Joel Dzingai v The State

### Preamble
1
HMA 08/19
CA 20/17
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JOEL DZINGAI

vs

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE  AND  MAFUSIRE JJ

MASVINGO, 26 SEPTEMBER 2018 AND 18 FEBRUARY 2019

Criminal Appeal

O. Mafa  for the appellant

T. Chikwati for the respondent

MAWADZE J:  In our respectful view this is a hopeless appeal by all accounts.

After hearing counsel on 26 September 2018 we dismissed this appeal for lack of merit.  We gave detailed ex tempore reasons.  On 1 October 2018 counsel for the appellant requested written reasons for dismissing the appeal.  These are they;

The appellant was convicted by the magistrate sitting at Chivi on 23 March 2017 of 2 counts of fraud as defined in s 136 of Criminal Law (Codification and Reform Act )[Cap 9:23] (The Criminal Code).

The charge being that between August to September 2014 the appellant virtually using the same modus operandi duped two complainants AlfredChikukure in count 1 of $7 300 and LoiceGwerena in count 2 of $4 700 by selling them non existing residential stands under Chivi Rural District Council (Chivi RDC) atChivi Growth Point, Masvingo.

The facts in respect of both counts are as follows;

In respect of count 1 the 54 year old complainant got information from one EstherTandavarai that the appellant was selling a residential stand at Chivi growth point.  The complainant is alleged to have approached the appellant who confirmed the same.  It is alleged the appellant showed this complainant a stand and was paid $2000.It is said the appellant advised the complainant that the stand number was 920.  It is further alleged that the appellant advised the complainant that he was a builder and could construct a houseon that said stand for the complainant for a fee.  It is advised the complainant further paid the appellant two instalments of $2 800 and $2 500.  Thereafter it is said the appellant became evasive when the complainant requested the relevant documents for the stand.  This prompted the complainant to approach Chivi RDC who advised him that the stand number 920 in the Chivi RDC records belonged to one Davis Muchekeze.  The complainant then realised he had been sold a dummy and nothing was recovered.

In respect of count 2 it is alleged that the appellant purportedly sold the 51 year old complainant a residential stand for $2000 at Chivi growth point and advised her that it was stand number 119.  The complainant was then issued with a plan and a receipt for the said stand.  Again it is said the appellant using the same modus operandiposed as a builder and was paid a further $2700 to commence building operations on the said stand.  The appellant is said to have vanished into thin air when the complainant demanded documents relevant to the stand.  Upon visiting Chivi RDC the complainant was advised that such a stand was non existent.  A total of $4 700 was not recovered.

After a trial the appellant was convicted in respect of both counts.  As regards sentence both counts were treated as one and appellant was sentenced to 5 years imprisonment.  As he is not a first offender none of the sentence was suspended on condition of good behaviour.  The appellant has a previous conviction related to the relevant offence of fraud when he was again convicted and sentenced for selling a non existent residential stand to an unsuspecting complainant at Chivi growth point.  Howeverincasu 3 years imprisonment was suspended on condition appellant restitutedthe complainants.  This was broken down as 2 years on condition he restituted $ 7 300 to the complainant in count 1 and $4 700 on condition he restituted the complainant in count 2, both through the clerk of court at Chivi Magistrates’ court by 1600 hours on 31 May 2017.

Irked by both the conviction and sentence in count 1 and count 2 the appellant approached this court on appeal.

During the trial the appellant in count 1 stated that he never sold any stand to the complainant Alfred Chikukure.  Instead he said he simply witnessed the said transaction between Alfred Chikukure’s proxy one Esther and two Chivi RDC employees Mabwe and Magweregwede who sold the stand to the complainant for $2000 and were paid.The appellant said his only direct involvement was that the said Esther hired him as a builder to construct a house on the said stand.  The appellant said it was when he commenced the construction on the said stand that he met the complainant Alfred Chikukure in count 1 and that he was paid his dues as a builder as he had done the foundation.

