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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 13884 OF 2024 (Arising from Criminal Case No.39 of 2023 before Bariadi District Court) DIRECTOR OF PUBLIC PROSECUTION ............................. APPELLANT VERSUS KASANDA S/O MAYUMA@MACHIMU ............................RESPONDENT JUDGMENT 23rd July & 26th August, 2024. F.H. MAHIMBALI, J This is an interesting appeal. Siblings (PW1 and DW1) are swapping horns and throating each other on the use of names: Kura Mayuma Machimu. Whereas PW1 says that the name Kura is his, thus in possession of land plots in exhibit P.2, the DW1 on the other hand in quench of dispossessing PW1 ownership of the said land documents personated himself before public officers that he was formerly also known as Kura Mayuma Machimu (appearing in exhibits P.2) but now wants the public officers with mandate of land office to know him as 1 Kussanda Mayuma Machimu and all his land documents purportedly burnt by fire be re-issued in his new name, after he had denounced the former name. The current saying by Tanzanian sport fans’ giant team (Simba Sports Club) baptized as “Ubaya Ubwela” or i.e Ubaya umerudi tena (“By any means, let it be so”) can be equated into this saga. At the first glance, one may not appreciate the criminality issue involving the two, them being siblings. Following the above preamble, the respondent herein was arraigned before the trial court charged with four counts namely; Giving false information to a person employed in public service contrary to section 122 of the Penal Code Cap 16 RE 2022, False swearing; Contrary to Section 107 and 35 Of the Penal Code, Personation; contrary to section 369 (1) and (2) of the Penal Code, and lastly Obtaining Registration by False pretense; Contrary to Section 309 of the Penal Code. It has been alleged that on 16/9/2021 at Majengo street executive office, within Bariadi District in Simiyu region, the respondent known as Kasanda Mayuma gave false information to one Diana Isaack Kabando who is a public servant under the capacity of a street executive officer that he is Kura Mayumu Machimu and that his land documents namely certificate of title for plots No.10 and 11 Block L. Kidinda had been burnt by fire in his house, and required her to 2 issue him a letter to aid her obtain a loss report of the said title at police station for processing a new certificate, the fact which he knew to be false. Subsequently, on 22.9.2021 within the same district and region but now before honourable Caroline Eugene Kiliwa (Principal Resident Magistrate and the District Magistrate Incharge of Bariadi District Court) while purporting to be Kura Mayumu on oath, did affirm falsely upon a matter of public concern to the effect that he was absolutely renouncing and abandoning the use of his purported former name of Kura Mayuma Machimu and assumed the use of his new name of Kassanda Mayuma Machimu and wanted the Registrar of Title to register that deed poll for his land uses (documentation). Further to that, on 29.10.2023 the respondent while at Simiyu zonal Registrar of Titles’ office within Bariadi District in Simiyu Region, tendered a deed poll for registration by falsely representing himself as Kura Mayuma Machimu. As if this was not enough, the respondent having given false information; false swearing in; and personated as Kura Mayuma Machimu after having claimed that is the same person as “Kasanda Mayuma Machimu”, willfully procured for himself a land registration title No.77693 for Plot No.4 and 5 Block L Kidinda belonging to Kura Mayuma Machimu by falsely pretending that he was a rightful owner after he had personated himself that he was also formerly known as Kura Mayuma 3 Machimu and that he is now to be known by name of Kasanda Mayuma Machimu a fact that which was false. The respondent denied the charges levelled against him, thus compelled the prosecution to summon a total of eight witnesses in efforts of establishing the accusations against him. On the other hand, the defence called two witnesses in protest of the charge. In summary of the prosecution’s case vide their eight witnesses (PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8) and their nine tendered exhibits (P1, P2. P3, P4, P5, P6, P7, and P9) is this: On 19/4/2022, Kura Mayuma (PW1) after becoming aware that his land documents were fraudulently altered, went to the PCCB’s office at Simiyu complaining that the land office at Bariadi had changed the ownership of his plot No. 10&11 Block L at Bariadi from his ownership (Kura Mayuma) to his young brother Kasanda Mayuma without his authorization. He had with him exhibits which describe him as the owner of the said plots after he had applied for allocation and the grant of the same (exhibit P2- which are the letters requesting for the allocation of the said Plot with the name of Kura Mayuma with Ref. No. BRD/2940/1 of 7/9/1995 and the right of occupancy of 10/2/1995 with the land office 228222, which both had the name of Kura Mayuma, all these were for Plot No. 10&11 of Block L). 4 After a thorough investigation between the documents the PW1 had carried in his possession, tallied in full with those in the Land Office file (Simiyu) in which the respondent had reported being burnt by fire at his home, the fire which was not established (PW8’s testimony). It was also established that there was a letter from VEO of Majengo introducing Kasanda Mayuma to Police Bariadi (PW3 & P4 exhibit) that his properties were set in fire including document of the ownership of Plots 10&11 Block L with the name of Kura Mayuma. There was also a loss report from police which shows that the land documents of Kasanda Mayuma were burnt which are for the ownership of Plot 10&11 (though the same was not admitted as court’s exhibit for some legal issues). Further investigation, established that there was a deed poll, which shows that Kura Mayuma (PW1) abandoned the use of that name of Kura Mayuma and forthwith assumed to be recognized as Kasanda Mayuma (P5 exhibit). Further evidence from land office Simiyu, established that originally, ownership of Plots 10 &11 had preview the name of Kura Mayuma and that the respondent by unknown motive wanted a title by the name of Kasanda Mayuma swearing that he is the same person formerly known as Kura Mayuma after he had presented the deed poll, the loss report showing that his documents were 5 burnt and that he had obtained the loss report from the police after he had got a letter from Mtaa Executive Officer of Majengo. When the magistrate who administered the said deed poll was invited for her testimony, she just admitted signing the same. Investigation and testimony from NIDA office established that Kura Mayuma and Kasanda Mayuma are two different persons as per details of their registrations: date, photographs and fingerprints as there was a photo of Kasanda as well as the Photo of Kura Mayuma with different particulars (See exhibit P7). This fact then defeats the argument by the respondent that the two names refer to the same one person. Interrogations and testimonies from close relatives of PW1 and DW1-the Respondent (PW2 and PW6) who are George Mayuma and Nyarobi; clearly establish that Kura Mayuma and Kasanda