CRIMINAL APPEAL NO 509 OF 2022 JUMANNE RAMADHANI GANGE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA fCORAM: KWARIKO. J.A.. GALEBA. 3.A. And MASOUD. J.A.’) CRIMINAL APPEAL NO. 509 OF 2022 JUMANNE RAMADHANI GANGE.......................................... APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Kigoma) (Mlacha. 3.1 dated the 12th day of August, 2022 in fRMI Criminal Appeal No. 01 of 2022 JUDGMENT OF THE COURT 22nd & 29th April, 2024 KWARIKO. J.A.; This appeal is against the decision of the High Court of Tanzania at Kigoma (the High Court) which partly upheld the decision of the Court of Resident Magistrate of Kigoma at Kigoma (the trial Court). Initially, the appellant, Jumanne Ramadhan Gange was arraigned before the trial court with three counts of personation contrary to sections 369 (1) and 35, and one count of false swearing contrary to section 107 all of the Penal Code [CAP 16 R.E. 2019; now R.E. 2022] (henceforth "the Penal Code"). It was alleged by the prosecution in the first count that, on the unknown date in 1996 with intent to defraud, the appellant falsely represented himself as a student known as George Lucas to one Joseph Simon Zakeo, the Secondmaster of Nsumba Secondary School of Mwanza (Nsumba School). In the second count, the accusations were that, on unknown day in 2005 at the Director's Office of Kigoma Ujiji Town Council the appellant falsely represented himself as George Lucas. Whereas in the third count the allegations were that, with intent to defraud the Headmaster of Tabora Girls' Secondary School (Tabora School) on unknown date in 2008 he falsely represented himself to be George Lucas, a form four candidate for the National Examinations Council of Tanzania. Finally, in the fourth count the appellant was accused of making false affirmation on 13th March, 2000 before the District Magistrate of Kigoma District Court regarding the names of George Lucas. The appellant denied the charge whereby a full trial was conducted and, in the end, he was convicted and sentenced to pay a fine of TZS. 1,000,000.00 in respect of each count or to imprisonment of two years in each count. The terms of imprisonment were ordered to run concurrently. Aggrieved by that decision, the appellant appealed to the High Court which partly allowed his appeal. In its decision, the High Court allowed the appeal in respect of the first and second counts, and upheld conviction 2 and sentence against the third and fourth counts. The present appeal is against that decision. At the trial, the prosecution case was built by a total seven witnesses. The prosecution evidence revealed that, following allegations that the appellant who was an employee at Kigoma Ujiji Town Council (now Kigoma Ujiji Municipal Council) in the capacity of Mtaa Executive Officer III was using the name of George Lucas while in fact that was not true, the office of the Prevention and Combating of Corruption Bureau (PCCB) Headquarters in Dar es Salaam directed for investigation into the matter. Accordingly, Martin Erasto Maonyesho (PW7) an investigator from PCCB Kigoma was assigned to delve into the case. In the course of investigation, PW7 accessed a personal file of the appellant from the office of Executive Director, Kigoma Ujiji Municipality. In that file, there were appellant's confirmation letter and a copy of Form Four results slip from Tabora School for re-sit examinations. At Nsumba School, PW7 was given admission register which indicated that the appellant was registered there in 1996 and graduated in 1999. According to the prosecution, the name George Lucas belonged to George Lucas Kasase who testified as PW1. He revealed that his primary education was between 1988 and 1994 before he joined Kigoma 3 Secondary School (Kigoma School) between 1995 and 1998. Further, between 1999 and 2001 he schooled at Uyui Secondary School for his advanced certificate of secondary education. He also pursued a diploma course at Tabora Teachers' College between 2004 and 2005. PW1 stated that in all these stages he was using the name George Lucas and was the only student who used that name at Kigoma School. His school, college and birth certificates were admitted in evidence as exhibit PI collectively. PWl's evidence was supported by his father Lucas Kasase Kachila (PW3). PW2, Charles Magembe, a Headmaster at Kigoma School supported PWl's evidence and added that PW1 joined the school from Kazilamihunda Primary School and he never shifted to another school until he completed form four. He tendered a student assessment form (TSM9) and the national examination results of Kigoma School for the year 1998 which were admitted as exhibit P2 collectively. On his part, Josephat Simon Zakeo (PW5) a Secondmaster at Nsumba School testified that, George Lucas joined that school in 1996 at form two stage having shifted from Kigoma School and he graduated in 1999. A school admission register was received in evidence as exhibit P5. PW5 identified the appellant as the said George Lucas former student at Nsumba School. Further, Beneti Niralp (PW6), a Human Resource Officer with Kigoma District testified that the appellant was employed as Mtaa Executive Officer III in 2005 with the Kigoma Ujiji Municipal Council in the name of Jumanne Ramadhani Gange. He added that, his academic certificates carried the name George Lucas but he had changed that name to Jumanne Ramadhan Gange. A letter of employment, the confirmation letter and affidavit regarding change of name were admitted as exhibit P6 collectively. In his defence, the appellant who testified as DW1 denied the allegations against him. He explained that the name George