IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MUSOMA

AT MUSOMA

(PC) CRIMINAL APPEAL No. 10 OF 2022

{Arising from the District Court of Musoma at Musoma in Criminal

Appeal Case No. 47 of2021; originating from Kukirango Primary

Court in Criminal Case No. 159 of2021)

1. MANDERA JOHN

2. PENDO MWITA ................................................................... APPELLANTS

Versus

MAHESI MAORI ........................................................................ RESPONDENT

JUDGMENT

30.08.2022 & 31.08.2022

Mtulya, J.:

The first appellant, Mr. Mandera John (the appellant) was aggrieved

by the judgment of Kukirango Primary Court (the primary court) in Criminal

Case No. 159 of 2021 (the case) which was upheld by the decision of the

District Court of Musoma at Musoma (the district court) in Criminal Appeal

Case No. 47 of 2021 (the appeal).

The primary court in the case had found Pendo Mwita to have no case

to reply hence discharged her for want of the evidence to call her to

produce evidence in defense. However, the primary court had found the

appellant guilty of the offence

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of cheating contrary to section 304 of the Penal Code [Cap. 16 R.E. 2019]

(the Code), which provides that:

Any person who by means of any fraudulent trick or device

obtains from any other person anything capable of being stolen or

any other person to or deliver to any person anything capable of

being stolen or to pay or deliver to any person anything capable of

being stolen or to pay or deliver to any person any money or goods

or any greater sum of money or greater quantity of goods than he

would have paid or delivered but for such trick or device, is guilty of

an offence and is liable to imprisonment for three years.

(Emphasis supplied).

According to the appellant, he had never invited, seduced or

fraudulently tricked Mama Mahesi Maori (the respondent) to join Imani

Vicoba Mkiringo Group (the group) or pay contributions of any monies to

the group, but it was from her own volitions, wishes and expectations. In

order to make the matter well understood in legal terms, the appellant

had hired legal services of Mr. Emmanuel Baraka Werema, learned

counsel to draft and argue five (5) reasons of appeal in this court.

Yesterday, when

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the appeal was scheduled for hearing Mr. Werema appeared for the

appellant, whereas the respondent appeared herself without any legal

representation. During his submission, Mr. Werema decided to drop two

(2) grounds of appeal and argued (3) three, which, in brief, shows that:

first, the lower courts erred to hold the appellant responsible for the

offence of cheating while there is no sufficient evidence on record to prove

fraudulent trick; second, burden of proof in criminal cases lies on the

prosecution side; and finally, the appellant was convicted of two (2)

distinct offences in a single charge of cheating.

In the first ground of appeal, Mr. Werema submitted that there is no

sufficient evidence on record to show fraudulent trick as per requirement

of section 304 of the Code as the respondent joined the group at her own

wishes and volition without any inducement from the appellant. According

to Mr. Werema, the respondent joined and contributed to the group and

not an individual person hence the appellant as an individual person

cannot be responsible for actions of the group.

On the same ground, Mr. Werema contended that the record shows

that the monies complained to have been taken by fraudulent trick, as

per charge sheet, alleged to have been

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withdrawn on 13th December 2020 amounting 450,000/= Tshs. whereas

the record shows that the appellant and Manyama S. Manyama withdrew

900,000/Tshs. on 21st December 2020. In his opinion, Mr. Werema, thinks

that the offence was not established as per requirement of the law.

Regarding the second ground, Mr. Werema cited page 6 in the

decision of the district court in the appeal arguing that the district court

shifted the burden of proof from the prosecution to the appellant which

is contrary to the directives of the Court of Appeal (the Court) in the

decision of Robert Mneney v. Republic, Criminal Appeal No. 341 of 2015.

Finally, Mr. Werema submitted that the appellant was charged and

convicted for the offence of cheating contrary to section 304 of the Code,

but during drafting of the judgment the primary court held the appellant

responsible for forgery and during sentencing it ordered the appellant to

pay the respondent the stolen amount of money amounting to

450,000/=Tshs. According to Mr. Werema, the primary court has been

producing its own offences and holding the appellant responsible and

without any record of replies to the charge or mitigations.

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 Replying the complaints of the appellant, the respondent submitted

that the group declined to pay her monies despite several calls hence she

decided to sue Secretary of the Group, the appellant and had reported

the appellant to police station in struggling to have her contributions back.

