LAMECK OWIT JGMNT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000020341 OF 2024 (Arising from the District Court of Tarime (Hon. k Seiemani-SRM) in Criminal Case No. 000037239 of 2024) BETWEEN LAMECK JOSEPH OWITI..................................................................APPELLANT VERSUS THE REPUBLIC.................................................................................. RESPONDENT JUDGMENT OF THE COURT 25/11/2024 & 11/02/2025 Kafanabo, J.: This is a judgment in respect of an appeal that emanates from the District Court of Tarime (hereinafter referred to as the 'trial Court'), in Criminal Case No. 000037239 of 2024 challenging a judgment dated 21/06/2024. The Appellant herein was arraigned at the trial Court and charged with two counts. The first count was personating a public officer contrary to sections 100(b) and section 35 of the Penal Code Cap. 16 R.E 2022 (hereinafter referred to as the 'Penal Code'). In the particulars of the offence, it was alleged that on the 30th day of December 2022, at Kenyata Road Street within the Tarime District in the Mara Region, the Appellant falsely represented himself as a national security officer working at the National Security Headquarters of Tanzania so that he could obtain TZS. 1 20,000,000/= from one Range Boaz Range on the promise that he can assist him on his land dispute. The second count was an attempt to commit an offence contrary to sections 381 and 382 of the Penal Code. It was alleged that on the 30th day of December, 2022 at Kenyata Road Street within Tarime District in the Mara Region, the Appellant attempted to commit an Offence of obtaining money by false pretense. The Appellant pleaded not guilty to the charges levelled against him and thus the matter proceeded to a full trial. Both parties paraded witnesses they deemed necessary for their respective cases and the trial Court was convinced that the Respondent proved her case against the Appellant beyond a reasonable doubt in respect of the first Count. The Appellant was convicted of the first count of personating a public officer contrary to section 100(b) of the Penal Code but was acquitted of the 2nd count. The Appellant was thus sentenced to pay a fine of TZS 500,000/=, and in default thereof to sen/e two years' imprisonment. The Appellant being aggrieved with the said decision preferred an appeal to this Court setting forth six grounds of appeal whose substance is to the effect that: i. The learned trial Magistrate erred in law and fact by convicting the Appellant based on the evidence that did not prove and establish a prima facie case against the Appellant; ii. The learned trial Magistrate erred in law and fact, in not considering that the Appellant had already been discharged by the Tarime Urban 2 Primary Court in Criminal Case No. 20/2023 (Range Boaz Range v. Lameck Joseph Owiti); iii. The learned trial Magistrate erred in law and fact in ignoring the Appellant's claims. iv. The learned trial Magistrate erred in law and fact for convicting the Appellant under section 382 of the Penal Code which was not part of the charge sheet. v. The learned trial Magistrate erred in law and fact by making injudicious decisions and not adhering to the provisions of sections 312 (2) and (3) of the Criminal Procedure Act, Cap. 20 R.E. 2022. vi. The learned trial Magistrate erred in law and fact in convicting the Appellant to favour the Respondent. On the day the appeal was set for hearing, the Appellant entered an appearance in person and the Respondent was represented by Ms. Damari Nyange, a learned State Attorney. Submitting in support of the appeal, the Appellant submitted generally on the grounds of appeal that the trial Magistrate did not consider the law of evidence, especially sections 7, 8, and 9 of the Evidence Act, Cap. 06 R.E. 2019 on exhibits being relevant to the charge against him. The appellant further submitted that section 3(2)(a) of the Evidence Act was not considered in ensuring that the Respondent proved the case against the Appellant beyond reasonable doubt. It was the Appellant's further submission that the Magistrate also did not consider the defence case 3 which proved that the case against him had been heard and dismissed in the primary court. It was further argued by the Appellant that, during the testimony of PW3 for the purpose of evading the fact that the matter has already been dismissed, the Republic mentioned file Number TAR/IR/5316/2023 which did not exist. The truth, according to the Appellant, was that the case files in Tarime do not begin with TAR but TRM. This was contrary to article 59B(4)(a)(b)(c) of the Constitution of the United Republic of Tanzania 1977 which requires the Republic to prosecute cases justly. The Appellant also lamented that PW3 testified on fabricated information, which was a plan to justify a case that was made up against him. Moreover, it was argued by the Appellant that after the initial case was withdrawn in the Primary Court of Tarime, the Republic