19850309 TZHC Mtwara

>.iGI·i COJr('I' L.t<U,:NAL M t';:.d\L NOo 78 OF 1982 ORIGINAL CRlLINAL CASL l~Oo j 7 OF 1981 OF Tl-it:; D/C OF LINlJl DISTRICT AT LINDI Before JoSo KAGINE, Esq.; D/NAGISiRATE CELCS'i'INE l'.Ai1,T Ah BULA KAZI BA o o" o o o Af'l' f:LL1,NT (Original Accused) versus THS R~PUBLIC ooooaooooooaooooabRESfO~D~NT (original Prosecutor) J"UDGMENT NSUMI I Jo I , After he was convicted of 'ersonating i:-'ublic Officer contrary to section 100 ·1) of the E-enal code, appellant was senb:inced to two years imprisonrasnt which was subject to confirmation by this court. Appellant has filed t~1is appeal to challenge the said conviction and sentence. The factual Gsoect of th~ prosecution's ,. allegation leaves no room for any rational controversy. On the material days appellant presented ,, himself before th~ principal of hah~wa Party Ideological college as one Captain c. B .. So n:z;ibc:-, of 'i'anzania People's Defence F'orceso And by virtue of the purported public office, appellant enrolled himself as a long course student of the college. Ii, however, transpired that in fact appellant was not en~loyed as public officer let alone being on army captaino As I said, these facts are supported by cogent evideoceo Nothing has been adduced by the appellan~ in his defence which has the effect of creating r::asonable doubt against this allegationo However, the same expression of satisfaction is not maintainable when it comes to the legal aspect of th~ caseo As an atten~t to convey my uneasiness etfectively lAt me quote fully th~ provisions of section 100 of the f~nal Codeo It reads: "1000 Any pe:cson who- (1) personates any person e0ployed in public service on an occasion when, the later is required to do ;my act or attend in any place by virtue of his employment; or (2) falsely represents him~elf to be a person employed in the Fublic serv'ice, and assumes to do c1ny act or to attend in any place for the purpose of doing any act by virtue of such ,..,i'lployrnent 9 is guilty of a mis demeanour" o 2 When admitting this appeal m~ brother samatfa, J., querried, inter alic;., wi1.cth2,r in (,rafting the charge the public prosecutor intended to use subsection (2) of the section. With respect, the conviction of th~ appellant under subsection (1) was claarly prompted by the misconception of.these two subsections. The provisions of subsection (1) only come into play where accused purports to discharge duty, either by doing an act or attend in any place, which he is required to perform in his assumed official post. In tile instant case it is true that appellant enrolled himself as Captain Mziba but he was not E~~.9.U.~,r.e5i, or cluty - bound to enroll himself with the college as a result of his being an army captain. There was no duty imposed on him as such to enroll hir:1::.-2lf with. the college. He ought to have been .C:hargec:i under thC= 1_,rovisions of subsection,. ( 2). For it is clear that appellant assumed to ~tt~nd the course by virtue of his false representation t:·1at he was an army captain. As a genernl guidance, magistrate are 2dvised that whenever they are called UfOn to adjudicate a case preferred under ~ither of the subsections of section 100 of the Penal Code, tlF:y shculd particularly be on guard against the common error of mixing up tllesf.: provisions., F'or,' depending on the particular circumstances of th~ case 7 such error may be fatal to the conviction. Quite happily 7 tiv: samE; cannot be said in this case. Though charged under the wrong subsection, 2lppellant fully understood the kernel of the case against himo '.i'h::: si·cuation is curable under section 346 of the Criminal Procedure Codeo Thu~ the conviction is taken to have been entered undet subsection (2) of section 100. The sentence: of two years imprisonment is the mi.iximum provided by the law.. I don I t thing that it is such a bad personation case so as to warrant th0) imposition of the maximum penalty. Appellant's youth age and the fact that he was a first offender ought to have been taken as factors r~itigating the intended sentenceo Unfortunately any reduction of th1::-, senh~nce at this hour will be of no practical utility. Appell.ant ha,::; already completed serving the s,~ntence. This appeal is therefore dismissed and the sentence of two years imprisonment is hereby confirmed. i:..,_ • \,~'-''-t,' '•,JN, H. A.· f151JMI JUDGE 9/3/85 'I,..:• ... -.\.··