IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

BUKOBA DISTRICT REGISTRY

AT BUKOBA

CRIMINAL APPEAL No. 9 of 2019

(Arising from Criminal Case No. 209 of 2017 of Bukoba District Court)

SAVERINA D/O EXAVERY ........................................APPELLANT

VERSUS

THE REPUBLIC ................................................... RESPONDENT

JUDGEMENT

10/10/2019& 24/10/2019

KA/RO, J

This appeal touches among other aspects, the salient features which draw

the distinction between criminal and civil wrongs. The key issue to be

determined among others in this appeal is whether or not wrongs which

1
arise from contractual obligations between parties in their course of

businesses or debts are criminal in nature. The area seems to be a perennial

or recurring problem in subordinate courts, as such it is imperative to give

proper interpretation of laws with regards to those matters.

The appellant one Saverina Exavery a resident of Bukoba is a business

woman who sells timber and well known to PWl one Bernad Alois Lyari

(PWl) who is also a businessman and a resident of Musoma. The duo had

entered into an oral agreement whereby the appellant was to sell 1800

pieces of timber to PWl and the purchase price was effected through M-

PESA and hard cash. According to PWS's testimony; a Vodacom Manager at

Bukoba, the amount of money which was received in the appellant's phone

amounted to T.sh 8,375,000/= while the other amount of T.sh 4,000,000/=

was sent to PW2; one Fredrick Abiero who handled over the amount to the

appellant. The proceedings further revealed that Agustino Kasigiro; {PW3),

the driver from Musoma was sent by PWl to be handled and transport the

said timber, but in vain.

The matter was thus reported to the police and the appellant conceded to

be indebted in their arrangement. Consequently the appellant and PWl on

8/5/2017 entered into a written agreement admitted as Exhibit Pl, into

which the appellant promised to deliver the said timber into two portions

of lOOOpcs and 800pcs on 30/5/2017 and 28/6/2017 respectively. Later

PW4; one Dickson Kakoki and Augustina Kasigiro were sent by PWl to

2
make follow up on the said promise, but again the said timber weren't

handled to them.

In defense, the appellant agreed to have conducted business of selling

timber with PWl and agreed to be indebted but with different amount with

the one recognized by PWl. In her testimony she said that this was not her

first time to deal with PWl as they had similar arrangement before. She

contended that in the current agreement, PWl had paid her Tshs.

5,500,000/= and some balance remained. She went on that PWl did not

come himself to load the timber but sent Fred (PW2). However she didn't

hand over the timber to PW2 as she was demanding for the payment of the

remained balance. They waited for three weeks for PWl to come so that

they could resolve the controversy on the remained balance, but he didn't.

Eventually the timber decayed due to rainfall and she got loss.

The presiding Magistrate in his analysis was satisfied that the appellant and

PWl had a business relationship and the appellant received some money

for the purpose of buying timber but did not fulfil that obligation, and

therefore indebted.

The appellant was therefore convicted and sentenced to serve 4 years in jail

by the District Court of Bukoba after being charged on the offence of

stealing by agent contrary to section 258(1) and 273(d) of the penal Code.

(R.E 2002)

3
The trial court subsequently ordered the appellant to pay the sum of Tsh

11,050,000 to PWl as compensation (sic) of the money entrusted to her for

the purpose of buying the timber.

Dissatisfied by the decision of the trial court, the appellant appealed to this

court under certificate of urgency to impugn the conviction entered,

sentence meted out and order of the said trial court.

The grounds in the petition of appeal were couched as follows:

1. That the presiding magistrate erred in law and facts by entertaining,

trying and determine the matter as criminal case while it is pure civil
matter.

2. That the presiding magistrate erred in Jaw and facts in holding that the
prosecution proved their case beyond reasonable doubt.

3. That the presiding magistrate erred in law and facts for failure to
consider the evidence adduced by appellant thus reaching unjust
decision on the part of the appellant.

At the hearing of this appeal, the appellant enjoyed the service of

Advocates Seth and his senior brother Chamani while the respondent

Republic, was represented by Ms Masule, the Learned State Attorney.

