DPP v Nada Saya and Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO 2419 OF 2024 (Arisingfrom Criminal Case No 21 of2023 of Mbulu District Court) DIRECTOR OF PUBLIC PROSECUTIONS............................... APPELLANT VERSUS 1. NADA SA YA...................................................................... ^-RESPONDENTS 2. NICODEMUS NADA SAYA........................................... JUDGMENT 3rd June and I l'h July, 2024 MIRINDO, J.: Nicholaus s/o Petro, who lives at Bargish Village in Mbulu District was on 21 November 2022 assaulted by sticks on his head. He reported to Mbulu Police Station and then underwent medical treatment at Mbulu Government Hospital. He mentioned Nada Saya and his son, Nicodemus Saya, as his attackers who were then arrested on a charge of assault causing actual bodily harm contrary to section 241 of the Penal Code [Cap 16 RE 2022]. 1 At the trial before Mbulu District Court, Nicholaus s/o Petro testified that about 9:30 in the morning he saw the first respondent, Nada Saya, cutting down a tree at his compound. When he confronted him, the first respondent informed him that he wanted the victim’s mother to vacate from the area. He instructed the victim to get out of his sight and go to his mother. The first respondent instructed his sons who had accompanied him to beat the victim. The first respondent and his son, Nicodemus Saya, hit the victim with sticks. The fact of the victim being hit with sticks by both respondents was corroborated by the second and fourth prosecution witnesses, Yohane Lago and Maria Nicola, respectively. The first respondent denied the charge but admitted that though he was in the farm with the second respondent, the victim was not there. He pointed out that there is a dispute about ownership of the farm. The second respondent admitted being in the farm with his father and that he had sticks. At the conclusion of the trial, the Mbulu District Court dismissed the charge and the Director of Public Prosecutions (DPP) appealed to the High Court. At the hearing of the appeal, both respondents appeared in person while the DPP was represented by Mr. Johnson Ndibalema, learned State Attorney. In the first and second grounds of appeal, the DPP’s complains that the findings of the of the trial court are erroneously based on undisputed facts when it held that there was a land dispute between the victim and the first respondent. It was the argument of the 2 learned State Attorney that medical report sufficiently proved the offence as admitted in the judgment of the trial court. He stressed that the trial court did not rule on the charge of assault causing actual bodily harm contrary to section 241 of the Penal Code [Cap 16 RE 2022]. Mr Ndibalema, learned State Attorney, distinguished the charge of criminal trespass in which issues of ownership may prevent courts from sustaining that charge. In dismissing the charge, the trial court held that as there was a land dispute, the direct evidence of the victim and that of the second witness was suspicious. The trial court was of the view that the second prosecution witness being the victim’s employee was not an independent witness. This finding traces its root from the common law rule regarding suspect evidence. While every witness is entitled to credit as was reaffirmed in Goodluck Kyando v R [2006] TLR 363 but as restated in R v Prater [1960] 1 All ER 298 there is a rule that a witness tainted by improper motive is a suspect witness whose evidence should be corroborated or acted upon after fully appreciating the danger of acting on his or her uncorroborated evidence. Suspect witnesses include witnesses who have an interest of their own in securing the accused’s conviction. In the instant case there is some evidence to suggest that there was land dispute between the respondents and the victim. To what extent does this finding suggest false evidence against the respondents? There is no direct answer to this question. 3 In an attempt to answer this question, the trial court implicitly held that there was no corroborative evidence. Given that the incident took place around 9.30 in the morning when many people go to farming activities, the trial court formed the view that these persons witnesses should have been called to corroborate the prosecution case. The trial court wondered why neighbours and local government leaders were not immediately informed of the incident. For these reasons, the trial court concluded that the case was merely an attempt to fix the respondents owing to the land dispute. These findings form part of complaint in the third ground of appeal. Before this Court, the DPP complains that the trial court erred in not convicting the respondents for the reason based on the number of witnesses. The learned State Attorney referred this Court to the provisions of section 143 of the Evidence Act [Cap 6 RE 2022] for the proposition that no number of witnesses is required to prove a particular fact. I am of the different opinion regarding the trial court’s assessment of the suspect evidence. There is some corroborative evidence from the medical examination report. The