ndililungwa tyetye vs republic 1975 tzhc 4 19 september 1975

IN THE HIGH COURT OF TANZANIA

AT TABORA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 84 OF 1975 (ORIGINAL CRIMINAL CASE NO. 691 OF 1974 OF THE

DISTRICT COURT OF KIGOMA DISTRICT AT KIGOMA BEFORE S.J. KANYAMA, ESQ RESIDENT MAGISTRATE NDILILUNGWA TYETYE.......... . . . . . . . . APPELLANT (O rig in al Accused) versus THE REPUBLIC........................................RESPONDENT ( o r i g i n a l Prosecutor) CHARGE 1 st Count: Personating a public o f f i c e r c / s 100 ( 2) of the penal code cap. 16 of the laws 2nd Counts Stealing from person of another c / s 269 (a) ' ; penal code. ’ JUDGMENT ^ MAFIGANO, JUDGE "'The appellant ^MILILUNG^A S/o TYETYE was charged with - anA...t.ri'red on ( l ) personating, a p u h l i c r ^ f f i c e r -Qnd ( 2) ‘''Stealing under s e c tio n s 100 ( 2)r and' 269 (a) r e s p e c t i v e l y o f the penal code. Upon conviction* on^ftoth counts, heJ*as ;:setit ence'd to' consd^fcive terms o f imp^sdnm^nt f o r f o u r months and two." years respectively,.- He f ' e e l s ‘aggrieved. and has appeal &i -to th is court Z from t h a t ; decision-.* .. ... -■ rV, ‘i: •• • .... - -■y.:. ?’• 9^':' •’ ' ' , The case b f the prosecution was "brief and comprised of the testimony of’- 'three witnesses, namelgr PWL constable Lenard who • ■wr, *•j'i '-; 1 i n v e s t i g a t e d ‘‘the case and charged the appellant, PIIt alias a housemate of the appellant and a lleged ly an eye w i t n e s s ,'*and - PW3 Zena who was allegedly., the, vi-ctim of the appellants m is ch ief. I w i l l r e v i e w -. t'K’e

ir' evidence as recorded by the learned tiia^. magistrate. .. Zena1s evidence was^ r<anark ably shoVt.: She told the Court that she was proceeding to hervhome 'f rom a p lace called Majengo within the U j i j i town viien she met with the appellant vtho was accompanied with another man.. She said i t was abput, • . j is J U O V - 7.30 'in the evening and that she encountered the two men near \ o r at the Tanzanite bar. . She alleged that the appellant then caught her hand and inquired 3 s to .^wfyere she was going t! at such time of the n ig h t ” . The record i s s ile n t as to whether she answered the appellant or not. She! fu rth er alleged that the appellant iden tlX i ed , him s e l f to her as a p o l i c e o f f i c e r and that b e l i e v i n g h is word.,..... she was-s,o- afraid that she produced shs*9/= and offered i t to the appellant who- accepted dbtu She was then set f r e e to continue.;^th, her journey. .H.er evidence, does’ not show that the appellant demanded anything, l e t alone any money> £rom her* And she appears, to. l^iave not bothered about that incid ent u n t i l she was called by the p o l i c e three, days l a t e r a f t e r PW2 ELias had 1 l a i d an,., information against .the .appellant re la tin g to the . incident.. She. also stated that she had known or seen the appellant b e f o r e that- i n c i d e n t *■'. - ' The account o f ! ELias

was more detailed and in some parts c o n f l i c t i n g . He claimed that the incident took p lace at about 10 p.nu and not at about -7.3© p.m. as alleged by Zena. He claimed that the appellant i d e n t i f i e d himself as the p o l i c e o f f i c e r incharge of the U j i j i - p o l i c e station and not merely as a p o l i c e • o f f i c e r as’ narrated by Zena^ /He said he.heard the appellant "vr f "? i • questioning Zena why she was walking about at such time and threatening her with arrest and remand f o r being out doorvduring prohibited h o u r s . ' " That, as shown, was not the version of Zena. He wentf on to a lle g e that the appellant’ s colleague pleaded with the appellant to l e t her f r e e provided she o'ffered anything to him, the appellant.j This was a f t e r that other man had allegedly reproved the, appellant by asking him Way he was allowing per p i e to mov# aT*ou!t -duiang-the night", to which the appellant had replied that-;;i t . ,waSi.not his., m i s t a k e ... •’ ........ 'jfiLias'. went oh to' say that he intervened a f t e r Zena had paid 9/=" to the lapp'ellant. As ;he ,well knew that the appellant was not a p o l i c e o f f i c e r he understood that p o o r ^ e n a was being taken f o r a ride. He challenged the appellant, he put i t to him - that'he was misbehaving. According to him, the appellant _ i n s i s t e d that-he wa:s a p o

