The
appellant was jointly charged with another with fraud as defined in
section 136 of the Criminal Law (Codification & Reform) Act
[Chapter 9:23]. They
both pleaded not guilty, and, after a trial, only the appellant was
convicted….,.
Dissatisfied
by both conviction and sentence, he appeals against both.
Three
grounds of appeal were advanced on the appellant's behalf. The
first ground is that the court erred in convicting the appellant
since the State had not led evidence in rebuttal of the appellant's
claim that his co-accused had signed the Agreement of Sale. The
second ground was that the court erred in dismissing the appellant's
claim that he only acted as a messenger in sending the documents to
his co-accused. The third ground recited that the court erred in
convicting the appellant when the appellant's co-accused had
confirmed that one George Bateni had been responsible for forging his
signature….,.
The
court a
quo
found, as fact, that the appellant represented to the complainant
that there was a Stand up for sale. The complainant had paid the
first instalment personally to the appellant who indicated that he
would forward it to one Bateni. The said Bateni was, at the time, in
South Africa. The court also found, as fact, that the co-accused had
not given any mandate to the appellant to sell the Stand. It is not
in dispute that upon initial inquiry the appellant had indicated that
there was no Stand available for sale but later telephoned the
complainant indicating that in fact there was one such Stand
available for sale. He received the second instalment, paid by the
second State witness, thereby making him the sole recipient of the
full sum of US$3,000= paid in the transaction; which transaction did
not yield the results it was supposed to yield.
Of
course, the appellant gave his version of the events.
The
court was not impressed by that version on a balance of probability.
The reason for which the court did not find for the appellant are
well articulated in the judgment. First, the court found that the
appellant was not employed by his co-accused, one Douglas Nyaunde, an
estate agent. His involvement in the transaction was therefore
designed to prejudice the complainant right from the outset. There
was no doubt in his mind, when he called the complainant offering the
Stand for sale that he knew that there was no such Stand for sale in
the first place. He knew that the complainant was going to lose his
money by the prank he had set into motion with the sole purpose to
deceive the complainant. He intended the deception to work in a way
which resulted in the complainant suffering actual prejudice. It may
well be that there were other people involved in the scam but the
evidence of his role points decidedly in favour of his conviction for
the crime charged.
The
duty of the State in any prosecution is to prove beyond a reasonable
doubt that an accused had committed the crime charged. I am satisfied
that the State, in the present case, discharged this duty on the
evidence.
The
appellant's conviction is grounded and founded on his own action in
the fraud. The essential elements of the crime were proved beyond a
reasonable doubt. As such, his conviction remains unassailable.
The
appeal against conviction is therefore dismissed.
