19800117 TZHC Dar es Salaam1

IN THE HIGJ- COURT OF TiNZANIA .iT DR ES SALM APPELLATE JURISDICTION HIGH COURT CRIMINiL iAPPEAL NO .114 OF 1979 ORIGINAL CRIMINLL CASE NO. 63 OF 1978 OF THE DISTRICT COURT OF KILOMB2RO DISTRICT AT IFKRA Before L.B.LUGENDO Esq., District M3gistrate ATHtJMLNI FIthKUIVIBA... , .• . .,• . ... . . . . . . . .APPELLANT versus Dl? THE DTDTTDr Tf a..... • • • • . . . •I• S • S •SI• CHARGE: 1st Count — Personatirig a Public Officer contrary to section 100(2) of the Penal. Code Cap.16 Volume 1 of the Laws. 2nd Count— Restriction on collection and distribution of news and news material u/a 7(1)(a) (2) and 12 of Tanzania News Agency Lct.1976. JtTDGMENT MLIIGANO, 3. — The appellant Athumani Makumba is serving time on two convictions entered by the district cou.rt of Kilombero; twelve months for porsonating a public officer and six months for unlawful collection 'of news and news material. He is appealing against the convid.tions and the sentences. The Republic is, in broad terms, supporting the decision. The gist of the prosecution case was as follows: The appellant who was described as a businessman based in Dar es Salaani happened to go to Ifekara arriving there on 19/5/78. On the sañie • day he met with PWI Timothy Peter an employee Of •;.' the Tanzania News Agency, commonly known as SHIHATA, who described himself as. the Ifakara district bureau chief. The appellant introduced himself to Pata: as an officer with the publication section (MELEZO) of the Ministry of Information and Broadcasting and told him that he had just been at MbOya to arrange.. a MAELEZ.O show for the forthcoming Saba Saba fest1f. 2/..... -2 - He had a host of publications and p' .iters which he started to distribute freely to arious offices in the town. Data believed him and for some time he treated him as a brother officer and more or. loss as his guest . In due cou±e the appellant told him that he was intending to a write a feature article about the St. Francis Hospial which is situate at Ifakara and that towards that goal he wanted to pay a visit to the hospital to collect material. Pta t'olieved his word and promised to take him to tb hospitala Lidood, he'did SO On the following day and on arrival at the hospital he introduced him to PW4 Sister Blazia, a staff with the hospital.. But nothing of consequence happened on that day. Two days later, on 22/5/7 8 , the appellant called at the hospital again. He was in the company o± PW2 Clement Kikoti who was working under Data as an office attendant. They were received by PW5 Sister Sarah, the hospital's administrator. Sister Sarah lent the appellant a document, exhibit B, which is an abstract of the history of the hospital between 1927 and 1977. On the next day the appellant sent the document to PW3 Mary Mwingizi, a copy - typist, in order to have a copy produced. However, at the instance of Data who had in the meantime come to suspect and to confirm with the Headquarters at Dar es Salaam that the appellant was not an employee of MLEIdZO, PW6 Detective Corporal Bernard arrested the appellant - in Mary's office and seized the document. The Corporal proeãeded to search the room the appellant was occupying in Safina Guest House whore he discovered a card affixed with the appellant's photograph purporting to show that he was a MiELBZO official and some papers containing hand-written information about the St. Francis Hosiital. In his defence which he gave on oath the appe- llant denied the charges. He related that while he was at Ifakara on business he met Pate to whom he had been acquaintod for a long time. Data offered to play tiost and took him to several places including the St.Franis Hospital. 3/.. fee -3 - He alleged that it was Pate and not him who borrowed the document exhibit f from Sister Sarah. Further, he denied that he was in possession of the identity card and the papers which were found in his room at Safina Guest House, He alleged that they had been planted in there. That was the evidence which W59, adduced before the court and the trial magistrate's analysis of that evidence is contained in the folloing passage: "To sum up I am wholly satisfied that the photograph on the identity card exhibit D is that of the accused. This card bears the official stamp of the Director of Information Services Dar os Salaam . Now had the accused been a true employee of the Information Division he would not have disclaimed ownership of this ; card as it was complete in itself. The accused denial of this card clearly implies that accused was not servant in that ilinistry. PW1 in this case Pate affirmed to have known accused for the first time on 17/5/78 when accused introduced himself to be his colleague and asked to be introduced to the St,Francis Hospital authori- ties as he wanted to write a feature article on the hospital. I cannot for one moment agree with accused's contonticn that the accused did not submit himself to be an employee of MLLZO but Pata fabricated this allegation on his own accord and that he consirod with the police to make a false identity card for the accused using photograph accused had in his belongings at time of arrest. There was no reason at all why there should be such a conspiracy against accused. I therefore reject the accused defence as untrue and accept the prosecution evidence and find accused guilty on both counts as charged". The appellant is attacking that decision and I can recognise three grounds from his petition of appeal. 