19871202 TZHC Dar es Salaam2

TEE 'UNITI'-::0 REPUBLIC OF TAHZANIA IN T".JE IIIGH CODTIT OF 'T.AUZANIA AT DAR ES SALAAM · (PC) CRIMDTAL APPEAL NO. 9 OF 1987 (From the decision of the· District Court of.Ilala at Ki vulconi in Criminal Appeal No. 13 · of 1987) ORIGINAL CRilJIINAL CASE NO. 426 Or' 1987 OF TEN!EICE PR. COURT ASITA RASHID • • e c • ... . .I O C:, C, ,S o • • • • APPELLANT versus

TIIE REPUBLIC J U D G M E N T~ KAZIMOT0 1 J. In Temeke primar-J court criminal case No.426 of 1907 A.-.ilia Rashid was the com1}la:i.nant and Christina John was. the accused. For the purpose of this case in this. Court I will refer to them as the complainant and·the accused respectively. The accused was charged. with assault causing actual bodily ha~ c/s 241 of the Penal Code. She was found guilty, convicted and sentenced to a fine of shs.1,000/= or one year :i.rnprisonment in default. She was also ordered to compensate the complainant in the sum of shsu3,000/~. The accused successfully appealed to the district court,. The complainant was dissatisfied and she hc:-s appealed to the High Court. In allowing the appenl the learr).ed district magistrate found that the trial primary court·magistrate was based, that the accused was entitled to self defence, that the term of 12 months imprisonment in default of ppyment of fine and order of compensation were ultra vires. The Republic while conceding that the trial court has exceeded its jurisdiction has distanced itself on the issue of bias and self defence. The facts which led to these proceedings arc not in dispute. The complainant_ and. the accused were living in Temeke districto Both had apparently fallen in love with a man called Fred. It appeared that Fred had had enough with tb.e complainnnt. On the material day- Fred was with

the accused in his house when the complainant went to him at night. There was undisputed evidence that on arrival the ' , complainant used.vulgar language both to Fred and the accused and on the process the accused took a bottle and hit the complainant with it on the head. She pust accused injuries as a result. In her defence the accused stated that the complainant wanted to assault her but the trial court disbelieved her and found the offence proved and proceeded to meteout the sent·ence as indicated above. . ;-;-. V First the learned state attorney hear al'gued that the accused. has pleaded guilty to the offence and submitted that the district court should not have entertained the appeal c1gairtst conviction. Ile argued that the district court should have considered the appeal against sentence only. Hi th due respect to the leanied counsel I do not subscribe to tha.t submission,. Although the accused stated. that she assaulted the complainant she also stated that she did so in self' defence. That was not a plea of guilty. In any case that statement came towards the end of her evidence-in~hief. It was not an admission on the part of the accused that he has committed the offence charged. In his judgment the learned district magistrate has stated that the accused had alleged that the complainant is related to the trial magistrate, that the complainant info~ed the accused

the sentence she would get, that the trial magistrate was not on duty roster on the day she tried the case and that she decided to pick--up this particular case only and that the accused hc.d complained to the trial magistrate. On this the learned district magistrate :found that the trial magistrate was biased. I have gone -~hrough the record and I am satisfied that the allegations that the accused complained against the trial magistrate is not borne out by the lower court proceedings .. It is un-likeby that the complaincmt would go to the accused to inf'orm her that she is related to the trial magistrate and the sentence she was to get. If the accused was informed of this she would have objected to the trial magistrare trying the case. On record she did not do so. The accused should have been taken as a liar, The lies as ·co the dates the case came before the trial court are more obviouso It should have been clear to the learned district magistrate that what the accused has stated in her memorandum of appeal in the district court was untru.eo In finding the trial court magistrate biased the learned district magistrate statedg "On perusal of the lower court record and on the enquiry personally made on the Temeko Primary Court criminal case duty roaster c1nd register it is evident that Mrs. Makota was not on duty magistrate on the mn.t·erial date and week corrm1cnced on