According to the respondent, she arrested the appellant as from the Audit

Report of the group prepared by Pendo Mwita pointing fingers at the

appellant. On the second reason of appeal, the respondent submitted that

the evidences produced in the primary court show that the appellant

withdrew the monies fraudulently as it was stated by the Chairman of the

group Mzee Wambura Itende hence the case was proved beyond

reasonable doubt.

In ending her submission, the respondent submitted that the

confusions in the facts, evidences and production of variety of offences in

the primary court was caused by the primary court and it has to be

responsible for the mistakes. In rejoining the submissions of the

respondent, Mr. Werema maintained his previous position that there is no

sufficient evidence to establish the offence of cheating and even the

evidence of Mzee Wambura Itende is just hearsay which cannot be relied

by this court. Finally, Mr. Werema contended that the respondent

admitted without any reservations that the primary court wrongly

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produced other offences in variance of the charge sheet hence he

concedes with the appeal.

I have glanced the record of the present appeal and found that the

respondent sued the appellant at the primary court in the case

complaining of monies amounting to a total of Tanzanian Shillings Four

Hundred Fifty Thousand Shillings (450,000/=Tshs). During production of

relevant materials, the respondent, as prosecution witness number one,

testified, in brief, on 26th November 2021, as reflected at page 10-11 of

the typed proceedings, that:

...baadae wanakikundi wote wakajumuika na kusema kwa nini

nimetoa hizo fedha wakati Katibu amevunja kikundi na hajatoa fedha

na watu tuiigawana na Mhazini. Mshtakiwa pamoja wanachama wote

tukafika ofisini. Ndio wakatoa samansi kwenda kupelekwa kwa

Katibu... Mwenyekiti wa Kikundi na Mwenyekiti wa Kijiji waiikuja

kutoa ushahidi kwamba Katibu a/inikuta Benki kutoa fedha na

kugawia baadhi ya wanachama waiiokuwa na mkopo...Mkuu wa

Kituo akasema Mhazini aende kuangaiia fedha Benki. Kweii akakuta

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 fedha zimechukuliwa Tshs. 900,000/=...Madai yangu

ni 450,000/=... Naomba nyaraka zangu zipoketewe...

After registration of the materials, the respondent prayed to tender

several documents, including Tanzania Postal Bank Deposit Account

Statement admitted in Exhibit AQ collectively, which shows that the

appellant and Manyama S. Manyama withdrew 900,000/=Tshs. However,

there was no any record admitted in evidence showing the withdrawal of

Tanzanian Shillings Four Hundred Fifty Thousand Tanzanian Shillings on

13th December 2020 as per charge sheet. Similarly, no testimonies of

Treasurer Pendo Mwita or Chairman of the Group Mzee Wambura Itende

in the record of the case.

In his defense as reflected at page 15 of the typed proceedings of the

primary court in the case conducted on 26th November 2021, the appellant

had a very brief reply to the allegations that: kulingana na shauri Hlilopo

na ushahidi wa mdai, anapaswa kudai wana kikundi. Sio nidaiwe mimi.

Yangu ni hayo tu.

Following the testimonies and exhibits registered by the appellant and

considering the defense case, the primary court found the appellant guilty

of the offence of cheating as charged and at page 5 of the judgment

ordered that:

1. Shitaka dhidi ya mshtakiwa iimethibitika;

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 2. Mshtakiwa atumikie kifungo cha nje miezi mitatu (3) sambamba

na kufanya kazi za kijamii kwa kadri atakavyopangiwa; na

3. Mshtakiwa amiipe miaiamikaji kiasi cha Tshs. 450,000/= kama

jumia ya fedha aiiyomuibia.

However, the record is silent on antecedents and mitigations in

assisting the court at arriving proper sentence after the conviction of the

appellant. Similarly, there were no materials on record on either stealing

or forgery registered by either the appellant or the respondent.

Nevertheless, the primary court reasoned at page 4 of its judgment that:

Mahakama hii baada ya kupitia ushahidi uiiotoiewa na

SMI ambao uiiungwa mkono na kieieiezo

AQ...,imeridhika kuwa mshtakiwa aiiiba kwa kuaminiwa fedha ya

miaiamikaji, pamoja na wanachama wengine waiiokuwa na hisa zao

kwenye kikundi, akiwa kama Katibu wa Kikundi. Hii ikiwa ni

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 baada ya kughushi saini za viongozi wengine na kutoa kiasicha Tshs.