4/.. . - 4 - The first ground is in respect of the search which the corporal condu.ctod in the room he had hired in Safina Guest House. His contention is that it was illegal in that it was not witnessed by any indepe- ndent person. I agree with the proposition that the search was illegal, but I do so for a completely different reason from the one advanced by the appe- liant. Ls shown, the search was conducted by a corporal. With respect, it seems that a corporal was not a competent person to discharge such a duty. Under subsection (2) of section 8 of the Tanzania News gency Lct,1976, the only person who is authorised to conduct such a search is a police officer of or above the rank of Sub-Inspector. The question which follows is whether that irregularity was serious enough to destroy the whole prosecution case on the second count. I may observe that the appellant has not expressly urged this court to find that the search was fatal. In my judnent I do not think that it could have that effect. It seems to me that what happened was a mere procedural defect which did not at all affect the admissibility of the evidence which was obtained as a result, it being trite law that generally the admissibility of evidence is not affected by the illegality of the means by which the evidence has been obtained. For another, I think that the things which were discovered in consequence of that search, i.e. the identity card and the notes about the St. Francis Hospital, were not the only evidence on which the 1epublic relied and the strength of the prose- cution case would hardly have been dizinished even if that evidence had been excluded. The second ground of the appeal is also in respect of the second count and it is in substance, that the ) evidence adduced by the prosecution was not sufficient to prove the charge, in that it was not established that the appellant obtained the document exhibit B either by force or by throat or through misrepresentation . I should think that the appellant is suffering from ignorance. It is perhaps needf4 to sot out the relevant provisions of the Tanzania News agency Jct in full. Subsection (l)(a) of section 7 reads that: "No person other than the Algency, its agents or the holders of written - 5 - authorizations issued by the Lgency in that behalf shall collect or cause to be collected in Tanzania any news or news material for the purpose of dissemination". nd su.bsection(2) of section 9 provides that "my person who collects or distributes or causes to be coflected or distri- buted any news or news material inte- nded for dissemination in contrave- ntion of any of the provisions of subsection (1) of section 7 shall be guilty of an offence". The offence thus created is punishable under section 12 which is set as a fine not exceeding 15,000/.- or a term of imprisonment not exceeding three years or both that fine and imprisonment. It is quite clear frorLi the provision of subsection (l)(a) of section 7 above that it is irninatorial whether the collections of the news or news material is not accompanied or facilitabod or procured by threat or force or misrepresentation. In other words, the ele- ment of threat or force or misrepresentation is not an essential ingredient in the offence. Having assessed the evidence myself, I am in agreeraent with the trial court that the appellant approa- ched Sister Sarah and collected from her a brochure which contained a resume of the history of the St.Francis Hospital. I also think that the said brochure was news or news material within the meaning of subsection (1)(a) of section 7. I am satisfied that the court was justified in taking the appellant at his word and thus finding that he intended to use it as material for writing a feature article about the hospital. He did not deny that he was not an agent of the igency and he never sought to prove that he was a holder of a valid authorization or otherwise sanctioned to collect such ma -terial.(under section 10 he carried the burden of such proof). 6/. . . -6 - I am therefore bound to uphold the conviction on the second count. With regard to the firt count, it is submitted that the conviction thereof was bad in that there was no evidence to prove that the appellant ever posed as a public officer to sister Sarah. With respect, I think there is merit in that contention. The appellant was alleged to have contravened the provision of subsection (2) of section 100 of the Penal Code, which reads that: "i -iy person who falsely represents himse1f to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment, is guilty of a misdemeanour"(which is punishable under section 35 of code) The particulars of the charge alleged that on 22/5/78 at 11 a.m. The appellant falsely represented himself to Sister Sarah to be an Information Officer Grade II and that on the strength of such employment he sought for information concerning the St.Francis Hospital. The point at issue was whether or not the appellant by words or conduct represented himself as such to Sister Sarah. Unfortunately the learned magistrate does not seerto have addressed himself to this material point and it is therefore necessary to fully review the evidence of the prosecution touching on its There were only two witnesses for the prosecution who testified about the meeting between the appellant and Sister Sarah • These are sister Sarah herself and PW2 Clement Kikoti. Sister Sarah did not mention anything about the appellant posing as an Information Officer. In fact, and with commendable c3ndidness, she said that she was not sure whether the appellant was one of the two men who called at her office on that occasion. Kikoti's evidence was also silent on that point. He merely stated that the appellant introduced himself to Sister Sarah, but did not go further and say how he did it. I respectfully think, therefore, that the prosecution failed to adduce positive evidence to establish the allegation - 7/.... - 7 * that the appellant presented himself to be a public servant to Sister Sarah. .is such proof was necessary before a conviction could be had, the learned magistrate should have acquitted the appe- liant on first count. The appeal thereof will therefo±'e succeed, In conclusion I allow the appeal in respect of the first.count, quash the conviction and set aside the sentence; but dismiss the appeal against the conviction on the second count and as the sentence thereof cannot be said to be excessive, it will also stand. Pronounced in Court. .tppellant absent. Mr. Huka for Republic Dar os Salaam (D • P .MPIGNO) 17th January,1980 Judge.