Elizabeth Sifuni Mbwambo v Republic

THE HIGH COURT IN OF THE UNITED REPUBLIC O F TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 3019 OF 2025 (Originating from Criminal Case No. 12831 of 2024 Court of Resident Magistrate of Manyara Babati) ELIZABETH SIFUNI MBWAMBO @ LILIAN KATAPA…………...…. APPELLANT VERSUS THE REPUBLIC …………………….…………………….………………RESPONDENT JUDGMENT 17th & 28th March 2025 MWIHAMBI, J.: This is an appeal against the decision of the Resident Magistrate Court of Manyara (the trial court) in which the appellant, Elizabeth Sifuni Mbwambo, was arraigned with the offence of personating a public servant, contrary to section 100 (b) and 35 of the Penal Code [Cap. 16 R.E. 2022]. She was convicted and sentenced to four years imprisonment. At the trial the appellant denied the charges and the prosecution paraded 3 witnesses to prove the case. PW1; Frank Tungu Kapela Investigator, TAKUKURU (Taasisi ya Kuzuia na Kupambana na Rushwa - the Prevention and Combating of Corruption Bureau), testified that on the 7th December, 2022 he received a call from the appellant who introduced herself as Lilian Katapa, assistant secretary of the Ministry of Land, from the Ministry’s headquarters in Dodoma. That she was aware that TAKUKURU Simanjiro was investigating the land dispute between MWAKASEGE and THE FAMILY OF MARO, and was also aware that the dispute was already solved in the Ministry thus she was surprised as to why TAKUKURU Simanjiro was still investigating it. That while still conversing, the phone went off and she called again using a different phone number and repeated what she said. PW1 further testified that he asked the appellant to visit his office and she went there the next day with the same inquiries, and when asked to produce work ID, information/authorising letter from the Ministry or the ticket for the transport that she used from Dodoma she failed to do so. That further enquiries from the Ministry leadership revealed that there is no such employee in the Ministry and that the appellant seemed to be a TAPELI. PW1 testified that, subsequently under the instructions of his office in charge he took the appellant to the police, Arusha for lying “for further orders”. PW1 also testified that while in Arusha the appellant was found with an election card which had her picture and the names ELIZABETH SIFUNI MBWAMBO. That according to the information made available to PW1 by the appellant’s co-parent (Mzazi Mwenza), the appellant is a TAPELI, co-operating with the police and uses different names. PW2; Geofrey Eliud Yotham, Investigator, TAKUKURU corroborated the evidence of PW1 in relation to the appellant presenting herself as Lilian Katapa, in TAKUKURU Simanjiro office, and her failure to produce work ID, information/authorising letter from the Ministry nor the ticket for the transport that she used from Dodoma and on the feedback information from the Ministry’s headquarters in Dodoma as well as the information from “appellant’s husband” that the names LILIAN KATAPA are fake names. PW2 added that the appellant introduced herself as Assistant Secretary for Land Minister Angelina Mabula (as she then was) making a follow up on a land dispute at Mirelalani (sic) ward involving MWAKASEGE AND CIVILIANS. In cross examination by the appellant, PW2 admitted that when the appellant visited TAKUKURU office on 4th December, 2022, she did not register the visitor’s book and it is not proper. PW3; Alpha Honest Massawe, from the Ministry of Lands, Housing and Human Settlements Development, confirmed not knowing the appellant and adduced that he was the only Assistant Secretary to the Minister and no one has worked as the Assistant Secretary beside himself. He further adduced that the Minister denied to have sent anyone to the office of PW1. That he told PW1 to proceed with investigation as the visitor (appellant) was not genuine. In her defence the appellant, who testified as DW1, denied being a TAPELI, or having introduced herself as assistant secretary of Ministry of Land or ever being employed as such. She admitted paying a visit to TAKUKURU office in Simanjiro with an intention of informing them about a certain misuse of funds “ubadhirifu wa fedha” under what she called her role as a secret informer for Police and TAKUKURU the role that has been ongoing for more than four years. She adduced that she believed she was charged because PW1 said he was interfering with their duties. The trial court was satisfied that the prosecution had proved their case beyond reasonable doubt and went on to convict and sentence the accused (appellant). The appellant was aggrieved with the decision and has presented this appeal with three appeal grounds; That, the trial court erred both in law and facts to convict and sentence the Accused (Appellant herein) whilst the case was not proved against the appellant to the required standard. That, the trial court magistrate failed to properly analyze and evaluate the evidence adduced hence arrived at the impugned decision of convicting and sentencing the Appellant. That, the trial court magistrate erroneously based her decision on the weak and contradictory evidence hence arrived at the impugned decision. At the hearing the appellant was represented