Alex Nangale

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CASE REFERENCE NO. 202411222000033227 ALEX NANGALE …………….……………………........................................ APPELLANT Versus REPUBLIC …………………………..………………………………………….…RESPONDENT (Originating from the Decision of the District Court of Maswa District Court at Maswa) (Hon. E.S MISSANA - SRM) Dated the 30th May, 2024 in Criminal Case No. 45 of 2023 -----------------------------

JUDGMENT 20th & 28th February 2025. F.H. MAHIMBALI, J The appellant ALEX NANGALE and his fellow SADO BULE (not a party of this appeal) stood charged before the trial court with a total of eight offenses; namely impersonation c/s 369(1) and (2) of the Penal Code Cap 16 [ R.E 2022] (one offence) and the offense of Obtaining money by false pretense c/s 302 of the Penal Code (seven offences). It seems he was convicted of all the offenses charged. 1 It was alleged for the first count that, on 7th day of March 2023, at 13:00hrs at Sokoni Street within Maswa District in Simiyu Region, with intent to defraud, did personate by representing himself to be police officer one AMOS MALIMI. And for the seven counts of obtaining money by false pretense, it was alleged that, on various dates between 09th day of March to 31st day of March 2023, the two accused persons at day time at Sokoni Street within Maswa District in Simiyu Region, by false pretense and with intent to defraud did obtain the sum of Tshs 1,774,000/= (as a total to all seven transactions) from AMOS MALIMI the property of AMOS MALIMI. The appellant and his fellow pleaded not guilty to the charge, whereby the prosecution brought a total of four witnesses and six Exhibits, whereas the defense (appellant and his fellow) just fended themselves. Upon a full hearing of the case, the trial court while acquitting the other accused

person, found the appellant guilty, convicted him and consequently sentenced him to a custodial sentence of ….. years. He is aggrieved by both conviction and sentence, thus this appeal based on six grounds, namely: 2 1. THAT; the learned trial court magistrate erred in law and fact to accept the evidence adduced by PW1 who testified before the court of law that he was there at shop and gave me money which does not belong to him without calling the owner of the shop to testify before the court of law.

2. THAT; the learned trial Magistrate erred in law and fact to rely of the cooked and contradictory evidence adduced by the prosecution witnesses.

3. THAT; the learned trial court magistrate erred in law and facts convict me on hearsay evidence adduced by the prosecution side.

4. THAT; the learned trial court magistrate misdirected himself by holding the conviction on weak evidence adduced by prosecution witnesses.

5. THAT; the whole trial court’s proceedings were vitiated with very serious procedural irregularities leading to the miscarriages of justice. 3 6. THAT; the prosecution did not prove their case beyond reasonable doubt. Based on the above grounds of appeal, the appellant is praying for the indulgence of this court, to allow the appeal, quash the conviction and set aside the sentence and consequently to set him free from the imprisonment he is serving. During the hearing of the appeal, the appellant was self-represented whereas the Respondent who was not resisting the appeal was firmly represented by Mr. Kadata, learned state attorney. When given a chance to argue his appeal, the appellant had nothing material to add but just prayed that this court to adopt his grounds of appeal and be part of his submission and on them, his appeal be allowed. On the other hand, Mr. Kadata learned state attorney for the Respondent he supported the appeal on the ground that the case before the trial court was not established beyond reasonable doubt as per law. His arguments on support of the appeal based on account of all eight counts in which its proof, mainly centered on exhibit P.6 which is print out messages from the mobile phone which facilitated the communication between the 4 two. The tendering of the said exhibits did not comply with the mandatory requirement as provided by section 18(3)

of the Electronic Transactions Act. At page 55 of the typed proceedings, PW4 when tendering this exhibit had failed to establish the reliability of the said data message how it was generated, stored, and how the said data messages were maintained. Above all, he failed to tell the manner the originator was identified. As all the messages could not be traced from the appellant’s phone, they only relied data messages from the complainant. Thus, failed to establish in court whether those messages found into the complainant's mobile phone were the same as those sent by the appellant. He further argued that, the identification of the said messages by the complainant simply because of their description, saved as: Mkuu wa Kituo and Afande Alex, was not an absolute reliance since these messages directly came from the complainant's mobile phone and not the appellant's phone, and that such a description could be baptized by anyone for his own wish. Thus, it is doubtful if the same were genuine and reliable. Apart from this, the said witness failed to establish if the said computers were working all the time for the integrity of the electronic data. As the trial magistrate mainly based his conviction on reliance to P6 exhibit only, upon this exhibit being 5 expunged from the court record for none compliance to section 18(3) of the ETA, then the prosecution shall remain with no other

