20171013 TZHC Mbeya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA CRIMINAL APPEAL NO. 20 OF 2017 (From Criminal Case No. 12912016 from District Court of Mbarali at Rujewa) WILLIAM S/O RwEyEMAMu ..................... APPELIANT

VERSUS

JUDGMENT Date of last order: 311712017 Date of Judgment: 1311012017 Dr. M. C. Levira, J The appellant, William Rweyemamu was charged at the District Court of Mbarali with two offenceS, f0rgY Contrary to section 340 (1), (2) (a) and second count, Personating public Officer contrary to section 100 of the Penal Code Cap 16, Revised Edition 2002. Upon full trial he was convicted and sentenced to serve three (3) years imprisonment for the first count and second count, six months' imprisonment both sentences were ordered to run Concurrently. Page1 of7 The appellant has presented three grounds of appeal. I ( - will summarise them as follows: - That the District magistrate erred in law and fact for convicting the appellant basing on the document which he was arrested with and at the place of search. That the District Magistrate erred in law and fact depending on the document in application No. 25 of 2014 of Aneth d/o Mhile versus Anthony s/o Kikwembe which had errors. That the District Magistrate erred in law and fact by convicting him while there was no credible evidence as to why his signature was changed from May 2014 to June 2015. During the hearing of this appeal, the appellant was present but unrepresented while Republic/respondent was represented by learned State Attorney Mr. Mtenga. Both parties made their submissions. I will start with the first ground of appeal. The appellant

has faulted the District magistrate for convicting him basing on the document which he was arrested with and not at the place of search. Page 2 of 7 The appellant has been accused of forging a rubber (. stamp of Rujewa Primary Court purporting to be signed by a magistrate and personating himself as a public officer. The appellant has challenged the fact that the document he was arrested with was used to compare his signature and not the document which ought to have been found at the place of search. He argued that the trial magistrate erred in relying on such document. As correctly submitted by the learned state attorney that the said document was not a disputed document therefore there was no need of conducting a search. As the crucial aim of collecting the document from him was to compare his signature with the document which allegedly bared a forged signature and a stamp of Rujewa Primary Court. Therefore, the ground is baseless. As regards to the second ground, the appellant has faulted the District Magistrate for depending on the document in application No. 25 of 2014 of Aneth d/o Mhile versus Anthony s/o Kikwembe which had errors. It is unfortunate that the appellant did not mention any errors on the said document in which the trial magistrate ignored. Although, PW2's evidence clearly shows the appellant drafted chamber summons and affidavit for her to be filed to the

High Court the documents which Page 3 of 7 constituted Application No. 25 of 2014.On the other hand, the appellant has challenged the evidence of PW2 that it was not corroborated, I wish to agree with Mr. Mtenga that the nature and coherence of her evidence did not require corroboration. Therefore, this ground also lacks merit. As for the third ground, the appellant has faulted the District magistrate for convicting him while there was no credible evidence as to why his signature was changed from May 2014 to June 2015. Three prosecution witnesses' namely Inspector Joram Magova PW 1, Aneth Mhile PW2 and Hadija Masoud Chussi PW3, testified in court against the appellant and also tendered exhibits to support their evidence. The evidence of PW1 Insp. Joram, hand writing expert in court explained how the signatures from the document apprehended from the appellant and the documents the appellant drafted for PW2 bared the same signature. He narrated how the two signatures were similar and he tendered the documents which were admitted in court as exhibits "PE1", 44 PE2 77 , " PE3", "PE4", "PE5", 46 PE6", "PE7", "F1 1 "IIE 1 "IfIE 12", "FF 1 , "PE 14" and PE15. On the other hand, the appellant has Page 4 of 7 complained that there were many signatures which were taken as samples but they differed from his signature appeared on his identify card. It is trite that expert's evidence needs

to be corroborated. Therefore PW1's evidence needed to be corroborated with PW3's testimony whose signature was purported to be forged. But unfortunately she did not testify anything in relations to the forged signature whether it was hers or not. All what she said was PW 1 went in her office Rujewa Primary Court and took samples of the court stamp, and her signature in order to compare them with the alleged forged signature. In essence her evidence did not corroborate PW l's evidence as she did not deny that the signatures on the alleged document was not hers. I wish to use the decision of this court Kyando J (as he then was) in Francis Misonge vs. Republic Criminal Appeal No. 100 of 1994 High Court at Dar es Salaam cited by the trial magistrate in her judgment, where the signature which was said to be of a bursar PW 1 in the case PW 1 testified that it was not his. Unlike in our case, PW3 did not deny the alleged signature not to be hers. Therefore how will the court know that indeed it was not hers? In absence of such Page 5 of 7 crucial evidence PW1's evidence alone cannot ground appellant's conviction. Had the trial court keenly considered that case it would have come up with different decision. Having said that, I find that the case was not proved to the required standard to hold the appellant liable with the offences he was charged with. In the circumstance, I allow the

appeal, quash conviction, and set aside sentence. The appellant is to be released forthwith unless otherwise lawfully held in custody. It is so ordered. Dr. M. C. Levira Judge 13/10/2017 Page 6 of 7 Date: 13/10/2017 Coram: Hon. Dr. M. C. Levira, J Appellant: Present Respondent: For the Republic: Ms. Catherine Paul - State Attorney Ms. Catherine Paul - State Attorney: Hon. Judge, the matter is coming for judgment, we are ready. Court: Judgment delivered in the presence of Ms. Catherine Paul - State Attorney and the appellant this 13" day of October, 2017. Right of Appeal Explained. co -- Dr. M. C. Levira rj '2 Judge c. 13/10/2017 \\\i \ * Page 7 of 7