l i c e o f f i c e r and accepted the. suggestion to-go-w ith him t o ' t h e p o l i c e station to v e r i f y . ' They went to. the p o l i c e station viaere they were received by P H Constable Leonard, Of course, the appellant' was not a p o l i c e o f f i c e r an* acting on t&e word of E lias, constable Lenard arrested and searched the. appellant- " ...........3 According to constable Learnard ELias alleged that the appell­ ant had posed as a p o l i c e o f f i c e r to Zena and that he had searched her and abstracted. a sum of shs.9/=. But constable ELias .could only find shs. 5/50 on the person of the appellant# However, ELias alleged that the, shs.9/= taken from Zena had been shared between the appellant and. h is companion who did not accompany them to the p o l i c e station. The .appellant. denied the a lle g a tio n s ^ . cj3oth.xZenGt and ELias. He stated; that he was with ELia1=?w: * '■■■' *a * ■' A Mwaf ri era bar and that ^ they wer^ leaving the bar, ELias accused him of ^stealing'money from .some other person. He took him .^ to the p o l i c e station where he repeated the accusation. .. , ..The. grounds raised in th is appeal may be,, taken t o g e t h e r . . .... •• •- * ... :* i -t. ’ : ' Thetr general purport vdth^wfalch the learned State A ttorn ey tfd t.th e Republic/Respondent agrees? i s summed up in the seventh grounds which s a y s i ” that the

learned t r i a l magistrate' e rre d 'in basing th e -c o n v i c ti o n s oh weafk- e v i d e n c e .n . . ,i 'Ki ■ •••. , . ,• The learned State Attorney has argued that i f the evidence of the prosecution witnesses i s true , then, ( l ) that the y ’ " **• • . _ , f’y . • f' ■■' f %••~ - , v . •• o ffe n ce of personating a p u b l i c o f f i c e r was tf§.tablish’ed» but ( 2) that tHe o ff e n c e o f ste a lin g was not proved.- He'was of the view • il . ^ • 1 Q r ■ 1t ■ '-r (■> 1- . that the o ff e n c e d i s c l o s e d was one of demanding property with" J " ’ 7, r . V" . 1 ■ ^ y .. ^ ' f‘ c - ; menaces with intent to steal* under section 292 6f the *penal code* ^hich i s minor to that of stealin g under section 265 f o r which •r ;; • .<* ■ ■ ~ . -,- the appellant was convicted.' - I would think that i f the evidence of ELias in p a r t i c u l a r i s b e l i e v a b l e , i t suggests that the appellant and h i s companion had. co*spired to deceive Zena that they were‘p o l i c e men. and that she, Zenat bad contravened the law by'walking at night, and that the donsind f a # mfcney though some wh^t’ v e i l e d , , was i m p l i c i t i n th^e exchange o f words between the two 'men, and that the avarage man would have read such demand* into* the ronarks uttered" ' by than. But', whether or not 'that conduct amounted, i n the ‘ .T V -- circumstances, to dananding

f o r property with menaces, i s a question of f a c t and in my view 'd efat a b l e . .. . I f i t was in f a c t made with nanaces and’ i f i t was s u c c e s s fu l, i t also amounted, to stealing. * *• As' was held in the Shglish c^se of R v Walton 169 ER at P. 140 3 uhich v/as approved by the Court of Appeal in Rex v Patel and another 8 EACA179 a t Pi 182, #11 ch was aft appeal from the d ecision of the High Court of Tanganyika , a demand f o r money ^4>.th menaces with intent 'to steals i f s u c c e s s fu l, riust amount to stealing . It" i s impossible to imagine a danahd f o r money with intent to steal* and the money ' : obtained‘1©n that demand -and no s t e a l i n g ” . I*| i s i •’cr* .0 vo •i • < ' * • «*• ;* • ‘v • ' . t m - n Also, i f what was alleged by ELias i s true, the f a c t s of the ‘ present case would be appreciably i d e n t i c a l with those in R v Robinson ( 1864 ) 167 ER-1482* another English case. In that case a p o l i c e constable told thecomplainant that he was about to arrest him on a charge o f 'd o i n g aft- act ^hich did not in law , amount to a i3iinifra2>,:,cJf/f ence. j."" The' oonslablddadde’d -.th^-t. i f . the complainant gave him 5 / - he "might go about h is business". hereupon the complainant offered him a sum of money. On a case being stated, the Court f o r Crown Cases Reserved held that the evidence disclosed a.d^and, (