Before Mr Seth started submitting on the grounds of appeal, he reminded

this court on its duty to guide the subordinate courts in proper

interpretation of law. He cited the case of BQ 9532 CPL EDWARD MALIMA

4
V THE REPUBLIC Criminal Appeal No.15 of 1989: CAT, Mwanza

(Unreported). He also urged this court to take judicial notice on matters of

law which are relevant to the case even if they were not raised in the

memorandum of appeal. He cited the case of DIAMOND TRUST BANK TZ

LTD V IDRISA SHEHE MOHAMED, Civil Appeal, No. 262 of 2017: CAT, at

Zanzibar (Unreported) to back up his submission.

On citing the above authorities, the counsel for appellant was to the effect

that the trial court's judgment exhibited flaws for failure by the trial

magistrate to enter conviction before proceeding to pass a sentence. The

Counsel for appellant insisted that, such omission was a total violation of

section 235(1) of CPA Cap 20, RE 2002. He cited the case of SHABAN IDD

JOLOLO and 3 others v R, Criminal Appeal No.200/2006, CAT at Dodoma

(Unreported) to bolster his argument. He prayed this court to hold that the

said judgment has no legs to stand on for want of conviction hence the

same should be quashed as it was held in the cited case.

The Advocate then went on to amplify the first grounds in the petition of

appeal into which the appellant contended that the trial magistrate erred in

law and facts by entertaining and determining this matter as a criminal one

while it was purely a civil matter. Mr Seth submitted that according to the

trial court proceedings, the evidence adduced connotes that parties had

entered into agreement of selling and buying timber. The evidence further

reveals that the money was paid through mobile money-phone transfer

5
(MPESA) so as to fulfill the condition of existence of consideration for a

valid contract.

Besides, there was evidence through exhibit Pl admitted in court showing

that the appellant had failed to supply the timber to PWl as agreed despite

being paid, thus PWl was demanding to be supplied with the timber as

agreed (specific performance). He added that when PWl was cross-

examined he agreed that the matter emanated from contract and parties

themselves conceded that they had an agreement but surprisingly the trial

court proceeded to determine the matter as a criminal one. He argued that

failure by the appellant to supply timber which she had already been paid

for was a fundamental breach of contract, hence civil in nature. He went on

that if the matter was instituted as a civil case the appellant would have

probably pleaded a defense of force majure. He referred the court to the

case of PONSIAN MUTAHYABARWA V RIBENT RWECHUNGURA (PC)

CRIMINAL APPEAL No.8 of 2015: HCT BKB, (Unreported) wherein

Mwangesi J (as he then was) had once warned that it is wrong to handle

debt as a criminal matter.

As for the third ground of appeal that the presiding magistrate erred in law

and facts for failing to consider the evidence adduced by the appellant

thereby reaching to unjust decision, Advocate Seth cited a plethora of

authorities which he argued to have ruled out that non consideration of the

evidence of the accused is fatal and incurable defect which vitiates

conviction. The cited cases are: JEREMIAH JOHN and 4 OTHERS V THE

6
REPUBLIC: Criminal Appeal No.416 of 2013 CAT at Bukoba (Unreported),

TANZANIA BREWERIES LIMITED V ANTHONY NYINGI: Civil Appeal No.119

of 2014: CAT TLSLR pg99, MOSES MAYANJA@MSOKE V THE REPUBLIC: Cr.

Appeal No.56/2009, CAT at Mwanza (Unreported). The Counsel for the

appellant added that the court of appeal has established a binding principle

that the entire evidence has to be considered holistically before decision is

made citing a case of MAKELELE KULINDWA V THE REPUBLIC Criminal

Appeal No.175" B" of 2013 CAT at Tabora (Unreported) to back up his

argument. He added that evaluation of the accused evidence wasn't

enough as the presiding magistrate just concluded that the accused

conceded to be indebted.

