MOHAMED MSOMA v THE REPUBLIC 1989 TLR 227 (HC)

 MOHAMED MSOMA v THE REPUBLIC 1989 TLR 227 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Rugakingira J

27 November, 1989 G

Flynote

Evidence - Corroboration - Complainant an unreliable character -Desirability of

corroborative evidence. H

-Headnote

The appellant was charged with and convicted of obtaining money by false pretences.

The trial court convicted him on the basis of evidence given by the complainant, the

only witness for the prosecution, which evidence was not corroborated. On appeal,

the court found that the prosecution witness was an unreliable character and his

evidence was I "shaky".

1989 TLR p228

RUGAKINGIRA J

Held: (i) In law the evidence of one witness, if believed, is sufficient to found a A

conviction;

(ii) when a witness is unreliable it becomes desirable, if not necessary, to look

for corroboration;

(iii) there could be no corroboration in this case not because of the peculiar B

setting but largely because the complainant himself actively removed that possibility.

Case Information

Appeal allowed.

Munisi, for the Republic C

[zJDz]Judgment

Lugakingira, J.: The appellant was convicted of obtaining money by false pretence c/s

302 of the Penal Code and was sentenced to three years' imprisonment. The charge D

originally included two persons, the appellant appearing as accused No. 2, but the first

accused was acquitted. It had been alleged that on 19th February, 1988 at Msasani

Mikoroshini in Dar es Salaam, the two obtained 60,000/= from one Julius Mroso (the

complainant) by falsely representing that they could multiply the money. E

The story of the case is a typical example of what has come to be known as utapeli.

This term, I understand, encompasses all forms of trickery and artifice perpetrated for

gain. The complainant was a welder based at Temeke in Dar es Salaam. His business

was not doing well and he was having problems with his health. The first accused was

his F business neighbour as well as a friend. The latter advised the complainant to

see an expert for treatment and cleansing; indeed he introduced the complainant to

the appellant as such expert.

It seems that this took place at the beginning of l981. I said it seems because the

evidence is far from clear or consistent. Making the best of the situation, the

complainant G appears to say that on being introduced to the appellant the latter

proposed that they meet in the evening at a graveyard in Msasani. They met there just

after 7 pm. It was dark. The appellant then burnt incense. In a moment the

complainant heard voices, supposedly voices of the dead. He was terrified and

impressed. They were then at a H tomb and the appellant declared that the

complainant's business and health problems had been diagnosed. He advised the

complainant to return for another session after a week. The complainant went back

after two weeks apparently in the company of both I accused. It is not clear whether

he got another 'treatment' but we are at least told that

1989 TLR p229

RUGAKINGIRA J

he was now asked whether he had money for the treatment. He did not have any and

A was advised to find it or furnish two guarantors.

After some time the complainant sold a vehicle for 80,000/= and the appellant got to

know the deal. My difficulties with the evidence may be this bit as to what followed.

B

Mohamed came at home and found me and on the same day met at the city

centre and that my lucky star has been found and I was called to the place and he

gave me the letter Nyota yake imekwisha onekana. I went again for fear of spirits at

Msasani and that now things could C go well since I have money which must

multiply. I was solicited into taking the money for luckiness - zisafishwe ili zizae.

The passage suggests that the appellant intensified his representations when he

became D aware of the complainant's financial standing. The complainant claimed to

have taken 60,000/- and to have been accompanied by his young brother one

Teophan Msoro. At the graveyard he gave the money to the appellant who laid it on a

tomb. The appellant then asked the complainant to bring incense and perfumes for

cleansing the money. E When he delivered these articles the following day he was

told that the process would take a week. In two days it dawned on the complainant

that he had been swindled. He demanded back his money but the appellant told him

it was with the spirits. Indeed the F appellant was said to have extracted another

300/= from the complainant as a fee to talk to the spirits. In the end the complainant

reported the matter to the police.

The appellant did not testify, electing to absent himself after the close of the

prosecution case, nor did his counsel appear. That did not deter the trial court which

proceeded to convict the appellant as aforesaid. The same counsel engaged by the

appellant at the trial G drew and filed the petition of appeal but did not appear at the

hearing. Suffice it to say that the petition consisted of three grounds, namely, that the

appellant was not given an opportunity to defend himself, that the prosecution had

not established its case beyond reasonable doubt, and that the evidence was shaky and

called for corroboration. H

I think the complaint in the first ground is not justified. The record of the trial court

leaves not doubt that the appellant was given the opportunity to defend himself but

did not take it up, electing to absent himself on the appointed day. In the

circumstances the trial court was justified in proceeding to pronounce judgment

without hearing the appellant. The I procedure was fully authorised by the

1989 TLR p230

RUGAKINGIRA J

provisions of s.227 of the Criminal Procedure Act and the circumstances justified A

recourse thereto. To that extent, therefore, I am unable to say that the trial court

erred. I will next consider the third ground, the second ground being dependent on

this.