Lucas was given to him by his uncle one Lucas George Nsongelezi, his guardian who also took him to school. The appellant stated further that, he started his education at Chankuru Primary School within Uvinza District between 1989 and 1995 and joined Nsumba School for secondary education from 1996 to 1999. He denied to have either shifted from Kigoma School or suspended studies while at Nsumba School, and charged that the prosecution did not prove those allegations. The appellant's certified copy of secondary school leaving certificate was admitted as exhibit Dl. In his further testimony, the appellant stated that in the year 2000 he changed his name to Jumanne Ramadhani Gange by swearing an s affidavit (exhibit P6) as he had returned to the care of his biological parents. He admitted that he was employed in the name of Jumanne Ramadhan Gange though his school certificates had the name of George Lucas. And further that he re-sat for form four examinations at Tabora School using the name of George Lucas. The evidence concerning the appellant schooling at Nsumba School was supported by his former classmate Mbeko Mirami Shabani (DW2). DW2 also denied that the appellant had either shifted from Kigoma School or ever suspended studies due to sickness. The trial court found the charge to have been sufficiently proved against the appellant and accordingly convicted him on all four counts. He was sentenced as indicated earlier. The High Court allowed the appellant's appeal in respect of the first and second counts which it found not to have been proved to the required standard, while sustaining conviction in respect of the third and fourth counts. Still aggrieved, the appellant has lodged this appeal on the following three grounds: "1. That, the Hon. Judge erred in law and facts in sustaining the appellant's conviction and sentence on the J d and 4h counts of personation and false swearing respectively despite ofreasonable doubts in the prosecution evidence. 2. That, the Hon. Judge erred in law and facts by not considering the exhibit D1 while the prosecution witnesses in their testimonies mentioned the appellant's leaving certificate and that the same was not objected in its admissibility or challenging its weight at the time of hearing. 3. That, the Hon. Judge erred in law and facts by disregarding the appellant's defence thathe was given the name GEORGE LUCAS by his unde while the prosecution side had no evidence to refute that the appellant was studying primary school at Chankulu Primary School in Uvinza District away from his biological parents' home in Kigoma Municipality and that he was under guardianship of his unde Lucas George Nsongelezi who was the husband of appellant's maternal aunt one Ntendwa Nzuaia (deceased)." At the hearing of the appeal, the appellant who was in attendance had the services of Mr. Sadiki Aliki, learned advocate while the respondent/Republic was represented by Mr. Shabani Juma Masanja, learned Senior State Attorney assisted by Mses. Naomi Joseph Moilel and Edna Jackson Makala, both learned State Attorneys. When we invited him to take the stage, Mr. Aliki argued the grounds of appeal generally. He submitted that the High Court erred to uphold the conviction in respect of the third count because the prosecution did not tender evidence to show that there was another person with the name of George Lucas who was to re-sit for examinations at Tabora School apart from the appellant. Mr. Aliki argued further that, the appellant explained why he used the name of George Lucas at Tabora School which was because it was the name featuring in his academic certificates. As regards the fourth count, the learned counsel submitted that the appellant swore an affidavit to change the name from George Lucas to his given name Jumanne Ramadhan Gange in conformity with his religion of Islam and upon his parents' advice. On the basis of his submission, Mr. Aliki urged us to allow the appellant's appeal, quash the conviction and set aside the sentence with an order for refund of the TZS. 2,000,000.00 the appellant had paid as fines in respect of the third and fourth counts. On the other hand, Mr. Masanja for the respondent informed the Court at the outset, that he Was not opposing the appeal. He argued that the prosecution did not prove the third count because the charge did not mention the name of the person alleged to be the headmaster of Tabora School alleged to have been defrauded by the appellant as required by section 369 (1) of the Penal Code. As regards the fourth count, the learned Senior State Attorney submitted that there was no evidence to prove that Jumanne Ramadhan Gange which the appellant assumed was not his name in order for the offence to be said to have been committed. Basing on the foregoing, Mr. Masanja argued that the prosecution case was not proved beyond reasonable doubt and thus urged us to allow the appeal, quash the conviction and set aside the sentence with an order for refund of the fine the appellant had paid earlier on. Following the stance expressed in the reply by the respondent's counsel, Mr. Aliki had nothing useful to add in rejoinder. We have considered the submissions made by the learned counsel for both parties. The issue which calls for our determination is whether the charge against the appellant was proved beyond reasonable doubt. In the determination of this issue, we propose to deal with the grounds of appeal generally and specifically to decide whether the four counts laid down at the appellant's door were proved to the standard required in law. Although the appeal is against the decision of the High Court which upheld 