Celestine Kamtambula Kaziba v Republic [1984] TLR 269 (HC).

CELESTINE KAMTAMBULA KAZIBA v REPUBLIC 1984 TLR 269 (HC)

Court High Court of Tanzania - Mtwara

Judge Msumi J

March 9, 1985

 CRIMINAL APPEAL 78 OF 1982

Flynote

Criminal Practice and Procedure - Charges - Impersonating a Public Officer contrary to s.100 of the Penal Code - Whether conviction maintainable where accused was originally charged under a wrong sub-section. 

-Headnote

The appellant presented himself and enrolled for a course at Mahiwa Party Ideological College in the name of Captain C.B.E. Mziba of Tanzania Peoples' Defence Forces. It was later discovered that D he was not an employee nor officer of the Tanzania People's Defence Forces. He was charged and convicted of impersonating a public officer contrary to s.100 (1) of the Penal Code. On appeal against conviction: E Held: (i) The provisions of sub-section (1) comes into play where accused purports to discharge duty, either by doing an act or attend in any place, which he is required to perform in his assumed official post; (ii) in the instant case the appellant ought to have been charged under subsection (2) as there F wa no duty imposed on him to enroll himself with the college as a result of his being an army captain; (iii) in the instant case the appellant though charged under the wrong subsection fully understood the kernel of the case against him; therefore, the irregularity is curable under section 346 of the criminal Procedure Code in which case the conviction is taken to have been entered under G subsection (2) of s.100. Case Information Appeal dismissed. H No cases referred to. 

[zJDz]Judgment 

Msumi, J.: After he was convicted of impersonating Public Officer contrary to section 100(1) of the Penal Code, appellant was sentenced to two years imprisonment which was subject to confirmation I by this court. Appellant has filed this appeal to challenge the said conviction and sentence. 1984 TLR p270 MSUMI J The factual aspect of the prosecution's allegation leaves no room for any rational controversy. On A the material days appellant presented himself before the principal of Mahiwa Party Ideological College as one Captain C.B.E. Mziba of Tanzania People's Defence Forces. And by virtue of the purported public office, appellant enrolled himself as a long course student of the college. It, B however, transpired that in fact appellant was not employed as public officer let alone being a army captain. As I said, these facts are supported by cogent evidence. Nothing has been adduced by the appellant in his defence which has the effect of creating reasonable doubt against this allegation. However, the same expression of satisfaction is not maintainable when it comes to the legal aspect C of the case. As an attempt to convey my uneasiness effectively let me quote fully the provisions of section 100 of the Penal Code. It reads: 100. 

Any person who- D (1) personates any person employed in public service on an occasion when the later is required to do any act or a attend in any place by virtue of his employment; or E (2) 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, is guilty of a misdemeanour. When admitting this appeal my brother Samatta, J., queried, inter alia, whether in drafting the F charge the public prosecutor intended to use subsection (2) of the section. With respect, the conviction of the appellant under subsection (1) was clearly prompted by the misconception of these two subsections. The provisions of subsection (1) only come into play where accused G purports to discharge duty, either by doing an act or attend in any place, which he is required to perform in his assumed official post. In the instant case it is true that appellant enrolled himself as Captain Mziba but he was not required or duty - bound to enroll himself with the college as a result of his being an army captain. There was no duty imposed on him as such to enroll himself with the H college. He ought to have ben charged under the provisions of subsection (2). 

For it is clear that appellant assumed to attend the course by virtue of his false representation that he was an army captain. As a general guidance, magistrates are advised that whenever they are called upon to I adjudicate a case preferred under either of the subsections of section 1984 TLR p271 A 100 of the Penal Code, they should particularly be on guard against the common error of mixing up these provisions. For, depending on the particular circumstances of the case, such error may be fatal to the conviction. Quite happily, the same cannot be said in this case. Though charged under B the wrong subsection, appellant fully understood the kernel of the case against him. The situation is curable under section 346 of the Criminal Procedure Code. Thus the conviction is taken to have been entered under subsection (2) of section 100. C The sentence of two years imprisonment is the maximum provided by the law. I don't think that it is such a bad impersonation case so as to warrant the imposition of the maximum penalty. Appellant's youth age and the fact that he was a first offender ought to have been taken as factors mitigating the intended sentence. Unfortunately any reduction of this sentence at this hour will be D of no practical utility. Appellant has already completed serving the sentence. This appeal is therefore dismissed and the sentence of two years imprisonment is hereby confirmed. 

Appeal dismissed. 

1984 TLR p271 

E