Mr. Mkate vs Mr. Kesaria (High Court Criminal Appeal No. 39 of 1990) [1990] TZHC 90 (12 November 1990)

I J' -- .. 38 - I IN 'rHE f?]Gij COURT OF TANZANIA AT DAR ES SALAAM AfT ELL/I.TE JURlSD!CTlON' HIGH COURT CRIMlN/J.. AITEAL NO. 39 OF 1990 -. ORIGlN/u., CRIMINAL CASE NO. 190 OF l.909 OF THE DISTRICT COURT OF II.,'ALA DISTRICT AT K!sUTU BEFORE:- RUHANGISA,. ESQ.,. RES In ENT MJ.GISTIV,'l"E)-. JUD GM EN Ta MKWAWA AGJ. The appellant, SELEMAN salKo,, has thrO"u9h hj~ eouosel Mr. Mkatte preferred ni:;: appeal against the dechjon of the r,istrict court ordedng the restrat5on of the 'Land-Rover tc;, cooper Moor Corporatjon. The facts Qf the case as found ·by the· trj al court· can be briefly summarised as foUows •. The appellant and two other.s were arraigned before the JJj std ct court l;\t Kisutu wi.th maki.ng false document c/ss 333, 33.S- (d) ( i) ani1 337 of the p,,mal C·-'->e. .e was also charged with utterjng a faise dOC\lment c/ss 342 of the Pennl code. Lastly he was charged w:lth obtain:i.ng goods by folse pretences 10 c/,;.s 302 of the Penal Code to wj t he obtc:dned a Land-Rover· 110 20 Stc,tion Wagcm valued at T.shs. .. ,000,0.00 :from Cooper Motor Corporation. The. learned 'j:d al magistrat ·as s Dt.i sfjed that • 1 . . evidence adduced by the proseeu_ti 'tldjd ot: \stabl:i sh the ci.r,pellant•-s· guilt in any of the tree counts preferrri aQains h.im ant the other two accused persons who are .not befbre 'th.is court now. Having so found anr1 held the lenrne'1. trd al magistrate made un order which for ease of reference I •hall rproduces- "Order: The M/s CMC should not be made .. to suffer. from the dubious deal3gs of deceit between the accusd and Ea'St ', ,I Afrkan saHJng Safari. Because money did not pass to CMC for llhe purpose o,f the Lan0 Rover EXhib:it P3, the mattSF\ be. mai nta5 ned as it were bef9re the acused had approached CMC for the purchase of ·-.the· .. •' ' \ .. . 30

• 39 - motor veh:l.cle. Ofcourse ordedng otherwise coula be tantamount to giving a gift to the accused and sub- jecting CMC to enormous loss. If there be any cl-aim, the accused may pursue it by instituting civil suit against East Africa Sailing Safari claiming the-local money advcanced to h5.m be5ng equilva1ent of 33,000/- purported to be amo·unt 0 ln the cheque if at all. any• I_t . ls hereby ordered that EXHIBIT P6 Lend rover Tze98799 station wagon be restored tothe complainant CMC wHh all necessary and relevant documents whjch are in the hands of accused such as ..he Registration ·eard forthwith. 11 Mr. Mkatte, the learned counsel forthe appellant, · in tis usu al ·zeal and· industry v5gorously attac:ketf · th5.s order-on the ,10 following grounds. Mr. Mkatte submitted that j t han been e1.nply · 20 demonstrated in the evi,fonce as adc1uced jn the td al court that the appellant had parteti wj th shs. 4,000,000 as payment for-: the said Land-Rover on reljance of the statement- of Cooper Motor·Corrora- tion (hereinafter referredas ·cM:) that the cheque in,quest:icn paid to CMC was ·d-Uly.honoured. The latter did handover·the said vehicle upon be:ing satfafied that the exporters haa received their cheque. Thjs factor js borne out by the testimorties of 1 1 :HA MOHAMED RASHlD (PWo2) and BAKARl JANI (PW.9). It was ::u.rther contended by Mr. Mkatte, counsel forthe appellnnt, th;:it as C,1C were holders in due course for value the order of the trj_al magistrate shoulo have been ma~e agajnst CMC who have the . l<>(:us stand 1 against. the drawer of the cheque. Mr.s. siiae he learned Stat Attorney, who appeared for the Republic, submitted that as the appellant was dealing with East Africa sailing Safari anct not with CMc· it wasquJte proper for hjm to pursue his elaini ,ig&!~lt. the former and not bhe latter. . She further at-gued that as CMC did not receive the money in ques•tion the appellant can not be entitled tothe ·· vehjcle. 30

lt 1s c_ommon ground that Est Afric::an sailing Safari were t'l1e drawer of the cheque. It i.s also not in dispute that the ! appellant sent the sa:5 d .cheque to CMC Ltd and that East African sailing Safar! were paying for h veh:lcle in question on behalf of Stead. fast co •. It 5s also not in dispute that at that relevant ment East African Sa:lling Safari were in winding up proces. Judging from the evidence jn record can it be said that tMC ead quay;ters were negl.:5geh.t and that they . .. .. . misgui·de<:l the appei_lant and CMC, Dar es salaam. It 5 s. also not in dispute that the, appellan:t :in the course of th5 s transaction 10; · had paid the monies ·1n questj·on "t,; the drawer ofthe cheque. nut th crucial tr ~~e r•al 1s•ue for determination in this appeal ·, '),. is whether c. naq received a~ c9nsideration. on a careful evaluaion of the evience in record I d9 not hesitate to answer \ \ in the negativei This being t:_he state of aff aiy;s the appellant I s course of • •. · '. I .redress 1s not ag_ajnst CMC but aga:inst East Afdcan sailing . \ safari. The trJal magjstrate, in the circumstances can not . \ therefore be ·fault?d for the order he had made. Having regard to the aforesaid there js noth1ng that could be said in support of the appeal, hence. th.is appeal fa:ils and I accordingly c1ismiss _.it. 12/11/90 Coram: Mkwawa, Ag~J• \ Mr. Mkatte for the appellant Mr.- Kesar.1a for the Respondent _ffz~~ {J.J. ~ . AG.JUDGE. ··12-11-90 court: Judgment jg delivered ;n chambers in the presence of the counsels as aforementjoned.