by Mr. Tumsifu Mvera, learned Advocate and the respondent enjoyed the service of Ms. Mwanaidi Chuma, learned State Attorney. Mr. Tumsifu Mvera, who decided to consolidate the first and second appeal grounds, kickstarted by reiterating a legal requirement propounded under section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022] on the standard of proof in criminal cases; proof beyond reasonable doubt. He submitted that the three witnesses presented by the prosecution failed to remove doubts on offence charged to the appellant. That first, there were contradictions of dates between PW1 and PW2; while the Charge Sheet shows the offence was committed on 7 and 8 December, 2022, PW1 said the offence was committed on 7 th December, 2022 and PW2 mentions the material date as 4th December, 2022. That these contradictions raise doubts on commission of the offence as how comes each one mentions a different date while both say they were with her in office. Submitting further on the alleged doubts, Mr Tumsifu Mvera argued that PW1 said he received a call from the appellant but the phone went off and the appellant called again using another number but the prosecution failed to submit the exhibit of the said phone or even the phone numbers for the court to satisfy itself whether the caller was the appellant or not. Thirdly, that while PW1 and PW2 adduced that the appellant went to TAKUKURU office there was no evidence to prove it, as the prosecution failed to produce even a visitors’ register, and that this register was necessary considering that there was already contradiction on dates. Mr Tumsifu Mvera further submitted that PW1 adduced that he went far into calling the Ministry headquarters in Dodoma to confirm on the existence of LILIAN KATAPA but there is no evidence on this. The learned advocate cited the case of Chausiku Mchana Magioga v. Republic to cement his argument that any doubt in the prosecution case should benefit the accused. In relation to the third appeal ground, the learned advocate submitted that the conviction was based on the evidence of PW1 as corroborated by PW2 and on the ID that the appellant was found with; the ID that had her names; Elizabeth Sifuni Mbwambo. He argued that for this evidence one cannot say this person was impersonating an employee of the Government because those are her names, had she been impersonating another person then even the ID she was using could have those impersonated names, that is LILIAN KATAPA. The fact that she was found with an ID of her real names shows the appellant did not introduce herself or impersonate a Government employee so that evidence was supposed to be taken on appellant’s favor. The learned advocate further argued that the trial magistrate judged that matter using emotions because the evidence was weak and not sufficient to convict the appellant. He concluded with a prayer for this Court to allow the appeal, quash the conviction and sentence and set the appellant at liberty. For the respondent, Ms. Mwanaidi Chuma, relying on Magendo Paul and Another v. Republic [1993] T.L.R 220 admitted that prosecution had the duty to prove the case beyond reasonable doubt. Arguing against the first ground of appeal, she argued that in proving the offence of impersonating a Government employee the prosecution proved all the three ingredients of the offence, and proved the same beyond reasonable doubt. First; there was a person who is an introducer, Ms. Chuma argued that this was proved by the evidence adduced by PW1, that the appellant called him introducing herself as LILIAN KATAPA, assistant secretary from Ministry of Land and Human Settlement from its office in Dodoma sent by her boss to investigate on a land dispute that was on going and was instructed to come and tell them to stop the investigation because the dispute was already settled by the Minister of Land, while knowing that, that was not true, and the next day she went to the office and introduced herself the same. That, the evidence of PW1 was corroborated by PW2 who were together on 8th December, 2022 at TAKUKURU office in Simanjiro. Ms. Chuma referred this Court to section 62 (1) (a) of the Evidence Act and the case of Joseph Mkumba and Another v Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 243 at page 13 on significance of the evidence of seeing. Ms. Chuma argued that the second ingredient; intention to defraud which goes with impersonating to be another person, was also proved beyond reasonable doubt due to the fact that the information that the appellant presented to TAKUKURU office was not true, the appellant refused to reveal her office ID to PW1 and PW2 and in addition PW3 confirmed that there was no such staff in the Ministry and he is the one who holds relevant position and that the Minister of Land said did not send anyone from office to go to TAKUKURU office in Simanjiro. That the other ingredient; having the knowledge that she is not that other person, was also proved by the evidence of PW3 who is the real assistant secretary of the Ministry and who couldn’t recognize the appellant as his colleague in the Ministry. The learned State Attorney invited this Court to the case of Goodluck Kyando v. Republic 2006 T.L.R 263 on the argument