Dpp v. Maria Joseph Somba Cr no 404 of 2007 (obtaining registration by false pretences)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MSOFFE, J.A., KILEO, J.A. And OTHMAN, J.A.)

CRIMINAL APPEAL NO. 404 OF 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS…..…..APPELLANT

VERSUS

MARIA JOSEPH SOMBA…………………....………..RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dar es Salaam)

(Mruma, J.)

dated the 25^th day of June, 2007

in

Criminal Appeal No. 41 of 2005

--------

JUDGMENT OF THE COURT

13 & 23 February, 2009

KILEO, J.A.:

The respondent in this case was, sometimes in 2002, arraigned before the Resident Magistrate’s Court of Dar es salaam at Kisutu for the offence of obtaining registration by false pretences contrary to section 309 of the Penal Code. The trial court did not find her guilty. Being dissatisfied with the decision of the Resident Magistrate’s Court, the Director of Public Prosecutions (DPP) appealed to the High Court. The High Court dismissed the appeal and the DPP has finally come to this Court.

At the centre of this criminal matter is a house on plot No.228 Block A. located at Kijitonyama Ally Maua.

It is not in dispute that the house in question was built by the respondent through monies she obtained by way of a loan from the defunct Tanzania Housing Bank (THB). It is also not in dispute that the house in question is built on a plot that belonged to the father, now deceased, of the respondent. The actual complainants in the trial court were the mother and brother of the respondent. It is also not in dispute that the offer of the right of occupancy, issued on 16/3/1984, is in the name of the respondent. At that time, though the house appears to have been completed, the loan obtained by the respondent had not been fully repaid.  According to the record, the loan was fully redeemed in 1996.  Also not in dispute is the fact that the respondent did attempt, before she was arraigned, to have the title to the property registered in the names of all the beneficiaries of the estate of the late Joseph Somba who was her father.

The memorandum of appeal lodged by the DPP contains four grounds of appeal, the fourth ground being an alternative to the 3^rd ground.

At the hearing of the appeal, Mr. Obadia Kameya, learned Senior State Attorney, who was assisted by Ms Andikalo Msabila, learned State Attorney, abandoned the 3^rd ground of appeal. The following are then the grounds upon which the appeal before us is based:

“1.    That, both the trial Court and first appellate Court erred in law and fact by holding that the Respondent acquired registration upon obtaining consent of the parents (owners of the plot).

2.           That, both the trial Court and first appellate courts erred in law not convicting the Respondent while there was overwhelming evidence to warrant convictions.

3.           That, the first appellate court failure to take into account positively our 1^st ground of appeal in that court, now the 3^rd ground in this appeal as it is held by Hon. Mr. Shangwa, J. in the High Court of Tanzania at Dar es Salaam PC Civil Appeal No. 92 of 2003 (Probate case) between Richard Joseph Somba – Appellant and Maria J. Somba Respondent has caused double standards leading to gross miscarriage of justice on the same subject matter (i.e. plot and house in dispute)”.

According to Mr. Kameya, there was enough evidence at the trial to warrant a conviction and he prays that the matter be remitted to the trial court for sentencing. He pointed out that the respondent obtained registration in 1984 while construction of the house had already been completed. Referring to the loan agreement, which appears in the record of appeal at page 46 he submitted that security for the loan, which the respondent obtained, was not the house but her salary, which was deducted in repayment of the loan.

As for the respondent’s efforts in having the property registered in the name of her late father and the beneficiaries, the learned Senior State Attorney opined that these were just futile efforts aimed at trying to cover up the respondent’s evil intentions after it had come to light that she had done something wrong.

The respondent was represented by Mr. Issa Maige, learned advocate, at the hearing of the appeal. He argued that the decision of the High Court and the trial court could not be faulted in any way in so long as there was no guilty intent on the part of the respondent when she obtained the offer of the right of occupancy to the plot in question. According to Mr. Maige, the fact that the respondent made several attempts to have the property registered in the names of the beneficiaries, even before she was ever charged in court negates any guilty intent. He pointed out also the fact that the late Joseph Somba did not reclaim title during his life time. As for the submission that the documents evidencing efforts by the respondent to have the property registered in the beneficiaries’ names were fraudulent, Mr. Maige asked us not to give any weight to that submission because it was made for the first time when this appeal was being heard, thus denying the respondent the opportunity to challenge such accusation.

Now, one of the elementary principles in our criminal justice system is that in a case such as the one before us, the burden of proof is always on the prosecution to establish the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused need not prove his or her innocence. What the accused needs to do is just to raise some reasonable doubt.

The question before us is simply whether the lower courts erred in arriving at a conclusion that the case for the prosecution had not been established beyond reasonable doubt. One of the essential elements in a charge preferred under section 309 of the Penal Code, the provision under which the respondent was charged, is the wilful procurement of registration for himself/herself.  The said section 309 provides as hereunder:       

“Any person who wilfully procures or attempts to procure for himself or any other person any registration, licence or certificate under any law by any false pretence is guilty of an offence, and is liable to imprisonment for two years.”                         

In his decision Mruma, J. made the following statement, which we subscribe to:

“It should be noted that for the prosecution to succeed on the charge of obtaining by false pretences it must be established that the intention alleged was permanently to deprive.”

The question to ask ourselves now is whether it was established, beyond reasonable doubt, that the respondent intended to permanently deprive her parents of the property in question.

We must hasten to point out that the fact that the property is in the name of the respondent does not necessarily, conclusively establish that it belongs to her. It is unfortunate that the respondent’s father who owned the plot is not alive to tell what the undertaking between him and her daughter was. It is on record that while he was alive there was no quarrel.  Suffice it to say that impeccable evidence shows that the respondent was given the go ahead to use the title over the plot in order to obtain a loan and build a house thereon.  She obtained the loan and she built the house. There was unchallenged evidence that the house is partly occupied by family members and partly by tenants. There was also evidence that the respondent has not been taking any rent from the tenants. There is no where in the evidence showing, apart from the registration which is in her name, that she has laid any personal claim of ownership over the property. At most it has been shown that she has made efforts to have the property registered in the names of the beneficiaries.

Now, given the above set of circumstances, can it be said that the

courts below erred an arriving at the conclusion that case for the prosecution was not established against the respondent on the standard required in criminal law? After careful consideration of the whole circumstances of the case and the arguments before us we have seen no reason to fault the finding of the courts below. We find the appeal to lack any merit and we accordingly dismiss it.

DATED at DAR ES SALAM this 18^th day of February, 2009.

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

O. M. CHANDE

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

(P. B. KHADAY)

DEPUTY REGISTRAR