Salvatory s/o Yambayamba vs Joseph Kaulule ((Pc) Criminal Appeal No. 7 of 1998) [1999] TZHC 350 (13 August 1999)

I, IN THE HIGH COURI' OF TANZANIA AT MBEYA (PC) CRIMINAL APPEAL NO. 7 OF 1998 (From Criminal Appeal Noo 65 of 1997 of the District Court of Sumbawanga District at S 1 wanga Before: S.S. Mbepwa - District Magistrate) SALVATORY S/0 YAMBAYAMBA APPELLANT Versus JOSEPH KAULULE ooooaooooo>ooooooooe RESPONDENT JUDGMENT The primary court of Laela acquitted the respondent, Joseph Kaulule, of the offence of Obtaining money by fraudulent trick or device, contrary to section 3o4 of the Penal Code. The appellant/complainant, Salvatory Yambayamba, felt aggrieved, and his first appeal to the district court of Sumbawanga was dismissed. Hence this second appeal in which both parties entered appearances in court for its hearing and told the court that they abided by the contents of the memorandum of appeal and the written reply to it respectively. These material facts were established in evidence. The appellant handed over shs.1,200,000/= to the respondent for buying 100 bag~ of finger millet (ulezi). The respondent were to get shs.20,000/= for his services. The respondent went to Mabidila village but fai2.ed to get any finger millet. He returned the money to the appellant. Then the appellant handed over shs.360,600/= to the respondent for buying 30 bags of finger millet. The respondent went back to the same village and managed to buy 26 bags of finger millet for which he duly paid. He bought 10 bags from one person and 16 bags from another. He went back to appellant for empty bags and when he returned he found the person ,to whom he had paid for 16 bags had disappeared with the millet and the money. He reported back to appellant and they reported the incijent at Laela police station. The 0 0 0 0 • 0 0 0 0 0 0 0 /2

.:. 2 respondent handed over to the appellant 14 bags of finger millet and cash shso20,000/= leaving a balance cash of shso192,000/= which according to the respondent stood for the value of the 16 bags of milleto They agreed on payment by instalments, and when the respondent defaulted the appellant seized from him one radio cassette, one. camera, one phoenix sewing mashine, four bags of maize, and one phoenix bicycle. The value of these items was not established. In addition the appellant instituted the criminal proceedings against the respondent. With respect, this second appeal is destitute of merit. None of the essential ingredients of the offence under section 3o4 of the Penal Code was established. Cheating is obtaining or causing another person to deliver to the other something capable of being stolen by means of a fraudulent trick or device. It could not be said in this case that the respondent used a fraudulent trick or device to obtain the money from the appellant. There was nothing criminal in what the respondent did. The transaction was entirely of; a civil nature which would.have attracted a , . . ., civil redr~_ss in the event the need arilse·. , The concurrent a.ecision by both court~ below was justified on the facts and sound in law. In the event, this second appeal fails, and it is hereby dismissed in its entirety o JUDGE. AT MBEYA. 13 August 1999. I For Appellant: Present. ,· For Respondent: Present.