prisca lumelinda vs alli mteje 1997 tzhc 221 24 november 1997

1M THE H IGH COU R T OF T A N Z A N I A AT DA R E S. SALAAM (PC) C R I M I N A L AP P E A L NO. 42 OF 1.996 (From the d e c i s i o n of the D i s trict Court of KINONDONI at KI NONDONI in Criminal Appeal No. 17 of 1996) PRI RCA LIJMELINDA ............... .......... A P P E L L A N T VERSUS ALLI M T E J E ...... ......................... R E S P O N D E N T J U D G F. M E N T KALEGE_YA,_ This is a second appeal by one Prisca L u m e l i n d a c h a l l e n g i n g the acquittal of A l l y Mteje by K i n o ndoni Pr i m a r y Court, which acquittal was upheld by the Kinondoni Di s t r i c t Court, On the day fixed for he a r i n g of the appeal, though served, Respondent failed to appear and the A p p e llant p roceed to p r o s e c u t e her appeal. Before the Primary Court, A l l y Mteje was c harged wit h using ab u s i v e language c\s 89 of the Penal Code a l l e g e d l y b ecause (as per an u n h a p p i l y wo r d e d p a r t i c u l a r s of the charge) "kwa nia ya m a k usudi u l i m t u k a n a P R I S C A L U M E R I N D A kuwa a n a c h u k u a nguo zenya (shahawa) nakuziweka ndani u l i f a n y a hivyo huku ukijua ni kosa kisheria". Facts undisputed, are that the A p p e l l a n t and Respo n d e n t are ne i g h b o u r s s e p a rated by a wall c o n s t r u c t e d by the former. For drainage purposes the A p p e l l a n t ’s wall has an o p e n i n g leading to Respondent's premises. The said op e n i n g was p u r p o s e l y d e v i s e d to ca p t u r e rain water flowing from n e i g h b o u r i n g areas. As it t ranspired however, instead of c a p t u r i n g rain water only, dirty water i n c l u d i n g used condoms, Blood stained cotton wool, e m pty food cans and food left-overs started flowing as well th r o u g h the 2 said o p e n i n g into R e spondent's premises. Attempts by R e spondent to seal off the opening proved abortive as it was c o r r e s p o n d i n g l y being re-opened by the Appellant. As regards the source of the present appeal, it was c ont e n d e d by the Appellant, that on one of such occassions, on 3 0 \ 1 2 \ 9 5 , the Respondent hur led abuses to her to the following effect, "Kisimi cha mama yako na w a z a z i w ak o wote. Malaya rnkubwa matambara yako ya shahawa unaleta kwangu". The Respo n d e n t admitted the incident as regards the flowing of the dirty, seal i n g and r e - o p e n i n g as alre a d y detailed above but disputed having uttered the alleged words. PW2-4, supported the Appel Ia n t 's s t o r y . The Prim a r y Court found that though there was some m i s u n d e r s t a n d i n g between A ppellant and Respo n d e n t due to the ope n i n g in the wall through which dirty water flowed the latter never abused the former. The District Court confi r m i n g the P rim a r y Court's verdict found that even if the words alle g e d were uttered there is no evidence to show that they were direc t e d to the Appellant. A m o n g her grounds of Appeal, the Appe l a n t compl a i n e d that the learned Resident Magis t r a t e erred in h o l d i n g that if at all abusive language was used it was not e s t a b l i s h e d that it was dir.ecl.ed to her, and that no evaluation of evidence was made. H a v i n g care f u l l y gone through the grounds of complaint and weighing the same caref u l l y against the proce e d i n g s and judgment of the p r i m a r y court and that of the District Court T have but to d is m i s s this appeal on the following grounds. 3 First, the compl a i n t lodged before the p r i m a r y court, the part icun 1rs of which T have a l r eady q u oted above, is at varia n c e with what I he A p p e l l a n t and her w i t n e s s e s allege to have been uttered by Respondent , Good sense would fail to see, if the words a l l e g e d by A p p e l l a n t s to have been u t t e r e d by Respo n d e n t were indeed uttered, why are they not s u b s t a n t i a l l y forming part; of the c o m p l a i n t lodged b efore the court! L o o king at the p a r t i c u l a r s of the c o m p l a i n t and the w ords alleged to have been uttered, all qu oted in w h o l e above, one is left with an insur m o u n t a b l e doubt as to w h e t h e r the alleged w ords were u t t ered at all for the framer of the charge could not have left out the o t h e r w i s e vividly o f f e n d i n g words unless not d i s c losed by Appellant. From the s o r r o u n d i n g c i r c u m s t a n c e s of this case, I am c o n v i n c e d that the R e s p o n d e n t did utter some w ords but the exact w ords u t t e r e d have not been c l e arly established. Secondly, the charge is d e p l o r a b l y defective. Apart from s imply m e n t i o n i n g S. 89 instead of S. 89(l)(a) the p a r t i c u l a r s should have revealed the exact words c o m p l a i n e d of. That apart, the p a r t i c u l a r s also o m m i t t e d showing an essential ingredient of the offence, that those words were uttered "in such m a n n e r likely to cause breach of the p e a c e ” , which is an incurable irregularity (ou r, I TSAIJNR V R (1967 ) HCD 440). 