Shaiibu Hussein Ponera vs Republic (HC Criminal Appeal No. 35 of 1988) [1988] TZHC 282 (6 August 1988)

....... -· Kazimoto, J. ,>!:''J:-'.i:,l.,J..,HT.t:. JU.kISDICTION t:IIGH COUhT Ckil'lll~,.L ia'r'.t::,-,L NOo 35 OF 19cH:l original Criminal case loo 75 of 1987 of the District Court of Tun0ur pistrict at Tunduru Before: GoHo Chabruma Esq., S.D. Magistrate 00000000000000 11.J:-'.t?ELL,..NT Versus THc. Kc.d?UBLIC 0 C O O O O O O 0 0 0, 0 0 o· 0 0 0 0 0 0 0 0 0 J U D G M E N T· The ap}Jell ant and one ,1ngel us Kinunua were charged with three counts; that is conspirary tc defraud, making a false document and making a document without authority c/ss 3Q6; 333; 335(a) and 337; and 346(2) of the enal Code resectivelye The apjJellant was convicted on all three counts anJ sentenced to two years imprisonment on the first count, two years imprisonmnt on th second count anJ three years imprisonment in the third count. hll sentences were ordered to run concurrently. Arigelus Kinunua was acquitted on all countso The appellant is now aμealing against both conviction and sentence. He has submittE::G 19 grounJs in his ajJ}Jeal wnich in !=!1\L..,1.----- ·-·.'., .,t..__..,I( the testimony of the μros2cut_i..,.,.n. ,_ . ..,.L.. BriefJ.y ..-n<= --.-,.: .m,t:ed facts ,1.r:e t hese· as found by the trial court o Trie aμμellant c1nJ i\ngelus Ki.nun...ia whom I wil_l refr as the seconJ accusE:: went to Mbesp hiSSicn. The ajJellQnt went to see Wl Rinhart Wilhem Knras Sus, th~ head of Mbesa Tchnical School TunJuru., The cl}Ji:Jell ant tolJ l:"\ivl that h want ea to sC2e Mr .. Meyer with whom he maue arrangmnt to buy an electrical machine. Wl told the i.)pellant that 1•1r. 1 11 kyer had bt::1;:n transferred to psM.. The aμμellant then went out. Later the a~~cllant an~ the St:!COnu accused followed Wl to his house and the aJellnt tolu t'Wl that he had an agreement form an-I a photocopy of registratic,n card in respect of M/V TZ 45879 and that he hud paiJ for that m/v to 1v1ro Meyer :rnd that he was to be refun0.ed shs.5O,OOO/=o Th1;: dc,cuments showed th1;; name of Fadha Nordicks of Box 34 Mbesa Tunuuru. Accoruing to th eviJence of ~Wl \ \ \ \ \

I I ./ ✓ 2 anc..1 t'W4 Fauha Nor.lick.s haJ never 0~"'n t·.nown to have lived at Mbesa Mission, th&t m/vs which com~ ft_ the mission never come in the names of inJividuals, but are registrJ in the name ot the mission, and that Mbsa hission haJ nver rccive m/v TZ 458790 The appellant was playins the rul~ of ngoti3ting the purchase of the m/v with Fadha Nore.licks an accoruing to him the borrowed the money from the second accuse::do Cn thc,se facts I cannot se how,the dJ?pellant could genunnely cc.,rnplain thut he w;::is wrongly convictt2d0 What disturbs me thouyh is, huving acquitted tJ,1;:: second 2iccused on count one, the appellant ce,uL:l in law sta.nu cc,nvi.cteu for c0nsμirary alone. The learned state attorney has suumittec..1 thdt in law a J?erson cannot- conspi.re al cne., There must b~ at. least two peoμle. Section 306 of the eenal Co'-'e proviJes that 11 i'\ny person Who conspires·-.w1'h .. apotp,,x by Geceint er any frauGulent meons to affect the market price of anything publicly sol<.1 or d<.=frauu the. J?ublj_c.o.r ... any __ pe.r~~n, whether a particular person or not, or to extort any μroJ?erty frobny ·,, ~ers0n, iS ~uilty of a misdemeanour and is liable to imprisonmen~~or five years". hS the second accusel..i had oeen acquitted in count one " the convicticn of the ai:Jμellant in that count is bad in law.. He ',\ ought to have been acquittedo I woulei therefore allow the apμeal in I \ respect of the first-court an-..i qt,ash th-:: c0nvicti0n anu set aside tl\e sentence imp.osed c,n that count o \ As reyarcts c0unt two and three the \ appe.al_o.gainst conviction r,l')nn-1:::. _1=,c,...r,o<:>:.L...-· ··•I'het:l-::! was -suffici-ent

eviC:ence tc SUJ?iJOrt th8 conviction on those -"'0 r.01mt.::: _ The sentencs. , imposec.l cannc,t be s.:iid to be t::Xcessi ve. The ccnv:i.r.t.Lon and s~"'"""'nc:e.ia; in counts two anu three are uph1:::ld0 In th1::: result ans..'. to th-= ""xtent as indiceteJ above the - aJ?μe~ h uismissedo Coram: SoJo Lawena DRo hppellant: Absento , Judge \ For Republic: Mr. Hyera - State kttorneyo -----------...............___ Order: Judgment uelivered in chambers before .'lr-. Hyera - State J~t:6rn.~y, / for f{e_l)ublic this 6th Jay of il,ugust, 1988. ; .DIST .kI OT ;J.{i:; GI :::i T .k,~R 6.8088 \ \ \ \ \ '