20190920 TZHC Mbeya

THE UNITED REPUBLIC OF TANZANIA

I JUDICIARY

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA CRIMINAL APPEAL NO. 119 OF 2018 ('From The Resident Magistrate's court of Mbeya at Mbeya, Criminal Case No. 741201 6) GAUDENCE S/O SANGU....................

VERSUS THE REPUBLIC........SO ...................,'.U..US,,.,,,,.RE5PO1qDEFSJT

JUDGMENT Date of the last order: 2910512019 Date of Judgment: 2010912019 NDUNGURu; J.: In the Resideht Magistrate Court of Mbeya, the appellant was charged with four counts: 15t Fraudulent appropriation of Power contrary to Section 283 of the Penal Code, Cap 16 Revised Edition 2002, Malicious Damage to Property contrary to Section 326 (6A) (a) and (613) (a) of the Penal Code, Cap 16 Revised Edition 2002, Personating Public Officer contrary to section 100 (b) of the Penal Code, Cap 16 Revised 1 Edition 2002 and Obtaining Money by False Pretence contrary to Section 302 of the Penal Code, Cap 16 Revised Edition 2002. After a full trial he was convicted to all counts and sentenced to five years imprisonment in respect of all four counts and the court ordered the sentence to run concurrently. Aggrieved by the decision of the trial Court the appellant appealed to this Court, whereby in his Petition of appeal, the appellant raised seven ground of appeal as follows: That the trial Magistrate e'rred in law and facts when convicting the appellant relying öñ the evidnce of PW1, PW2, PW3 and PW4 without taking into consideration that the case was poorly investigated due to the fact that there was any Police Officer from Nzovwe Investigation Department who called in the trial Court to corrôboratè the allegations. That the trial Magistrate erred in law and fact when convicting the appellant

on mere relying and depending on the evidence of PW1 and PW2. That this trial Magistrate grossly misdirected himself in point of law and facts when convicting the appellant relying on the evidence of PW1 and PW2. 2 That the trial Magistrate erred in law and facts when convicting the appellant relying on the evidence of PW3 and PW4. That the trial Magistrate grossly erred in law and fact when convicting the appellant for the 1st 2nd 3rd and 4th counts up on working to evidence of PW1, PW2, PW3 and PW4. That the trial Court erred in law and fact by convicting and sentencing the appellant to five years imprisonment to each count without mentioning Section 235 (1) of CPA Cap 20 Revised Edition 2002 before passing a conviction. That the trial Magistrate grossly misdirected himself in points of law and facts for failure to analyze evidence. The facts which led to the appellant's conviction and sentence can be briefly stated as follows: on divers dates between September and October,2015 the appellant pretending to be the an officer employed by TANESCO to the residents of Ikuti sokoni area did obstruct and divert the electrical power from the original machine power to one Hamis sb Sikanyika by so doing he destroyed TANESCO meter number 3715305508 with the customer number 007586 and electrical wires valued at 1,1019,223/= that by his such acts by false pretence and with intent to

defraud did obtain 200,000/= from one Hamis Sikanyika that 3 he would connect for him electricity and provide him with new meter the fact he knew to be false. In briefly PW1 testified to the effect that he had shops of beef at Ikuti Nzovwe, Simike and Airport, he narrated that in September and October the shop of beef at Ikuti had no power, he and his neighbour who were businessmen (who were 3) selected Mr. Sikanyika to go to Tanesco to inquiry about being supplied with power service, later successfully manage to get power in. their shops and electrical metre was fixed at his shop. r. The expenses of that meter was very high that if them put the Unit of 50 within one week it cut off, they tried to solve the problem but it was difficult till one of their fellOw decided to close the shop. PW1 narrated that one day he went to the tailor of his fellow called Gerald behind of their buildings and saw power cables which camefrom Gerald's shop which were build underground then he made follow up and found they entered into a video show hail, he phoned Gerald and asked him about the illegal connection but Gerald denied, he asks a young men in the video show hall who said he was allowed by Sikanyika. Then Sikanyika upon being asked he was furious and told that he was less concerned and told Sikanyika that everybody from that day 4 must be independent in power usage; that Sikanyika should

refund their monies, later Gaudence Sangu transferred that meter from his building to Sikanyika's shop. Then he followed Gaudence for an assist of installing power in his shop whereby they negotiated the connecting money to the tune of Tshs. 600,000/= but he gave the accused Tshs. 300,000/= in front of Mawazo then in future days he gave the accused Tshs. 220,000/= at Iyunga bus stand. PW2, saw accused shifting Tanesco meter from PW1 shop to Sikanyika's shop. Since then he believed that accused was dealing with power as Tanesco employee, PW3 Tanesco Security Officer discovered that the accused was not Tanesco employee but he was connecting power to clients as unscrupulous (kishoka) as when they visit the site they found his client who show the metre which the accused has transferred. PW4 Electrician from Tanesco vis!téd the scene and recognize that metre number 30135305508 registered in the name of Sikanyika was transferred from the first shop on the left side near the Pole of Tanesco to another shop which is far from cable Pole by adding the length of the cable. PW4 elaborate that the device called GPS also gives him coordinate that the previous coordinate charged. 5 At the hearing of this appeal, the appellant appeared in person, unrepresented whereas the respondent /Republic was represented by Mr. Davis Msanga learned State Attorney. When the appellant was called upon to