In respect of count 2 the appellant said the complainant paid the said Magweregwede for the stand and again appellant simply witnessed the transaction.  The appellant said the complainant again hired him as a builder after which he commenced initial building operations on the said stand and was paid after which the complainant hired another builder.  The appellant’s defence is that if both complainants were duped they were duped by the two Chivi RDC employees Obey and Magweregwede,

The grounds of appeal in respect of the conviction in both counts are simply a repetition of the appellant’s defence outline.  They are framed as follows;

“GROUNDS OF APPEAL

Address Count 1 and 2

The trial court erred by finding appellant guilty as charged without 	sufficient evidence that there was misrepresentation regarding the 	purchase and acquisition of the building materials.

(2)	The court erred by finding that the complainants acted on 	misrepresentation when they paid the builder’s labour fees yet the 	appellant is a professional builder who rendered them services.

(3)	The learned magistrate erred by finding that the state proved its case beyond reasonable doubt without leading evidence from Chivi Rural District Council pertaining the existence of the stands, purpose and significance of receipts which were issued in favour of the complainants, the inspection form that was produced by the appellant and the involvement of council officials Mabwe and Magweregwede.

(4)	The court erred by convicting appellant as charged without proof that he received the amounts complained of.

Address Sentence

(5)	The court a quo erred by imposing a lengthy sentence of imprisonment 		which induces 	a sense of shock in the presence of highly mitigatory		factors.

Prayer

WHEREFORE Appellant prays that;

Address both counts

(1)	That appellant be found not guilty and acquitted in both counts.

Alternatively

That appellant be sentenced to a shorter period of imprisonment”

During the hearing of the appeal Mr Mafa for the appellant abandoned the appeal in respect of sentence.  Mr Mafa indicated that there was nothing amiss in respect of the sentence imposed as the appellant has relevant previous convictions.  Indeed the appeal against sentence was raised at most as a mere ritual in view of the appellant’s criminal record.

We find it very difficult to appreciate the basis upon which the Court a quois said to have misdirected itself when it dealt with and analysed the evidence of the two complainants in counts 1 and 2 and Esther Tandavarai.  This was well juxtaposed with the appellant’s evidence and findings of facts based on the credibility of witnesses were made.  It would be foolhardy for any appellate court in such circumstances to interfere with such findings of fact based on the credibility of the witnesses.   In fact no legal issues arise in this matter other than factual issues on what exactly happened.  To that extent therefore we are now obliged to place on record the thrust of the evidence adduced from the two complainants and Esther Tandavarai.

The complainant in count 1 Alfred Chikukure(Alfred) said his aunt Esther Tandavarai linked him to the appellant.  The appellant came and confirmed he was selling a stand for $2000.  He paid the appellant.  This was in the presence of Esther Tandavarai (Esther), complainant’s wife and other persons.  The appellant promised to avail documents pertaining to the stand which he said its number was 920.  This never materialised.  All that the  appellant brought was a receipt of $35 purportedly paid to Chivi RDC.  Alfred said he nonetheless insisted on being furnished with the agreement of sale which appellant had promised would avail after Chivi RDC had signed their portion.

Alfred said as he stayed in Kwekwe appellant purported that he, appellant, was a builder and could also construct a house for the complainant on the said stand.  Appellant demanded $2800 for the building to commence and was paid.  Appellant just bought some bricks and cement ostensibly for the foundation and the slab.  Un - impressed the complainant demanded the agreement of sale and the title deeds but the appellant assured him that they were being  processed by Chivi RDC.  The appellant then demanded $2500 to construct the slab and was paid.  Still no relevant documents were availed.

The complainant said the appellant vanished in 2015 from August 2014.  His mobile number was now unreachable and blocked.  This prompted the appellant to approach Chivi RDC.  Alfred was then informed by Chivi RDC officials that the said stand number 902 belonged to one Muchekeza and was totally unrelated to the one shown to him by the appellant.  The complainant’s woes were in fact worse.  He was advised by officials of Chivi RDC that the land (stand) appellant had shown him was in fact not even council land but some rural land adjacent to Chivi RDC land which was well outside the jurisdiction of Chivi RDC.  The complainant realised he had been duped and started to hunt for the appellant in earnest.

The complainant said with the help of a friend he managed to find the appellant.  The appellant no longer had any further tricks and instead offered to compensate the complainant with appellant’s own house at Chivi growth point.  The complainant did not realise that the appellant’s bag of tricks was still not empty.  Appellant purportedly commissioned an affidavit offering complainant the appellant’s house at Chivi growth point as compensation.  The complainant took the bait and did not cause appellant’s arrest.  The appellant again vanished until his arrest.