9 conviction in respect of the third and fourth counts, we find it apposite also to revisit the evidence supporting the first and second counts since the alleged offences are interrelated. It is a salutary principle of law that, he who alleges existence of a certain matter must prove. Section 110 of the Evidence Act [CAP 6 R.E. 2022] which is relevant here provides thus: "(1) Whoever desires any court to givejudgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. " In a criminal case, the burden of proof lies squarely on the prosecution and generally, it never shifts to the accused. Some of the Court's decisions in respect of this principle include Nchangwa Marwa Wambura v. Republic, Criminal Appeal No. 44 of 2017, Simon Edson Maundi v. Republic, Criminal Appeal No. 5 of 2017 and Mohamed Haji Ally v. Republic, Criminal Appeal No. 225 of 2018 (all unreported). It is with this principal in mind that we are set to determine the issue we have posed above. 10 To start with, we are in agreement with the learned Judge of the High Court that the first count was not proved. This is because, the person to whom the appellant was alleged to have falsely represented is Josephat Simon Zakeo being the Secondmaster of Nsumba School. This person testified as PW5 but in his evidence he said that in 1996 the year of the alleged commission of the offence he was not present at the said school. He explained that he was a teacher at Nsumba School between 1990 and 1993 and left before he returned in 1997. Therefore, the allegation that the appellant falsely represented to Josephat Simon Zakeo, Secondmaster of Nsumba School in 1996 was not proved. Further, the prosecution alleged that the appellant shifted from Kigoma School and joined Nsumba School in 1996 while in form two, and completed his form four education in 1999. If that was the case, simple calculation shows that the appellant was supposed to complete form four in 1998. The prosecution explained this gap to the effect that the appellant had suspended studies for one year due to illness. However, the allegations that the appellant had shifted to Nsumba School in form two and had suspended studies for one year were not at all proved by documentary evidence. We thus find the appellant's explanation feasible that he joined Nsumba School for secondary education in 1996 and ii completed in 1999 which evidence was supported by DW2 and his school leaving certificate (exhibit Dl). We have gone through this document and found that it was a certified copy and was not opposed during the trial. Therefore, the trial court erred when it expunged this document in its judgment for the reason that the appellant did not lay foundation as to why he tendered a photocopy instead of the original certificate. It is our considered view that this kind of reasoning ought to be raised when the same was introduced in evidence at the trial. However, the appellant explained that the original certificate was lost that is why he tendered its copy. This was indeed the required foundation. The prosecution also did not object to the tendering of the certificate. This applies to the High Court which rejected the document for the same reasoning. This also answers the second and third grounds affirmatively. We equally agree with the High Court that the second count was not proved. This is because when the appellant applied and was offered a vacancy at the Kigoma Ujiji Municipal Council in 2005, he used the name of Jumanne Ramadhan Gange which he assumed since 2000 when he was sworn to change his name from George Lucas. Therefore, there is no evidence to prove the allegation in the second count that the appellant represented himself before the council as George Lucas. 12 As regards the third count, the appellant is accused of fraudulently representing himself as George Lucas when he re-sat for examinations at Tabora School in 2008. We are of the view that, since the prosecution failed to prove that the appellant had fraudulently used the name of George Lucas, it cannot be said that he falsely represented himself using that name at Tabora School. After all, the appellant explained that he used the name George Lucas in 2008 despite changing his name to Jumanne Ramadhan Gange in 2000 as his school certificates had the former name, which evidence was never controverted. This count was not proved. The appellant is accused in the fourth count that he defrauded the district magistrate at Kigoma District Court when he took oath to change his name from George Lucas to Jumanne Ramadhan Gange. Again, since the prosecution failed to prove that the appellant's name was not George Lucas, it cannot be said that the appellant falsely represented himself to the district magistrate with that name. This count was not proved and it answers the first ground of appeal in the affirmative. From the above discussion, we are settled in our minds that, the prosecution did not prove the charge against the appellant beyond reasonable doubt. This appeal has merit and we hereby allow it, quash the conviction and set aside the sentence against the appellant in respect 13 of the third and fourth counts. We further order refund of the fine of TZS. 2,000,000.00 paid by the appellant in respect of those counts. DATED at KIGOMA this 27th day of April, 2024. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 29th day of April, 2024 in the presence of Mr. Sadiki Aliki, learned counsel for the appellant and Mr. Shabani Juma Masanja, learned Senior State Attorney assisted by Ms. Naomi Joseph Mollel, learned State Attorney for the Republic/Respondent, is hereby certified as a true copy of the original.