that PW1, PW2 and PW3 were credible witnesses and there was no reason not to believe them. Therefore, the prosecution had proved the case beyond reasonable doubt because the evidence of the prosecution was strong and the accused person must be convicted if the prosecution’s evidence is strong as said in Mohamed Haruma @ Mtupeni and Another v Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362. On the contradictions of dates between PW1 and PW2, Ms. Chuma argued that there is no such contradiction to enable the appellant avoid the offence, that PW1 adduced that the appellant called him by phone on 7 th December but communication was not good so she agreed to go to the office on 8th December, and that when talking in phone she introduced herself as LILIAN KATAPA and when they talked physically she introduced herself the same, and that the important dates are those that relate to the acts by the appellant. Ms. Chuma further argued that the appellant said that she went to TAKUKURU office on 9th December, though Mr. Mvera did not say she went to TAKUKURU office on that date to do what. The learned State Attorney brushed off the arguments on non-submission of a phone that was used in communication between PW1 and the appellant and the visitor’s registration book as exhibits as non-merit arguments because the issue before the trial court was whether the appellant went to TAKUKURU office and whether she impersonated a Government employee and both were answered in affirmative. The learned State Attorney briefly responded to the second appeal ground by referring this Court to page 3 of the trial court judgment that the magistrate did evaluate the evidence before convicting and sentencing the appellant. She thus concluded that the two grounds are meritless and prayed for their dismissal. Submitting against the third appeal ground, the learned State Attorney vehemently argued that there was no contradiction in any prosecution evidence, and the evidence was strong and not weak. That conviction comes after court’s satisfaction that the prosecution has proven the case beyond reasonable doubt and in this case the appellant did go to TAKUKURU office as Lilian KATAPA while in the relevant Ministry there was no such employee. She cited the case of Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 to argue that if there are contradictions then the contradictions are minor and cannot affect the prosecution case as they do not go to root of the prosecution case. The learned State Attorney summed up with a prayer for this Court to uphold the conviction and sentence meted by the trial court. In a brief rejoinder, Mr. Tumsifu Mvera reiterated that the prosecution did not prove their case beyond reasonable doubt as required by law. That the State Attorney mentioned ingredients of the offence though failed to show if there was any evidence, in this case, to prove the ingredients. That for the offence to be proved all three ingredients must be proved completely. The learned advocate further insisted on existence of contradictions on the side of dates, and that the State Attorney failed to remove the contradictions especially that between PW1 and PW2, and also failed to tell the relationship between 4th December and 8th December and 9th December hence she failed to remove the doubts as to why those dates contradict each other, as this shows the evidence was false. The learned advocate also insisted that exhibit of the phone and visitor’s book were necessary so as to remove the already existed doubts. Mr. Tumsifu Mvera argued that failure to record the phone communication between PW1 and the Ministry leaders is not a minor mistake as it goes to the root of the offence especially considering that this is a criminal case which is given most weight due to the punishments provided. That there is a saying which says “… it is better one hundred guilty people should escape than that one innocent person to suffer” in these circumstances of contradicting evidence the trial court erred to continue convicting and sentencing the appellant. The learned advocate concluded by a prayer for this Court to allow the appeal and quash the trial court decision. After going through both parties’ submissions and case records, the main issue in this appeal is whether the prosecution case was proved beyond reasonable doubt. I find it fitting to state here that this being the first appellate court, appraisal of evidence adduced at the trial court will be conducted as it was laid down in Abdallah Athuman @ Dulla v. Republic, Criminal Appeal No. 434 of 2018 - [2019] TZCA 496 and applied in various cases such as Makubi Dogani v. Ngodongo Maganga, (Civil Appeal 78 of 2019) [2020] TZCA 1741 (21 August 2020) in which it was held that: “The first appellate court is entitled to re-evaluate the entire evidence on record, by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own decision”. I will also be guided by the case of Malmo Montage Konsult AB Tanzania Branch v. Margaret Gama, Civil Appeal No. 86 of 2001 CAT at Dar es Salaam (unreported) in which the Court held that: “… an appellate court is … expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address each ground separately.” (emphasis is mine) I find it