Mayuma are siblings and two different persons. On the strength of this finding, the prosecution side are confident that there was criminality which was done by Kasanda Mayuma and the charges against the respondent were dully established and beyond reasonable. On the other hand, the respondent while giving his defense testimony just stated that his former names as given by his parents were Kura Mayuma 6 Machimu, but without a clear explanation, he stated that later (after 2021), he adopted the names of Kasanda Mayuma Machimu. That land plot No. 10&11 Block L, is his as he had obtained it in 1993. The plot had names of Kasanda Mayuma and Kura Mayuma. That later, there was fire burn at his home, and most of his properties got burnt including the land documents in respect of the alleged plots No. 10&11 Block L. So to the best of his knowledge, he is known by both names: Kura Mayuma Machimu and Kasanda Mayuma Machimu. That after the fire incident, and upon presenting the police loss report at land office, he was issued with the land documents by name of Kassanda Mayuma Machimu in respect of the same plots. As to whether he is really Kura Machimu, he had his son who testified as DW2 in support of his father’s assertion that he is called Aron Kura Machimu. He neither presented with him any school ID, birth certificate or any other known ID such as NIDA that he is called Aron Kura Machimu to support what his father had asserted. The trial court after its thorough digest, made a finding that the prosecution had failed to prove the case beyond reasonable doubts, thus acquitted the 7 respondent and advised PW1 to refer the matter to the land courts for adjudication. Dissatisfied with the findings of not guilty, the appellant has knocked the doors of this Court armed with ten grounds of appeal namely; 1. That, the trial Magistrate erred in law and fact to decide that the first count which concerns an offence of giving false information to a person employed in public service was not proved beyond reasonable doubt while the stated count was proved accordingly, since exhibit P2 (certificate of occupancy and a letter of offer of Plots 10 and 11 Block L Kidinda —collectively bear the name of KURA MAYUMA) which the Respondent informed PW3 (Street Executive Officer) to have been burnt by fire were tendered in court by PW1 who was custodian of it. 2. That, the trial Magistrate grossly erred in law to decide that the charge was defective for the reason that the prosecution did not specify which paragraph of section 122 of the Penal Code was contravened without indicating how such missing prejudiced the Respondent. 8 3. That, the trial Magistrate erred in law and facts for contradicting herself in the impugned judgement that the elements of the offence in first count was not proved by the prosecution while at the same time admitted that the elements in that count were proved accordingly. 4. The trial magistrate grossly erred in law and in facts to decide that the name of Kura Mayuma appeared in National Identity Card of Pw1 (exhibit P1) was started to be used by him from the year 2023 that is after commencement of investigation of this case without taking into consideration of application forms of that National Identity Card (exhibit P7) which was lodged by PWI to the National Identity Card Authority since on the year of 2019. 5. That, the trial Magistrate erred in law and facts for the failure of her to take into consideration the evidence of PW2, PW6, PW7 and PW8 including exhibit P7 (applications forms of National identity cards collectively of PW1 and DWI) and exhibit P 9 (Caution Statement) which proved beyond reasonable doubt third count which related with offence of personation whereby the witnesses together with those exhibits unequivocally indicate KURA MAYUMA MACHIMU (PW1) and 9 KASANDA MAYUMA MACHIMU (Respondent herein) are two different persons who are blood brothers hence it is impossible for their) parents to give them similar first names. 6. That the trial Magistrate maliciously misdirected herself to claim that the exhibits tendered showing the name of PW1 as KURA MAYUMA were obtained an afterthought hence the court only looked the evidence from 2021 without taking into consideration that the exhibits were lawfully obtained from proper authority which was in records of those authority before that year of 2021. 7. That, the trial Magistrate grossly erred in law and facts following the verdict that there was dispute of ownership of land between PWI and Respondent while the whole prosecution evidence shows an existence of criminality committed by Respondent who falsely purported to be KURA MAYUMA which fact was not true, hence he used that name of his brother (PW1) to change the name appeared in the right of occupancy of land plots number 10 and 11 from the name of KURA MAYUMA to his name of KASANDA MAYUMA MACHIMU. 10 8. That, the trial Magistrate erred in law and facts for the failure to record properly the entire prosecution evidence of PW6 an officer from NIDA who clearly pointed PW1 -has lodged the applications forms for national identity card since 2019 and respondent who lodged the same application since 2017 and Respondent never indicated to that authority if he was also known by name KURA MAYUMA which is contrary to PWI. 9. That, the trial Magistrate grossly misdirected herself to purport the prosecution had shifted burden of prove to the Respondent while the whole evidence of prosecutions both orally or documentary are convincing that PW1’s names are KURA MAYUMA who clearly showed to that authority his name is KURA MAYUMA. 10. That, the trial Magistrate grossly misdirected herself to decide that the prosecution failed to prove the case beyond reasonable doubt while the Respondent’s entire evidence showed mere words without any official document from any proper authority to convince that before he was known by that name of known KURA MAYUMA. 11 During the hearing of the appeal, the appellant/republic had legal representation of Mr. Kadata learned State Attorney while the respondent enjoyed legal services of Mr. Samwel Lugundiga learned advocate. Arguing in support of the appeal, Mr. Kadata first dropped the third ground of appeal and submitted in the remaining grounds of appeal. With the first ground of appeal, Mr. Kadata submitted that the trial court erred in finding that the first count was not established in the required standard of proof that is beyond reasonable doubt. Reading the testimony of the prosecution's evidence on this fact, it is clear that the said task was well discharged as three things ought to have been established: Whether the respondent gave information to the public officer, secondly that the respondent knew or ought to have known that the said information was false, that the respondent did this with intent or with knowledge that the said information which would make one do an act which ought not to have been acted upon had he known that fact. In this case, all these ingredients were dully established. Firstly, there was no dispute that PW3 was a government employee. He introduced himself as 12 street or hamlet executive officer. As per section 5 (d)(ix) of the Penal Code, defines who is a government employee. He being a government