iei MOSHI, J. The appellant, Rev. Abraham E. Mwakibinga, was arraigned before the district court of Mbeya on an indictment which contained seven counts which were: First count: Making a false document, contrary to sections 335(a) and 337 of the Penal Code. Second count: Uttering a false document, contrary to sections 342 and 337 of the Penal Codeez Third to Sixth counts: Obtaining money be false pretenes, contrary to section 302 of the Penal Code. Seventh count: Destroying evidence, contrary to section 109 of the Penal Code. The appellant pleaded not guilty to all seven counts and a full trial ensued. He was found to have no case to answer in counts one, two, and seven, and acquitted of those counts under section 230 of the Criminal Procedure Act 1985. He was, however, convicted of counts three, four, five and six as charged and sentenced to seven, twelve, nine and nine months imprisonment respectively, which were ordered to run concurrently. He was also ordered to pay Jankey Andrew Ndingo (PW1) shs.2,592,0 00 /= or distress in default. The convictions and sentences and the order for compensation aggrieved him, hence this appeal which was preferred and argued before me by the appellant himself, and resisted by the learned state. attorney for the Republic, Mr. Boniface. .IIOS.0I /2

within the Municipality of Mbeya. He was head of the Church in the country, and the Church headquarters were at Memphis Tennessee in the United States of Amer.ca (USA). Jankey Andrew Ndingo (PW1) was the manager of Ndingo 'a Bureau De Change Shop at Mwanjèlwa area in Mbeyá Municipality 0 : He was licenced to change currencies. He would change foreign currencies to local currency and vice-versa at a commission. The appellant and PWI did not only know each other very well but they had a close and a long business relationship of changing currencies between them. The app&iant as head of his Church used to receive US Dollars cheques from the Church headquarters in USA as donations for his Church. He would then hand over the cheque to PWI at his Shop for change into local currency. PW1 would then deposit the cheques into his account with the then Mbalizi branch of the N.B.C. for clearance. Under norma]. circumstances PWI would wait for clearance of: a cheque before paying its equivalent to a customer. But things were different when dealing with the appellant. He would pay to the appellant the equivalent of his deposited cheques in local currency even before the cheques were cleared on account of the good understanding, in person and in business, between them. Such was tho. type of transaction between them, and there had arisen no problems with the cleara:ice of the cheques. On 11,8.94 the appellant sent a cheque No. 8784 woth 5,400 American Dollars to PWI to change for local currency. He had received the cheque from his ChurcL headquarters in the USA. As usual PWI deposited the cheque in his account at the bank. Again, as usual, PW1 did not wait for the cheque to be first cleared before effecting payments to the appellant against it. That cheque, as previous cheques, appeared on its face to have been normal and genuine to P141, to the bank and to the appellant. There was nothing suspect on it. So that samE day (11.8.94) PWI began to effect payments to the appellant against the cheques On that day he paid the appellant shs292,0001= through receipt No. 436675 (Ext.A)n, On 16.8.94 he paid the appellant shs,1300,0001 through petty cash voucher No. 160 (ct.B). On 23.8094 the appellant again collected from PW1 shs.500,0001= through petty cash voucher No, 241 (ExtC). And lastly on 29.8,94 the appellant collected from PWI shs.500 , 000/

