Republic v Aziz Sangudi Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA DC. CRIMINAL APPEAL NO. 20231220000040525 (Arising from Criminal Case No.17 of 2023 in the District Court of Bariadi at Bariadi) REPUBLIC ……………….…..…..…......................................................APPELLANT VERSUS AZIZI SANG’UDI@GUGAGU.…………………….……..……..…...…...RESPONDENT JUDGMENT Date of Last Order: 05.09.2024 Date of Judgement: 18.10.2024 MWAKAHESYA, J.: This is an appeal by the Republic against the decision of the District Court of Bariadi District at Bariadi wherein the respondent was acquitted on charges of Threatening to kill c/s 89(2)(a) of the Penal Code and illegal practicing as a traditional health practitioner c/s 45(1) of the Traditional and Alternative Medicine Act, No. 23 of 2002. The respondent was alleged to have threatened to kill one Edward Nehemia Ogaga (PW1). The brief facts leading to this appeal are that the respondent, who practices as a traditional healer, was engaged by PW1 to cure his aliments. Upon administering traditional medication, the latter fell ill and his 1 condition did not improve. This prompted PW1 to make several follow ups to the respondent’s residence, which it seems doubled as his place of business, it was then that the respondent threatened to kill PW1 and his entire family if he continued to frequent his place of business. During trial the prosecution used a total of four witnesses. PW1, Regina Mashauri Ezekiel (PW2) and wife of PW1, H. 8290 D/Cpl. Pascal (PW3) and Daudi Silas Omiti (PW4). PW1, PW2 and PW4 gave evidence that, upon PW1 making frequent follow ups to the respondent, on 27.01.2023 at the respondent’s residence, the respondent agitated, told PW1 to not go there again or else he would kill him and the rest of his family. The matter was reported to the police and the respondent was charged and prosecuted. PW3’s evidence was mostly hearsay, he was the investigator of the case and narrated on how he went about interviewing the respondent, PW1, PW2 and PW4 and what they told him happened. In his defence, the respondent denied the charges, however he admitted to treating PW1, on 27.01.2023, who was suffering from impotency and loss of memory and when he was treating him his certificate for practicing traditional medicine was in the process of renewal. 2 The trial court was of the view that, since the respondent was alleged to have threatened to kill PW1 and his family members, it was wrong for the prosecution to charge the respondent with threatening to kill PW1 alone, but rather he should have been charged with threatening to kill the entire family of PW1. The trial court also faulted the prosecution’s evidence in the following manner: First, in relation to the alleged source of the interaction between the respondent and PW1. While it was the prosecution’s version that after being administered some traditional medicine by the respondent, PW1 suffered from severe headache which made him seek the respondent for further help. It was the trial court’s suggestion that PW1 was supposed to be examined by a medical doctor or clinical officer in order to confirm that he was indeed suffering from severe headache which made him to go back to the respondent. Otherwise, it was the learned trial magistrate’s view that by frequently going to the respondent’s house, PW1 was being aggressive and was seeking attention. Second, contradiction between PW3 (the investigator) and the rest of the prosecution’s witnesses as to who accompanied PW1 on 27.01.2023. While the rest of the prosecution’s witnesses stated that it was PW2 and 3 PW4 who went with PW1 to the respondent’s residence on the material day, PW3 testified that it was PW4 who accompanied him. The trial court being also convinced that the respondent had been registered to practice as a traditional health practitioner found the charges against him wanting and acquitted him, prompting the Republic to file the present appeal based on two grounds of appeal. The same are: 1. The trial magistrate strayed into a grievous error of law by acquitting the accused person on the charges while the prosecution side proved the case against the accused in accordance with the required standard that is beyond reasonable doubt; and 2. That, the trial magistrate erred in law for failure to analyse the evidence adduced by the prosecution side. At the hearing of the appeal the appellant was represented by Mr. Francis Mbagwa, learned State Attorney, while the respondent was represented by Mr. Samwel Lugundiga, learned Advocate. Submitting on the first ground, the learned State Attorney was of the view that, PW1, PW2 and PW4 who were at the scene gave similar accounts of what transpired on the material day and that the respondent 4 threatened to kill PW1 and his entire family and their evidence was direct evidence. As regards to practicing traditional medicine, the learned State Attorney submitted that, in his defence, the respondent admitted that he was practicing the same since 2006 and tendered a practicing licence which was obtained on 20.02.2023 while the offence was committed in January, 2023. On the second ground of appeal, Mr. Mbagwa submitted that, when analyzing the evidence for the prosecution the court came out with the issue of defectiveness of the charge, contradictory statements of the complainant and the investigating officer, and failure of the