convenient, given the circumstances of this case, to address the appeal grounds generally. Section 100 (b) of the Penal Code provides that: 100. Any person who- (a) personates any person employed in the public service on an occasion when the latter is required to do any act or attend in any place by virtue of his employment; is guilty of an offence.” Section 35 which provides for general punishment for offences where penalty is not prescribed reads as follows: “35. When in this Code no punishment is expressly provided for any offence, it shall be punishable with imprisonment for a term not exceeding five years or with a fine or with both.” Section 100 (b) has been analysed and elaborated in a number of cases with the emphasis being on the requirement for actus reus and mens rea to be proved beyond reasonable doubt. In the case of Ibrahim Loya v. Republic [1991] T.L.R 162 the appellant was challenging the decision of the District Court of Tabora in which he was charged with three offences, the one similar to the case at hand being personating a public officer contrary to section 100 of the Penal Code. The appeal was dismissed as the actus reus and mens rea were found to have been proved beyond reasonable doubt, as the appellant had falsely represented himself as a policeman and the complainant had agreed to give him money because of the appellant's personation as a policeman. This was also reflected in the case of Mohamed Ally@ Mzanzibar v. Republic, Criminal Appeal No. 33 of 2023, High Court at Bukoba (unreported), whereby this Court cited the case of Isidori Patrice v. Republic, Criminal Appeal No. 224 of 2007 (unreported) which held as follows: “It is now the trite law that the particulars of the charge shall disclose the essential elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence with the necessary mens rea. Accordingly, the particulars, in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts of the offence and any intent specifically required by law.” Therefore, in Mohamed Ally@ Mzanzibar (supra) the Court went ahead and held that both the actus reus as well as mens rea of the offense need to appear on the charge sheet and should be proved beyond reasonable doubt. That mens rea or ill motive per the law is the purpose of doing any act by virtue of such false employment. On the other hand, in the case of Lameck Joseph Owiti v. Republic, Criminal Case No. 37239 of 2024 HC Musoma (unreported) the Court held that for the offence of personating a public officer to be substantiated against a particular person, it must be proved that a person personating to be a public officer, first, falsely represents himself to be employed in the public service, second must assume or undertake to do an act which ordinarily is done by the actual public officer by virtue of his employment, or, third, he must attend at any place for the purpose of doing any act that is usually and ordinarily done by the public officer by virtue of such employment. In that case the appellant was appealing against a conviction and sentence on the offence of personating a public officer contrary to sections 100 (b) and section 35 of the Penal Code whereby he had falsely represented himself as a national security officer working at the National Security Headquarters of Tanzania so that he could obtain TZS. 20,000,000/= from one Range Boaz Range on the promise that he can assist him on his land dispute. The Court went on to hold that the mere fact that the Appellant introduced himself as a national security officer allegedly promising to assist PW1 in his land case does not fit under the description of "assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment'. That in order to prove both actus reus and mens rea of the offence, the respondent was required to prove that the appellant committed an act of impersonating a public officer falsely (that is with an intention to deceive represents himself to be a person employed in the public service) and he used (assumed to do any act or to attend in any place for the purpose of doing any act) the said impersonation (by virtue of the said employment) to gain an advantage (that is he demanded or obtained something of value) or intimidated and/or harmed others acting in such pretended character. The court went on to hold that “… the second ingredient of the offence as provided under section 100(b) of the penal Code is wanting from the particulars and the said discrepancy made the charge sheet at variance with the evidence adduced, which was about influencing the decision of the case that was pending in court, while the personation of a public officer, a national security officer, had nothing to do with the judicial functions. Therefore section 100(b) of the Penal Code was wrongly invoked by the respondent in charging the appellant as neither the facts nor the evidence supported the charge levelled against the appellant.” In this appeal at hand, the Charge Sheet on PARTICULARS OF OFFENCE reads as follows: “ELIZABETH SIFUNI MBWAMBO @ LILIAN KATAPA, on the 7th and 8th day of December, 2022 at Mirerani area within Simanjiro District in Manyara Region, did falsely represented herself to be one LILIAN KATAPA assistant secretary of the Minister for Lands, Housing