I must confess that in the circumstances of this case the third ground assumes peculiar

B significance. Perhaps I should start by pointing out that the complainant was the

only witness for the prosecution. Mr. Kyuki, learned State Attorney, rightly

submitted that in law the evidence of one witness, if believed, is sufficient to found a

conviction. I also C agree with him that there is no necessity for corroboration for

every witness. But is follows by implication that there may arise a situation where

corroboration is desirable even if not necessary. I have unfortunately come to the

view that this was a case where corroboration was desirable and I will demonstrate

why. D

First of all, it is true that the evidence of the complainant was "shaky" as charged in

the petition of appeal. The record testifies to the complainant's difficulties to make

out a story although he was testifying some three months or less after the alleged

events. He contradicted himself here and there, clumsily hopped from this to that

fact, as if not E seized of the facts of his own experience. Above all it came out in

cross-examination that he did not even know when, if at all, he parted with the

money. His very words are again revealing. F

I do not remember exactly when he took my money. I am not mistaken it was

Saturday. It was April l (am) not sure 1988 ... Days has passed, I have forgotten. It is a

long time since my money was stolen. It is February 1988, it is not April. G

This cross-examination took place in June 1988, but this was a "long time" from

February or April, 1988 according to the complainant. How, when was the money

taken - February or April, 1988? Could it in fact have been earlier than 1988 since the

complainant was not even sure of the year? It must be obvious from all this that the

H complainant was such an unreliable character that he could only attract anxiety

rather than confidence. It is precisely when a witness is unreliable that it becomes

desirable if not necessary to look for corroboration. That situation did arise here. I do

not wish to venture into the superstitious grounding of the alleged transaction: the

belief in and I practice of witchcraft; yet it is also tempting to ask whether a person

who believes in the ability of

1989 TLR p231

RUGAKINGIRA J

'talking tombs', rather than diligent work, to multiply his fortunes has that degree of

A rationality which can commend itself to the confidence of a court of law.

When we turn to look for corroboration, it is wholly absent. Mr. Kyuki again

observed that the setting of the alleged transaction - a graveyard, on a dark night -

excluded the B possibility of corroboration. I am not so certain. It seems to me that

the setting notwithstanding corroboration could have been obtained in this case but

for the acts and omissions of the complainant himself. As seen earlier the complainant

is supposed to have left for the rendezvous in the company of his young brother,

Teophan Msoro. One C would have expected Teophan to witness the transaction,

but he was not to.

The extent to which the complainant could be tantalising even in this regard is again

underscored by his own words. D

Money was in a bundle. He did not count, the accused No. 2. But I told him

that it was 60,000/=. When I told him that it was 60,000/= Teophan heard. I went

with him but left him behind. When I handed the money he was not there, but when

I left home with shs.60,000/- my E brother accompanied him (sic). Besides me, no

one else will testify to the effect.

In short there could be no corroboration in this case not because of the peculiar

setting but largely because the complainant himself actively removed the possibility

of it. F Alternatively, and most probably, he lied about the whole thing. He could

not take his brother all the way to the graveyard only to discard him when his actual

encounter with the witch and the passing of the money. It all goes to show how

dangerous it was to rely on the complainant's bare word. I have therefore insufficient

evidence to establish that G the appellant obtained 60,000/= or any amount from the

complainant.

That, in my view, is sufficient to dispose of the appeal but there is one more aspect of

the case which must be addressed. The inconsistency of the complainant makes it

difficult to determine the purpose of the money, if any money was passed. At one

time we are given H to understand that he was required to find money to pay for his

treatment and even to furnish guarantors if he could not do so immediately. But

when money is finally found it is not paid for the treatment but is now solicited for

multiplication. For one thing, this inconsistency is yet another illustration of the

extent to which the complainant could be I unreliable. But there is another

1989 TLR p232

RUGAKINGIRA J

aspect to it. There is a vast difference in law between obtaining money as a fee for a

A purported treatment and obtaining the same for the purpose of multiplying it for

the giver. In the former case the recipient obtains not only possession but also

ownership of the money; in the latter possession only but not ownership is obtained,

it being understood B that the money would be restored and possibly in a double

state. An offence of obtaining money by false pretences under s. 302 of the Penal

Code is not committed in possession only but also ownership if obtained in the

money: see Omari v R. [1964] E.A. 162 and the English decisions cited therein.

Where possession only is obtained the accused can C only be convicted of theft. In

the instant case, is there were reliable evidence to establish that money passed, the

appellant could properly have been convicted of theft. But as I have said, there was no

such evidence so, that the conviction even for the offence charged cannot be

sustained.

For these reasons, I allow the appeal, quash the conviction and sentence and order the

D appellant's release from custody.

E Appeal allowed.

1988

Editorial Board

Chairman

The Hon. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General Chambers, Zanzibar

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel,Tanzania Legal Corporation

Mr. F.D. LUOGA, Lecturer in Law, Faculty of Law,

University of Dar es Salaam, Assistant Managing Editor

Assisted by Dr. N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of

Tanzania and the High Courts of Tanzania and Zanzibar

CITATION

These Report are cited thus [1988] T.L.R.

Judges of the Court of Appeal of Tanzania in 1988

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

Judges of the High Court of Tanzania in 1988

1. The Hon. Mr. Justice N.Z. Mnzavas Principal Judge (JK)

2. The Hon. Mr. Justice B.A. Samatta Puisne Judge

3. The Hon. Mr. Justice L.M. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice W. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

12. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

13. The Hon. Mr. Justice F. Munyera Puisne Judge

14. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

15. The Hon. Mr. Justice M. Mwakibete Puisne Judge

16. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

17. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

18. The Hon. Mr. Justice C. Mtenga Puisne Judge

19. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

20. The Hon. Mr. Justice A. Bahati Puisne Judge

21. The Hon. Mr. Justice H.A. Msumi Puisne Judge

22. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

23. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

24. The Hon. Mr. Justice B.P. Moshi Puisne Judge

25. The Hon. Mr. Justice L.A. Kyando Puisne Judge

26. The Hon. Mr. Justice W.H. Sekule Puisne Judge

27. The Hon. (Madam) Justice E.N. Munuo Puisne Judge

Judges of the High Court of Zanzibar in 1988

1. The Hon. Mr. Justice A.S.L. Ramadhani Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1988 TLR p1

A