The complainant in count 1, Alfred, said he only dealt with and paid appellant in respect of the said stand and never dealt with any persons called Obey or Magweregwede.  He said when he later approached officials of Chivi RDC they indicated that the stand appellant had shown Alfred falls under Headman Madyangove and not Chivi RDC.

In count 2 the complainant LoiceGwerena (Loice) gave a similar account.

Loice said in August 2014 Esther linked her to the appellant.  The appellant sold Loice a stand for $2000.  She was shown the stand and was told it was stand 119.  The appellant promised to bring the relevant title deeds.  Instead he brought a receipt purportedly issued by Chivi RDC for $30.  The appellant further masqueraded as a builder.  Loice engaged him and was charged $2700 for the construction of the house up to slab level.  She paid the appellant.  Appellant commenced digging the foundation.

Loice said she pestered the appellant for the relevant documents for the said stand.  The appellant could not avail them from 2014 until 2017.  In February 2017 Loice decided to check with Chivi RDC officials.  She was shocked.  The officials at Chivi RDC advised her that the real stand number 119 was long allocated by Chivi RDC to someone who had constructed a house long back.  It dawned upon Loice that she had been duped.Loice indicated that she only dealt with appellant and paid appellant not any other person.

EstherTandavarai (Esther) confirmed that indeed she linked the appellant to the two complainants Alfred and Loice.  Esther trusted appellant as Esther had bought a stand from the appellant and appellant had told Esther that he had more stands for sale.

Esther materially corroborated both complainants in that,

it is the appellant only who dealt with the complainants.

that Esther was present when appellant showed the complainants the said stands.

that the appellant was paid the said amounts by the complainants.

that appellant promised to avail relevant documents pertaining to the stands to the complainants to no avail.

that she does not know Obey or Magweregwede referred to by appellant.

that she accompanied the complainants to Chivi RDC to verify the authenticity of the said stands after which it was realised appellant had duped the complainants.

that appellant had vanished and was elusive.

Esther explained how she in turn lured the appellant and caused his arrest in respect of both counts in 2017.

On his part the appellant virtually failed to cross examine the witnesses.  To say he was tongue tied is an understatement.  The few questions he managed to mumble were irrelevant.  The Court again constantly advised and warned him to ask relevant questions in line with his defence.  He failed or was unwilling.

When the appellant testified he was uninspiring.  All he could say was that Obey and Magweregwede were the culprits.  He could not call these persons.  He could not say why the witnesses falsely implicated him or what motivated them to lie.

After laying bare the evidence placed before the court a quoit is clear that the grounds of appeal in respect of conviction are totally misplaced.

The evidence led from the State witnesses was clear.  It was unchallenged in all material respects.  The appellant’s ill thought defence was shown to be improbable and false.

The material misrepresentation the appellant made to both complainants is clear as day light.  The complainants parted with large sums of money on account of such misrepresentations.  The prejudice of a pecuniary nature was actual.  This constitutes the offence of fraud.

The judgement by the trial magistrate is lucid and well reasoned.  The credibility of witnesses was well assessed and findings of fact made.  Cogent reasons were given as to why the appellant was disbelieved.

It is illogical for the appellant to continue to argue that it was incumbent upon the State or the Court to call the persons appellant alleges were involved, that is Obey and Magweregwede.  The simple question is why did appellant himself not call them to testify.  They are relevant to his case and not the State case.  Maybe they are also non existent characters just like the stands the appellant sold.

The conduct of the appellant clearly confirms he is a fraudster.  He vanished into thin air.  Just like a fisherman Esther had to use a bait to lure him resulting in his arrest.  The only conclusion one can make is that in lodging the appeal the appellant has simply confirmed that he is an unrepentant fraudster.  He should simply lick his wounds and count his losses in the four walls of prison.

In conclusion it is our view that no legal issues arise in this matter which would have entailed us to even revert to case law.  The appeal can and should be disposed of solely on factual issues.

These are the reasons why we dismissed the appeal in respect of conviction in both counts.

MAFUSIRE J (Agrees)________________________________________________________

Mutendi, Mudisi & Shumba, legal practitioners for the appellant.

National Prosecuting Authority, legal practitioners for the respondent.