19710407 TZHC Mwanza

I IN THE HIGH COURT CF TNZAI'TIA AT ]\ I\TZA. Lppeflate Jurisdiction. CHIMINiL APPEAl. NO.545 OF 1970. Original Criminal Case No.149 of 1969 of the District Court ofKwimbs District at Ngudu Before P. S. Litanda EsQ District Magistrate 0 SEBASTIANs/oBUKOIMBE,I ........................APPELLNES. MCLMTGA s/o MALUM. (Original 1 & 2 Accused.) versus THE REPUBLIC. RESPONDENT • a • a a • a • a a a a. •. • • • . a • a a a a a . a a • . a a a a (Original Prosecutor.) CHARGE: Brawling c/s 89(1)(b) of the Penal Code. JUDGMENT. EL-KINDY, Q.J. The appellants, Sebastian /o Bulcombe (1st appellant) and Maganga s/o Malum (2nd appellant), were charged with and convicted of brawling contrary to section 890)(b) of the Penal Code, Cap. 16. Each appellant was fined shs.200/- or 3 months imprisonment in default. They are now appealing against their convictions and sentences and their appeals were consolidated and heard together. At one time the first appellant was a Village Exe- cutive Officer. The second appellant was his uncle. The fifst appellant ceased to be an Executive Officer. When he was in authority he allocated a piece of shamba to the complainant Kalango (P.7.1) for his use. Kalango had built a house on this land and was cultivating it every year. The first appellant sought to recover this land by evicting Kalan.c:c from the land, and Kalango resisted this move. He approach- ed the Area Commissioner who allowed him to remain in occupa- tion of the land and to use it. It was alleged that Kalango delivered a written note to TTasaga (D.7.2), a leader of ten-cells, and that this letter forbade the first appellant from making use of the disputed land0 Masags delivered this letter to the first appellant early morning on the 23rd of November 1969, but it would a ppear from the evidence of Masaga that the first appellant was not happy to see that he alone was prohibited making use of the land, .[ny any by this alleged letter, the first appellant was prevented from evicting the complainant from the land or making use of it in any way. The complainant told the trial court that at about 8 a.n. on the 23rd November, 1969, as he expected, he saw the two appellants approaching him when he was cultivating in the IL - -i.__ I - —a---- -- - - ,____ .- j ~ -2- disputed shamba. He said that he was alone in the shamba, and that,'as the appellants approached him armed with hoe handle and a stick 9 they sked him if he was still continuing to cultivate the land, and that if he did so they would assault him to death. On hearing this 9 he took his hoe and began to run away while the two a ppellants pursued him running after him. The complainant said that he ran towards the shamba where a tractor was pioughing and where there were many people to help him. On arrival there, the appellants were stopped from pursuing the ccmplainant, watoboke (P 7 ,2) said that he saw the complainant running towards them holding a hoe and the two appellants were running after him. He said he was instructed by 7asanja (P...3), a ten-cell leader who was also present and witnessing 9 to disarm the appellants. That when he attempted to do so, the first appellant warned him not to get near him but he managed to take away the stick he held. In the result 9 he disarmed both appellants, who were angry and who were uttering threatening words. Similar evidence was given by the ten-cell leader, Masanja (pi)• The incident was later reported to iolice and on the 25th November, 1969 both appellants were arrested and charged. Both appellants gave sworn evidence in their defence. The first appellant admitted that he received the letter which prohibited him making use of the land 9 but he asked the cell- leader why he should be the only person tobe stopped from using the land. He alleged that the cell-leader promised him that he would stop the complainant too from using the land and that for this purpose he went with the cell-leader to the shamba in dispute. He said that when he attempted to stop the complainant from ailtivating the shamba, the complainant claimed that he had been permitted to do so. He claimed that although the complainant was ordered by the cell-- leader to stop cultivating, he would not obey the order. As nothing could be done, he went away and the cell-leader went on his separate way. He denied that he held anything in his h3nd or threatened or chased anybody as it was given in evidence by the im'osecution witnesses. The second aopellant said that on the material day he was not in the village, and that he did not know what transpired. The tractor driver (D7.1) said that he did not take interest in what was happening as he was busy cultivating, he did not see anybody chasing anybody else. Obviously, if he was not taking interest he could not give useful evidence and his claim that he did not see anybody chasing anybody else, or words exchanged, is pcssiL.e p -s-- However, this did not affect the, evidence of those witnesses who not only paid attention but also took part in preventing an attack on the complainant, Vasaga (P.T.2) agreed with the first appellant that he attempted to stop the complainant from cultivating but he failed as the complainant would not obe.y, and he went away. He said that he and the first appellant were not armed The complainant agreed that he had seen 17.asaga trying to stop him from using the land, but he a]ready had authority to use it, Pind that when he saw the appellants later coming towards him with sticks 9 he realised, especially after they had made their intention clear in words, that he would be assaulted to death and he started to rim away. His evidence would suggest that after the first appellant and asaga left, the first appellant reappear- ad again with the second appellant. If that was so, then Masaga t s evidence is accurate to that extent, but is of no assistance to the appellants as he was not with them when they returned to the shamba armed. Kiteleja' s (D.W. ) evidence is not of much use as when he arrived at the shertha where a tractor was ploughing, he did not see anything. This witness could not tell at what time of the day he went there. If he had gone soon after 8 a.m., he would have seen what the prosecution: witnesses claimed to.have seen, but if he went several, hours after that he could not have seen anything. Indeed he anitted that if anything had happened before his a rr iva 1, he would not ha ye known of it. On this evidence, the trial magistrate was satisfied that the two appellants in fact did as the prosecution witnesses alleged, and rejected their defences. The petition of appeal stated that there was no suff i- cient evidence on which the trial court could make such findings, and. that the prosecution failed to prove that their conduct was likely to cause breach of peace. It is coi'rect that one of the ingredients of brawling under section 89(1) (b) of the Penal Code is that the brawl should be likely to cause breach of peace (see the section itself and the R v JOI'TiT cases of MONINKI YJEL v Ti 19C H.C.D. To.2lL UGUSTINJ 1967 o.. s ow ' ore is evidence, which, if accepted as it was accepted by the trial court and I rsee no reason for differing therefrom, which showed that the complainant has been in lawful occupation of land from the time when the first appellant allowed, him to occupy it. hen the two appellants went to him armed with sticks and began brawling with him, there is no doubt at all that breach of peace was likely to occur since, in addition, the appellants made it clear that p -4- if he continued to cultivate the shantha, they would assault him to death. Even if the complainant had been an ola1Dan, as it was claimed by the appellants, he would not be expected not to defend himself if he was attacked. I am satisfied that the learned magistrate was justified in holding that their conduct was likely to cause breach of peace. There- fore, their appnal against conviction is accordingly dismissed. As for the sentence, the learned State Attorney argued that possibly the sentence was excessive. I am satisfied the sentence was fair in the circumstances although the term of imprisonment ordered in default of nnent of fine is not in con±ormity with the scale shown in section 29(iv) of the Penal Code. However, I do not intend to vary it since the appellants had already paid their fines. In the result this appeal is dismissed in its entirety. Delivered in Court at Mwanza on 7th April, 1971. 2/ U.N. EL-KINTDY.) CTING JUDCTE. Present - Douza State Attorney for Prosecution. Appellants - absent. -- -S---