With regards to the second ground of appeal into which the appellant

contended that the magistrate erred in law and facts in holding that the

prosecution side proved the case beyond reasonable doubt, Mr Seth

submitted that it is trite law that a criminal case has to be proved beyond

reasonable doubt and in case of doubt, the same has to be resolved in favor

of the accused. He cited the case of BIGARA KIGURO V THE REPUBLIC:

Criminal Appeal No.153/2011 CAT at Mwanza (Unreported). He went on

to argue that it was not proved if the appellant was the PWl's agent and

whether on that capacity stole the alleged sum of Tshll,050,000/=. The

Counsel highlighted that the offence of theft under section 258(1) was not

proved as there was no proof of an intention to defraud or to deprive that

7
money permanently. He also argued that section 273(d) was improperly

applied as there were no valuable securities mentioned in the evidence.

The Counsel for appellant also pointed out the flaws in the charge sheet

which resulted to conviction that it did not afford opportunity for the

appellant to prepare her defense when it was read and further its

particulars did not explain the transactions which transpired. He cited the

case of BARICK RUGAZIRA AND ANOTHER v THE REPUBLIC Cr. Appeal

No.510/2015 CAT at Bukoba (Unreported) which explained the purpose of

the charge.

In rebutting the argument that the trial magistrate didn't convict before

sentencing, the Learned State Attorney; Ms Masule argued that the

statement in the judgment that "I convict her as charged" to her

understanding, suffices to be termed as conviction clause and therefore the

court convicted the appellant as per the charge leveled against her. She

prayed the court to order re-writing of the judgment as a proper remedy

should it find the argument of the appellant's counsel holds water and not

quashing the said decision as suggested by Advocate Seth.

Responding to the first ground, Ms Masule maintained her stance that the

matter at hand is a criminal one as the appellant was trusted by PWl and

received the money to supply him timber, yet she didn't fulfill that

intention and that is where section 273(d) of stealing by agent comes into

play. She added that existence of an agreement between parties of which

8
defense side concedes and the fact that defense counsel and the appellant

do not dispute the money to have been received by the appellant ipso facto

adds weight that accused obtained money over which she did not fulfill the

purpose intended. She pointed out that instituting criminal offence doesn't

bar PWl from institute a civil case again so as to claim back his money.

With regards to the third ground, the Learned State Attorney insisted that

the trial court considered the accused evidence by giving her right to be

heard and the court formed issues and proceeded to give its decision

adding that the extent of evaluation which the appellants counsel

contended to be inadequate should be left to this court to decide.

As her riposte to the third and second grounds of appeal, Ms Masule

conceded that the standard of proof in criminal case is beyond reasonable

doubt and on the respondent's side, the case stands proved. She rejected

the attack by the counsel for appellant that the claimant (PWl) did not

mentioned the dates arguing the same to have no legal effect. She went on

that, what matters is the witness' credibility adding that non-mentioning of

the dates by one witness is not fatal provided there were other witnesses in

the prosecution case. She cited the case of GOODLUCK KYANDO V R (2006)

TLR 363 which resolved that each witness is entitled to be believed unless

there are cogent reason to the contrary. She was to the effect that the trial

court had no cogent reason of not believing the said witness.

9
Responding to some attacks on the charge sheet, the State Attorney

contended that there was no problem on the particulars of the charge and

the appellant faced no problem in defending herself. With regards to

argument that the proper section was supposed to be 273(b) instead of

273(d), Ms Masule argued that even if it that was the case, the outcome

wouldn't have changed since the defect is curable under section 388 of CPA

Cap 20. She further clarified that no failure of justice has been occasioned

since the accused knew the nature of the offence as per the particulars and

was able to defend herself. She finally opposed the appeal and prayed the

court to uphold the trial court decision. In alternative if the court would

rule out that injustice was caused, she prayed for a re-trial order and not to

quash the conviction and set aside the sentence. She cited a case of JAMAL

ALL@SALUM V R Cr Appeal No.52/2017 CAT at Mtwara (Unreported) as a

back up to her argument.

In rejoinder, Advocate Seth reiterated that section 312 (2) of CPA which

stipulates what to be contained in the judgment, has been couched in

mandatory terms by using the word "shall" therefore failure to comply with

it by the trial court has rendered the whole judgment incompetent, as such

retrial is not proper. Besides the State Attorney has not explained whether

the retrial would be in civil or criminal nature. He also insisted that it is not

shown how the parties' transaction was covered under the Penal Code.