medical examination report indicates that Nicholaus s/o Petro, the victim, suffered multiple bruises on the head. This report that was tendered by a clinical Officer, Lucas Lazaro, and admitted at the trial, attributed the source of bruises to a blunt object which was a hand. The report categorised the bruises as falling within a category of a “harm” as opposed to grievous harm or maim. The report indicated that bruises occurred within two days from the date in which the victim was examined. The victim was examined on 22 4 November 2022. This is sufficient evidence that the victim was assaulted by hand within two days. The next question relates to the perpetrator of the assault. Both respondents admitted being on the farm on the material day and that the second respondent had sticks. Nevertheless, the first respondent claimed not seeing the victim or someone else on the farm even though he had a dispute with the victim over the ownership of that farm. It is not upon the accused to disprove the prosecution case but as held in Mohamed Haruna alias Mtupeni and Another v R (Criminal Appeal 259 of 2007) [2010] TZCA 141 facts set forth in the accused defence giving credence to the prosecution may be used in determining the accused’s conviction. In the circumstances of this case, I am satisfied that prosecution witnesses gave a truthful account that the victim along with the respondents were on the farm. The respondents’ version that they never saw the victim at the farm is inconsistent with the account that they were on the farm over which they have a dispute with the victm. From this finding, I am of the view that it is the respondents who assaulted the victim. The existence of a land dispute is merely a mitigating factor. Considering the findings I have made; I would like to highlight that the trial court stretched too far the rule that the prosecution is supposed to call material witnesses. On the facts of this case, there was nothing to suggest the location of the farms and the distance from one farm to another. There is nothing to suggest that incident was reported 5 to local government authorities. Unless there is something to suggest improper motive, the mere omission to report a criminal incident to local government authorities cannot defeat the prosecution case. As stated earlier in this judgment, the medical examination report indicates that the victim sustained multiple bruises on the head caused by hand. Do bruises constitute actual bodily harm? In answering this question, it is important to re-examine the meaning of “bodily harm” as used in section 241 of the Penal Code. This expression, derived from English criminal law, has been described in Archbold Criminal Pleading, Evidence and Practice, (43rd edn by PJ Richardson), London: Sweet and Maxwell, 1997 at para 19-197 in the following terms: “Bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling... This definition drawn from various English decisions and such conclusion is also implicit in R v Cliper bin Anasis, R. v. Suwelem bin Rashid (1969) HCD No 118. From the above I set aside the decision of Mbulu District Court. I find Nada Saya and Nicodemus Nada Saya guilty of assault causing actual bodily harm contrary to section 241 of the Penal Code [Cap 16 RE 2022] and do hereby convict them of that offence. DATED at BABATI this 11th day of July, 2024 6 F.M. MIRINDO JUDGE COURT: Judgment delivered this 11th day of July, 2024 in the presence of Mr Johnson Ndibalema, State Attorney for the Appellant and in the presence of both respondents. Right of appeal explained F.M. MIRINDO JUDGE Coram: Mirindo, J Date: 11/7/2024 For Appellant: Mr Jonhson Ndibalema, State Attorney First Respondent: Present Second Respondent: Present Mr Jonhson Ndibalema, State Attorney: PREVIOUS RECORD: We do not have previous record of the respondent. 7 AGGRAVATION: we pray that a deterrent sentence be imposed to be a lesson for other persons who take law into their own hand. F.M. MIRINDO JUDGE 11/7/2024 MITIGATION: Nada Saya: I have children in school, and one of them is of unsound mind. He depends on me. I have seven children. The youngest child is the second respondent who is seventeen years old. Others are married but one lady is of unsound mind. She depends on me. I live with my wife. Nicodemus Nada Saya: I pray that the sentence be reduced. F.M. MIRINDO JUDGE 11/7/2024 SENTENCE Having heard the prosecution and defence on aggravation and mitigation, it is clear that the victim suffered bruises which do not constitute serious harm and that there seems to be land dispute between the victim and the respondents, I sentence the first 8 respondent Nada Saya to a prison term of one month from the date of this sentence and to compensate Nicholaus s/o Petro the amount of 40,000/= TZS. From his testimony before the trial court, Nicodemus Nada Saya was aged seventeen years old at the time of the commission of the offence. I therefore release him on conditional discharge under section 38 (1) of the Penal Code [Cap 16 RE 2022] with an admonition not to commit any criminal offence within three months. Right to appeal explained. F.M. MIRINDO JUDGE 9