employee, was not disputed. That the respondent knew or ought to have known that he had given false information because he had stated that right of occupancy in respect of plot no. 10 & 11 block L were burnt by fire which the same documents were tendered in court as exhibits P.2 tendered by PW1 which bore names of Kura Mayuma. The respondent while aware of all this information, with intention to mislead or defraud the government employee, made him believe that they were lost/destroyed documents and thus the initial report on loss of the said documents was issued (letter of loss report). Had this government employee been aware of all this, for sure the said letter - loss report wouldn't have been issued. Thus, the trial magistrate erred when made a finding that the case was not established. Further, the trial magistrate erred in not according reasonable weight the P2 exhibit which was believed burnt by fire while it did not - exhibit P 2. With the second ground of appeal, Mr. Kadata submitted that failure to specify the relevant paragraph of section 122 of the Penal Code, Cap 16 R.E 2022 as per circumstances of this case, the said failure was not fatal. The same is curable under section 388 of the CPA, Cap 20 R.E 2022. In the circumstances of 13 this case, section 135 (a)(iii) of the CPA was complied with. The particulars of the offence ought to have been well prepared, understandable and that the respondent was dully made aware of all this. Thus, failure to mention paragraph “a” of the charging section, did not prejudice the respondent at all. The trial magistrate in her judgment failed to tell how that failure, prejudiced the respondent in the said charge. With grounds 4, 5, 6, and 8 of the appeal, Mr. Kadata alluded that the trial magistrate grossly erred in holding that the PW1’s names (Kura Mayuma) appearing in NIDA commenced being used in 2023 after investigation had commenced, a fact which is not true. As per evidence in record, the trial magistrate had misdirected herself when she failed to appreciate the evidence of PW7 who testified very well that PW1 had applied NIDA for that name since 2019 and had even issued evidence establishing that these are two different persons- exhibit P7. Vide this exhibit, PW1 had made his application before NIDA prior to the alleged fire allegations nor any pending case in court. PW1 had further stated that the NIDA card had been issued in 2023 while the case was then already in Court while its application was done prior to the commencement of the investigation of this case. Thus, the trial magistrate had grossly erred in not 14 appreciating this evidence. Further, part of P7 exhibit, establishes that the respondent had applied for NIDA card since 2017 and had not stated whether he was also known Kura Mayuma but only Kassanda Mayuma@ Machimu. Further, the trial magistrate erred in law in not appreciating the testimony of PW2, PW6, PW7 and PW8 and cautioned statement of the respondent - P9. All these establish that Kura Mayuma is PW1. The evidence of PW2 and PW6 who are blood related - siblings to the Respondent (DW1), their evidence is clear as who is Kura Mayuma and one Kassanda Mayuma @Machimu. In essence none testified that Kassanda Mayuma @ Machimu – the respondent is also known as Kura Mayumu. The trial magistrate in not considering the fact that every witness deserves his testimony to be believed / given credence i.e their testimonies must be believed so, he wondered why the Hon. trial magistrate didn’t appreciate the prosecution’s witnesses. He banked his argument with reference to the case of Godluck Kyando V. R (2006) TLR. Further he detailed that Exhibit P9 which is the respondent's cautioned statement in which the respondent freely admitted so as testified by PW8. It’s a wonder why and how this evidence was not accorded any weight. 15 With the seventh ground of appeal, Mr. Kadata submitted that the trial magistrate strongly erred for failure to analyze the prosecution's evidence properly and instead, opined that the matter to be referred to the Land Dispute Courts as if it was a land a dispute. All that stated by the prosecution's evidence didn't establish any land dispute but forgery. Thus, the trial magistrate grossly erred in failure of analyzing the said prosecution's evidence well, as recorded. On the 9th and 10th grounds of appeal, Mr. Kadata fortified that the trial magistrate erred in making a finding that the prosecution's case was not established beyond reasonable doubt as per law. It was his firm view that as per evidence in record, the respondent gave false information that the certificate of occupancy in respect of plots 10 and 11 Block L - Kidinda were burnt by fire. That was well established. With exhibits P2 in place, he wondered how the charge remained incorrect. Therefore, it is beyond reasonable doubt that the first offence was well established. With the second count/offence, the prosecution established that the respondent swore wrong affidavit before PW5 that he is called Kura 16 Mayuma. With the evidence of PW1, PW2, PW6, PW7 and PW8 established all, that the respondent is not known by no other names such as Kura Mayuma. In consideration of exhibits P1, P2, P5, P7 and P8 tendered by the prosecution, in totality give more weight on this fact of names. Though this PW5 had denied that the respondent had appeared before him for an oath as per law, but she just signed it, yet, the second charge was well established to the effect that the respondent never took the proper oath as per law. With the third count, the grief is, the respondent had falsely represented himself in the name of his brother Kura Mayuma by use of Deed Poll. Likewise, the fourth count was well proved as the respondent had falsely obtained registration of documents which PW4 had established before the court that the respondent after he had given false information, false swearing, personated himself had finally obtained registration falsely of the same plots with new certificates as plot no. 4 and 5 Block L - Kidinda CT: 77693 from plots No. 10 and 11 Block L - Kidinda. Also vide PW4, PW1 had tendered original documents of which the respondent claimed to have been burnt by fire. As there was no any evidence to the contrary by the defence which had reasonably shaken the prosecution's case. In the absence of the contrary evidence that the respondent 17 was also known by that name of Kura Mayuma, it was unjustifiable by the trial court to reach that finding. Mr. Kadata finally pressed for this court to re-evaluate that evidence basing on these grounds of appeal and allow this appeal and so that the respondent can be found guilty and thus to convict him as per law and any other orders as this court may deem just and fit too grant. Resisting the appeal Mr. Lugundiga stated that the prosecution did not establish the charged offences as per legal standard of proof. He clarified that with the first count - giving false information to the person employed in the public service was not established. For this offence to be established, as per section 122(1)(b) of the Penal Code, the prosecution ought to have established four ingredients: that the accused gave that information to a person employed in public service. With this first