Nicholaus Busisi Boniphace

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL NO. 202406112000015986 NICHOLAUS BUSISI BONIPHACE .............................. APPELLANT Versus REPUBLIC .............................. RESPONDENT (Appeal from the Judgment of the District Court of Shinyanga at Shinyanga) (Hon. C.S. Langau - SRM) Dated the 27th May 2024 in Criminal Case No. 144 of 2023 ………………… JUDGMENT 13th November & 13th December, 2024. F.H. MAHIMBALI, J,: The appellant is the eldest surviving son to the deceased father known as Boniphace Kulunalila Mzungu but also alleged to be originally known by the names of Busisi Binyara, Kulunalila Mzungu amongst others. That in his lifetime, the deceased appears to have been blessed with several 1 properties including a house in plot No. 223 Block EE – HD located at Ngokolo Mwinamila, which he registered in the name of Busisi Binyara. That sometime in between, the appellant attempted processing the certificate of right of occupancy identifying himself as the said Busisi Binyara before the Land Officers of Shinyanga Municipal Council (PW3). The attempts sparked the attention of the remaining siblings accusing him of forgery with intent of dispossessing the deceased’s property without the sanction or knowledge of their father or the administrator of the deceased estate, thus the basis of his prosecution in criminal case no. 144 of 2023 at Shinyanga District Court, in which out of the three counts accused of (personation, uttering false documents and procuring execution of documents by false pretence), the appellant was convicted and sentenced to the first count of personation and sentenced to pay a fine of 200,000/= or serve a three years jail term; he opted for the fine payment. Protesting for his innocence, the appellant has preferred this appeal armed with a total of nine grounds of appeal, but dropped two and remained with seven grounds. However, in digest to all the remaining seven grounds of appeal all may boil into one main ground that the prosecution case was 2 not established beyond reasonable doubt on the charge of personation convicted with which is contrary to the law. The facts of the case may be summarized this way as per evidence gathered and which is in record. That the appellant is the eldest son amongst the surviving issues of the deceased Boniface Kulunalila Mzungu. Others being Amos Makula, Dominic Boniphace Mzungu (PW1), Anastazia Boniface Mzungu, Paul Boniface Mzungu. That the late, Busisi Binyara after being baptized in 1985, he was named Boniphace. So he assumed the name of Boniface Kulunalila Mzungu. Other names he was using prior to his death included: Busisi Binyara, Kulunalila Mzungu and Boniface Kulunalila Mzungu. Therefore, his children born before or after his baptism could apply any of the names he was using at a given time. That during his lifetime, the deceased amongst others possessed a house in plot no. 223 Block EE located at Ngokolo Mwinamila – Shinyanga which was registered by his name – Busisi Binyala (see the evidence of PW1, PW2 and PW4). It appears that the appellant had assumed himself the name of Busisi Binyara and personated himself before Land Officers (PW3) declaring the documents in relation to Plot no. 223 Block EE located at Ngokolo Mwinamila – Shinyanga which was registered by his name – Busisi Binyala got lost and that the said Busisi 3 Binyara is him (relying on a letter from his local leader of Ngokolo introducing him as such which letter was admitted as exhibit P4). On this personation, the charges were preferred against him. On the other hand, the appellant Nicholaus Busisi Boniphace disputes the said claims, saying that the said name Busisi Binyara is also his, and that his father was never named so, and that the said house in plot No. 223 Block EE – Ngokolo is his as given to him by his father. That the name Busisi Binyara is his as he used it at Primary School (Bugoyi) and the same name was used to register the said landed property registered in plot No. 223 Block EE – Ngokolo. Thus, no forgery, no personation as alleged. Upon digest of the prosecution and as well as the defense testimony at large, the trial court dismissed the prosecution’s case on two counts (i.e count number two and three) and accordingly convicted and sentenced him of the first offence as stated above. Thus the basis of this current appeal. During the hearing of the appeal, Mr. Frank Samwel learned advocate represented the appellant whereas Mr. Kadata learned state attorney represented the respondent. In his submission in support of the appeal, on the 1st, 4th, and 6th grounds of appeal, he argued that the appellant was charged with three 4 offences at the trial court but convicted only with the first count - of personation. The particulars of it state that he had personated himself as Busisi Bunyara while he is not. It is his submission that the trial magistrate did not evaluate well the said evidence explaining the commission of the said offences. As per PW1's testimony - Dominic Boniface (page 6 of the typed proceedings), he had stated that the name Busisi Bunyara is the name of his father. And that the appellant's name is Nichloaus Boniface. This witness had tendered two exhibits: P.1 and P2 which are Judgment of Shinyanga Urban Court - Probate No. 34 of 2022 (P1). Exhibit P.2 was Clan minutes' meeting proposing him to be administrator of the said estate. It is his submission that in reading the duo exhibits, it is clear that the deceased was known as Boniface Kulunalila Mzungu. Even at page 9 of the said judgment declares so. Thus, the name of Busisi Bunyara is a strange name. Reading P.2 exhibit - Clan minutes' meeting also names the deceased as Boniface Kulunalila Mzungu. Nowhere, the clan meeting members, named him as Busisi Binyara. Therefore, there is no supporting evidence to that effect, the deceased being known by the name of Busisi Binyara, argued Mr. Frank Samwel. 5 As if this is not enough, as per clan meeting's minutes, those who were recorded absent for reasons amongst them was: Busisi B. Mzungu (item no.5). During cross examination on this fact of name, the PW1 had admitted that the name Busis B. Mzungu is the same appellant (see page 14 of the typed proceedings from page 14). There was neither evidence that their father is also called Busisi Bunyara but the appellant. That said, the PW1' s evidence is unreliable as is full of falsities. Furthermore, at page 13 of the typed proceedings, it is undisputed that the appellant was also known as Busisi Kulunalila. That even PW2 also admitted so at page 18 of the typed proceedings that the accused had studded at Bugoyi and was known as Busisi Kulunalila and that their father was known as Binyara. Therefore, connecting the dots, he is also called Busisi Binyara. So, had there been a proper evaluation of evidence, the trial magistrate would have not made such an erroneous decision. By the way he admitted that the said Busisi B. Mzungu is the appellant. He submitted further that even the issued baptism card of the deceased had no name of Busisi but Boniface Kulunalila Mzungu. So even this PW2 also lied on the name of his father. Even PW3 - Land officer had well testified that the appellant is Busisi Binyara. See page 19 of the typed 6 proceedings. Exhibit P.3 which is a letter had been addressing the appellant as Busisi Binyara. Therefore, unless there is a full rebut, the appellant was also known as Busisi Binyara. As there was a failure by the prosecution to call a material evidence, there is a rebuttable adverse inference - See Ahamad Salum Hassan @ Chinga V. Rep, Criminal Appeal No. 386 of 2021x, CAT at DSM at page 12. In essence all the three admit that the said plot was once given to Ephraimu but changed to Busisi Binyara who is the appellant. The above notwithstanding, it is Mr. Samwel’s submission that, the defense testimony was not considered at all. Therefore, there was a failure by the trial magistrate to evaluate the evidence in record. With this submission, he stated that the grounds no. 1,2,4,5,6 were done with. With the third and seventh grounds of appeal, his insistence is on lies in evidence that digesting all the prosecution's evidence with their witnesses, almost all that was stated by the prosecution's witnesses was nothing but lies. As it was lies, there is nothing worth of credit in it as stated in the case of Said Ahmad Said V. Republic, DC. Criminal Appeal No. 8 of 2023, HC - Dsm at page 5. 7 With this submission, he humbly prayed that this appeal be allowed, conviction be quashed and sentence be set aside. Resisting the appeal and responding jointly the 1st, 4th and 6th grounds of appeal as argued jointly, Mr. Kadata firstly asked this court not to consider them at all as submitted. He argued that, all that the witnesses had testified at the trial court, was properly recorded and well analyzed by the trial court. The prosecution's evidence is well captured and reflected from page 12 to 15 of the typed judgment. As if this is not enough, issues of the case were well framed. Thus, the argument that the trial magistrate had erred in reaching the court's verdict, is unjustifiable as per evidence in record. This notwithstanding, this court being the first appellate court having all powers to step into the shoes of the trial court and reach its own findings (See the case Haika Chesam Mgau v. Rep, Criminal Appeal no. 37 of 2021), will appreciate whether the prosecution’s case was established beyond reasonable doubt or not. That as per clan meeting's minutes (P2), it is not true that this exhibit didn't discuss the issue of Busisi Binyara. This exhibit P.2, the name of Busisi Bunyara was an old name of the deceased Boniface Kulunalila Mzungu and not of the appellant Nicholaus Busisi Boniphace. That those who did not 8 attend included Busisi B. Mzungu and that meant the appellant, is just appellant’s counsel own a speculation. At page 14 of the typed proceedings and at page 10 and 11, PW1 had well stated that Busis B, as per that