prosecution to bring a doctor to prove that the complainant had headaches. On the issue of defectiveness of the charge, he submitted that, the charge was not defective as the PW1 was the one who reported the matter to the police and the police acted on that information, it was not necessary to include family members of the PW1 in the charge. Regarding contradictory statements of the complainant and the investigating officer, the trial court was of the view that PW1 testified that he had headaches when he went to the respondent, while PW3 stated that 5 the complainant was suffering from headache and loss of memory. PW3 came with additional information, with regards to loss of memory, that information cannot be categorized as contradictory. He submitted further that, even if the additional evidence was contradictory then the principles laid out in the Court of Appeal decision in Said Ally Ismail v. The Republic, Criminal Appeal No. 249 of 2008 (unreported) apply. In the cited case it was held that, it is not every discrepancy in the prosecution’s case that can cause the prosecution case to flop, it is only where the gist of the case is contradicted then the prosecution case will be dismantled. He also referred to the case of Sylvester Stephen v. The Republic, Criminal Appeal No. 527/2016 CAT- Arusha (unreported). He rounded off his submission by stating that, there was no material contradiction and the respondent’s defence did not shake the credibility of any of the prosecution’s witnesses. On the issue of failure to bring a doctor to prove that the complainant was suffering from headache, Mr. Mbagwa submitted that, the law does not limit the number of witnesses who are required to prove a case and this is in accordance with section 102 of the Evidence Act. The 6 prosecution has the discretion to bring witnesses according to the elements it wants to prove as stated in the decision of the Court of Appeal in Richard Jared v. The Republic, Criminal Appeal No. 23 of 2018 (unreported). In reply, Mr. Lugundiga, resisting the appeal, submitted that, the trial court was justified in acquitting the respondent as the prosecution’s case was not proved beyond reasonable doubt. He was of the view that, on the first count of threatening to kill, the prosecution’s case was based on the evidence of PW1, PW2 and PW4. However, the testimonies of the aforementioned witnesses was contradictory in material particulars. He elaborated that, PW1 testified that he went to the respondent’s homestead alone and when he was threatened he was alone. However, PW2 who is the complainant’s wife, testified that when the threatening words were uttered she was present, meaning that PW1 was not alone at the scene. He was also of the view that, since PW2 testified that she went to the police station with PW1 then the charge was expected to also include PW2. 7 Mr. Lugundiga went on to submit that, PW4 testified that he was also present at the scene along with PW1 and PW2. To his finding, the three witnesses gave contradictory evidence as to how many people were at the home of the respondent where the alleged threats were uttered. The learned counsel was of the finding that, the contradictions brought doubts to the prosecution’s case and thus the court was justified in deciding in favor of the accused person. He fortified his submission citing the case of Jeremiah Shemweta v. The Republic [1985] T.L.R. 228 where it was held that where there are discrepancies in prosecutions witnesses’ testimonies then the case will be decided in favor of the accused person. On the offence of illegal practicing as a traditional health practitioner, Mr. Lugundiga submitted that, there was no evidence with regards to the commission of this offence that was brought by the prosecution and referred to the case of Bernard Joseph Mtashoka v. The Republic, Criminal Appeal No. 75 of 2022 HC-Shinyanga (unreported). In rejoinder, Mr. Mbagwa reiterated his submission in chief and prayed for the court to allow the appeal. Having gone through the record, grounds of appeal as well as the parties’ submissions I shall now proceed to decide the appeal on merit. 8 Section 89(2)(a) of the Penal Code reads: “89.- (1) N/a (a) N/a (b)N/a (2) Any person who – (a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot or kill any person or to burn, destroy or damage any property; or (b) with intent to alarm any person discharges a firearm or commits any other breach of the peace, is guilty of an offence and is liable to imprisonment for one year and if the offence is committed at night the offender is liable to imprisonment for two years.” [Emphasis added]. PW1, in his evidence, recalled that on 27.01.2023 the respondent, at his home, threatened that he will kill him and his family if he continues to frequent his home. PW1 did not mention that he was in the presence of anyone else apart from him and the respondent when the words were uttered. However, PW2 testified to have accompanied PW1 on the day the threats were made. Likewise, PW4 testified that he was present in the company of PW1 and PW2 on the day the threats were made. However, having gone through the relevant evidence, I do not subscribe to the 9 learned trial magistrate’s faulting the prosecution’s evidence on this regard. Here is why: First, I am of the opinion that what PW1 testified towards was in relation to the questions that were