ingredient, it is undisputed that the respondent gave information to the person employed in public service on the burning of fire of his certificate of occupancy in respect of plots 10 and 11, Block L. The information given must be false. In his considered view, the information by the respondent was not false, as it was a true one. That is the reason why PW3 had agreed with him and issued the report after that satisfaction. As PW3 had been satisfied with that information, she didn't even bother to go to the scene for her satisfaction. All 18 this was done after the respondent was advised by the Land Office - Simiyu. That the said information must be given to the person employed in public service. That is not disputed as well. With the fourth ingredient, what the respondent informed the PW3 - Executive Officer, was a true information and that there was no other way than complying with it as per the facts of the case. Mr. Lugudinga further stated that the manner this issue has been submitted by the appellant's attorney, there was no any title deed in it (exhibit P2). What was vivid is the letter of offer. The respondent as per pages 55 and 56 of the typed proceedings, is clear that the said documents (P.2), PW1 had obtained these documents from DW1 (the appellant) for purposes of getting bank loan. Thus, those documents in essence were not under custody of PW1 but DW1. Reading these proceedings at page 55 and 56 of the typed proceedings, it is very clear that the said documents were not in possession of PW1 but DW1. Shortly after, the said house of DW1 got burnt and that is why he reported the incidence for further processes. It was therefore not proper for the trial court to admit those documents as its essence is centered on the ownership of Plot No. 10 and 11 of the Blok L. The trial court then, under section 3 and 4 of the LDCA, which establishes land courts, district court is not one amongst them. Thus, it was improper for the prosecution to compel the trial court to scrutinize the ownership 19 of those documents between PW1 and DW1 but it was the DLHT and High Court - Land Division which had that legal mandate. Despite being admitted the trial court didn't apply them to enter conviction as wished. On this, Mr. Lugudinga humbly prayed for this court to use its revisionary powers to expunge them from record. Furthermore, the first count was defective as per law. As per charge sheet, the said offence originates from section 122 of the Penal Code. As per law, that section has paragraphs (a) and (b). Failure of the charged offence missing the relevant paragraph, prejudiced the respondent as he did not know well the parameters/scope of the offence charged with. It is the right of the accused person to know the offense charged with, sentence/penalty of the penal offence and the scope of the charged offence, failure to name that is fatal. He boosted it by reference to the case of Antidius Augustine V. Rep, Criminal Appeal No. 89 of 2017 CAT at Bkb, at pages 11 and 12. Thus, the trial magistrate was right to acquit the respondent as per the defectiveness of the charge. As to how the respondent is prejudiced, at page 15 of the trial court is clear how she could not assume jurisdiction to an offence with an incomplete detail of the law. 20 As regards to the second count, Mr. Lugundiga was of the firm view that this offence was as well not established as per legal basis set. The basis of this count is on false swearing. This offence as well was not fully established on the basis that all the procedures on its preparations were fully complied with. The same being dully signed and attested before the competent judicial officer - commissioner for oath. As the respondent did so after being advised so by the land officer, he had to swear an affidavit to include that other name. In consideration of the fact that the African culture, it is normal for a person to bear more than one name. In the circumstances, it was inevitable for one to swear an affidavit to reflect that other name as well which name has been used for other documents relevant to the case. Thus, bearing more than one name is not fatal in law, thus this deed poll was not illegally procured as alleged. The Registration of Documents Act, Cap 117 provides that all such documents are registrable as per section 8. In the circumstances, for there to be personation, there ought to have been a thorough investigation and solid evidence on that before the Court of Law. Short of that, it was not proper for the trial court to enter conviction on such trivial evidence so far gathered. Therefore, it was very pre-mature for the respondent to have been charged at that stage without first establishing as who is the rightful owner of the disputed plots. As 21 per page 8 of the trial court's judgment, PW8 says all. It is from this juncture; the current case gets its birth. This Court should be very keen on thinking how to deal with this matter properly. Otherwise, there is an imminent danger of developing a bad jurisprudence of establishing land ownership vide criminal courts which is legally dangerous. All this could have been right had the issue of ownership of the alleged plots been dully established as who between the two owns the disputed plots. Reading the testimony of PW1, PW2, PW6, PW7 and PW8, all agree that a person can have more than one name, says Mr. Lugundiga. Secondly, the names of PW1 and DW1 were issued by their parents. Unfortunately, none had come to court to establish exactly whether between the two who is KURA or whether both persons were also known as KURA. PW1 had established that he is also known as Bandi. So, it is not uncommon for a person to bear more than one name or be known by more than one name. The fact that the respondent is also known as KURA was corroborated by the evidence of DW2 who in his evidence had established that he is known as Aroni Kura Machimu. With the last ground of appeal which is a general one, that the prosecution's case was proved beyond reasonable doubt, Mr. Lugundiga discounted it as well. With the alleged cautioned statement which was admitted as evidence (P.9), the same was not accorded weight by the court firstly because it was opposed during 22 its admission. As it was opposed, the said cautioned statement cannot solely base its conviction. As regards to NIDA, NEC card and birth certificates could not form the basis of conviction as the same had numerous discrepancies and inconsistences. As they were issued after the investigation of the case and filing of the matter, it could not be firmly relied upon by the court. As per NIDA, PW1 establishes was born at Mbeya but his birth certificate describes him as born in Bariadi. That was a central discrepancy in a trial of the criminal offence. As to the last offence, that the respondent had falsely obtained registration of documents in respect of Plot No. 4 and 5 Block L - Kadinda to his name from that of Kura Mayuma Machimu the same was not established beyond reasonable doubt. For this offence to be established, there ought first to be established the fact of ownership of that plot. In that absence, it is hard to establish the alleged offence of obtaining registration by false pretence. As per case of Ismail Bushaija V. Republic (1991) TLR 100, the High Court made a very good clarification. What the trial court opined in this matter is identical to what is stated in this case of Bushaija. As per the prosecution's evidence vide their all witnesses, almost each one stated about there being a dispute of ownership of the said plots. It is therefore quite clear that all the offences in which the respondent was charged with, is not as per section of forgery but it is an outcome 23 of ownership dispute. Mr. Lugudinga finally prayed for this court to find this matter as centered on land dispute. On the face of it, it is very strange that siblings are contesting on ownership of names. Resting his submission by way of rejoinder Mr. Kadata first reiterated his submission in chief. With regards to failure of inserting subsection in the penal section i.e paragraph (a) and (b) of section 122. With the cited case of Antidius Augustine V. Rep, he submitted that the circumstances discussed in that case are quite different from the circumstances in the current case. In that case, the appellant was charged with a none existent offence. Thus, the circumstances in that case are quite distinctive from the current case as per degree of incompliance. The offence was rape but the particulars thereof are gang rape. Thus, that anomaly was basic while in this situation is different. Therefore, as per section 388c, that anomaly is curable. In this offence, both situations (a) and (b) attract the similar penal sentence and therefore there was no any prejudice to the respondent. As regards to the issue that the trial court had no jurisdiction from entertaining the matter, it is Mr. Kadata’s formed view that the trial court was mandated to adjudicate the matter as per evidence in record. Therefore, it is not true that the issue of land ownership featured out in the course of hearing that case as 24 propagated. By the way, it is not the law that when land documents are stolen or forged, then the proper forum to adjudicate that is land court. That is a wrong understanding of the law. That is why as per section 338 of the penal Code, it is an offence for one to forge title deed. By the way all these four offences the respondent was charged with, the ordinary civil courts are the ones mandated with jurisdiction to try and not land courts as opined or argued. That this case was filed pre-maturely, is not true. According to section 4(1) of the CPA, Cap 20 R.E 2022, provides that all offences under the penal code shall be filed as per CPA, and not in civil courts. Furthermore, under section 4(2) of the CPA, gives direction about other penal offences from other laws that if they are of civil nature, has been directed that they can first go to the civil court. In the current matter, as it is purely criminal in nature, they can hardly go for civil court first. With regards to the DW2's testimony who had introduced himself as Aroni Kura Machimu, had not tendered any evidence establishing that fact. Therefore, for purposes of evading justice to his father, it was very possible for him just to say he is called Aroni Kura Machimu just to disguise the prosecution's evidence. That fact would have carried weight, had DW2 established documents such as NIDA by that name. At page 63 of the typed proceedings, DW2 was well 25 questioned but failed to give any reply on proof of evidence that he is called Aroni Kura Machimu. That DW1 had surrendered his land documents to PW1 for purposes of Bank loan, this assertion cannot make any legal sense in the presence of the established facts. For one to get bank loan by use of documents of another person, that other person must clearly consent before that loan can be processed. There is no that evidence at all. The cited case of Bushaija V. Republic (1991) TLR 100, for sure is cited out of context. As that case talks of criminal trespass, Mr. Kadata asked this honourable court to go through the whole evidence of the case and re-evaluate it and then gently come to its own conclusion. There being no such evidence on land dispute between the PW1 and DW1 over the said plots, it remains just a submission from the bar and not more. That was all. Having heard both parties, I have now to determine the appeal and the issue for consideration is whether this appeal has been brought with sufficient cause. However as argued by both parties, this appeal is centred on the evidence transpired before the trial Court. Therefore, in determining this appeal, I will be 26 prudent and diligent to look for the ingredients of the offences alleged to have been committed in relation to evidence before the trial Court. This Court is aware that it is the first appellate court and must, therefore, evaluate all the evidence on the court record, bearing in mind that it did not see the demeanor of the witnesses. In Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997) [1998] UGSC 20 (15 May 1998), the Supreme Court guided that: “The, first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanor, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on the credibility of witnesses which the appellate Court has not seen. 27 See Pandya vs. R. (1957) E.A. 336 and Okeno vs. Republic (1972) E.A. 32 Charles B. Bitwire ys Uganda - Supreme Court Criminal Appeal No. 23 of 1985 at page 5” Above all, it is the trite law that the prosecution is placed with a heavy burden than that of the accused. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused 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) and cemented amongst others in the case of Joseph John Makune vs. Republic [1986] TLR 44 at page 49, where the Court of Appeal held that; "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities.” The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of 28 Tanzania in the case of Mohamed Haruna@ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 (unreported) held that; "Of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." That means the evidence must be so convincing that no reasonable person would ever question the accused's guilt. See cases of Mohamed Said Matula vs. Republic [1995] TLR 3, Anatory Mutafungwa vs. Republic, Criminal Appeal No. 267 of 2010 (unreported) and Festo Komba vs. Republic, Criminal Appeal No. 77 of 2015, the Court of Appeal of Tanzania (both unreported). Now, back to the case at hand, the appellant had complained for the trial Court’s failure to find the respondent guilty on count of giving false information to a person employed in a public service. Mr. Kadata has argued that the prosecution managed to prove that the respondent misled the PW3 when informed her that his certificate of right of Occupancy of Plots No.10 and 11 Block L – kidinda area at Bariadi District within Simiyu region were burnt while in fact 29 the said exhibits were under custodian of the PW1 the real owner of the plots. And that the omission of not inserting paragraph (a) to provision charged with, did not prejudice the respondent as particulars of the offence were well detailed and understood to the appellant. Similarly, the prosecution witnesses proved the charge of giving information. Mr. Lugundiga rebutted such argument contending that the respondent was wrongly charged, the charge against him was defective to warrant conviction on that offence and thus the respondent did not lie PW3 rather told the truth as to what happened to him that’s why the PW3 did not bother to go and satisfy herself. Notably, as for the offences of giving false information, the offender must be shown to have known that the information is false. He must also have intended that it be acted upon contrary to what such officer would have done if he had known the truth (See John Straton Bihigimondo v R (1987) TLR 94 - Chipeta, J., as he then was). In the present case, it is on the basis of the Certificate of occupancy alleged to be burnt in the house of the respondent, the new certificates were issued. The facts which are resisted on the first count that the alleged burnt certificates were under custodian of PW1 the real owner. 