f o r money with menaces and vath inte] to steal as well as the offencQ^of s t e a l i n g , as the p o l i c e . constable had i n f a c t fraudulently extracted or taken something - «. * valuable from the victim* without a claim, of right. That*‘however, as i n d ic a te d , i s only based on^the assumption that the prosecution* s case was true.. The learned t r i a l magistrate was o f the view .that it^ .was true* which fin d in g is.n o w being challenged by the appellant and unsupported by the Republic. And in my judgment and with a l l , respect, I am inclimed to share t h e i r opinion. Having carefu ly f *V the evid ence >. I think there are u n s a tis fa cto ry features ' ' J*' in the p r o s e c u t i o n 's case vhich detracts from i t s « * 9dence. It sounds suspect and .1 would think i i was unsafe to found a - con viction on i t . v *. ........... <**/5 In the f i r s t , p laos, there were c o n f l i c t s between the evidence of Zena, the alleged v ic tim , and that of ELias. As demonstrated, Zena* s version' was' that the incident took .place at about 7.30 p.m; but according to ELias it.happened at about 10 - p.m.lhat might have been^anmaterial. But, whereas ELias deposed that the appellant e x p l i c i t l y thretened Zena mth arrest and ' confiijement, . the evidence of Zena, as set out above, did not back up that serious a l l e g a ti o n .. Not .only

th,c,t: the a lle g a tio n of ELias'that the appellant represented himself to Zena to be the p o l i c e o f f i c e r in charge of the U j i j i police..^ station was also not borne out by. that of Zena. 'Secondly, there was a c o n f l i c t between what ELias reported, to constable Lenard and v\foat he related to the Court. Ac cording.-lo. constable Menard, ELias had reported to him that t h e :¥ppellaht-.had searched and stolen shs. 9 / - from Zena« .. . ELias did not repGat th$t story in court and i f the story' of Zena i s true, then^what-ELias reported to the constable was c l e a r ly a d i s t o r t i o n of the f a c t s , which i s a r e f l e c t i o n on h is c r e d i b i l i t y . -n ! r Thirdly, the whole prosecution* s case tends to strain b e l i e f . - Acco­ rding to the evidence an<3 i t ‘ was a common ground, ELias and .the appellant were housemates. In a l l p r o b a b i l i t i e s th e re fo re , the appellant would have known that ELias knew h i s station in l i f e , . that he was not a p o l i c e o f f i c e r . In the circumstances th e re fo re , i t does not s^and to reason that the appellant would have p©sed to Zena as a p o l i c e o f f i c e r within the prosence and hearing of ELias. ' Aad i n c r e d i b l e s t i l l , that he would have maintained in the f a c e of ELias that he was a member of the Force and accepted h is challenge to

go to the p o l i c e station to v e r i f y that a l l ­ egation. Lastly, but probably not l e a s t , i t does not appear that ELias asked Zena> the real complainant^ to accompany than to the p o l i c e station and he never bothered, and f o r that matter even the p o l i c e never both ered , to quiz the appellattt! s cQQmpaaion* who in the context of the prosecution* s case was patently a p artioeps criminis.- That was unusual. As I h ve endeavoured to show* the evidence against the q • ] appellant was apparently exaggerated, i f not distorted,! j^nd there i s , on that basas reason''to think that in some., aspects i t iaa.f quite simply - iibla'tatiy’ unt rue,"“ t b e l ie v e t h a t ,had the 1 earned.-J^’... magistrate c a r e f u l l y analysed and assessed i t , fee would have been l e f t a shade l e s s sure as to i t s truthfulness. J ’ •i • .! • In the r e s u l t , I allow th is appeal and;-.quash t h e ,c o n v ic tid The sentences are set aside and the appellant i s to be set_„free forth w ith , unless he i s l a w fu l l y held ;o.n :a .d i ffe r e n t -m a t t e r . -, ''S'cili'-'* . . . . . } « O | ’ O > ' : > . * * • * : • . i r ‘ - • d elivered . . 19th Septonber, 1975