record did not mean Busisi Binyara but Busisi Boniface who is the appellant. Thus, what has been averred by Mr. Frank Samwel is a mere submission from the bar and not court's records. In essence, court’s records must speak for themselves and not given interpretation by someone. It is his submission that the prosecution's case at the trial court was well established and beyond reasonable doubt. Under section 369(1) of the Penal Code, for the offence of personation, the Republic was supposed to establish two things: that the appellant had an intention to defraud and secondly that he had personated as that other person - dead or living. In this case, the appellant had been established personating himself as Busisi Binyara while he knew well that it was not his name but of his deceased father or that didn’t mean him. The Republic had brought oral testimony and documentary exhibits (P.4) which was a letter of offer. Pw1, PW2 and PW4 who are siblings to the appellant had testified well that the name Busisi Binyara was the name of their deceased father, and not of the appellant. P.4 exhibit tells that offer was in the name of Busisi Binyara and that PW3 had 9 testified how the appellant went to the Land Office with an affidavit of name. When he scrutinized it, he noted that the appellant was born in 1969 and the letter of offer was issued to Busisi Binyara in 1983. Thus, by that year, the appellant was just a minor. With this suspicion, when he wanted him for clarification, he never returned (page 20 &21). PW3 didn't know the said Busisi prior. So he could not at first suspect the said letter. Therefore, it is not true that this witness had known the said Busisi Binyara as the appellant. For these reasons, the appellant had personated himself unlawfully for a criminal offence. As to the third ground of appeal, that the prosecution's evidence had told lies, is not true. In consideration of the fact that every witness must his testimony be believed unless dully discredited as championed in the case of Goodluck Kyando that there must be credence to witnesses. Since it is the trial court which is in the better position to assess a witnesses' demeanor, no other court or officer is privileged with that. It is trite law that it is the Republic which is duty bound to establish its case beyond reasonable doubt, but defense on the other hand has a duty to cast a reasonable doubt against the prosecution's evidence/case. In the current matter, the prosecution had brought exhibit P.4 which established 10 that the said land was being owned by Busisi Binyara where PW1, PW2 and PW4 as per their testimony was the father of the appellant and PW1. Since the appellant had claimed he is Busisi Binyara, he was supposed at least to tender evidence that he is Busisi Binyara and not Nicholaus Busisi Boniphace. For his failure to tender any evidence to contradict or challenge the prosecution's case, makes the prosecution's case remain intact and unchallenged, insisted Mr. Kadata. Lastly, with the seventh ground, he countered it as being meritless as per section 143 of the TEA, there is no particular number of witnesses required to prove a particular fact. That there was no police officer in place or local leader to testify the same, has no significance value so long as the said fact of personation was well established. Therefore, as there was no anything of material evidence from the mentioned persons (police and local leader), it was not essential to call them as all the elements of the charged offences were dully established. In his considered view, all these (PW3 and the Chairman) were acting on the information as given to them by the appellant. Therefore, the letter by the said chairperson was acting on the information as given to him by the appellant himself and not otherwise. 11 Having submitted all this, it is Mr. Kadata’s humble submission that the prosecution's case was well established as per law even in the absence of the testimony of the said local leader and the police officer. On this, he pressed that let this appeal be dismissed for want of merit; conviction and sentence be maintained and that this Court to issue necessary orders as it may deem fit, proper and just to grant. In rejoining, firstly, Mr. Samwel clarified that what was referred as exhibit P.4 by Mr. Kadata - S/A might be the same as exhibit P.3 as per proceedings in page 22 of the typed proceedings. However, he rejoined that, the witness whom he was making reference to, is Mr. Yohana Munisa is Chairperson and not a police officer. As he was misled, he was an important witness to tell the court how he was misled and believed him to be known so - Busisi Binyara. It is in those circumstances, he remained an important witness for his testimony, clarified Mr. Samwel . The argument that the appellant was supposed to tender exhibit to cast doubt on the said prosecution's evidence, that is monotonous argument as that was sufficiently done and also added other credible evidence. He maintained that there