and Human Settlements Development while in fact it was not true”. Taking a leaf from the above cited cases this Court is of the considered opinion that the actus reus of the offence being falsely representing oneself to be a person employed in the public service; the assistant secretary of the Minister for Lands, Housing and Human Settlements development is seen in the Charge Sheet as well as in the evidence of PW1 and PW2. The question that follows is what then is the mens rea? What was the purpose behind such personation by the appellant? The trial magistrate in page 3 of the judgment stated: “… the accused person did false represents (sic) herself to be the public servant: Assistant Secretary of the Ministry of Lands (sic) and in doing so she assumed the post by giving orders to stop investigation on land dispute which was on her own interest, which is an offence” (emphasis is mine) This Court, in discharging its duty as the first appellate court, re-evaluated the adduced evidence and found nowhere that the witnesses or the prosecution mentioned that the appellant gave “orders to stop investigation on land dispute” The evidence shows: PP “… that she needed to know from Frank Kapela about the investigation on land dispute between Mwakasege and the Government…” PW1 “she was aware that our office was investigating on the land dispute between MWAKASEGE and THE FAMILY OF MARO, and that she was aware that the dispute was already solved in the Ministry thus surprised as to why were still investigating on it” PW2 “… a visitor came and introduced herself by the name of LILIAN KATAPA and said she had come to make a follow up on land dispute at Mirelalani (sic) ward involving Mwakasege and civilians” PW3 “… there was a person, visitor who was in their office by the name of LILIAN KATAPA and that she was the assistant secretary of the Minister and was sent by the Minister to make a follow up on the file with dispute between parties, I don’t remember parties’ names and why they have not settled or deal with the file …” As it can be seen from the extracts, there is nowhere that the prosecution or the witnesses sufficiently mentioned the existence of that land dispute. What is seen from the alluded evidence and proceedings of the trial court is each one (the PP, PW1 PW2 and even PW3) had a different version of the incident, different reason for the visit and details as to who are the parties to the alleged dispute. The prosecution did not establish a link between the allegedly personated Government employee and what the appellant did in the context of the case of Lameck Joseph Owiti (supra). PW3 explained duties of the assistant secretary of the Minister as, verbatimly, “act as a link, receive guest and attend to them before they meet her and arrange all safaris for the Minister”. Can a person of this position and duties “order TAKUKURU” to stop an investigation? Is the assistant secretary to the Minister empowered, by the virtue of this position, to do what the appellant allegedly did? Answers to these questions were to come from the prosecution in proving the offence that the appellant was charged with. Failure to do that means the mens rea behind such alleged impersonating was not established. In addition to the absence of a clear established mens rea, this Court has noted that what is seen from the evidence is that the investigation, if it was conducted, was prejudiced by various conclusive statements on the appellant; the statements that were reflected in the main witness PW1 and subsequent deliberations. To a large extent the evidence of PW1 and PW2 carried correspondences of various parties on the appellant and the incident in general. PW1 in various pieces of his evidence, verbatimly, adduced: “… assistant of the Minister of land told me to explain what was happening…I narrated about the visitor…the assistant told me it seems the visitor was TAPELI, not ministry of land employee…I communicated with my in charge of the region and informed her of what was happening in our office and I was ordered to take the said person, LILIAN to police for lying for further orders… … one introduced himself as mzazi mwenzake na lilian… that ELIZABETH is TAPELI, by the information given by the co parent. And she was co-operating with police…” On the other hand, PW2 in the same way adduced that: “… The said LILIAN KATAPA is known to court as ELIZABETH, I came to know the name as when at the office of TAKUKURU Arusha the man came and introduced himself as the husband of ELIZABETH MBWAMBO and we asked if he knew LILIAN KATAPA and he denied saying those names are fake names…” After all said and done, the prosecution in this case did not sufficiently discharge its duty of proving the case beyond reasonable doubt. I therefore allow the appeal, quash the conviction and set aside the sentence. I order the appellant's immediate release, unless she is being held for another lawful cause. DATED at BABATI this 28th Day of March, 2025. N. J. MWIHAMBI JUDGE COURT: Judgment delivered today in presence of the appellant and her advocate Mr. Tumsifu Mvera and Ms. Mwanaidi Chuma, State Attorney for the respondent. B/C: Ms. Anna Mathayo (RMA) is present. Right of appeal explained. N. J. MWIHAMBI JUDGE