Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 31539 OF 2024 (C/F Criminal Appeal no. 25670 of 2024 in the District Court of Moshi at Moshi. Originating from Criminal Case No. 120 of 2024 in Kindi Primary Court at Moshi) CHEMLI MIDMITO MALLYA……………….............................. APPELLANT VERSUS COSMAS IZAACK MALLYA……………………………….… RESPONDENT JUDGEMENT 16th December 2024 & 27th January 2025 MONGELLA, J. The appellant was arraigned before the Primary Court of Kindi within Moshi District (henceforth, the trial Court) for the offence if threatening to kill by weapon under Section 89(b) of the Penal Code (no specifications on what version appear in the charge). The particulars of the offence were that: on 28.06.2024 around 14:00hrs at Sisa Maro area within Kibosho, Moshi District and Kilimanjaro Region, the appellant unlawfully and intentionally threatened to kill the respondent by cutting him with a panga. The appellant denied the charge levelled against him rendering the matter to proceed to trial. The respondent testified as SM1 and had 5 other witnesses. His case was to the effect that: Page 1 of 14 The appellant is a sibling of one Mathias, but from different fathers. In 1997, the appellant’s mother sought help from the respondent, who was the secretary of the clan, for him to resolve a situation whereby the appellant had refused the said Mathias to be given land. The respondent consulted other clan members and approached the appellant, but he chased them away. Allegedly, after a short period of time, the appellant’s mother fell sick and died. The said Mathias and his family left the land relocating to Arusha region. Around April 2024, that is, during Easter celebrations, one Anna Mathias, the wife of the said Mathias who allegedly demised, approached the clan. She sought to be given her share of land as the widow of Mathias. The clan leadership promised to assist her. Following a series of failed efforts to call the appellant to communicate the details, the appellant was eventually sent to police station. It was at the police station that he committed to bequeath the claimed piece of land to the widow, the said Anna Mathias. The day to perform the commitment was also agreed on. On the respective date, the respondent and other clan members including SM2, SM3, SM4, SM5 and SM6 approached the appellant for him to hand over the relevant piece of land as promised. Upon their arrival at his home, he went inside his house and came out with a bush knife (panga) threatening to harm them. This incident was reported to the police rendering the appellant to be arrested and arraigned at the trial Court. Page 2 of 14 In his defence, the appellant denied ever threatening the appellant with a bush knife. He alleged that on 28.06.2024 at 19:30hrs, SM3 came with the police wanting to arrest him for allegedly threatening the respondent with a bush knife. He requested that he be allowed to appear at the station the next day as he could not leave his home unattended. When he showed up the next day, the police did not address the allegations on threats, but rather questioned him on why he did not want to hand over the piece of land to the widow. He was then released, with instructions from the police that the matter be handled as a family matter. He further claimed that on 06.07.2024, SM3 and one Venance Pius appeared at his home informing him that the meeting for him to hand over the piece of land would be held on the next day. He questioned as to which land they were exactly talking about. He then told them that the widow should come herself to show the relevant boundaries and he would not interfere. However, he said, no one came to his house until on 10.07.2024 at around 14:30hrs when four militia men appeared, arrested and arraigned him before the trial Court. The appellant then proceeded to narrate events following his arraignment up to the date he was granted bail. The trial Court found the case against the appellant proved beyond reasonable doubt. He was convicted and sentenced to serve 6 months in jail. Aggrieved, the appellant preferred an appeal before the District Court of Moshi at Moshi (hereinafter, the 1st appellate Court) on the following grounds: Page 3 of 14 1. The Trial Magistrate erred in law and in fact by failure to analyse the evidence on record properly hence arriving at the wrong decision. (sic) 2. The Trial Magistrate erred in law and fact by not considering the defence evidence. 3. The Trial Magistrate erred in law and in fact by failure to note that the offence was not proved beyond reasonable doubt. Upon resolving his appeal, the appellate Court found the appeal without merit and dismissed it. Aggrieved, the appellant has preferred this second appeal on the following grounds: 1. The appellate District Court erred both in law and facts when it upheld the judgement of the Primary Court of sentencing the appellant to serve six months in jail while the offence of threatening to kill by words was not proved beyond any reasonable doubt. 