19731030 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA CRIMINAL APPEAL NO0 29/72 (FROM THE DECISION OF THE DISTRICT COURT OF KONDOA AT KONDOA IN CRIHINAL APPEAL NO 0 57 OF 1972) AZIZAD/O KIDUKA 00 0 000 00 0 0 00 0 0 00 000000000000Appel1ant (Original Accused) Versus REPUBLIC 00000000000000000 0 000000000 0 00 0 0 0 0000 0 00000000Respondent (Origiria]. Prosecutor) J U D G M E N T. MNZAVAS J. The appellant was in this case charged with and convicted of using abusiv l'guage c/s 89(i) of the Penal Code and sentenced to a fine of shs0 40J/- or 4 months imprisonment in default0 After an unsuccessful appeal to the district court she has come to this court0 The facts as found by Goima primary court are that some time in March 1972 appellant's husbahd called one, Idi s/o Juma, the complainant, to his hoiJise and asked him for his help in removing a sick head of cattle from a stable0 As they were removing the head of cattle the appellant is alleged to have accused the complainant of wizardy - iii that she said to the complainant that it was he who had bewitched her head of cattle0 After hearing the complainant's evidence and that of one, All s/o Juma (Pw2),, the primary court magistrate and the assessors who sat with him found it as a fact that the appllant had accused the complainant of having bewitched her cow0 The trial cout found that appellantTs accusations were abusive and that they were likely to cause a breach of the peace and j accordinly convicted her of using abusive language c/s 89(1) (a) of the Penal Code0 In upholding the prtmatv courtts decision the learned magistrate says in his judgment inte: alia: 0000000One important Aictor is whether or not to 023 someone e wizard is abusive 0 I feel so since the assessors are of:the community of the appellant and they understand that such a name to a member of their community is insaltive. Considering the evidence available and the credibility placed to it by the trial court I am quite satisfied that it was sufficient to implicate the appellant0" In support of the conviction the learned state attorney argued that there could be no argument that by african standards to call. someone a wizard is tantamount to using abusive language0 It was the Repub1ics argument that a wizard is greatly abhorred by 'e society and that becuse of this appellant's calling of complainant a wizard could have caused a breach of the peace. The court was also referred to section 4 of the witchcraft Ordinance in which it is a criminal offence to call or name any person as being a witch or wizard 0 On the evidence as found by the court of first instance I have no quarrel to the conclusion that the appellant accused the complainant of wizardry0 Equally I have no doubt at all that such an accusation is abusive0 But it is one thing to say that someone's utterances were abusive and quite an :other to say that such abusive 000000 a a ... • breach utterances were likely to cause a hr:c of the peae0 I agree that the appellant's uttrance's were deformatory of the complainant because they imputed to the complainant a commission of 'crime '13iri1he Wi4hcraft Ordinance0 But, with respect to the learned state attorriy, this is not enough to prove an offence u/s 89(i) of the Penal Codea is it was held in UOHNS/O ILUGUSTINO (1967) HOCODO 61, SeCtion 89 of the Penal Code "is aimed at preventing incitements to physical Violence.. Anoyarice or displeasure among the listeners is not sufficient0 The breach of the peace refr,red to'by the statute contemplates only action l±steners" This decision h3.s repeatedly been upheld as good law by susequent decision S_LUNvsR 0 (1969) H.C.D. 177 2 MDEHit vs R____ (1970) H.L.D. 31 . and the recent decision in R vs NELSON KNJNG &_. Z'nother (1972) H.C.D. 181 The listeners' to apjellant's utterances in this case were the complainant and Ali sb Juma (Pw2)0 On the evidence as found by the primary court there is not the slightest indication that appellant's utterances would have made them so annoyed as to resort to violence and thereby cause a breach of the peace On the contrary the complainant says in his evidence 'that after he had been called a wizard he quietly left to his sharnba 0 That this is how he reacted i also evident from the evidence of Ali.Jürná (Pw2), who was also not prturbed by accused's utterances0 On the facts the appellant's utterances were more compart- ible with a civil wrong 'than with a criminal offence, For the above reasonsit would be unsafe to support the conviction, The conviction is accordingly quashed and the sentence is set aside. The shs., 2 00 1= fine (which has already been• paid - COFOFORO No0 283580 of 29/6/72) is to be refunded to the appellant without undue delay 0 DODOMA N0S, MNZAVAS. JUDGE. 30/10/73 0 9