30 According to the prosecution, it was upon presenting the false information to PW3 in order to procure a letter to be sent to police to secure loss report which later on was sent to the Land registry office and accordingly processed the new land documents. PW1 in his testimony had this to say: “If the person says the plot No.10 and 11 has been burned is a liar because I stay with the said documents in my office, I claimed that there is a person who used my name illegally when he wanted to get a loan at the postal Bank. I went to report at the police station and PCCB ” PW3 on her part testified as follows on this aspect: “ Kasanda Mayuma is the accused person here in court, said he had fire accident and they should get a letter for introduction at the police station. I wrote a letter introducing them, I gave them and they left”. Exhibit P4, named the informer of that information to be Kasanda Mayuma Machimu. DW1 on his part had this to say: 31 “ The fire was set and my house was burnt, the police were there and they advised me to go to WEO to obtain a letter so that I can get lost report, things which were burned were closes, food and my documents of the tittle deed” Glaring from the records of the trial Court, it is very confusing if the title deed were in possession of DW1 and burnt in his house, how again the same came being into possession of PW1. Since the respondent has not disputed as to whether Exhibit P2 is not the original deed, it is a wonder how come the process of obtaining new certificates was not illegal. The respondent at page 59 of the trial court’s typed proceedings testified that PW1 requested the alleged documents for him to secure loan at the bank, and that he gave him such documents. If that is the case, how again the respondent reported to PW3 and to the Police that his title deed got burnt while he knew that he had given them to PW1. In the case of Festo Mawata vs Republic, Criminal Appeal No 299 of 2007, it was observed that: 32 “witness might appear to be perfectly honest but mistaken at the same time. On the other hand, it is a fact of life again that even lying witnesses are often impressive and convincing witness." It is the principle of the law that, every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent reasons for not believing the witness as per the case of Goodluck Kyando Vs R (2006) TLR 363. However, according to Mathias Bundala Versus Republic, Criminal appeal No 62 of 2004 and Aloyce Maridadi Versus Republic, Criminal Appeal No.208 of 2016 (both unreported), good reasons for not believing a witness includes where the witness gives improbable or implausible evidence or where the evidence of the witnesses materially contradicts the evidence of another or of other witnesses. It is only in such a circumstance, the principle in Goodluck Kyando(supra) does not apply as such evidence cannot be accorded any weight for lack of credibility. I am aware that it is unsafe to interfere with the findings of the trial court as per decision in the case of Wankuru Mwita versus R, Criminal Appeal No.219 of 2012 (unreported), unless it can be shown that the trial court failed to appreciate the nature of the quality of the evidence that was tendered before the court. 33 Clearly, I see the evidence PW1 and PW3 very reliable and credent. It is established that the alleged documents were in hands of PW1. DW1 was aware on that and thus the reporting that his house was burnt was just to mislead PW3 to procure a letter which he intended for his own benefit. Again, if policemen witnessed the said burn as alleged by DW1 at page 59 paragraph 1 of the typed proceedings, it is not stated as to why no such police officer came before the trial court of law to testify on that occurrence, how it was investigated and the possible culprits or source of the said fire. Had that been done, then what is called reasonable doubt would have stood against the prosecution’s case. Thus, in consideration of all this stated by the prosecution vide PW1, PW2, PW3, PW4, PW6, PW7, and PW8 make the prosecution’s case firmly established beyond reasonable doubt that all the post information as given by the respondent before PW3, PW4 and PW5 was falsity. Reliance is banked at PW7’s testimony (NIDA officer), and exhibits P7 and P8 showing that Kasanda and Kura though siblings are two different persons and never one name was shared by both as alleged by the respondent. This makes the testimony by Dw1 being not reliable as per strength of the prosecution’s case and thus, cannot be given any credence in it. 34 With omission of not inserting paragraph (a) to section 122 of the Penal which the respondent was charged, I am of the firm view that as correctly submitted by Mr. Kadata that such an omission did not prejudice the respondent taking in the stance that the particulars of the offence was very clear to the respondent. DW1 was aware with all that was against him that is why he managed to enter his defence very well. In Musa Luhende and Another vs. Republic, Criminal Appeal No. 10016 of 2024 HC.at Shinyanga my brethren Madam Massamu J, who encountered similar issue, she reasoned that of which I subscribe thereto. “I have gone through the charge sheet filed on 14th day of November, 2023 and noted that it was not defective as the section and the law used was the right one, despite of minor omission and even the evidence given by the prosecution’s witness was as per the charge sheet, So, this court finds no merit on this ground” I find it patient to state that the charge on first count was still competent before the trial court regardless of non or wrong citation of law because; one, it is a settled law that where wrong provision is cited alongside proper provision the court will just ignore the wrong citation and proceed to decide the matter on merit. See Advantech Office Supplies Limited vs Ms. Farhia Abdulllah 35 Noor and Another, Civil Application No.354/16 of 2017 (unreported), two, it is now settled principle that wrong and /or non-citation is curable when the court has the power to hear the matter. see Bin Kuleb Transport Company Limited vs. Registrar of Titles and 3 Others, Civil Application 522/17 of 2020 (unreported). Therefore, the trial Magistrate was obliged to abide to the overriding principle. The principle of overriding objective just mentioned above has been recently underlined in our laws. The principle essentially requires courts to deal with cases justly, speedily and to have regard to substantive justice. It was underlined by the CAT in the case of Yakobo Magoiga Kichere vs. Peninah Yusuph, Civil Appeal No. 55 of 2017, CAT at Mwanza (unreported). It must however, be born in mind that, the elements of the principle of overriding objective exists even in our Constitution. Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977, Cap. 2 R. E. 2002 (the Constitution) for example, underscored the need for courts to decide matters (criminal and civil) on substantial justice without being overwhelmed by procedural technicalities. Thus, the case cited to me by Mr. Lugundiga of Antidius Augutsino(supra) holds no water as per facts of the case at hand are quite different. Here the charge is not defective on failure to disclose particulars of the 36 offence committed by the accused, as it was in the case referred which provided discrepancies of particulars of the charged offence; rape and gang rape. With respect, the learned trial Magistrate made a mountain out of a molehill, without being solicited. The bottom line, in my view, is that the wording and substance of sections 122 of the Penal Code Cap. 16 have remained intact with the substance of the charge against the respondent despite the omission of paragraph (a), so it should not have occurred to the learned Magistrate that the respondent was wrongly charged. See DPP vs Chacha Nyamuhanga, Criminal Appeal No. 54 of 2018 (CAT at Shinyanga). Conclusively, the trial Court erred not to find guilty the respondent with the offence of giving false information to the public employee. Thus, the first count was proved. With respect to grounds No. 4, 5, 6 and 8 of the appeal, the appellant had complained that the trial Magistrate erred when ruled that PW1 started to use the name of Kura Mayuma Machimu in 2023 and do away with evidence that PW1 had been in use since 2019 when he applied for National Identity Card was commonly known as Kura Mayuma Machimu. He applied for National Identity Card in 2019. Exhibit P7 is relevant but the National Identity Card was issued in 37 2023.Therefore, it was an error for the trial Magistrate to base its conviction on the period of delivery of Identity card and leave the initiating forms for processing the Identity Card, leave alone the evidence of siblings – PW2 and PW6. Traversing the trial court’s records, it is vividly clear that the respondent when approached Simiyu land office for changing title deed identified himself to be Kasanda Mayuma Machimu but when was informed by PW4 that the title deed bears the name of Kura Mayuma Machuma, DW1 stated that it is also his name. Thus, advised to check for deed poll to signify the same and went to PW5 for swearing a deed poll. On the other hand, it is true that the respondent had applied for NIDA in 2017 with the name of Kasanda Mayuma Machimu, and he never indicated as to whether he has another common name of Kura Mayuma Machimu as alleged. Conversely, it is true that PW1 had applied for NIDA in 2019 with the name of Kura Mayuma Machimu. Therefore, with reference to exhibit P7 it is clear without doubts that Kura Mayuma Machimu and Kasanda Mayuma Machimu are two distinct persons. This vividly tallies with testimonies of PW2, PW4, PW6, PW7 and PW8. The important question comes, what influenced the DW1 to apply for the deed poll for the change of his name? There is no clear answer to that, other 38 than being his own known motive. After all, DW1 went before the Court to take an oath for deed poll acting on the advice of PW4 (Land Officer). However, in P5 exhibit, the respondent is not swearing that he is also known as Kura but only that he denounces the use of former name Kura to Kassanda. By this fact, and in consideration of the evidence in exhibit P7, P8 that he is only known as Kassanda and that he has no any other name (exhibit P.9), in law, he could not denounce the name he had not been named or owned so. The P.9 exhibit which is the accused person’s own admission statement before PW8, the respondent says, in responding to questions no. 7, 8, 9, 10, 11; I quote: “Ninajulikana kama “SANDA” ambalo kifupisho cha jina KASSANDA. Sina majina mengine niliyowahi kutumia. Ndiyo, nina kitambulisho cha Taifa (NIDA) chenye namba 19650504391010000123 na sikumbuki mwaka niliokipata kwa usahihi ila ni kabla ya mwaka 2021. Kiatmbulisho hich kimesajiliwa kwa majina ya KASSANDA MAYUMA MACHIMU. Kwamba historia ya familia yetu kuhusiana na wazazi, watoto na majina kuanzia mkubwa hadi mdogo, baba yangu anaitwa MAYUMA MACHIMU NG’WENDA na mama yangu anaitwa LUJA MALUGU na kwa sasa ni marehemu. Kwa baba na mama tuko watoto saba ambao majina yao kuanzia mkubwa hadi mdogo ni: SUMAYI 39 MAYUMA MACHIMU, NDONGO MAYUMA MACHIMU ambae pia anfahamika kwa jina la GEORGE MAYUMA MACHIMU, KWANDU MAYUMA MACHIMU, ambae pia amekua akifahamika kwa jina la NCHAMA MAYUMA MACHIMU, KURA MAYUMA MACHIMU, KASSANDA MAYUMA MACHIMU, MACHIMU MAYUMA MACHIMU na wa mwisho ni KIMOLA MAYUMU MACHIMU ambae anafahamika pia kwa jina la NANE kwasababu alizaliwa siku ya nane nane tarehe 8.8.1972”. With this own admission which is the best evidence (See Ibrahimu Ibrahimu Dawa v. Republic, Criminal Appeal No. 260 of 2016 (unreported), Mohamed Haruna Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007), I wonder if one may further need to source other evidence regarding the names of the respondent. The argument that even his son (DW2) is named ARON KURA MACHIMU is not a conclusive proof. By the way there was no any convincing evidence from him. By the way it is not the child that names his father but the parent. In this matter, there is clear evidence by admission of the respondent himself that he was named so by his parents and that he has no other names in alternative. 40 It is trite law that every witness is entitled to credence and must be believed and his/her testimony accepted unless there are good and cogent reasons for not believing a witness. In the case of Mathias Bundala vs Republic , Criminal appeal No. 62 of 2004 CAT at Mwanza where it approved the case of Goodluck Kyando vs Republic (2006) TLR 363, the court held that: “ It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless they are good and cogent reasons for not believing a witness”. For sure, I am satisfied beyond reasonable doubt that the presumption of credence of the prosecution witnesses in this case has not been rebutted by any reasonable doubt by the defense testimony. The prosecution’s testimony in this case has been cogent and coherent. In a further consideration to the facts of the case, perhaps it is instructive to quote the section in which the charges against the respondent are premised. Section 369 (1) of the Penal Code reads: “Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of an offence”. 