Court name
High Court of Tanzania

Mohamed Msoma vs The Republic () [1989] TZHC 48 (27 November 1989);

Law report citations
1989 TLR 227 (TZHC)
Media neutral citation
[1989] TZHC 48
Lugakingira, J.

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

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

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

'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 Iunreliable. But there is another

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.

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