was no plausible evidence by the prosecution that the deceased was also known as Busisi Binyara. That the deceased was also 12 owning a property by name of Busisi Binyara was unestablished fact. By the way, the documentation done in the name of Busisi Binyara was done in the life time of the deceased father. What was the intention of that defrauding if at all it was meant so, queried Mr. Samwel, learned advocate. That to him, to the best of the facts of the case, the appellant's father was never known as Busisi Binyara but that name is the appellant's name. Thus, the contest of these names now is nothing but just calculated move to deprive the appellant's given property. That the appellant had gone with the affidavit of names was not his own motion but the instructions of the PW3 (see page 20, para3 of the typed proceedings). That there was any clarification, is not reflected anywhere in the proceedings. He added that with the issue of names Busisi B. Mzungu, he clarified to stand for Busisi Binyara Mzungu. Him having clarified all this, it is his humble submission that this court be pleased to allow this appeal. That was all. Having heard the submissions from both parties, it is now high time to determine this appeal, and the crucial question to ask is whether the appeal 13 is brought with sufficient cause for this court to interfere with the trial court’s findings. This being a criminal charge, it is the trite law that the prosecution in the Common wealth jurisdictions (Tanzania inclusive) is placed with a heavier burden to prove their case than that of the accused. See Mohamed Saidi Matela V. Rep, (1995) T.L.R 3 and John Makolobela & 2Others V. Rep, (2002)T.L.R 296. See also Joseph John Makune vs. Republic [1986] TLR 44 at page 49 and Mohamed Haruna@ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. This is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] (The evidence Act). Secondly, is the principle that the proof of the said charge is beyond reasonable doubt (See section 3(2) (a) of the Tanzania Evidence Act, Cap 6. Scanning the prosecution’s evidence as well as the defense testimony in this case, it is nowhere suggesting that the appellant is anywhere registered or known as Busisi Binyara save the letter from local leader of 14 Ngokolo to Police (part of exhibit P.4). However, it is the evidence of PW1, PW2 and PW4 that the name Busisi Binyara is also the known name of their deceased father. The appellant’s names abundantly referred him as Nicholaus Busisi Boniphace, but also known as Busisi Mzungu or Busisi Kulunalila Mzungu (DW2 and DW3), Mzungu Boniphace (DW4), Busisi Boniphace (DW5). This is supported by documentary evidences (D1, D2, D5, D6 and D7 which are appellant’s baptism card/certificate, Standard VII Leaving Certificate, Nzengo book). The only document referring him (the appellant) as Busisi Binyara is nothing but the letter by the local leader introducing him before the Municipal Council (Land Office – PW3). On the other hand, it is the prosecution’s evidence that their father was known as Busisi Binyara, Kulunalila Mzungu and later (after baptism) by name of Boniphace Kulunalila @ Mzungu (testimony of PW1, PW2 and PW4). With me, I think anyone can assume any name at his pleasure. For example, one can name himself as Biden, Trump, Jambo or Samia. However, that is not necessarily meaning to be the Donald Trump we know, or the real Joe Biden, or Jambo Food Company or our own Samia Suluhu Hassani. If such names are adopted merely for one’s social pleasure, it has no any legal 15 impact. The issue in it will emerge when one wants to get benefit of such naming as representing the real person named known by that name as per law. In the current case, as per prosecution’s evidence, it is undisputed that the said deceased father was also known as Busisi Binyara. And further, it is undisputed also that the appellant was also known by name of Busisi. Thus, he could also be named as Busisi Busisi Binyara or Busisi Binyara if he opted to omit the middle name. That per se has no criminal issue at all to my considered view. The issue for the main consideration in this contentious name, is whether the Busisi Binyara named in the said Plot number 223 Block EE – Ngokolo is this appellant. Since the said plot as per PW3’s evidence was allocated to Busisi Binyara in 1983, it was important that the appellant to raise reasonable evidence to shake that the said Busisi Binyara named therein is him and not another. In his defense testimony, DW1 told the trial court that the said plot is his as given by his deceased father at his life time. And in 2016; and as the said offer got lost, he was instructed by his late father to report the said loss for processing a new certificate. He did that on 1 st and 2nd February 2016 16 where then he supplied a letter from the local leadership of Ngokolo that he was also known as Busisi Binyara to match with the names in the said offer certificate for the completion of his application. In my deep