Further he argued that the presence of Penal Code cannot wipe out other

existing laws of the land. Advocate Seth also asserted that, the fact that the

10
Prosecution side conceded the presence of civil element in this matter but

opted to find recourse in a criminal mode/case is totally to mislead the

court since there is established laws to deal with civil matters. He also

argued that raising issues in a case cannot be equated with analysis or

evaluation of evidence. He concluded that the exhibited flaws in the

proceeding and judgment is incurably defective and all the existing doubts

should benefit the accused. He prayed the court to find the appeal to have

merit and consequently the court quash the conviction, sentence and

orders thereon.

The court has gone through the records and heard both sides. Admittedly,

the points raised by Mr. Seth advocate during the oral submission that the

trial court did not convict the appellant before sentencing was not raised in

the petition of appeal. However, being point of law, the court is duty bound

to consider and rule out on them as it was rightly argued by the Advocate.

I wouldn't want to be detained by the raised issue. Suffice to state that, it is

clear as rightly argued by the Learned State Attorney, Ms Masule that the

sentence "I convict her as charged" by the trial court was a proper and

conclusive conviction against the appellant which in other words means:

the accused is convicted as per the charge leveled against her. The cited

case of SHABAN IDD JOLOLO and 3 others (supra) is therefore

distinguishable from our case at hand. In JOLOLO'case (Supra) the trial

court entered no conviction at all.

11
I now revert to determine the grounds of appeal and will address them in

seriatim starting with the first one.

The issue in controversy with regards to the first ground hinges on the

nature of the case. According to Advocate of the Appellant, the case

emanates from an agreement to sell and buy timber between the appellant

and PWl respectively wherein the purchase price was paid by PWl, but the

appellant didn't fulfil her part of bargain, which amounts to breaching of

the agreement by the appellant. Hence civil in nature. However the rival

argument by the State Sate Attorney is to the effect that the appellant was

given some money to supply timber to the claimant/PWl but didn't fulfil

what was intended which amounts to stealing by agent, thus criminal in

nature.

Looking at Section 258(1) of the Penal Code, Cap 16(R.E 2002) under which

the appellant was charged, one will note that a major element which must

be reflected is the intention to defraud either through misrepresentation,

deceiving, fraudulent tricks and depriving the owner permanently on the

part of the accused (Animus Frande) which is the mens rea component for

the offence of theft.

According to the charge sheet which instituted the case, the statement of

offence was stealing by agent contrary to section 258(1) and 273(d) of the

Penal Code.

For easy understanding I wish to quote the said sections as follows:

12
section 258(1): "Any person who fraudulently and without a claim of right

takes anything capable of being stolen, or fraudulently converts to the use

of any person other than the general or special owner therefore anything
capable of being stolen, steals that thing." (emphasis mine)

Section 273(d) says: If the thing stolen is any of the following things, that is

to say:

"the whole or part of the proceeds of any valuable security which has been
received by the offender with the direction that its proceeds should be
applied to any purpose or paid to any person specified in the direction"

The particulars of the charge, are quoted as follows, "Saverina d/o

Exavery.......... being an agent of Bernad s/o Aloyce did steal a total of

Tanzanian shillings Eleven Million and fifty thousand
only{11,050,000/=)entrusted to her for the purpose of purchasing 1800 pcs
of timber to be used for business purpose"

I paused to ask if at all the offence of theft has been committed as per sec.

258(1).

As earlier stated, for the offence of theft to stand, an intent to defraud must

be proved. However no evidence whatsoever has been adduced by the

prosecution side which suggests that at the time of entering into the

agreement of selling timber to PWl, the appellant acted fraudulently by

either deceiving, applied fraudulent tricks, or even misrepresented herself

in any way so as to obtain the said money from PWl. In fact PWl when

13
testifying in chief told the trial court that he knew the appellant through

timber business (Proceedings Pg 9) which is a clear indication that when

entering the agreement to sell and buy the timber, the appellant had no

intention to defraud PWl. As such the element of mens rea is missing in the

alleged theft offence. The missing element made 273(d) redundant as well

as it also talks of a stolen thing. Even the particulars of the charge do not

include an averment that there was false pretense or misrepresentation

with the intention to defraud. [Refer the case of MSAFIRI S/O KULINDWA

V REPUBLIC (1984) TLR (HC), 276]. In that respect, failure to supply and

deliver the timber to PWl as agreed cannot therefore be said to be a mens

rea of theft with much respect to the Learned State attorney. In my judicial
interpretation the intention to steal or defraud ought to be revealed/shown

at the beginning when the parties were entering into the said agreement

and not at the final stage when one of the party default. [Refer EMMANUEL

S/O KAHAMA V R (1983) TLR 81]. In my comprehension, the failure

amounts to breach of the agreement entered and not otherwise.