900,000/=.

The appellant was not satisfied with the decision and reasoning of

the primary court hence lodged the appeal in the district court

complaining on three (3) reasons to fault the decision of the primary court

in the case. After full hearing of the appeal, the district court upheld the

decision of the primary court in the case and stated at page 6 and 7 of

the judgment that:

... the trial court record and exhibits reveal clearly that amount of

money of Tshs. 900,000/= was withdrawn from TPB Bank on 21st

December 2020 by the appellant..in the trial court it was asserted

that the money was deposited and stored in the TPB Bank owned by

the members in Imani Vicoba jointly... from the face of trial court,

nothing has been proved to show voluntary consent and agreement

by the members of Imani Vicoba to such withdrawal of the alleged

money...in the present appeal, the appellant was required to prove

that the document used for withdrawal was not forged and he was

authorized by the members of Imani Vicoba Group.

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 Regarding legal personality of the group and representative suit of

the parties or evidences of other members of the group, including the

Treasurer and Chairman of the group, the district court, at page 7

observed that:

...despite of the respondent not being the member of Imani Vicoba

Mikiringo, but her claims are purely against the appellant. As [she]

faithfully handled [her] money to Imani Vicoba, [she] is entitled to

claim back her money. Since Imani Vicoba does not have legal

personality to sue, [appellant] is a proper person to be sued as the

leader and treasurer of the group, and on top of that he was the

person [who] withdrew their money fraudulently.

Following this reasoning, the appellant approached this court for

proper interpretation of the law in section 304 of the Code. It is fortunate

that this court has already resolved the matter in the precedent of Blasius

Ndambarilo v. Republic (1973) LRT 55 and interpreted the section in the

following text, that:

...every cheating situation there is involved a false pretence, for in

order to succeed. The trick, device or

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 stratagem must be accompanied by false description of it...

This thinking has received support in a bunch of precedents of this

court and has remained undisturbed since 1967 (see: Paulo Mwanjiti v.

Republic (1967) HCD 187) and has been followed in a multiple decisions

of this court and the Court (see: Alli Simba v. Republic (1968) HCD 240

and Nathaniel Mputi v. Republic, Criminal Appeal No. 182 of 1975).

From the writings of Chipeta, B.D, in A Handbook for Public

Prosecutors, Third Edition (2009), Mkuki & Nyota, at page 138 & 139 of the

book, the ingredients of the offence of cheating are exemplified in the

following text:

In a charge of cheating, the prosecution must prove: first, the

accused used a fraudulent trick or device; and second, that as a

result of that trick or device, he obtained something capable of being

stolen from someone...it is not enough to prove that by a fraudulent

trick or device the accused deceived the complainant. It must be

further proved that as a result of that trick or device, the complainant

parted with something capable of being stolen.

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 In the present appeal, the charge levelled against the appellant

alleges that the appellant had obtained a total of Tanzanian Shillings Four

Hundred Fifty Thousand Shillings (450,000/=Tshs.) from the respondent

by cheating contrary to section 304 of the Code on 13th December 2020.

However, the materials registered by the respondent (PW1) in the

primary court shows that the appellant and Manyama S. Manyama

withdrew Tanzanian Nine Hundred Thousand (900,000/Tshs.) on 21st

December 2020.

The record shows further that the monies were withdrawn from the

group deposit account and not from the respondent. Similarly, there are

no record to show that the complained amount of 450,000/= is part of

the monies withdrawn on 21st December 2020. The record shows further

that it was the respondent, at her own volition, who approached and

joined the group, without any fraudulent intent or trick from the

appellant.

The discrepancies in the charge sheet and materials registered in

one hand and absence of the important of element of fraudulent in the

record on the other hand, create doubts in the present appeal. The law

requires that: every cheating situation there must be element of false

pretence or false

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description or trick for the prosecution to succeed in its case. In the

present case, it is obvious that the appellant did not trick the respondent.

Further, the date and amount reflected in the charge sheet, which is

claimed to have been fraudulently taken on the cited date is contrary to

the materials registered by the respondent. The law requires that the

particulars of offence in the charge to have sufficient materials on

particularity. If it is not, the resulting conviction runs the risk of being

quashed on appeal (see: Mahindi V. Republic (1967) HCD 220; Alli

Mohamed v. Republic (1968) HCD 277; Msafiri Kulindwa v. Republic (1984)

TLR 276).