without considering section 131A of the Criminal Procedure Act, stayed for 10 months and rearrested the appellant, and opened a case against him because he demanded the return of his properties which were taken from him unlawfully. It was also argued that the Magistrate convicted the Appellant by mentioning the section that was not in the charge sheet. The trial Magistrate used section 382 of the Penal Code which was not part of the charge sheet that was read over to the Appellant in Court. Therefore, the Appellant argued, the Magistrate was wrong in relying on the said section to convict him. The Appellant submitted further that the trial Magistrate failed to consider section 312(2)(3) of the Criminal Procedure Act for failure to pronounce the punishment and the law she used to convict the Appellant. It 4 was also submitted that the Magistrate also did not consider the evidence of the defence in reaching her decision, and thus biased against the Appellant without justification, and without evidence proving the case against him. In the end, the Appellant prayed that the appeal be allowed, the judgment set aside, the conviction be quashed and the money he paid as a fine after the sentence be refunded to him. Responding to the submissions in support of the Appeal, Ms. Nyange, a learned State Attorney submitted that the first and sixth grounds of appeal which are about evidence in proving the case against the Appellant, the prosecution called witnesses who proved the case against the accused. As regards the 1st count, personating a public officer, PW1 and PW2 proved the offence as they explained to the Court how the Appellant identified himself to PW1 as the national security officer from the headquarters. The Appellant also said that he could help PW1 in a case that was pending in Court and the Appellant requested money to offer such help. It was also submitted that exhibit P3 proved that the Appellant was not a government employee. It was also submitted that the offence of personating a public officer was proved by the Respondent beyond a reasonable doubt taking into account that the witnesses must be trusted as explained in the case of Goodluck Kyando v. Republic 2006 TLR 363. Regarding the 2nd ground of appeal, it was submitted that the duty to prove that the Appellant was prosecuted and acquitted on the same offence was on the Appellant and not the Respondent and the Appellant was supposed to submit documents showing that he was acquitted by the 5 Primary Court. It was argued that the Appellant failed to prove that he was acquitted or that the case was dismissed in the Primary Court. On the 3rd ground of the appeal learned State Attorney submitted that section 131A of the CPA requires the charge to be instituted in Court when the investigation is complete, and the said section was complied with. When the matter was called in Court the Respondent informed the Court that the investigation was complete as indicated on page 18 of the trial Court's proceedings. In respect of the fourth ground of appeal on conviction of the accused under section 382 of the Penal Code, it was submitted that the Appellant misdirected himself. On page 10 of the judgment, it shows that the Appellant was not convicted of the said offence. The Court acquitted the Appellant under section 382 and was not convicted as alleged. It was further argued that the Court should not consider the made-up story of the Appellant as the Court's record is the correct version of what transpired and which should be relied upon by this Court, citing the case of Oscar John Bosco and Another v. Republic, Criminal Appeal 140 of 2018 to bolster the submission. On the 5th ground of appeal which is about noncompliance with section 312(2)(3) of the CPA, the Respondent's counsel submitted that the said section was adhered to as indicated on page 10 of the judgment where the Court explained it convicted the Appellant on a specific offence (first count) and acquitted the accused on the second count. 6 In winding up her submissions, the learned State Attorney submitted that the Respondent proved the case against the Appellant beyond a reasonable doubt and the evidence of the prosecution was heavier than the defence case. The defence evidence was well considered by the Court and the Court explained the reasons why the defence evidence was not given weight. It was thus prayed that the appeal be dismissed and conviction and sentence be sustained. In light of the above submissions in respect of the grounds of appeal filed, it is the turn of this Court now to determine the merits of the Appeal. Given the manner the Appellant argued and submitted in support of the appeal, and taking into account the Respondent's reply submissions, this Court is of the view that a major contention in this appeal is whether the case against the Appellant was proved beyond a reasonable doubt. In determining the appeal, this Court deems it appropriate in the first place to restate the relevant provision of the law