2. The appellate District Court erred in law and in fact for failure to note that the Complainant's testimony disclosed no offence known to law 3. The appellate District Court erred both in law and facts when it ordered the Appellant to serve the remainder of his jail sentence despite there being reasonable Page 4 of 14 grounds justifying a probation order and/ or community service. The appeal was resolved by written submissions whereby the appellant was represented by Ms. Lilian Mushemba, learned Advocate while the respondent was unrepresented. In resolving this appeal, I will separately summarize the submissions by each party on each ground and make findings on the respective ground. After giving a brief background of the matter, Ms. Mushemba took note of the position that this court, being a second appellate Court, is warned not to interfere with concurrent findings of two lower courts unless there is misapprehension of facts. She fortified this position with the case of Abdallah Musa Mollel @ Banjoo vs. The Director of Public Prosecutions (Criminal Appeal 31 of 2008) [2010] TZCA 17 (19 February 2010) TANZLII. Justifying this appeal amidst such position, she started by firmly stating her stance that in this matter, the two lower Courts misapprehended the evidence and consequently arrived at an erroneous decision. Presenting her arguments on the 1st ground, Ms. Mushemba challenged the respondent for not meeting the required standard of proof as settled under Section 3(2) (a) of the Evidence Act [Cap 06 RE 2022]. Referring the case of Mohamed Haruna @ Mtupeni & Another vs. Republic (Criminal Appeal 259 of 2007) [2010] TZCA 141 (4 June 2010) TANZLII, she contended that the burden of proving the case beyond reasonable doubt lies on the prosecution. Page 5 of 14 Substantiating her claim on failure by the respondent to prove his case beyond reasonable doubt, she alleged that the respondent’s evidence was contradictory. In that respect, she reminded the Court of its duty to evaluate the contradictory evidence and determine whether the contradictions go to the root of the case. Explaining the alleged contradictions, she contended that the Evidence of PW2, PW3, PW4, PW5 and PW6 was to the effect that they had gone to the appellant’s house whereby they ran away upon seeing the appellant with a bush knife (panga). On the other hand, she said, the respondent, apart from narrating events from 1990’s, narrated how various summonses were issued to the appellant, but he never showed up in any meeting until he was finally summoned and showed up late at the police station. She considered the above facts as posing material contradictions upon which a conviction against the appellant could not be grounded. In support of her stance, she referred the case of Toyidoto s/o Kosima vs. Republic (Criminal Appeal No. 525 of 2021) [2023] TZCA 17305 (5 June 2023) TANZLII. Further citing the case of Mohamed Said Matula vs. Republic [1995] TLR 3, she insisted that the trial Court had the duty to resolve the contradictions. Still on the same ground, Ms. Mushemba countered the respondent’s claim on threatening words by the appellant. She contended so on the ground that none of the witnesses were able to state the exact threatening words allegedly uttered by the appellant. In her view, this was an essential element of the offence, which needed to be proved. She emphasized that the threatening Page 6 of 14 words must have been supported by the evidence to prove the appellant’s intent and respondent’s perception of immediate danger. Under the circumstances, she held the stance that the failure to establish all the elements of the offence rendered the conviction unsafe. With regard to the claim that the appellant held a bush knife, Ms. Mushemba argued that it is no offence for one to own a bush knife or carry one from his house when being threatened by uninvited guests in a large number at his residence. Still challenging the respondent’s evidence, Ms. Mashemba alleged further inconsistencies between prosecution witnesses. She alleged that the respondent’s witnesses kept changing versions of the incident. In particular, she referred the testimony of PW6 arguing that PW6 first stated that he went to the appellant’s home with family leaders, then later changed stating that he was not there but just heard their voices as they spoke and that he saw them running. That, PW6 further changed the story stating to have been informed on what had befallen the family leaders at the appellant’s house. She further pointed out that during examination in chief, the respondent did not say anything on going to the appellant’s house, but stated the same in cross examination which