41 The respondent has averred that the change of name was due to instruction given to him by land office. And that the use of two names in African culture is not a new thing. With due respect I do not buy the respondent's interpretation of the term "some other person" as used in the section above. The term in my considered opinion has no any other meaning than referring to another person as interpreted in the Black's Law Dictionary Black's Law Dictionary, Bryan A. Garner (8th ed. 2004) when defining the term impersonation. At page 2201 it defines impersonation to mean: “The crime of falsely representing oneself as another person." With that definition I have no doubt in interpreting the provision of section 369(1) of the Penal Code to mean that, the offence of personation is committed when one person who with intent to defraud another person goes further to execute his intention by falsely representing himself to be another person while in fact he knows not to so be. So, the offence can be committed to any person whom the accused presents himself to, to be "another person" who is either living or dead. Thus, the question whether the respondent was also known as Kura Mayuma, I have perused the all trial court’s records, none of the evidence is supportive that DW1 was formerly known as Kura Mayuma. All siblings and other 42 close relatives have testified that Kura Mayuma is different person to Kasanda Mayuma. See testimonies of PW2, PW8, PW6, PW7 also Exhibit P9 (cautioned statement of which DW1). Thus, it is very clear that, the respondent had used the name of his brother (PW1) to obtain document for his own use. The only negation evidence is of DW2 a son of the respondent whom I will not accord any weight for want of credence and truth. Guided with meaning of personation as correctly interpreted in Black's Law Dictionary Black's (supra), I hold without doubts that the respondent defrauded PW5 to secure the deed poll for his benefit driven by ill intent and further falsely obtained land registration before - PW4 a land officer to procure Right of Occupancy on plot no.4 and 5 Kidinda area in Bariadi District which originally were known as Plot No. 10 and 11. Reading the testimony of PW5 who testified that she only signed the deed poll without administering an oath after the same was tendered to her by a court clerk, though that was not an issue before the court on the legality of the said deed poll, it is big shame to the Principle Resident Magistrate (name withheld for the integrity of judicial office) to administer such an oath in disregard of the law. For sure, it was not expected for such a principle officer to have a disregard to the law that much. That alone shakes one’s credence and ethics of the judicial 43 office as far as administration of judicial oath is concerned. What a shame to the judicial officer. I bet, it should not repeat. With the offence of obtaining registration by false pretence, it is a well- known principle that in charging the respondent with this offence, the charge must be set out with sufficient particulars explaining the alleged committed offence on the existence of facts which is alleged to be false. It would have been shown that the respondent had presented a reason to PW4 and PW5 which was seen to be valid on the face of it while in fact it was not valid so that he could have valid documents of registration of the suit plots. I am therefore of the formed view that since the respondent failed to prove as he was also well known as Kura Mayuma Machimu before, his movie of denouncing that former registered name of Kura belonging to PW1 to his real name Kasanda Mayuma Machimu, and based on the testimonies of PW4 a land officer and PW7 signifies that the respondent had ill intent to obtain registration of land in question fraudulently. see cases of: Rebeka Rashid Samboya vs Republic, Criminal Appeal No. 18 of 2015 (unreported) and Edward Opiyo s/o Anguro vs Republic (1968) HCD No 55. This is to say, the offence of obtaining registration by false pretense was as well proved against the respondent beyond reasonable doubt. 44 With the complaint that the trial Magistrate did not exhaustively record the testimony of PW6 as some of his evidence were not recorded, it is a trite law that court’s records are deemed authentic and cannot be easily impeached, since they accurately represent what happened (See Halfani Sudi vs Abieza Chichili [1998] TLR 527 and Hellena Adam Elisha @ Hellen Silas Masui vs Yahaya Shabani & Another [2021] TZCA 669 (TANZLII). Glaring from the principle above, it is very difficult to ascertain to what was testified before the trial Court was not fully or accordingly recorded. Such a complaint cannot hold water unless a clear contrary is established, which is missing in this matter. Since Judicial officers exercise their duties basing on their oath of diligence at all time. Therefore, if there are human errors, the same must be established so. Otherwise, it is hardly believable. Therefore, in the absence of concrete proof to the contrary, the complaint is devoid of any merit and consequently is disregarded. As to whether the issue is a land matter and not criminal matter thus be entertained by Land Courts, I am of the firm view that before the respondent had not transferred the title deed of the suits plots from one Kura Mayuma Machimu, the said plots were real estates of the PW1, but when the land authority had changed ownership after being misled by the respondent the status of ownership 45 also changed. Now, since the transfer of title was fueled by illegal acts as detailed herein, then the new born status is a crime. Thus, the matter cannot be held to be land matters rather a pure criminality as to the sequence of episodes. Therefore, I hold to the contrary with the case cited to me by Mr. Lugundiga, a case of Bushaija as seemed to be misplaced. Mr. Kadata has correctly submitted the cited case law referred was all about criminal trespass of the land which need ascertaining of ownership for it to stand, a thing which is not in this case. Grounds 9 and 10 on proof of the case, much have been said herein when scrutinizing to each ground of appeal and the answer was in affirmative. Now what is the way forward? My findings supra are in accordance to the guiding principle in the case of Omari Khalfan v. The republic, Criminal Appeal No. 107 of 2015 whereas the Court of Appeal having found that both sides of the case were prejudiced by the omission of the trial court to give adequate appreciations on the evidence adduced and none compliance to the law, quashed the findings of the trial court. The anomaly in that case was affecting the entire proceedings but in the instant matter the parties are not at issue on the proceedings of the trial court. In that respect, such proceedings remain intact. Now what is the way forward. The 46 learned state attorney argued this court to step into the shoes of the trial court and re-compose a new judgment on the available proceedings. Clearly, the respondent was arraigned before the trial Court with four counts; Giving false information to a person employed in public service, False swearing, Personation and obtaining Registration by false pretense. In my conclusive discussion on a thorough digest and scanning of the whole case evidence, I am in supra mind that the all offences were proved by the prosecution to the required standard. I therefore find the respondent Kasanda Mayuma Machimu guilty of the offences charged with and I accordingly convict him in all four offences charged with. The not guilty and acquittal findings of the trial court are quashed and set aside for being erroneously arrived. DATED at SHINYANGA this 26th day of August, 2024. F.H. Mahimbali Judge 47 48