under which the Appellant was charged. As alluded to herein above the Appellant was charged with the offence of personating a public officer contrary to section 100(b) of the Penal Code Cap. 16 R.E 2022. The said section reads: "Any person who- (a) N/A (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, 7 is guilty of an offence." In light of the above section 100(b) of the Penal Code, the ingredients of the offence of personating a public officer are twofold. One, a person must falsely represent himself to be employed in the public service (a public officer) and two, he who personated public officer must assume to do any act or attend in any place for the purpose of doing any act by virtue of his employment. This section makes it clear that the offence of person personating a public officer is committed in any of the two instances or occurrences; one is when that person who personated a public officer assumes to do any act by virtue of his employment, or, two he attends in any place for the purpose of doing any act by virtue of such employment. This further means that a person cannot personate a public officer if he plans to do an act which is not 'by virtue of his employment' (that is by virtue of the office he purported to be employed in). By way of illustration, a person cannot be personating a public officer if he introduces himself as a police officer and assumes to assist a person to pass their examination at a given school, which is basically within the mandate of a person employed in public service as a teacher, not by virtue of a someone being a police officer. Moreover, 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 8 any act that is usually and ordinarily done by the public officer by virtue of such employment. In the present case, the particulars of the charge sheet indicate that the Appellant falsely represented himself as a national security officer working with the national security headquarters so that he could obtain TZS 20,000,000/= so that he could assist PW1 with his land dispute. Moreover, the evidence adduced indicated that the Appellant introduced himself as a national security officer so that he could help PW1 in respect of the Case that was pending in the High Court of Tanzania, at Musoma. The charges under section 100(b) of the Penal Code could be more appropriate if the Appellant had personated to be a judicial officer, and it would make more sense to charge him under section 100(b) of the Penal Code because assisting PW1 with his case would amount to assuming to do any act (assist PW1 with his land case) by virtue ofhis employments attend in any place for the purpose of doing any act by virtue of such employment (as a judicial officer). Also, see this Court's decision in Hamis Mathias Nduva vs The Republic (Criminal Appeal No. 176 of 2023) [2024] TZHC 5814 (18 June 2024) the Court when interpreting section 100(b) of the Penal Code held that: "The above provision lays two elements of the offence, one, represents to be a person employed in public service and two, assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment" 9 It follows 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'. In summary, 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 (i.e. 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 (i.e. he demanded or obtained something of value) or intimidated and/or harmed others acting in such pretended character. On the trial Court's record, no facts or evidence was led to show that the Appellant assumed to do any act by virtue of his alleged position as a national security officer, or that the Appellant attended at any place for the purpose of doing any act by virtue of being a national security officer. Moreover, the particulars of the charge sheet would have been relevant if the land dispute was at the level of administrative organs where security officers are directly involved in the decision-making process. Therefore, the 2nd ingredient of the offence as provided under section 100(b) of the penal Code is wanting from the particulars of the 1st count. The said discrepancy makes 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, it is a finding 10 of this Court that 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. The other important aspect of this appeal is the issue of identification of the Appellant leading to his arrest and his arraignment in Court. A thorough review of the trial Court's record by this Court has noted a disturbing irregularity as regards the Appellant's identification. According to the testimonies of PW1 and PW2, on 30/12/2022 the Appellant went to the PWl's shop and introduced himself as Lameck Owiti, a national security officer from headquarters, and promised to help PW1 on a land case that was pending in Court if he is given TZS 20,000,000/= and since PW1 had no money at that time, the Appellant left. This is the only occasion when PW1 and PW2 saw and met the Appellant whom they did not know and never met before. The 2nd occasion they