put to him by the prosecutor and the defence counsel. Albeit he did not categorically state that he was in the presence of PW1 and PW4 he, likewise, did not categorically state that they were not at the scene. Second, PW2 was adamant that she was with PW1 when the threats were uttered. Third, PW4 who testified towards frequenting the respondent’s abode even before the incident, testified that he was present when the threats were uttered. In light of the legal position that all witnesses are entitled to credence unless there are sound reasons to suggest the contrary (see: Goodluck Kyando v. Republic [2006] T.L.R. 369; Nyakuboga Boniface v. The Republic, Criminal Appeal No. 434 of 2016; Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019; and Ambwene Mligo @ Ambwene Luoga v. The Republic, Criminal Appeal No. 441 of 2019 (all three unreported), I find that PW1, PW2 and PW4 were credible and their evidence stood unimpeached. The insinuation by the trial magistrate that there should have been proof that indeed PW1 was suffering from severe headache does not have a legal basis because even if PW1 was going to the respondent’s house 10 looking for aggression or attention it does not exonerate the respondent from the offence he was charged with. Further to that, PW3 was not an eyewitness and most of his evidence was hearsay. This type of evidence should not be accorded any weight and thus it was erroneous for the trial magistrate to use it to make a point that the evidence of the prosecution side was contradictory. An issue was also raised as to why if the respondent had threatened PW1 and his entire family, the charge only mentioned PW1 as the one who was threatened. Again, this bores down to the style and craftsmanship of the drafter of the charge and I find nothing wrong with the prosecution deciding to mention PW1 only as the person who was threatened. The same does not vitiate the offence the respondent was charged with. Turning to the charge of illegal practicing as a traditional health practitioner, section 45 of the Traditional and Alternative Medicines Act, 2002 provides that: “45. -(1) Any person who practices as traditional health practitioner or aide without being registered or enrolled as the case may be under this Act, commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a 11 term not exceeding two years or to both, such fine and imprisonment. (2) Any person who practice as an alternative health practitioner or aide without being registered or enrolled as the case may be under this Act, commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or to both, such fine and imprisonment. (3) In addition to the penalty imposed in pursuance to subsection (1), and (2), the trial court may order that any traditional medicine remedies or diagnostic instruments or appliances used by or belonging to or found in possession of a person convicted, be forfeited, destroyed or otherwise disposed of.” [Emphasis added]. Exhibit D1 is a certificate of provisional registration from the “Baraza la Tiba na Tiba Mbadala” issued on 20.02.2023 and valid until 20.02.2024, the bearer being the respondent. The certificate allowed the respondent to practice traditional medicine. In his evidence PW1 testified, at page 9 of the typewritten trial court’s proceedings, that: “…I told my wife what happened and we called accused. He told me that medicine works for 7 days, but the next day the 12 condition was bad, I called him again and he told me to go there. He spread the medicine on the head and at the back, and said we should stop business issues and clean my body. But my condition deteriorated, and I had to go back to him…” [Emphasis added]. PW4 also gave evidence that: “…I accompanied my brother to the accused on 13/10/2022 and my sister in law was present. We found the accused and he said he gave him medicine to cure/prevent him. Then accused gave us medicine to help and we asked accused to taste a medicine but he refused. We did not take that medicine…” Meanwhile, the judgment of the trial court read: “This court received exhibit D1 USAJILI WA MUDA WA BARAZA LA TIBA MBADALA, as proof that the accused had been registered and had a permit to practice as a Traditional heath (sic) practitioner, after expiry of a previous permit parallel to the dates alleged to commit an offence.” Had the learned trial magistrate scrutinize the exhibit thoroughly, she would have concluded that the same was valid sometime after the dates in which the respondent had administered treatment to PW1. Thus, I find that it was satisfactorily proved that the respondent, when he was treating PW1, was not in possession of a valid certificate allowing him to practice traditional health. 13 In the upshot, the appeal is meritorious and I accordingly allow it in its entirety. I also find the respondent, Aziz Sang’udi @ Gugagu guilty of the offence of: Threatening to kill contrary to section 89(2)(a) of the Penal Code; and Illegal Practicing as a traditional health practitioner contrary to section 45(1) of the Traditional and Alternative Medicine Act, No. 23 of 2002, and after considering the aggravating and mitigating factors sentence him to twelve months conditional discharge on first count and a fine of TZS 300,000/= or imprisonment for nine months on the second count. It is so ordered. DATED at SHINYANGA this 18th day of October, 2024. N.L. MWAKAHESYA JUDGE 14