submit in support of his appeal prayed to this court that his grounds of appeal be adopted by this honourable court and his appeal be allowed,, he had nothing to add. Mr. Davis Msanga learned State Attorney for the respondent/Republic did not support the appellant appeal he submitted against all grounds of appeal raised by the appellant. He argued the 1st and 5th grounds together to the effect that they are devoid of merit on the ground that PW1 has a retail shop and that on the fateful date there arose electricity problem, they reported to TANESCO and then the problem was cured; but later the problem went on he then decided to close the shop. One day he went to his neighbours Gerald where he found the electricity wire connected unlawful from his shop, when asked Gerald told him it is not him, one guy made connection but he said it is Sikanyika who allowed the connection but when Sikanyika was called he denied. Learned State Attorney continued submitting that PW1 gave the appellant Tshs. 300,000/= in the presence of one Mawazo Mwakazi PW2 6 this is at page 14 - 15 of the proceedings, the appellant was given again Tshs. 200,000/= at Iyunga bus stand. On January, 2016 the appellant met PW1 at Iwambi and apprehended where the appellant promised to refund the money but did not. The learned State Attorney for the respondent/Republic said this assertion corroborated by the evidence

of PW2 and PW3. PW3 a Regional Security Officer who went with PW1 and PW2 to the scene but the appellant had an Identity Card purported to be an employee of Tanesco which it was not true. Learned State Attorney argued that this evidence was true because people gave him money believing that he is the employee of TANESCO and what he was doing was unlawful. This evidence is what made the court convict and sentence him. On the second ground at appeal, the learned State Attorney submitted that there is no law which prohibit the person to testify on the ground that he has the purpose to serve, he said that the law under Section 127 of TEA insist that every witness is a competent and credible unless the law provides the contrary. 7 On the 3rd ground of appeal, the learned State Attorney , submitted to the effect that the ground is repetition of other grounds submitted on, he said the appellant is the one who received the money from the victims and it is the appellant who negotiated the price, the said Japhet was not involved because he had no knowledge of the transaction. On the 4th ground, the learned State Attorney submitted that PW3, the Security Officer of TANESCO one Tungulima went to the scene where they found unauthorized connection. On the 7th ground, he submitted that, the trial Court considered his defence when reaching the decision, page 8 - 9 of the proceedings read that

"but defence was very weak to shake the prosecution case/evidence' He said but this court has also the power to give weight to the evidence of defence and decide the appeal. Having submitted as above the learned State Attorney prayed that the appeal be .dismissed for being devoid at merit, it be dismissed otherwise the court should see on the appropriateness of the sentence inflicted to the appellant. When making rejoinder the Appellant submitted that the State Attorney submissions on the grounds of appeal are devoid of merit he 8 said the source of electricity of PW1 was not stated, PW1 had not said from where the appellant connected electricity. He submitted that PW1 had not testified on the way appellant had connected electricity, further he said that he demanded him 200,000/= after his job of doing wiring as electrical technician was completed. He further said he said the case was not investigated by police thus the prosecution evidence became weak to prove the charge. After a careful perusal of the proceedings of the trial Court and its judgment and in consideration of the appellant grounds of appeal which he prayed this court to adopt and the consideration of the submission of the learned State Attorney, the issue for determination is the propriety or otherwise of the analysis of evidence and points of determination. In the judgment of the trial Court which convicted the

accused person in all four counts, after a careful perusal it shows no point of determination, no reasons for the decision and weak analysis of evidence to ground conviction. From the evidence on record it is quite clearly stated that it is the appellant who transferred Tanesco power meter from the building of PW1 where it was previously installed by Tanesco to another building as testified by PW2 and PW3. Further the evidence on record as testified by PW4 who was the officer from Tanesco is to the effect that during their inspection done after the information found that the infrastructure was interfered some wire cable was added from the meter no 3015530558 which was registered in the name of Hamis Sikanyika to another building which cause loss of 1, 109,223/= to Tanesco. The evidence available in the court's record is to the effect that when doing all those activities, the appellant was identified as the employee of Tanesco and from the act the appellant obtained 200,000/= out of 520,0001= given to him for power connection as testified by PW1 and PW2 Being said and done, I am of the firm view that the prosecution had proved their case at the trial court to the standard required. I find this appeal lacks merit. I hereby dismiss it on its entirety. uR is so ordered. z aY4W_U__ D. B. NDUNGURU

JUDGE 20/09/2019 10 Date: 20/09/2019 Coram: D. B. Ndunguru, J Appellant: Present For the Republic: Ms. Sarah Anesius - State Attorney B/C: M. Mihayo I am ready for judgment - Court Unfortunately the file was misplaced for long time Judgment has been delivered today this 20th day of September, 2019 in the presence of Ms Sarah Anesius learned State Attorney and the appellant D. B. NDUNGURU

JUDGE 20/09/2019 Right of Appeal explained. 11