met the Appellant was in Court during the hearing of the case and purportedly identified the Appellant at the dock. The Respondent's case at the trial Court did not lead to any evidence on how the Appellant was identified or described by PW1 (the Complainant) to the police when he went to report the matter (that is prior description of the Appellant). It is also not on record how the police officers who arrested the Appellant knew that he was the one who went to the PWl's shop falsely representing himself as a national security officer. The testimony of PW3, the investigator of the case, was of no help in the identification of the li Appellant as he found the accused in custody and he did not offer any explanation of how the Appellant was identified and arrested. Moreover, the arresting officers were not called to testify and there is no explanation in that respect. The arresting officers were material witnesses in this case because the Court would have benefited from their testimony on how they identified the Appellant as a person who falsely represented himself as a national security officer to PW1 in the presence of PW2. Under the circumstances, much as this Court is alive to the provision of section 143 of the Evidence Act on the liberty of the prosecution to call any number of witnesses to establish a particular fact, this Court is also entitled to draw an adverse inference against the Respondent, as it hereby does, for failure to parade a key witness. See the cases of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020), Aziz Abdallah v. R [1991] T.L.R 71 and Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) where the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavorable to the person who withholds it' It is also on record that no identification parade was called by the police in order for PW1 and PW2 to identify the Appellant as the person they were complaining against, the prosecution simply relied on dock identification without justification. The Respondent did not provide any evidence 12 explaining how they decided to arrest and charge the Appellant with the offence committed at PWl's shop. The importance of the identification parade can be construed from the Police General Orders (PGO) 232, paragraph 1 of the said PGO reads as follows: "When it is necessary to ascertain whether a person detained in police custody can be recognised by witnesses, the police must ensure that the proceedings are so conducted that unfairness to the person concerned cannot afterward be alleged, otherwise the value of the identification as evidence will depreciate considerably.” In the present case, the police needed to ascertain whether the Appellant arrested and detained in police custody could be recognized by witnesses before the witnesses were called to testify in Court. However, this was not done. In the case of Annes Allen vs The Director of Public Prosecutions (Criminal Appeal 173 of 2007) [2010] TZCA 158 (26 February 2010) the Court of Appeal observed that: "This dock identification evidence, as no identification parade was conducted, ought to have been given little weight; see, for instance, Mussa E/ias and two others v Republic, Criminal Appeal No. 172 of1993, CAT (unreported) This Court said: "...Furthermore, PW 3's dock identification of the 3rd appellant is valueless. It is a well-established rule that dock identification of an accused person by a witness 13 who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial”. This is stiii good law and we shall strictly adhere to it." Moreover, in the case of Joseph Mkumbwa & Another vs Republic (Criminal Appeal 94 of 2007) [2011] TZCA 118 (23 June 2011) the Court obsen/ed that: It has been held that dock identification or identification in police custody without a previous identification parade is of little or no value (see MUSSA ELIAS AND 2 OTHERS V R. Criminal Appeal No. 172 of 1993 and OMARY ISSA V R. Criminal Appeal No. 1 lof1989 (both unreported)" Given the authorities referred herein above, this Court finds that there is no evidence on how the Appellant was identified and arrested, and thus improperly identified as the person who supposedly committed the offence he was charged with. In light of the above, this Court is of the view that the Respondent failed to prove the offence of personating a public officer contrary to section 100(b) of the Penal Code beyond a reasonable doubt. Under the circumstances, the conviction of the trial Court is hereby quashed, and the judgment is also quashed and set aside. Further, the sentence imposed on the Appellant is also quashed and set aside. Moreover, the Appellant be refunded the amount of money he paid as a fine in lieu of imprisonment. 14 It is so ordered. d at Musoma this 11th day of February 2025. K. I. Kafanabo Judge e Judgment was delivered in the presence of Mr. Michael Kayombo, a learned State Attorney for the Respondent, and the presence of the Appellant. Right of Appeal explained. K. I. Kafanabo Judge 11/02/2025 15