10/6/87,.n. It should be noted that the judgment of the trial court was delivered 011 18/5/87 • Clearly she was not dealing with the case on 10/6/87 and the finding by district court that the trial magistrate was dealing with this case on 1.0/6/87 must be rejected. -3 Even if the trial magistrate was on duty on 10/6/87 the mere fact· that the trial magistrate had picked up this particular case cannot be said that she was biased. It must be shown that th.ere was reai likelihood of bias on the part of the trial magistrate. The test to be applied is that laid down by Lord Der1ning, M. R. in' · Metroppli tan Pr_operties Co (F. a. c.) L.td. v. Lann.er ( 1969) 1 Q,BD 577 at page 599 where he saidg ''In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the Chairman of the tribunal or uhoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, infMt favour one siclo at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be~ never the less if right minded persons would think that, in the circumstances, there was real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cruU1ot stm1d. Nevertheless there must be a real

likehoocl of bias. Surmise or conjectur·e is 11ot enough. Tb.ere mus·t be circumstances from which a reasonable man ·woulcl think it likely or proooble that the justice or Ch.air1m:m, as the case may be, would or did favour one side unfr.iirly at the e:r:pense of the other., The court will not enquire whether he did, inf;:..ct, favour one side unfairly. Suffice it that reasonable people might think tl.mt he .did. The reason is plain enough. Justice must be noted in confidence, and confidence is destroyed uhen right minded people. Go away thinking: The judge was biased" As I lk·wc L1dicated earlier the seemed to be aware, if she is to be believed, tho.t tho trial magistrate and tho complainant were not only related but have also 11 a.grecd 11 on the punishment she would get. She did not object the trial magistrn.te taldng the care,. Would a right thinking member of the public have thought that the trial magistrate was biased in taking this i:crticular case. There was nothing on record that would lend any person to tlln.t conclusion,. Tb.ore wns no bias and I nm inclined to think that the learned district magistrate readed his conclusions on his personal enquiries he made which, I have c1.lso sho~m, were false as the case was not den!led on 10/6/87. -4- The learned district magistrate also found that the accused was. acting under self defence. The lea.rne)i state attorney

has argued that the accu::;ed was annoyed at see~ng the complainant a.-b the house of'Fred, her boyfriend and th.is ro'forded no defence to her. In her evidence the accused clearly showed that the compl~inant was abusing her, n.11d that at the time she was inside the house D.n.d she came out when Jcb.e complcin2.nt refused to leave Fred.ts premises. There was no doubt thut the complainant has.uttered very vulge..r and abusive la.ngungo to both Fred and accused. It appears to me that it was these abusive language which prompted the accused -to assault the complainant. It was a revenge and not a self defence. The accused was in no danger to her life. The learned district magistr::1te ened in finding that the accused was acting in self' defence. The accused was fined shs.1~000/= or 12 month's imprisonment in defrnllt and was ordered to p~; shs.3,000/= as compersation. The learned district magistrate rightly declared the te:rm of 12 months imprisonment in view of fine of shs.1,000/= and order of compensation ns ultra vires. Section 2 ( 4) of the . Priran.ry Court's Crimin::11 Procedure Codecontained in the 3rd Schedule to the Magistrates' Courts Act 1984 li..'llits the term of imprisonment to 4 months uhere the fine exceeds shs.1,000/= but does not exceed shs.5,000/~ likewise under section 5(b) of the same Schedule empowers a primn.ry court to order costs or compensation not

exceeding shs.1,000/=. It has no power to order compensation in excess of. shso1,000/= unless the offence falls under ·~he Minimwi1 Sentences Act 1972. As the term (?f imprisonment of 12 months and order of compensation were illegal the same are set aside and they a.re substituted for n. te:rm of imprisonment of 4 months in default of a fine of shs.1,000/= and an order of compensation of shs.1,000/=• In the result the decil\ion of.the district court decln.:ring the proceedings in the trial court null and void is set aside. Except with the vanations as.; indicated above the decision of the primar,7 court is upheld and the appeal is allowed• E. E. KAZIMOTO

JUDGE Delivered this 7th day of December, 1987 in tho presence of Mknrno.nga State Attorney n.nd n.bsence of appellant. E. E. KAZIMOTO

JUDGE Certified true copy of the o ,--- .~~- -·- ':=~~)--~ , .··y) •GISTRAR ,,.,,.---- ---------m---. - -- . OF TANZANIA /" DAR ES SALA.AM