she considered an afterthought. In the premises, Ms. Mushemba contended that a witness who changes his or her story is not a credible one and should not be believed by the Court. Still addressing the 1st ground, Ms. Mushemba further raised an argument that the defence case was not considered. She Page 7 of 14 considered the anomaly being fatal with effect to vitiate the conviction and sentence meted against the appellant. To fortify her averments, she cited the case of Director of Public Prosecutions vs. Josephat Joseph Mushi & Another (Criminal Appeal No.471 of 2019) [2023] TZCA 17536 (24 August 2023) TANZLII. She finalised her arguments by urging this Court to step in and re-evaluate the defense evidence as the 1st appellate Court failed to take note of such fact. In reply to the 1st ground, the respondent held that stance that the case against the appellant was proved beyond reasonable doubt. To cement his stance, he reproduced parts of the testimonies of PW1, PW2, PW3 and PW4, alleging that these witnesses stated that the appellant had threatened them with a bush knife. He disputed the appellant’s contention that there were contradictions/inconsistencies in the evidence of the said witnesses. On the other hand, he contended that even if there was any contradiction or inconsistency, the same would be minor. He argued that minor contradictions were caused by normal errors or memory due to lapse of time, mental disposition such as shock and horror at time of the incidence which are always there despite a witness being truthful. He supported his averment with the case of Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) TANZLII. Page 8 of 14 Regarding the complaint as to the defence case not being considered; he had a different position arguing that the trial Court considered the defence evidence. He argued that the trial Court in considering the defence evidence, noted that the appellant failed to adduce enough evidence as to raise reasonable doubts. That, the trial Court also noted that the appellant’s evidence corroborated that of the respondent to the effect that he indeed threatened to kill. I have considered the rival submissions by the parties on this ground. Ms. Mushemba alleged that the case against the appellant was not proved beyond reasonable doubt. She advanced several arguments in this issue; one, that there are contradictions or inconsistencies in the respondent’s case; two, that there were no any threatening words; and three, that the defence case was not considered. The respondent countered all three arguments. Prior to resolving this ground, I wish to point out that the Evidence Act [Cap 06 R.E 2022] is not applicable in primary courts as misconceived by Ms. Mushemba. Rather, the relevant law is the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations, GN. No. 22 of 1972. In primary courts, private prosecution takes precedence unlike in other courts. Regulation 1(1) of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations requires the complainant to prove all facts constituting the offence. The provision states: Page 9 of 14 “1. (1) Where a person is accused of an offence, the complainant must prove all the facts which constitute the offence, unless the accused admits the offence and pleads guilty.” Regulation 5(1) explicitly states that the burden of proof in criminal cases is beyond reasonable doubt. Upon observing Ms. Mushemba’s averments as to the alleged contradictions, I find the allegations not substantiated. She alleged that the evidence from the respondent’s witnesses, whom she identified as PW2, PW3, PW4, PW5 and PW6 instead of SM2, SM3, SM4, SM5 and SM6, was different from that of the respondent. She explained that the said witnesses stated that the incident occurred at the appellant’s home, but the respondent only narrated facts as to the appellant showing up late at the police station. In my observation, such fact was not a contradiction. While indeed the respondent gave a historical account of the dispute, he also stated that on the material day, the appellant threatened him and others, including his witnesses, when they came to his home, even if such details were given when being cross examined. Contradictions entail discrepancies as to the same fact and not an omission to state a fact or stating an additional fact. The respondent’s act of narrating the history of the matter and mentioning the fact that he was threatened by the appellant by a bush knife, in his examination in chief, was not a contradiction but rather an omission. This omission was however rectified in his cross examination. Page 10 of 14 Concerning the allegation that the exact threatening words uttered were disclosed; I wish to point out that the particulars of the offence were “threatening the respondent by use of weapon to wit; panga (bush knife).” In my view, proving