analysis of the matter, the issue of age as queried by the PW3 though relevant, has no significance at this point as it was a question to be paused in 1983 when the said application and grant was done. To question it now, is an afterthought in my considered view and for that matter does not illegalize the possession of the said land to the said Busisi Binyara. The vital question still remains is one, whether the said Busisi Binyara named in the said offer is this appellant or another. Assuming that it is this appellant, so long as he did not apply for its allocation, the title to him could only be validly passed to him, had there been real, cogent and trustable evidence that it was passed to him. As there is neither any of that good evidence from any of the prosecution’s witnesses nor from the defense as well, it can be summed up that there was no such passing of title done or completed for him to acquire the title of being the owner of it. As the deceased had not completed transferring it to the appellant, the appellant could not complete it by himself as it could not be done unilaterally in the absence of instrument 17 of the said grant. Thus, it validly remained the property of the deceased and thus falls as one amongst his good estates to be administered as per law. The argument that he was named Busisi Binyara and not his father, there is no supporting evidence as it is not this court to connect dots as suggested by Mr. Samwel. The said letter from the local leader cannot be a valid instrument of naming a person. By the way, since by 2016 the said deceased father was still alive, it was necessary if all this the appellant says is true, for him to certify as well that the said Busisi Binyara named in the offer, referred the appellant. That was not done. It is therefore doubtful if the assertion that the said deceased in his life time had granted him possession of the said property as alleged, in the absence of sound evidence to that effect which would have reasonably raised a doubt in law. Now, if this appellant by name of Nicholaus Busisi Boniphace was also the same Busisi Binyara in the offer, what was the reason behind for the new certificate to be issued in the latter name if he was also recognized as that? The law is, if there is an intent to defraud any person, and falsely represents himself to be some other person, living or dead, that is an offence (section 18 369(1) of the Penal Code, Cap 16; and as the representation is for that person to be entitled by will or operation of law to any specific property, that is nothing but an offence named personation. The appellant in his defense averred that the change of name was due to instruction given to him by land office. And that the use of two names in African culture is not a new thing. With due respect, I do not buy the appellant’s idea as PW3 said it all, when he encountered the difference in names between what the appellant was presenting himself as Busisi Binyara but when inquired of his credentials had born different names and further wanted him to issue it by the new name of Nicholaus Busisi Boniphace. The concern that Mr. Yohana Munisa – Chairperson of Ngokolo who introduced the appellant to PW3’s office was not brought for his testimony, I think is a none issue as it was not disputed that the said appellant was introduced by Mr. Yohana Munisa – Chairperson to PW3’s office. Thus, it was not a fact that needed a further proof (exhibit P4). The term personation in my considered opinion has no any other meaning than referring oneself to be another person as interpreted in the Black's Law Dictionary Black's Law Dictionary, Bryan A. Garner (8th ed. 2004) 19 when defining the term impersonation. At page 2201 it defines impersonation to mean: “The crime of falsely representing oneself as another person." With that definition, I have no doubt in interpreting the provision of section 369(1) of the Penal Code to mean that, the offence of personation is committed when one person who with intent to defraud another person and goes further to execute his intention by falsely representing himself to be another person while in fact he knows not to so be. So, the offence can be committed to any person whom the accused presents himself to, to be "another person" who is either living or dead. In my considered view, and in consideration of the fact in exhibit P2 and P1 which made PW1 the administrator of the said estate, the appellant if had genuinely believed that the said property is his, would have resisted it through the probate court that it was not one amongst the deceased’s properties to be administered. As his objection there in was for another cause, I am confident that the appellant was properly prosecuted for personation, thus rightly convicted by the trial court. 20 That said, conclusively the appeal is unmerited and is entirely dismissed. Both, conviction and sentence are hereby upheld and confirmed. It is so ordered. DATED at SHINYANGA this 13th December, 2024. F.H. Mahimbali Judge 21