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In his t1efexice at the trial of this case the appellant claimed that on 21.12.94 he received another cheque of same amount from the headquarters of his Church in the USA and handed it over to PWI that same day with a covering letter (Ext Dk) who duly signed a dispatch book (Ext D5) to that effect. A Church cleik at the appellant's office, Tumaini Paulo (DW2), supported the appellant. So the appellant maintained that he had duly paid PWI his money shs.2 9 592,000/=. The appellant had given the same defence in the civil case. But the trial court in this case declined to believe the appellant mainly on the ground, among others, that the defence of the appellant did not feature anywhere in his cautioned statement (Ext B). With respect to the learned state attorney, this appeal is abundant in merit. The four charges were brought under the provisions of section 302 of the Penal Code which read: " 302. Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour, and is liable to imprisonment for seven years." To succeed in a charge based on section 302 of the Penal Code, therefore, the prosecution must prove beyond reasonable doubt that (a) the person charged has obtained or caused another to deliver to another something capable of being stolen by (b) means of a false pretence, and (c) with intent to defraud. In the absence of proof of any of these ingredients conviction camot be obtained or, if obtained, cannot be sustained on appeal. On the evidence and in the circumstances of this case ingredients (b) and • (c) were not established to the required extent. It was conceded that the cheque on its face had nothing amiss 0 The appellant had received it just as he had received several other cheques before. He was not a party to the drawing of the cheque. Indeed he could not have been in the circumstances of this case. He was taken unawares by its being dishonoured just as PWI and the bank were. He had received the cheque believing it was ganuine just as PWI and the bank tangible had accepted it believing it was genuine. He took immediate and . steps ...•.•••• /5

-3- through petty cash voucher No. 270 (Ext.D). The four payments came to a total cash of shs.2,592 1 000/=. They were all made against the American cheque and before the cheque was cleared. The four payments were later to become the subject matter in counts three to six. Things, however, did not go well with the cheque in this latest transaction between PWI and the appe1lant The cheque was not cleared. The bank returned it to PWI on 21,10.94 with an indorsement that signatures of its drawers differed. That same day PWI confronted the appellant with the cheque demanding his money back. PWI and appellant, however, put their heads together and it was resolved that the cheque should be sent back to its drawers in USA for issuing another one instead of the appellant returning the money to PWI. PWI took a photostat copy of the cheque (Ext.E). On 24.10.94 the appellntwrotea letter (EctT),rit by F11S (Ect.G), to his Church..headquarters enclosing the cheque with a request to issue another one. It would appear that PWI and the appellant were acting together. On 17.11.94 the appel]ant wrote a reminder (Ext.U). Meanwhile PWI was becoming impatient. He wrote a letter to the appellant in which he demanded for another cheque or his money. The appellánt 9 s reply (Ext.H) was that he should be patient. On 16.12.94 appellant wrote to PW1 (Ext.V) insisting that he had sent the cheque to the USA and a reply was being awaited. In February 1995 PWI preferred a suit against the appellant before the district court of Mbeya claiming his shs.2,5921000/=. It was Civil Case No. 3 of 1995- P. won the case. In a judgment delivered on 29.3.95 the appellant was adjudged to return the money to PW1. The appellant felt aggrieved and preferred High Court Civil Appeal No. 11 of 1995 to this Court. Before the appeal was heard PWI reported the matter to the police. On 27.7.95 D/Sgt Salum (PW3) arrested the appellant. The next day (287.95) PW3 recorded a cautioned statement (Ext.R) voluntariness of the appellant. Its admiss' 1 lfv was not resisted, and its - was not challenged. That same day (28.7.95) the appellant was arraigned in court. On 17.12.97 the'.'gh Court dismissed the appellant's appeal in the civil case. The appellant filed notice of ntention to. prefer a second appeal to the Court of Appeal0 -) .....,. /k

with PWI to rectify thesituation. In these circumstances, therefore, he could not be said to have received the money from PWI with any criminal cannotations. There was thus absolutely no basis for preferring the criminal charges against the appellant. What transpired between the appellant and PWI was purely a matter for civil obligations and liabilities, and not a matter for criminal responsibility. I think PWI realized that much, and this would account for the civil suit he preferred against the. appellant in good time. I would, in conclusion, ask PWI to take the lesson that it does not pay in business to bend regulations familiarity and confidence notwithstanding. Had he not paid the appellant before the cheque was cleared, this expensive and time-consuming affair would not have arisen. I accordingly allow the appeal, quash the convictions, set aside the sentences and the order for compensation or distress, and hereby absolve the appellant of any criminal responsibility in this matter. B.P. MOSHI JUDGE. AT MBEYA. 5 November 1999.

• For Appellant: Present in person.
• For Pepublic: Mr. Boniface, S.A.