the words uttered is not among the ingredients of the offence in this matter. The offence therefore entails proof of threat made by a weapon. In the premises, this argument fails. Another alleged contradiction related to SM6’s evidence. Upon observing the evidence, I agree that the said witness’ statement was contradictory. While on one hand he alleged to have been in company of clan leaders as they headed to the appellant’s home, on the other hand, he alleged to have not gone to the appellant’s house, but only heard. He said to have heard of the alleged threats when the said clan leaders left the appellant’s house. In further contradiction, SM6 alleged to have witnessed the appellant threatening them with a panga. The contradictions by this witness go to the root of the matter and in the circumstances, his evidence cannot be relied on. in my further determination on this ground of appeal where the appellant claims the case was not proved beyond reasonable doubt; I took upon myself to observe the entire evidence by the respondent. In that course, I noticed that all of the respondent’s witnesses, including the appellant, testified that the incidence took place on 30.06.2024 while the charge indicates that the incidence took place on 28.06.2024. Page 11 of 14 Paragraph 22 of the Primary Courts Criminal Procedure Code, as found under the Third Schedule to the Magistrates’ Courts Act [Cap 11 R.E 2019, gives the presiding trial Magistrate the mandate to amend the charge at any time prior to hearing the defence case. The provision states: “22. At any time before the accused person gives evidence at the trial, the court may amend a charge or add new offences to it, but where the court amends or adds to a charge, the accused person may require any witness who has previously given evidence to be recalled and may put relevant questions to such witness.” Despite the apparent variance as to the date of the offence, at no point was the variance explained or did the trial Court amend the charge despite possessing the mandate to do so under Paragraph 22 of the Primary Courts Criminal Procedure Code. The Hon. trial Magistrate did not address this variance in his judgement nor did the Hon. appellate Magistrate. It is imperative to note that a case is proved beyond reasonable doubt when facts pleaded thereto are supported by the evidence adduced. It is for such reason that where there is a variance thereto, the charge is to be amended to accommodate the same otherwise, the charge is rendered unproved. This was well emphasized in Erasto John Mahewa vs. Republic (Criminal Appeal No. 287 of 2020) [2023] TZCA 17678 TANZLII whereby the Court of Appeal stated: “It is trite law that, the allegations contained in the charge must be supported by the prosecution Page 12 of 14 account so as to prove the charge beyond reasonable doubt. The variance between the charge and the evidence adduced can be remedied before the end of the trial … Where the variance remains unchecked, the adverse effect is that the prosecution case will be rendered not proved.” Variance as to dates between the charge and evidence adduced is a rather sensitive detail. The failure to prove the date mentioned in the charge renders the charge unproved. The effect is for the appellant to be set at liberty. This position was well discussed in the case of Abel Masikiti vs. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (24 August 2015) TANZLII, whereby the Court of Appeal stated: “In a number of cases in the past, this Court has held that it is incumbent upon the republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. If it is not done the preferred charge will remain unproved and the accused shall be entitled to an acquittal.” While the above holding refers to Section 234 of the Criminal Procedure Act, which is inapplicable in the primary courts. Still, the requirement in the mentioned provision is pari materia to the one provided under Paragraph 22 of the Primary Courts Criminal Procedure Code. So, a leaf is hereby borrowed therefrom. Page 13 of 14 As I have indicated; the charge specified that the offence was committed on 28.06.2024. However, all prosecution witnesses testified on the same being committed on 30.06.2024. No alterations were made to the charge nor was there any attempt to rectify the same. This variance alone renders the charge unproved. This observation suffices to determine this appeal to finality. I thus shall not address other aspects raised in this ground or resolve the other grounds of appeal. In the foregoing observations, I hereby quash the appellant’s conviction and set aside the sentence meted against him. I order for his immediate release from prison custody unless held for some other lawful cause. Dated and delivered at Moshi on this 27th day of January, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14