It is apparent from the record and parties conduct, that this dispute falls

squarely under contract law which is a civil matter. As was rightly argued by

Mr.Seth Advocate, parties had a valid contract and the consideration was

paid through M-PESA, but the appellant breached the same for failing to

fulfil her part of bargain, hence committed fundamental breach of the

contract which gives right to the non-defaulting party to sue for specific

damages and general damages or even for specific performance through a

14
civil matter. It should be understood that a criminal offence must be

legislated and cannot come from the vacuum or forced to fit in the existing

offences as was done in this case. In other words, breach of contract is not

an offence under the Penal Code.

It is also surprising that after the presiding magistrate had come to the

conclusion that the appellant was indebted, he proceeded to convict her.

He bothered not to consider that the appellant and PW1 were in debtor

and creditor relationship as exhibit Pl revealed. It was improper to handle

the dispute on debt between the two under criminal proceeding and this

needn't be overemphasizes. [See this court's decision of Ponsian

Mutahyabarwa (Supra)] relied upon by the appellant's counsel.

It must be understood that the consequences of criminal cases are

punishments whereas civil cases end by compensations. Therefore it is

illegal and bad practice to charge people on non-existing offences or

matters which are purely civil in nature. Doing so is to occasion failure of

justice on the purported accused and delay for a wronged person to be

remedied. It is the finding of this court therefore that this matter was

wrongly instituted as a criminal one, being civil in nature.

The above ground alone having found meritorious, suffices to dispose this

appeal, thus I see no reason to consider the other two grounds. However,

before I finish, I feel obliged to address/comment the flaws on the charge

as pointed out by the Counsel for the appellant. As analyzed above, the

15
charge sheet did not sufficiently disclose the offence of stealing as per

section 258(1). First the charge stipulates {{stealing by agent" However the

evidence doesn't supports that the appellant was an agent of PWl but a

businesswoman. Further the requisite element of intention to defraud in

that section is not depicted in the particulars of the charge and hence it

cannot be concluded that the accused knew the nature of the case facing

her in my view. Again, Section273 (d) of the Penal code was also improper

as it talks on valuable securities but in my judicial interpretation the

purchase price paid to the appellant was not a valuable security to be

stolen as rightly argued by Advocate Seth. But further to that the omission

to portray fraudulent element has made the section obsolete as it also talks

on stealing/theft. The pointed out defects in the charge are contrary to

requirement of Sec 132 of the CPA Cap 20 RE 2002 which requires a charge

to contain essential elements/particulars of the offence concerned. The

omission has therefore rendered the charge incurably defective as it

occasioned failure of justice on the part of the appellant. There is a plethora

of Court of Appeal authorities on the issue and I need not cite them all.

Suffice to refer to the one cited by the counsel for appellant of Barick

Lugazira and Another (supra)

I accordingly nullify the proceedings and judgment of the District Court, I

further quash and set aside the conviction, sentence and order meted on

the appellant.

16
Parties to this appeal are advised if they deem fit, to invoke civil channels to

solve this dispute between them.

For the foregoing reason, the appeal is allowed and I order for the

immediate release of the appellant from prison unless held for other lawful

cause.

It is so ordered.

uerro
Judge

24/10/2019

L~
Judge

24/10/2019

17
Coram: Kairo, J

Date: 24/10/2019
Appellant: Present in person, Advocate Seth

Respondent: Mr J. Mahana: S/A

Court: The matter was judgment. It is read over before Mr Ju ma Mahana:

the learned State attorney for the Respondent, Advocate Seth for the

Appellant and before the Appellant in person today in open court

L.G~ ~O
JUDGE

24/10/2019

18