incriminating evidence against the appellant. Furthermore, he added one more thing, that the judgment of the trial court did not comply with section 312 of the CPA, R.E 2022, because, there was no much reasoning by the trial magistrate on reaching the said verdict. Further, the said judgment did not at all consider the defense testimony. Above all, the trial magistrate sentenced the appellant only on offences of obtaining money by false pretense but skipped conviction on the offence of impersonation and the same was not analyzed in anyhow. Under normal circumstances, for such failure to make a thorough analysis and give reasons for such a finding, he could pray for the trial magistrate to recompose his judgment. However, in the circumstances of this case, with all these pregnant errors, it will not be justious to the appellant. For the justice of interests, he prayed that this appeal be allowed for want of proof of beyond reasonable doubt. 6 On the above submission by the Respondent, the appellant just pressed that in the circumstances, he be set free as there is nothing material to hold him. Having heard the submissions from both parties, the important question this Court is going to determine is whether the appeal is brought with sufficient cause to warrant it being allowed. In arriving at that end, as per grounds of appeal preferred, two issues will be discussed: firstly,

whether there are legal issues involved in the proceedings by the trial court. Secondly, is on question of fact, whether the evidence in record suffices proof of the case beyond reasonable doubt. This being a criminal charge, it is the trite law that the prosecution in the Common wealth jurisdictions (Tanzania inclusive) is placed with a heavier burden to prove their case than that of the accused. See Mohamed Saidi Matela V. Rep, (1995) T.L.R 3 and John Makolobela & 2Others V. Rep, (2002)T.L.R 296. See also Joseph John Makune vs. Republic [1986] TLR 44 at page 49 and Mohamed Haruna@ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused 7 committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. This is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] (The evidence Act). Secondly, is the principle that the proof of the said charge is beyond reasonable doubt (See section 3(2) (a) of the Tanzania Evidence Act, Cap 6. Since this case involves reliance to electronic evidence, section 64 of the Evidence Act(Cap. 6 R.E. 2019] provides:- “64A.-(1) In any proceedings, electronic evidence shall be admissible. (2) The admissibility and weight of electronic

evidence shall be determined in the manner prescribed under section 18 of the Electronic Transaction Act. (3) For the purpose of this section, “electronic evidence” means any data or information stored in electronic form or electronic media or retrieved from a computer system, which can be presented as evidence.” (Emphasis is mine). 8 On the other hand, I have read the provisions of the Electronic Transaction Act No. 13 of 2015 particularly section 18 of the said Act that relates to admissibility of electronic document and section 64A of the Evidence Act [Cap. 6 R.E. 2019] and find that for electronic document to be admitted into evidence, there must be full and strict reliance to the provision of section 18 of the Electronic Transactions Act, Cap 441 R.E 2019 which reads:- “18.-(1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. (2) In determining admissibility and evidential weight of a data message, the following shall be considered- (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and 9 (d) any other factor that may be relevant in assessing the weight of evidence. (3) The

authenticity of an electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where- (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or (c) it is established that an electronic record was recorded or stored in the usual and ordinary course of business by a 10 person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record. (4) For purposes of determining whether an electronic record is admissible under this section, an evidence may be presented in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type of business or endeavours that used, recorded or stored the electronic record and the nature and purpose of the electronic record.” (Emphasis is mine). In the current

case, there is no such evidence to establish the reliability of the manner in which the data message was generated, stored or communicated; the reliability of the manner in which the integrity of the data message was maintained; the manner in which its originator was identified; and any other factor that may be relevant in assessing the weight of evidence. In that situation, the relevancy and value of the said evidence in P6 exhibit, seems to be very doubtful and the trial magistrate seems to be ignorant how the electronic evidence is admissible, its value and applicability 11 before a court of law. He needs to refresh his knowledge on this. With all this analysis, I find the reception of exhibit P.6 (data message – print out communication from cell phone) not to have been in full and strict compliance with the law. Thus, it is expunged from record as well argued by Mr. Kadata. Lastly is on the said judgment that did not at all consider the defense testimony. This Court and the Court of Appeal has always taken a grave view of the failure to consider the accused person's defence and regards it as making a resulting conviction unsafe. In Ally Patrick Sanga V. R, Criminal Appeal No. 341 of 2017 [TANZLII], Mosi Chacha Iranga and Another V. Republic, Criminal Appeal No. 508 of 2019, (Tanzlii) it was reiterated the duty of courts to objectively evaluate defence evidence; failure of

that makes conviction unsafe, they said: "We think that in a first appeal, the first appellate court was supposed to objectively evaluate the gist and value the defence evidence, and weigh it against the prosecution case. Failure to re-evaluate evidence of the defence constituted an error of law and by affirming a conviction based on evidence which had not 12 been duly reviewed was also another error which renders the conviction unsafe." In the upshot, I agree with both: the appellant and Mr. Kadata that the appeal has merit, and I allow it. I accordingly quash the appellant’s conviction and the sentences and set them aside. The appellant is to be released immediately from prison unless he is otherwise lawfully held. DATED at SHINYANGA this 28th February, 2025. F.H. Mahimbali Judge 13