1 am aware of s. 37 (2) of the Magistrates' Court Act (Act 2 of 1984) that substantial justice liaB to be done without undue regard to technicalities, but, s u r e l y , a c o m p l a i n t w h i c h does make it clear to an accused p e r s o n as to what he\she is a c t u a l l y charged w i t h o c c a s i o n s failure of justice as it does not enable him (her to put forward the r e q uired defence). Ihirdly, the o f fence of abusive language c\s 89(1) (a) entails that the words u t t ered must not only be abusive but also must be u t t ered in such m a nner that is likely to be p r o v o c a t i v e leading into b r each of the peace. T hough the evidence shows that the A p p e l l a n t and Respo n d e n t are neighbours it was c l e arly p r o v e d 4 that there is a wall s e p a r a t i n g them. There is no evidence showing wh e r e the A p p e l l a n t was whe n the Respondent: was a l l e g e d l y u ttering the words, tn the premises, even assuming the words as per the charge "kuwa a nachukua (Appellant) nguo zenye shahawa na k u z i w e k a ndani" were utt e r e d I am conv i n c e d that the cont e n t s of the said words and the ci r c u m s t a n c e s in whi c h they were uttered fall short of "in such manner as is likely to cause abreach of the peace" as presc r i b e d under S. 89(l)(a) Penal Code. For I lie reasons discu s s e d above I uphold t he acquittal v erdicts arrived at by both court below. The appeal is accord ingly d i.smissed . (L. B. Kalegeya) JUDGE 20\11\97 Delivered in the presence of the A ppellant and R espondent today the 24th November, 1997. At Dar es Salaam (L . B. Kalegeya) 24TH N O V E M B E R ,_ 1 997 JUDGE I cnlth ((fill t l m I* » ( u f r C« » r e c l •f Ihf Onftiii <! t - H - d + i ) . *' *g c «i, RtfMing. ........ ............... IliMi lit knimtt Ih^li i i i u i l <•/ / t i n j m l a thII 11 >\^w____ TN THE H TCH C O U R T OF T A N Z A N I A (D.sm District Registry) AT DAR.RS SAI.AAM PC CTVTF. A P P R A h NO. 93 OF 1997 ( O r i g i n a t i n g from Kinondoni District Court. Civil Appeal No. 9\97 and Ori.ainal M a n z e s e P r i m a r y Court Civil Case No. 1 2 7 \ 9 5 \ H A M T R A T HUMANT APPRU.ANT VRRRIJR J U M A N N R MAKAMBT 1ST R R S P O N D R N T K O N D O MAT.EMRRLR 2ND R R S P O N D R N T TDD K T W A M R A .... 3RD R R S P O N D R N T R J J ?, T N G K A r.R G R Y A ._ J. This is a rilling in respect of an a p p l i c a t i o n for leave to appeal to the Court of Appeal and also for a c e r t i f i c a t e that there is a poi n t of law involved in the intended appeal fit to be determined by the Court of Appeal. The Appellant is bei n g represented by Mrs. Washokera., learned Counsel. Hamisi At human i . Appellant., sued the three Respondents, .Tumanne Makambi Kon d o M a l e m b e l e and Tddi Kiwarnba for p o s s e s s i o n of a house a l l e g e d l y left beh i n d by his d e c e a s e d brother.. Juma At humani . He lost in the p r i m a r y court and his appeal to the D i s trict Cou r t was dismissed. Concluding that the M a n z e s e P rimary Cou r t and the Kinondoni Di s t r i c t Court have not done iustice to h i m he k n o c k e d at. the doo r s of this court but his appeal was summarily rejected (Kilen, J.) for h a v i n g no merits at all. Upon s c r u t i n y of the p r i m a r y court record T have noted that there is d e f e c t apparent thereon that s e r i o u s l y af f e c t s the lower courts' proceedings. The M a g i s t r a t e is shown to have invited and recorded the individual opinions of the a ssessors, and thereafter proceeded to co m p o s e a judgement which was not signed by the a s s e s s o r s . This clearly violated Rule 3 of the M a g i s t r a t e ' s C ourts (Pri mary C o u r t s ) (Judgement of the Court) Rules,. 19R7. Under rule 3, there is no record ing of individual opi n i o n of ass e s s o r s except, that the M a g i s t r a t e is required to consult with the assessors, and if there is a unanimous decision as was the case here, he would proceed ♦o compose a judgment which would be signed by both himself and the assessors. Legally there is no judgement of the court if it. is not. s igned by all the a ssessors and M a g i s t r a t e where there is a concensus on findinas. or^~k " ■' A- ma g i s t t a t e and one assessor (these being the majority) in case one diss e n t s (whose d i s s e n t i n g views also would be recorded). The conseq u e n c e s of this defect is to make the nrnceed i.nos and judgement of both courts helow a n ullify (there is alona list of a u t h o r i t i e s on this ie. (PC) Civil A p p . 25X92 Pi 1 i Mungi vs Nina Just ina Mbaga; (PC) Civil App.6\91 Tbrahim Said vs Salum fiaidi Dsm (HC) Registry -unreported). They are so declared. T am sure that this defect escaped inadvertantly the att.ent ion of the a dmitting judge when p assing a summary reject ion order. Had she seen this she would o b v i o u s l y have admitted the appeal. Tn the pre m i s e s leave is granted and the point of law involved is the v iolation of Rule 3 as indicated. However, the above apart, T would advise that instead of appealing to the Court of Appeal, and, as the defect, had not come to the atte n t i o n of the judge when she marie the order,, in order to save time and expedite matters, the Applicant, could prefer an appl icat ion by way of review, for the Hiuh Court to review its decision because of this n ew revelation. T have so concluded 2 because most likely the Court of Appeal will declare the proceedings a nullity., s e n d i n g back the p a r t i e s to the p r i m a r y nourt and that would be some m o n t h s to come., a findina which " would have been made earlier by this Court. (F-. R . ffa 1egeva ) JUDGE Delivered on 31 t/