Rev Abraham Mwakibinga vs Republic (Criminal Appeal No. 131 of 1997) [1999] TZHC 418 (5 November 1999)

MOSHI 1 J •. 1N THE. RIGH .eott:RT ·OF TANZANIA P,.T MBEYA I • CRIMINAL APPEAL NO. 131 OF 1997 (In the District Court of Mbeya at Mbeya - Original cfiminal Case No.349 of 1998 I Before: M~s .• Lwabutiti - District; Magistrat(')) REV. ABRAHAM MWAKIBINGA •••o••••••••• APPELLANT Versus THE REPU.BLI C RESPONDENT JUDGMENT The appellant, Rev. Abraham E. Mwakibinga, was arraigned beft,re tht district . ~ . court .'!f Mbey'a: "Oil" an I indictment which contained :seven counts which were: . "•'!. ,. •. ]'frsf ·douzi"t""t Making a false document' contrary to sections ·••: .- .,. · ': 335(a) and 337 of the Penal Code. · Second-co_i.μit_: .Uttering a false document, contrary to sections 3'+2 and 337 of the Penal Code. Third to Sixth counts: Obtaining money be false preten•es, contrary to section 302 of the Penal Code. Seventh count: Destroying evidence, contrary to section 109 of the Penal Code. The .appellant pleaded n9t •guilty to all seven counts and a full trial eneued • .. He ~ f_~und to have no case to answer in counts ~• ~, and seven,. and acquitted of those counts under section 230 of the Criminal Procedure Act 1985. He was, however, convicted of counts three, ~' and 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 1 592,000/= or distress in default •. The convictions and sentences and the order for eompensation aggrieved him, hence this appeal which was preferred &Mt ;·:.· [gued"before me by the appellant himself, and resistd by the learned state ! '.; I> · •. "t-. (· •• • . :·t :' ;:: •:·~ ,, __ . . -·-a:tforney for: the Republic, Mrc Boniface. . ••••••••• /2 ...

T, tJ .• . '. r 2 .. ·- -·These--ma.te-riru._facts-re-nqt . ....onl.y estcMJl.ished in evidenee but .were \m.disputed. The appellant w- the Bishop in the Church of God in Christ which had an Office 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 America (USA). Jankey Andrew Ndingo (PW1) was the manager of Ndingo's Bureau De Change Shop at Mwanjelwa area in Mbeya Municipality. He was licenced to change currencies. He would change foreign currencies to local currency and vice-versa at a commission. The appellant and PW1 did not only kriow each other very well but they had a close and a long business relationship of changing currencies between them. The appellant 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 PW1 at h:i.s 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 nomal circumstances PW1 would wait for clearance of a cheque before paying its equivalent to a customer. But thing-s were different when_dealing with the appellt. 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 themo Such was th< type of transaction between them, and there had arisen no problems with the clearance of the cheques. On 11.8 0 94 the appellant sent a cheque No. 8784 worth 5,400 American Dollars to·PW1 to change for local currency. He had received the cheque from his Church headquarters in the USA~ As usual PW1 deposited the chE,que in his account at the bank. Again, as usual, PW1 did not wait fbr 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 PirJ1 , to the bank and to the appellant. There was nothing suspect on it. So that· same day ( 11. 8. 94) PW1 began to effect payments to the appellant against the chequ~~ :::i that day he paid the appellant shs.292,000/= through receipt No. 436675 (Ext.A)? On 16.8.94 he paid the appellant shs .1,300,000/== through petty cash voucher No. 180 ( Ext.B). On 23.8.94 the appellant again collected from PW1 shs.500,000/== through petty cash voucher No. 241 (Ext.c). And lastly on 29.8.94 the appellant collected from PW1 sbs.500,000/~ ••••••• /3

:·· . ,. ' 4 i.. · In. }).is de.f enc-e· at the triai 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 PW1 that same ·day with a covering letter (Ext D4) who duly signed a dispatch book tExt D5) to that effect. A Church elem: at the appellant's office, Tumaini Paulo (DW2), supported the appellant. So the appellant maintained that he had duly paid PW1 his money shs.2,592,000/=. 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 R). With respect to the learned state attorney, this appeal is abundant in merit. ':('he four charges were brought under the provisions of section 302 of the Penal Code which read: 11 302. Any person who by any false pretence, and with intent ta 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 cannot 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 amisso The appellant had received it just as he had received.several other cheques before. He was not a party to the drawing of the ch~que. Indeed he could not have been in the circumstances of this case. He was taken unawares by its being dishonoured just as PW1 and the bank were. He had received the cheque believing ·it was genuine, just_as PW1 and the bank tangible had accepted it believing it was genuine. He took immediate and steps ••••••••• /5

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• 3 - r through petty cash voucher No. 270 (Ext.D}~ The four payments came to a total cash of shso2,592,000/=• They were all mad~·again.st the American cheqμe and ··:·· bef6re the cheque was cleared. The four payments were later to become the sul;l'ject matter in counts three to • Things, however, did not go well with the cheque in this latest transaction between PW1 and the appellant. The cheque was not cleared. The bank returned it to PW1 on 21.10.94 with an iridorsement that signatures of its drawers differed. That same day PW1 confronted the appellant with the cheque demanding his money back. PW1 and appeilant; however, put their heads together and it was resolved . :/: .:·· ·.:·:.1.1·>,: .··: ·:----~~·-·:/ .... ·.' that the cheque should be sent back to its drawers in, USA. for, .. isuing .another one ! instead of the appellant returning the. money to PW1. PW1 took a photostat copy of ' the cheque (Ext.E). On 24.10094 the appellant wrote a letter (:Eikt.T), sent by EMS (Ext.G), to his Church headquarters encloing the chque wih a request to issue another one. It would appear that PW1 and the appellant were acting together. On 17.11,94 the appellant wrote a reminder (Ext.u). Meanwhile PW1 was becoming impatient. He wrote a letter to the appellant in which he demanded for another cheque or his money. The appellant's reply (Ext.H) was that he should be patient. On 16.12 0 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 PW1 preferred a suit against the appellant before the district court of Mbeya claiming his shs.2,592,000/=. It was Civil Case No~ 3 of 1995. PW1 won the case. In a judgment delivered on 29.3.95 the app,3llant 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 PW1 reported the matter to the police. On 27,7.95 D/Sgt Salum (PW3) arrested the appellant. The next day (28.7.95) PW3 recorded a cautioned statement (Ext.R) volun.tariness of the appellant. Its admissH,ilitv 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 L;_gh Court dismissed the appellant's appeal in the civil case. The appellant filed notice of r i.ntention to prefer a second appeal to the Court of Appeal. 0000000 /4

• 5 - with PW1 to rectify the situation. In these circumstances, therefore, he could not be said to have received the money from PW1 with any criminal cannotations. There was thus absolutely no basis for preferring the criminal charges against the appellant. What transpired between the appellant and PW1 was purely · a matter for civil obligations and liabilities, and not a matter for criminal responsibility. I think PW1 realized that much, and this would account for the civil suit he preferred against the appellant in good time. I would, in conclusion, ask PW1 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. AT MBEYA. 5 November 1999. For Appellant: Present in person. For Republic: Mr. Boniface, S.A. JUDGE.

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