In the instant appeal the variance of the particulars in the charge

sheet and materials on record prejudiced the appellant hence cannot be

said the offence of cheating was established beyond reasonable doubt as

per requirement of the law in section 3 (2) (a) of the Evidence Act [Cap.

6 R.E. 2019] and precedents in Said Hemed v. Republic [1987] TLR 117;

Mohamed Matula v. Republic [1995] TLR 3; and Horombo Elikaria v.

Republic, Criminal Appeal No. 50 of 2005.

In any case, the testimony of the appellant in mentioning the

Treasurer and Chairman of the group, Pendo Mwita and

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Mzee Wambura Itende, respectively, is just a mere hearsay evidence,

which have less value in our courts. Again, there are no explanations

registered in the case to show why the two (2) key witnesses in the case

were not summoned. I am quietly aware that no particular number of

witnesses is required for proof of any fact in criminal cases as per

interpretation of section 143 of the Evidence Act [Cap. 6 R.E. 2022] and

from the precedents in Selemani Makumba v. Republic [2006] TLR 376 and

Yohana Msigwa v. Republic [1990] TLR 148. What is important is the

weight of materials and evidences tendered in court to substantiate the

prosecution case. However, in the circumstances of the present case,

evidences of Pendo Mwita and Mzee Wambura Itende were material to

the case, but the dual were not summoned to testify. This situation

increases shadow of doubts in prosecution case.

On the law and principles regulating the burden of proof in criminal

cases and statement of the district court in an appeal at page 7 of the

judgment on requiring the appellant to prove his defence, the law is very

certain and settled in section 3 (2) (a) of the Evidence Act and precedents

in Jonas Nkize v. Republic [1992] TLR 213 and Robert Mneney v. Republic

(supra). I am aware the district court at the cited page of the judgment

reasoned that:

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 ...in the present appeal, the appellant was required to prove that

the document used for withdrawal was not forged and he was

authorized by the members of Imani Vicoba Group...

Whereas the directives of this court in Jonas Nkize v. Republic (supra)

is that:

...the burden of proving the charge against the accused is on the

prosecution, so that the trial Magistrate, to say he cannot depend

on the prosecution evidence, is to read upside down the authorities,

and if it is by design, then it is strange and unjudicial behavior... the

general rule in criminal prosecution that the onus of proving the

charge against the accused beyond reasonable doubt lies on the

prosecution, is part of our law, and forgetting or ignoring it is

unforgivable, and is a peril not worth taking.

This directive has been received well with the Court in the decision

of full court of the Court of Appeal in the cited precedent in Robert Mneney

v. Republic (supra) where the Court, at page 9, stated that:

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 It is trite law that the burden of proof in a criminal case is always

on [the prosecution] and it never shifts (section 3(2) (a) of the

Evidence Act [Cap. 6 R.E. 2002]

I am aware that the primary court in its order at page 5 of its

judgment ordered the appellant to pay the respondent the stolen amount

of money amounting to 450,000/=Tshs without any charge or materials

on stealing or forgery as displayed in the record. This complaint will not

detain this court, as in the first place the charge itself was not proved

beyond doubt by the prosecution as per requirement of the Law of

Evidence and cited precedents.

Similarly, there are several other unanswered issues in this appeal,

such as: whether absence of mitigations and antecedents invalidates the

sentence imposed to the appellant; whether the appellant can sue an

individual person in the group; whether it was proper to sue appellant

without Manyama S. Manyama; whether the amount of 450,000/= was

part of the withdrawn 900,000/=; whether there was forgery in the case

and so forth. However, this court cannot schedule its precious time for

academic purposes. It has been held that the offence of

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cheating in which the appellant was charged with was not proved beyond

reasonable doubt.

For the reasons stated hereinabove, and considering the offence of

stealing was not established by the prosecution, this court is hereby

moved to set aside proceedings and quash judgments and any orders of

the trial court, primary court and first appellate court, the district court in

favour of the proper interpretation of the law in section 304 of the Code.

It is so ordered.

Judge

31.08.2022

This Judgment was delivered in chambers under the seal of this

Judge

31.08.2022

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