20181114 TZHC Mwanza2

lJ! IN THE HIGH coµRT Of TANZ:ANIA IN·THIE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 373 OF 2017 (Original· Criminal Case No. 48 of 2017 of the District Court of Musoma at Musoma) CLifORD OBADIA ■ 11 ■ e11•:111••••.11• t1o ■■ ca ■ 11 ■ 11• ■■■ c1 •••••n ■■ 11 ■■■■■ 1 1 ■ 11ci ■ 1111111•11 .APPELLANT VERSUS THE REPUBLIC •·o n,■ ·a,■ 111111 ■ ma: 1111,11• a 11,11,maa-c ■ a ■ c.11,■ 11 ■ ■■ ■ ■·■ ■ ■ 11111 ■ •■ -■ •■ 11• a,■ m• ■ 11 11 1111 ~RESPONDENT JUDGMENT 27/08 & 14/11/2018 RUMANYlKA, J.: Appeal is against the 21/06/2017 conviction and a 4 years custodial sentence for offence of Personation of Officer c/s 100 · (b) and 35 of the Penal Code Cap. 16 R.E. 2002 (the code). The 5 grounds of appeal revolve around three (3) points: (1) that the trial district magistrate excessively and illegally sentenced him. (2) that the trial district magistrate improperly evaluated the evidence. 1 (3) the: charges of personation _were not proved beyc;:md reasonable doubts. · The appellant appeared in person. Mr. Robert Kidando learned state attorney appeared for the respondent Republic. Whereas the appellant had nothing to_ add to his memorandum of appeal, therefore nothing to useful_ to submit, Mr. Robert Kidando generally sort of partly did not and partly support~d the conviction. Save for the custodial sentence of 4 years. Which, according to Section 35 of the Code should not have exceeded 2 years. That PW1 was not reliable. As did not show what out of it the appellant may-have had benefited. That the proper victim i.e. Mama Rahel did not appear in ·court yes! But the evidence of PW2 and other pieces of evidence sufficiently proved th~ allegations. In order to appreciate what was the prosecution case made of, a brief account ofr and therefore evidence on record would read thus; PW1 (Bushiri Hamadi) stated that as he was- at the material time at the scene - Mwigobelo on the Shores of Lake Victoria, the appellant paused as a fisheries officer of Mwanza on duty. But had no Identity Card with him. That he reported one and,- accordingly policemen arrested the appellant. PW2 Ramadhani Mafuru Mkama of the Lake Shore Management Unit around stated that he found the appellant, allegedly an officer from Mw~nza having arrested Mama Rahel's customers for being in possession of under size fish. 2 PW3 G. 2705 Isaya stated th 9t. he, ,with regard to the case arrested (,_ the personating fisheries officer. That is it.- The appellant is on second having denied the charges completely. That he was only fixed. The district trial magistrate, it appears beyond reasonable doubts convinced, he found the three PWs reliable also witnesses of truth. PW3 having corroborated others' and convicted the appellant. The central issue is whether the prosecution had proved their case beyond reasonable doubts. Looking at the provisions of Section 100 of the Code, essential ingredients of the offence are as underlined: --·- Any person who (b) falsely represents himself 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 an offence. -That is to s~y that in order for the offence to ·stand; facts that needed to exist are:- One; a person to whom the accused so paused and misrepresented Two; the suggestively assumed powers by the accused. The appellant may have had ·misrepresented to the said Mama. Rahel or the 3 l I I t latter's customers. Reportediy, :if at, ali anyone had been in p_ossession of ( undersize fish granted! But for unknown reasons,. neither Mama Rahel nor customers thereof _appeared in· court.· With a view to establishing whether really the appellant or .somebody else ·had misrepresented to her or them.· Otherwise whereas there was no any advantages or favour stated that the appellant is said to have out of it obtained, it can now, in my opinion safely said that if at all the appellant was, but prematurely arrested and prosecuted. Much as if possess1on of undersize fish was a criminal offence, just like any person before whom offences committed, the appellant was entitled to arrest offenders. Now that, as said, the offence of personation Contrary to Section 100 (b) and 35 of the Code was not beyond reasonable doubts proved, I will, as hereby do order immediate release from prison of the appellant. Conviction and sentence are quashed and set aside respectively. Appeal is allowed entirely. Ordered accordingly. Right of appeal explained. <> S . ~ ~ YIKA ·. JuDGE . 29/10/2018 4 Date: 14/11/2018- Coram: Hon. M.A. Moyo, DR Appellant: } Respondent: Absent B/C: Elizabeth Court: Judgment delivere~ this 14th day of November, 2018 in chambers in absence of_the appellant and respondent in presen_ce of B/C. Elizabeth . . \~J M.A. MOYO DEPUTY REGISTRAR 14/11/2018 5